Does criminalisation victimise victims?

Last updated on: 24 April 2012

In many countries around the world, blame for the HIV epidemic is often assigned to communities disproportionately affected by HIV. These communities tend to be visible and powerless and include:

  • women in settings where they have little legal status
  • members of the LGBTI (lesbian, gay, bisexual, transgender and intersex) community and MSM (men who have sex with men)
  • people who sell sex for money
  • people who use drugs
  • racial and ethnic minorities
  • and immigrants.

Similarly, the burden of criminalisation falls disproportionately upon these already marginalised communities, and this can result in a vicious circle of stigma and blame, often exaggerated by sensationalist media reporting.

The stigma and blame that drives the criminalisation of people living with HIV is best exemplified by recent prosecutions for spitting and biting.

Not a single case of HIV transmission has ever been recorded via saliva (see this analysis of the case of Willie Campbell, an HIV-positive homeless man jailed for 35 years for spitting on a police officer for more details) and yet in the past year, three HIV-positive people have been tried (and two sent to prison) in the United States for spitting, all of whom were already part of a stigmatised section of society, as well as being HIV-positive status.

Although there have been several case reports of HIV transmission via a bite, these are extremely rare and would require fresh blood in the saliva of the HIV-positive person as well as an extremely high viral load. Yet, in the UK in April 2008, “an asylum seeker believed [italics added] to have HIV was jailed for two months… for biting a police officer.” (i)

Does criminalisation help or hurt women?

Since 2005, Western and Central Africa has witnessed an explosion of national HIV-specific criminal exposure and transmission laws that threaten to make it one of the most legislated regions in the world for HIV. So far, Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone have passed laws in rapid succession and more Western, Central and Southern African countries are proposing similar laws, including Angola, the Democratic Republic of Congo, Malawi, Madagascar, Tanzania and Uganda. (ii)

Most of these laws are based on the African Model Law, created in September 2004 during a workshop by Action for West Africa Region– HIV/AIDS (AWARE–HIV/AIDS), in N’djamena, Chad.

The model law comes in the guise of human rights legislation in order “to protect those who are infected and exposed to HIV,” however it contains a number of problematic provisions, such as the requirement that someone newly diagnosed with HIV must disclose their status to a “spouse or regular sexual partner” as soon as possible and at most within six weeks of the diagnosis; mandatory HIV testing during antenatal care, following a rape charge, and “to solve a matrimonial conflict”; and, of greatest concern, the extremely vague offence of “wilful transmission” defined as transmission of HIV “through any means by a person with full knowledge of his/her HIV/AIDS status to another person” including via sex, needle-sharing, and mother-to-child transmission. (iii)

Yet, the model law is entirely unclear what kind of behaviour may be prosecuted, and does not mention mitigating circumstances. For example, women are often blamed for “bringing HIV home” and consequently often feel unable to disclose their HIV status to their male partners due to a very real fear of physical harm and eviction. In addition, due to power imbalances within relationships most women are unable to practise safer sex, since condoms are a male-controlled prevention method. (iv)

These new laws claim to protect women – who have few legal or human rights in many African nations – but 61% of HIV-positive individuals in sub-Saharan Africa are women and women are the often the first person in a couple to know their HIV status, due to antenatal screening. Under these circumstances, and given that women tend to have less access to legal mechanisms then men, it is likely that women will be more vulnerable to prosecution.

African Immigrant Damnation Syndrome

Some of the highest profile cases of criminal HIV exposure or transmission in the global North have involved African immigrants, including the first three cases in England & Wales. (v)

In a 2005 position paper on the criminalisation of HIV transmission (vi), the UK’s African HIV Policy Network highlighted that “the spectre and reality of institutional and state racism is nowhere greater evidenced than in the area of criminal justice,” and went to note that “migrants and ethnic minorities are disproportionately prosecuted for HIV transmission and exposure throughout a range of European countries.”

This was further explored in the context of a 1993 Canadian criminal HIV transmission trial by James Miller in his article, African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga. Miller noted that this case revealed “the revival of nineteenth-century racist and heterosexist discourses in the war on AIDS in the late twentieth century.” (vii)

Although there are generally few reliable data on the ethnicity or place of birth of individuals prosecuted for HIV exposure or transmission, Canada is an exception, since all of the media reports of the 17 cases that have gone to court in the past year have included details of the defendant’s ethnic origin. Using Canada as an example of a low prevalence country with a visible migrant population, it is, therefore, possible to assess whether African migrants appear to be disproportionately prosecuted.

According to the latest data from the Public Health Agency of Canada (viii), an estimated 58,000 Canadians were living with HIV at the end of 2005, of whom around 43,000 were actually diagnosed. It was also estimated that about 12% were individuals infected with HIV in a high prevalence country (either in sub-Saharan Africa or the Caribbean). Yet only 2% of Canada’s population were born in high prevalence countries.

Although they make up only 2% of the Canadian population, and 12% of the Canadian HIV-positive population, migrants from high prevalence countries (Uganda, Sudan, Zambia, Zimbabwe, DR Congo, Ethiopia, and Trinidad) made up almost half of all criminal sexual HIV prosecutions in Canada in the past 12 months.

The Public Health Agency of Canada points out that migrants from these communities “are disproportionately affected by many social, economic, and behavioural factors that not only increase their vulnerability to HIV infection but also act as barriers to accessing prevention, screening, and treatment programs… Stigma, the isolation of HIV-positive individuals, and cultural and linguistic barriers to treatment were also identified as particularly critical issues…” (ix)

In addition, Public Health Agency of Canada provides data to show that the majority of sexual HIV transmission that occurs in Canada takes place via sex between men (45%). And yet, out of the 17 reported cases in the past year, only three involved sex between men. This strongly suggests that not only are African migrants disproportionately being prosecuted, but also that heterosexual transmission (all of the African migrants were men prosecuted for sex with women) warrants disproportionately more attention from the criminal justice system than HIV transmission between men.

Adding insult to injury?

In 86 member states of the UN, consensual same-sex acts among adults remain illegal. (x) This already significantly hampers HIV prevention work. For example, in February 2008, ten men, some of whom are HIV education and prevention workers, were arrested in Senegal based on their sexual orientation. India also criminalises sex between men, and this, says UNAIDS’ executive director, Piot Piot, is a "major obstacle" for HIV prevention efforts. (xi)

The criminalisation of HIV exposure and transmission appears to make men who have sex with men, and members of the LGBTI community, who are an already criminalised and marginalised group in many countries in the world, and who are often blamed for the HIV epidemic, especially vulnerable to prosecution.

In Singapore, a gay HIV-positive man was sentenced to a year in prison for engaging in oral sex in a public toilet. He was the first person to be prosecuted under a 1992 law for "engaging in oral sex…without informing him of the risks". If, as one might imagine given the situation (an encounter in a public toilet between a younger and older man) that the HIV-positive man was the man doing the sucking (i.e. the receptive partner), then, in fact, there was no risk of HIV exposure. The extremely low risk of HIV transmission via oral sex is only there for the receptive partner, and is based primarily on the viral load of the HIV-positive person and the oral health of the receptive partner (xii).

Singapore is in the process of enacting a new, more draconian law that will criminalise all unprotected sex. “Enforcement would depend on an ‘aggrieved’ [inverted commas added] partner filing a complaint and prosecutors proving that a defendant had a history of high-risk sexual behavior.” (xiii) Given the prosecution above, it seems a distinct possibility that criminal prosecutions under this new law may be motivated as much by homophobia as by the conviction that unsafe sex warrants such a response, and even more likely that gay men will be subject to blackmail.

Worse still the fate of HIV-positive MSM in Egypt. In October 2007, Cairo police arrested two men for having a street altercation. One man told the police he was HIV-positive. The police then opened an investigation for homosexual conduct, beating the men in the process and subjecting them to forcible anal examinations to ‘prove’ they were homosexual. The police also forced the men to inform on their friends and past sexual partners who were given mandatory HIV antibody tests. By May 2008, twelve men had been arrested and nine found guilty of "habitual practice of debauchery", Egypt’s sodomy law. Since the men’s HIV status was used as a surrogate marker of ‘criminal’ activity, being HIV-positive itself appears to be criminalised in Egypt.

i The Sun. ‘HIV man’ jailed for biting cop. 23rd April 2008

ii Pearshouse R et al. Legislation contagion: the spread of problematic new HIV laws in Africa. 17th International AIDS Conference, Mexico City, abstract WEAE0101, 2008.

iv Clayton M et al. Criminalising HIV transmission: is this what women really need? 17th International AIDS Conference, Mexico City, abstract WEAE0102, 2008.

v Carter M. Criminalisation of HIV transmission in the UK: how did we get here and where to now?, April 07, 2006.

vii Miller J. African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga. Sexuality Research and Social Policy 2 (2): 31–50, 2005.

viii Public Health Agency of Canada. HIV/AIDS Epi Updates, November 2007, Surveillance and Risk Assessment Division, Centre for Infectious Disease Prevention and Control, Public Health Agency of Canada, 2007.

ix Public Health Agency of Canada, ibid.

x Khan S. Adding insult to injury: Making it worse Implications of criminalisation of HIV for MSM. 17th International AIDS Conference, Mexico City, 2008.

xiii Bennett S. HIV Ignorance Is No Defense in Singapore Plan to Curb Risky Sex. Bloomberg, February 12, 2008.



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