Cameron Miranda
The first HIV-specific criminal laws were enacted in 1986, during the early panic surrounding the AIDS epidemic. These laws made it illegal to knowingly expose another person to HIV through sexual activity without prior disclosure of HIV-positive status. By 1995, nearly two-thirds of all laws had been enacted, and by 2000, 85% of laws had been enacted. Today, 34 states and two US territories have laws that criminalize the behavior of HIV-positive people, with penalties including incarceration. These laws have been subject to intense public debate, with critics arguing that they are ineffective, discriminatory, and a significant barrier to HIV prevention, treatment, and care. While legislative approaches to HIV prevention have been used at the national, state, and local levels, the specific laws vary across different states and territories.
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What You'll Learn
Criminal HIV exposure laws in the US
The specifics of these laws vary between states, but they generally impose criminal penalties on people who are aware they have HIV and engage in certain behaviours, most commonly sexual activity, without disclosing their HIV-positive status. Some states also require disclosure to needle-sharing partners, and many states criminalise behaviours that pose little to no risk of HIV transmission, such as spitting. These laws are often broadly written, and they can result in adverse public health outcomes, contributing to stigma and discrimination, and creating a disincentive for people to get tested for HIV.
The US was the first country to introduce HIV-specific criminal laws, and there have been thousands of reported cases since. The laws are often shaped by state laws and can be found in different sections of each state's statutory code, including the Health and Safety Code, Criminal Code, and Public Health Code. While the majority of laws were passed before studies showed that antiretroviral therapy reduces HIV transmission risk, some states, such as California, Colorado, Iowa, Michigan, and North Carolina, have modernised their laws in recent years.
The criminal transmission of HIV varies among jurisdictions, and the extent to which states actively prosecute cases under these statutes also varies. While it is scientifically impossible to pinpoint who infected whom, a person diagnosed with HIV who is accused of infecting another during sexual intercourse is often automatically considered to have committed a crime. There is little evidence that HIV laws reduce HIV transmission or increase the likelihood of disclosure or testing, and they may even have negative consequences, as seen in a study where 7% of men said concerns over prosecution would make them less likely to get tested, potentially leading to an 18.5% increase in community HIV transmission.
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History of HIV criminalisation laws
The history of HIV criminalisation laws dates back to the early days of the HIV epidemic in the 1980s. During this time, public fear and irrational panic surrounding HIV and AIDS led to the passage of laws that established criminal penalties for people living with HIV. These laws were often shaped by state legislation in the USA and aimed to prevent HIV transmission by criminalising behaviours associated with HIV exposure.
In 1986, the first state laws were enacted, and by 1995, nearly two-thirds of all laws had been passed. These laws made it illegal to knowingly expose another person to HIV, even through acts such as spitting, which poses no risk of transmission. By 2000, 85% of the laws had been enacted, and since then, additional laws have been passed, with 34 states and two US territories currently having HIV-specific criminal laws. These laws vary in detail but often carry harsh penalties, including incarceration, for behaviours such as having sex or sharing needles without disclosing HIV status.
The Ryan White Comprehensive AIDS Resources Emergency Act of 1990 required states to certify that their criminal laws were adequate to prosecute individuals who knowingly exposed others to HIV. However, in 2010, the President's National HIV/AIDS Strategy expressed concern that these laws may contribute to HIV-related stigma and discrimination and may not align with public health interests. This led to calls for the repeal of HIV exposure laws by organisations such as the National Alliance of State and Territorial AIDS Directors (NASTAD) in 2011.
HIV criminalisation laws are not unique to the United States, and similar legislation has been enacted in other parts of the world. For example, Latin America and the Caribbean have 14 countries with HIV-specific criminal laws, and the Asia-Pacific region has 11 countries with such laws. These laws often punish transmission, potential or perceived exposure, and non-disclosure of HIV status, even in cases where there is little to no risk of transmission due to protective measures such as condom use or antiretroviral therapy.
While the intention behind HIV criminalisation laws is to prevent HIV transmission and protect public health, there is little evidence that these laws effectively reduce HIV transmission or increase disclosure of HIV status. On the contrary, they have been criticised for being discriminatory, fostering stigma, and creating barriers to HIV prevention, treatment, and care. Additionally, they fail to account for the advancements in HIV treatment and the reduced risk of transmission due to effective therapies. As a result, there are ongoing efforts to remove HIV-specific laws and replace them with non-punitive, evidence-based policies that encourage HIV testing, treatment, and protection without punitive sanctions.
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HIV criminalisation laws in Latin America and the Caribbean
HIV criminalisation is a global issue, with problematic legislation in every region of the world. HIV criminalisation refers to the use of criminal laws and similar regulations against people living with HIV, based on their HIV-positive status. This includes non-disclosure to sexual partners, potential or perceived exposure to HIV, and alleged transmission.
In Latin America and the Caribbean, 14 or 15 countries have HIV-specific criminal laws, including Argentina, Brazil, Mexico, Peru, Trinidad & Tobago, Bermuda, Paraguay, the Dominican Republic, Ecuador, El Salvador, and Nicaragua. A law was recently enacted in El Salvador in 2016, and proposed laws are pending in Chile and Jamaica.
The HIV Justice Network has raised concerns about the inappropriate use of criminal law to regulate and punish people living with HIV in the Dominican Republic, Ecuador, El Salvador, and Nicaragua.
The impact of HIV criminalisation laws is a topic of debate. Some argue that these laws are ineffective, discriminatory, and create barriers to HIV prevention, treatment, and care. There is little evidence that these laws reduce HIV transmission or encourage people to disclose their serostatus or get tested. In some cases, concerns over prosecution may even lead to a decrease in testing, potentially increasing community HIV transmission.
On the other hand, legislative approaches to prevent HIV transmission have been used for decades, with the first state laws enacted in 1986. By 2011, 67 laws had been enacted in 33 states, with nearly two-thirds of all laws passed by 1995. These laws impose criminal penalties on persons who know they have HIV and engage in certain behaviours, most commonly sexual activity without prior disclosure of their HIV-positive status.
The Ryan White Comprehensive AIDS Resources Emergency Act of 1990, for example, required states to certify that criminal laws were adequate to prosecute individuals who knowingly exposed another person to HIV. However, by 2010, the President's National HIV/AIDS Strategy suggested that legislators reconsider whether existing laws continue to serve the public interest and public health.
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HIV criminalisation laws in Asia-Pacific
HIV criminalisation laws refer to the use of criminal laws against people living with HIV based on their HIV-positive status. These laws impose criminal penalties on persons who know they have HIV and subsequently engage in certain behaviours, most commonly sexual activity without prior disclosure of their HIV-positive status.
In the Asia-Pacific region, 11 countries have HIV criminalisation laws, including China, Pakistan, Vietnam, and a recently enacted law in Nepal (2018). China's national regulations state that a person living with HIV must inform a prospective sexual partner of their HIV status and take the necessary precautions to prevent HIV transmission, although these precautions are not defined.
The Asia-Pacific region has seen some progress in recent years, with over 10 countries removing or revising punitive laws or policies that hinder access to HIV prevention and treatment services. These laws include criminalisation of HIV transmission, enforcement of restrictions on entry, stay, and residence against people living with HIV, and punitive approaches to sex work, drug use, and sexual relations between men.
However, there are still challenges in the region. More than 90% of men having sex with men (MSM) in the Asia-Pacific region do not have access to HIV prevention and care services due to an adverse legal and social environment. Additionally, 19 out of 48 countries in the region criminalise sex between men, often resulting in vigilantism, abuse, and human rights violations. The stigmatisation and neglect of men who have sex with men further contribute to the spread of HIV, as they may also have unprotected sex with women, serving as an epidemiological bridge for the virus to the broader population.
The implementation of effective, human rights-based national HIV responses requires governments to consider the impact of laws and law enforcement practices on the health of MSM and transgender individuals.
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HIV criminalisation laws in Africa
HIV criminalisation laws refer to the use of criminal laws against people living with HIV based on their HIV-positive status. These laws punish the transmission of HIV, potential or perceived exposure to HIV, and even non-disclosure of HIV status. In 1988, the Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic stated that criminal sanctions for HIV transmission must be directed only towards behaviour that is scientifically established as a mode of transmission.
The United States was the first country in the world to introduce HIV-specific criminal laws, beginning in 1987, and there have been thousands of reported cases since. Over half of the states have HIV criminalisation laws with lengthy sentences, although some states have modernised these laws in recent years. Following the US, the eastern European and central Asian region now has the second-highest number of laws that specifically criminalise HIV.
Sub-Saharan Africa is the region with the most countries that have enacted HIV criminalisation laws, although the number of reported cases is not high compared to the number of people living with HIV. South Africa, for example, has seen several cases where HIV-positive individuals have been charged with rape and attempted murder due to the perceived risk of HIV transmission. However, there is little evidence that HIV laws reduce HIV transmission or increase the likelihood of disclosing HIV status or getting tested. In fact, criminalisation of homosexuality in sub-Saharan Africa has been found to undermine HIV testing, with very few African countries on track to achieve the first UNAIDS 95 goal by 2030: that 95% of all people living with HIV know their status.
In Russia and Ukraine, any action that may put another person at risk of HIV infection is punishable by law. In 2018, an advocacy campaign in Belarus successfully amended the law to remove criminal liability for individuals who disclosed their HIV status to their partner, even if their partner agreed to acts that might have led to HIV transmission.
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Frequently asked questions
HIV laws refer to the use of criminal laws against people living with HIV based on their HIV-positive status. These laws impose penalties on persons who know they have HIV and engage in certain behaviours, such as sexual activity without prior disclosure of their HIV-positive status.
The first state laws were enacted in 1986. By 1995, nearly two-thirds of all laws had been enacted, and by 2000, 85% of laws had been enacted. Early in the history of the HIV epidemic, public fear of the disease led many states to pass laws that established criminal penalties for failing to disclose infection.
HIV laws vary across different countries and states. For example, in the United States, 34 states and two territories have laws that criminalize the behaviour of HIV-positive people, such as having sex or sharing needles without disclosing their status. In China, national regulations state that a person living with HIV must inform a prospective sexual partner of their status and take necessary precautions to prevent transmission.
