No justice, no peace for people living with HIV: a global analysis of HIV-related criminal cases, 2019-21

BACKGROUND: At least 149 countries have laws that can be used to prosecute people living with HIV for HIV non-disclosure, exposure or transmission, including 75 countries with HIV-specific criminal laws, despite UN and others recommending against such laws, global guidance to limit the overly broad use of other laws, and no evidence of such laws or prosecutions benefiting public health.
METHODS: The HIV Justice Network''s Global HIV Criminalisation Database contains case reports of HIV-related criminal cases and criminal laws that target people living with HIV. We undertook a global audit of HIV-related arrests and prosecutions reported between January 2019 and December 2021 to establish whether they adhered to global recommendations and guidance and up-to-date knowledge of HIV-related science.

RESULTS: We identified 250 HIV-related arrests and prosecutions with an additional 65 cases where HIV status was treated as an aggravating factor for sentencing or other offences. The majority of cases concerned non-disclosure of HIV status prior to consensual sexual activity with fewer than 30% of cases alleging HIV transmission. A minority of cases concerned spitting, biting, breastfeeding, blood donation, or medical negligence.
Arrests and prosecutions of HIV-related offences often proceed on inaccurate assumptions regarding HIV. In alleged transmission cases, these shortfalls are compounded by the failure of prosecutors and the courts to ensure correct interpretation of scientific evidence and its forensic limitations when seeking to prove actual transmission of HIV. Sentencing is disproportionate, particularly in cases where there is little to no risk of HIV transmission, with non-custodial sentencing options rarely considered.
Courts are timidly acknowledging some scientific advances but remain largely hesitant to depart from previous judicial decisions that do not recognise these advances. In a few isolated cases, prosecutors are concluding that the requisite evidentiary standard for the relevant offence is not met where the accused has an undetectable viral load or has used a condom during sexual intercourse.
CONCLUSIONS: Prosecutors and courts continue to ignore scientific developments on HIV-related risk, harms, and proof of transmission. Legislative reform efforts must be complemented by sustained judicial and prosecutorial training and effective implementation of the 2021 UNDP Guidance for prosecutors on HIV-related criminal cases.

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