What is ‘criminalization’ and why is it an issue now?
‘Criminalization’ describes cases where the criminal law is used to prosecute people for transmitting HIV and/or putting another person at risk of contracting HIV.
During the early years of HIV most nations did not use the criminal law in their response to HIV. However, during the last ten years there has been a sharp increase in the use of criminal law in many countries around the world. The trend began in a very small number of countries in the 1980s, gained pace in wealthy, western nations in the late 1990s, and has recently taken root globally.
By the mid-1990’s, only a handful of countries had used the criminal law to punish people for transmitting or putting someone at risk of HIV. These included the United States, Australia, Canada and Germany.
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 introduced specific laws or policies that 'criminalized' HIV. More are considering introducing such laws.
The reasons for the shift in government and prosecutorial policy is not always clear. In many contexts, criminalization measures are being introduced almost three decades after HIV was discovered, without evidence of possible benefits. Some governments may consider the use of the criminal law in relation to HIV as a strong response amid the persistent challenges posed by HIV prevention, treatment, care and support. Others may consider the criminalization as a useful mechanism to provide retribution and justice for people who have acquired HIV and are angry with the person who transmitted it.
To date, governments around the world have rarely discussed the 'new' application of the criminal law with health experts, people living with HIV or HIV service organizations.
There is no evidence to suggest that the criminalization of HIV transmission or exposure reduces HIV transmission or lessons the impact of HIV on people's lives. To the contrary, criminalization compromises the work being done to prevent HIV transmission, impedes public health efforts to provide treatment, care and support; undermines the human rights of people living with HIV; and fuels HIV-related stigma.