A/HRC/16/69
42.
The International HIV/AIDS Alliance noted with concern that, since 2005, 14 States
had adopted laws in sub-Saharan Africa that enabled the criminalization of HIV
transmission under many circumstances, without regard for the actual risk of transmission.
In Niger, one of the 14 States, the Association of Young Lawyers judged that this law was
the fruit of ill-informed fears among legislators and urged reform of the law. The Canadian
HIV/AIDS Legal Network reported “ever more expansive use of criminal law” in these
areas in Canada, even in cases where “significant risk” of transmission had not been
demonstrated. The Sex Workers Forum in Vienna asserted that even a person who did not
know that he or she was infected could be prosecuted in Austria for criminal negligence
related to HIV exposure. Both UNDP and the Government of Finland reported that
sensational reporting of criminal cases relating to transmission contributed to HIV-related
stigma and undermined the right to confidentiality.
43.
At the Geneva consultation, in response to a Member State query, a UNAIDS expert
emphasized again that new HIV-specific laws in this area were likely to contribute to
stigma and run counter to efforts to expand the uptake of HIV prevention and treatment,
and that the rare cases that merited prosecution should be handled by existing law. The
Governments of Brazil and of Sweden reported their decisions to use existing law for cases
of intentional transmission rather than to make an HIV-specific law. Brazil noted that there
was still a need to work with judicial officials to avert unnecessary criminal prosecutions.
Switzerland was in the process of modifying its penal code to restrict prosecutions to cases
where intentional transmission could be demonstrated. At the Geneva consultation, the
representative of Lebanon emphasized that some degree of decriminalization could go a
long way to improving access to HIV services for socially marginalized persons; laws that
criminalized drug use and addiction, sex work and homosexuality, which were major
barriers to the meaningful participation of affected persons and thus to effective HIV
responses, were, however, often politically difficult to revise or rescind.
III. Conclusions
44.
The information provided by Member States, non-governmental organizations
and United Nations bodies indicate that while there have been some positive
developments in protecting, respecting and fulfilling human rights in the context of
HIV and AIDS, many politically difficult challenges still have to be addressed. Even
though many gains have been made in access to HIV prevention, treatment, care and
support services, including treatment, many of the millions still lacking access or
dissuaded from taking up these services are still denied access because of
discrimination, stigma and criminalization.
45.
Commitments to prevent HIV-related discrimination are embodied in national
AIDS strategies and many national laws, but discrimination in many spheres remains
widespread. There are insufficient data from this exercise to know whether
Governments are investing significantly in the enforcement of laws prohibiting
discrimination based on HIV status. HIV-related stigma is amplified for many by the
stigma of being associated with a criminalized behaviour while also being considered a
“vector” of HIV transmission. These intersecting stigmas are deep-seated and have
resisted programmatic efforts in many places. Stigma-reduction programmes are
often not adequately funded or evaluated.
46.
Sex workers, people who use illicit drugs, transgender persons, men who have
sex with men, prisoners and former prisoners and migrants, among others, face
structural factors beyond their control that exacerbate their vulnerability to HIV
infection, including many associated with criminal law. Their right to meaningful
participation in HIV decision-making — which would allow them to bring to the
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