The Threat Lives On: How to Exclude Expectant Mothers from Prosecution for Mere Exposure of HIV to their Fetuses and Infants (2015)

This article articulates how the threat of prosecution of mothers living with HIV who expose or transfer the virus to their foetuses or newborn will discourage and scare women away from seeking proper medical treatment instead of encouraging HIV treatment and prevention. It also explores how HIV-specific criminal transmission laws in the United States could hamper and stifle the progress in prevention and treatment of vertical transmission. It concludes by proposing a model for change in addressing these HIV-specific criminal transmission statutes.

Vertical HIV transmission should be excluded from criminal prosecution (2009)

Joanne Csete and colleagues argue that criminal laws on HIV transmission and exposure should be reviewed and revised to ensure that vertical transmission is explicitly excluded as an object of criminal prosecution. Scaling up PMTCT services and ensuring that they are affordable, accessible, welcoming and of good quality is the most effective strategy for reducing vertical transmission of HIV and should be the primary strategy in all countries.

“Why Aren’t You Breastfeeding?”: How Mothers Living With HIV Talk About Infant Feeding in a “Breast Is Best” World (2015)

Infant feeding raises unique concerns for mothers living with HIV in Canada, where they are recommended to avoid breastfeeding yet live in a social context of “breast is best.” In narrative interviews with HIV-positive mothers from Ontario, Canada, a range of feelings regarding not breastfeeding was expressed, balancing feelings of loss and self-blame with the view of responsibility and “good mothering” under the current Canadian guidelines. Acknowledging responsibility to put their child’s health first, participants revealed that their choices were influenced by variations in social and cultural norms, messaging, and guidelines regarding breastfeeding across geographical contexts. This qualitative study raises key questions about the impact of breastfeeding messaging and guidelines for HIV-positive women in Canada.

Using Science for Justice: The Implications of the Expert Consensus Statement on Zimbabwe’s HIV Criminalisation Law

The article finds that, if applied by lawyers, prosecutors and courts, the Expert Consensus Statement may alleviate some unjust prosecutions and convictions in guiding courts to assess evidence on HIV transmission, to draw appropriate inferences on mental elements of the offence, to recognise defences on the basis of transmission risk-reducing conduct, and to more appropriately inform the courts’ assessment of the harm of HIV infection in sentencing. The implications of the science reflected in the Expert Consensus Statement may also weigh in favour of a finding by the courts that the offence is unconstitutional if a new constitutional case is made against the offence.

Law, Criminalisation and HIV in the World: Have countries that criminalise achieved more or less successful AIDS pandemic response?

At the end of the 5-year strategy in which countries around the world focused their AIDS response on reaching people living with HIV with testing and treatment services, this article provides an ecological analysis of whether those countries with criminalising legal environments achieved more or less success. It found that countries that have adopted a criminalising approach to key populations saw less success than those that chose not to criminalise. This analysis suggests a new global AIDS strategy that includes a focus on law reform may hold promise in achieving goals that were missed in 2020.

Anxiety about HIV criminalisation among people living with HIV in Australia

Drawing on cross-sectional data from 895 people living with HIV in Australia, this paper describes associations between standard measures of mental health and resilience with a newly devised scale measuring anxiety about HIV criminalisation. Findings suggest that laws criminalising HIV transmission have a broadly negative impact on wellbeing of people living with HIV, a situation that is exacerbated for gay and bisexual men, and other people living with HIV who may face intersecting forms of marginalisation based on race, gender or class.

Disability Law and HIV Criminalization

Over thirty states maintain criminal laws that expressly target people living with HIV. Thousands of people are prosecuted under these statutes, exposing them to decades of incarceration, thousands of dollars in fines, and state-sanctioned stigma. This broad pattern of discrimination based solely on HIV status is not supported by scientific evidence nor public-health rationales. This Note argues that many states’ HIV-specific criminal laws violate the Americans with Disabilities Act’s ban on discrimination by public entities.

When Saliva Is a Crime: Reforming Mississippi’s HIV Criminalization Law Utilizing the Center for Disease Control and Criminalization Law Utilizing the Center for Disease Control and Prevention’s Policy Analytical Framework

In this study, Mississippi’s existing policy was identified using the Center for Disease Control and Prevention’s Policy Analytical Framework, and three possible policy options were analyzed and scored based on public health impact, feasibility, and economic and budgetary impact. Results of this analysis strongly indicate that Mississippi Code ANN. § 97-27-14 should be amended to be scientifically accurate and include a criminalization clause based on the National HIV/AIDS Strategy for the United States goals and the United States Department of Justice Civil Rights Division best practices.

Bareback Sex in the Age of Preventative Medication: Rethinking the ‘Harms’ of HIV Transmission

This article provides a re-examination of the criminal issues relating to HIV transmission within the new landscape of advances in medical science and availability of PrEP and PEP, arguing that it necessitates a shift in attitude, policy and doctrine. It specifically argue that HIV transmission does not meet the appropriate harm threshold to constitute GBH and that if criminal law is ultimately about preventing or regulating harm, the ongoing criminalisation of HIV transmission is counter to that aim.

Limit Cases: How and why we can and should decriminalise HIV Transmission, exposure and non-disclosure

ABSTRACT: Across the world, people living with HIV and AIDS (PLHA) face investigation, prosecution, conviction, and punishment if they transmit HIV to another person, expose others to the risk of HIV acquisition, or fail to disclose in advance their HIV positive status. This article seeks to explain why limiting the criminalisation of HIV is important and necessary; identifies some of the ways in which it has been, and might be, limited; and, finally, offers some reflections on whether there exists a principled limit to decriminalisation arguments (ie whether there are cases which, even if the general principles underpinning decriminalisation is accepted, justify state punishment). Drawing on recent international policy guidance, current scientific knowledge about HIV prevention and treatment, and research on the impact of criminalisation of PLHA, the article argues that decriminalisation is critical to eradicating HIV and should be a public health priority, that biomedical advances in prevention and treatment will assist the decriminalisation project but are insufficient in the absence of legal and criminal justice practice reform.