August 6, 2008, Mexico City—Laws that criminalize HIV transmission and exposure tend to be posited as protective devices to achieve justice, but often women experience more violence than protection as a result of criminalization, a panel this morning asserted. The panel entitled, "To Transmit of Not to Transmit: Is that really the question?" emphasized that criminalization has no preventative effects and instead serves to further stigmatize people living with HIV and discourage people from disclosing their status.
The panel offered several similar perspectives. Michaela Clayton of the AIDS and Rights Alliance of Southern Africa relayed testimony of women who had experienced beatings by their partner after their status became known. Julian Hows of the Terrance Higgins Trust commented that "laws are being made more putative without any evidence", and commented on a few "absurdities" that have appeared in various laws, for example, when prosecution is pursued only if the newly infected person dies, or statutes that allow children to file complaints against mothers who passed along the infection at birth.
When asked what an ideal law to deal with HIV transmission would be, Clayton said that there that there is no need for specific laws for HIV because there are other laws to address the instances where prosecution should occur, for example in cases of rape.
"The law is a very blunt tool," Mike Kennedy of Victorian AIDS Council/Gay Men's Health Centre added, agreeing that criminalization of HIV transmission laws do not prevent transmission as is often intended; instead they create more danger for people living with and at risk of contracting HIV.
In a 2006 report, "Life Doesn't Wait: Romania's Failure to Protect and Support Children and Youth Living with HIV," Human Rights Watch discussed the human rights implications of criminalization laws:
The criminalization of transmission of HIV as a discrete criminal offence creates both practical barriers to combating the transmission of HIV and obstacles for those living with HIV in accessing and enjoying basic rights such as health services. First, there are practical limitations to the application of the law, because a significant percentage of those living with HIV are unaware of their HIV status. There is also the difficulty - if not impossibility - of proving HIV transmission due to a specific, or series, of potential exposures. Furthermore, the existence of HIV transmission criminalization laws may impede efforts to promote disclosure to children and youth of their HIV-positive status or voluntary HIV testing, to reduce stigma and prevent discrimination, and to provide broader legal protection for individuals living with HIV. Finally, the law is likely to have a greater impact on girls and female youth than on boys and males.
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