Global: UN ‘Criminalisation undermines the Human Right to Health’

Edwin J Bernard - June 8, 2010

One of the most significant documents produced so far on the criminalisation of HIV non-disclosure, exposure and transmission was published today by the United Nations.

It is a report by Anand Grover, the UN Special Rapporteur on the Human Right to Health, specifically the right of everyone to enjoy the highest attainable standard of physical and mental health.

His report highlights the many human rights arguments against the use of the criminal law to prosecute anything except the intentional (i.e. proved beyond a reasonable doubt in a court of law that transmission was intended and malicious).

It begins with a very forceful statement.

… the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

It then examines the various ways that HIV transmission has been criminalised around the globe before examining the effect on the right to health. It ends with a bang, too.

Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

The entire document also includes an examination on the criminalisation of same-sex behaviour, sexual orientation and gender identify as well as sex work, and can be downloaded in full from the Office of the High Commissioner for Human Rights.

For your convenience, I have included pretty much the entire section on the criminalisation of non-disclosure, exposure and transmission below, complete with paragraph numbers, for easy quoting.

A webcast of Mr Grover’s 13 minute speech to the UN General Assembly can be found here. Disappointingly, just one minute is dedicated to the criminalisation of non-disclosure, exposure and transmission (at 2:24).

Nevertheless, this report, and Mr Grover’s speech, is significant in the history of criminalisation, and should be considered a major victory for anti-criminalisation advocates around the world.

Now, we just have to remind our goverments and policymakers to heed his words…

United Nations General Assembly

Human Rights Council

Fourteenth Session

A/HRC/14/20

27 April 2010

Agenda item 3

Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover.

HIV transmission

51. The Special Rapporteur notes that the criminalization of HIV transmission has formed a part of the global response to the HIV/AIDS crisis since its inception. Unfortunately, the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

Effects of criminalization on the right to health

No impact on behaviour change or HIV spread

62. The Special Rapporteur notes that criminal laws that explicitly regulate the sexual conduct of people living with HIV have not been shown to significantly impact on sexual conduct, nor do they have a normative effect in moderating risk behaviours. Criminal law does not influence the circumstances in which most HIV transmission occurs. In many regions, the majority of people living with HIV are unaware of their positive status and most cases of HIV transmission occur through consensual sex. Private sexual conduct invariably persists in the face of possible prosecution, but when prosecution actually occurs, these behaviours are driven underground, providing less opportunity for regulation and inhibiting access to preventive activities, diagnostic services, treatment and support.

Undermining existing public health efforts

63. Criminalization of HIV transmission or exposure places legal responsibility for HIV prevention exclusively on those already living with HIV, undermining the notion of shared responsibility between sexual partners, and potentially creating a false sense of security amongst those who are HIV-negative.86 Criminalization also has the potential to discourage HIV testing, which is a core component of successful HIV/AIDS health initiatives. An additional barrier to access to services could be manifested through increased distrust in relationships with health professionals and researchers, impeding the provision of quality care and research, as people may fear that information regarding their HIV status will be used against them in a criminal case or otherwise. As the prevalence of high-risk sexual behaviour is significantly lower in individuals aware of their seropositive status, any laws that discourage testing and diagnosis have the potential to increase the prevalence of risky sexual practices and HIV transmission.

Disproportionate impact on vulnerable communities

64. In jurisdictions where HIV transmissions have been prosecuted, of the very few cases that are prosecuted out of the many infections that occur each year, the majority have been noted to involve defendants in vulnerable social and economic positions. Although laws criminalizing HIV transmission and exposure were, on occasion, enacted to provide women with greater protection, applying these laws broadly has also resulted in women being disproportionately affected. For instance, a woman was prosecuted under section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 for having unprotected sex while HIV-positive, despite HIV not even being transmitted to the “victim” in question.

65. Women often learn they are HIV-positive before their male partners because they are more likely to seek access to health services and are consequently blamed for introducing the infection into communities. For many women, it is also difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences. Women may therefore face prosecution as a result of their failure to disclose, despite having valid reasons for non-disclosure. These laws do not provide women with any additional protection against violence or assurance of their rights to sexual decision-making and safety, and do not address the underlying socioeconomic factors that increase women’s vulnerability.

Criminalization of mother-to-child transmission

66. Some countries have enacted laws that criminalize mother-to-child transmission explicitly (see paragraph 54 above) or implicitly due to overly broad drafting of the law. Where the right to access to appropriate health services (such as comprehensive prevention of mother-to-child transmission services and safe breastfeeding alternatives) is not ensured, women are simply unable to take necessary precautions to prevent transmission, which could place them at risk of criminal liability. […]

Stigma, discrimination and violence

68. Stigma represents a major impediment to the implementation of successful interventions in respect of HIV/AIDS. Applying criminal law to HIV exposure or transmission can reinforce the stereotype that people living with HIV are immoral and irresponsible, further entrenching HIV-related stigma. People living with HIV/AIDS may, in turn, internalize the negative responses of others. This self-stigmatization affects the sense of pride and worth of individuals, which can lead to depression and self-imposed withdrawal, hampering access to HIV/AIDS treatment and interventions. In this way, criminalization impedes the right to health by constructing barriers to access by creating an environment in which individuals feel as if they are not deserving of treatment.

69. Discrimination against those affected by HIV/AIDS is one of the manifestations of stigma. For those living with HIV, actual and feared discrimination acts as a barrier to HIV-specific health services, including testing, anti-retroviral therapy and services in the prevention of mother-to-child transmission, in addition to broader health services.

70. The Special Rapporteur notes that individuals living with HIV have been convicted of crimes that did not actually inflict physical harm, damage any property or otherwise cause injury. Disproportionate severity in sentencing of those convicted of “HIV crimes” has become evident in a number of cases, the inference being that the defendants’ HIV status played a significant role in conviction and imprisonment. Criminal prosecutions, and the publicity stemming from them, have been found to increase stigmatization and have been perceived by people living with HIV as undermining public health efforts encouraging safer sex.

71. The criminalization of HIV transmission also increases the risk of violence directed towards affected individuals, particularly women. HIV-positive women are 10 times more likely to experience violence and abuse than women who are HIV-negative.

Right-to-health approach

72. The Special Rapporteur emphasizes that any domestic legislation concerning HIV transmission should be based on a right-to-health approach; that is, States must comply with their obligations to respect, protect and fulfil the right to health through the enactment of such legislation. Most relevantly, the obligation to protect requires States to take measures to protect all vulnerable or marginalized groups of society, and the obligation to fulfil similarly requires steps to assist individuals and communities to enjoy the right to health – particularly those who are unable to realize the right themselves.

73. Any law concerning HIV transmission should therefore be directed at issues around public infrastructure, access to medicines, information campaigns concerning HIV/AIDS and so forth. The criminalization of HIV transmission should not form the mainstay of a national HIV/AIDS response, and its necessity is questionable in any event. Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

74. As such, criminalization should be considered permissible only in cases involving intentional, malicious transmission. The criminalization of any lesser mens rea is not only inappropriate, but also it is counterproductive in the struggle against the spread of HIV. In the view of UNAIDS:

Criminal law should not be applied where there is no significant risk of transmission or where the person:

• Did not know that he/she was HIV-positive

• Did not understand how HIV is transmitted

• Disclosed his/her HIV-positive status to the person at risk (or honestly believed the other person was aware of his/her status through some other means)

• Did not disclose his/her HIV-positive status because of fear of violence or other serious negative consequences

• Took reasonable measures to reduce risk of transmission, such as practising safer sex through using a condom or other precautions to avoid higher risk acts

• Previously agreed on a level of mutually acceptable risk with the other person

75. Finally, domestic laws prohibiting the deliberate spread of any disease or assault, or laws concerning the age of consent, adequately cover intentional transmission of HIV should the need arise to prosecute cases where this has occurred. The use of these preexisting laws provides a legal safeguard to potential victims, without unnecessarily stigmatizing and further marginalizing those affected by HIV within the jurisdiction. States should, in addition to using pre-existing laws, issue guidelines to ensure that these laws are only utilized in cases of intentional transmission and that the relevant mens rea is to be established beyond a reasonable doubt.

Recommendations

76. The Special Rapporteur calls upon States:

[..]

(c) To immediately repeal laws criminalizing the unintentional transmission of or exposure to HIV, and to reconsider the use of specific laws criminalizing intentional transmission of HIV, as domestic laws of the majority of States already contain provisions which allow for prosecution of these exceptional cases.