Living with HIV should not be a crime

Living with HIV should not be a crime

Despite the fact that 40 years have passed since the first cases of AIDS were identified, the syndrome caused by HIV, the myths, prejudices and misinformation surrounding this condition seem to have no end.

This social stigma has also been translated into laws which arose, presumably, to “protect” the population from HIV, but in practice all they have done is increase discrimination by criminally prosecuting people with HIV, blaming them for their own health status and holding them responsible for the health of others.

In Mexico, these laws significantly affect people with HIV. For this reason, the report Mexican legislation on HIV and AIDS. Its impact on people living with HIV, was prepared, carried out by the Mexican Network of Organizations against the Criminalization of HIV, with the aim of making a map of all those legal provisions related to the human rights of people with HIV, either to protect or hinder them.

HIV, punishable by law

In Mexico, as in other nations around the world, there is a penal code which points out people with HIV and has recently been revived with the coronavirus pandemic: “danger of contagion.” This crime is configured when, at the discretion of the judge, a person with a certain disease or health condition exposes another to the transmission or contagion of this disease.

Of the 32 states that make up Mexico, only two of them do not criminalize in any way the danger of contagion (or similar figures), which implies that any person living with HIV can be punished for the fact of, supposedly, having put another person’s health at risk.

In reality, these criminal measures are not well supported, since the accusations are based only on assumptions, as explained in an interview by one of the report’s coordinators, Leonardo Bastida Aguilar.

The Network is calling for the repeal of the crime for danger of contagion and the likes from all criminal codes, however, at the international level, the discussion could be taking the opposite direction, starting to use molecular and genetic sequencing technologies to determine where the virus infection comes from, a resource that was developed to track epidemiology, but that could also be used for criminal charges (as we had already explained in this article).

Civil limitations 

But it’s not only the criminal sphere that contemplates discriminatory measures, the report on Mexico also found that in order to authorize marriages in 19 states, the contracting parties are required to present a medical certificate that proves that they do not have any communicable disease. This requirement does not depend at all on whether or not the other person is aware of their partner’s health status.

Paradoxically, in almost half of the country’s entities (14), there are laws that expressly consider it a discriminatory act to administer HIV tests without the consent of a person in order for them to obtain a job. In 12 states it is also an act of discrimination to stigmatize people with HIV or to violate their rights.

Regional situation 

The criminalization of HIV is a matter of concern not only for Mexico, but for the whole world and for various organizations that work on the issue.

José Antonio Matus, advocate at AHF Latin America and the Caribbean, recalled that the Joint United Nations Program on HIV / AIDS (UNAIDS) has already taken a stance on the matter, and stressed that this type of measures are mainly applied to the most vulnerable people, that they promote stigma and discrimination, favor the selective application of the law and ignore the scientific evidence that is currently available about HIV.

The most important concept of this scientific evidence is undetectable = untransmittable, that is, when a person with HIV takes their treatment properly, the amount of virus that circulates in their blood and fluids is so low that the possibility of transmitting the virus is zero.

We have to remember that stigma and discrimination prevent people from getting screened or from seeking treatment services, resulting in them not keeping their infection under control.

Worldwide, Matus explained, 68 countries have penalties that punish concealment of HIV status, exposure to the virus or transmission of it. In Latin America and the Caribbean there are also provisions of this type in most countries, and there are currently open cases for crimes related to the “danger of contagion” in Mexico, Honduras, Argentina, Brazil, Chile, Colombia, Paraguay, Peru and Suriname. But this does not mean that there are no cases in the other countries, only that they are not formally documented.

Given the severe consequences that these provisions can have, the objective is that they cease to exist, because according to the lawyer, the behaviors that a person could have with the intent of hurting another are already provided for in current criminal codes, and it is not necessary to have a specific crime that punishes HIV transmission, in addition to it not being legally sustained.

At AHF Latin America and the Caribbean we provide HIV services free of stigma and discrimination. If you want to get a free test or need condoms, come to our nearest office in your country or write to us on WhatsApp.