Q: What is HIV criminalisation?
HIV criminalisation describes the unjust application of the criminal or similar laws (such as public health, civil and/or administrative law) to people living with HIV based on their HIV status.
HIV criminalisation is a growing, global phenomenon that is seldom given the attention it deserves considering its impact on both public health and human rights, undermining the HIV response.
Q: What behaviours are targeted by these laws?
In many instances, HIV criminalisation laws are exceedingly 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.
HIV criminalisation takes place either using 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: How widespread is HIV criminalisation?
As of November 2017, we estimate that 68 countries (97 jurisdictions including 29 US States and Territories) have adopted laws that specifically allow for HIV criminalisation, while prosecutions for HIV non-disclosure, exposure and transmission have been reported in at least 69 countries (116 jurisdictions including 38 US States and US Military).
Q: How does HIV criminalisation impact human rights?
There is a growing body of evidence that HIV criminalisation impacts the human rights of people living with HIV, who are often also members of other marginalised, stigmatised and/or criminalised communities, because of:
- selective and/or arbitrary investigations/prosecutions that have 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.
Q: How does HIV criminalisation impact the HIV response?
A growing body of 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 HIV 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?
HIV JUSTICE WORLDWIDE is a global campaign to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV-positive status.
We believe that this HIV criminalisation is discriminatory, a violation of human rights, undermines public health, and is detrimental to individual health and well-being.
HIV JUSTICE WORLDWIDE exists to shape the discourse on HIV criminalisation as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration.
Q: Who can join HIV JUSTICE WORLDWIDE?
National, regional, and international organisations working on HIV criminalisation who believe that HIV criminalisation is discriminatory, a violation of human rights, undermines public health, and is detrimental to individual health and well-being, who endorse our values and principles, and want to help eradicate the criminalisation of people living with HIV can join HIV JUSTICE WORLDWIDE. Individuals are unable to join HIV JUSTICE WORLDWIDE but can sign up to our newsletter here.
Q: What organisations are eligible to be invited to join the Steering Committee?
Additional members of the Steering Committee will be invited to join by the current members of the Steering Committee, based on our common shared values and principles and the following criteria:
- The majority of Steering Committee member organisations should have people living with HIV on their board and in senior leadership roles within the organisation.
- All Steering Committee member organisations must demonstrate/evidence their organisation’s commitment to working on HIV criminalisation.
- Preference will be given to organisations/networks working globally and/or regionally, although membership from national organisations/networks working in countries where HIV criminalisation is a major issue will be considered.
Although the Steering Committee drives the HIV JUSTICE WORLDWIDE campaign, we welcome ad hoc or ongoing collaboration(s) with other groups/networks/organisations on specific projects and actions, including with organisations that are not eligible to be part of the Steering Committee but would like to play a more active role in the campaign.
Q: How can HIV JUSTICE WORLDWIDE support country-level advocacy to end HIV criminalisation?
Ultimately, much of the advocacy to end HIV criminalisation needs to be undertaken at the level of challenging laws, policies and practices — particularly by criminal justice system actors but also others — country by country.
Depending on the local context — and in particular the extent to which there are civil society organisations already in place with the necessary knowledge, skills and resources, and also the political context — the support needed or requested can vary considerably.
HIV JUSTICE WORLDWIDE can provide or facilitate such support to the following:
- Community organisations
- Human rights NGOs
- Defence lawyers
- Individual advocates and people living with HIV
Q: What kind of support is available from HIV JUSTICE WORLDWIDE?
We can provide general information and resources of use to advocates.
Examples of such materials of use to advocates include:
- existing resources on the science on HIV risk, harm and proof as evidence used in court;
- international guidance documents and recommendations;
- model legislative language or policies elsewhere; and
- key talking points and arguments regarding the problems of HIV criminalisation; etc.
Many such resources can be found online in the Advocacy Toolkit prepared for HIV JUSTICE WORLDWIDE and/or on the websites of some of its founding partners and other member organisations.
We may be able to assist regarding specific court proceedings.
Some legal proceedings are directly related to HIV criminalisation, such as defending an individual against criminal charges and/or a proactive court challenge to a law unjustly criminalising people with HIV. Other legal proceedings may raise issues indirectly affecting HIV criminalisation, such as cases that address: police conduct in investigating such cases; the confidentiality of a person’s identity, HIV status, other health information, or other personal information; media conduct in reporting cases; the interpretation of other laws or legal standards that have an impact on the scope of HIV criminalisation; sentencing issues or other consequences of conviction, such as deportation of non-citizens, child custody or other family law issues; conditions of detention or imprisonment related to HIV criminalisation). As appropriate and needed, support could include:
- identifying a suitable local lawyer for an accused person (or an organization needing legal representation);
- working with legal organisations advising or representing people living with HIV facing criminal prosecution;
- identifying, assessing the merits of, and helping to develop potential legal arguments that may be available;
- identifying existing case law (including from other jurisdictions) that could be useful;
- feedback in crafting evidentiary materials or legal submissions for filing in a proceeding;
- connecting advocates with a necessary expert witnesses (e.g., regarding science of HIV transmission and treatment; HIV-related stigma; foreign law); and
- seeking independent standing before a court as HIV JUSTICE WORLDWIDE (or some configuration of members) to advance arguments (such a status is variously known as amicus curiae, intervener, interested party, etc., depending on the terminology of the jurisdiction).
NOTE: In providing or facilitating support the country-level advocacy efforts, HIV JUSTICE WORLDWIDE member organisations (or other experts secured to assist local advocates) are not providing, and will not provide, legal advice to any individual or organisation. Legal advice should only be sought and obtained from a lawyer qualified to practice law in the jurisdiction in question.
We can provide advice regarding legislative or policy reforms.
Examples of such advice include:
- reviewing a proposed new law creating or expanding HIV criminalisation;
- helping to craft amendments to existing laws that advocates wish to advance in order to abolish or limit HIV criminalisation; and
- input into policy or practice guidance documents that could operate to limit the application of criminal (or similar) law.
We can provide support with communications activities.
Communications support, whether regarding a particular legal proceeding or broader advocacy efforts, could include:
- advice on handling specific media interactions or inquiries;
- developing key talking points;
- developing media skills more generally for advocates;
- assistance with media outreach; and
- developing educational or advocacy materials on HIV criminalisation for various audiences (e.g., people living with HIV; legislators or other policymakers; health professionals; ASOs/CBOs; lawyers, paralegals or community legal workers; journalists).
We may be able to provide support for specific advocacy initiatives.
Examples of such support include:
- endorsement of a position statement directed to a policy/decision-maker (whether public or private);
- input into campaign objectives, messages, materials or tactics;
- direct communications by HIV JUSTICE WORLDWIDE to country-level policy/decision-makers (whether by the Steering Committee or member organisations, or both);
- assistance with mobilising broader international support in various forms (e.g., outreach to news media, social media outreach, action appeals); and
- in-country activities (e.g., contributing to and participating in lobbying policy-makers, media advocacy, community capacity-building).
We can provide support for educational activities aimed at ending HIV criminalisation.
There are various actors and institutions whose conduct and decisions shape the extent of HIV criminalisation. These include law enforcement, prosecutors and defence lawyers, judges, public health authorities, health services providers and community organisations (including HIV and AIDS organisations). HIV JUSTICE WORLDWIDE may be able to offer support with advocates’ educational activities aimed at limiting HIV criminalisation by improving the knowledge and understanding of these actors and institutions regarding HIV and the problems with HIV criminalisation, including by:
- identifying existing educational resources for these audiences;
- providing input on the development of new educational materials or activities;
- supporting advocacy efforts to ensure such educational activities are undertaken.
Q: How does HIV JUSTICE WORLDWIDE provide support for country-level advocacy?
The Steering Committee and the secretariat of HIV JUSTICE WORLDWIDE are establishing a roster of organisations around the world with established expertise on HIV criminalisation that are able to provide support to advocates of the various kinds described above.
This currently consists of the ten Steering Committee members plus, when necessary, other organisations with relevant experience and capacity.
Whether we support your efforts, and what efforts we specifically support, will vary depending on the kind of request, its urgency, our capacity, and funding.
Q: What are the limits on the support available from HIV JUSTICE WORLDWIDE?
HIV JUSTICE WORLDWIDE is not in a position to provide:
- legal advice to an individual or organization;
- financial support for any of the above activities; or
- counselling or other psychosocial support to individuals.
Q: How do I request support for country-level advocacy efforts?
Requests for support of the kinds described above should, in the first instance, be sent via the contact us form.
The HIV Justice Network is one of the founding partners of HIV JUSTICE WORLDWIDE and acts as its secretariat. This includes keeping a log of all requests for support for country-level advocacy and making sure that the request is routed to the right organization(s) to provide the support.
(If a member of the Steering Committee, or another organization on HIV JUSTICE WORLDWIDE’s roster of organisations providing support to country-level advocates, receives the request, it will notify HIV Justice Network of the request and the details of what support is sought.)
Upon receiving a request for support for country-level advocacy, we will likely ask for additional information in order to determine if it is the kind of support HIV JUSTICE WORLDWIDE provides, and how best we can support local efforts.
Once we have assessed your request, we will try to connect you with support from an organization that is a local/regional as possible and in the appropriate language, within the limits of HIV JUSTICE WORLDWIDE’s resources.