Susan Timberlake, Human Rights Advisor, UNAIDS

The threat of criminal prosecution intensifies a climate of denial, secrecy, and fear. It creates legal liability without empowering citizens to do what they want to do anyway: avoid getting infected, avoid infecting others, and live. It creates an ‘us’ and ‘them’ mentality when HIV has taught us that we have mutual responsibility for sexual health. A human rights achievement of the HIV epidemic has been the recognition of positive people as equal and critical actors in the response.

In the Political Declaration on HIV (2006), governments agreed that the way to deal with the epidemic and to protect human rights was to make ‘prevention of HIV infection the mainstay of national responses to the pandemic’ and they pledged ‘to promote a social and legal environment that is supportive of and safe for voluntary disclosure of HIV-status’.

 Criminal sanctions create the opposite of such an environment. Alternatives to criminalization of HIV transmission or exposure are often hard work because they challenge longstanding social taboos and inequities, yet they also can protect both public health and human rights. Three key principles are:

1. To do what works on a much larger scale. Getting HIV prevention, treatment, care and support programmes to those most vulnerable to infection and to those already infected should be the focus of our global energies. But governments still have not expanded prevention programmes (including PMTCT) nor have they ensured anywhere near the necessary coverage of vulnerable and at risk populations – women, young people, men who have sex with men, drug users and sex workers.

2. Reduce HIV vulnerability and risk. For women and girls, this means governments need to protect them through law and social change programmes from gender inequality and violence, including sexual violence inside and outside marriage. All too few governments pass
marital rape laws or seriously enforce laws against domestic violence, rape and early marriage.

Nor are there sufficient laws or programmes to empower women and girls in educational and economic terms to help them become less vulnerable to HIV.

3. Empower people living with HIV. In many parts of the world, people living with HIV still stand to lose everything (family, job, home, community) and thus have every incentive to avoid getting tested, disclosing their status, or engaging in any behaviour that might reveal their status, such as safer sex. People living with HIV must have the knowledge, means and support to know their status and know how to avoid infecting others and avoid contracting any other infections. This includes being protected from stigma and discrimination so that they can be open about
their status or about practicing safer sex.

Find out more

Read UN General Assembly, Political Declaration on HIV/AIDS  

Read 'Midway to the Millenium Development Goals' Report of the UN Secretary General


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