Abstract
The criminalisation of HIV poses intricate issues and raises complex questions at the intersection of constitutional rights, public health objectives, and the lived experiences of those living with HIV. South Africa, despite having the world’s highest HIV burden, has no HIV specific statute governing non-disclosure, exposure, and transmission. Instead, prosecutions rely on common law offences, which create uncertainty regarding the scope of liability and whether these prosecutions align with constitutional protections of dignity, privacy, and bodily integrity. The tension is escalated in instances involving children born HIV positive, where the concealment of a child’s status by their caregivers or healthcare professionals conflicts with the child’s developing capacity, the constitutional mandate that a child’s best interests are paramount, and the legal frameworks that protect confidentiality in the context of HIV testing. These issues reflect broader concerns about autonomy, informed decision-making, and the obligations of medical practitioners.
This research examines the impact of criminalising the non-disclosure of HIV on legal accountability, public health outcomes, and reinforces or undermines stigma. It also investigates whether criminalisation advances HIV prevention objectives, considers the perspective of stakeholders and considers the impact of international human rights standards, including UNAIDS recommendations and guidance. The study contends that unclear or overly broad criminalisation jeopardises both constitutional imperatives and public health strategies, and proposes a rights-based framework that ensures fairness, clarity, and alignment with evidence-based HIV responses.