Sexual health human rights and the law

22 | Sexual health, human rights and the law
3.4.5 HIV status
Although being HIV-positive is not itself indicative
of sexual transmission of the infection, individuals
are often discriminated against for their HIV-positive
status based on a presumption of sexual activity
that is often considered socially unacceptable.
In addition, in response to the fact that most HIV
infections are due to sexual transmission (147), a
number of countries criminalized transmission of, or
exposure to, HIV (17), fuelling stigma, discrimination
and fear, and discouraging people from getting
tested for HIV (148–150), thus undermining public
health interventions to address the epidemic.
Even where persons living with HIV/AIDS may be
able, in principle, to access health services and
information in the same way as others, fear of
discrimination, stigma and violence may prevent
them from doing so. Discrimination against people
living with HIV is widespread, and is associated with
higher levels of stress, depression, suicidal ideation,
low self-esteem and poorer quality of life (151), as
well as a lower likelihood of seeking HIV services and
a higher likelihood of reporting poor access to care
(152–154).
HIV transmission has been criminalized in various
ways. In some countries criminal laws have been
applied through a specific provision in the criminal
code and/or a provision that allows for a charge
of rape to be escalated to “aggravated rape” if the
victim is thought to have been infected with HIV as
a result. In some cases, HIV transmission is included
under generic crimes related to public health, which
punish the propagation of disease or epidemics,
and/or the infliction of “personal injury” or “grievous
bodily harm” (155). 5
Contrary to the HIV-prevention rationale that such
laws will act as a deterrent and provide retribution,
there is no evidence to show that broad application
5
Questions of whether an HIV-infected person who
knows his or her status has told his or her sexual
partner(s) or not, whether the intercourse was
protected or not, whether the accused had a specific
intention to infect the partner and whether the
non-infected partner became infected, have been,
and still are, the subject of intense debate in courts
around the world, with widely varying positions
(156–158).
of the criminal law to HIV transmission achieves
either criminal justice or public health goals (150,
159). On the contrary, such laws fuel stigma,
discrimination and fear, discouraging people from
being tested to find out their HIV status (148–150),
and undermining public health interventions to
address the epidemic (160). Thus, such laws may
actually increase rather decrease HIV transmission
(17, 73, 161).
Women are particularly affected by these laws since
they often learn that they are HIV-positive before
their male partners do, since they are more likely to
access health services (150, 162). Furthermore, for
many women it is either difficult or impossible to
negotiate safer sex or to disclose their status to a
partner for fear of violence, abandonment or other
negative consequences (150, 163, 164), and they may
therefore face prosecution as a result of their failure
to disclose their status. Criminal laws have also been
used against women who transmit HIV to their infants
if they have not taken the necessary steps to prevent
transmission. Such use of criminal law has been
strongly condemned by human rights bodies (17).
Various human rights and political bodies have
expressed concern about the harmful effects of
broadly criminalizing the transmission of HIV (17,
73, 150, 165, 166). International policy guidance
recommends against specific criminalization of HIV
transmission (150). Human rights bodies as well
as United Nations’ specialized agencies, such as
UNAIDS, have stated that the criminalization of HIV
transmission in the instance of intentional, malicious
transmission is the only circumstance in which the
use of criminal law may be appropriate in relation to
HIV (73, 150). States are urged to limit criminalization
to those rare cases of intentional transmission,
where a person knows his or her HIV-positive status,
acts with the intent to transmit HIV, and does in fact
transmit it.
Human rights bodies have called on states to ensure
that a person’s actual or perceived health status,
including HIV status, is not a barrier to realizing
human rights. When HIV status is used as the basis
for differential treatment with regard to access
to health care, education, employment, travel,
social security, housing and asylum, this amounts