“HIV is a virus, not a crime"

In a plenary presentation at the 17th International AIDS Conference in 2008, South Africa’s Justice Cameron called for a global campaign against what had become known simply as ‘criminalisation’, declaring: “HIV is a virus, not a crime.”¹ Cameron characterised HIV exposure and transmission laws as ‘hostile’ to HIV prevention and treatment, and suggested that stigma both impelled such laws and was reinforced by them. “Prosecutions for HIV transmissions and exposure and the chilling content of the laws themselves reinforce the idea of HIV as a shameful, disgraceful, unworthy condition requiring isolation and ostracism”, he said.¹

Cameron’s speech was the vocalisation of a growing movement among HIV advocates, academics and civil society organisations. In a joint policy brief issued during the week of the conference, UNAIDS and the United Nations Development Programme advised governments to repeal existing laws and not to pass new HIV-specific criminal laws. The brief argued that a human-rights approach to HIV – as opposed to a retributive and coercive approach – would benefit public health. It noted that existing assault or homicide laws could still be used to prosecute “exceptional cases of intentional transmission”, which was defined as “wilful and knowing behaviour with the purpose of transmitting the virus”.²

Nevertheless, at least eight countries (Burkina Faso, Cape Verde, Chad, Democratic Republic of Congo, Equatorial Guinea, Mauritania, Singapore and Tanzania) enacted new laws criminalising HIV exposure and transmission in the months following the conference. Such laws are currently proposed or under discussion in many more countries or jurisdictions (including Cameroon, China, Comoros, Ecuador, Gambia, Ivory Coast, Liberia, Malawi, Mozambique, Uganda, Nebraska, New York and West Virginia in the United States, and Zambia). See the chapter: Details for further information.

A new model law has been developed for the Southern African Development Community (SADC; www.sadc.int), which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.³ It is hoped that this model law will support consistency and compliance with human rights law and commitments across domestic jurisdiction in southern Africa. The model law integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission. The model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008,⁴ has been received as "a giant step forward" by SADC judges.⁵

The overly broad criminalisation of HIV transmission and exposure in sub-Saharan Africa was also high on the agenda of a recent meeting of senior judges from more than 15 sub-Saharan African countries.⁶ At the meeting, participants further discussed the importance of the leadership role of the judiciary in upholding human rights for all, filing against bad laws, ensuring access to the courts for the most vulnerable and giving meaning to constitutional protection in people’s everyday lives. Justice Georgina T Wood, Chief Justice of Ghana, stressed that: “Judges have a key role to play in ensuring that the rights of people living with and vulnerable to HIV are upheld.”⁷