Negative legal determinants

Definition

Neg­a­tive legal deter­mi­nants refers to the recog­ni­tion that laws and reg­u­la­tions can neg­a­tively affect health out­comes, includ­ing for peo­ple liv­ing with HIV sta­tus. This recog­ni­tion is sup­ported by an increas­ing body of evi­dence doc­u­ment­ing the neg­a­tive effects of laws, reg­u­la­tions, and poli­cies on health out­comes includ­ing by imped­ing access to health­care, frus­trat­ing com­mu­nity response and fur­ther stig­ma­tiz­ing the mar­gin­al­ized groups. The term neg­a­tive legal deter­mi­nants is a broad term and includes laws, reg­u­la­tions, poli­cies, prac­tices, among other legal deter­mi­nants. These can be enacted by national gov­ern­ments, region­ally, or through sources of inter­na­tional law. Neg­a­tive legal deter­mi­nants include laws that crim­i­nal­ize, pun­ish, or dis­crim­i­nate against peo­ple liv­ing with HIV or other health con­di­tions.

Pop­u­la­tions that are key and vul­ner­a­ble to HIV are stig­ma­tized and sub­jected to dis­crim­i­na­tory treat­ment because of soci­etal rea­sons but also through their inter­ac­tion with legal sys­tems. Despite the evi­dence on the impacts of such poli­cies, stigma­ti­za­tion and dis­crim­i­na­tion includ­ing through crim­i­nal­iza­tion of sex work, homo­sex­u­al­ity, and injec­tion of drugs con­tin­ues to exists.

Precedents

2022 Resolution on Violence Against Women Migrant Workers

• “Urges all States to adopt and imple­ment effec­tive mea­sures to put an end to the arbi­trary arrest and deten­tion of women migrant work­ers and to take action to pre­vent and pun­ish any form of ille­gal depri­va­tion of the lib­erty of women migrant work­ers by indi­vid­u­als or groups.” (para­graph 37)

2021 Global AIDS Strategy 2021-2026

• “Less than 10% of coun­tries have puni­tive legal and pol­icy envi­ron­ments that deny or limit access to ser­vices:
  (i) Less than 10% of coun­tries crim­i­nal­ize sex work, pos­ses­sion of small amounts of drugs, same-sex sex­ual behav­iour, and HIV trans­mis­sion, expo­sure or nondis­clo­sure by 2025;
  (ii) Less than 10% of coun­tries lack mech­a­nisms for peo­ple liv­ing with HIV and key pop­u­la­tions to report abuse and dis­crim­i­na­tion and seek redress by 2025;
  (iii) Less than 10% of peo­ple liv­ing with HIV and key pop­u­la­tions lack access to legal ser­vices by 2025;
  (iv) More than 90% of peo­ple liv­ing with HIV who expe­ri­enced rights abuses have sought redress by 2025.” (annex 1, 2025 tar­gets)

• “Rec­og­niz­ing the equal worth and dig­nity of every per­son is not only an eth­i­cal imper­a­tive and an oblig­a­tion aris­ing from inter­na­tional human rights instru­ments, it is cen­tral for end­ing AIDS as a pub­lic health threat. SDG 3 can­not be achieved if stigma, dis­crim­i­na­tion, crim­i­nal­iza­tion of key pop­u­la­tions, vio­lence, social exclu­sion and other human rights vio­la­tions in the con­text of HIV are allowed to con­tinue and if HIV-related inequal­i­ties per­sist. The evi­dence con­sis­tently shows that the crim­i­nal­iza­tion of peo­ple liv­ing with HIV and key pop­u­la­tions reduces ser­vice uptake and increases HIV inci­dence. Gen­der inequal­i­ties also increase the HIV vul­ner­a­bil­ity of women and girls, with women who expe­ri­ence inti­mate part­ner vio­lence in high-preva­lence set­tings more than 50% more likely to be liv­ing with HIV.” (para­graph 129)

• “As seen dur­ing COVID-19 pan­demic, under-uti­liza­tion of the poten­tial of com­mu­ni­ties is com­pounded by an acute short­age of resources for com­mu­nity-led responses. Shrink­ing space for civil soci­ety in many coun­tries, as well as per­sis­tent social and struc­tural fac­tors, exac­er­bate the pres­sures on com­mu­nity-led HIV responses and increase the risk of vio­lence against orga­ni­za­tions that serve key pop­u­la­tions or other mar­gin­al­ized groups.” (para­graph 135)

• “Puni­tive laws, the absence of enabling laws and poli­cies, and inad­e­quate access to jus­tice con­trib­ute to the inequal­i­ties that under­mine HIV responses. At least 92 coun­tries crim­i­nal­ize HIV expo­sure, nondis­clo­sure and/or trans­mis­sion, and 48 coun­tries or ter­ri­to­ries con­tinue to block peo­ple liv­ing with HIV from entry, stay or res­i­dence. Among coun­tries report­ing data to UNAIDS in 2019, 32 crim­i­nal­ized and/or pros­e­cuted trans­gen­der per­sons, 69 crim­i­nal­ized same-sex sex­ual activ­ity, 129 crim­i­nal­ized some aspect of sex work, and 111 crim­i­nal­ized the use or pos­ses­sion of drugs for per­sonal use. The health and well-being of peo­ple liv­ing in pris­ons or other closed set­tings are rou­tinely put at risk by puni­tive laws and poli­cies, includ­ing denial of access to essen­tial health ser­vices.” (para­graph 140)

• “Cre­ate an enabling legal envi­ron­ment by remov­ing puni­tive and dis­crim­i­na­tory laws and poli­cies, includ­ing laws that crim­i­nal­ize sex work, drug use or pos­ses­sion for per­sonal use and con­sen­sual same-sex sex­ual rela­tions, or that crim­i­nal­ize HIV expo­sure, nondis­clo­sure or trans­mis­sion. Intro­duce and enforce pro­tec­tive and enabling leg­is­la­tion and poli­cies, and end the overuse of crim­i­nal and gen­eral laws to tar­get peo­ple liv­ing with HIV and key pop­u­la­tions.” (para­graph 144(c))

• “Pol­icy bar­ri­ers, such as age-of-con­sent laws for access­ing HIV test­ing or sex­ual and repro­duc­tive health ser­vices, as well as the social stigma asso­ci­ated with using those ser­vices, hin­der ado­les­cent girls from mak­ing deci­sions about their own sex­ual and repro­duc­tive health. Dis­crim­i­na­tory laws and prac­tices should be repealed, using the Con­ven­tion on Elim­i­na­tion of All Forms of Dis­crim­i­na­tion Against Women as a mon­i­tor­ing tool to high­light vio­la­tions of the rights of women liv­ing with and affected by HIV.” (para­graph 148)

• “Repeal dis­crim­i­na­tory laws and poli­cies that increase women and girls’ vul­ner­a­bil­ity to HIV and address vio­la­tions of their sex­ual and repro­duc­tive health and rights.” (para­graph 153(h))

• “Reach­ing the soci­etal enabler tar­gets in this Strat­egy is cru­cial. Mod­el­ling indi­cates that fail­ure to reach the tar­gets for stigma and dis­crim­i­na­tion, crim­i­nal­iza­tion and gen­der equal­ity will pre­vent the world from achiev­ing the other ambi­tious tar­gets in the Strat­egy and will lead to an addi­tional 2.5 mil­lion new HIV infec­tions and 1.7 mil­lion AIDS-related deaths between 2020 and 2030.” (para­graph 85)

2021 Political declaration on HIV and AIDS

• “Com­mit to urgent and trans­for­ma­tive action to end the social, eco­nomic, racial and gen­der inequal­i­ties, restric­tive and dis­crim­i­na­tory laws, poli­cies and prac­tices, stigma and mul­ti­ple and inter­sect­ing forms of dis­crim­i­na­tion, includ­ing based on HIV sta­tus, and human rights vio­la­tions that per­pet­u­ate the global AIDS epi­demic.” (para­graph 1(c))

• “Express deep con­cern about stigma, dis­crim­i­na­tion, vio­lence and restric­tive and dis­crim­i­na­tory laws and prac­tices that tar­get peo­ple liv­ing with, at risk of and affected by HIV–includ­ing for non-dis­clo­sure, expo­sure and trans­mis­sion of HIV–and laws that restrict the move­ment or access to ser­vices for peo­ple liv­ing with, at risk of and affected by HIV, includ­ing key pop­u­la­tions, young peo­ple, women and girls in diverse sit­u­a­tions and con­di­tions, and in this regard, deplore acts of vio­lence and dis­crim­i­na­tion in all regions of the world.” (para­graph 28)

• “

  Com­mit to elim­i­nat­ing HIV-related stigma and dis­crim­i­na­tion and to respect­ing, pro­tect­ing and ful­fill­ing the human rights of peo­ple liv­ing with, at risk of and affected by HIV, through con­crete resource invest­ment and devel­op­ment of guide­lines and train­ing for health-care providers, by:

  (a) Cre­at­ing an enabling legal envi­ron­ment by review­ing and reform­ing, as needed, restric­tive legal and pol­icy frame­works, includ­ing dis­crim­i­na­tory laws and prac­tices that cre­ate bar­ri­ers or rein­force stigma and dis­crim­i­na­tion such as age of con­sent laws and laws related to HIV non-dis­clo­sure, expo­sure and trans­mis­sion, those that impose HIV-related travel restric­tions and manda­tory test­ing and laws that unfairly tar­get peo­ple liv­ing with, at risk of and affected by HIV, with the aim of ensur­ing that less than 10 per cent of coun­tries have restric­tive legal and pol­icy frame­works that lead to the denial or lim­i­ta­tion of access to ser­vices by 2025;
  (b) Adopt­ing and enforc­ing leg­is­la­tion, poli­cies and prac­tices that pre­vent vio­lence and other rights vio­la­tions against peo­ple liv­ing with, at risk of and affected by HIV and pro­tect their right to the high­est attain­able stan­dard of phys­i­cal and men­tal health, right to edu­ca­tion and right to an ade­quate stan­dard of liv­ing, includ­ing ade­quate food, hous­ing, employ­ment and social pro­tec­tion, and that pre­vent the use of laws that dis­crim­i­nate against them;
  (c) Expand­ing invest­ment in soci­etal enablers—includ­ing pro­tec­tion of human rights, reduc­tion of stigma and dis­crim­i­na­tion and law reform, where appro­pri­ate—in low- and mid­dle-income coun­tries to 3.1 bil­lion United States dol­lars by 2025;
  (d) End­ing impunity for human rights vio­la­tions against peo­ple liv­ing with, at risk of and affected by HIV by mean­ing­fully engag­ing and secur­ing access to jus­tice for them through the estab­lish­ment of legal lit­er­acy pro­grammes, increas­ing their access to legal sup­port and rep­re­sen­ta­tion and expand­ing sen­si­ti­za­tion train­ing for judges, law enforce­ment, health-care work­ers, social work­ers and other duty bear­ers.

  ” (para­graph 65)

2021 CSW Report on women and HIV/AIDS

• “The HIV response for women and girls is neg­a­tively affected by laws that do not ade­quately address vio­lence and harm­ful prac­tices directed against women; per­pet­u­ate gen­der inequal­ity and dis­crim­i­na­tion; restrict the access of women and ado­les­cent girls to sex­ual and repro­duc­tive health and rights; and crim­i­nal­ize HIV non-dis­clo­sure, expo­sure and trans­mis­sion.” (para­graph 36)

• “The Com­mis­sion may wish to encour­age Mem­ber States to reform laws that directly or indi­rectly dis­crim­i­nate against women and girls, includ­ing those affect­ing women liv­ing with and affected by HIV and women in key pop­u­la­tions, and to adopt appro­pri­ate leg­isla­tive, admin­is­tra­tive, bud­getary, judi­cial and other mea­sures to ensure the full real­iza­tion of women’s sex­ual and repro­duc­tive health and rights.” (para­graph 57(c))

2018 HRC Resolution on human rights in the context of HIV and AIDS

• “Urges States to address the mul­ti­ple and inter­sect­ing forms of dis­crim­i­na­tion and the spe­cific health-care needs expe­ri­enced by migrant and mobile pop­u­la­tions, and by refugees and cri­sis-affected pop­u­la­tions, in the con­text of HIV and to elim­i­nate stigma, dis­crim­i­na­tion and vio­lence, as well as to review poli­cies related to restric­tions on entry on the basis of HIV sta­tus with a view to elim­i­nat­ing such restric­tions and the return of peo­ple on the basis of their HIV sta­tus, and to sup­port their access to HIV pre­ven­tion, diag­no­sis, treat­ment, care and sup­port.” (para­graph 19)

2018 Political declaration of the HLM on the fight against TB

• “Com­mit to pro­tect and pro­mote the right to the enjoy­ment of the high­est attain­able stan­dard of phys­i­cal and men­tal health, in order to advance towards uni­ver­sal access to qual­ity, afford­able and equi­table pre­ven­tion, diag­no­sis, treat­ment, care and edu­ca­tion related to tuber­cu­lo­sis and mul­tidrug-resis­tant tuber­cu­lo­sis and sup­port for those who become dis­abled due to tuber­cu­lo­sis, inte­grated within health sys­tems towards achiev­ing uni­ver­sal health cov­er­age and remov­ing bar­ri­ers to care; to address the eco­nomic and social deter­mi­nants of the dis­ease; and to pro­mote and sup­port an end to stigma and all forms of dis­crim­i­na­tion, includ­ing by remov­ing dis­crim­i­na­tory laws, poli­cies and pro­grammes against peo­ple with tuber­cu­lo­sis, and through the pro­tec­tion and pro­mo­tion of human rights and dig­nity, as well as poli­cies and prac­tices which improve out­reach, edu­ca­tion and care.” (para­graph 28)

2017 Resolution on international cooperation to address and counter the world drug problem

• “Encour­ages the devel­op­ment, adop­tion and imple­men­ta­tion, with due regard for national, con­sti­tu­tional, legal and admin­is­tra­tive sys­tems, of alter­na­tive or addi­tional mea­sures with regard to con­vic­tion or pun­ish­ment in cases of an appro­pri­ate nature, in accor­dance with the three inter­na­tional drug con­trol con­ven­tions and tak­ing into account, as appro­pri­ate, rel­e­vant United Nations stan­dards and rules, such as the United Nations Stan­dard Min­i­mum Rules for Non-cus­to­dial Mea­sures (the Tokyo Rules).” (para­graph 24)

2016 Political Declaration on HIV and AIDS

• “Express grave con­cern that, despite a gen­eral decline in dis­crim­i­na­tory atti­tudes and poli­cies towards peo­ple liv­ing with, pre­sumed to be liv­ing with, at risk of and affected by HIV, includ­ing those co-infected by tuber­cu­lo­sis, par­tic­u­larly in coun­tries with a high tuber­cu­lo­sis/HIV bur­den, dis­crim­i­na­tion con­tin­ues to be reported, and that restric­tive legal and pol­icy frame­works, includ­ing those related to HIV trans­mis­sion, con­tinue to dis­cour­age and pre­vent peo­ple from access­ing pre­ven­tion, treat­ment, care and sup­port ser­vices.” (para­graph 44)

• “Com­mit to strength­en­ing mea­sures at the inter­na­tional, regional, national, and local and com­mu­nity lev­els to pre­vent crimes and vio­lence against, and vic­tim­iza­tion of, peo­ple liv­ing with, at risk of and affected by HIV and fos­ter social devel­op­ment and inclu­sive­ness, inte­grat­ing such mea­sures into over­all law enforce­ment efforts and com­pre­hen­sive HIV poli­cies and pro­grammes as key to reach­ing the global AIDS fast-track tar­gets and the Sus­tain­able Devel­op­ment Goals, and review­ing and reform­ing, as needed, leg­is­la­tion that may cre­ate bar­ri­ers or rein­force stigma and dis­crim­i­na­tion, such as age of con­sent laws, laws related to HIV non-dis­clo­sure, expo­sure and trans­mis­sion, pol­icy pro­vi­sions and guide­lines that restrict access to ser­vices among ado­les­cents, travel restric­tions and manda­tory test­ing, includ­ing of preg­nant women, who should still be encour­aged to take the HIV test, to remove adverse effects on the suc­cess­ful, effec­tive and equi­table deliv­ery of HIV pre­ven­tion, treat­ment care and sup­port pro­grammes to peo­ple liv­ing with HIV.” (para­graph 63(b))

• “Com­mit to inten­si­fy­ing national efforts to cre­ate enabling legal, social and pol­icy frame­works in each national con­text in order to elim­i­nate stigma, dis­crim­i­na­tion and vio­lence related to HIV, includ­ing by link­ing ser­vice providers in health-care, work­place, edu­ca­tional and other set­tings, and pro­mot­ing access to HIV pre­ven­tion, treat­ment, care and sup­port and non-dis­crim­i­na­tory access to edu­ca­tion, health-care, employ­ment and social ser­vices, pro­vid­ing legal pro­tec­tions for peo­ple liv­ing with, at risk of and affected by HIV, includ­ing in rela­tion to inher­i­tance rights and respect for pri­vacy and con­fi­den­tial­ity, and pro­mot­ing and pro­tect­ing all human rights and fun­da­men­tal free­doms.” (para­graph 63(c))

• “Com­mit to national AIDS strate­gies that empower peo­ple liv­ing with, at risk of and affected by HIV to know their rights and to access jus­tice and legal ser­vices to pre­vent and chal­lenge vio­la­tions of human rights, includ­ing strate­gies and pro­grammes aimed at sen­si­tiz­ing law enforce­ment offi­cials and mem­bers of the leg­is­la­ture and judi­ciary, train­ing health-care work­ers in non-dis­crim­i­na­tion, con­fi­den­tial­ity and informed con­sent, and sup­port­ing national human rights learn­ing cam­paigns, as well as mon­i­tor­ing the impact of the legal envi­ron­ment on HIV pre­ven­tion, treat­ment, care and sup­port.” (para­graph 63(e))

• “Com­mit to pro­mot­ing laws and poli­cies that ensure the enjoy­ment of all human rights and fun­da­men­tal free­doms for chil­dren, ado­les­cents and young peo­ple, par­tic­u­larly those liv­ing with, at risk of and affected by HIV, so as to elim­i­nate the stigma and dis­crim­i­na­tion that they face.” (para­graph 63(f))

2011 Political Declaration on HIV and AIDS

• “Com­mit to review, as appro­pri­ate, laws and poli­cies that adversely affect the suc­cess­ful, effec­tive and equi­table deliv­ery of HIV pre­ven­tion, treat­ment, care and sup­port pro­grammes to peo­ple liv­ing with and affected by HIV and to con­sider their review in accor­dance with rel­e­vant national review frame­works and time frames.” (para­graph 78)

2010 HRC Resolution on the elimination of discrimination against women

• “Calls upon States to ful­fil their inter­na­tional oblig­a­tions and com­mit­ments to revoke any remain­ing laws that dis­crim­i­nate on the basis of sex and remove gen­der bias in the admin­is­tra­tion of jus­tice, tak­ing into account the fact that those laws vio­late the human right of women to be pro­tected against dis­crim­i­na­tion.” (para­graph 5)

Expert precedents

2022 OHCHR Annual Report on Human Rights and HIV/AIDS

• “Rec­om­mend that States repeal, rescind or amend laws and poli­cies that cre­ate bar­ri­ers or restrict access to health ser­vices or that dis­crim­i­nate, explic­itly or in effect, against peo­ple liv­ing with HIV, par­tic­u­larly key pop­u­la­tions, women, girls and youth.” (para­graph 15(b))

2022 Report of the Special Rapporteur on the Right to Health

• “An inter­sec­tional and rights-based approach to vio­lence that addresses the root causes of such vio­lence, includ­ing the binary con­cep­tu­al­iza­tion of gen­der and het­ero­nor­ma­tive norms, and patri­ar­chal, racist, ableist and cap­i­tal­ist oppres­sion and deter­mi­nants of health in law and prac­tice, is urgently needed.” (para­graph 96)

2022 Report of the Independent Expert on SOGI: Law of Inclusion

• “In his 2018 coun­try visit to Geor­gia, the Inde­pen­dent Expert observed that a major­ity of the trans men he inter­viewed were miss­ing their mid­del fin­ger, and was sub­se­quently shocked to learn that a med­ical author­ity enti­tled to cer­tify a per­son as being a “true” trans per­son demanded that the said fin­ger be ampu­tated to cre­ate a pros­thetic penis as part of the require­ments for legal recog­ni­tion.” (para­graph 50)

2019 OHCHR Annual report on human rights and HIV

• “States should review and adopt leg­is­la­tion, pro­grammes and poli­cies to com­bat stigma and dis­crim­i­na­tion, vio­lence and abuse against peo­ple liv­ing with or at risk of HIV, with par­tic­u­lar atten­tion to key pop­u­la­tions. States should work with United Nations agen­cies, civil soci­ety, com­mu­ni­ties and key pop­u­la­tions to invest in pro­grammes, edu­ca­tion and other actions to elim­i­nate HIV-related stigma and dis­crim­i­na­tion in all areas of life, includ­ing through the Global Part­ner­ship for Action to Elim­i­nate All Forms of HIV-related Stigma and Dis­crim­i­na­tion. Regional and sub­re­gional net­works have an impor­tant role to play in rais­ing aware­ness and elim­i­nat­ing stigma and dis­crim­i­na­tion.” (para­graph 47(g))

2016 General Comment No.22 on the Right to Sexual and Reproductive Health

• “Non-dis­crim­i­na­tion, in the con­text of the right to sex­ual and repro­duc­tive health, also encom­passes the right of all per­sons, includ­ing les­bian, gay, bisex­ual, trans­gen­der and inter­sex per­sons, to be fully respected for their sex­ual ori­en­ta­tion, gen­der iden­tity and inter­sex sta­tus. Crim­i­nal­iza­tion of sex between con­sent­ing adults of the same gen­der or the expres­sion of one’s gen­der iden­tity is a clear vio­la­tion of human rights. Like­wise, reg­u­la­tions requir­ing that les­bian, gay, bisex­ual trans­gen­der and inter­sex per­sons be treated as men­tal or psy­chi­atric patients, or requir­ing that they be “cured” by so-called “treat­ment”, are a clear vio­la­tion of their right to sex­ual and repro­duc­tive health. State par­ties also have an oblig­a­tion to com­bat homo­pho­bia and trans­pho­bia, which lead to dis­crim­i­na­tion, includ­ing vio­la­tion of the right to sex­ual and repro­duc­tive health.” (para­graph 23)

• “States must not limit or deny any­one access to sex­ual and repro­duc­tive health, includ­ing through laws crim­i­nal­iz­ing sex­ual and repro­duc­tive health ser­vices and infor­ma­tion, while con­fi­den­tial­ity of health data should be main­tained. States must reform laws that impede the exer­cise of the right to sex­ual and repro­duc­tive health. Exam­ples include laws crim­i­nal­iz­ing abor­tion, non-dis­clo­sure of HIV sta­tus, expo­sure to and trans­mis­sion of HIV, con­sen­sual sex­ual activ­i­ties between adults, and trans­gen­der iden­tity or expres­sion.” (para­graph 40)

Evidence

2022 WHO Consolidated Guidelines on HIV, Viral Hepatitis and STI Prevention, Diagnosis, Treatment and Care for Key Populations

• “Qual­i­ta­tive research con­ducted by the global key pop­u­la­tion-led net­works for the devel­op­ment of this guide­line found that all key pop­u­la­tions reported crim­i­nal­iza­tion, stigma and dis­crim­i­na­tion as per­sis­tent bar­ri­ers to access­ing health ser­vices and remain­ing in treat­ment, as well as being dri­ving fac­tors in per­pet­u­at­ing vul­ner­a­bil­ity, human rights abuses and poor health out­comes. Par­tic­i­pants from the trans and gen­der diverse peo­ple’s net­work addi­tion­ally empha­sized struc­tural bar­ri­ers to legal gen­der recog­ni­tion.” (p. 16)

• “The crim­i­nal­iza­tion of drug use or pos­ses­sion, sex work, same-sex rela­tions and gen­der expres­sion deter mem­bers of key pop­u­la­tions from access­ing ser­vices due to fears of legal reper­cus­sions. It was also noted how crim­i­nal­iza­tion per­pet­u­ates the exclu­sion of key pop­u­la­tion-led and rights- based health pro­gram­ming from fund­ing mech­a­nisms and state health responses. Par­tic­i­pants in the qual­i­ta­tive study addi­tion­ally noted that law enforce­ment using the pos­ses­sion of con­doms and inject­ing equip­ment as so-called evi­dence of sex work and drug use or pos­ses­sion fur­ther hin­ders the use of evi­dence-based pre­ven­tion ser­vices and com­modi­ties.” (p. 16)

• “These legal bar­ri­ers have mea­sur­able, detri­men­tal effects on the health of mem­bers of key pop­u­la­tions, shown by mod­el­ling and other research. For exam­ple, a sys­tem­atic review found asso­ci­a­tions between expo­sure to arrest and HIV infec­tion in peo­ple who inject drugs; in coun­tries in sub-Saha­ran Africa, the odds of liv­ing with HIV were found to be 7.2 times higher for sex work­ers in coun­tries that crim­i­nal­ize sex work com­pared to coun­tries that par­tially legal­ize sex work; repres­sive polic­ing of sex work­ers was asso­ci­ated with increased risk of HIV or other STIs (odds ratio of 1.87); and sex work­ers exposed to repres­sive polic­ing were three times more likely to be phys­i­cally or sex­u­ally assaulted. The crim­i­nal­iza­tion of the clients of sex work­ers has also been repeat­edly shown to neg­a­tively affect sex work­ers’ safety and health, includ­ing reduc­ing con­dom access and use, and increas­ing the rates of vio­lence. Stud­ies show the neg­a­tive effect of crim­i­nal­iza­tion of same-sex prac­tices on HIV preva­lence and access to pre­ven­tion, diag­no­sis and treat­ment ser­vices.” (p. 18)

2021 State of World Population

• “For exam­ple, where peo­ple’s iden­ti­ties or pro­fes­sions might be crim­i­nal­ized, such as trans­gen­der peo­ple or sex work­ers, stigma and dis­crim­i­na­tion in health facil­i­ties is often known to be high, act­ing as a bar­rier to access to ser­vices that can play a role in pro­tect­ing bod­ily auton­omy.” (p. 107)

• “A recent report pointed out that puni­tive legal envi­ron­ments, com­bined with stigma, dis­crim­i­na­tion and high lev­els of vio­lence, placed gay men and other men who have sex with men at high risk of HIV infec­tion because they are dri­ven under­ground out of fear of pros­e­cu­tion or other neg­a­tive con­se­quences. As a result, they do not receive appro­pri­ate health edu­ca­tion, and are reluc­tant to seek health-care ser­vices, test­ing and treat­ment.” (p. 64–65)

2020 Evidence Review of the UNAIDS Strategy 2016-2021

• “The effec­tive­ness of var­i­ous struc­tural approaches is also evi­dent, includ­ing reforms to laws that crim­i­nal­ize drug use. Crim­i­nal­iza­tion has been shown to under­mine HIV pre­ven­tion and treat­ment. It is esti­mated that decrim­i­nal­iza­tion of sex work would reduce 33–46% of new HIV infec­tions over a decade.” (p. 53)

• “Coun­tries urgently need to inten­sify efforts to elim­i­nate stigma and dis­crim­i­na­tion, which con­tinue to under­mine HIV pre­ven­tion efforts. This is true gen­er­ally and but espe­cially salient for key pop­u­la­tions. Recent sys­tem­atic reviews and meta-analy­ses found that African coun­tries with oppres­sive anti-LGBT laws have low lev­els of HIV test­ing and aware­ness among gay men and other men who have sex with men, and their size esti­mates for those pop­u­la­tions are either absent or unre­al­is­ti­cally low. Gay men and other men who have sex with men who live in coun­tries that crim­i­nal­ize same-sex rela­tions are more than twice as likely to acquire HIV as their peers liv­ing in coun­tries with­out such crim­i­nal penal­ties. Those liv­ing in coun­tries with severe crim­i­nal­iza­tion are almost five times as likely to acquire HIV as those liv­ing in coun­tries with­out such crim­i­nal penal­ties.” (p. 57)

• “Laws and poli­cies pre­vent many ado­les­cent girls from mak­ing deci­sions about their own sex­ual and repro­duc­tive health or access­ing essen­tial health ser­vices, includ­ing for con­tra­cep­tion and HIV-related ser­vices. In 2019, 105 of 142 coun­tries with avail­able data required that ado­les­cents have parental or guardian con­sent to access HIV test­ing. In 86 of 138 report­ing coun­tries, they needed sim­i­lar con­sent to access HIV treat­ment and care. A recent mul­ti­coun­try review in sub-Saha­ran Africa found that laws allow­ing young peo­ple younger than 16 years to access HIV test­ing with­out parental con­sent were asso­ci­ated with a 74% increased like­li­hood of HIV test­ing uti­liza­tion among ado­les­cents. Dis­crim­i­na­tory crim­i­nal­iza­tion laws linked to HIV can dis­pro­por­tion­ately affect women, as women are more likely than men to know their HIV sta­tus as a result of rou­tine HIV screen­ing in ante­na­tal care.” (p. 67)

2016 Prevention Gap Report

• “For exam­ple, when pos­ses­sion of inject­ing equip­ment or con­doms is used by crim­i­nal jus­tice sys­tems as evi­dence of drug use or sex work, peo­ple at high risk of HIV infec­tion are less likely to use these proven pre­ven­tion tools.” (p. 24)

• “Crim­i­nal­iza­tion of drug pos­ses­sion and use per­pet­u­ates risky forms of drug use, increases HIV risk, dis­cour­ages peo­ple who use drugs from seek­ing health care, and rein­forces the mar­gin­al­iza­tion of peo­ple who use drugs. Presently, 11 coun­tries have com­pul­sory deten­tion and 15 have death penal­ties for peo­ple who used drugs.” (p. 44)

• “Crim­i­nal jus­tice sys­tems that use pos­ses­sion of drug para­pher­na­lia or drug residue within inject­ing equip­ment as evi­dence of ille­gal drug pos­ses­sion or use are par­tic­u­larly dis­rup­tive to nee­dle–syringe pro­grammes. Syringe con­fis­ca­tion has been asso­ci­ated with increases in HIV infec­tion among female sex work­ers who inject drugs. In parts of east­ern Europe and cen­tral Asia, non­gov­ern­men­tal orga­ni­za­tions report that police may con­sider nee­dle–syringe dis­tri­bu­tion as pro­mo­tion of ille­gal drug use, which leads to a high rate of turnover among out­reach work­ers who fear they may be arrested for car­ry­ing inject­ing equip­ment.” (p. 50)