Expert Consensus Statement States Use of Criminal Law for HIV is Unscientific: Reform Punitive Laws Now!

By Stephen Leonelli, Senior Policy Advisor at MPact

The most recent publication from UNAIDS finds that 47% of new HIV infections were attributed to key populations, including gay men and other men who have sex with men. The newly released expert consensus statement will help our movements to advocate for the reform and repeal of punitive laws that affect the lives of key populations.

You can view the official AIDS2018 press conference for the release of the expert consensus statement here.

Amid all the buzz at AIDS2018, I was fortunate to attend many interesting, informative, and inspiring sessions in Amsterdam. These ranged from an all trans people of color opening plenary at IRGT’s Trans Action Building Bridges to Safety pre-conference; to a debate chaired by UNDP regarding whether or not the 2030 Agenda for sustainable development will fail the HIV response; to all of the opposition to the International AIDS Conference coming to the Bay Area in two years, and why we need an AIDS2020 for all.

While all the above and more have implications for the work of our collective movements going forward, the newly released expert consensus statement on the science of HIV in the context of criminal law struck me as a major announcement from AIDS2018 that is relevant for key populations and all those who suffer from punitive laws and stigmatizing policies. Co-authored by 20 of the world’s leading HIV scientists to describe current evidence on HIV transmission, treatment effectiveness, and forensics, the statement makes clear the nuances in HIV-related science that are necessary for prosecutors, defense attorneys, and communities to understand in cases of HIV criminalization. A FAQ about the consensus statement is available here.

According to the latest analysis conducted by HIV Justice Network, there are 100 jurisdictions in 73 countries that currently have overly broad or vague HIV-specific criminal laws, and at least 115 jurisdictions in 76 countries have ever unjustly applied HIV-specific or general criminal laws to prosecute various forms of HIV non-disclosure, exposure, and transmission. The majority of these cases occurred in the USA, Belarus, Russia, Ukraine, Canada, and Zimbabwe.

These laws and the media attention they attract severely undermine the HIV response by sensationalizing HIV and spreading factually false information—i.e., that an HIV diagnosis is a death sentence, that any person living with HIV (regardless of viral load) will transmit the virus, that intent to cause harm exists by simply engaging in condomless sex for people living with HIV. The fear of criminal prosecution of HIV may deter people from disclosing their status, or even getting tested in the first place. We also know that the criminalization of HIV serves as a proxy for State-sponsored homophobia, transphobia, and racism in many places around the world, including in the United States of America.

The consensus statement is therefore a major advancement because it powerfully articulates the science behind possibility of transmission, factors influencing transmission, and the complexity of establishing proof of HIV transmission. Many of the HIV criminalization cases brought forward are related to perceived risk of HIV acquisition associated with sexual activity, biting, and spitting, despite the fact that the possibility of HIV transmission during a single episode of sex, biting or spitting ranges from no possibility to low possibility and that it is biologically implausible for transmission to occur in instances of biting and spitting.

Secondly, adherence to antiretroviral therapy (ART) results in a suppressed viral load that is undetectable, making transmission of HIV virtually impossible. This means that in certain instances, people living with HIV who have an undetectable viral load are biologically unable to transmit the virus, yet they are still being criminally prosecuted for the perceived risk that they will.

Finally, the statement sheds light on the ways that phylogenetic analysis can be used as a forensic tool to exonerate a defendant (i.e., indicate that the complainant did not acquire HIV from the defendant), but cannot conclusively prove a claim that a defendant has infected a complainant. This is essential HIV science that must be understood to avoid miscarriages of justice and the overt stigmatization and discrimination against people living with HIV.

Gay men and other men who have sex with men, people who use drugs, sex workers, transgender people, prisoners, and migrants are termed “key populations” due to the fact that individuals who possess one or more of these identities suffer from punitive laws, stigmatizing policies, and widespread discrimination and violence in society. HIV criminalization laws further add barriers for key populations living with HIV by increasing fear and heightening the possibility of longer or harsher sentences.

Several tools have been developed to understand the applicability of international human rights law to key populations; the Yogyakarta Principles and the revised YP+10 specifically illuminate the rights and needs of LGBTI people (click here for further analysis). As key population and LGBTI advocates continue to utilize international and domestic law to defend, protect, and promote rights, the expert consensus statement released at AIDS2018 will offer new guidance and insight to the issue of criminalization of HIV non-disclosure, exposure, and transmission.

About MPact

MPact Global Action for Gay Men’s Health and Rights (formerly known as MSMGF or The Global Forum on MSM & HIV) was founded in 2006 by a group of activists concerned about the disproportionate HIV disease burden shouldered by men who have sex with men. MPact works at the intersection of sexual health and human rights, and is linked to more than 120 community-based organizations in 62 countries who are leading innovative solutions to the challenges faced by gay and bisexual men around the world.