This report contains the views, opinions and suggestions for policy orientation and formulation of the participants at an expert meeting (convened on 31 August–2 September 2011 in Geneva, Switzerland) that brought together scientists, medical practitioners and legal experts in order (i) to consider the latest scientific and medical facts about HIV that should be taken into account in the context of criminalisation, and (ii) to explore how to best address issues of harm, risk, intent and proof—including alternative responses to criminalisation—in light of this science and medicine.
Spells out for the first time (on p23) that there must be “Non-criminalization of mother-to-child transmission” when a country applies for validation for the elimination of mother-to-child transmission of HIV. This marks the first time in public health history that human rights guarantees are considered a prerequisite to validating disease elimination.
This policy brief represents the view, as women living with HIV, of the current state of criminalization of HIV among women in Canada and the United States after reviewing academic and grey literature, statutes and policies and an unpublished survey of membership. ICW-NA members highlighted their concern about stigma and discrimination in the justice system related to HIV non-disclosure.
Twenty scientists from regions across the world developed this Expert Consensus Statement to address the use of HIV science by the criminal justice system. Description of the possibility of HIV transmission was limited to acts most often at issue in criminal cases. The authors recommend that caution be exercised when considering prosecution, and encourage governments and those working in legal and judicial systems to pay close attention to the significant advances in HIV science that have occurred over the last three decades to ensure current scientific knowledge informs application of the law in cases related to HIV.
Restates UNAIDS’ position on criminalisation and makes specific recommendations to help governments, policy-makers, law enforcement officials, and civil society limit the overly broad application of criminal law to HIV.
Urges governments to limit criminalisation of HIV to cases of intentional transmission. Argues that criminal law should not be applied in a range of circumstances, including where there is no significant risk of transmission.
Presents coherent and compelling evidence base on human rights and legal issues relating to HIV, including commentary and recommendations.
Includes comment (at 40) that States must reform laws that impede the exercise of the right to sexual and reproductive health. Examples include laws criminalizing non-disclosure of HIV status, and exposure to and transmission of HIV.
Commentary includes clear statements outlining many ways that criminalisation undermines effective HIV response.
Outlines the importance of a cohesive, evidence-informed approach to use of criminal law relating to HIV non-disclosure, exposure and transmission. Urges Ministries of Health and Justice, public health officials, policymakers and criminal justice system actors to ensure a proportionate response to HIV transmission risk.
Seeks repeal of laws that criminalize non-intentional HIV exposure or transmission, and an end to laws that single out women living with HIV or people living with HIV for prosecution or increased punishment solely related to their HIV status. Argues criminal laws should only be used in extraordinary cases of intentional exposure or transmission.
Argues that criminalisation of women living with HIV for non-disclosure, exposure or transmission undermines public health strategies and increases risk of violence against women. Includes recommendations.
Considers States’ obligations to bring laws and regulations affecting sexual health into alignment with human rights laws and standards. Includes recommendations on HIV criminalisation.