Globally, 72 countries have adopted laws that specifically
allow for HIV criminalisation, either because the law is specific to HIV, or
because it names HIV as one (or more) of the diseases covered by a broader law.
This total increases to 101
jurisdictions when the HIV criminalisation laws in 30 of the states that
make up the United States are counted individually.
for HIV non-disclosure, potential or perceived exposure and/or unintentional
transmission have now been reported in 61
countries. Of the 61 countries,
26 countries applied HIV criminalisation laws and 32 applied general criminal
or public-health related laws, according to HIV Justice Worldwide, an international partnership of
organisations, made up of the AIDS and Rights Alliance for Southern Africa
(ARASA), the Canadian HIV/AIDS Legal Network, the Global Network of People
Living with HIV, the HIV Justice Network, the International Community of Women
Living with HIV, the Positive Women’s Network USA and the Sero Project. The
findings were presented at the Beyond Blame pre-conference held at the 21st
International AIDS Conference (AIDS 2016), in Durban, South Africa, this week.
HIV criminalisation refers to the
unjust application of criminal law to people living with HIV, based on their
HIV status, either through the use of HIV-specific criminal statutes or by
applying general criminal laws that allow for the prosecution of unintentional
HIV transmission, potential or perceived exposure to HIV – even where HIV is
not transmitted – and/or the non-disclosure of known HIV-positive status.
“HIV criminalisation is profoundly
bad policy. It is based on fear and outdated understanding of HIV risk and harm
and magnifies stigma and discrimination towards people living with HIV,” said
Justice Edwin Cameron, judge of the South Africa Constitutional Court.
These laws are not guided by the
scientific and medical evidence relating to the transmission mechanisms of HIV,
fail to uphold the principles of legal and judicial fairness (such as
foreseeability, intent, causality and proof) and directly infringe the human
rights of those involved in these cases.
“The evidence that criminalisation
as a public health strategy does not work is too plain to contest. It is our
responsibility to end it,” said Hon. Patrick Herminie, Speaker of the National
Assembly of Seychelles.
To date, 30 countries in
sub-Saharan Africa have passed laws criminalising HIV transmission or exposure
in some form, including Botswana, Cote d’Ivoire, Nigeria and Uganda, which
passed laws in the last year. There has also been a rise in reported
prosecutions in sub-Saharan Africa since 2015, in Botswana, South Africa,
Uganda and especially Zimbabwe.
An additional workshop at the
conference explored the common roots of criminalisation. Panelists identified the
key reasons for these misused and often overly-broad interpretations of
criminal laws as being due to fear, moral panic, containment of the HIV
epidemic and state-sponsored control of bodily autonomy, including sexual
conduct and stigma to impose sanctions on those viewed as not being ‘fit and
worthy’ of enjoying the protectionist mandate of these laws.
Pervasive gender inequality, power dynamics, and 'victim-status' were
acknowledged as preventing women from accessing justice to the same extent as
men. It was recommended that a feminist framework is used as a strategy to
address the criminalisation of HIV as female and transgender sex workers,
migrants, indigenous and black women suffer the most from these HIV-specific
Rosemary Namiburu, an ex-nurse from Uganda, who was imprisoned after she
was prosecuted following unfounded allegations that she reused a canula
in a young patient following a needlestick injury is an example of this. She says, “My life will not be the same after
facing HIV criminalisation. My 30 years of working as a nurse and dedicated to
saving lives have been erased. I have spent almost a year in prison and have
been branded as a criminal and a killer, even though I have harmed no one.”