Criminalizing HIV Transmission: Undermining Prevention, and Justice

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Commentary Sexual Health

Criminalizing HIV Transmission: Undermining Prevention, and Justice

Aziza Ahmed

While criminalizing HIV transmission is appealing to some governments, it actually undermines public health goals and violates the rights of people living with HIV.

In the midst of the continued struggle to end the spread of HIV/AIDS comes a new twist: the criminalization of HIV positive people and more specifically — HIV positive women.

Criminalization of HIV transmission refers to the application of criminal law to prosecute HIV transmission or exposure to the virus.   While appealing to some individuals and governments as a means of addressing the spread of HIV, criminalization of HIV transmission and exposure actually undermines public health goals and violates the rights of people living with HIV.

First, women and girls are often blamed for the spread of HIV and criminalizing HIV transmission increases this blame.  Women are often accused of bringing HIV into homes, kicked out, and abandoned by their immediate and extended families.  Women who are sex workers have long been treated as “vectors” of HIV transmission and blamed for fueling the spread of HIV.   The criminalization of HIV/AIDS worsens this stigma by assuming that people who transmit HIV/AIDS do so “intentionally” and “recklessly” when in fact most HIV transmission occurs without either party knowing their HIV status.

Second, some countries, including Sierra Leone, have gone so far as to criminalize “harm to the fetus” by the mother. This language is so broad that for an HIV positive woman getting pregnant could be construed as a crime.

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Third, laws which criminalize HIV/AIDS put women at higher risk of prosecution. In developing countries women often find out their positive status during ante-natal care.  Many women fear disclosing their status to their families because of violence and abandonment.  If a woman does not disclose her HIV status to her partner, due to fear of violence for example, her partner could prosecute her for “knowingly” transmitting the virus to him.  This point also speaks to men’s greater access to legal services and greater legal literacy, which results in lopsided access to “justice.”

Fourth, laws which criminalize HIV provide avenues for states to selectively prosecute individuals for transmission.  This will impact already marginalized groups of women including sex workers and injecting drug users. We see this unfair prosecution already occurring to groups working for men who have sex with men and providers working largely with marginalized groups.

There are also more nuanced ways that if criminal transmission laws are in place they will work against women, specifically where laws that criminalize HIV transmission will be reinforced by already existing laws which discriminate based on sex and gender.  For example, in countries which do not acknowledge marital rape, women are always seen to have consented to sex with their husbands.  Therefore, in a country where HIV is criminalized and marital rape is not acknowledged, the husband could always use the defense of consent to defend himself against his wife if she were to press charges.

These factors amongst others including violations of confidentiality and lack of clear evidence, combined with the patriarchal nature of the courts and ongoing blame of women for spreading HIV (whether as sexual partners, wives, or mothers) means that in many countries the criminalization of HIV transmission could quickly become the criminalization of HIV positive women.