Ten Reasons Why Criminalization is a bad idea

Edwin Cameron, Justice of the Constitutional Court, South Africa

Today, one of the most serious issues in the AIDS epidemic is the use of criminal statutes and criminal prosecutions against HIV transmission. Such laws are increasingly wide in their application, and frightening in their effects. They aggressively attack rational efforts to lessen the impact and spread of the epidemic and are creating a crisis in HIV management and prevention efforts.

So what lies behind this increasing trend of criminalization? What is the rationale for such laws?

HIV is a fearsome virus, and its effects are potentially deadly. The justification is that public officials should be able to invoke any available and effective means to counter its spread. African lawmakers and policy-makers, in particular, have good reason to look for strong remedies. Many
African countries face a massive epidemic with agonising social and economic costs and therefore reversing the spread of HIV is vital. However, I believe these reasons are entirely counter-productive and they need to be challenged, rationally, powerfully and systematically.

1. Criminalization is ineffective as in the majority of cases, the virus spreads when two people have consensual sex, neither of them knowing that one has HIV.

2. Criminal prosecutions are a misguided substitute for measures that really protect those at risk of contracting HIV. The focus should be on ending deaths, stigma, discrimination, and suffering.

3. Far from protecting women, criminalization victimises, oppresses and endangers them. In Africa most people who know their HIV-status are female. The material circumstances in which many women find themselves – especially in Africa – make it difficult and often impossible for them to negotiate safer sex, or to discuss HIV at all. These provisions will hit women hardest, and will expose them to assault, ostracism and further stigma. They will become more vulnerable to HIV, not less.

4. Criminalization is often unfairly and selectively enforced. Prosecutions and laws single out already vulnerable groups – like sex workers, men who have sex with men and, in European countries, black males.

5. Criminalization places blame on one person instead of responsibility on two. For nearly three decades the universal public information message has been that no one is exempt from it. So the risk of HIV (or any sexually transmitted infection) must now be seen as an inescapable facet of having sex. It is inappropriate and unfair to place all the blame on the person with HIV.

6. Such laws are difficult and degrading to apply. This is because they intrude on the intimacy and privacy of consensual sex. No one suggests that a person knowing they have HIV, who sets out intending to infect another, and achieves their aim, ought to escape prosecution. But in cases where there is no deliberate intention, the categories and distinctions of the criminal law become fuzzy and incapable of offering clear guidance.

7. Many of these laws in existence are extremely poorly drafted. Partly because it is difficult to prove an offence that involves consensual sex, and because of the difficulties of applying the categories of the criminal law, many of these laws end up being a ‘hodge-podge’ of confused legislative intent and bad drafting.

8. Criminalization increases stigma. It is stigma that makes those at risk of HIV reluctant to be tested; it is stigma that makes it difficult, often impossible, for them to speak about their infection; and it is stigma that continues to hinder access to the life-saving ART therapies that are now increasingly available. Such laws and prosecutions in turn only add fuel to the fires of stigma.

9. Criminalization is a blatant deterrent to testing. Across Africa, the life-saving drugs that suppress the virus and restore the body to health are becoming increasingly available. But why should any woman in Kenya want to find out her HIV-status, when her knowledge can only expose her to risk of prosecution? The laws are not just a war on women. They are a war on all people with HIV, and they constitute an assault on good sense and rationality in dealing with the epidemic.

10. Criminalization assumes the worst about people with HIV, and in doing so it punishes vulnerability. Evidence shows that countries with human rights laws that encourage the undiagnosed to test for HIV do much better at containing the epidemic than those that have adopted punitive and moralistic strategies, including those relying on the criminal law as a sanction.

In light of all of this, the clear goal should be to fight against stigma, against discrimination, and against criminalization – and to fight for justice, good sense, effective prevention measures and for access to treatment.

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