December 2, 2022
December 1, World AIDS Day, offers us an opportunity to reflect on the progress and setbacks in combating the human immunodeficiency virus (HIV/AIDS) epidemic, which has been raging for more than four decades. The battle against HIV has advanced significantly from a scientific and social point of view. However, although progress has been made in treatments, a cure has not yet been found; and although there are no longer proposals to create concentration camps or tattoo people living with the virus, the stigma has not disappeared and continues to generate discrimination and injustice.
According to the United Nations HIV/AIDS Program (UNAIDS), 92 countries reported that by 2020 they will have criminalized non-disclosure, exposure or transmission of the virus. This criminalization of HIV/AIDS is a growing phenomenon worldwide that undermines the human rights of people living with HIV and public health response efforts. The criminalization of HIV increases the vulnerability of individuals, exposing them to a wide range of human rights violations. In the Americas, criminal legislation is increasingly used to prosecute and punish HIV exposure and transmission. Specific provisions criminalizing HIV exposure and/or transmission exist in approximately 12 countries in the Americas. In some countries, people living with HIV are prosecuted using general laws in their civil or criminal codes. More than 3,242 people living with HIV have been prosecuted in the hemisphere for exposure and transmission of the virus.
Criminalization of HIV does not contain the epidemic. To the contrary, it undermines the most fundamental public health prevention message: get tested and start treatment. Instead of encouraging participation in HIV efforts, its criminalization alienates people living with HIV, turning them into perpetrators of a crime. Criminalization discourages people from getting tested, which negates HIV prevention and treatment efforts. Only those who know they have HIV can begin treatment. Thanks to scientific advances, HIV infection has been a treatable chronic condition for decades, as long as there is access to adequate health care.
In some countries it is argued that laws criminalizing HIV exposure or transmission will protect women. This is false. On the contrary, it exposes them to violence, denunciations and puts them at risk of imprisonment and loss of custody of their children, among other consequences. The Inter-American Commission on Human Rights (IACHR), the Inter-American Commission of Women (CIM) and the Pan American Health Organization (PAHO) have highlighted the exacerbated risk of HIV among women in Latin America and the Caribbean. In a context of systemic discrimination and violence against women in society and unequal power relations, women often find themselves unable to negotiate safe sex.
These types of laws and legal processes contradict international guidelines on HIV and Human Rights from UNAIDS/UNDP, the World Health Organization (WHO), the UN Special Rapporteur on the Right to Health, the Global Commission on HIV and the Law, respected legal scholars, women’s rights advocates (including leading feminist legal scholars), the UN Committee on the Elimination of Discrimination against Women (CEDAW), and the Office of the UN High Commissioner.
This December 1, let us resolve that fear, ignorance and stigma take a step back. Instead, let us promote compassion, knowledge and the idea that when the law treats people with HIV in a discriminatory manner relative to those who do not have it or are unaware of whether they have it, the democratic ideal of equality before the law is not realized.