Garcia Ruiz J, Duran Silva S, Caicedo Rodriguez L, Perez Rodríguez M, Duarte Escobar D, Leon Marin A. Decriminalizing HIV in Colombia. HPHR. 2021;14.
HIV criminalization is a counterproductive strategy that does not respond to scientific evidence and undermines public health. Since 1987, multiple countries included offenses in their criminal codes related to the transmission of HIV or the non-disclosure of HIV-positive status to sexual partners. The Colombian criminal code established that any person that was aware of having HIV or hepatitis B infection and displayed any actions that could spread the diseases would be sentenced to six to twelve years of prison. Nineteen years later, the Colombian Constitutional Court decided a case which challenged the criminal offence that penalized HIV and Hepatitis B Transmission. With the support of multiple evidence-based and human rights arguments from the civil organizations and the academia, the Court ruled in favor of eliminating the HIV and Hepatitis B transmission offense from the criminal code, recognizing that people diagnosed with HIV have been subject to stigmatization and discrimination. The high court also condemned the criminalization of HIV as it discouraged people from accessing to diagnostic tests, especially in high-risk groups already disproportionately profiled by the justice system. The Colombian case provides an example of how litigation could be explored to eliminate HIV criminalization in other countries.
During the last 30 years, the fight against HIV/AIDS has increasingly gained the international community’s attention as a global health issue. Since the first cases reported by the United States Center for Disease Control and Prevention (CDC) in 1981, HIV has become a global concern claiming the attention and modification of governmental and scientific agendas (Curran & Jaffe, 2011).
Understanding the disease and providing access to generic drugs became a pressing concern, necessary to tackle the public
health crisis caused by HIV/AIDS.
Unfortunately, fighting the stigma generated by the laws that criminalize HIV has become another complex challenge to patients, families, and communities worldwide. In 1987, the United States became the first country to introduce HIV-specific criminal laws (United States Presidential Commission on the Human Immunodeficiency Virus Epidemic, 1988) and since then, multiple countries reformed their legal systems to criminalize the transmission of HIV or the non-disclosure of HIV-positive status to sexual partners (Webb, 2020). This phenomenon progressed to the point that, as of September 2018, almost 70 countries punished HIV-related actions, such as transmission, non-disclosure, or exposure, and more than 30 prosecuted individuals based on their criminal laws (The Lancet HIV, 2018).
HIV criminalization usually entails intersectional discriminatory realities targeted to gender diverse communities and low groups. Therefore, appropriate interventions should also dispel stigma and ensure a non-discriminatory and evidence-informed approach in order to balance the rights of individuals (Bekker et al., 2018). In this sense, the 2030 Agenda for Sustainable Development and the Political Declaration on HIV and AIDS upholds the values of inclusion and social justice to build more egalitarian societies (UNAIDS, 2016). According to an expert consensus of 20 scientists, advances related to HIV must orient the HIV criminalization policy to curtail unfair prosecution and convictions (Barré-Sinoussi et al., 2018). Updated scientific information aligned with criminal law is an effective response to advance social justice and withstand stigma and discrimination against HIV (Positively Aware, 2018).
Colombia’s criminal legislation started to target HIV specifically at the beginning of the 1990s. The Decree 559 of 1991 established that anyone who had been notified of being infected with HIV and deliberately did something that could potentially infect other persons could be criminally prosecuted (Decreto 559, 1991). In 1998, the Attorney General’s Office presented to the Colombian Congress a proposal for a new criminal code which included HIV transmission as a specially defined criminal offense. Article 370 of the enacted Law 599 of 2000 established that any person that was aware of having HIV or hepatitis B infection and displayed any actions that could spread the diseases would be sentenced to three to eight years of prison (Ley 599, 2000). These actions would include anything from having unprotected sex without disclosing the HIV diagnostic, to permitting the further utilization of a syringe that has previously been used by the infected person. In 2004, the Colombian Congress passed a reform to increase penalties in the criminal code in general and then in 2008 approved another reform, this time aimed to increase penalties from offences related to public health (Ley 890, 2004; Ley 1220, 2008). The penalty in Article 317 ended up ranging between six to twelve years of prison.
According to data from the Attorney General’s Office of Colombia, 218 criminal investigations were opened amid 2010 and 2019 based on charges related to HIV and Hepatitis B Transmission (“HHT”), and eight people were convicted (6 males, one female, one with no gender record) for acts that took place between 2011 and 2017 (Fiscalía General de la Nación, 2021). By March 2021, three people were serving a sentence for HHT, two in prison and another in house arrest, according to the Colombian National Penitentiary and Prison Institute (Instituto Nacional Penitenciario y Carcelario – INPEC, 2021).
Traditionally, the decriminalization of HIV has been conducted through the same means as its criminalization: national and subnational laws (Scherer, 2021). The scientific evidence that has made true the statement that an HIV diagnostic is no longer a death sentence has provoked the modernization or reversal of criminal legislation. Nevertheless, this process has not been put forward with the same impetus in the judiciary. Even though there has been significant litigation on this subject, the decisions of judges have been focused more on when HIV-related behaviors are not punishable rather than in challenging criminal legislation in a broad fashion (Weait, 2019). A different approach was undertaken by a major Colombian court two years ago.
In 2019, the Colombian Constitutional Court decided their first and only case challenging Article 370 of Law 599 of 2000 in their Judgement C-248 (Sentencia C-248, 2019). According to the plaintiff, Felipe Chica, the legal establishment of this offense restricted the right to the free development of personality, protected by the Colombian Constitution, arguing that it affected the full enjoyment of sexuality. To Chica, this offence also proved discriminatory as it reprimanded two conditions (HIV and Hepatitis B) while other sexually transmitted diseases were not penalized.
During the judicial review, the Constitutional Court received interventions from public institutions, universities, NGOs, and individuals, including Edwin Cameron, former justice of the Constitutional Court of South Africa. The Ministry of Health and Social Protection and the Ministry of Justice and Law asked the Court to deny the plaintiff’s request and to declare the HHT offense to be constitutional. The government suggested that removing the penalty for HHT from the criminal code could pose a risk to public health by generating new cases of HIV and by increasing the already enormous costs of HIV transmission.
On the contrary, most universities, NGOs, and Justice Cameron argued that people with these HIV and Hepatitis B were frequently discriminated against and needed superior constitutional protection. They also noted that the national and even global strategy against HIV should be periodically renewed based on medical and technical evidence. HIV criminalization, they argued, was especially harsh against groups like men that have sex with men (MSM) and could consequently result in discriminatory dynamics sponsored by the government.
A significant part of arguments against the criminalization of HIV based on non-discrimination was defended by local NGO’s like Dejusticia, Colombia Diversa, Corporación Red Somos, and the Colombian League for the Fight Against AIDS. Their interventions emphasized the discriminatory treatment that the Colombian criminal code imposed on seropositive persons. Some of them denounced the disproportionate restrictions it put on the free development of personality, in each case using multiple scientific reports about the ineffectiveness of criminal solutions to a considered public health problem.
The Court decided that Article 370 was unconstitutional. Justices considered that the offence failed a strict constitutionality test, recognizing that people diagnosed with HIV or Hepatitis B have been historically subject to stigmatization and discrimination. To the high court, the existence of antiretroviral drugs led to a functional cure for the virus as it reduces the viral load and increases the life expectancy of the HIV-positive person. As for Hepatitis B, they judgment argued, there is a highly effective vaccine available in most locations of the country. The decision stressed the inconvenience of differentiating HIV and Hepatitis B from other STDs, which, despite their high risk of transmission and dangerousness, do not have a similar punishment under Colombian criminal law. The Court stated that HIV and Hepatitis B were as dangerous to human health as, for example, Hepatitis C and consequently that a higher penalty for the actions related to the former illnesses wasn’t justified.
In its ruling, the Colombian Constitutional Court concluded that the criminalization’s effectiveness could deter possible carriers from getting tested for HIV because the criminal code define an offender as a person who transmit the disease after being informed of his/her diagnosis. Therefore, anyone who does not know about their HIV status would not be at risk of being charged or convicted. The supposed purpose of protecting public health by maintaining the HHT offence disappeared because patients were discouraged from accessing tests to determine if they were infected. The non-diagnostic instead led to an absence of treatment which, of course, resulted in the massive propagation of the illness and high mortality in patients that weren’t aware of their health condition. The HIV-specific penalty was, accordingly, neither necessary nor effective to attain the constitutional ends it was created for.
The Colombian case offers strong arguments from an international human rights approach that could support the decriminalization of HIV transmission in other countries. The Colombian Constitutional Court referred to multiple international legal instruments for the superior protection of seropositive persons, such as the Declaration of Sexual Rights (1997), the Political Declaration on HIV/AIDS (2006), the Andean Subregional Plan for HIV (2007-2010), the Millennium Development Goals, and the International Conference on Population and Development (1994). The Court used these instruments to support a broad criterion of protection for the seropositive population against discrimination, beyond cases of segregation in their labor relations or access to education and health services.
Two years after this case was ruled in Colombia, there have been multiple reactions. For instance, UNAIDS welcomed with great pleasure the Colombian Constitutional Court decision of decriminalizing HIV and Hepatitis B, and recognized it as a much needed step towards the advancement in anti-discriminatory public policies (UNAIDS, 2019). While according to the High-Cost Disease Fund of Colombia, new cases of HIV in Colombia increased 14,62% in 2020 compared to the previous year (Fondo Colombiano de Enfermedades de Alto Costo, 2021), we hope this indicates a greater effort from the health authorities for the adequate diagnosis and detection of the virus, and an improvement in the willingness of people to get tested. The Fund confirms that 57,05% of new cases were related to one or more prioritized populations in the Colombia national plan for preventing HIV transmission: 53,05% from MSM, followed by users of psychoactive substances other than those injected (5,92%); and in 46,45% of the new cases, the test was carried at the request of the person himself and 50,58% by the doctor for clinical suspicion of HIV / AIDS (Fondo Colombiano de Enfermedades de Alto Costo, 2021).
At least 40% of countries examined in the 2020 Global HIV Policy Report still criminalize HIV exposure, both in developed and developing countries (HIV Policy Lab, 2020). There should be no doubt that criminalizing HIV transmission, non-disclosure, or exposure is counterproductive and an outright failure as it does not respond to scientific evidence and undermines public health goals of promoting HIV screening and treatment. Communities around the world must keep fighting against outdated criminal laws and policies that persecute vulnerable groups and perpetuate stigma around HIV in the name of public health. The Colombian experience of HIV decriminalization shows that strategic litigation could be explored to bring together scientific evidence and a wide set of instruments from human rights and international law to challenge the criminalization of HIV in court.
The authors have no relevant financial disclosures or conflicts of interest.
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Johnattan García Ruiz holds a Law degree from Universidad de los Andes, Colombia, and a Master of Public Health degree with a concentration in Global Health from the Harvard T.H. Chan School of Public Health. He is a graduate student in the MBA program at the University of Oxford Saïd Business School and a Visiting Scientist at the Takemi Program in International Health at Harvard University.
Sergio Durán is a lawyer and graduate student at the Universidad de los Andes, Colombia. His areas of interest include public policy evaluation and public administration challenges.
Lina María Caicedo Rodríguez is a lawyer and anthropologist from Universidad de los Andes, Colombia. Her areas of interest include Public Health and Transitional Justice.
Maria Alejandra Pérez Rodríguez is a lawyer from Universidad de los Andes, Colombia, and a graduate student in the Master of Global Affairs (MGA) program at New York University (NYU). Her interests include international law, public health, and gender equality.
Diego Duarte is a graduate student in the Master of Economics program at Universidad de los Andes, Colombia. His areas of interest include development economics and political economy of development. He holds an LLB and a BA in Government and Public Affairs from the same university.
Alejandro León Marín is a lawyer and political scientist from Universidad de los Andes, Colombia, and a graduate student at the same institution. His areas of interest include judicial politics in Latin America and the juridification of modern warfare in the Global South.