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Criminalising consensual sexual behaviour in the context of HIV: Consequences, evidence, and leadership



This paper provides an overview of the use of the criminal law to regulate sexual behaviour in three areas of critical importance: (1) HIV exposure in otherwise consensual sex, (2) sex work and (3) sexual activity largely affecting sexual minorities. It analyses criminal law pertaining to these three distinct areas together, allowing for a more comprehensive and cohesive understanding of criminalisation and its effects. The paper highlights current evidence of how criminalisation undermines HIV prevention and treatment. It focuses on three specific negative effects of criminalisation: (1) enhancing stigma and discrimination, (2) undermining public health intervention through legal marginalisation and (3) placing people in state custody. The paper also highlights gaps in evidence and the need for strong institutional leadership from UN agencies in ending the criminalisation of consensual sexual activity. This paper serves two goals: (1) highlighting the current state of research and emphasising where key institutions have or have not provided appropriate leadership on these issues and (2) establishing a forward-looking agenda that includes a concerted response to the inappropriate use of the criminal law with respect to sexuality as part of the global response to HIV.
Criminalising consensual sexual behaviour in the context of HIV:
Consequences, evidence, and leadership
Aziza Ahmed
*, Margo Kaplan
, Alison Symington
and Eszter Kismodi
Northeastern University School of Law, Boston, MA, USA;
Brooklyn Law School, Brooklyn,
Canadian HIV/AIDS Legal Network, Toronto, ON, Canada;
Department of
Reproductive Health and Research, World Health Organization, Geneva, Switzerland
(Received 7 April 2011; final version received 9 September 2011)
This paper provides an overview of the use of the criminal law to regulate sexual
behaviour in three areas of critical importance: (1) HIV exposure in otherwise
consensual sex, (2) sex work and (3) sexual activity largely affecting sexual
minorities. It analyses criminal law pertaining to these three distinct areas
together, allowing for a more comprehensive and cohesive understanding of
criminalisation and its effects. The paper highlights current evidence of how
criminalisation undermines HIV prevention and treatment. It focuses on three
specific negative effects of criminalisation: (1) enhancing stigma and discrimina-
tion, (2) undermining public health intervention through legal marginalisation
and (3) placing people in state custody. The paper also highlights gaps in evidence
and the need for strong institutional leadership from UN agencies in ending the
criminalisation of consensual sexual activity. This paper serves two goals: (1)
highlighting the current state of research and emphasising where key institutions
have or have not provided appropriate leadership on these issues and (2)
establishing a forward-looking agenda that includes a concerted response to the
inappropriate use of the criminal law with respect to sexuality as part of the
global response to HIV.
Keywords: criminalisation; HIV; stigma; sexuality; law; human rights; LGBT
Criminal law is one of the primary mechanisms employed by the state to control
individual behaviour. Historically, states have used this mechanism to punish non-
procreative consensual sex. While these restrictions have diminished significantly
over the last few decades, some sexual behaviours continue to be criminalised even if
consensual. In the context of the global HIV epidemic, the use of criminal law to
regulate sexuality introduces a critical challenge: the inappropriate use of criminal
law can undermine HIV prevention, treatment, care and support initiatives and
weaken critical public health interventions.
This paper provides an overview of the use of the criminal law to regulate sexual
behaviour in three areas of critical importance with respect to HIV: (1) HIV exposure
in otherwise consensual sex, (2) sex work and (3) sexual activity largely affecting
sexual minorities (For lack of better terminology we use the term ‘sexual minority’ to
refer to men who have sex with men [MSM], women who have sex with women
*Corresponding author. Email:
Global Public Health
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ISSN 1744-1692 print/ISSN 1744-1706 online
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[WSW] and members of the lesbian, gay, bisexual and transgender [LGBT]
communities). Significantly, this paper looks at the criminal law of these three
distinct areas together as opposed to taking a singular issue approach. This strategy
allows for a more comprehensive and cohesive understanding of criminalisation and
its effects. Further, individuals who are prosecuted under the various criminalisation
statutes do not neatly fit into the designated classifications that (among other things)
activists use to organise or epidemiologists use to categorise people. Examining these
issues together bridges misleading singular categories such as ‘sex worker’ or ‘person
living with HIV’ that often fail to represent the complexity of an individual’s
experience with the criminal law. For example, an individual may be a sex worker, an
MSM and be HIV positive. In some legal regimes, he might be prosecuted for any
one of the criminalised sexual acts outlined above.
In discussing the three areas outlined earlier, the paper highlights current
evidence of how criminalisation undermines HIV prevention and treatment. We
focus on three specific negative effects of criminalisation: (1) enhancing stigma and
discrimination, (2) undermining public health intervention through legal margin-
alisation and (3) placing people in state custody. The paper also highlights gaps in
evidence and the need for strong institutional leadership from UN agencies in ending
the criminalisation of consensual sexual activity. In doing so, this paper serves two
goals: (1) highlighting the current state of research and emphasising where key
institutions have or have not provided appropriate leadership on these issues and (2)
establishing a forward-looking agenda that includes a concerted response to the use
of the criminal law with respect to sexuality as part of the global response to HIV.
The discussion presented in this paper emerged from a meeting entitled Sex,
Rights, and the Law in a World with AIDS, held in Cuernavaca, Mexico, from 23 to 25
February 2009 (Ogden, Rao Gupta, Warner, and Fisher 2011). This gathering was a
component of the AIDS 2031 initiative and was held in partnership with the
International Center for Research on Women, the United Nations Development
Program (UNDP) and the Global Coalition on Women and AIDS. Its goal was to
advance long-term thinking and action on the prevention of sexually transmitted
HIV, by exploring the social and structural barriers to the prevention of sexually
transmitted HIV and to effective, gender-transformative and human rights-based
approaches to treatment, care and support (Ogden, Rao Gupta, Warner, and Fisher
2011). The meeting explored the interactions of laws and policies that constrain
rights or empower people to reduce vulnerabilities and foster resilience in the context
of a long-term response to HIV. The criminalisation of HIV transmission and
exposure, sex work and sexual minorities were identified as critical issues throughout
the meeting.
Although we focus on the criminalisation of HIV exposure in otherwise
consensual sex, sex work and sexual activity, we acknowledge that the criminalisation
of other behaviours including but not limited to drug use and abortion also have
important implications for people living with or vulnerable to HIV and for human
rights (deBruyn 2003, Bourgois et al. 2005). As such, we would advocate a
comprehensive position on the appropriate, limited use of the criminal law informed
by evidence and human rights. A unified response among issue-specific advocacy
groups may ultimately be a critical component in creating legal environments
supportive of HIV prevention, treatment, care and support, and of the rights of
people living with or affected by HIV.
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Criminalisation of HIV exposure, sex work and sexual activity: legal frameworks
As illustrated in the paper by Ogden, Rao Gupta, Fisher, and Warner (2011) in this
volume, a health-enabling environment shapes individual and community-level HIV
resilience, and appropriate laws and policies are integral to this environment. Laws
and policies can contribute to a coordinated, organised state response to ensure
respect for, protection of and fulfilment of fundamental human rights. However, laws
and policies pertaining to HIV are not neutral in their creation or effect; they are
influenced by politics and ideologies related to sexuality, and they affect different
populations uniquely. Sex workers, sexual minorities, drug users and people living
with HIV the populations that are primarily affected by HIV (particularly within
concentrated epidemics) have the most to gain or lose from laws and policies
regulating sexuality.
Criminalisation of HIV exposure and transmission during consensual sex
The use of the criminal law to prosecute exposure and transmission of HIV is likely
rooted in concerns about the rapid spread of HIV in many countries, the failure of
traditional HIV prevention efforts to stop the epidemic, and the particular
vulnerability of women who are infected through sexual violence or by partners
who do not reveal their HIV status (Ju
¨rgens et al. 2009). Laws criminalising HIV
transmission and exposure exist in Western Europe, Australia and New Zealand,
Asia and most recently Africa, where at least 25 countries have recently adopted
HIV-specific legislation criminalising HIV transmission and/or exposure and some
others are considering similar legislations (GNP 2010). Canada has also played a
leading role with the first prosecutions of people living with HIV in 1989 and an
important Supreme Court decision in 1998 which set the stage for the more than 125
prosecutions for HIV non-disclosure that have now taken place in Canada
(Symington 2009, Mykhalovskiy et al. 2010). The majority of the African national
laws on criminalisation are based on a model law developed at a workshop organised
by Action for West Africa Region-HIV/AIDS in N’Djamena, Chad in 2004 that
recommended criminalizing ‘the transmission of HIV virus through any means by a
person with full knowledge of his/her HIV/AIDS status to another person.’
United Nations Programme on HIV/AIDS (UNAIDS) reports that 56 countries
have laws that criminalise HIV transmission and/or exposure (UNAIDS 2010).
Many more use general criminal law provisions to prosecute individuals for
transmitting HIV. Still others are developing criminal laws specific to HIV/AIDS.
The criminalisation of HIV transmission and/or exposure started in the USA with
the first recorded prosecutions in 1987 (Fitting 1987, Lacayo and Winbush 1987,
Stauter 1988) and the first HIV-specific laws enacted in the same year (Sullivan and
Feldman 1987, Bernard 2010). By 2005, at least 36 European countries had either an
HIV-specific criminal law or had used existing general offences to prosecute people
living with HIV (Bernard 2010). Three countries dominate the prosecutions in
Europe, however: Austria, Sweden and Switzerland each have had more than 30
prosecutions, respectively, for the transmission of HIV (Greater Network of People
Living with HIV/AIDS 2005). Laws that criminalise HIV transmission and exposure
are often found in national HIV/AIDS laws (e.g., Government of Sierra Leone 2007,
Government of Uganda 2008); however, provisions criminalising HIV transmission
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are also often included under the umbrella of sexual offence laws (Government of
Kenya 2006, Government of Rwanda 2008). In addition to a crime in and of itself,
exposure or transmission of HIV can be an aggravating offence to other crimes,
including sex work and sexual assault (Lambda Legal 2010).
Criminalisation of sex work
One hundred and sixteen countries have laws that make some form of sex work
illegal (UNAIDS 2010). There is great diversity among the legal regimes used to
regulate and/or criminalise sex work as well as the categorisation of these laws. For
the purposes of this discussion, we offer the following four characterisations: (1)
complete criminalisation, (2) partial criminalisation (abolitionist), (3) decriminalisa-
tion and (4) legalisation (Halley et al. 2006). Complete criminalisation prohibits all
acts related to sex work including: solicitation, the purchase of sex and living off of
the earnings of sex work. Partial criminalisation prohibits acts related to sex work
except the selling of sex itself. Decriminalisation of sex work is the full repeal of all
criminal laws related to sex work and the acts immediately surrounding sex work.
Legalisation or regulation that falls beyond criminalisation of sex work may
decriminalise aspects of sex work but often includes a host of public health and
other regulatory mechanisms. These regulations may even be coercive, such as laws
requiring mandatory testing of sex workers. Most legal approaches to sex work
cannot be broken down neatly into these distinct categories.
Criminalisation of consensual sexual activity
Laws that criminalise consensual sexual activity have negative consequences for
sexual minorities. These laws rarely explicitly refer to MSM, WSW or LGBT
communities. Instead, statutes prohibiting crimes against nature, unnatural offences
or sodomy are disproportionately applied to marginalised groups. Seventy-nine
countries currently have sodomy laws or other legal provisions criminalising
homosexuality (UNAIDS 2010). At least seven countries maintain the death penalty
for consensual same-sex practices (O’Flaherty and Fisher 2008). From a human
rights and public health perspective, there have been recently both signs of progress
and major setbacks in this area. In July 2009, the Delhi High Court, India,
overturned Section 377 of India’s penal code, which has penalised homosexuality in
India since 1861 (Timmons 2009). In December 2008, 66 nations supported a joint
statement before the United Nations urging all nations to ‘promote and protect
human rights of all persons, regardless of sexual orientation and gender identity’
(Human Rights Watch 2008). Around the same time, Uganda’s Parliament
considered an Anti-Homosexuality Bill that would punish homosexuality by life
imprisonment or even death.
The impact of criminal law on vulnerable communities and people living with HIV
The health of a population and of an individual is a product of the interaction
between ‘human beings, social systems, and environments’ (Burris 2004). This is
true with respect to HIV: access to HIV prevention, care, treatment and support
are contoured by interactions between people, social systems and environments.
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Likewise, the health, dignity and rights of people living with HIV are protected or
violated by the prevailing systems, policies and interactions. The criminal law is a
critical component of the framework of laws and policies that affects HIV risk
behaviour (Lazzarini et al. 2002).
The goals of criminal law are generally considered to be: incapacitation,
retribution, rehabilitation and deterrence (Burris et al. 2007). These goals are
realised through a series of legal mechanisms including arrests, prosecution, trials,
imprisonment and dispute resolution. In the context of public health and HIV in
particular, laws regulating sexuality have often been adopted on the assumption that
they would incapacitate or rehabilitate people who have risked transmitting HIV, or
to deter those who might otherwise risk transmitting HIV. However, such laws have
never been shown to have their intended effect. They are also inconsistent with
broader public health goals to reduce the spread of HIV and with a human rights-
based approach to public health (Burris et al. 2007, Cameron 2009, Gruskin and
Ferguson 2009).
The following section of the paper outlines the impact of criminal laws on already
marginalised populations with regard to HIV through several modalities: first, by
enhancing stigma and discrimination and violence; second, by creating legal barriers
to programme delivery for vulnerable populations and HIV positive people; and
third, by sending people into state custody where they lose continuous access to HIV
prevention, care, treatment and support and may be placed at even higher risk of
contracting HIV.
Stigma and discrimination
Criminalisation sends a normative signal about certain populations, including people
living with HIV, as potentially criminal or dangerous. This stigma and discrimination
interferes with prevention, care and treatment goals of HIV programmes (Piot et al.
Stigma and discrimination are most often perpetuated by the media, which also
play a key role in establishing and perpetuating social norms and expectations
(Persson and Newman 2008) with headlines such as, ‘HIV Sex Crime Acrobat Faces
Court’, ‘HIV Timebomb’ and ‘Jailed for 10 years, the one man HIV epidemic’
(Reynolds 2008, Nehanda Radio 2011). Sex workers face particular forms of
stigmatisation in the media, which often blame them for spreading HIV; a Tennessee
newspaper, for example, declared an HIV positive woman a ‘walking felony’ (Knox
News 2009). Analysis of newspaper reports on the criminalisation of HIV has
revealed that many focus disproportionately on racial and ethnic minorities,
perpetuating the stereotype of these individuals as criminals (Reynolds 2008, African
Caribbean Council on HIV/AIDS 2010). The impact of stigma and discrimination
on sexual minorities in health care settings has been well documented (Brooks et al.
2005). In particular, these studies suggest that for sexual minorities a variety of
stigmas, including those based on sexuality and potentially HIV status, contribute to
layered discrimination and fear of discrimination in the context of health services
(Maluwa et al. 2002, Parker 2003). This stigma may also drive individuals living with
HIV away from necessary health services, a particularly concerning result given the
discrimination this community already experiences in health care settings. For sex
workers, extreme stigma, discrimination and marginalisation have led to violence.
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According to reports by sex workers, such violence is more prevalent in contexts
where sex work is criminalised (Van Beelen and Rakhmetova 2010). Sex workers in
11 countries in Eastern Europe report that they suffer from high levels of physical
and sexual violence from police officers and that the lack of protection from police
encourages violence from the general population (Crago et al. 2010). When sex work
is criminalised, sex workers have little protection from their abusers (Canadian HIV/
AIDS Legal Network 2007).
In and of itself, the documented negative impact of criminal laws that contributes
to stigma, discrimination and increased violence against vulnerable populations
weighs heavily against the use of criminal law to regulate sexual behaviours among
consenting adults. This conclusion is reinforced by the argument that criminalisation
contributes to on-going marginalisation, undermines access to health services and
leads to poor health outcomes.
Legal marginalisation as a barrier to health services
By compounding the stigma and discrimination experienced by marginalised
populations such as sex workers and sexual minorities, criminal law also obstructs
the delivery of health services. In some circumstances, criminal law may even prohibit
the effective prevention, treatment, care and support activities. For example, criminal
law may prohibit condom distribution to MSM, where such sexual activity is
Evidence suggests that sexual minorities have great difficulty in accessing health
services (Melles and Nelson 2010). A 5000-person study conducted by the Global
Forum on MSM found that only 39% of MSM had easy access to free condoms and
57% said that it was difficult or impossible to access other essential services as well
(Global Forum on MSM & HIV 2010). UNDP recently reported that in the Asia-
Pacific Region 90% of MSM and transgender individuals do not have access to HIV
prevention and care services (UNDP 2010). Data on WSW are sparse in the context
of HIV, a concern for those seeking to better understand the trends and dynamics
leading to vulnerability of HIV among WSW (Melles and Nelson 2010). Police
harassment of MSM organisations is also rampant (Human Rights Watch 2010).
Human Rights Watch (2010) has reported escalating reports of violence in the form
of police abuse and arbitrary detention, physical threats, assault, verbal abuse by
private individuals, blackmail, extortion and robbery against MSM in Senegal.
A now high-profile instance of police harassment of public health organisations
serving MSM eventually lead to the political mobilisation responsible for the repeal
of India’s sodomy laws. The petition was based, in part, on the on-going harassment
of public health workers seeking to do outreach amongst MSM.
Criminalisation of HIV exposure and/or transmission has an impact on service
delivery for HIV-positive individuals. Although there is a dearth of empirical
research, anecdotal evidence and statements by networks of positive individuals
indicate that criminalisation deters HIV testing by introducing fear of prosecution
and undermines honest relationships with service providers when positive individuals
fear disclosures might be used as evidence against them (Tan 1999).
Laws that criminalise HIV exposure and/or transmission may have a specific
impact on women because of community gender dynamics. Women are often tested
first for HIV because they are more likely to seek health care for pregnancy,
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childbearing and childcare. However, because of their relative lack of power or
decision-making within a relationship, they may fear disclosure of their HIV status
to their partners. HIV-positive women may then face the double threat of violence or
abandonment from their partners and families, as well as fear of criminal
prosecution. Because these concerns inhibit them from disclosing their status to
their partners, such women are even more vulnerable to prosecution (Open Society
Institute 2008, Csete et al. 2009, Ju
¨rgens et al. 2009, Ahmed 2011). Furthermore,
legislation could be used to prosecute mothers who transmit HIV to their children
(Open Society Institute 2008, UNAIDS 2008, Csete et al. 2009, Ju
¨rgens et al. 2009).
Criminal laws impede the creation of an environment where women feel safe seeking
testing or treatment for their HIV status. As a result, they place the health of women,
their partners and their children at risk.
Sex workers are particularly vulnerable to HIV transmission in many settings
around the world (Vuylsteke et al. 2009). Rather than curbing transmission of HIV,
the criminalisation of sex work can impede HIV-prevention goals by diminishing
access to prevention methods, care, treatment and support services and programmes,
both on the part of clients and providers (Open Society Institute 2008). In contexts
where sex work is criminalised, fear, stigma and discrimination against sex workers on
the part of service providers can reduce both the quantity and quality of services that
sex workers receive. In Kenya, for example, laws prohibiting sex work have
discouraged sex workers from accessing sexual and reproductive health care services
for fear that their name, HIV status, or other information will be made available to
police (Federation of Women Lawyers Kenya 2008). Law enforcement officials have
also used the classification of sex work as a criminal behaviour to target sex workers
for arrest and mistreatment; prevention methods may even be used against sex
workers, such as where condom possession can be used as proof of intent to engage in
sex work (Lutnick and Cohan 2009). This is the case in Washington, DC, where
Prostitution Free Zones allow police greater ability to search and arrest people
suspected of sex work (Different Avenues 2008). In contexts where criminal laws
against sex work are severe, such as in Cambodia, NGOs report that sex workers are
harder to reach with outreach activities and information, and sex workers have
reported that they have stopped carrying condoms for fear of arrest (Human Rights
Watch 2010).
Local laws can also impede service delivery to sex workers. Such laws include
prohibitions on loitering, indecent exposure and public nuisance. In addition to
restricting sex work, these laws often enable police harassment, exploitation and
brutality against sex workers (Federation of Women Lawyers Kenya 2008, Vuylsteke
et al. 2009).
The legal marginalisation of various communities vulnerable to contracting HIV
undermines health services. As the next section argues, this vulnerability increases
when individuals enter state custody.
State custody
Additional negative consequences arise when criminalisation results in a member of a
vulnerable group or HIV-positive person entering state custody such as prison, jail or
detention. Particularly in low- and middle-income countries, HIV-positive individuals
can often lose access to treatment services in prison and be exposed to the leading
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causes of death related to HIV, including tuberculosis. For example, Palepu et al.
(2004) demonstrate that people living with HIV with a history of incarceration in the
first 12 months of initiating Highly Active Anti-Retroviral Therapy (HAART) are
more likely to be non-adherent and less likely to receive HIV-1 RNA suppression. In
most of the developing world, access to HIV treatment in prison is rare or entirely
unavailable (Wilson et al. 2007). In prison, stigma and discrimination are perpetuated
by the on-going segregation of HIV-positive prisoners. Moreover, sexual minorities
generally face high rates of sexual violence in prison, increasing risk of contracting
HIV and an inability to practice safe consensual sex due to unavailability of condoms
and lubricant (Ju
¨rgens 2006, Wilson et al. 2007).
Some criminal law regimes that affect sex work enable government and non-
governmental organisations to utilise a ‘raid and rehabilitate’ model, often resulting
in large numbers of sex workers being subjected to abuse in state-run detention
facilities. Overs (2009) has documented the violence experienced by sex workers in
Cambodian rehabilitation centres. These rehabilitation centres expose sex workers to
a range of abuses, including sexual violence, deprivation of food and inability to
access necessary care.
Vulnerable communities who are already likely to be exposed to HIV are often at
increased risk in detention facilities where sexual violence is high and condom usage
is low (United Nations Office on Drugs and Crime 2008). Sexual violence against
prisoners, particularly against MSM and transgender individuals, increases vulner-
ability to HIV (NCLR et al. 2010). Finally, in detention settings, HIV positive
individuals experience high levels of stigma and discrimination and often lack access
to necessary care, treatment, and support.
Challenges in gathering evidence
Although these arguments make a strong case against criminalisation, there is a
dearth of research demonstrating a clear connection between changing criminal laws
and health outcomes. It is difficult to find empirical support for the proposition that
a change in the law will, for example, decrease stigma and discrimination or reduce
vulnerability. The lack of empirical evidence is due in part to the difficulty in
measuring health outcomes as they are affected by changes in the law coupled with a
lack of investment in research issues seen to be politically contentious. Further,
the very populations that are most at risk of being prosecuted and suffering the
consequences of criminalisation are often those with few resources to advocate
research on changing laws. The lack of empirical evidence allows governments to
ignore these important but politically controversial issues.
The political challenges of research on the HIV epidemic are not new. During the
early part of the epidemic in the USA, politically motivated neglect of the gay
community impeded efforts to focus research on gay men. This was challenging then
for the same paradoxical reasons it remains difficult to advocate for research on the
impact of criminalisation today: how does one demonstrate the importance of
research when the data do not exist to suggest such research is important (Epstein
2003)? Because criminalisation affects similarly marginalised communities the same
question remains particularly in countries where commitment to working with
vulnerable communities is lacking.
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Institutional leadership
Barriers to gathering evidence that directly link law, health behaviours and health
outcomes have left open the possibility of competing political agendas to influence
the strength of UN positions against criminalisation. In turn, institutional leadership
has varied considerably on the topic of criminalisation at the cost of an appropriate
legal response to the HIV epidemic. There are several circumstances where
institutions have not effectively taken on the issue of criminalisation, to the
detriment of marginalised populations. UN bodies have responded to the current
criminalisation crisis through the very slow process of legislative reform and
technical assistance to lawyers working on legal reform. Second, UN agencies are
not addressing issues comprehensively. The case of the new UN Women Access to
Justice report is a case in point. The report calls for the decriminalisation of HIV
transmission and homosexuality but neglects calling for a decriminalisation of sex
work (UN Women 2011). Third, both politics and evidence have shaped the guidance
given by UN agencies. This is best demonstrated by the UNAIDS Guidance Note on
HIV and Sex Work, which shifted from a statement calling for decriminalisation to a
2007 Guidance Note devoid of any mention of criminalisation (Ahmed 2011). While
the UNAIDS Strategic Report from 2011 to 2015 prioritizes the reduction of
punitive laws and practices regarding HIV transmission, sex work, drug use and
homosexuality (UNAIDS 2010), there is on-going concern from civil society
organisations that UN agencies have not maintained the necessary level of
commitment to adequately address this issue.
Despite the political difficulty of addressing these issues, however, UN agencies
have begun various processes that may signal a sea change. The 2009 UNAIDS
Action Framework on Universal Access for MSM makes a statement in favour of
decriminalisation. The Global Commission for HIV and the Law has actively
mobilised states and civil society to speak of the legal issues undermining an effective
HIV response including an examination of laws that criminalise consensual sex. The
WHO is also formulating a policy document on Human Rights and Sexual Health to
comprehensively address criminalisation of consensual sexual conduct from a
health and human rights perspective. The most recent joint publication of WHO,
UNAIDS and UNDP calls for legislators and other government authorities to
establish antidiscrimination and protective laws, derived from international human
rights standards, in order to eliminate discrimination and violence faced by MSM
and transgender people and to reduce their vulnerability to HIV infection. In the
context of this discussion, the agencies acknowledge that criminalisation is a legal
barrier that increases the vulnerability of MSM and transgender individuals (WHO
2011). UNAIDS continues to consolidate technical expertise to ensure that evidence
underpins the debates on criminalisation and has taken a lead role in ensuring
officials, including judges, at the local level are committed to using the law in a
manner that respects the rights of people living with HIV and vulnerable
Increasing evidence that criminal laws pertaining to consensual sex undermine
the HIV response requires that the UN play an active role in supporting research,
ensuring technical assistance in law-making processes, and providing comprehensive
guidance and training to governments, Ministries of Justice and judges. While this
paper does not review each of the responses of the UN agencies to criminalisation,
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these few examples highlight the on-going need for a unified and consistent response
to criminalisation.
A brief survey of available evidence, including evidence generated by networks of
individuals most affected by the HIV epidemic, demonstrates that criminalisation of
consensual sex undermines the effectiveness of HIV/AIDS programmes. In
particular, these criminal statutes increase stigma and discrimination, the mistreat-
ment of HIV-positive people and the likelihood of exposure to harm for those in
custody. Despite the difficult political environment, clear institutional leadership
on issues of criminalisation is critical. This, in turn, requires investment in research
on the impacts of criminal law on HIV. Acknowledgement of the harms of
criminalisation, institutional leadership and a commitment to action and research
will provide a vital framework to address the criminalisation of sexuality from a
cross-issue, unified, rights-based and evidence-informed position.
Eszter Kismodi is a staff member of the World Health Organization, Department of
Reproductive Health and Research and is responsible for the views expressed in this
publication. They do not necessarily represent the decisions, policy or views of the World
Health Organization. The authors would also like to acknowledge Ann Warner and Jessica
Ogden for their contributions and feedback to this paper.
1. The discussion in this paper is limited to HIV exposure in the context of otherwise
consensual sex. Coerced or forced sex (i.e., sexual assault and rape) is criminal behaviour
irrespective of the HIV status of the perpetrator and this paper does not address these acts
of sexual violence.
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... 7 From a women's rights lens, a primary motivating factor in the initial development and application of criminal law against people living with HIV was its perceived role to protect vulnerable women at risk of acquiring HIV through sexual violence or dependent partnerships, and to advance sexual autonomy. 26,27 However, justification of HIV criminalization to advance women's sexual autonomy assumes the woman is the HIV-negative partner, 18 which is flawed given that women and girls represented 53% of people living with HIV globally in 2020. 28 HIV non-disclosure prosecutions fail to acknowledge or address pervasive gendered drivers of HIV acquisition, including power imbalance in relationships and gender-based violence. ...
... 41 Human rights scholars have condemned the use of criminal law against women living with HIV, declaring it a threat to women's rights and sexual autonomy. 26,42 Research from a Canadian context starkly illuminates that gender-based inequities in realizing HIV viral load suppression translate to reduced likelihood of satisfying the Supreme Court's legal criteria for HIV non-disclosure for women living with HIV. 43 Furthermore, suboptimal awareness and understanding of the legal obligation to disclose have been reported among Canadian women living with HIV. ...
... Our findings challenge the portrayal of the criminalization of HIV non-disclosure as a tool to protect women or an effective HIV prevention strategy. 26,27 In adjusted analyses, women who were unstably housed were significantly more likely to report increased experiences of violence from sexual partners due to the law. Over 60% of CHIWOS participants have a personal annual income of less than $20,000 Canadian dollars, under the Canadian poverty line. ...
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Objectives People living with human immunodeficiency virus in Canada can face criminal charges for human immunodeficiency virus non-disclosure before sex, unless a condom is used and their viral load is <1500 copies/mL. We measured the reported impact of human immunodeficiency virus non-disclosure case law on violence from sexual partners among women living with human immunodeficiency virus in Canada. Methods We used cross-sectional survey data from wave 3 participant visits (2017–2018) within Canadian HIV Women’s Sexual and Reproductive Health Cohort Study; a longitudinal, community-based cohort of women living with human immunodeficiency virus in British Columbia, Ontario and Quebec. Our primary outcome was derived from response to the statement: ‘[HIV non-disclosure case law has] increased my experiences of verbal/physical/sexual violence from sexual partners’. Participants responding ‘strongly agree/agree’ were deemed to have experienced increased violence due to the law. Participants responding ‘not applicable’ (i.e. those without sexual partners) were excluded. Multivariate logistic regression identified factors independently associated with increased violence from sexual partners due to human immunodeficiency virus non-disclosure case law. Results We included 619/937 wave 3 participants. Median age was 46 (interquartile range: 39–53) and 86% had experienced verbal/physical/sexual violence in adulthood. Due to concerns about human immunodeficiency virus non-disclosure case law, 37% had chosen not to have sex with a new partner, and 20% had disclosed their human immunodeficiency virus status to sexual partners before a witness. A total of 21% self-reported that human immunodeficiency virus non-disclosure case law had increased their experiences of verbal/physical/sexual violence from sexual partners. In adjusted analyses, women reporting non-White ethnicity (Indigenous; African/Caribbean/Black; Other), unstable housing and high human immunodeficiency virus–related stigma had significantly higher odds of reporting increased violence from sexual partners due to human immunodeficiency virus non-disclosure case law. Conclusion Findings bolster concerns that human immunodeficiency virus criminalization is a structural driver of intimate partner violence, compromising sexual rights of women living with human immunodeficiency virus. Human immunodeficiency virus non-disclosure case law intersects with other oppressions to regulate women’s sexual lives.
... The use of criminal law against people with HIV has been framed as a means to protect women from HIV acquisition within abusive or power-imbalanced partnerships and promote sexual autonomy [111,112]. However, the identities and experiences of women within this cohort undermine the logic of this strategy, and advance arguments that the use of criminal law against women with HIV compromises health and rights [113]. ...
... Although these findings may not be generalizable beyond Canada due to the specificity of the case law, they add to the growing body of international literature showing that the overly broad use of the criminal law against people with HIV in many global settings is detrimental to the health and rights of women with HIV [112,114]. ...
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In 2012, the Supreme Court of Canada ruled that people with HIV are legally obligated to disclose their serostatus before sex with a “realistic possibility” of HIV transmission, suggesting a legal obligation to disclose unless they use condoms and have a low HIV viral load (< 1500 copies/mL). We measured prevalence and correlates of ruling awareness among 1230 women with HIV enrolled in a community-based cohort study (2015–2017). While 899 (73%) participants had ruling awareness, only 37% were both aware of and understood ruling components. Among 899 aware participants, 34% had never discussed disclosure and the law with healthcare providers, despite only 5% being unwilling to do this. Detectable/unknown HIV viral load, lack of awareness of prevention benefits of antiretroviral therapy, education ≤ high-school and high HIV-related stigma were negatively associated with ruling awareness. Discussions around disclosure and the law in community and healthcare settings are warranted to support women with HIV.
... Laws that only apply to certain populations, for example, people living with HIV, send a clear message to the public that people with HIV are potentially dangerous criminals (Ahmed et al., 2011). HIV criminal laws, including aggravated prostitution, target the most vulnerable, marginalized communities reinforcing and perpetuating stigma, racism, sexism, classism, and transphobia. ...
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Aggravated prostitution is the combination of one stigmatizing circumstance accompanying another: prostitution and living with HIV. This HIV criminal offense disproportionally impacts African Americans, women, transgender and gender non-conforming people, people experiencing homelessness, and people unable to meet their basic needs. Punishment for aggravated prostitution is unduly harsh and inconsistent with the harm caused. This article describes the findings from a qualitative descriptive study of fourteen individuals who share their experiences of what has happened as a result of being arrested for aggravated prostitution. Findings include (a) economic survival and discrimination are reasons given for sex work, (b) people with stigmatized intersectional social identities experience police profiling, discrimination, and harassment, (c) those arrested for aggravated prostitution are punished severely and permanently, and (d) these findings support policy action. Modernizing HIV criminal laws should be accompanied by the provision of community services and supports as an alternative to arresting people for aggravated prostitution.
... Prosecution of PLWH when the risk of transmission is extremely low based on the current state of knowledge fuels stigma and discrimination (Canadian HIV/AIDS Legal Network, 2014) because criminalization sends "a normative signal about certain populations . . . as potentially criminal or dangerous" (Ahmed, Kaplan, Symington, & Kismodi, 2011, p. S361)- despite what medical evidence may in fact demonstrate. Criminalization of HIV non- disclosure can also significantly decrease access to HIV testing due to fears of legal prosecution of non-disclosure ( Patterson et al., 2015). ...
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This narrative research study aimed to answer the question: What is the experience of heterosexual people living with HIV in terms of partner-seeking in a Western Canadian city? Ten participants shared their experiences in semi-structured interviews. Relationship challenges were the major stressor of living with the illness. Feeling desperate about finding a partner and incorporating a new identity as a person living with HIV, some participants turned to celibacy. Other findings included lack of understanding of harm reduction strategies and favoring as partners people who also lived with HIV because of the shared knowledge, the absence of the need to disclose, and perceptions of greater self-stigma in a serodiscordant relationship. Recommendations for AIDS service organizations (e.g., discussions of healthy relationships, sexuality, self-esteem) and health care professionals (e.g., incorporating family planning and harm reduction strategies in discussions with patients) are suggested. Limitations and directions for future research are also discussed.
... Malgré ces progrès, le VIH/ SIDA reste une condition encore imprégnée de stigmatisation et de préjugés (Ahmed, Kaplan, Symington et Kismodi, 2011 ;Mykhalovskiy, 2011 (Dimitrijevic et al., 2004). En effet, une bonne adhérence avec une charge virale indétectable réduit considérablement le risque de transmission, qui s'approche de 0 % (Cohen et al., 2011). ...
Pour les personnes vivant avec le VIH (PVVIH), leur maladie constitue une expérience subjective susceptible d’influer sur leur qualité de vie (QV). Cette thèse explore l’influence de la perception que les PVVIH ont de leur maladie, ainsi que des stratégies de coping, l’auto-efficacité, les stratégies de contrôle en matière de santé, le soutien social et l’ajustement des buts sur la QV et troubles anxio-dépressifs. Une approche comparative entre des personnes françaises avec et sans VIH d’une part et avec des PVVIH françaises et brésiliennes d’autre part a été entreprise. Les participants (France : PVVIH n=206 et sans VIH n=220 ; Brésil : PVVIH n=128) ont répondu à un ensemble de questionnaires évaluant chacune de ces variables. Tout d’abord les résultats ont conforté la plus faible QV et des troubles anxio-dépressifs plus élevés chez les PVVIH comparativement aux personnes sans VIH, mesurés ici à l’aide d’odds ratio. Par ailleurs, les modèles d’équations structurelles ont permis de vérifier l’influence de la perception de la maladie, de l’auto-efficacité et de l’ajustement aux buts des PVVIH françaises sur la QV. Enfin, les régressions hiérarchiques ont montré que la perception de la maladie, l’auto-efficacité et le soutien social étaient des variables prédictives de la QV tant en France qu’au Brésil. La discussion souligne la nécessité de prendre en considération la perception de la maladie dans la compréhension de l’ajustement des PVVIH
Ending the human immunodeficiency virus (HIV) pandemic requires understanding the role of stigma and discrimination in HIV transmission and care. Although advances in care have transformed HIV and other manifestations of HIV infection from a rapidly fatal illness of an unknown cause to a preventable and manageable illness, the pandemic continues. In order to end the pandemic, accelerated efforts to test, diagnose, treat, and prevent HIV infection are required.
Many countries, including Australia, have laws that enable criminal prosecution of an individual based on reckless or intentional transmission of HIV to another person. Previous research has suggested that criminalisation of HIV may serve to hamper public health efforts by inhibiting HIV status disclosure or testing. Limited research to date has sought to examine the broader impact of criminalisation on the health and wellbeing of people living with HIV, which this paper aims to address. Drawing on cross-sectional data from 895 people living with HIV in Australia, this paper describes associations between standard measures of mental health and resilience with a newly devised scale measuring anxiety about HIV criminalisation. Findings suggest that laws criminalising HIV transmission have a broadly negative impact on wellbeing of people living with HIV, a situation that is exacerbated for gay and bisexual men, and other people living with HIV who may face intersecting forms of marginalisation based on race, gender or class. There is little justification for these laws being applied in Australia and the findings add weight to advocacy seeking to overturn criminalisation across the world.
The health of sex workers is considerably influenced by their position in society and by the marginalisation and stigmatisation they face worldwide. They are frequently criminalised and labelled as deviant, disordered or ‘vulnerable’: stereotypes that simplify and misrepresent their realities. Sex work policies create social and structural barriers, creating dangerous work environments and exacerbating significant health inequalities. Health organisations and their policies play an important role in highlighting inequalities and guiding health systems in reducing them. In this article, we use a document analysis design to analyse how and when sex workers are depicted in policies and publications by English national health organisations: National Health Service (NHS) England, Public Health England and the National Institute for Health and Care Excellence, along with the UK Department of Health. We find that sex workers are largely absent in these documents and, when present, are depicted not using evidence, but simplistically with moralistic undertones. The dichotomous constructions found in these texts: vulnerable yet also criminal ‘prostitute’ reflect wider political and social constructions of sex working women. This not only obscures their realities but also homogenises, blames and stigmatises, ultimately doing the opposite of what these organisations purport to do: it damages their health and well-being.
This article explores the experiences of sex workers living and working in South Australia under laws that criminalise their profession. A qualitative research methodology was used to interview sex workers about their work experiences. It was found that working in a criminalised setting raised particular concerns for sex workers including an erosion of workplace protections, outreach services, access to health service and increased policing. This article argues that criminalising sex work leads to human rights violations, therefore sex work should be decriminalised to ensure workers are protected. The themes from the interviews build qualitative evidence supporting the decriminalisation of sex work. This research has been supported by the Sex Industry Network of South Australia (SIN).
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Al over the world, the epidemics of HIV and AIDS have been capable of bringing out the best and the worst in people: the best, when, in solidarity, people join together to combat government, community, and individual denial, and to offer support and care to people living with HIV and AIDS; the worst, when people are stigmatized and ostra- cized by their loved ones, their families, and their commu- nities, and discriminated against individually as well as institutionally.2,3 Recent demands to radically scale up the international response to HIV and AIDS, and the recognition of their con- tinued and damaging effects have created a resurgence of interest in HIV- and AIDS-related stigma and discrimina- tion.4 New studies describing the forms, contexts, and con- sequences of HIV- and AIDS-related stigma have been pub- lished, and both USAID and the Horizons Project (2000 and 2001) have commissioned recent briefings.5 An Internet
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All states have criminal laws that can be used to punish sexual behaviors that pose some risk of HIV transmission; half have HIV-specific laws criminalizing sexual contact by people with HIV unless they abstain from unsafe sex, or disclose their HIV status and obtain consent from their partners. Whether these laws influence behavior is unknown. Illinois and New York exhibit contrasting legal conditions. Illinois has an HIV-specific law explicitly requiring disclosure by HIV+ persons. New York has no HIV-specific law. This study tests the null hypothesis that differences in law and beliefs about the law do not influence condom use in anal or vaginal sex. In this empirical study, 490 people at elevated risk of HIV were interviewed, 248 in Chicago and 242 in New York City. Approximately half in each state were men who have sex with men ("MSM") and half were injecting drug users ("IDUs"). Respondents were classified as MSM if they reported ever having had sex with a man, and as IDUs if they reported having injected drugs at least twice in the last three months. One-hundred sixty two subjects reported known HIV infection (Chicago 58; New York City 104). Three-hundred twenty-eight reported being HIV negative or not knowing their HIV status. Indicators of the law were 1) residence in the state, and 2) belief that it is a crime for a person with HIV to have sex with another person without disclosing his or her serostatus. Using stepwise logistic regression, we examined independent predictors of unprotected sex, adjusting for factors including age, race/ethnicity, disclosure, biological sex at birth, sexual orientation and number of partners. People who lived in a state with a criminal law explicitly regulating sexual behavior of the HIV-infected were little different in their self-reported sexual behavior from people in a state without such a law. People who believed the law required the infected to practice safer sex or disclose their status reported being just as risky in their sexual behavior as those who did not. Our data do not support the proposition that passing a law prohibiting unsafe sex or requiring disclosure of infection influences people's normative beliefs about risky sex. Most people in our study believed that it was wrong to expose others to the virus and right to disclose infection to their sexual partners. These convictions were not influenced by the respondents' beliefs about the law or whether they lived in a state with such a law or not. Because law was not significantly influencing sexual behavior, our results also undermine the claim that such laws drive people with and or at risk of HIV away from health services and interventions. We failed to refute the null hypothesis that criminal law has no influence on sexual risk behavior. Criminal law is not a clearly useful intervention for promoting disclosure by HIV+ people to their sex partners. Given concerns about possible negative effects of criminal law, such as stigmatization or reluctance to cooperate with health authorities, our findings suggest caution in deploying criminal law as a behavior change intervention for seropositives.
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This Article is the result of an intense series of text and telephone exchanges among the four of us, taking place from December 2005 to April 2006. Each of us has her own project which forms the basis of her contribution to this conversation. Janet Halley is working on new rules governing wartime sexual violence in international humanitarian law, specifically the place of rape and sexual slavery in the decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Chantal Thomas has published widely on the law of trade;1 one of her papers examines the feminist debate over the 2001 U.N. Trafficking Protocol.2 Hila Shamir and Prabha Kotiswaran have studied emergent national regimes addressing the connection between local prostitution markets and international “sex trafficking” in Holland, Sweden, and Israel (Shamir) and in India (Kotiswaran). Shamir compares legal regimes for governing sex trafficking and the related prostitution industry within national borders; Kotiswaran studies the highly local negotiations between stakeholders in the sex industry in India through ªeld work in Tirupati and Kolkata. Shamir and Koti-swaran take special note of the striking but very different impact of the 2001 Protocol and the United States’ Victims of Trafficking and Violence Protection Act (the VTVPA)3 in Israel and India.
About 2.5 million women who become pregnant each year worldwide are HIV-positive. UNAIDS recommends that HIV-positive women should be able to control their fertility and to prevent HIV transmission perinatally if they decide to have children. Yet a literature review on these matters found that termination of pregnancy for HIV-positive women receives very little attention. This paper describes the difficulties faced by HIV-positive women in obtaining safe legal, affordable abortion services. It shows that voluntary HIV counselling and testing for women seeking induced abortions and post-abortion care may not be provided. HIV-positive women wanting to avoid pregnancy for the same reasons as other women, but they also do not want to infect their partners through unprotected sex, worry about effects of pregnancy and childbirth on their own health, and about infecting a child and the child's future care. Little research has been done on whether HIV-positive women have a greater risk of morbidity following unsafe abortions than HIV-negative women, but evidence suggests they might. Studies in Zimbabwe and Thailand show that when information and access to legal pregnancy termination are lacking, HIV-positive women may be prevented from terminating a pregnancy. The paper concludes that it is essential for women living with HIV/AIDS to be able to exercise their right to decide whether and when to have children.
Prevention of mother-to-child transmission of HIV (PMTCT) is an important part of global and national responses to HIV and AIDS. In recent years, many countries have adopted laws to criminalise HIV transmission and exposure. Many of these laws are broadly written and have provisions that enable criminal prosecution of vertical transmission in some circumstances. Even if prosecutions have not yet materialised, the use of these laws against HIV-positive pregnant women could compound the stigma already faced by them and have a chilling effect on women’s utilisation of prevention of mother-to-child transmission programmes. Although criminal laws targeting HIV transmission have often been proposed and adopted with the intent of protecting women, such laws may disadvantage women instead. Criminal laws on HIV transmission and exposure should be reviewed and revised to ensure that vertical transmission is explicitly excluded as an object of criminal prosecution. Scaling up PMTCT services and ensuring that they are affordable, accessible, welcoming and of good quality is the most effective strategy for reducing vertical transmission of HIV and should be the primary strategy in all countries.
Governance, by which I mean the management of the course of events in a system, is an overarching issue of concern to health from an ecological point of view. Governance consists largely in the policing social relations, environmental conditions and the allocation of resources essential to well-being. Who decides, and how they decide, are key drivers of substantive policy. Moreover, there is at least some epidemiological evidence that the ability of people to participate in the governance of their communities is in itself significant for health. This paper offers an emerging theory of "nodal governance" to describe the management of events in social systems. The use of this theory in mapping, assessing and then productively "destabilizing" these systems is discussed, with particular attention to the extent to which promoting "microgovernance" institutions is a plausible strategy for improving population health. Nodal governance focuses attention on how governance happens - how power is wielded - at specific points within a system, and thus raises essential normative questions about democratic decision making. But the theory, with its obvious intellectual debts to network theory, systems theory and the work of Hayek, also seems to imply a challenge to the sort of thinking about regulation and law often encapsulated in the idea of the "risk society." In the final section of the paper I conclude with some speculations about new, constitutive paradigms for social governance.
In recent years, `state-centered' LGBT (lesbian, gay, bisexual, and transgendered) health advocacy has emerged as a distinctive form of health activism in the United States. These advocates seek the inclusion of lesbians, gay men, bisexuals, and transgendered persons as subjects and objects of biomedical research. Much of their attention has focused on changing the policies, practices, and priorities of agencies of the US Department of Health and Human Services, including the National Institutes of Health. This emphasis has developed out of the convergence of two trajectories: the histories of specific activist movements that show an increasing willingness to engage directly with the state; and the adoption by the state of a `policy paradigm' for including `special populations' within the concerns of federal health agencies. The impact of state-centered LGBT health advocacy can be traced in a number of specific domains. However, the partial successes of these efforts raise troubling questions about the medicalization of LGBT identities and the limitations of biomedical citizenship.
On 26 March 2007, a group of human rights experts launched the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (the Yogyakarta Principles). The Principles are intended as a coherent and comprehensive identification of the obligation of States to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity. Since their launch the Principles have attracted considerable attention on the part of States, United Nations actors and civil society. It is likely that they will play a significant role within advocacy efforts and, whether directly or otherwise, in normative and jurisprudential development. The present article constitutes the first published critical commentary on the Principles. It seeks to situate them within the contexts of (a) the actual situation of people of diverse sexual orientations and gender identities, and (b) the applicable international human rights law as it stands today. Thus situated, the Yogyakarta drafting process and the outcome text are examined. The final section of the article comprises a preliminary review of the impact and dissemination of the Principles.
This report contributes to the development of an evidence-informed approach to using the criminal law to address the risk of the sexual transmission of HIV in the province of Ontario, Canada. In recent years, the application of criminal law powers to circumstances of HIV exposure in sexual relations has emerged as a key HIV-related policy issue. In Ontario, people living with HIV/AIDS (PHAs), AIDS Service Organizations (ASOs), human rights advocates and others have raised concerns about the expansive use of the criminal law in addressing HIV-related sexual offences. They have raised questions about fairness in the application of the criminal law and about its negative consequences for PHAs and established public health and community-based HIV prevention strategies. This report is rooted in these concerns. It responds to them in two ways. First, it explores various forms of evidence relevant to a thorough policy consideration of the use of the criminal law in circumstances of sexual exposure to HIV. Second, it proposes policy options for addressing the problems posed by the criminalization of HIV non-disclosure in Ontario.This report emphasizes that uncertainty in the criminal law formulation of the obligation to disclose HIV-positive status is foundational to current problems in the use of the criminal law to regulate the risk of the sexual transmission of HIV in Ontario. It further emphasizes policy issues and problems arising at the nexus of science and criminal justice, in particular, those posed by the inconsistent use of complex scientific research by courts in deciding cases of alleged HIV non-disclosure. Finally, the report underscores that the criminalization of HIV non-disclosure hinders established HIV prevention efforts and contributes to HIV-related stigma.The report recommends that the Ontario Ministry of the Attorney General establish a consultation process to inform the development of policy and a practice memorandum regarding cases involving allegations of non-disclosure of sexually transmitted infections, including HIV.