Glossary

In the context of (HIV and other forms of) criminalisation, an abolitionist is someone that seeks to eliminate the entire criminal legal system, replacing it with a system of rehabilitation that does not place a focus on punishment and government institutionalisation.

An activity by an individual or group which aims to influence decisions within political, economic, social and legal institutions. This is related to – but different from – activism which tends to use direct campaigning to bring about political, economic, social or legal change.

The view that imprisonment should not be utilised as a solution to a problem. In the context of HIV criminalisation, this principle favours other means of supporting people living with HIV with their HIV prevention needs, rather than using the threat of imprisonment.

The generic name for HIV drug treatment. It is called this because HIV is a retrovirus. At least two (and often three of four) antiretroviral drugs are taken together in combination. The acronym, ARVs, is often used as shorthand to describe these drug combinations.

The right to make decisions over one’s body. It is linked to the concept of bodily integrity – the inviolability of the physical body. Bodily autonomy is a fundamental human right and the foundation upon which other human rights are built.

A CD4 cell count is a measure of a specific part of the immune system that is attacked by HIV.  A higher number indicates a strong immune system. People living with HIV who have a CD4 cell count below 200 copies per millilitre of blood are at high risk of developing serious illnesses.

A gender-neutral term for feeding a baby milk from the chest. It is often used by transgender and non-binary parents as an alternative to ‘breastfeeding’.

Cisgender relates to someone whose gender identity is the same as the sex they were assigned at birth. (See also transgender.)

Civil law deals with disputes between individuals, organisations, or between the two. In a civil case, the plaintiff (the person who brings the civil case) seeks financial compensation or other non-criminal measures to remedy a perceived wrongdoing against them.

Putting an infant/child to the breast for the purpose of soothing them as opposed to for feeding. An infant who is comfort nursing will consume much less milk than a baby who is nursing for nutrition. A woman who is not lactating may put an infant to her breast to soothe it, such that the baby is sucking but not receiving any milk.

Community-based tribunals (or courts) are indigenous, village or neighbourhood-focused systems that attempt to resolve conflicts locally.

A person who makes a formal complaint to the police or in a court of law. In HIV criminalisation cases, this is the person who claims that they have been exposed to, or acquired, HIV from the defendant. They might also be called ‘an accuser’ or ‘a witness’, but should never be called ‘a victim’. A complainant can be living with HIV (if they believe they acquired HIV from the defendant) or, more commonly, are not living with HIV (if they believe they have been exposed to the virus).

A legal term meaning deserving blame, or blameworthy.  In the context of HIV criminalisation, global guidance recommends that the only appropriate culpable mental state is when a person with HIV acts with a conscious objective or desire to transmit HIV.

A person who is being prosecuted for HIV non-disclosure, potential or perceived exposure or transmission. In HIV criminalisation cases, this person is always living with HIV. They might also be called ‘the accused’, but should never be called a ‘perpetrator’ or ‘criminal’.

In some jurisdictions, the criminal law obligates someone who knows their HIV-positive status to tell their sexual partner(s) before intimacy or sex, therefore criminalising HIV non-disclosure. In other jurisdictions, disclosure of known HIV-positive status can be a defence to allegations of potential or perceived HIV exposure or non-intentional transmission.

Discrimination occurs when a person is unable to enjoy their human rights or other legal rights on an equal basis with others because of an unjustified distinction made in policy, law or treatment.

GIPA is an acronym that originally stood for the “Greater Involvement of People with AIDS”. The principle has since developed into MIPA (Meaningful Involvement….) or MEPA (Meaningful Engagement…) and includes people living with HIV as well as AIDS. GIPA/MIPA/MEPA is the principle that people living with HIV must be involved in decision-making, at every level of the HIV response. In other words: “Nothing about us, without us.” In the context of HIV criminalisation GIPA principle means ensuring that survivors of HIV criminalisation are welcomed and supported to share their experiences and included as leading advocates and decision-makers.

HIV criminalisation describes the unjust application of criminal laws, regulations and punitive policies against people living with HIV primarily on the basis of their HIV-positive status. These laws and their application are a form of state-sponsored stigma and discrimination work against a marginalised group of people with an immutable characteristic — in this case, HIV-positive status. As well as being a human rights issue of grave concern, HIV criminalisation is a barrier to universal access to HIV prevention, testing, treatment and care.

HIV exposure requires coming into contact with enough HIV in a bodily fluid of someone living with HIV to create a risk of transmission. In the context of HIV criminalisation, many laws and prosecutions assume that coming into contact with any bodily fluid of a person living with HIV exposes someone to enough HIV to risk transmission. However, this is not necessarily the case. Some acts – and some bodily fluids such as blood or semen  – have the potential to expose someone to HIV. However, other acts – and bodily fluids such as saliva – are only perceived to be a risk because they carry a very low or no risk of transmission.  In addition, if someone is on effective treatment and has an undetectable viral load there is no risk of sexual transmission, and therefore no exposure. (See also U=U and UVL.) 

The HIV Justice Network (HJN) is a community-led non-governmental organisation building a co-ordinated, effective global response to HIV criminalisation. HJN leads and supports the global movement against HIV criminalisation through several mutually reinforcing activities. We build the evidence base against the unjust criminalisation of people living with HIV by gathering relevant data and information from around the world; raise awareness of the harms of HIV criminalisation in scientific, medical, policy, advocacy, media and donor communities; galvanise and nurture the global movement against HIV criminalisation, providing an advocacy hub to bring individuals and national, regional and global networks and organisations together to catalyse change.

HIV JUSTICE WORLDWIDE (HJWW) is a global coalition that campaigns to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV-positive status. HJWW is co-ordinated by HJN, and overseen by a steering committee of global and regional networks led by people living with, or affected by, HIV. HJWW aspires to be a community of transparency and collaboration. More than 120 member organisations share information and resources via a listserv, enabling them to build capacity and mobilise advocacy.

HIV-specific criminal laws are drafted to apply specifically to people living with HIV, thus treating people living with HIV differently from others. HIV-specific criminal provisions can be included in HIV laws that cover a range of issues, or they can be a standalone HIV criminalisation law, or provisions in a more general criminal or similar law (such as a public health law) that provides for higher penalties for HIV compared with other communicable diseases.

The concept of intersectionality describes the ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination intersect to create unique dynamics and effects. In the context of HIV criminalisation, HIV status may intersect with other identities, rendering some people living with HIV particularly vulnerable to prosecution.

Jurisdiction refers to both the authority of a court to adjudicate cases and the territory over which the court’s or government’s authority extends. A jurisdiction can be a country, state, province, or other defined area with its own laws.

Key populations are groups that are particularly vulnerable to, and disproportionately affected by, HIV due to certain behaviours, as well as by structural factors such as stigma, discrimination, violence, human right violations, and criminalisation. Globally, key populations are generally defined as gay and bisexual men and other men who have sex with men, people who consume drugs, people in prisons and other closed settings, sex workers, and transgender people. Since people living with HIV are also affected by HIV and by structural factors such as stigma, discrimination, violence, human right violations, and criminalisation, they should also be considered a key population.

Mens rea is a Latin term which means “guilty mind”. It is used to describe a particular mental state that must be proven in order for the defendant to be judged criminally liable. The levels of mens rea can include intent (the explicit and conscious desire to commit a dangerous or illegal act), recklessness (the decision to commit a certain act despite knowing about associated risks), and negligence (the failure to meet a reasonable standard of behaviour in the circumstances). Depending on the legal system, the mens rea required to be found guilty under laws used for HIV criminalisation varies. Although most prosecutions under general laws require some level of mens rea to be proven, many HIV-specific criminal laws are written in such a way that they do not require proof of a “guilty mind”.

Modernisation refers to the updating of HIV criminalisation laws to better reflect current scientific and medical understanding of HIV. Through modernisation, their scope is narrowed, potentially resulting in fewer prosecutions. Modernising laws often also includes removing stigmatising language and concepts.

Non HIV-specific criminal laws are applied to people with HIV – in order to prosecute HIV non-disclosure, potential or perceived exposure or transmission – but do not contain explicit reference to HIV. These can include laws that cover physical or sexual assault, endangerment or even terrorism or homicide, or may be more general communicable disease or sexually transmitted infection laws.

In some jurisdictions, the criminal law obligates someone who knows their HIV-positive status to tell their sexual partner(s) before intimacy or sex, therefore criminalising HIV non-disclosure. In other jurisdictions, disclosure of known HIV-positive status can be a defence to allegations of potential or perceived HIV exposure or non-intentional transmission.

An omnibus law is a law that covers a number of diverse or unrelated topics. An omnibus HIV law is a comprehensive HIV-specific law that covers a wide range of HIV-related issues, including enabling and supportive laws. Many omnibus HIV laws also include problematic provisions, including those allowing for HIV criminalisation.

Phylogenetic analysis compares the evolutionary relationship between viruses or organisms. With respect to HIV criminalisation, it is sometimes used to determine the relationship between the HIV in the defendant and complainant(s), establishing whether or not they have closely related viruses. If there is a “phylogenetic match” (i.e., the viruses are related), the technology cannot definitively show that the complainant acquired HIV directly from the defendant so must be interpreted cautiously alongside other factual and medical evidence. However, if there is no “phylogenetic match” then the defendant could not have transmitted HIV to the complainant(s).

Post-exposure prophylaxis, or PEP, is an emergency method of preventing HIV infection. It involves using a four-week course of the drugs used to treat HIV, taken very soon after a person may have been exposed to the virus.

Prosecutorial guidance – also referred to as prosecutorial guidelines – is a policy or directive that is provided to prosecutors to assist them in handling particularly complex or sensitive cases. This usually contains critical information to address potential knowledge gaps and correct biases. In the context of HIV criminalisation, prosecutorial guidance or guidelines can be considered a ‘harm reduction’ approach to limit the application of the criminal law for HIV non-disclosure, perceived or potential exposure, or transmission.

Public health law is a form of public health policy that integrates concepts from law, medicine, healthcare, and public health. In the context of HIV criminalisation, public health law can allow people living with HIV to be subjected to a number of actions or restrictions. These interventions are usually graduated – beginning with education and counselling – but at their more coercive can also include being compelled to disclose HIV-positive status prior to sex, undergo HIV testing or HIV treatment, refrain from certain conduct, being forcibly detained in medical facilities for limited periods, or being referred to the police for criminal prosecution. Public health law can also be subject to abuse, since it has fewer due process protections attached to it than criminal law.

To sign or give formal consent to a treaty, contract, or agreement making it officially valid.

A recency test is a public health tool that can estimate whether someone acquired HIV recently (usually within the previous six months). Recency tests are not reliable in the context of criminal proceedings because they are designed to estimate recency and calculate incidence rates at the population, not individual, level.

Compensation for injury or loss to make amends for loss or harm suffered.

Restorative justice refers to a relationship-based process for resolving crime and conflicts that focuses on repairing harm, holding the accused accountable for their actions, and where appropriate, re-establishing their relationship in the community. Restorative justice may be implemented alongside criminal legal system processes. Strategies typically include a form of mediation, conferencing, or circles to create dialogue between all parties and result in reparation or work to prevent future harms.

Punishment inflicted on someone as vengeance for a wrong or criminal act.

The standard of proof, or burden of proof, is the bar that the prosecutor must reach by producing evidence persuasive enough to establish the truth of facts needed to satisfy all the required legal elements of the offence. In criminal cases, the burden is often described as ‘beyond a reasonable doubt’, meaning that the adjudicator must be virtually certain of guilt before convicting. In civil (i.e., non-criminal) cases the standard of proof is lower, often based on a “balance of probabilities”.

HIV-related stigma (literally a “mark of shame”) refers to irrational or negative attitudes, behaviours and judgments towards people living with or associated with HIV. Stigma can result in the discriminatory treatment of an individual based on their actual or perceived HIV status. Stigma can negatively affect the health and well-being of people living with HIV by discouraging some individuals from learning their HIV status, accessing treatment or staying in care. HIV-related stigma can also affect those at risk of HIV by discouraging them from seeking HIV prevention tools and testing, and from talking openly with their sex partners about safer sex options.

Strategic litigation – also known as impact litigation – is the pursuit of legal cases as part of a strategy to improve laws and policies. Strategic litigation is a long and sometimes risky process, usually taking many years. In the context of HIV criminalisation, this usually means taking an individual case all the way up to the country’s highest court in order to create a legal precedent that can limit or end the overly broad use of the criminal law.

The term transgender relates to someone whose gender identity does not align with the sex they were assigned at birth. (See also cisgender.)

Treatment as prevention (TasP) usually refers to taking HIV medicine to prevent the sexual transmission of HIV. (See also ‘U = U’).  However,  HIV medicine is taken primarily to benefit the health of the person living with HIV, because it also prevents illness and death.

Officially the Joint United Nations Programme on HIV and AIDS, UNAIDS is the United Nations body which leads the global response to the HIV epidemic. It is a joint initiative of eleven United Nations system agencies - referred to as Cosponsors - and is the only United Nations entity with civil society represented on its governing body, the Programme Coordinating Board (PCB).

The phrase U=U was created by the Prevention Access Campaign in 2016 to communicate a consensus about the (then) largely unknown fact that people living with HIV who are on effective treatment and have an undetectable viral load cannot sexually transmit HIV. Studies confirm that HIV can not be transmitted through sex when viral load is below 200 copies of HIV per millilitre of blood. The fact of U=U is the basis of the concept of (HIV) treatment as prevention (See also ‘treatment as prevention’.)

Viral load is the amount of HIV in the blood. Having an undetectable viral load means that the level of HIV in the blood is too low to be measured by standard laboratory tests. The medical term for UVL is ‘virally suppressed.’ Most tests report that a viral load is undetectable when it is below 50 or 20 copies of HIV per millilitre of blood.

Unintentional transmission of HIV is when someone living with HIV (whether or not they are aware of their status) engages in behaviour that results in someone else acquiring the virus – but did not desire or plan for this to happen. Global guidance recommends limiting the use of the criminal law to rare cases of intentional HIV transmission. Under this approach, the criminal law should only be applied in very rare cases where the person living with HIV knows their HIV-positive status and acts with a conscious objective or desire to transmit HIV.

Vertical transmission describes the transmission of an infection from parent-to-baby, during pregnancy, childbirth or breast/chestfeeding. When an infection is transferred between two people who are not parents and children (e.g. sexual partners) this is known as horizontal transmission. HJN prefers to use the term ‘vertical transmission’ rather than ‘mother-to-child transmission’ because it is neutral and gender-inclusive and does not stigmatise or blame pregnant or breastfeeding women.

See phylogenetic analysis