Laws that reinforce HIV-related stigma and prejudice impede both HIV prevention efforts and access to treatment. They do so by making populations at particular risk of infection (including injecting drug users, men who have sex with men, migrants and sex workers) harder to reach, and by sustaining the social and economic exclusion of people living with HIV (PLHIV).
Despite strong empirical evidence to this effect, countries across the world persist in the enforcement of existing discriminatory and punitive laws, and in introducing new ones. Particularly egregious examples include the criminalisation of drug use, homosexuality and sex work, the failure to provide needle exchange programmes or safe injection sites for injecting drug users and the criminalisation of non-intentional HIV exposure and transmission (including, in some parts of Africa, of women who transmit HIV to their infant children).
There is also evidence of discrimination against PLHIV in employment and in access to healthcare, breaches of medical confidentiality, the imposition of travel and residence restrictions, and isolation of PLHIV in custodial settings, such as prisons and immigration detention centres.
None of these have been shown to contribute to reducing the spread of HIV, and some do, or have the potential to do, precisely the opposite. Where homosexuality is criminalised, men who have sex with men will not be frank about their sex lives with health workers, and may put female partners at risk by not taking precautions.
Where drug use is criminalised, and drug users marginalised, there may be less public support for, or incentive to provide, adequate harm-reduction measures, such as needle and syringe programmes, safe injection sites or substitution therapies.
Where it is a criminal offence to recklessly to expose someone the risk of HIV infection without first disclosing one's HIV-positive status, a partner may assume (wrongly) that non-disclosure means that the person is HIV negative; and where a person believes that he may have transmitted HIV, the fear of a prosecution may result in a failure to disclose after the event – thereby preventing the partner from accessing effective post-exposure prophylaxis (where this is available).
Where there is an absence of law that makes discrimination on grounds of HIV status unlawful, employers and service providers have no incentive to accommodate the particular needs of PLHIV, or to ensure that their rights to fair and equal treatment are respected.
Early on in the epidemic it was argued that an effective response to HIV/Aids would only be possible if it was grounded in respect for human rights. This argument has been given further impetus this year with a number of important initiatives and calls for action. In April, the UN special rapporteur for health issued a report calling for the decriminalisation of all consensual same-sex sexual activity, of sex work, and non-intentional transmission of, or exposure, to HIV.
In June, a global commission on HIV and law was established under the auspices of the United Nations development programme to gather evidence about the effects of discriminatory and punitive laws at regional hearings across the world. And in advance of this summer's international Aids conference in Vienna (the theme of which is "Rights here, right now"), a group of international experts has issued a declaration for the decriminalisation of drug users and the implementation and evaluation of a science-based public health approach to address the individual and community harms stemming from illicit drug use.
HIV/Aids is a global blight. According to UNAids, almost 60 million people have been infected with HIV since the beginning of the epidemic, and 25 million have died of HIV-related illness. In 2008 there were some 33 million people living with HIV, and almost 3 million new infections – of which nearly half a million were children born with the virus. Although there has been substantial progress in coverage, only 42% of PLHIV have access to treatment (38% of children in low- and middle-income countries). For every two people starting treatment, five are infected. It is estimated that 40% of PLHIV are unaware of their infection.
These statistics show why HIV/Aids continues to be a global health priority. It may reasonably be thought that the absolute priority of governments, faced with these figures, would be to recognise that HIV/Aids is a public health crisis rather than an opportunity to punish and marginalise.
There are many ways in which we can seek to evaluate the legitimacy of a legal provision. In the context of HIV/Aids I suggest that the following are the only questions we need to ask. First, does this law violate the fundamental human rights of PLHIV, of vulnerable populations, and those at particular risk of infection? Second, does it (or could it) have the effect of impeding efforts to limit the spread of the virus? If the answer to these questions is yes, it is a law that has no claim to our support. More than that, I would argue it is a law that is positively dangerous; not only to those most directly impacted by it, but to every single one of us. It is not only HIV that harms people – bad laws harm them too.
• Health and HIV is being held on Saturday 3 July (16.00-18.00) as part of Birkbeck's Law on Trial week
