Writer and consultant specializing in HIV, Edwin Bernard, speaks at the 29th UNAIDS Programme Coordinating Board meeting in response to the presentation of the 2011 NGO Report on legal environments and HIV responses. Please visit Edwin’s blog: criminalhivtransmission.blogspot.com.
My name is Edwin Bernard, I am a gay man living with HIV from the United Kingdom.
As a community based journalist, blogger and policy consultant I have spent the past four years focusing almost exclusively on the criminalization of alleged HIV non-disclosure, exposure and transmission.
For the record, I would like to support the key findings, recommendations and conclusions of the NGO report.
In my experience, many people living with HIV and those most at risk of HIV – perhaps tens or hundreds of thousands, possible more – are negatively impacted by punitive laws, policies and practices in all Member States.
I will focus on the subject with which I am most familiar – HIV criminalization.
Prosecutions are taking place in many Member States either under outdated or overly-broad HIV-specific criminal statutes or by using a wide range of often inappropriate general criminal laws. Most criminal cases have been framed by prosecutors and the media as being especially egregious cases of ‘deliberate’ or ‘intentional’ HIV transmission when, in fact, the vast majority have involved neither malicious intent nor transmission. 
I am particularly concerned about
- Selective and arbitrary prosecutions
- Inappropriate and insensitive police investigations
- Stigmatizing media reporting, including naming and shaming people not yet found guilty of any crime; and
- A general lack of access to justice.
Although there have been relatively few prosecutions – less than 1000 that we know about, mostly in high-income countries – in approximately 40 countries around the world, both developed and developing, many MANY more people are indirectly impacted by HIV criminalization.
There is a growing body of evidence that such laws and prosecutions are having a negative impact on people living with HIV including:
- Confusion and fear over our rights and responsibilities under the law
- Disincentive to disclose HIV-positive status to sexual partners
- Disincentive to disclose HIV-related risk behaviours to healthcare professionals
- And in some Member States, there is an explicit restriction on the reproductive choices of people with HIV, leading to a negative impact on sexual and reproductive rights.
I am also very concerned about the broader collateral harm inherent in a criminal justice approach to HIV prevention.
Consistent with the NGO report, there is evidence of a negative public health impact in terms of:
- Misrepresenting and overstating HIV-related risks and harms adding to myths about HIV, including how HIV is transmitted and how best to protect oneself.
- Increasing HIV-related stigma which has a chilling effect on willingness to learn about, or discuss HIV.
- Creating a false sense that HIV is someone else’s problem when preventing HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.
- Providing a further incentive for people to avoid learning their HIV status. For example, a recent study from my own country, the United Kingdom found that 1-in-5 gay men who declined an HIV test cited fear of prosecution as one of the specific reasons for not testing.
I would like to end by congratulating everyone involved in the NGO report and asking that UNAIDS, its cosponsors and all Member States discuss and consider its key findings, recommendations and conclusions and act according to the 2006 international guidelines on HIV/AIDS and human rights and the goal of universal access to HIV prevention, testing, treatment, care and support.