3. How does criminalization impact on public health?
Does criminalization protect vulnerable people from HIV transmission?
No. Using criminal law as part of a national response to HIV makes all people living with HIV, or at risk of contracting HIV, more vulnerable. This applies both to laws that direclty criminalize HIV transmission or exposure, as well as to laws that criminalize behaviours and people most vulernable to contracting HIV (such as laws relating to the buying or selling of sex, drug possession and same sex relationships).
Criminalization makes it more difficult for people to be open about their HIV status and can prevent openness, information sharing and discussions about HIV. These kind of discussions are essential to dispel stigma, inform and support access to services, and encourage greater understanding about the complexity and challenges of living with HIV.
Some of the early impetus for criminalizing HIV transmission, particularly in West Africa, was influenced by arguments that criminalization of HIV transmission would protect women. However it is now understood that criminalization of HIV could in fact harm women as women are often the first to become aware of their HIV positive status (through ante-natal testing), and may be blamed for bringing HIV into the household. This includes cases where HIV transmission occurs between a husband and wife. Women are therefore placed at greater risk of gender-based violence, divorce, loss of income and/or inheritance rights, and social exclusion or isolation.
Criminalization also undermines the human rights of people living with or at risk of contracting HIV, by jeopardizing their right to health, privacy, equality before the law and to a fair trial.
Watch Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa, discuss HIV criminalization and gender below.