by Dr Richard Amenyah
Ending inequalities and repealing harmful laws that criminalise HIV transmission and exposure are essential to the goal of ending AIDS as a public health threat by 2030. The evidence is clear, overwhelming, and undeniable: ending unjust criminalization is good for public health and enjoyment of human rights.
The Government of Belize must therefore be commended for demonstrating the bold political stewardship required in this regard. The repeal of sections 46A (1), (2) and 73A (1), (2), (3) of the Criminal Code Cap 101, of the 2020 Revision of Laws, which criminalized the non-disclosure, exposure, and transmission of HIV, including transmission of HIV from mother to child, by the Parliament is a step in the right direction.
Minister of Human Development, Dolores Balderamos-Garcia, together with the Minister of Health, Кеvіn Веrnаrd, who jointly presented the Bill pointed to the conflicts it poses with human rights norms. Minister Balderamos-Garcia acknowledged that the law impedes public health goals, including the elimination of mother to child transmission of HIV for which Belize is currently being validated by the PAHO/WHO. This is the type of bold political leadership UNAIDS is calling for from governments to end inequalities and eliminate discriminatory laws which impede our public health efforts to end AIDS as a public health threat in the Caribbean.
Ending AIDS requires equal, equitable and safe access to services for HIV prevention, testing and treatment. It is every government’s obligation to ensure their citizens realize the right to the highest attainable standard of physical and mental health, including non-discrimination, privacy, autonomy, dignity, freedom of expression, freedom from arbitrary detention, and ultimately the right to life, among others. Achieving this goal requires bold political leadership to adequately invest in rights-based programs which are designed and implemented in collaboration with the populations and communities most affected.
As Міnіѕtеr оf Неаlth, Кеvіn Веrnаrd profoundly stated “Рunіtіvе lаwѕ аrе nоt thе mоѕt еffесtіvе wау tо соmbаt thіѕ еріdеmіс. Тhеу саn, іn fасt, роѕе ѕіgnіfісаnt bаrrіеrѕ tо НІV рrеvеntіоn, trеаtmеnt, аnd саrе. Ву сrіmіnаlіzіng thе trаnѕmіѕѕіоn оf НІV/АІDЅ, wе run thе rіѕk оf drіvіng thе dіѕеаѕе undеrgrоund, dіѕсоurаgіng thоѕе аt rіѕk frоm ѕееkіng tеѕtіng, соunѕеlіng, аnd trеаtmеnt fоr fеаr оf lеgаl rерrіѕаl […] Wе ѕhоuld fосuѕ оur еffоrtѕ оn еduсаtіоn, рrеvеntіоn, саrе, аnd ѕuрроrt rаthеr thаn рunіѕhmеnt.”
Globally, there are 143 countries which criminalize or otherwise prosecute on general criminal laws HIV exposure, non-disclosure, or transmission. Five of them are based in the Caribbean. A total of 82 countries has HIV-specific criminal laws in place, of which fourteen are in Latin America and the Caribbean. HIV criminalization compounds gender inequality: women living with HIV may face prosecution for alleged HIV non-disclosure even in circumstances where disclosure or taking prevention precautions were not realistic options, while also contributing to increased violence against women living with HIV. Punitive laws criminalizing HIV transmission, exposure, and non-disclosure can have a detrimental impact on HIV prevention and treatment efforts.
The human cost of such laws is enormous as they lead to adverse consequences for public health and human rights. These laws directly or indirectly fuel hate, violence, stigma, discrimination, and strikes fear among people living with HIV. They drive people at high risk of HIV and those living with HIV underground and thereby discourage people from early testing for HIV, seeking treatment, or even disclosing their HIV status to sexual partners.
Ending AIDS as a public health threat by 2030 requires strong public health action grounded in evidence and human rights. Public health approaches emphasize the importance of voluntary testing, early diagnosis, and comprehensive care, rather than criminalization.
Criminalizing HIV transmission, exposure, and non-disclosure is harmful as it violates human rights principles and marginalizes vulnerable populations and people living with HIV. Criminalization discourages individuals from engaging in open and honest conversations about their sexual health, including disclosure of their HIV status, and risk reduction options. This lack of communication undermines the ability to negotiate safer sex practices and increases the risk of HIV transmission.
UNAIDS is calling for Caribbean Governments that still have punitive and discriminatory laws and policies to repeal them. We encourage countries that are contemplating the promulgation of criminal laws to consider the constitutional mandates of dignity, equality, liberty, freedom of expression and non-discrimination and to interrogate the potential harm of these laws to its citizens.
The science around HIV is complex as the virus has varying transmission risks depending on several factors such as viral strain/sub-types, viral load, use of preventive measures, and other individual and contextual factors in determining the actual risks of HIV transmission. There is an expert consensus statement on the science of HIV in the context of criminal law based on a detailed analysis of the best available scientific and medical research data on HIV transmission, treatment effectiveness and forensic phylogenetic evidence (which when used alone cannot prove beyond reasonable doubt that one person infected another although it can be used to exonerate a defendant). Evidence-based public health strategies, such as comprehensive sex education, access to condoms, and support for harm reduction practices, have proven to be more effective in preventing HIV transmission and should be the basis for the HIV response rather than criminalization. There is also evidence that HIV patients who are virally suppressed have extremely low or negligible risk of transmission. Laws that do not consider these factors often lead to unjust prosecutions and fail to prioritize evidence-based approaches to HIV prevention and care.
The UNAIDS 2023 Global AIDS Update clearly identifies the pathway to ending AIDS as a political choice. It is therefore imperative for our leaders to deliver on their promise made in 2021 in the Political Declaration to end AIDS. Laws can be a force for good but when they discriminate and punish the vulnerable and most at risk groups then these laws are simply harming public health and limiting the right to health.
All countries have obligations for respecting, protecting, and fulfilling the human rights of their citizens. Governments in the Caribbean have signed onto international human rights instruments, conventions, and covenants that are aligned with the Universal Declaration of Human Rights which emphasize the right to privacy, non-discrimination, and access to healthcare. These agreements recognize the importance of upholding human rights, including the rights of individuals living with or at risk of HIV. Criminalizing HIV transmission, exposure, and non-disclosure violates these obligations and perpetuates stigma and discrimination. By decriminalizing HIV, the Caribbean can take a significant step toward reducing stigma and discrimination, enabling more people to access essential HIV prevention, treatment, care, and support services available.
Dr. Richard Amenyah is a medical doctor from Ghana and public health specialist. He is the director for the UNAIDS multi-country office in the Caribbean. You can reach him on Twitter at @RichardAmenyah or @UNAIDSCaribbean and [email protected]
