HIV criminalisation undermines the HIV response by ignoring the human rights of people living with HIV: exacerbating stigma and discrimination, and impeding HIV prevention, testing, treatment, care and support. Across the globe, laws used for HIV criminalisation are often written or applied based on myths and misconceptions about HIV and its modes of transmission, with a significant proportion of prosecutions for acts that constitute no or very little risk of HIV transmission, including: vaginal and anal sex when condoms had been used or the person with HIV had a low viral load; oral sex; and single acts of breastfeeding, biting, scratching or spitting.
Our global audit of HIV-related laws found that a total of 75 countries (103 jurisdictions) have laws that are HIV-specific or specify HIV as a disease covered by the law. As of 31st December 2018, 29 countries had ever applied HIV-specific laws, 37 countries had ever applied general criminal or similar laws, and six countries had ever applied both types of laws.
During our audit period, there were at least 913 arrests, prosecutions, appeals and/or acquittals in 49 countries.
Analyses suggest HIV criminalisation cases do not reflect the demographics of local epidemics, with the likelihood of prosecution exacerbated by discrimination against marginalised populations on the basis of drug use, ethnicity, gender, gender identity, immigration status, imprisonment, poverty (including homelessness), sex work and/or sexuality. Rather than protecting women, HIV criminalisation laws are being used against women, including those experiencing gender-based violence.
Promising and exciting developments in case law, law reform and policy took place in many jurisdictions: two HIV criminalisation laws were repealed; two HIV criminalisation laws were found to be unconstitutional; seven laws were modernised; and at least four proposed laws were withdrawn. In addition, six countries saw precedent-setting cases limiting the overly broad application of the law through the use of up-to-date science.