Introduction

This chapter provides a brief explanation of the different kinds of laws used to criminalise non-disclosure and/or the potential or actual exposure or transmission of HIV from one person to another. This is followed by a history of the criminalisation of HIV exposure and transmission, highlighting significant milestones in laws, prosecutions and convictions around the world.

Contents include:

• examples of criminal laws that apply to non-disclosure of HIV-positive status and/or potential or actual HIV exposure or transmission

• the impact of misconceptions and irrational fears in the early years of the AIDS epidemic

• the myth of the ‘intentional HIV transmitter’

• the impact of efforts to criminalise HIV exposure and transmission in the United States

• the rise of prosecutions in high-income countries

• the recent proliferation of HIV-specific laws in Africa

• the growing opposition to ‘criminalisation’.

Obtaining accurate information about laws and prosecutions relating to HIV exposure and transmission can be challenging, even for local civil society organisations working within their country. It is particularly difficult to discern how issues relating to the criminalisation of potential or actual HIV exposure or transmission have been addressed in countries in which such information is not freely available.

Tracing the history of such criminalisation is thus problematic. Much of what is known about individual cases, and even some of the laws themselves, comes from media reports which are selective at best and inaccurate at worst. Given the lack of formal mechanisms to identify, report and record HIV-related prosecutions, it is not possible to definitively determine the true number of arrests and prosecutions – or even HIV-specific criminal laws – for every country in the world.

The first systematic efforts to monitor prosecutions outside a single country took place in 2005 when the Global Network of People Living with HIV (GNP+), working in partnership with Terrence Higgins Trust (THT), published the results of a rapid scan of laws and prosecutions in Europe.¹ Since 2007, global monitoring and reporting of individual arrests, prosecutions, newly proposed HIV-specific criminal laws and civil society responses has been archived in the author’s blog Criminal HIV Transmission (www.criminalhivtransmission.blogspot.com). In 2008, the Global Criminalisation Scan website (www.gnpplus.net/criminalisation) was launched to document HIV-related criminal laws and prosecutions worldwide. The website provides updated information as it becomes awailable. GNP+ recently published a report based on its findings to date.²