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Devastating harms of criminalisation laid bare by UNAIDS advisory group

Hester Phillips

31 July 2023

Expert group calls for an end to “misguided and unjust criminalisation” that fuels HIV infections and threatens public health  

Mid adult woman shouting during a demonstration in the street
Photos are used for illustrative purposes. They do not imply health status or behaviour. Credit: iStock/ FG Trade

An advisory group to UNAIDS has released “overwhelming and undeniable” evidence on the harm that criminalisation is having on public health and the goal of ending AIDS by 2030.   

What is this story about? 

The UNAIDS Reference Group on HIV and Human Right was set up in 2002 to provide independent, expert advice to the global health body. In a recently released statement, the group has presented evidence on how criminalising certain groups, such as sex workers, gay and trans people and people who use drugs, is driving HIV infections and violating human rights

The group is calling for countries to take action. Unless this happens, it says the goal of ending AIDS by 2030 will not be reached. 

Why is this important? 

People at risk of HIV need effective access to HIV prevention, testing and treatment services to look after their health. But in many countries, people at the greatest risk of HIV are unable to get these services for fear of arrest, abuse or harassment.  

What does the statement say? 

UN member countries have committed to ending AIDS as a public threat by 2030, and abolishing laws, policies and practices that criminalise groups most affected by HIV. They have made these commitments through the Sustainable Development Goals, the 2021 UN Political Declaration on HIV and AIDS and the Global AIDS Strategy 2021–2026. But many countries are failing to meet these commitments, particularly on criminalisation.  

As of 2021: 

  • 70 countries criminalise consensual same-sex sexual activity 

  • at least 20 countries criminalise transgender people 

  • 153 criminalise some part of sex work 

  • 115 criminalise drug possession, including for personal use 

  • 82 countries have HIV-specific criminal laws. 

The report presents evidence from many studies that show a clear link between criminalisation and HIV.  

HIV prevalence  

HIV prevalence is higher among groups most at risk of HIV in countries where they are criminalised. For example, among gay and bisexual men, HIV prevalence is five times higher in countries that criminalise same-sex relations compared to those that don’t. And it is 12 times higher in countries where gay and bisexual men were prosecuted in the last year compared to countries where no prosecutions were made.  

Sex workers living in countries that criminalise sex work are also significantly more likely to have HIV than those in countries that partially legalise it. 

Criminalisation of drug use is linked with higher HIV prevalence among people who inject drugs.  

HIV testing and treatment  

In countries where groups most affected by HIV are criminalised, fewer people with HIV know their status and fewer people are virally suppressed. For example, HIV testing among gay and bisexual men is more than three times lower in countries where homosexuality is criminalised than in countries without them. By contrast, people in countries with laws against discrimination and gender-based violence are more likely to test for HIV. And they are more likely to be on treatment and virally suppressed if they have HIV.  

The link between criminalisation, stigma and discrimination  

The report shows a clear link between the legal status of groups most affected by HIV and the level of stigma and discrimination they experience. For example, transgender people are less likely to report stigma and discrimination in countries that allow gender recognition on identity documents. But in countries where transgender people experience high levels of stigma and discrimination in healthcare settings, many avoid HIV services. 

Stigma stops sex workers using HIV services in all countries. But this barrier is highest in countries where sex work is criminalised. 

People with HIV 

The report also shows the harmful impact of HIV criminalisation laws. Not only do these laws have little impact on reducing risky sexual behaviours, they contribute to misinformation and stigma about HIV. They also stop people testing for HIV. Women with HIV are particularly likely to face prosecution for alleged HIV non-disclosure, even when disclosure or HIV prevention was not realistically possible. 

What does this mean for HIV services? 

This statement and the evidence within it can be used to hold governments to account to meet their international commitments and respond to the evidence on decriminalisation. 

The UNAIDS Reference Group on HIV and Human Rights is calling on UN member countries to work with community-led organisations to “immediately repeal or reform” laws that criminalise the following things:  

  • consensual same-sex sexual conduct and the expression of gender identity 

  • sex work and related activities 

  • drug use and simple possession of drugs for personal use 

  • HIV transmission and non-disclosure.  

For more details on the call-to-action, see the statement itself. 

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