3. How does criminalization impact on public health?
Does criminalization encourage people to disclose their HIV status?
No. In many countries the basic premise behind the criminal law is that people living with HIV should disclose their HIV status to potential sexual partners. Prosecutors often view this exchange in extremely simplistic terms and fail to recognise the complexities of human relationships, challenges in coming to terms with a complex and stigmatised virus, and pressures and emotions that may be driven by stigma. Many people find sharing the most intimate and personal details of their lives challenging. Similarly, a high proportion of people find negotiating safer sex and condom use difficult. Talking about HIV and disclosing an HIV positive status can therefore be an extremely difficult thing to do.
In practical terms, the law can provide a disincentive for a person to disclose their HIV status. For example, if a condom breaks during sex, the person living with HIV may end up inviting a criminal investigation if they disclose their status and encourage the other person to get Post Exposure Prophylaxis to reduce the risk of contracting HIV. It can also limit the success of partner notification schemes, which are a key aspect of HIV prevention strategies. If there is a risk that past partners could bring a criminal case against a person, the person may be less likely to let health care workers contact former partners who may have been put at risk.
People living with HIV have the right to chose if, when, where, how and to whom they disclose that they are HIV positive. One of the foundations of effective HIV prevention, sexual health and human rights is that all people, regardless of HIV status, take responsibility for their own health, knowledge and sexual choices.