Criminalising consensual sexual behaviour in the context of HIV: Consequences, evidence, and leadership

Abstract

This paper provides an overview of the use of the criminal law to regulate sexual behaviour in three areas of critical importance: (1) HIV exposure in otherwise consensual sex, (2) sex work and (3) sexual activity largely affecting sexual minorities. It analyses criminal law pertaining to these three distinct areas together, allowing for a more comprehensive and cohesive understanding of criminalisation and its effects. The paper highlights current evidence of how criminalisation undermines HIV prevention and treatment. It focuses on three specific negative effects of criminalisation: (1) enhancing stigma and discrimination, (2) undermining public health intervention through legal marginalisation and (3) placing people in state custody. The paper also highlights gaps in evidence and the need for strong institutional leadership from UN agencies in ending the criminalisation of consensual sexual activity. This paper serves two goals: (1) highlighting the current state of research and emphasising where key institutions have or have not provided appropriate leadership on these issues and (2) establishing a forward-looking agenda that includes a concerted response to the inappropriate use of the criminal law with respect to sexuality as part of the global response to HIV.

Keywords:

• criminalisation
• HIV
• stigma
• sexuality
• law
• human rights
• LGBT

Acknowledgements

Eszter Kismodi is a staff member of the World Health Organization, Department of Reproductive Health and Research and is responsible for the views expressed in this publication. They do not necessarily represent the decisions, policy or views of the World Health Organization. The authors would also like to acknowledge Ann Warner and Jessica Ogden for their contributions and feedback to this paper.

Notes

1. The discussion in this paper is limited to HIV exposure in the context of otherwise consensual sex. Coerced or forced sex (i.e., sexual assault and rape) is criminal behaviour irrespective of the HIV status of the perpetrator and this paper does not address these acts of sexual violence.