- Legal systems, processes, and the law itself is different in every country of the world. So, while there are common concerns relating to the criminalization of HIV, they need to be understood within specific national contexts. Some countries also have different laws for states and provinces in addition to national laws, which also impact on how HIV transmission or exposure has been criminalized to date.
- ‘Criminalization of HIV’ describes cases where the criminal law is used to prosecute people for transmitting HIV or putting another person at risk of contracting HIV.
- Charges of HIV transmission relate to cases where HIV has been passed on from one person to another.
- Charges of exposure are used in cases where HIV has not been passed on, but where prosecutors claim that a person has been put at risk of contracting HIV.
- Countries around the world use the law in different ways to criminalize HIV. Some create new HIV specific laws, whilst others use existing legislation on a range of issues.
- To date prosecutions have primarily been for sexual transmission or exposure.
- In some countries, such as Canada, laws have been used to send mothers to prison for transmitting HIV to their child during pregnancy and childbirth.
- In other countries, including the USA, people living with HIV have been given lengthy jail sentences for spitting or scratching another person, despite the fact that there is no risk of HIV transmission in these circumstances.
- In Egypt, living with HIV has been used to identify the sexual partners and social networks of men who have sex with men, which can lead to prosecution for crimes of ‘debauchery’.
- Current reviews indicate that 41 countries – 20 per cent of the countries in the world – have laws under which HIV transmission or exposure has been prosecuted under either general criminal or public health laws or HIV specific legislation. Further research is needed to know more details and precise numbers.
- In terms of HIV specific laws, 63 countries have criminal provisions relating to HIV transmission or exposure in at least one jurisdiction – 27 in Africa, 13 in Asia, 11 in Latin America and the Caribbean, 9 in Europe and 2 in Oceania and 1 in North America. Of these, 17 countries have prosecuted individuals for HIV transmission or exposure under HIV specific laws.
- Europe is second only to North America as the region with the highest number of criminal prosecutions for HIV transmission in the world.
- The USA and Canada lead the world in terms of number of prosecutions and convictions of HIV transmission, with more than 300 convictions between them.
- Sweden leads Europe with at least 38 known prosecutions; and Australia for the Pacific region with more than 11 known convictions.
- Of any country in the world, Sweden has the highest number of criminal prosecutions per 1,000 people living with HIV.
- Community advocates in the UK estimate that there have been over 200 arrests and investigations relating to HIV criminalization since 2001, resulting in 20 prosecutions. This means that for every known case, there could be as many 10 people living with HIV subjected to arrest or investigation.
- Despite the surge in HIV specific legislation across Africa in recent years, there are a few known prosecutions relating to HIV transmission to date, in Burkina Faso, Malawi, Togo and Zimbabwe.
- During the early years of the HIV epidemic most countries did not prosecute people for transmitting HIV or putting another person at risk of contracting HIV.
- The last ten years have seen a sharp increase in the use of the criminal law in countries around the world, and in the introduction of HIV specific legalisation, particularly in Africa.
- By the mid 1990’s there were only a handful of countries globally who had used the criminal law to prosecute people for transmitting or exposing someone to HIV. These included the United States, Australia, Canada, Germany and Sweden.
- By 2005 there were thought to be more than 35 European countries that had prosecuted HIV criminalization cases.
- By 2010, 60 countries and territories around the world had recorded convictions.
- In Africa alone between 2004 and 2010 as many as 25 countries brought in specific HIV criminalization measures. At least four more are considering introducing similar laws.
- The reasons why Governments and prosecutors are choosing to use the criminal law in this way aren’t always clear.
- The criminal law has been applied to HIV two decades after the HIV epidemic began, without research into what impact it may have in general as well as in specific national and regional contexts.
- There is little or no evidence to suggest that applying the criminal law like this prevents HIV transmission.
- There are more reasons why criminalization can cause harm to people living with HIV and undermine national responses to HIV.
- More research is needed into the health, human and social impact of the criminalization of transmission and exposure.