Avoid Using Criminal Law for HIV, Says New UNAIDS Report
July 10, 2002
-- Countries should generally refrain from using criminal law to deal with conduct that carries the risk of HIV transmission, according to a new report released today by the Joint United Nations Programme on HIV/AIDS (UNAIDS). Instead, they should use public health laws accompanied by appropriate safeguards for human and civil rights.
The Criminal Law, Public Health and HIV Transmission report calls for considered, reasoned approaches by law-makers in using criminal law to prevent HIV transmission. It also stresses that any legal response to HIV must be informed by, and consistent with, international human rights principles.
"There have been numerous cases in which people living with HIV have been criminally charged for conduct risking the transmission of the virus," said Marika Fahlen, Director of Social Mobilization and Information at UNAIDS, launching the report. "But we must be careful to avoid over-reacting based on misinformation and prejudice, and must not resort too quickly to criminal prosecutions. Such situations can lead to a miscarriage of justice and promote stigma and discrimination.
The report urges policy makers to consider the potential negative impact of criminalization on HIV/AIDS interventions. For example, branding a behaviour criminal can contribute to the belief that people living with HIV/AIDS are "potential criminals" and are a threat to the "general public". This, in turn, can deter people from getting tested, thereby hindering prevention and care efforts.
According to the report, criminalization could be counter-productive and could undermine public health messages to reduce or avoid activities and behaviour that increase the risk of infection. "Criminalization may also create a false sense of security among people who are not infected," said Ms Fahlen. "If there is a criminal prohibition against HIV-positive people, people who are not infected may mistakenly think that this reduces the risk, and that they are protected, if not by behaviour, then by a legal framework." Since HIV transmission in many cases happens when people do not know they are infected, a criminal prohibition will be irrelevant in most cases, Fahlen added.
Criminalizing the conduct of people living with AIDS could undermine people's confidence in counsellors and the health system if the information discussed with counsellors is not protected from search and seizure by police, or is used as evidence in court.
The report suggests that using properly-crafted public health laws as an alternative to criminal law can often better achieve public health goals. Public health laws can be more flexible, allowing health officials to intervene privately on a case-by-case basis. Factors underlying risky behaviour such as addiction, lack of information, poverty, or violence can often be addressed more effectively than would be the case when there is a criminal prosecution. Public health laws may also allow for a better balance between individual liberty and protecting the health of the general population, for example through ensuring that individuals who are HIV-positive receive adequate counselling and access to health care services.
By providing a range of recommendations -- from protection of privacy, to repealing laws that impede HIV prevention, to ensuring the right to counsel -- the authors of the report hope to make legislators aware of the need for sound public policy in this area, rather than legislating ill-considered laws that will be of little use in stemming the epidemic and could make matters worse.
The report, the first containing policy options on criminalization of this type of behaviour, was launched at the XIV International AIDS Conference, being held here from July 7-12. Also present at the launch were Richard Elliott, Director of Policy and Research for the Canadian HIV/AIDS Legal Network, and Justice Edwin Cameron, Judge of the Supreme Court of Appeal, South Africa.
For more information, please contact Anne Winter, UNAIDS, Barcelona, (+41 79) 213 4312 (mobile), Dominique De Santis, UNAIDS, Geneva, (+41 22) 791 4509 or Andrew Shih, UNAIDS, Barcelona, (+34) 639 812 332 (mobile). You may also visit the UNAIDS Home Page on the Internet for more information about the programme (www.unaids.org).
This article was provided by UNAIDS. Visit UNAIDS' website to find out more about their activities, publications and services.