Decriminalizing HIV in Colombia

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).