Q: What is HIV criminalisation?
HIV criminalisation describes the unjust application of criminal law to people living with HIV based solely on their HIV status. This includes the use of HIV-specific criminal statutes or general criminal laws to prosecute people living with HIV for unintentional HIV transmission, perceived or potential HIV exposure, and/or non-disclosure of known HIV-positive status. HIV criminalisation is a growing, global phenomenon that undermines both human rights and public health, thereby weakening 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 July 2018, 73 countries are known to have HIV-specific criminal laws, and another 39 countries are known to have used general criminal laws to prosecute people living with HIV for alleged HIV non-disclosure, perceived or potential HIV exposure, and/or non-intentional transmission.
In the past two-and-a-half years alone, hundreds of cases have been reported in at least 51 countries. In the five countries with the highest known number of reported cases (i.e., United States, Belarus, Russia, Ukraine and Canada) at least 600 people have been arrested, prosecuted and/or incarcerated since October 2015. Unknown thousands have been prosecuted since the mid-1980s, with many people still languishing in prison and/or registered as sex offenders—including in cases where transmission did not occur and/or was not even possible.
Q: How does HIV criminalisation impact human rights?
HIV criminalisation undermines the human rights of people living with HIV, many of whom are also members of marginalised or additionally criminalised communities. Threatening to go to police with accusations of HIV non-disclosure has been used as a form of abuse or retaliation against current and former HIV-positive partners. HIV criminalisation places people living with HIV—particularly but not only women—at heightened risk of violence and abuse and ignores the reality that some may not be able to safely disclose their status or in a position to ask their partner to use a condom. Stigmatising statements from law enforcement or public health agencies, and media coverage, including full names and photographs—even of those merely subject to allegations—can result in public disclosure of a person’s HIV status and accusations of serious criminal conduct, leading to loss of employment and housing, social ostracism or even physical violence. Investigations and prosecutions often have a disproportionate impact on racial and sexual minorities, migrants, and women. Poorly-resourced accused may be without access to adequate legal representation. In certain cases, some of the most serious offences in a country’s criminal law (e.g., aggravated assault, sexual assault and attempted murder) have been used to prosecute alleged non-disclosure in the context of consensual sexual encounters. Penalties are often vastly disproportionate to any harm caused, including lengthy jail terms and/or designation as a sex offender. People without citizenship in their country of residence may also be deported upon conviction, which can result in loss of medical care.
Q: How does HIV criminalisation impact the HIV response?
Prosecutions, and the media they attract, single out and sensationalise HIV in a way that is highly stigmatising, framing HIV diagnosis as a catastrophe and people with HIV as an inherent threat to society. Suggesting criminal charges are a primary or appropriate response to any perceived or potential HIV exposure is inappropriate. Such stigma makes HIV disclosure to intimate partners even more difficult. Evidence suggests this could deter people from getting tested, particularly those from communities highly vulnerable to HIV infection. Encouraging HIV testing is an essential part of an effective response: an HIV-positive diagnosis is the first step to accessing health-enhancing antiretroviral treatment, and an HIV-negative result the first step to accessing pre-exposure prophylaxis (PrEP), both of which are key HIV prevention tools. HIV criminalisation can also undermine the therapeutic relationship between people living with HIV and healthcare professionals, reducing their capacity to provide support, including providing frank advice about risk reduction strategies. In fact, healthcare providers have been forced to testify in court about communications with their patients, evidence which is used to pursue convictions against their patients. HIV criminalisation is also affecting research into HIV prevention, treatment and care, because of concerns that otherwise confidential data may be legally obtained by law enforcement in the context of a criminal case.
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.