Impact on human rights

The United Nations Commission on Human Rights (now the United Nations Human Rights Council) has explicitly recognised HIV status as a prohibited ground of discrimination. United Nations treaty bodies have also clearly indicated that the right to non-discrimination on various grounds includes the right to non-discrimination on the basis of HIV status.¹ People living with HIV have all the same human rights as everyone else,² including the rights to:

• privacy and non-interference from the state

• not be subject to arbitrary, discriminatory or capricious use of the criminal law

• a fair trial, including the presumption of innocence until proven guilty.³

A recent report by the United Nations Special Rapporteur on the Human Right to Health notes that "the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health."⁴

Many laws criminalising potential or actual HIV exposure or transmission raise human rights concerns solely on the basis of what they stipulate as punishable offences, and placing innocent people at risk of prosecution.^5,6,7,8

See the chapter: Laws for further discussion of vague statutes and over-broad application of the criminal law and the chapter: Details for jurisdiction-specific information on such laws.

Such laws are poorly drafted and/or applied, and often encompass behaviour that has no HIV-related risk attached¹ and/or makes no distinctions between high-risk and low-risk activities.²

The experiences of HIV-positive people accused of violating both HIV-specific laws and more general criminal laws by allegedly putting others at risk of HIV exposure amplify these concerns.[ref]

1. For example, Idaho’s HIV-specific law (Idaho Code § 39-608) prohibits the transfer of ‘urine’ and ‘saliva’ unless there has been prior disclosure of HIV-positive status.

2. This applies to all HIV-specific criminal statutes based on the N’Djamena model law which have been enacted in some 25 African nations.

As discussed at length in the chapter: Proof, law enforcement representatives have an obligation to conduct investigations sensitively and appropriately, respecting the privacy of people’s health information. The chapter also highlights many evidentiary pitfalls that have considerable potential for a conviction without sufficient evidence. Media reports from around the world provide anecdotal evidence that defendants in criminal trials may have had their rights violated in these ways (see reports on Criminal HIV Transmission. www.criminalhivtransmission.blogspot.com, 2007 to 2010).

No study has systematically investigated such violations on an international scale, but a 2009 report from the United Kingdom⁹ confirmed long-held fears that the scope and approach to investigations of alleged criminal HIV exposure or transmission in England and Wales may go far beyond what the law intends. The Terrence Higgins Trust (THT), a London-based HIV/AIDS organisation, announced, when it launched itsreview of police handling of criminal HIV-transmission investigations,⁹ that “scores, if not hundreds” of arrests had taken place since the first conviction for reckless HIV transmission in England and Wales in October 2003. During 2005 and 2006, there was an average of one arrest every two weeks – but most police investigations were then dropped due to a lack of evidence. During the course of these inconclusive investigations, THT suggested, “lives had been turned upside-down and some came close to being destroyed”.¹⁰

The report found that although there were some examples of good practice – including offering PEP promptly to a complainant who had been potentially exposed that night, and taking action to prevent inappropriate disclosure of the accused in the community – much more was found to be lacking, including:

• A poor police understanding of HIV, leading to inappropriate management of cases.

• A lack of clarity amongst police officers about the current law, and what is, and what is not, an offence.

• Unnecessarily long and drawn-out investigations, ranging between four and twelve months for cases that did not result in prosecution, and between 6 and 34 months for those that did.

• Difficulties in reconciling the realities of HIV transmission with the requirements of the charge under general English assault law. Notably, the report points out that “police are having to manage cases brought under a law never designed for such scientific complexity” and notes that the police “repeatedly misinterpreted the strength of their scientific evidence”.⁹

The United Nations Special Rapporteur on the Human Right to Health⁴ and human rights advocates internationally^{6,11,12,13,3,14} have expressed particular concern about how laws criminalising potential or actual HIV exposure or transmission may particularly impact on socially and economically marginalised groups who are often disproportionately vulnerable to both HIV infection and human rights violations.

A number of analyses of prosecutions in high-income, low prevalence settings have found some prelimimary evidence that may support their concerns in some – but by no means all – jurisdictions.

As detailed in the case study in the chapter: Laws (Preoccupation with alleged HIV exposure or transmission during biting and spitting) although there is no HIV-exposure risk from saliva that does not contain blood, HIV-related spitting cases continue to be prosecuted throughout the United States, representing 11.5% of all HIV-related prosecutions in a two-year period between 2007 and 2009.¹⁵ Most of the individuals prosecuted were already under the purview of the criminal justice system, most commonly for alleged violations of vagrancy laws, or were already incarcerated for previous offences.

A 2008 analysis of Canadian media reports of arrests and prosecutions for HIV exposure or transmission found that (heterosexual) migrants from high-prevalence countries were over-represented.¹⁶ Although they made up only 2% of the Canadian population and 12% of the Canadian HIV-positive population, migrants from high-prevalence countries (Uganda, Sudan, Zambia, Zimbabwe, the Democratic Republic of the Congo, Ethiopia and Trinidad) made up almost half of all criminal sexual HIV prosecutions in Canada in 2008.

A 2005 survey of 45 European countries found no association between the prevalence of HIV transmission in any country or jurisdiction and prosecutions for HIV exposure or transmission.¹⁷ However, in seven countries where socio-economic details were provided, the burden of prosecutions fell on individuals with HIV who were in vulnerable social and economic positions.