GENEVA, 13 June 2019—UNAIDS welcomes the decision of the Constitutional Court of Colombia to remove the section of the criminal code that criminalizes HIV and Hepatitis B transmission. Overly broad criminalization of HIV transmission is ineffective, discriminatory and does not support efforts to prevent new HIV infections.

“Public health goals cannot be pursued by denying people their individual rights. The decision by the Constitutional Court of Colombia is a concrete step to ensure the law works for the HIV response, and not against it,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS will continue to advocate for a protective legal environment and the removal of punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV.”

The Constitutional Court of Colombia established that the law violated the principles of equality and non-discrimination, as it singled out people living with HIV, stigmatising them and limiting their rights. The Court established that the law created a differential treatment that is not reasonable —and therefore constituted discrimination. The Court further established that such law violated the sexual rights of people living with HIV and it was ineffective to meet any public health objectives.

Overly broad and inappropriate application of criminal law against people living with HIV remains a serious concern across the globe. Nine jurisdictions in South and Central America and at least 77 others worldwide still criminalize HIV non-disclosure, exposure and transmission.

UNAIDS filed an intervention before the Constitutional Court of Colombia indicating that no data support the broad application of criminal law to HIV transmission to prevent HIV transmission. Rather, such application risks undermining public health goals and human rights protections. UNAIDS strongly commends the decision taken by the Constitutional Court to restore the dignity and rights of people living with HIV in Colombia.

In 2018, UNAIDS, the International Association of Providers of AIDS Care and the International AIDS Society convened an expert group of scientists who developed an Expert Consensus Statement on the Science of HIV in the Context of Criminal Law. The statement calls on the criminal justice system to ensure science informs the application of the law in criminal cases related to HIV. 

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

GENEVA, 24 May 2019 — UNAIDS deeply regrets the decision of the High Court of Kenya to maintain key provisions of Sections 162 and 165 of the Kenyan Penal Code. Those provisions criminalize certain private sexual acts and lead to discrimination and violence against lesbian, gay, bisexual and transgender (LGBT) people in Kenya.

“Today’s ruling is a missed opportunity for Kenya to uphold human rights and to restore privacy, respect and dignity to the lesbian, gay, bisexual and transgender (LGBT) community,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “I share the deep disappointment and frustration felt by LGBT people in Kenya and I want to assure them of UNAIDS’ continued support in reaching justice and equality for all.”

UNAIDS has been working together with the National Gay and Lesbian Human Rights Coalition and other LGBT groups as well as civil society organizations and other partners to promote a more enabling legal environment in Kenya.

There are indications that the judgement will be appealed.

Criminalization of consensual same-sex sexual relations is a violation of human rights and legitimizes stigma, discrimination and violence against LGBT people. Criminalization stops people from accessing and using HIV prevention, testing and treatment services and increases their risk of acquiring HIV.

“The failure to decriminalize consensual same-sex relations will undermine Kenya’s aim of reaching universal health coverage,” said Ms Carlsson.

Globally, the risk of acquiring HIV is 28 times higher among gay men and other men who have sex with men than among the general population and 13 times higher for transgender women. Prohibitive legal and policy environments and a lack of tailored services for key populations increase their vulnerability to HIV. UNAIDS urges countries to ensure the full respect of the human rights of all people, regardless of their sexual orientation, through repealing laws that prohibit sex between consenting adults in private, enforcing laws to protect people from violence and discrimination, addressing homophobia and transphobia and ensuring that crucial health services are made available.

“We need to move towards a more humane, compassionate and rights-based approach towards same-sex relations worldwide. This decision entrenches unjust laws that criminalize same-sex sexual relations and block people’s access to essential services, including to health care,” said Ms Carlsson.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

GENEVA, 22 May 2019—The West Africa Commission on Drugs, UNAIDS and the Global Commission on Drug Policy today presented the Model Drug Law for West Africa to ministers of health of the Economic Community of West African States.

Drug laws in western Africa are not having the intended effect. Neither drug use nor drug trafficking have been effectively reduced. Drug trafficking in western Africa has reached such an extent that the drug trade threatens stability in the region. Data from the United Nations Office on Drugs and Crime from 2014 show that the use of cannabis in western Africa is much higher than globally―12.4% of people in the region had used cannabis in 2014, whereas only 3.9% of the global population had done so―and the problematic use of prescription and synthetic drugs is increasing. The rise in prison populations owing to pre-trial detention and drug-related offences has led to serious prison overcrowding in most countries.

“People who use drugs need help and care, not punishment. Stigmatizing them and locking them up in ever-increasing numbers only worsens health issues and puts enormous pressure on the already over-stretched criminal justice systems,” said Olusegun Obasanjo, former President of Nigeria and Chair of the West Africa Commission on Drugs. “It took our region years to adopt evidence-based policies regarding the response to HIV, and we are now enjoying life-saving successes every year. Our view is that drug policy needs the same pragmatic, health-based and people-centred approach as the HIV response.”

The model drug law provides concrete templates that countries can adapt to reform their drug laws—legal provisions and how they relate to international legal obligations—as well as useful commentary that explains different options and reasons for choosing the proposed legal solution. The model drug law offers a measured way for decriminalizing drug use and possession for personal use by introducing thresholds, thereby allowing people who use drugs to access health services and seek support. The model drug law acknowledges that barriers must also be removed so that the millions of people in need of health services, including people living with cancer or with HIV, can access the treatment and care they need.

“Countries need to take a human rights approach to HIV and drug use and to make sure that the health and well-being of people come first,” said Gunilla Carlsson, UNAIDS Executive Director, a.i., while presenting the report to the ministers of health on the margins of the seventy-second session of the World Health Assembly, being held in Geneva, Switzerland. “We know that harm reduction works, we know that decriminalization works―countries cannot continue to disregard the evidence and urgently need to take action.”

The widespread stigma and discrimination, violence and poor health faced by people who inject drugs are compounded by high rates of HIV. While the incidence of HIV infection globally declined by 25% between 2010 and 2017, new HIV infections among people who inject drugs continue to rise. Of the 10.6 million people who injected drugs worldwide in 2016, more than half were living with hepatitis C, and one in eight were living with HIV.

International experience has shown that it is possible to muster the political will to make these wide-ranging changes to drug laws in order to address the spread of infectious diseases and their burden on development. Ruth Dreifuss, former President of Switzerland and Chair of the Global Commission on Drug Policy, said, “This is a defining moment where governments can turn the tide and control health epidemics by providing the right sets of prevention, treatment and harm reduction tools, or fail to do so if they maintain the prohibitionist status quo.” 

Global Commission on Drug Policy  

The purpose of The Global Commission on Drug Policy is to bring to the international level an informed, science-based discussion about humane and effective ways to reduce the harm caused by drugs and drug control policies to people and societies.

West Africa Commission on Drugs

Convened by Kofi Annan, the West Africa Commission (WACD) on Drugs comprises a group of distinguished West Africans from the worlds of politics, civil society, health, security and the judiciary. The Commission, chaired by former President Olusegun Obasanjo of Nigeria, is an independent body and can therefore speak with impartiality and directness.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

VIENNA/GENEVA, 15 March 2019—A coalition of United Nations Member States, United Nations entities and leading human rights experts meeting at the Commission on Narcotic Drugs in Vienna, Austria, today launched a landmark set of international legal standards to transform and reshape global responses to the world drug problem.

The International Guidelines on Human Rights and Drug Policy introduce a comprehensive catalogue of human rights standards. Grounded in decades of evidence, they are a guide for governments to develop human rights compliant drug policies, covering the spectrum from cultivation to consumption. Harnessing the universal nature of human rights, the document covers a range of policy areas, from development to criminal justice to public health.  

The guidelines come at an important moment, when high-level government representatives are convening at the Commission on Narcotic Drugs to shape a new global strategy on drugs. Under the mounting weight of evidence that shows the systemic failures of the dominant punitive paradigm, including widespread human rights violations, governments are facing growing calls to shift course.

“Drug control policies intersect with much of the 2030 Agenda for Sustainable Development and the pledge by Member States to leave no one behind. Approaches that violate human rights and fail to curb the illicit drug trade are leaving a trail of human suffering,” said Mandeep Dhaliwal, Director of the United Nations Development Programme’s HIV, Health and Development Group. “For countries who are ready to place human dignity and sustainable development at the heart of their drug control policy, these guidelines offer valuable guidance to promote more effective and humane drug control policy.”

Seeking to promote the rule of law, the guidelines feature recommendations across the administration of justice—including discriminatory policing practices, arbitrary arrest and detention and decriminalization of drugs for personal use—and articulate the global state of human rights law in relation to drug policy, which includes ending the death penalty for drug-related offences.

At least 25 national governments—from Argentina to South Africa—have scrapped criminal penalties for the possession of drugs for personal non-medical use, either in law or in practice, setting an example for others to follow. The United Nations system has jointly called for decriminalization as an alternative to conviction and punishment in appropriate cases.

“Punishment and exclusion have been instrumental to the war on drugs,” said Judy Chang, Executive Director of the International Network of People who Use Drugs. “The time has come to privilege human dignity over social isolation and champion human rights, putting an end to the shameful legacy of mass incarceration.”

Beyond moving away from a punitive approach to drugs, the guidelines make clear that a human rights approach is critical in improving people’s enjoyment of the right to health, to live free from torture and to an adequate standard of living. In accordance with their right to health obligations, countries should ensure the availability and accessibility of harm reduction services, which should be adequately funded, appropriate for the needs of vulnerable groups and respectful of human dignity.

“Ninety-nine per cent of people who inject drugs do not have adequate access to harm reduction services and are left behind in the progress against HIV,” said Michel Sidibé, Executive Director of UNAIDS. “More than 12% of people who inject drugs are living with HIV and over half have hepatitis C. The only way to advance progress is to put people at the centre, not drugs.”

The guidelines highlight the importance of protecting the rights of farming communities—especially women—to arable land. Consistent with international standards, they suggest that governments temporarily permit the cultivation of illicit drug crops when necessary to allow for smooth transitions to more sustainable livelihoods. Thailand’s success in supporting opium famers to transition to alternative livelihoods is one such example.

“Human rights should not just inform critiques of the response to drugs worldwide, they should also be the main drivers of its reform, underpinning checks and balances to break cycles of abuse,” said Julie Hannah, Director of the International Centre on Human Rights and Drug Policy, University of Essex, United Kingdom of Great Britain and Northern Ireland. “Fighting inequality and injustice is a more effective way of addressing the global drug problem than prisons and police,” she added.

The guidelines will support United Nations Member States, multilateral organizations and civil society to integrate the United Nations Charter and the Universal Declaration of Human Rights into national and global policy-making.

UNDP

UNDP partners with people at all levels of society to help build nations that can withstand crisis, and drive and sustain the kind of growth that improves the quality of life for everyone. On the ground in nearly 170 countries and territories, we offer global perspective and local insight to help empower lives and build resilient nations. www.undp.org.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

On the night of 6 February 2009 in Georgetown, Guyana, seven transgender women were rounded up by the police and detained for the weekend. The following Monday, in the Georgetown Magistrates Court, they learned that they had been charged with cross-dressing. They pleaded guilty, were convicted and were each ordered to pay a fine. But not before being admonished by the Magistrate that they were “confused about their sexuality.”

With support from the Faculty of Law University of the West Indies Rights Advocacy Project, U-RAP, the group challenged the nineteenth century Guyanese law that bars men from dressing like women, and women from dressing like men “for an improper purpose”. On 13 November 2018, Guyana’s final court of appeal, the Caribbean Court of Justice (CCJ), ruled unanimously that the law violates the Constitution of Guyana and is therefore void.

“No one should have his or her dignity trampled on, or human rights denied, merely on account of a difference,” CCJ President, Adrian Saunders, said.

For U-RAP Co-Coordinator and law lecturer Tracy Robinson, this was a step towards addressing the unequal power and unequal life chances of many Caribbean people. 

"Laws do not apply evenly to everyone: those with the least resources and those marginalized are at greatest risk. Trans women are not the only ones who face lives which are cut short by state action and state inaction. There are many other instances in which we leave out and exclude those who are integral and part of our societies,” Ms Robinson said.

HIV is one manifestation of the way vulnerable communities are left behind. In the region, HIV prevalence among key populations is much higher than among adults generally. For example, among transgender women in Guyana—one of the few Caribbean countries with data on this population—the HIV prevalence is 8.4%, compared with 1.7% among all adults. Relevant Caribbean data indicate that HIV prevalence among gay men and other men who have sex with men ranges between 1.3% and 32.8%. The combination of discriminatory laws, stigma and discrimination and the relative lack of friendly services for members of key populations drives people underground, blocking them from HIV prevention and treatment services.

But in some countries, partners are acting to challenge the constitutionality of discriminatory laws held over from the colonial era. Through a case also supported by U-RAP, Caleb Orozco challenged the law in Belize that made “carnal intercourse against the order of nature,” which includes anal sex, a crime punishable by up to 10 years imprisonment. On 10 August 2016, Belize became just the second independent Commonwealth Caribbean country to decriminalize sex between men, and the first to do so through its courts.

And in Trinidad and Tobago the High Court ruled in favour of Jason Jones on 12 April 2018, finding that sexual activity between consenting adults should not be criminalized. This ruling was cited in the landmark Indian Supreme Court decision in 2018 decriminalizing gay sex.

UNAIDS is contributing to community engagement and communication around these issues, including supporting public forums in Belize and Trinidad and Tobago and the sensitization of journalists reporting on the transgender community in Guyana.

For the litigants, these victories are one step forward in a long journey towards equity.

“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 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,” Mr Orozco said.

Litigant and co-founder of Guyana Trans United, Gulliver Quincy McEwan, said “It was very important for us to be heard and get justice.”

Prosecutions of people living with HIV for acts that pose no risk of HIV exposure or transmission prompt scientists to issue a statement urging the criminal justice system to use science when considering prosecution of HIV non-disclosure, exposure or transmission

AMSTERDAM/GENEVA, 25 July 2018—A group of 20 leading HIV scientists from around the world have issued a scientific consensus statement urging governments and people working in the legal and justice systems to pay close attention to the significant advances in HIV science to ensure that science informs the application of criminal law in cases related to HIV.

“Science has greatly advanced in recent years which has been critical in allowing countries to make evidence informed decisions in their HIV programming,” said Michel Sidibé, Executive Director of UNAIDS. “With all the new scientific advances now available we need to continue to use science as evidence to deliver justice. No one should face criminalization because of a lack of information or understanding by the justice system about the risks of HIV transmission.”

The expert group of scientists, convened by UNAIDS, the International Association of Providers of AIDS Care (IAPAC) and the International AIDS Society, warn that an overly broad and inappropriate application of criminal law against people living with HIV remains a serious concern across the globe. Around 73 countries have laws that criminalize HIV non-disclosure, exposure or transmission, and 39 countries have applied other criminal law provisions in similar cases.

“Many of these laws do not take into account measures that reduce HIV transmissibility, including condom use, and were enacted well before the preventive benefit of antiretroviral therapy or pre-exposure prophylaxis was fully characterized,” said José M. Zuniga, IAPAC President and Chief Executive Officer. “Most people living with HIV who know their status take steps to prevent transmitting HIV to others. Laws that specifically criminalize HIV non-disclosure, exposure, or transmission thus primarily exacerbate HIV-related stigma and decrease HIV service uptake.”

Most prosecutions have occurred based on perceived risk of HIV transmission through sexual activity. Some have also occurred for biting, spitting or even scratching. Prosecutions, and convictions, have often been influenced by a lack of knowledge or appreciation of scientific evidence regarding the possibility of transmission of the virus. In many instances, they have been influenced by deep-rooted stigma and fear associated with HIV, which still exists despite the huge advances in HIV treatment and prevention.

“We support this globally relevant expert consensus statement, for which we have been long-time advocates,” said HIV Justice Network’s Senior Policy Analyst Sally Cameron, on behalf of the Steering Committee of HIV Justice Worldwide, a global civil society coalition campaigning to end unjust prosecutions. “HIV criminalization is a growing global phenomenon that unfairly targets people living with HIV through criminal prosecutions and harsh penalties. This welcome statement makes the case that our current understanding of HIV science, alongside key human rights and legal principles, does not support this miscarriage of justice.”

The peer-reviewed consensus statement, endorsed by 70 additional scientists from around the world, was released today in the Journal of the International AIDS Society. It describes scientific evidence on the possibility of HIV transmission under various circumstances, the long-term impact of HIV infection and the means of proving HIV transmission so that it is better understood in criminal law contexts.

Based on a detailed analysis of the best available scientific evidence on HIV transmission and treatment effectiveness, the statement notes that there is no possibility of HIV transmission through saliva as a result of biting or spitting, even where saliva contains small quantities of blood. There is no to negligible possibility of HIV transmission where a condom is used correctly during sex, or where a partner living with HIV has an undetectable viral load.

In addition, effective antiretroviral therapy, low viral load, the use of pre-exposure prophylaxis (antiretroviral drugs taken by an HIV-negative person before a possible exposure), or post-exposure prophylaxis (antiretroviral medicines taken after a possible exposure) all significantly reduce the possibility of HIV transmission.

International guidance on HIV in the context of the criminal law recommends that “proof of causation, in relation to HIV transmission, should always be based on evidence derived from a number of relevant sources, including medical records, rigorous scientific methods and sexual history” (Ending overly broad criminalization of HIV non-disclosure, exposure and transmission: critical scientific, medical and legal considerations).

The experts recommend strongly that more caution be exercised when considering criminal prosecution, including careful appraisal of current scientific evidence on HIV risk and harms. The consensus statement is expected to help policymakers, prosecutors and courts be guided by the best available science and thereby avoid the misuse of the criminal law, as is currently happening in many countries worldwide.

Read the full Expert Consensus Statement on the Science of HIV in the Context of Criminal Law

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.