Understanding the Law

Understanding use of the law to date

These resources outline how laws criminalising HIV have been applied in different jurisdictions. They demonstrate different ways advocates have attempted to pull together an accurate picture of how laws have been used in the past: a process that can strongly inform current advocacy. Resources include academic articles, reports, interviews, indexes and manuals.

“One shouldn´t convict people for hypothetical risks”: developments in criminal law following increased knowledge and awareness of the additional prevention benefit of antiretroviral therapy

Overview of various jurisdictions shows that an increased understanding of the impact of viral load on infectiousness has resulted in a number of jurisdictions revising or revisiting their criminal laws or prosecutorial policies relating to HIV non-disclosure, exposure and/or transmission.

HIV, Crime and the Law in Australia: Options for Policy Reform – a law reform advocacy kit

Divided into two sections, outlines the operation and effect of Australian public health law, criminal law and civil law in relation to HIV related prosecutions. Part 1 – pages 2-13.  (Part two, is an advocacy kit including recommendations.)

Who? What? Where? When? And with what consequences?: An analysis of criminal cases of HIV non-disclosure in Canada

Explores the evolution of the criminalization of HIV non-disclosure in Canada, focusing on “criminalization creep”: increasing numbers of people being charged with increasingly severe crimes.

HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario

Provides an overview and analysis of criminal cases of HIV exposure and transmission to 2010, and proposes policy options for addressing the problems posed by the criminalization of HIV non-disclosure.

“Criminalization Creep”: A brief discussion of the criminalization of HIV/AIDS nondisclosure in Canada

Provides an overview and analysis of criminal cases of HIV exposure and transmission to 2010, and proposes policy options for addressing the problems posed by the criminalization of HIV non-disclosure.

Punitive laws and practices affecting HIV responses in Kenya

Analyses punitive laws and policies undermining the effective delivery of services to PLHIV and those at risk of HIV infection. Flags laws and policies that violate Constitutional rights. Sets out an advocacy agenda for policy and legislative reform and improvement of law enforcement practices and community understanding of criminalisation issues.

Case Analysis: Section 24 of the HIV and AIDS Prevention and Control Act Kenya: Reviewing AIDS Law Project v Attorney General and Another (2015)

Overview of the Kenya High Court’s ground-breaking decision that some terms in the HIV and AIDS Prevention and Control Act were too broadly defined and that Act contravened Kenya’s constitution.

Criminalising HIV transmission: is this what women really need?

Outlines Sub Saharan Africa’s proliferation of legislation criminalizing HIV exposure and/or transmission, highlighting its negative impact on women. Argues UNAIDS, USAID, and other international health agencies must take urgent action to educate lawmakers and civil society about the limitations of criminal law to prevent HIV transmission and the harms of criminalization laws already in place.

Grevious harm: Use of the Offences Against the Person Act 1861 for sexual transmission of HIV

Explores use of the Offences Against the Person Act 1861 to prosecute people who have transmitted HIV infection to sexual partners in England, Wales and Northern Ireland. Examines evidence in cases of sexual HIV transmission and considers the likely impact that criminalising HIV transmission has on public health, especially HIV prevention. Includes recommendations.

Alternative links

Ending & Defending Against HIV Criminalization – A Manual for Advocates: Vol 1 State and Federal Laws and Prosecutions

Catalogs and provides some analysis of state and federal laws and cases developing for legal and community advocates.

Criminal laws on sex work and HIV transmission: Mapping the laws, considering the consequences

Presents a public health law mapping of U.S. states that mandate HIV testing and criminalize HIV positive sex workers. Shows HIV transmission and exposure laws interact with sex work laws to compound criminal penalties for people charged with prostitution related crimes. Argues that decriminalization of sex work and HIV transmission and exposure is integral to effectively address the HIV epidemic.

Case Law Index

Listing of some U.S. HIV prosecutions by case name (to 2013), (pages 7-9)

HIV Criminalization in California: What We Know

Highlights significant findings about Californian criminal law including that more than 800 people have come in contact with California’s criminal system based on their HIV status, with 93% of convictions requiring no proof of conduct likely to transmit HIV. Also finds HIV criminal statutes are disparately enforced based on race/ethnicity, sexuality and gender.

HIV Criminalization in Canada: Key Trends and Patterns

Provides a snapshot of the temporal and demographic patterns of HIV criminalization in Canada from 1989 to 2016, also updating information on the outcomes of criminal cases. Finds people are often convicted in cases involving negligible or no risk of HIV transmission, and that criminal law is increasingly used against people living with HIV from marginalized populations.

HIV Criminalisation Defence Case Compendium

This HIV Criminalisation Defence Case Compendium aims to support lawyers acting for those who are alleged to have put others at risk of HIV. Based on research conducted in late 2017, it includes criminal cases from all over the world where strong defence arguments have resulted in an acquittal or reduced penalty for persons living with HIV who have been accused of HIV exposure, non-disclosure or transmission.

The Compendium is not intended to be comprehensive. It has been developed as a resource for a training of lawyers from Africa – “Lawyers for HIV and TB justice: Strategic litigation, legal defence and advocacy training” – held in Johannesburg, South Africa from 20-23 February 2018.