Dr Richard Amenyah & Eltonette Anderson
Since HIV was discovered and the first cases of AIDS were reported in 1981, there have been ongoing discussions about the criminalisation of HIV transmission, exposure and non-disclosure and vulnerable populations most affected by HIV. It is no secret that people from marginalized groups who are living with or most affected by HIV are often criminalized and at risk of contracting HIV, as well as experience violence, stigma, and discrimination, which inevitably affect their access to healthcare. Criminalization undermines effective HIV prevention, treatment, care, and support as people might become fearful of being prosecuted. Such laws are unconstitutional, discriminatory, and a breach of equality.
The 2022 UNAIDS Global AIDS report ‘’In danger’’ reports that 134 countries impose punitive measures on HIV transmission, exposures, and non-disclosure of status and now 68 countries worldwide still criminalize consensual same-sex relations. There are 14 countries within Latin America and the Caribbean that have HIV-specific criminal laws. Criminalization of HIV flies in the face of human rights as it is discriminatory and limits access to health services. The human cost of such punitive policies on people living with HIV or key populations who are at substantial risk of HIV transmission is unimaginable. Data from a study conducted by Matthew Kavanagh et al in 2021, found the rates of viral suppression were 8.1% lower in countries that criminalize same-sex relations, 5.9% lower under sex work criminalization, and 14.5 % lower when drug use was criminalized. Criminal and punitive laws against key populations, such as sex workers, heighten vulnerability to HIV and undermine access to HIV prevention, testing, treatment, and care services. For example, in countries where there are laws that criminalize sex workers, they are seven times more likely to be living with HIV, than if it were to be partly legalized. The Global AIDS Strategy expressly recognizes that decriminalization is a societal enabler of the HIV response and necessary to achieve the global AIDS targets toward ending AIDS as a public health threat by 2030.
The 2021 political declaration, endorsed by 165 governments at the UN General Assembly, agreed to the ambitious 2025 global targets amongst which there was a commitment to achieve the 10-10-10 targets: less than 10% of countries with legal and policy environments that deny or limit access to HIV services; less than 10% of people living with HIV and key populations experiencing stigma and discrimination; and less than 10% of people living with HIV, women and girls, and key populations experiencing gender-based inequalities and gender-based violence.
To be successful in reforming the punitive legal and policy environment, we need champions and advocates who understand how the legal system works either as duty-bearers or rights-holders. We need the legislature, judiciary and law enforcement officers actively engaged with communities and civil society to dialogue on how these punitive laws affect people. A whole-of-society approach, led by communities and networks, to discuss the issues of human rights and how to find solutions to discriminatory policies that limit access to social protection measures in the context of their economic, social, and cultural rights.
The wind of change on LGBTQI+ rights is blowing increasingly in conservative Asia, from India, Bhutan, Thailand and now Singapore where Prime Minister Lee Hsien Loong recently announced the abolishment of the colonial-era law 377A which criminalizes sexual intimacy between men. He stated that ‘’this was the right thing to do…’’ and called on Singaporeans to be understanding, accepting and supportive. With this change, people will now be equal before the law. In sub-Saharan Africa, similar decriminalizing laws were changed in Angola and Botswana purely on in-depth legal interpretation of the law by judges. The Caribbean region which has the highest HIV prevalence outside of sub-Saharan Africa is not any different. Strategic litigation is emerging as an effective strategy for challenging punitive, colonial-era laws. There have been successes through judicial reviews in Belize, Guyana, Trinidad and Tobago, Antigua and Barbuda and St. Kitts and Nevis where sections of their legal codes that criminalized same-sex relations have been repealed.
In December 2022, Barbados joined Antigua and Barbuda and St. Kitts and Nevis in becoming the third country in the Caribbean to strike down the indecency and buggery laws which criminalize consensual same-sex relations. This historic decision will allow for a strengthening of the country’s HIV response and allow LGBT people to enjoy their rights. There are six remaining countries in the Caribbean that criminalize same sex intimacy between consenting adults, all of them former British colonies. They are Dominica, Grenada, Guyana, Jamaica, St. Lucia, and St. Vincent and the Grenadines.
Research increasingly suggests that these punitive laws against consensual same sex perpetuate deep and profound social stigma and discrimination against people living with HIV and the LGBT community affect their health and well-being thus become a significant obstacle to improving health outcomes. For instance, avoidance of sexual health services, including HIV testing and treatment; for fear of being stigmatized by the healthcare workers or the wider society. Such laws help prevents key populations from realizing their economic, social, and cultural rights by helping to sustain stigma and discrimination and are barriers to LGBT people seeking and receiving healthcare. In fact, such discriminatory laws prevent the building of a more open, just, tolerant, and inclusive society where people can be who they are, equal before the law and love who they want without fear of being incarcerated or their right to privacy and freedom of expression being violated. In the Antigua and Barbuda case, it was argued that criminalization of same-sex sexual relations contributed to hostile healthcare settings where LGBT people often faced verbal abuse and confidentiality breaches. Among other things, these blocked their access to HIV testing, treatment, and follow-up care.
Criminal laws drive and sustain public health inequalities. They legitimize stigma, discrimination, and violence against LGBT people, increasing their risk of contracting HIV while reducing access to life-saving care.
Even though decriminalization is not the end point in tackling stigma and exclusion, it is a vital step forward in having a just, inclusive, and equal society. In the words of Caleb Orozco, a litigant from Belize in 2016 “It forces communication between families and their lesbian, gay, bisexual, and transgender relatives. It encourages people who are lesbian, gay, bisexual, or transgender to come out of the closet. It forces institutions to think about their administrative practices and the discrimination they justified based on that law. It forces homophobic people to acknowledge that the constitution covers everyone.” Similarly, Mr. Orden David who brought the case in Antigua and Barbuda concluded that “this is a clear statement that we must stop the stigma and discrimination against our community, and we will continue to support each other and advocate for our rights.”
Lead attorney in the St. Kitts and Nevis case, E. Anthony Ross Q.C., called for Caribbean governments to act proactively to ensure their laws uphold citizens’ constitutionally guaranteed rights. “Nothing new was created here [in this legal judgement]. The constitution specifically gives those rights. The Attorney-General should take note. It’s time to look over all laws and bring these discriminatory laws in line.”
It is very important to protect human rights; as decriminalization saves lives by improving access to high quality, dignified and rights-based health services. Decriminalization protects vulnerable and marginalized populations that are disproportionately impacted by HIV as they contribute 7 in every 10 new HIV infections globally. If there is continued overuse of archaic criminal laws governments will continue to result in violations of human rights, which lends itself to a perpetuation of stigma and discrimination.
To end the AIDS epidemic, technocrats and lawmakers must see the implementation of such laws and sanctions as a violation of rights. Decriminalization is not the only solution, but it is a critical part of what we need to do to end AIDS.
It is important to remind people about how far the AIDS response has come after more than forty years as a pandemic without a cure or vaccine. Inequalities continue to drive the HIV epidemic everywhere. There is a need to end criminalisation of groups that are most affected and protect the rights and privacy and confidentiality of people, regardless of their health status, gender identity, occupation, or sexual orientation.
Dr Richard Amenyah is a public health specialist from Ghana and the Director for UNAIDS in the Caribbean. Eltonette Anderson is a public health practitioner and post-graduate student at Walden University.
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