What laws are used to prosecute HIV transmission or exposure?

Countries around the world have used the law in different ways to criminalize HIV. Some create new HIV specific laws, whilst others use existing legislation.

This page provides a number of key examples from around the world. For more details on how different countries use the law, go to: Question 5.

HIV specific laws

Existing laws:  

 Health laws
• Assault laws
• Serious injury laws
• Sexuality & drugs laws

HIV specific laws

Some countries have created specific laws that make transmitting HIV or putting another at risk of contracting HIV, a criminal offence.

For example in 2004 an African Model Law was drafted during a workshop in N’Djamena, Chad. Since then many countries in the region have introduced HIV specific laws based on the model, including Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone.

Existing laws 

Some countries have used existing laws to prosecute HIV transmission or exposure. These laws vary from country to country.

Health laws

Although not always considered as a criminal offence, rather as public health violations, some nations and territories use legislation that aims to prevent injury to health or the spread of contagious diseases. 

The Canadian Criminal Code states that a person can be prosecuted if they fail to ‘perform a duty’ which could result in the health of another person ‘being injured permanently’.  Canadian prosecutors have used this law to bring cases against mothers for failing to access services which reduce the likelihood of transmission from mother to baby.

Assault laws

Some countries use general assault laws including assault, grievous bodily harm and aggravated assault.

For example in England and Wales, The Offences Against the Persons Act (1861) is used to prosecute cases of HIV transmission. 

Serious Injury laws

Laws relating to serious injury and death such as homicide, murder, manslaughter and poisoning have been used in some parts of the world.

For example in 2011 prosecutors in Congo used an existing poisoning law to secure a 15 year prison sentence for a man who was found guilty of transmitting HIV to his wife.  This law is derived from a law exported from France during colonial times. In France, case law has now established that sexual fluids are not considered 'poisons' and that that law can no longer be applied to HIV transmission. 

Sexuality & drugs laws

The burden of criminalization on people living with HIV is even heavier in parts of the world that have legislation that outlaws behaviours associated with HIV vulnerability.

Laws which forbid drug possession or use, the buying or selling of sex, sex between men and same sex relationships re-enforce structural inequalities and fuel vulnerability to HIV. People from these groups, who are the most vulnerable to acquiring and transmitting HIV, may be criminalized in more than one way for their identity as well as for 'illegal' behaviours. This fuels HIV-related stigma as well as stigma relating to other aspects of identity such as sexual orientation, sexual choices and behaviours. As a result it becomes harder to reach people who are at greatest risk of contracting HIV as the threat of prosecution and imprisonment may influence people to not disclose accurate information about their behaviour to health care providers, delay going for an HIV test, and/or refuse support, help or advice. 

For example the Egyptian authorities have used HIV diagnosis as evidence of sex between men in some cases and have charged men with ‘the habitual practice of debauchery’; a crime that carries a possible 3 year jail sentence.
 
Before its repeal in 2009, Indian authorities used their ‘sodomy laws’ to prosecute not only gay men, but also the HIV prevention workers who worked with these men to reduce risk taking and promote safer sex. In 2001, four HIV prevention workers were sent to jail for over a month, unfairly accused of running a gay ‘sex racket’.

Watch the International AIDS Alliance video below to learn more about anti homosexuality laws in India   

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