Since HIV was discovered and the first cases of AIDS were reported in 1981 there have been ongoing discussions about the criminalisation of HIV transmission, exposure and non-disclosure, and vulnerable populations most affected by HIV.

It is no secret that people from marginalised groups who are living with or most affected by HIV are often criminalised and at risk of contracting HIV as well as experience violence, stigma, and discrimination, which inevitably affect their access to health care. Criminalisation undermines effective HIV prevention, treatment, care, and support as people might become fearful of being prosecuted. Such laws are unconstitutional, discriminatory, and a breach of equality.

The 2022 UNAIDS Global AIDS report ‘In danger’ states that 134 countries impose punitive measures on HIV transmission, exposures, and non-disclosure of status, and now 68 countries worldwide still criminalise consensual same-sex relations. There are 14 countries within Latin America and the Caribbean that have HIV-specific criminal laws. Criminalisation of HIV flies in the face of human rights as it is discriminatory and limits access to health services. The human cost of such punitive policies on people living with HIV or key populations who are at substantial risk of HIV transmission is unimaginable.

Data from a study in 2021 found the rates of viral suppression were 8.1 per cent lower in countries that criminalise same-sex relations; 5.9 per cent lower under sex work criminalisation; and 14.5 per cent lower when drug use was criminalised. Criminal and punitive laws against key populations, such as sex workers, heighten vulnerability to HIV and undermine access to HIV prevention, testing, treatment, and care services. For example, it was found that sex workers living in countries where there are laws that criminalise sex work were seven times more likely to be living with HIV.

The Global AIDS Strategy expressly recognises that decriminalisation is a societal enabler of the HIV response and necessary to achieve the global AIDS targets toward ending AIDS as a public health threat by 2030. The 2021 political declaration, endorsed by 165 governments at the UN General Assembly, agreed to the ambitious 2025 global targets, amongst which there was a commitment to achieve the 10-10-10 targets: less than 10 per cent of countries with legal and policy environments that deny or limit access to HIV services; less than 10 per cent of people living with HIV and key populations experiencing stigma and discrimination; and less than 10 per cent of people living with HIV, women and girls and key populations experiencing gender-based inequalities and gender-based violence.

To be successful in reforming the punitive legal and policy environment, we need champions and advocates who understand how the legal system works, either as duty-bearers or rights holders. We need the legislature, judiciary, and law enforcement officers actively engaged with communities and civil society to dialogue on how these punitive laws affect people and a whole-of-society approach, led by communities and networks, to discuss the issues of human rights and how to find solutions to discriminatory policies that limit access to social protection measures in the context of their economic, social, and cultural rights.

Research increasingly suggests that punitive laws against consensual same sex perpetuate deep and profound social stigma and discrimination against people living with HIV and the LGBT community. It impacts their health and well-being, thus becoming a significant obstacle to improving health outcomes. For instance, avoidance of sexual health services, including HIV testing and treatment, for fear of being stigmatised by the health-care workers or the wider society. Such laws help prevent key populations from realising their economic, social, and cultural rights by helping to sustain stigma and discrimination and are barriers to LGBT people seeking and receiving health care.

In fact, such discriminatory laws prevent the building of a more open, just, tolerant, and inclusive society in which people can be who they are, equal before the law, and love who they want without fear of being incarcerated or their right to privacy and freedom of expression being violated.

Criminal laws drive and sustain public health inequalities. They legitimise stigma, discrimination, and violence against LGBT people, increasing their risk of contracting HIV while reducing access to life-saving care.

Even though decriminalisation is not the end point in tackling stigma and exclusion, it is a vital step forward in having a just, inclusive, and equal society. It is very important to protect human rights and decriminalisation saves lives by improving access to high-quality, dignified, and rights-based health services. It protects vulnerable and marginalised populations that are disproportionately impacted by HIV as they contribute seven in every 10 new HIV infections globally.

If there is continued overuse of archaic criminal laws, governments will continue to violate human rights, which lends itself to a perpetuation of stigma and discrimination.

To end the AIDS epidemic, technocrats and lawmakers must see the implementation of such laws and sanctions as a violation of rights. Decriminalisation is not the only solution, but it is a critical part of what we need to do to end AIDS.

It is important to remind people about how far the AIDS response has come, after more than 40 years as a pandemic without a cure or vaccine.

Inequalities continue to drive the HIV epidemic everywhere. There is a need to end criminalisation of groups that are most affected and protect the rights and privacy and confidentiality of people, regardless of their health status, gender identity, occupation, or sexual orientation.

Dr Richard Amenyah is a public health specialist from Ghana and the director for UNAIDS in the Caribbean.

Eltonette Anderson is a public health practitioner and postgraduate student at Walden University.