The November 2009 issue of Reproductive Health Matters, published by Elsevier, examines the law and criminalisation of HIV/AIDS, reproduction and sexuality. The papers look at criminalisation in relation to a range of global issues: rape and sexual violence; female genital mutilation; selling and buying sex; provision and use of modern contraception and induced abortion; homosexuality, and HIV transmission. The editor, Marge Berer, points out that some of the laws concerned serve as a statement of moral condemnation in response to a behaviour that is considered wrong or a violation of human rights. Others aim to protect health and prevent harm.
One of the most controversial groups of laws are HIV-specific laws developed in recent years in a growing number of African countries that both protect the rights of HIV-positive people and criminalize HIV transmission and exposure. At the same time, particularly in Europe and North America, such laws, which have been in place for up to a decade, are increasingly being used to prosecute people for transmitting HIV or exposing others to HIV infection.
All the articles on criminalisation of HIV published in this issue of Reproductive Health Matters examine these legislative responses and contain a wealth of counter-arguments.
According to Jurgens et al., applying criminal law to HIV exposure or transmission does not reduce the spread of HIV; it undermines HIV prevention efforts and promotes fear and stigma. Laws criminalising HIV exposure and transmission are often poorly drafted and applied unfairly, selectively and ineffectively. By passing ill-conceived laws, legislators ignore the real challenges of HIV prevention. Instead, efforts to promote HIV prevention and treatment should be redoubled.
On the other hand, in Africa, especially in conflict and crisis settings, criminalisation of HIV transmission and exposure has found support from women's groups who argue that it might protect women and girls from being infected through widespread sexual violence which is being carried out with impunity, and by unfaithful partners and/or by partners who do not reveal their HIV status to them. However, because many more women in Africa are tested for HIV than men, it is possible that women are also more likely to be subject to prosecution than men.
Certainly, laws against sexual violence need to be implemented far more efficaciously, in every country. And laws against female genital mutilation, although few people have been prosecuted under them, seem to be changing perceptions and helping to convince people alongside public education efforts, not to mutilate their daughters.
The editor concludes that the question of the efficacy - and particularly of justice in relation to the criminalisation of the kinds of behaviours covered in these papers - must be answered quite differently in relation to each practice.
