What laws and strategies should replace criminalization?

The best alternative to criminalizing HIV transmission or exposure is to remove the practice and focus instead on comprehensive approaches to HIV prevention, treatment, care and support. This can involve removing specific laws or generating legal precedents that effectively prevent future cases being brought.

Where this is not possible, guidelines can be developed to reudce the harmful impact that criminalization can have. This can help to remove barriers to HIV testing, reduce stigma, and make it easier for people living with HIV to access treatment, care and support services.

The two most common reasons given for introducing criminalization measures are a) they protect public health and b) provide a form of justice or retribution for people who have contracted HIV. However evidence and expert opinion contradicts both these arguments.

So what should government’s and civil society do instead to protect public health, prevent HIV transmission, protect human rights for all and enable people living with HIV to seek and access services?


Create a protective and enabling legal environment

Governments, legal professional bodies and other civil society organisations should advocate for the removal of punitive laws relating to HIV. This could be achieved by amending legislation, or by generating legal precedents that effectively prevent future cases being brought. Where this is not possible, guidelines can be developed to reduce the harmful impact of criminalization.


An alternative is to focus instead on prioritising the creation of legal environments which support HIV prevention, by addressing unhelpful and discriminatory laws that marginalize people who are at risk, such as laws against sex work, drug use and homosexuality. Governments should also work to eradicate stigma and legislate against discrimination. 


Meaningfully involve people living with HIV

People living with HIV must be involved in decisions relating to their lives. Too often laws, policies, and health priorities are determined without the meaningful involvement of people living with HIV. In accordance with the Meaningful Involvement of People Living with HIV (MIPA) Principle, governments and decision makers must include people living with HIV in policy development to improve responses to HIV, including prevention efforts that pay due attention to the sexual health and rights of people living with HIV, and to promoting public health and human rights for all.


Raise awareness and make positive prevention a reality

A culture of shared responsibility, rather than one of blame, shame and criminality, can improve national responses to HIV. Campaigns, advocacy and initiatives based on awareness, understanding and compassion can be more effective than those based on punishment or exclusion in promoting public health and human rights. Too often interventions are based on fear rather than on positive living, sexual pleasure, hope and empowerment.


Governments should support initiatives that promote collective responsibility for HIV prevention, encourage understanding of HIV across the population, challenge institutionalized prejudice and cultivate a supportive and compassionate environment for diagnosis.


Adopt long-term strategies to address underlying causes

Although harder to demonstrate immediate results, governments should invest resources in dealing with the structural drivers of HIV instead of criminal cases that effectively undermine HIV prevention efforts and slow down progress in the response to HIV. Structural drivers include the marginalization of women and girls, racism, poverty and homophobia.


These issues should become priorities for short and long term action in national responses to HIV.


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