An inappropriate tool: criminal law and HIV in Asia

Abstract

Background: 

Asian countries have applied criminal sanctions widely in areas directly relevant to national HIV programmes and policies, including criminalization of HIV transmission, sex work, homosexuality and drug injection. This criminalization may impede universal access to HIV prevention and treatment services in Asia and undermine vulnerable people's ability to be part of the HIV response.

Objective: 

To review the status of application of criminal law in key HIV-related areas in Asia and analyze its impact.

Methods: 

Review of literature and application of human rights norms to analysis of criminal law measures.

Results and conclusion: 

Criminal laws in the areas considered here and their enforcement, while intended to reduce HIV transmission, are inappropriate and counterproductive with respect to health and human rights. Governments should remove punitive laws that impede the HIV response and should ensure meaningful participation of people living with HIV, people who use illicit drugs, sex workers and men who have sex with men in combating stigma and discrimination and developing rights-centered approaches to HIV.

Introduction

Criminal law is a measure meant to be reserved for the most heinous, harmful and repugnant behaviours in society ^[1]. From an early stage of the HIV/AIDS pandemic, existing criminal laws related to sex and drug use were strengthened in the name of HIV control, and new laws related to transmission of and exposure to HIV were passed in many countries ^[2]. In recognition of the widespread use of criminal law in national responses to HIV, guidelines on HIV and human rights first issued by the United Nations in 1998 cautioned against a proliferation of HIV-specific criminal law and urged countries to ensure that their criminal codes did not undermine health services and policies related to HIV ^[3].

The work of the Commission on AIDS in Asia in 2008 underscored that inappropriate or repressive application of criminal law in some Asian countries undermined effective national HIV responses in the region. The Commission enjoined countries to rethink criminalization of homosexuality, sex work and injection of illicit drugs in favour of rational public health-centred approaches ^[4]. In the same year, the Joint United Nations Programme on HIV/AIDS (UNAIDS) renewed its call to avoid the use of criminal statutes designed to curb HIV transmission in most circumstances ^[5]. This review discusses the pertinence of these recommendations for Asia's response to HIV. It considers the health and human rights implications of criminalization of HIV transmission, homosexuality and transgenderism, sex work and illicit drug use in Asia.

HIV-related concerns about criminalization

Although HIV epidemics across Asia vary in some respects, unprotected paid sex, the sharing of contaminated injection equipment and unprotected sex between men are common determinants of HIV in the region ^[4]. The Commission on AIDS in Asia, a body of independent experts, drew global attention in 2008 by noting that ‘decriminalizing sex work, homosexuality and the use of needles and syringes for drug use’ is essential to enable HIV prevention, treatment and care to succeed ^[4]. In addition, it stressed that to achieve universal access to HIV prevention and care, countries must engage the judicial and law enforcement sectors: ‘[T]he criminalization of these risk behaviours can effectively neutralize otherwise supportive HIV policies – unless the cooperation of law enforcement agencies and the judiciary can be achieved’ ^[4].

These conclusions were echoed by UN Secretary General Ban Ki-Moon later in 2008 as he underscored the link between criminalization and discrimination: ‘In most countries, discrimination remains legal against women, men who have sex with men, sex workers, drug users and ethnic minorities; this must change’ ^[6]. In early 2009, UNAIDS identified as a key priority for its 2009–2011 work to ‘remove punitive laws, policies, practices, stigma and discrimination that block effective responses to AIDS’ ^[7]. This explicit focus on removing repressive laws related to sex and drugs as a central element of the HIV response contrasts previous language from UN documents. The 2005 UNAIDS prevention policy paper, for example highlights the exclusion of vulnerable groups from services due to ‘social marginalization’ and ‘legal restrictions’ without focusing on criminalization as such ^[8].

Sex work

Criminalization of sex work or of activities commonly associated with sex work is widespread in Asia. Table 1 summarizes key provisions of relevant criminal law related to sex work in a number of south Asian countries ^[9].

Table 1: Provisions of sex work law in south Asian countries.

As in other parts of the world, commercial sexual transactions themselves are not always directly criminalized, but other elements of sex work – including keeping a brothel, soliciting clients and living off the earnings of sex work – are against the law in a number of these countries. Broad interpretation of laws on human trafficking also cast a wide net that can catch sex workers up in ‘rescue’ operations even if they have not been trafficked ^[10]. Sex workers removed from brothels under these circumstances may end up working on the streets where they face greater risk of violence and may have less control over condom use than in brothels. NGO and scholarly reports from a number of Asian countries indicate that sex workers are vulnerable to physical abuse and extortion by the police as well as violence by clients, all of which are facilitated by criminalization of sex work ^[11–13]. Police practices such as using possession of condoms as a marker for prostitution and thus as grounds for arrest ^[11] directly undermine condom use and thus HIV prevention.

Some east Asian and south-east Asian countries do not criminalize sex work under most circumstances but regulate the sex trade so heavily that criminal penalties are still possible. So-called 100% condom use programmes (or 100% CUPs) have been instituted in China, Cambodia, Vietnam, Thailand, Mongolia, Laos and Burma ^[14]. One hundred percent CUPs require condom use in all commercial sex transactions, usually especially targeting brothels, nightclubs and other indoor venues where sex work takes place ^[14]. This policy usually gives the police latitude to arrest sex workers, clients and managers of these establishments if they do not comply with condom use.

These programmes have been found to reduce unsafe sex in commercial sex establishments ^[14,15], but they have also been found to be repressive and disrespectful of the rights of sex workers. Sex workers in Cambodia reported that they were forced by brothel and nightclub owners to have sex with police in exchange for the police overlooking 100% CUP infractions and that during the health examinations required by 100% CUP, they were abused and derided by health workers ^[16] The Asia Pacific Network of Sex Workers, a coalition of sex worker organizations, has consistently raised concerns about 100% CUP that include ‘authoritarian punishment-based HIV prevention and mandatory testing’ ^[17].

Sex worker organizations in a number of Asian countries, but particularly India, have demonstrated that if they are empowered to organize themselves into collectives, they can ensure high levels of condom use without repressive measures. The widely respected Durbar Mahiya Samnwaya Committee (DMSC) of the Sonagachi neighbourhood of Kolkata, India, is a well known example of a sex worker collective that has developed a solidarity among its hundreds of members that has resulted in very high levels of condom use ^[18]. That is, it is seen by the collective to be in everyone's interest that no worker goes off and obtains higher prices for sex without condoms. DMSC has also been able to negotiate some level of détente with the police on the strength of the importance of the collective as an agent of HIV prevention ^[18].

The Asia Commission endorsed approaches such as that of DMSC as best practices, especially as examples of meaningful participation of sex workers in designing and implementing their own HIV prevention and care activities ^[4]. Noting the reports of incidents of violations of the human rights of sex workers as part of 100% CUP in Cambodia, the Commission endorsed meaningful involvement of sex workers in the design and implementation of 100% CUP and other HIV prevention measures ^[4]. It called for an end to conditions imposed by donors ‘that prevent their partners from supporting organizations that work with sex worker organizations’ ^[4], undoubtedly a reference to the ‘antiprostitution pledge’ associated with support from the U.S. President's Emergency Plan for AIDS Relief (PEPFAR) ^[19].

Criminalization based on sexual preference and gender identity

Asian countries have made some progress toward decriminalization of homosexuality. The 2009 landmark decision by the High Court in New Delhi to strike down the sodomy provision of the Indian penal code for example, was the culmination of a long struggle joined by AIDS and human rights activists ^[20]. Its decision shows that the High Court was deeply persuaded by the negative impact of criminalization of homosexuality on the government's ability to fulfil its responsibility to ensure HIV information and services to men who have sex with men (MSM) ^[20]. In 2007, the Supreme Court of Nepal ordered an end to discrimination based on sexual orientation and gender identity in law and in practice ^[21]. China, Indonesia, Cambodia, Vietnam, Thailand, among others, had already decriminalized homosexuality ^[22].

Homosexuality and homosexual acts and transgenderism nonetheless remain subject to criminal sanction in a number of Asian countries. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) monitors legal changes in an annual summary ^[22]. Table 2 highlights some of the remaining criminal provisions in Asia.

Table 2: National law related to homosexuality in selected Asian countries.

It remains to be seen whether the decisions in India and Nepal will influence the countries, such as Bangladesh, Pakistan and Sri Lanka, where similar penal code provisions against ‘unnatural’ acts remain on the books. The influence of religious or customary law may make this change more difficult in some of these countries.

In December 2008, the French government brought a resolution to the United Nations General Assembly affirming ‘the principle of nondiscrimination, which requires that human rights apply equally to every human being regardless of sexual orientation and gender identity’ ^[23]. This resolution brought about the first formal consideration by all UN member states of human rights related to sexual orientation and gender identity. The French resolution was endorsed by only two Asian countries (not counting Australia, New Zealand or Israel), namely Nepal and Timor Leste ^[23]. Plainly there is a long way to go in embodying nondiscrimination principles for persons of all sexual identities and gender preferences in national law in many Asian countries.

Illicit drug use

Many Asian countries have harsh drug laws that criminalize even minor offences. Since 2000, civil society organizations have documented harsh policing and human rights abuses that have undermined access to HIV and other health services for people who use drugs in Indonesia, Cambodia, China, India, Pakistan, Burma, Thailand and Vietnam, among other countries ^[24]. In some cases, the means of enforcing the drug law may be as important with respect to HIV as the letter of the law. In Vietnam, for example, some minor drug offences were made administrative rather than criminal infractions in 2009, but administrative infractions can still be grounds for referral to harsh treatment and forced labour in compulsory ‘rehabilitation’ centres ^[25,26].

A welcome development is that a number of Asian countries – notably China, Vietnam, Indonesia and Malaysia – have amended their laws and policies to enable government-run syringe exchange and methadone maintenance therapy for opiate users ^[27]. These programmes are central elements of HIV prevention in countries where opiate injection is a significant phenomenon. Unfortunately, at the same time as methadone therapy has become more available, in Vietnam, China and Malaysia, as well as Cambodia, the people who use drugs who have access to methadone therapy is a tiny minority compared with the thousands who are incarcerated in compulsory drug rehabilitation facilities where there is little medical care and ‘treatment’ may consist of forced labour, beatings, humiliation and torture ^[27–29].

In addition to impeding HIV prevention services, harsh criminalization of people who use drugs impedes access to HIV treatment in a number of Asian countries. In China, for example about half of the persons living with HIV are estimated to be people who inject or have injected drugs, but only about 1% of those receiving antiretroviral therapy are drug users ^[30]. Similarly, in Malaysia, some three quarters of persons living with HIV are drug users, but only 5% of those receiving treatment for HIV are drug users ^[30]. Criminalization may not be the only barrier to equal access to treatment and care, but it is surely an important one.

Criminalization of HIV transmission and exposure

Criminalization of sex work, drug use and homosexuality predated HIV in most Asian countries. But the political environment that fosters this criminalization may also give rise to statutes that criminalize transmission and exposure of HIV. More than 30 countries worldwide have enacted laws specifically meant to criminalize HIV transmission and exposure, some 25 others have applied existing criminal law to HIV transmission, and many more as of 2008 were considering HIV-specific legislation ^[31]. India and Singapore are among the countries with laws making HIV transmission a crime ^[31]. China has at times considered criminalizing behaviours that lead to HIV transmission ^[32]. Its complicated array of local and central regulations on HIV and infectious diseases allow for a wide range of police actions to prevent HIV transmission ^[33].

The focus of HIV-specific criminal laws is usually sexual transmission. These laws raise questions that are fundamental legal questions, including whether there is criminal intent in the act of HIV transmission – as is normally required to establish an action as a crime – or whether negligence or some other mental state is more pertinent ^[1], to say nothing of the difficulty of proving beyond reasonable doubt that HIV transmission occurred in a given period or instance. In some cases, people have been prosecuted even when they have not known their own HIV status, calling into question whether they could have had the intent to transmit HIV. People have also been successfully prosecuted for exposing a person to HIV through biting, spitting or scratching, despite the lack of evidence that HIV transmission might result from these acts ^[34].

Some laws criminalizing HIV transmission were passed because legislators claimed they would protect women from HIV-positive men who would fail to disclose their HIV status before sex ^[35]. As UNAIDS asserts, however, women may be more susceptible to prosecution under these laws than men because they have more contact with health systems and are likely to be tested for HIV earlier than their sex partners ^[5]. Moreover, these laws may distract policy-makers from measures that would address the roots of women's vulnerability to HIV, including gender-based violence and gender-based social and economic inequalities ^[35]. It is of particular concern that some HIV-specific laws are written so broadly that they would criminalize mother-to-child transmission of HIV, even though it is difficult to imagine that this vertical transmission ever occurs with criminal intent ^[1]. Papua New Guinea's HIV law is a rare example of one that explicitly excludes vertical transmission from prosecution ^[36].

There has been an upswing in criminalization of HIV transmission and exposure since 2000 in spite of the paucity of evidence that these laws have a deterrent effect ^[1]. One review of HIV-based prosecutions in the USA concludes that sensational media coverage of high-profile cases of this nature may contribute to some level of deterrence, but that the effect is very small, particularly if people do not understand the law or the way it is prosecuted ^[37].

Conclusion

Criminal law, whether applied to marginalized persons vulnerable to HIV transmission or as an ostensible means of preventing or punishing transmission, is an inappropriate and often counterproductive tool. UNAIDS’ explicit recognition of the punitive laws and policies with respect to those living with and at high risk of HIV as barriers to universal access to HIV prevention and care is welcome and overdue. UNAIDS and its co-sponsors should make this priority concrete by encouraging member states to allocate sufficient resources to invest in reform of legal frameworks for sex work, drug use, homosexuality and ‘criminal’ transmission of HIV, as well as in the public awareness efforts that will be necessary for social change. UN leadership on these issues should include speaking out in major global venues about the deleterious effect of inappropriate application of criminal law and publicly challenging governments in Asia and beyond to acknowledge the harms of these practices. In Asia, there is a particular need to recognize sex workers, drug users and LGBT persons as important agents of HIV prevention and care and to develop legal frameworks that allow them to play this role.

With respect to HIV-specific laws on transmission and exposure, UNAIDS emphasizes that HIV transmission is an appropriate object of criminal prosecution only when a person knows that he or she is HIV-positive, has demonstrable intent to transmit HIV and does in fact demonstrably succeed in transmitting it ^[5]. The confluence of these circumstances is very rare. Criminalization, UNAIDS notes, is inappropriate when the alleged perpetrator did not even know his or her HIV status, did not understand HIV transmission, disclosed his or her status to a sexual partner before sex, used a condom or agreed with a sex partner on a ‘level of mutually acceptable risk’ ^[5]. The UN system and member states should invest in ensuring that these sound principles are reflected in law and public information campaigns.

National criminal or penal ‘law on the books’ related to homosexuality, sex work and drug use is only one element of creating a criminalizing environment that can impede access to HIV services for the populations discussed here. For example, as also noted by the Asia Commission, sex worker collectives through the strength of their organizations have been able to negotiate less violent policing and a level of tolerance by local officials, provide spaces safe from violence and improve working conditions in spite of unchanged national law ^[4]. In addition, policies such as 100% condoms can be applied in repressive ways that effectively criminalize or at least disenfranchise sex workers even if sex work is decriminalized ^[4]. In this regard, UNAIDS should go further than calling for ‘removing punitive laws’ and should encourage governments to allow organizations of MSM, sex workers and drug users to be formed and to operate, work with police and prosecutors to ensure humane policing whatever level of criminalization is in the law and persist in the long battle against stigmatization of MSM, sex workers and people who use drugs. Asian countries should be encouraged as well to ensure that enforcement of laws against human trafficking does not violate rights of sex workers and should minimize police use of minor municipal offences to harass sex workers, MSM and people who use drugs. Even where changing national penal codes is not possible, many measures can improve universal access to HIV services for these persons.

In 2009, the Global Fund to Fight AIDS, Tuberculosis and Malaria approved its first major regional grant on HIV among MSM, in this case to seven south Asian countries ^[38]. This grant reflects the spirit of the work of the Commission on AIDS in Asia and the UN priority on overcoming the impact of inappropriately punitive laws. HIV epidemics in Asia are unlikely to be turned back without improved legal frameworks, humane policing, active protection of the rights of those most vulnerable to HIV and financial resources that enable effective, rights-based HIV programmes for those living with HIV or at great risk, including the meaningful participation of these persons in design, implementation and evaluation of programmes and policies affecting them.

Conflicts of Interest: None.