The first edition of Risks, Rights & Health in 2012 highlighted
both the positive and negative impact law may have on ensuring an effective HIV
response and called on governments to outlaw discrimination, repeal punitive
laws, and enact protective legislation to promote public health and human
Among its original
recommendations were a number related to the criminalisation of HIV
transmission, exposure, and non-disclosure. They included a proscription on
enacting HIV-specific criminal statutes, not prosecuting other than in cases of
intentional and malicious transmission, repealing or amending any laws that
criminalise vertical (mother-to-child) transmission, and the review of
convictions under laws that do not satisfy these requirements.
The 2018 Supplement emphasises
that these, along with its other recommendations, remain relevant, but takes
into account developments in science, technology, law, geopolitics and funding
since 2012 that have affected people living with or at risk of HIV and
co-infections, including hepatitis and tuberculosis (TB).
While celebrating the fact that a
number of jurisdictions in Europe, Asia, North and South America, and Africa,
have repealed their criminalisation laws, the Supplement explains that as of
July 2018, 68 countries still criminalise HIV non-disclosure, exposure, or transmission,
and that at the end of 2017, prosecutions had been reported in 69 countries –
with the United States, Canada, Belarus and Russia having the largest number.
Among the speakers at the launch,
Justice Edwin Cameron of the Constitutional Court of South Africa criticised
the failure of courts, including the Supreme Court of Canada, to acknowledge
the fact that advances in treatment mean that those with an effectively
suppressed viral load cannot transmit HIV to their sexual partners, and called
not only for an end to “irrational” criminal laws but for the immediate release
of all those imprisoned under them.
Charles Chauvel, one of the
Commissioners, explained that countries with “vague” or “insidious”
criminalisation statutes, including countries in Central Asia and the Middle East and North Africa
region, were notable for having seen an increase in HIV infection rates since
2012, and Dr Shereen El Feki, Vice-Chair of the Commission pointed out that we
live in times characterised by a rise in right-wing populist politics, the
repression of, and reduction of funding for, civil society organisations, and
heightened regional conflict leading to a rise in migrant and vulnerable
Such factors combine to make
progressive law reform more difficult; but they also make it even more urgent.
Building on evidence gathered since the publication of Risks, Rights & Health, the Supplement offers additional
recommendations that take into account these and other social, economic, and
political changes. As regards criminalisation, these are that:
countries where HIV criminalisation laws still exist, courts must require
proof, to the applicable criminal law standard, of intent to transmit HIV. The
intent to transmit HIV cannot be presumed or derived solely from knowledge on
the part of the accused of positive HIV status and/or non-disclosure of that
status; from engaging in unprotected sex; by having a baby without taking steps
to prevent mother-to-child transmission of HIV; or by sharing drug injection
must ensure that, where an HIV-specific law has been repealed, there is a
restriction on the application of any general laws to the same effect either
for HIV or TB.
must prohibit the prosecution under HIV-specific statutes, drug laws, or child
abuse and neglect laws, of women living with HIV for choices they make during
and after pregnancy, including about breastfeeding children.
HIV arises in the context of a criminal case, police, lawyers, judges and where
applicable, juries, must be informed by the best available scientific evidence
concerning the benefits and consequences of appropriate therapy, and the
individual and community advantages of maintaining such therapy.
These recommendations make it
clear that it is unacceptable to equate behaviour which carries with it a risk
of onward transmission as intending that such transmission should occur, that
general criminal laws should not be used, in effect, as proxies for
HIV-specific ones, that expectant women and mothers merit special protection,
and that those involved in criminal justice and judicial decision making have
an obligation to take into account the best scientific evidence.