New report shows HIV criminalisation is a growing, global concern but advocates are fighting back

A new report released today shows that HIV criminalisation is a growing, global phenomenon. However, advocates around the world are working hard to ensure that the criminal law's approach to people living with HIV fits with up-to-date science, as well as key legal and human rights principles.

What do we mean by 'HIV criminalisation'?

HIV criminalisation describes the unjust application of the criminal law to people living with HIV based solely on their HIV status – either via HIV-specific criminal statutes, or by applying general criminal laws that allow for prosecution of unintentional HIV transmission, potential or perceived exposure to HIV where HIV was not transmitted, and/or non-disclosure of known HIV-positive status.

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Launch of HIV Justice Worldwide initiative

Q: What is HIV criminalisation?
HIV criminalisation describes the unjust application of the criminal law to people living with HIV based on their HIV status – either via HIV-specific criminal statutes, or by applying general criminal laws exclusively or disproportionately against people with HIV.

Usually these laws are used to prosecute individuals aware they are living with HIV who allegedly did not disclose their HIV status prior to sexual relations (HIV non-disclosure), are perceived to have potentially exposed others to HIV (HIV exposure) or thought to have transmitted HIV (HIV transmission).

In many countries a person living with HIV who is found guilty of other 'crimes' - notably, but not exclusively, sex work, as well someone who spits at or bites law enforcement personnel during their arrest or whilst incarcerated – often faces enhanced sentencing even when HIV exposure or transmission was not possible or was – at most – a very small risk.

Q: Why is HIV criminalisation a problem?
It is estimated that some 72 countries have adopted laws that specifically allow for HIV criminalisation, while prosecutions for HIV non-disclosure, exposure and transmission have been reported in close to 60 countries, either under HIV-specific laws or other, general criminal laws. In many instances, HIV criminalisation laws are overly broad – either in their explicit wording, or in the way they have been interpreted and applied – making people living with HIV (and those perceived by authorities to be at risk of HIV) extremely vulnerable to a wide range of human rights violations.

There is a growing body of evidence that HIV criminalisation impacts the human rights of people living with HIV, often also members of inadequately served populations, because of:

  • selective and/or arbitrary investigations/prosecutions that has a disproportionate impact on racial and sexual minorities, and on women.
  • confusion and fear over obligations under the law;
  • the use of threats of allegations triggering prosecution as a means of abuse or retaliation against a current or former partner living with HIV;
  • improper and insensitive police investigations that can result in inappropriate disclosure, leading to high levels of distress and in some instances, to loss of employment and housing, social ostracism, deportation (and hence also possibly loss of access to adequate medical care in some instances) for migrants living with HIV in some cases;
  • limited access to justice, including as a result of inadequately informed and competent legal representation;
  • sentencing and penalties that are often vastly disproportionate to any potential or realised harm, including lengthy terms of imprisonment, lifetime or years-long designation as a sex offender (with all the negative consequences for employment, housing, social stigma, etc.);
  • stigmatising media reporting, including names, addresses and photographs of people with HIV, including those not yet found guilty of any crime but merely subject to allegations.

HIV criminalisation is also at odds with public health objectives. Evidence suggests that fear of prosecution may deter people, especially those from communities highly vulnerable to acquiring HIV, from getting tested and knowing their status, because many laws only apply for those who are aware of their positive HIV status. HIV criminalisation can also deter access to care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals because medical records can be used as evidence in court.

Q: What is HIV JUSTICE WORLDWIDE?
A: HIV JUSTICE WORLDWIDE is an initiative made up of global, regional and national civil society organisations - most of them led by people living with HIV - who are working together to build a worldwide movement to end HIV criminalisation. All of the founding partners have worked individually and collectively on HIV criminalisation for a number of years.

HIV JUSTICE WORLDWIDE comes at a time when there is an urgent need to capitalise on current advocacy successes in some parts of the world and to resist new and proposed laws in others. It is also evident that preventing and remedying HIV criminalisation is going take many years, if not decades, and so we need to work together because:

  • HIV criminalisation is an international issue, having grown in scope and severity over the last two decades;
  • international actors such as UNAIDS, UNDP, the Global Commission on HIV and the Law and others have been – or need to be – involved in this issue, and civil society needs to be able to effectively engage with these actors;
  • international pressure can often be helpful in responding to problematic regional or national developments; and
  • a global movement can help raise awareness and build capacity of local actors around the world by sharing knowledge, experience, strategies, tools and mobilising resources.

Q: Who is behind HIV JUSTICE WORLDWIDE?
A: The founding partners are:

The initial three-day meeting, which took place between March 22-24 2016 in Brighton, UK, was funded by a grant from the Robert Carr civil society Networks Fund provided to the HIV Justice Global Consortium, comprising ARASA, Canadian HIV/AIDS Legal Network, GNP+, HIV Justice Network, Sero and PWN-USA.

Representatives of Amnesty International, ICW, the International HIV/AIDS Alliance, National AIDS Trust (NAT), UNAIDS and UNDP also participated in some of the meeting.

Q: What does HIV JUSTICE WORLDWIDE want to achieve?
A: We want to end HIV criminalisation by empowering people living with HIV and those who advocate on our behalf to ensure policymakers, criminal justice actors and other relevant stakeholders abolish existing laws and oppose the passage of proposed laws designed to regulate, control, and punish people living with HIV on the basis of their HIV status.

Our mission is two-fold:

  1. To enhance the capacity of advocates (People Living with HIV networks, organisations, communities and individuals) to challenge and influence the decision makers within their communities and on a national and regional basis, to prevent or stop unjust use of criminal laws against people living with HIV, and to influence creation of fairer laws.
  2. To protect the human rights of people living with HIV by reducing, limiting and ultimately ending the unjust use of criminal laws, policies and practices to regulate and punish people living with HIV on the basis of their HIV status.

Q: How will HIV JUSTICE WORLDWIDE make a difference?
A: HIV JUSTICE WORLDWIDE will enhance and build on contributions its founding partners have previously made: monitoring, informing, connecting and engaging with People Living with HIV networks, civil society organisations and others who advocate against HIV criminalisation, and engaging policy-makers in pursuit of protecting against HIV criminalisation.

The initiative allows us to:

  • Avoid duplication by bringing together the many existing resources on this issue, sharing information and coordinating advocacy efforts.
  • Build broader consensus amongst People Living with HIV networks, civil society, policymakers, key scientists/clinicians, criminal justice actors and funders that 'ending AIDS' will not happen unless we put an end to HIV criminalisation.
  • Create new energy and action, 'riding the wave' of recent advocacy successes, pushing for commitment to change at the highest level.
  • Develop and strengthen much-needed civil society capacity to ensure continued advocacy against HIV criminalisation, and to sustain this capacity in order to further advocate against related punitive laws, policies and practices aimed at people living with HIV and which impede the HIV response.

Q: What can I do to help achieve HIV JUSTICE WORLDWIDE?

  • Sign up for our newsletter and stay informed about HIV criminalisation advocacy work around the world.
  • Help us keep track of new laws and unjust prosecutions by This email address is being protected from spambots. You need JavaScript enabled to view it. in your country or your region.
  • If you are in Durban for AIDS 2016, come to our Beyond Blame pre-conference.
  • This email address is being protected from spambots. You need JavaScript enabled to view it. if you need any strategic support for your advocacy against HIV criminalisation.

 

Source: HIV Justice Worldwide

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