Guest blog post by Mandeep Dhaliwal, Director of HIV, Health and Development at UNDP
In the 1980s, reports of a mysterious illness surfaced in Los Angeles, California, when five young gay men were diagnosed with a very rare strain of pneumonia. In the following months, additional reports of gay men suffering from strange and deadly conditions flooded in. Panic and fear swept the world as previously healthy men began dying from a disease we did not understand and had no cure for.
As science and medicine caught up with HIV, the next battle was to ensure that lifesaving antiretroviral drugs were accessible to those living with the disease. People’s movements like Act Up in the United States and the Treatment Action Campaign in South Africa led the charge reducing stigma and dramatically increasing the number of people being treated.
Today, more than 18 million people around the world are on antiretroviral therapy – up from 770,000 at the turn of the millennium. But in order to end the HIV/AIDS epidemic by 2030, as global leaders have pledged to do, there’s still a long way to go.
This week, a new report by UNAIDS suggested that while many Western and Southern European countries are making progress to ending AIDS by 2025, there remains a lot of barriers to reaching this ambitious target across the region and the world. One of the major barriers yet to be addressed is legislation which criminalises those with the disease.
Across the world, 72 countries have passed laws that permit HIV criminalisation. These come both in the form of HIV-specific legislation and as broader criminal or public health laws which disproportionately penalize people living with HIV.
According to HIV Justice Worldwide, an international partnership of organisations that has analysed the criminalisation of HIV, 61 countries have prosecuted people for HIV nondisclosure, possible or alleged exposure, and/or unintentional transmission. Across least 11 countries in the EU, people have been convicted for not disclosing their HIV status. People on long-term treatment have undetectable viral loads of HIV, meaning they are not able to transmit the disease to others. Other regions continue to criminalise HIV as well, with 30 states in the United States having laws that are used to prosecute people with HIV. Sub-Saharan Africa has seen a particular rise in countries criminalising HIV transmission or exposure.
There’s no one reason why so many countries have initiated laws that criminalise HIV. However a combination of stigma, fear, and pressure to contain the disease seem to be the overriding factors involved. Back in the 1990s before antiretroviral treatments were widely available and HIV was an effective death sentence, criminalisation may have seemed to legislators to be policy driven by necessity.
However, the swaths of scientific breakthroughs in recent decades mean that the disease is now much more manageable, especially if detected quickly so that people can be put onto treatment earlier. With early detection, HIV viral loads can be reduced to levels that are almost undetectable. Tackling HIV stigma has long been a key priority to ensure that people get tested early and receive treatment.
Criminalisation has the opposite effect. According to the Global Commission on HIV and the Law, which released its report five years ago, there is no evidence that criminalisation does anything other than amplify stigma and discrimination toward those living with HIV. Therefore actually decreasing the likelihood of people being tested and leading to an increased risk of transmission.
HIV criminalisation laws, which play on people’s fear and memories of the initial global outbreak of the disease, are not guided by scientific and medical evidence. These laws also fail to uphold the principles of legal and judicial fairness (such as foreseeability, intent, causality and proof) and directly infringe upon the human rights of those involved in these cases.
Women are disproportionally affected by HIV because of their unequal social and economic status in societies around the world. Many women face barriers to accessing healthcare and education, live in conditions of poverty, and are victims of gender based violence – leaving them particularly susceptible to HIV.
Criminalisation of HIV further amplifies these gender divides, with laws often targeting female and transgender sex workers, migrant workers, and indigenous or black women. These are the vulnerable groups that in Europe carry the highest burden of the HIV epidemic, along with drug users and people from the LGBTi community. To end HIV in Europe, it’ll be critical that EU legislators focus less on allegedly ‘protecting’ people through antiquated laws and more on ensuring that women and marginalized groups can access prevention, testing and treatment when they need it.
Unnecessary HIV criminalisation wastes precious resources that could be better spent on effectively reaching millions with prevention and treatment. With every dollar in the fight against AIDS being critical, we cannot afford to squander resources on enforcing laws that hurt rather than help public health.
When HIV first appeared, the fear of the unknown was frightening and scary. That is no longer the case. It is time to leave the legal dark ages behind and develop progressive and effective policies that reflect the science of our time. The EU, with a rich history in science and human rights, should be a global leader on this, HIV criminalisation laws offer false protection and do nothing but seed fear and hinder the struggle to stop the spread of HIV.