Counting the costs of HIV criminalisation

New research finds HIV criminalisation is causing disproportionate harm to women, sex workers, racial minorities, gay and bisexual men, transgender people, immigrants and indigenous people.

What is this research about?

The effect of HIV criminalisation on people with HIV and other groups.

Researchers reviewed 240 studies on HIV and criminalisation, plus documents from UNAIDS and other organisations. Most of the studies done come from high-income countries.

Why is this research important?

Understanding the impact of HIV criminalisation, then acting to change laws that have harmful effects, is essential for ensuring that national HIV strategies take a human rights approach. Addressing HIV criminalisation is a priority in UNAIDS’ Global AIDS Strategy 2021–26. The goal is for less than 10% of countries to criminalise HIV by 2025.

What did they find out?

In 2022, 82 countries had laws that criminalise HIV. These include 30 in sub-Saharan Africa, 13 in the Asia-Pacific region and 16 countries in Eastern Europe and central Asia

Some countries criminalise HIV transmission, exposing another person to the risk of infection, or not telling a sexual partner about a positive HIV status. In other countries, different laws are used to prosecute people with HIV. These include laws relating to assault, sexual assault and bodily harm.

Laws can be used to punish people even in cases where HIV has not been transmitted and people have taken steps to prevent transmission, for example, by using condoms. But researchers caution against only ending HIV criminalisation in some instances, such as if someone is undectable. If this happens, people who struggle to access HIV treatment or negotiate condom use will still be criminalised.

Criminalisation causes more harm than good

The benefits of HIV criminalisation are minimal. These are far outweighed by the huge cost of stigmatising people with HIV, making people with HIV afraid to use health services. The harmful effects of incarceration, coercion, blackmail, having a criminal record or being deported that people with HIV face due to criminalisation must also be taken into account.

Effect of criminalisation on specific populations

Women

One of the reasons given for criminalising HIV is to protect women who are HIV-negative from ‘predatory’ men who have HIV. But research shows that HIV criminalisation does not protect women. It actually contributes to the gender-based harms that women face.

Often, women test for HIV through reproductive health services. If they have HIV, they are often diagnosed before their partners. Disclosure can lead to partner violence. But women might be breaking the law if they don’t disclose.

A 2018 study in eastern Europe and central Asia found women with HIV experienced violence, threats and blackmail, which they accepted as they were scared of being exposed as having HIV and prosecuted. Women convicted risked being socially isolated, losing custody of their children and losing property rights.

Since 2013, women in Botswana, Kenya, Malawi, Uganda and Zimbabwe have been prosecuted for exposing babies to HIV through breastfeeding. In many cases, women were on antiretroviral treatment and HIV transmission did not occur.

Women who are already marginalised and criminalised, such as transgender women, sex workers and women who use drugs, are most likely to be harmed by HIV criminalisation.

People who use drugs

A 2016 survey of people with HIV who inject drugs found more than half of respondents were liable to prosecution under HIV laws, mostly because of not using condoms consistently.

Gay men and other men who have sex

In some countries, HIV criminalisation has merged with laws that criminalise same-sex activity. For example, a gay man with HIV could be prosecuted for ‘aggravated homosexuality’ as well as having consensual gay sex.

In 2018, a study with men who have sex with men in Canada found participants were scared of being prosecuted for HIV non-disclosure. This made many reluctant to test for HIV on a scale large enough to increase HIV transmission within the community.

What does this mean for the HIV response?

Advocacy is needed to call on governments to review, reform, and repeal laws that continue to harm people with HIV and people from marginalised communities.

The evidence shows that advocacy can work, especially when it is led by people with HIV. Between 2015 to 2021, HIV laws have been repealed, withdrawn or amended in countries including the Democratic Republic of the Congo, Malawi, Kenya and Zimbabwe.