Legal and policy alternatives to HIV criminalisation: community-level and societal approaches

by Edwin J Bernard

Legislators in Mauritius decided not to criminalize exposure to HIV or even HIV transmission. Legislators realized that legislation criminalising HIV exposure and/or transmission would not be able to withstand a constitutional challenge, because of the difficulties with proof, the likely vagueness of the definition of exposure, and the risk of selective prosecution. The main reason for not criminalising HIV transmission was, however, the concern about detrimental impacts on public health and the conviction that it would not serve any preventive purposes. Criminalisation would have created more problems than solving them. Therefore, Mauritius decided to put its resources where they are most likely to have a positive impact on reducing the spread of HIV: increased funding for HIV testing and counselling and for evidence-informed prevention measures.

Rama Valayden, Attorney General and Minister of Justice and Human Rights, Republic of Mauritius[i]

Policymakers may well feel under pressure to use the criminal law in response to HIV to be seen to be “doing something” that appears to have an impact upon their local HIV epidemic. This pressure is likely to be felt more acutely where it appears that HIV prevention programmes have failed.[ii]

Nevertheless, UNAIDS recommends that instead of being tempted to apply the criminal law in these situations, governments should implement evidence-informed and human rights-based (but sometimes controversial) HIV prevention programmes to deal with the myriad underlying causes of HIV transmission and acquisition.

This way, the significant personal and financial resources that may be spent on pursuing a limited number of individual cases within the criminal justice system could be more productively used to expand HIV prevention efforts, including individual, society- and community-wide education; making available condoms and other HIV prevention tools (including ART), MTCT services, sterile drug use equipment, and other strategies designed to reduce HIV infection on an individual and population level. In short, they should be aiming for policies that support universal access to HIV testing, treatment and support services.[iii] [iv]

In many jurisdictions around the world, a substantial number of individuals at highest risk of acquiring HIV – people who use drugs, sex workers, men who have sex with men – are criminalised and punitive approaches drives people underground. [v] Consequently, UNAIDS recommends fewer punitive laws and more supportive policies in favour of expanding programmes proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative. These include:

  • Removing criminal offences against men who have sex with men;
  • Removing criminal sanctions on sex work so as to promote empowerment of sex workers;
  • Allowing the provision of evidence-informed harm-reduction programmes for people who use drugs;
  • Enacting privacy and anti-discrimination laws that protect people living with HIV;
  • Enacting laws that ensure prevention and treatment programmes reach all people living with HIV and empower them with information, education, and treatment.[vi]

In addition, governments may also consider addressing some of the root causes underlying vulnerability to HIV infection, such as income and gender inequality, sexual violence, discrimination, and problematic substance use. Since women are both biologically and socio-economically more vulnerable to acquiring HIV, UNAIDS suggests that governments strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and girls; improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and girls, and support women’s equality and economic independence through legislation, programmes and services.[vii]

Case study: South Africa – HIV-specific criminal law not necessary

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law, concluding that such a law was not necessary due to a lack of evidence that alleged wilful or negligent behaviour by people with HIV was occurring frequently enough to warrant such a law and that “a change to the law would therefore probably be based (without denying that real instances of dangerous conduct occur) on general fears, anxieties and “urban legends”. It also concluded that: “an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified.”[viii]

Nevertheless, pressure to create an HIV-specific law continued during debates for the new Sexual Offences Bill. In submissions made to the Parliamentary Joint Ad Hoc Committee on Socio-Economic Development, the National Working Group on the Sexual Offences Bill, a consortium of civil society groups, stated in 2005: “There are existing common law offences that already criminalise the deliberate transmission – these have rarely been used and give rise to difficult questions of evidence and proof. A new offence will not change this in any way.”[ix] Earlier versions of the Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape. However, that definition was not included in the Sexual Offences Act that was ultimately approved in 2007. [x] Rather, the legislation mandated HIV antibody testing for suspected rapists and allows for longer prison sentences for rapists subsequently found to be HIV-positive.[xi]


[ii] Human Right Watch. World AIDS Day: Punitive Laws Threaten HIV Progress. Press Release, November 25, 2009.

[iv] Op cit. UNAIDS/UNDP (2008b).

[vi] GNP+ and UNAIDS. Positive Health Dignity and Prevention. Technical Consultation Report, Tunisia, April 2009.

[vii] Op cit. UNAIDS/UNDP (2008a)

[ix] National Working Group on the Sexual Offences Bill. Submission to the Parliamentary Joint Ad Hoc Committee on Socio-economic Development. South Africa, 2005.

[x] South African Department of Justice and Social Development. The New Sexual Offences Act. (Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.

[xi] Proposal discussed in Matthews S. Criminalising deliberate HIV transmission – is this good public health? SAMJ 96 (4): 312-314, 2006. See also Bernard EJ. South Africa: New rape laws mandate HIV testing for alleged offender. Criminal HIV Transmission. January 8, 2008.