3. How does criminalization impact on public health?

Does criminalization act as a deterrent or protection against HIV transmission?

No.  Most HIV transmission occurs because the person living with HIV is unaware of their positive status. When people are diagnosed, they are more likely to become knowledgeable of HIV prevention strategies and have access to support and advice.

Learn more about the impact of treatment on reducing the likelihood of HIV transmission here.

One of the most important things society can do to improve public health is to promote HIV testing and early diagnosis. Once people know their HIV status they are less likely to unknowingly transmit HIV to someone else and are better able to manage their HIV and look after their own health.

However, criminalization of HIV can:

Discouraging testing

HIV criminalization runs the risk of discouraging and delaying HIV testing and diagnosis. Stigma acts as a barrier to testing by making people less likely to want to publicly associate themselves with HIV. The application of criminal law to HIV increases stigma further by associating HIV with ‘criminality’ and ‘immoral activity’.

In some countries, a person can only be prosecuted for HIV transmission or exposure if they know their status. In such contexts, the criminal law creates a disincentive for people to know their HIV status.

Compromising sexual health support

People living with HIV need access to information, support, advice, treatment and other services to successfully manage HIV in their lives and look after their own health and well-being. Fear and the threat of prosecution can create barriers for people in seeking support and access to services. It can also limit the openness of the relationship between doctors and clients by discouraging people living with HIV from openly discussing challenges or problems they may be having in managing safer sex. They may fear that such a conversation could be used as evidence against them in future.

Misleading the public

Prosecutions can also foster a false impression that if someone is living with HIV they will always tell you. This undermines the fundamental importance of shared responsibility for safer sex. It also misrepresents the reality that most transmissions are passed on when people are unaware that they have HIV. One of the foundations of effective HIV prevention, sexual health and human rights is that all people, regardless of HIV status, take responsibility for their own health, knowledge and sexual choices.

Choosing to disclose your HIV status can be very difficult and can make people more vulnerable within their communities. People living with HIV have the right to chose if, when, where, how and to whom they disclose their status.  

Marginalizing those at risk

Legislation that outlaws behaviours associated with HIV vulnerability like drug possession or use, the buying or selling of sex and same-sex sexual relationships makes it harder to reach people who are most vulnerable to contracting HIV. The threat of prosecution and imprisonment may influence people to deny 'illegal' behaviour, delay going for an HIV test, and/or refuse support, help or advice. In some cases the law even makes it illegal to work with and help people to avoid HIV.

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