Dr. iur. Caroline Suter

HIV criminalization describes the unjust application of criminal law to people with HIV as a result of their HIV infection. This involves the application of HIV-specific criminal laws on the one hand and provisions from general criminal laws on the other. People with HIV are prosecuted for concealing their HIV status, allegedly exposing a person to the risk of HIV exposure or unintentionally transmitting HIV.

Worldwide phenomenon

According to UNAIDS, 134 countries criminalize the concealment of HIV status, exposure to HIV or HIV transmission. The HIV Justice Network (www.hivjus-tice.net), a community-based NGO that maintains a global database of laws and jurisdictions on HIV criminalization, reported on developments in the individual regions at the conference. The USA was the first country to introduce HIV-specific criminal laws in 1987. More than half of the states still have such HIV laws today, some of which provide for long prison sentences. An impressive example of this was provided by Kerry Thomas from Idaho, who moderated a workshop from prison in a live broadcast. Thomas was sentenced to 30 years in prison in 2009 for having sex twice without informing his partner of his HIV infection. The court was not interested in the fact that Thomas used condoms and had an undetectable viral load, meaning there was no risk of infection for his partner.

Around 30 sub-Saharan countries have laws on HIV criminalization. Women are more likely to be prosecuted than men, as they are usually the first in the relationship to find out about their HIV status through HIV tests during pregnancy. In some cases, women have also been convicted for exposing their children to a potential risk of transmission while breastfeeding. However, there are also encouraging developments. For example, Congo completely abolished its HIV-specific laws in 2018 and Zimbabwe in 2022. Efforts are also underway in Burkina Faso and Kenya.

Eastern Europe and Central Asia have the second-highest number (16) of specific HIV criminal laws after sub-Saharan Africa. In Russia and Belarus, the number of convictions is extremely high. Any act that exposes a person to the alleged risk of infection is punishable in Russia. Disclosure of HIV status is mandatory and even without an HIV diagnosis, a person can be held criminally liable, for example for injecting drug use.

Seven countries in the Middle East and North Africa have HIV-specific criminal laws. Yemen enacted a new law in 2021 that not only criminalizes suspected HIV transmission without intent, but also provides for mandatory HIV testing of migrants and refugees. Three countries have also applied general penal provisions in the past, including the United Arab Emirates. There, foreigners must undergo an HIV test once a year and are expelled from the country if the result is positive.

In Latin America and the Caribbean, 15 countries have an HIV-specific penal code, including El Salvador, which introduced a corresponding law in 2016. Such laws are also set to be passed in Chile and Jamaica. In Colombia, the Constitutional Court declared an HIV-specific criminal law that came into force in 2019 to be unconstitutional. Five countries apply general criminal laws, including Mexico, which has the highest number of convictions.

In the Asia-Pacific region, eleven countries have HIV-specific criminal laws, including Pakistan, Vietnam and Nepal, which enacted such a law in 2018. In China, national regulations state that a person living with HIV must inform potential sexual partners of their HIV status and take the necessary precautions to prevent HIV transmission. What these measures consist of is not defined. Eleven countries apply general HIV criminalization laws.
In Western and Central Europe, only a few countries have

countries have introduced HIV-specific laws. These include Denmark, which abolished the law that came into force in 2001 ten years later. Sweden abolished the legal obligation to disclose HIV status in 2020. Poland is going in the opposite direction: under the guise of COVID-19 prevention, the country changed its HIV-specific penal provisions in 2020 and increased the prison sentence for HIV exposure from a maximum of three to eight years. Romania and Latvia also have HIV-specific criminal laws.

21 countries in Western and Central Europe apply general criminal laws to cases of HIV criminalization, including Switzerland (see below). Many jurisdictions in these countries recognize impunity in cases of undetectable viral load.

Blood donation as a criminal offense

Under the title "Bad Blood", Edwin Bernard, founder and director of the HIV Justice Network, drew attention to a particular aspect of HIV criminalization, namely blood donation. At least 23 countries have laws that criminalize blood donation from people living with HIV, although in many countries the ban on MSM donating blood has been lifted due to scientific advances in HIV screening. Research conducted by the HIV Justice Network in 2021 showed that many prosecutions involved people who did not even know they were HIV-positive. They were accused by the courts that they could have known that they were HIV-positive because they were gay, for example (several convictions in Singapore). This is even though the risk of transmission in blood donations is now extremely low due to advances in blood testing.

Devastating effects

The criminalization of HIV violates human rights, particularly the rights to health, privacy and equality, and severely hampers HIV prevention. In addition, media coverage of such criminal trials is often biased and portrays and demeans people living with HIV as criminals. This in turn hurts the way society deals with HIV by perpetuating and spreading stigmatizing misinformation and ignorance about HIV and how it is transmitted.

Criminal prosecution also disproportionately affects economically or socially vulnerable people and increases the risk of violence against these people, especially against women, who are usually the first in a relationship to be diagnosed with HIV due to prenatal HIV tests. Svitlana Moroz, co-founder of the Union of Women of Ukraine affected by HIV, reported on this in her presentation «The experience of populations affected by unjust laws». The fact that it is often difficult for women to negotiate safer sex or disclose their status due to fear of violence is not taken into account in any way by the laws and law enforcement authorities. According to UNAIDS, HIV-positive women are ten times more likely to experience violence and abuse than HIV-negative women.

Criminalization also hurts the protection of privacy. Several countries require sex partners to disclose their HIV status, even if they use condoms or have an undetectable viral load. This duty of disclosure means that a large number of people, with whom there is often no particular relationship of trust, obtain this sensitive information and there is a risk that this information will be passed on to third parties, which in turn entails a considerable risk of discrimination and stigmatization.

Control strategies

In its Global AIDS Strategy 2021-2026, UNAIDS identifies HIV criminalization as an obstacle to ending HIV by 2030, so new ambitious global targets have been set: By 2025, fewer than 10 percent of countries should criminalize HIV concealment, exposure or transmission.

The Global Network of People Living with HIV (GNP+) launched the "Not a Criminal" campaign at the conference. This campaign calls on states to decriminalize HIV exposure, HIV transmission, concealment of HIV status, same-sex relationships, sex work and the use and possession of drugs for personal use and to promote the creation of independent human rights institutions.

The host country, Canada, is one of the Western countries with the most HIV-related criminal proceedings. The law requires that an HIV-positive person must always inform their partner of their HIV status before having sex, unless they are using a condom and have a low viral load (below 1500). Concealing HIV infection is considered aggravated sexual assault, which can lead to life imprisonment and/or being branded a sex offender for life. The Canadian Coalition for the Reform of HIV Criminalization (CCRHC) used the spotlight of the conference to release a consensus statement on the law revision. This calls on the Canadian government to limit the criminalization of HIV to the very rare cases of intentional transmission.

And Switzerland?

Until a few years ago, Switzerland was one of the countries with the most convictions in connection with HIV criminalization. Since the recognition of non-infectiousness under successful treatment by law enforcement authorities and courts (for the first time in Geneva in 2009) and the revision of the Epidemics Act in 2016, hardly any people with HIV are convicted these days. However, HIV criminalization is not yet completely off the table in this country: anyone who has a detectable viral load and does not inform their sexual partner of their HIV infection before condomless sexual intercourse is liable to prosecution, even if no HIV transmission occurs. Contingent intent, i.e. accepting the risk, is sufficient.