What are the legal implications of applying the criminal law to HIV?

• Consent
• Evidence
• Lack of knowledge within the legal system
• Poor standards of advocacy and information
• Sentencing
• Custody

In many countries the use of the law to criminalize HIV is a fairly new undertaking. Laws, policies and law enforcement practices (such as policing, legal aid and court procedures) vary greatly around the world.

The following headings outline common inconsistencies and concerns about how the law is applied: 

Consent

In most countries, consent to risk can be used as a defence to a criminal charge. This means that if the person making the complaint knew that the other person was living with HIV, understood the risk and agreed to sex without a condom, then there is no crime. However, consent is often very difficult to prove in court, leaving the person living with HIV in a vulnerable position if their partner later changes their mind about the level of consent they gave. In some jurisdictions, the law limits the extent to which a person can consent. This means that sometimes, even when there was full disclosure and awareness of HIV and risks of transmission and consent was given by all involved, a prosecution could still be undertaken. 

Evidence

Genetic tests of the 'type' of HIV in different individuals can be done where there is access to the resources and technology to do the tests.  These tests can rule out transmission between two people if they have different strains of the virus. If the results match, the tests can prove that transmission could have occurred between two people. However it cannot prove the direction of transmission; nor can it rule out that a third party or more people were involved in the transmission. In other words, that particular 'type' of HIV may have been transmitted from person A to person C via a third person B; and not directly from person A to person C. That distinction is often not understood by lawyers, police, juries and people living with HIV.

Misinterpreted, misunderstood and misrepresented evidence can lead to miscarriages of justice. This creates a risk that people will be incorrectly 'judged' guilty because the implications of the evidence are not fully understood. It can also create pressures for people to plead guilty because they feel unduly responsible or are faced with incentives (such as a reduced sentence and court time) for pleading guilty. 

Knowledge and attitudes within the legal system

People in law enforcement and within the legal system often have the same levels, or lack of knowledge about HIV as the general public.

Poor understanding of the facts of HIV risk and transmission have meant that entirely unjustifiable investigations and prosecutions have taken place in numerous countries. Perhaps the most striking of these are cases involving spitting or biting, where there has been no actual risk of HIV transmission.

Lawyers and investigators are also often out of touch with the latest scientific research and treatment advances; particularly the fact that effective treatment can reduce the risk of HIV transmission to almost zero (more). Stigmatizing attitudes are also commonly evident among prosecutors who portray HIV as a ‘death sentence’ rather than as a manageable condition.  

Advocacy and information for people living with HIV

People living with HIV are at the forefront of the response to HIV, informing national policies and advocating for human rights. However not everyone who is living with or affected by HIV is aware of their rights or knows how to ensure that these are protected. The ambiguity of the law in some countries can make it difficult for people living with HIV to know what they have to do to avoid the risk of prosecution. For example, it is often unclear whether condom use is enough to avoid a charge or whether disclosure has to take place. Poor legal representation that is at times ill-informed about HIV and in some instances even prejudiced, also present challenges to an effective defence and to a fair trial. 

Sentencing

Sentencing varies widely across the globe and, in cases where general laws are used, sentences handed down are often far more severe than in other instances where the same law is used. 

Custody

If a person living with HIV is prosecuted and sentenced to a custodial term, their access to treatment, condoms and sterile injecting equipment are often denied or not adequately provided for in prison. This compromises human rights and creates an increased risk of onward HIV transmission in prisons.

Find out more

Read: Intimacy and Responsibility: the Criminalization of HIV Transmission. Weait, Matthew (2007) (Abingdon: Routledge-Cavendish)

Read more on the 'Swiss Statement'.

Read the report of the United Nations Special Rapporteur on the right to physical and mental health on Criminalization here.

Find out more about the UNDP led Global Commission on HIV and the Law here.

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