Criminalizing HIV Transmission: Undermining Prevention, and Justice

Aziza Ahmed

While criminalizing HIV transmission is appealing to some governments, it actually undermines public health goals and violates the rights of people living with HIV.

In the midst
of the continued struggle to end the spread of HIV/AIDS comes a new
twist: the criminalization of HIV positive people and more specifically
— HIV positive women.   

Criminalization
of HIV transmission refers to the application of criminal law to prosecute
HIV transmission or exposure to the virus.   While appealing
to some individuals and governments as a means of addressing the spread
of HIV, criminalization of HIV transmission and exposure actually undermines
public health goals and violates the rights of people living with HIV. 

First, women
and girls are often blamed for the spread of HIV and criminalizing HIV
transmission increases this blame.  Women are often accused of
bringing HIV into homes, kicked out, and abandoned by their immediate
and extended families.  Women who are sex workers have long been
treated as "vectors" of HIV transmission and blamed for fueling
the spread of HIV.   The criminalization of HIV/AIDS worsens this
stigma by assuming that people who transmit HIV/AIDS do so "intentionally"
and "recklessly" when in fact most HIV transmission occurs without
either party knowing their HIV status.  

Second, some
countries, including Sierra Leone, have gone so far as to
criminalize "harm to the fetus" by the mother. This language is
so broad that for an HIV positive woman getting pregnant could be construed
as a crime.   

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Third, laws
which criminalize HIV/AIDS put women at higher risk of prosecution. 
In developing countries women often find out their positive status during
ante-natal care.  Many women fear disclosing their status to their
families because of violence and abandonment.  If a woman does
not disclose her HIV status to her partner, due to fear of violence
for example, her partner could prosecute her for "knowingly" transmitting
the virus to him.  This point also speaks to men’s greater access
to legal services and greater legal literacy, which results in lopsided
access to "justice." 

Fourth, laws
which criminalize HIV provide avenues for states to selectively prosecute
individuals for transmission.  This will impact already marginalized
groups of women including sex workers and injecting drug users. 
We see this unfair prosecution already occurring to groups working for
men who have sex with men and providers working
largely with marginalized groups. 

There are also
more nuanced ways that if criminal transmission laws are in place they
will work against women, specifically where laws that criminalize HIV
transmission will be reinforced by already existing laws which discriminate
based on sex and gender.  For example, in countries which do not
acknowledge marital rape, women are always seen to have consented to
sex with their husbands.  Therefore, in a country where HIV is
criminalized and marital rape is not acknowledged, the husband could
always use the defense of consent to defend himself against his wife
if she were to press charges. 

These factors
amongst others including violations of confidentiality and lack of clear
evidence, combined with the patriarchal nature of the courts and ongoing
blame of women for spreading HIV (whether as sexual partners, wives,
or mothers) means that in many countries the criminalization of HIV
transmission could quickly become the criminalization of HIV positive
women. 

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