Criminalizing HIV Transmission: Undermining Prevention, and Justice


In the midst
of the continued struggle to end the spread of HIV/AIDS comes a new
twist: the criminalization of HIV positive people and more specifically
– HIV positive women.   

Criminalization
of HIV transmission refers to the application of criminal law to prosecute
HIV transmission or exposure to the virus.   While appealing
to some individuals and governments as a means of addressing the spread
of HIV, criminalization of HIV transmission and exposure actually undermines
public health goals and violates the rights of people living with HIV. 

First, women
and girls are often blamed for the spread of HIV and criminalizing HIV
transmission increases this blame.  Women are often accused of
bringing HIV into homes, kicked out, and abandoned by their immediate
and extended families.  Women who are sex workers have long been
treated as "vectors" of HIV transmission and blamed for fueling
the spread of HIV.   The criminalization of HIV/AIDS worsens this
stigma by assuming that people who transmit HIV/AIDS do so "intentionally"
and "recklessly" when in fact most HIV transmission occurs without
either party knowing their HIV status.  

Second, some
countries, including Sierra Leone, have gone so far as to
criminalize "harm to the fetus" by the mother. This language is
so broad that for an HIV positive woman getting pregnant could be construed
as a crime.   

Third, laws
which criminalize HIV/AIDS put women at higher risk of prosecution. 
In developing countries women often find out their positive status during
ante-natal care.  Many women fear disclosing their status to their
families because of violence and abandonment.  If a woman does
not disclose her HIV status to her partner, due to fear of violence
for example, her partner could prosecute her for "knowingly" transmitting
the virus to him.  This point also speaks to men’s greater access
to legal services and greater legal literacy, which results in lopsided
access to "justice." 

Fourth, laws
which criminalize HIV provide avenues for states to selectively prosecute
individuals for transmission.  This will impact already marginalized
groups of women including sex workers and injecting drug users. 
We see this unfair prosecution already occurring to groups working for
men who have sex with men and providers working
largely with marginalized groups. 

There are also
more nuanced ways that if criminal transmission laws are in place they
will work against women, specifically where laws that criminalize HIV
transmission will be reinforced by already existing laws which discriminate
based on sex and gender.  For example, in countries which do not
acknowledge marital rape, women are always seen to have consented to
sex with their husbands.  Therefore, in a country where HIV is
criminalized and marital rape is not acknowledged, the husband could
always use the defense of consent to defend himself against his wife
if she were to press charges. 

These factors
amongst others including violations of confidentiality and lack of clear
evidence, combined with the patriarchal nature of the courts and ongoing
blame of women for spreading HIV (whether as sexual partners, wives,
or mothers) means that in many countries the criminalization of HIV
transmission could quickly become the criminalization of HIV positive
women. 

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  • invalid-0

    I think this article is great. It really breaks down what is going on in a very clear way. Easy to follow. Good to know that people are doing work to change injustices in the system!

  • alexm

    Thank you.  I was not aware of all of the possible implications of the criminalization of HIV transmission, particularly for women.  This is frightening, but not surprising. 

    The personal is political.

  • invalid-0

    It is so important to bring awareness to what is happening to women in the other parts of the world. Your article does precisely that. So what is ibeing done to help the women.
    Thank you for your work in this field.

  • invalid-0

    I don’t disagree that society is sexist.

    However, I find no balance in your short article.

    I believe knowingly passing to another individual a currently incurable and extremely expensive to treat disease should be a crime.

    If you’re a sex worker and HIV positive, you can have a potentially huge negative impact on your society. You have to quit. That’s it. If you don’t you should go to jail.

    I don’t think the problem is that these crimes are particularly harsh toward women. I think the problem is the societal inequities in former colonies in Africa and other states.

    Probably 90 percent of the laws in these types of states differentially affect women negatively. Based on your point of view, no news laws should be made because they’ll probably all be sexist in execution. Eventually, when some social progress is made, wouldn’t it be nice to have laws on the book that protected individuals from harm? Isn’t the whole point of the rule of law that (ideally) everyone is equal in the eyes of the government? Isn’t one main point of a legal system to have some means of punishing/sequestering/rehabilitating those that would hurt others through maliciousness, apathy, or ignorance, protecting the innocent?

    I also really dislike your usage of quotations. You act as if the term vector is used inappropriately. Look at any textbook about disease transmission. Humans are vectors for human disease along with moquitoes, viruses and infected foodstuffs.

    In short, I think you’re really missing the big picture here. It seems the only lens through which you can see this issue is a victimized feminist lens.

    Marginalization exists, but it’s not the only way to conceptualize the world. Sometimes, it’s not a helpful paradigm.

    • invalid-0

      If you seek sex from a sex worker and get HIV, then you’re a moron. Sex workers don’t always have choices about what they do, but anyone can choose *not* to go to a sex worker. If we had such a law criminalizing HIV+ people who have sex, then anyone who had sex with an HIV+ prostitute and had sex with anyone else afterwards without being tested negative and brought charges against the sex worker should be charged with the same thing. People who solicit sex workers are just as much “disease vectors” as the sex workers themselves.

      Criminalizing HIV transmission when the method is sex is problematic. It’s hard to know for sure if the person really knew whether or not they were positive, and it’s hard to know if they did or did not tell the other person, if they say they did and the other says they didn’t. It also does nothing to reduce the stigma and get more people tested, as it would just mean that if you got tested then maybe no sex for you or jail time. There’s also the problem of rapes that can’t be convicted due to lack of evidence. Law like this might put the victims in jail.

      There are certainly situations where HIV+ people might be spreading it through maliciousness or ignorance or selfishness. But I think the law would hurt more people than it would help. I think what we need is more education and openness, so that people feel comfortable getting tested and talking to their partners about it, and insisting on condoms. Laws that criminalize HIV+ people having sex will not get us to those goals.