BRIEFING FOR
THE HOUSE OF LORDS DEBATE
13 March 2013:
The adverse impact of criminalising
homosexuality in Commonwealth countries
on global efforts to halt the spread of
HIV/AIDS
Last updated: 06 March 2013
Introduction
1. Same-sex sexual conduct between consenting adults continues to be criminalised in
more than 80 jurisdictions in the world. 42 of the 54 countries of the Commonwealth
of Nations criminalise same-sex relations for men, women or both. In the majority of
these states the laws applied are old colonial laws from the days of the British Empire.
The consequences of these laws are myriad. With them come violence, murder, fear,
stigma, rejection, impunity, the criminalisation of identity and persecution. As this
briefing will show, the criminalisation of sexual identity in this context also
exponentially heightens the risk of exposure to HIV.
2. Those who seek to defend criminal sanctions against the LGBTI community use a
range of standard, albeit ill-informed, justifications. Among them are arguments
relating to ‘public morality’, ‘public health’ and ‘sexual abnormality’. Yet
jurisprudence from several Commonwealth countries and opinions from experts from
across the globe repeatedly conclude that criminalisation of homosexuality seriously
impedes the effectiveness of measures designed to contain the HIV and AIDS
epidemic. This briefing provides evidence-based responses to those who seek to retain
criminal laws outlawing consensual sex between adults of the same sex. The briefing
focusses on the impact of criminalisation of homosexuality on public health, and
specifically the prevention and treatment of HIV and AIDS.
Commonwealth Heads of Government: The Eminent Persons Group
3. The Commonwealth Eminent Persons Group (EPG) – a group of 10 leading figures
from around the Commonwealth chaired by Tun Abdullah Badawi, former Prime
Minister of Malaysia – was commissioned in 2009 by Commonwealth Heads of
Government to examine key areas for reform of the Commonwealth. After extensive
study and consultations, the EPG unanimously recommended in its 2011 Report that,
among others, steps be initiated to procure the repeal of laws criminalising
homosexuality as a critical move in the fight against HIV. This was noted as
particularly important given that Commonwealth countries comprise over 60% of
people living with HIV globally, despite representing about 30% of the world’s
population.1
1
Commonwealth Secretariat, (2011), A Commonwealth of the People: Time for Urgent Reform, Report of the
Eminent Persons Group to Commonwealth Heads of Government, London, 2011, pp. 98-102.
The EPG Report states:
4. “We have … received submissions concerning criminal laws in many Commonwealth
countries that penalise adult consensual private sexual conduct including between
people of the same sex. These laws are a particular historical feature of British
colonial rule. They have remained unchanged in many developing countries of the
Commonwealth despite evidence that other Commonwealth countries have been
successful in reducing cases of HIV infection by including repeal of such laws in their
measures to combat the disease. Repeal of such laws facilitates the outreach to
individuals and groups at heightened risk of infection. The importance of addressing
this matter has received global attention through the United Nations. It is one of
concern to the Commonwealth not only because of the particular legal context but
also because it can call into question the commitment of member states to the
Commonwealth’s fundamental values and principles including fundamental human
rights and non-discrimination.”2
5. Among the resulting EPG recommendations was that “Heads of Government should
take steps to encourage the repeal of discriminatory laws that impede the effective
response of CW countries to the HIV/AIDS epidemic, and commit to programmes of
education that would help a process of repeal of such laws.”3
6. In 2012 the Commonwealth Heads of Government adopted this recommendation,
indicating that Member governments should identify which, if any, laws are
considered discriminatory, and what steps should be taken to address these.4
Case Law Criticising Criminalisation and its Impact on Public Health
7. Domestic and international courts and tribunals have recognised that the
criminalisation of same-sex sexual conduct actually impedes HIV/AIDS programming
and can have severe public health consequences. In Toonen v Australia, the United
Nations Human Rights Committee (HRC) considered and rejected the claim by
Tasmanian authorities that laws criminalising private consensual homosexual sodomy
were justified on public health and moral grounds. The HRC considered that such
laws “cannot be considered a reasonable means or proportionate measure to achieve
the aim of preventing the spread of AIDS/HIV” and that no link had been shown
between controlled criminalisation and effective control of the spread of the virus.5
8. In Naz Foundation, the High Court of Delhi considered a petition to strike down
India’s anti-sodomy law, section 377 of the Indian Penal Code (IPC). 6 The Ministry
of Health and Family Welfare and its National AIDS Control Organisation (NACO)
supported the Petitioner’s challenge. The Naz Foundation had argued that HIV/AIDS
prevention efforts were “severely impaired by discriminatory attitudes exhibited by
state agencies towards gay community, MSM or trans-gendered individuals, under the
cover of enforcement of Section 377 IPC, as a result of which basic fundamental
2
Ibid., p. 100.
Ibid., p. 102, Recommendation 60.
4
Agreement by Heads of Government to the EPG Recommendations, available at:
http://www.thecommonwealth.org/files/252052/FileName/EPGRecommendationsOutcomes.pdf.
5
Toonen v. Australia, CCPR/C/50/D/488 (1992), 4 April 1994, p. 8.5.
6
Naz Foundation v. Government of NCT of Delhi, Delhi High Court, 160 (2009) DLT 277.
3
human rights of such individuals/groups (in minority) stood denied and they were
subjected to abuse, harassment, assault from public and public authorities”.7
9. The Ministry of Health & Family Welfare agreed and “insisted that the continuance
of Section 377 IPC has hampered the HIV/AIDS prevention efforts”.8 NACO
submitted evidence that the enforcement of Section 377 “renders risky sexual
practices to go unnoticed and unaddressed inasmuch as the fear of harassment by law
enforcement authorities leads to sex being hurried, particularly because these groups
lack ‘safe place’ place’ [sic]”.9 The Ministry of Home Affairs argued that Section 377
should be retained in the interests of public safety, the protection of morals and a
healthy environment.10
10. The High Court of Delhi agreed with the Petitioners that Section 377 violated the
right to health, as read into Article 21 of the Constitution of India in light of Article 12
of the ICESCR. The High Court of Delhi emphasised the reports and findings of
public health agencies and UN experts. It noted that “now near unanimous medical
and psychiatric opinion treats [homosexuality] as just another expression of human
sexuality.”11 It found the position of the Ministry of Home Affairs to be completely
unsupported by the evidence and counter to the HIV/AIDS policies of the Ministry of
Health and Family Welfare. The Ministry of Home Affairs conceded that Section 377
was not enforced in cases of private consensual sex, leading the High Court to
conclude that it could not be deemed essential for the protection of morals or public
health and failed the reasonableness test.12
United Nations Reports
Global Commission on HIV and the Law
11. According to the United Nations Development Programme’s (UNDP) Global
Commission on HIV and the Law, the criminalisation of homosexuality “both causes
and boosts” the rate of HIV infection among MSM (men who have sex with men).13
Over the course of 2011, the 14-member Commission examined this issue, among
others, to ascertain the evidence of this association and to shape appropriate
recommendations. It assessed research and submissions from more than 1000 authors
covering 140 countries, and engaged parliamentarians, ministries of justice and
health, judiciaries, lawyers, police, civil society, and community groups in frank and
constructive policy dialogue. The Commission has stated that: “…there is growing
international consensus that the decriminalisation of homosexuality is an essential
component of a comprehensive public health response to the elevated risk of HIV
acquisition and transmission among men who have sex with men [MSM].”14
7
Ibid., p. 6.
Ibid., p. 11.
9
Ibid., p. 18.
10
Ibid., p. 13.
11
Ibid., p. 70.
12
Ibid., p. 74.
13 Final Report of the Global Commission on HIV and the Law, Global Commission on HIV and the Law (9
July 2012): 45
14
Ibid., p. 48.
8
12. The following information drawn from the Commission’s 2012 report illustrates the
extent of the problem of criminalisation:

Marginalisation, together with aspects of physiology, circumstance and sexual
behaviour, puts MSM at significantly heightened risk of HIV. MSM are nineteen
times more likely to be infected than other adult men.15 Criminalisation both
causes and boosts those numbers. For example, the Joint United Nations
Programme on HIV and AIDS (UNAIDS) reports that in Caribbean countries
where homosexuality is criminalised, almost 1 in 4 MSM is infected with HIV. In
the absence of such criminal sanctions, the prevalence among MSM is only 1 in
15.16

Many MSM also have sex with women.17 Although some of these men are
attracted to both women and men, others only maintain concurrent heterosexual
relationships to avoid stigma and abuse, particularly in environments that
criminalise or stigmatise homosexuality. In other words, criminalisation of samesex relations endangers not just MSM, but women too.18

By contrast, evidence shows that in a range of epidemic settings, universal access
to HIV services for MSM together with anti-discrimination efforts can
significantly reduce infections both among those men and the wider community.19
13. According to a submission made to the Commission, health providers are less likely
to want to offer their services to MSM because of the possibility of criminal sanction
for abetting criminal activity.20 The Commission concluded unequivocally that laws
criminalising consensual adult same-sex relations, as well as a range of other laws and
legal practices, are undermining effective HIV programming.
15
Ibid., p. 45. See also: The Global Forum on MSM & HIV, (2010), Reaching Men Who Have Sex With Men
(MSM) In the Global HIV & AIDS Epidemic: A Policy Brief. Available at:
http://www.msmgf.org/files/msmgf/Advocacy/MSMGF_ReachingMSMlowres.pdf
16
UNAIDS, (2008), Global Report on the AIDS Epidemic 2008. Available at:
http://data.unaids.org/pub/GlobalReport/2008/jc1511_gr08_executivesummary_en.pdf
UNAIDS, (2008), Keeping Score II: A Progress Report towards Universal Access to HIV Prevention, Treatment,
Care and Support in the Caribbean. Available at:
http://www.unaids.org/en/media/unaids/contentassets/dataimport/pub/report/2008/20081206_keepingscor
eii_en.pdf
17
UNAIDS, (2009), Universal Access for Men who have Sex with Men and Transgender People, Action
Framework. Available at http://data.unaids.org/pub/report/2009/jc1720_action_framework_msm_en.pdf
18
Hart, G. and Elford, J., (2010), Sexual risk behaviour of men who have sex with men: emerging patterns and
new challenges, Current Opinion in Infectious Diseases 23(1), pp. 39–44; See also Dowsett, GW., Grierson, JW.,
and McNally, SP., (2006), A Review of Knowledge about the Sexual Networks and Behaviours of Men who have
Sex with Men in Asia, Australian Research Centre in Sex, Health and Society La Trobe University, Melbourne,
Australia, Monograph Series Number 59.
19
Beyrer, C., et al., (2011), The Global HIV Epidemics among Men Who Have Sex with Men (MSM), The World
Bank. Available at: http://issuu.com/world.bank.publications/docs/9780821387269; UNAIDS, UNDP, (2009),
UNAIDS Action Framework: Universal Access for Men who have Sex with Men and Transgender People.
Available at: http://data.unaids.org/pub/report/2009/jc1720_action_framework_msm_en.pdf
20
Beyrer, C. and Baral, S., MSM, HIV and the Law: The Case of Gay, Bisexual and Other Men who have Sex with
Men (MSM), Working Paper for the Global Commission on HIV and the Law (2011): p. 47.
14. The Commission also found that:

Laws or legal provisions criminalising HIV transmission and exposure are
arbitrarily and disproportionately applied to those who are already deemed
inherently criminal, such as MSM. This situation not only portrays and
perpetuates existing inequalities, but also increases stigma against these men and
impedes their access to existing HIV and health services.

In far too many countries, discriminatory and brutal policing is tacitly authorised
by punitive laws and social attitudes. Such law enforcement practices violate the
human rights of MSM and drive them away from HIV and health services.
International Guidelines on HIV/AIDS and Human Rights
15. In 2011, the Office of the United Nations High Commissioner for Human Rights and
the Joint United Nations Programme on HIV/AIDS (UNAIDS) issued the
International Guidelines on HIV/AIDS and Human Rights. According to these
Guidelines on HIV/AIDS the threat of criminal sanction can be a deterrence towards
accessing HIV services: “people will not seek HIV-related counselling, testing,
treatment and support if this would mean facing discrimination, lack of confidentiality
and other negative consequences”.21 The United Nations High Commissioner for
Human Rights and UNAIDS jointly recommended that “criminal laws prohibiting
sexual acts (including adultery, sodomy, fornication and commercial sexual
encounters) between consenting adults in private should be reviewed, with the aim of
repeal.”22
The Status of HIV in the Caribbean
16. A 2010 study commissioned by UNAIDS calls on governments to remove punitive
laws, stating: “laws that perpetuate stigma and discrimination and limit access to
health care and fuel the spread of HIV are not in the national interest.”23 Many of the
findings of this study are included in paras 21 to 26 below.
Legal Environments, Human Rights, and HIV Responses among Men who Have
Sex with Men and Transgender People in Asia and the Pacific
17. A study commissioned by the United Nations Development Programme focusing on
Asia and the Pacific found that laws criminalising homosexuality are regularly used
by police to: prohibit actively HIV prevention activities on the grounds that they aid
and abet criminal activities; to harass HIV outreach workers, many of whom are
MSM; to confiscate condoms and lubricants as evidence of prostitution or illegal
male-to-male sex; and to censor HIV educational materials and otherwise prohibit the
21
International Guidelines on HIV/AIDS and Human Rights, Office of the United Nations High Commissioner for
Human Rights and the Joint United Nations Programme on HIV/AIDS (2011): p. 78.
22
Ibid., p. 29-30.
23
UNAIDS: Joint United Nations Programme on HIV/AIDS, The status of HIV in the Caribbean, 2010, p V.
Available at:
http://www.unaids.org/en/resources/presscentre/featurestories/2010/march/20100316msmcaribbean/
dissemination of public health information about safe sex practices.24 Even when
authorities restrict their raids to social establishments, like bars and baths, this has
been found to undermine “information-sharing and mutual support in practicing safer
sex” among MSM.25 Criminalisation also affects important patterns of socialising and
sexual behaviour among MSM. By making it more difficult for MSM to socialise in
private establishments, these laws increase the likelihood that sexual encounters will
occur in public places at night, which is conducive to more hurried and less safe sex.26
UN Special Rapporteur on the right to health
18. The Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health has examined the relationship
between the right to health and the criminalisation of private, adult, consensual samesex sexual behaviour. His 2010 report states that criminalising such intimacy
adversely affects the right to health by creating the perception that those who engage
in such activity are “‘abnormal’ and criminals”. 27
The Lancet Journal28
(a) A call to action for comprehensive HIV services for men who have sex with
men
19. A report published in The Lancet in 2012 illustrates how men who have sex with men
(MSM) bear a disproportionate burden of HIV and yet continue to be excluded,
sometimes systematically, from HIV services because of stigma, discrimination and
criminalisation.29 Among others, the report recounts the powerful correlations that
have been found between criminalisation of same-sex behaviour and lack of financing
and implementation of HIV programmes for MSM.30 The disincentives to public
disclosure of sexuality hinder preventive screening, maintaining the high prevalence
of HIV.31 As criminalisation of homosexuality also makes it more difficult for samesex couples to found lasting relationships and families, MSM in these countries are
more likely to adopt non-monogamous, anonymous, unsafe sexual practices, exposing
themselves to a higher risk of HIV infection.32 Decriminalisation of same-sex
24
United Nations Development Programme, Legal Environments, Human Rights, and HIV Responses among
Men who Have Sex with Men and Transgender People in Asia and the Pacific (July 2010): p. 5. Available at:
http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.pdf
25
Ibid., p. 48.
26
Ibid., p. 5.
27
UN Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, A/HRC14/20, 27 April 2010, p. 8, para. 17. Available
at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.pdf
28
This journal is currently ranked second out of 153 journals in the general medicine category (2011 Journal
Citation Reports, Thomson Reuters 2012). For more detail see: http://www.thelancet.com/lancet-about
29
The Lancet, ‘A call to action for comprehensive HIV services for men who have sex with men’, Vol. 380, Issue
9839, pp. 424–38 (20 July 2012). For the full report see:
http://www.humandignitytrust.org/uploaded/Library/Other_Reports_and_Analysis/The_Lancet_A_call_to_act
ion_for_comprehensive_HIV_services_for_men_who_have_sex_with_men_Vol._380_Issue_9839_Pages_4243
8.pdf
30
Ibid., p. 433.
31
Ibid., p. 428.
32 Ibid., p. 436.
behaviour, on the other hand, has been seen as a key structural intervention to
legitimise HIV services for gay and other MSM.33
(b) HIV epidemics in black men who have sex with men across the African diaspora
20. Another Lancet report34 found that disparities in the prevalence of HIV infection in
several African and Caribbean countries was directly correlated with the status of
criminalisation:
“The odds of HIV infection in black MSM relative to general populations were nearly
two times higher in African and Caribbean countries that criminalise homosexual
activity than for those living in countries where homosexual behaviour is legal. The
odds of being infected with HIV are significantly greater in Caribbean countries that
criminalise homosexual sex than in those where such behaviour is legal.”35
Disproportionate Impact of Criminalisation on MSM
21. Men who have sex with men (MSM) bear a disproportionately greater risk of HIV
infection than other social groups for a variety of reasons including social
marginalisation, sexual behaviour, and physiology.36 MSM are nineteen times more
likely to be infected than other adult men.37 Both the US President's Emergency Plan
for AIDS Relief (PEPFAR) Program and the World Health Organisation (WHO)
recognise that strategies tailored to MSM must be an essential component of any best
practice response to the HIV epidemic.38
22. A global online survey of 5,000 MSM commissioned by the Global Forum on MSM
& HIV found that only 36% of respondents were able to access treatment easily, and
under one-third reported being able to access HIV education materials easily.39 Less
than 40% of MSM in the Caribbean, and 20% of MSM in the Asia-Pacific region are
reached by HIV/AIDS prevention programmes.40 In contrast, 60% of MSM are
reached by HIV prevention services in countries where homosexuality is legal. 41
33
Ibid., p. 433.
The Lancet, Common roots: a contextual review of HIV epidemics in black men who have sex with men across
the African diaspora, Vol. 380, Issue 9839, Pages 411-423 (28 July 2012). For the full report see:
http://www.humandignitytrust.org/uploaded/Library/Other_Reports_and_Analysis/The_Lancet__Common_ro
ots__a_contextual_review_of_HIV_epidemics_in_black_men_who_have_sex_with_men_across_the_African_
diaspora.pdf
35
Ibid., p. 417.
36 The Lancet, ‘A call to action for comprehensive HIV services for men who have sex with men’, Vol. 380,
Issue 9839, pp 424–38 (20 July 2012): 424
37 Final Report of the Global Commission on HIV and the Law, Global Commission on HIV and the Law (9
July 2012): 45
38 PEPFAR, Technical Guidance on Combination HIV Prevention for MSM, Washington, DC (2011); WHO,
Prevention and treatment of HIV and other STI among MSM and transgender people: recommendations
for a public health approach, Geneva (2011)
39 Wilson, P., et al., Access to HIV Prevention Services and Attitudes about Emerging Strategies: A Global
Survey of Men Who Have Sex with Men (MSM) and their Health Care Providers, The Global Forum on MSM &
HIV (2011)
40 The Lancet, 'Common roots: a contextual review of HIV epidemics in black men who have sex with men
across the African diaspora', Vol. 380, Issue 9839, Pages 411-423 (28 July 2012 ): 412; United Nations
Development Programme, Legal Environments, Human Rights, and HIV Responses among Men who Have
Sex with Men and Transgender People in Asia and the Pacific (July 2010): 3
41 UNAIDS, ‘Report on the global AIDS epidemic’, Geneva (2008): 84
34
23. Consequently, there is less awareness about HIV prevention among MSM in countries
that criminalise homosexuality. According to one study, 73% of Zambian MSM
believed that anal sex was safer than vaginal sex.42 86% of Lesotho’s MSM were
unaware that receptive anal sex was even a risk factor in HIV transmission.43 This in
turn increases the probability that MSM in these countries will engage in riskier
sexual behaviour. Studies of MSM in Cameroon, Senegal and Kenya have reported a
strong correlation between non-participation in HIV prevention programs and the
likelihood of MSM having unprotected anal sex.44
24. HIV epidemics are already expanding among MSM globally. New outbreaks are
being reported wherever surveillance is undertaken: pooled HIV prevalence is as high
as 25.4% of MSM in the Caribbean, and 18% in the Americas; 45 the WHO reports
that HIV prevalence among MSM is rising in China, India, Indonesia, Thailand,
Taiwan, Singapore and Japan, with the number of new cases either doubling or
trebling between 2002 and 2007.46 Based on these figures, the Commission on AIDS
in Asia projects that MSM will constitute close to half of all new HIV infections
occurring annually in Asia by 2020.47
25. Similar to the UNAIDS commissioned study of HIV prevalence in the Caribbean,
where it was found that the rate of infection among MSM rose from 1 in 15 in
countries where homosexual conduct was not criminalised to 1 in 4 in countries where
it was criminalised,48 and The Lancet report on Africa highlighting the increased
disparity ratio (the odds of HIV infection compared to other adult groups) for black
MSM from 2.1 to 5.3,49 the Commission on AIDS in Asia highlighted that the same
phenomenon occurred in Asian countries, where MSM account for between 10 to 30
percent of new HIV infections annually.50 All these reports have recommended
decriminalisation of homosexuality.
26. Although MSM in the Asia-Pacific region are seriously affected by such laws,
criminalisation does not increase HIV prevalence among MSM alone. Many MSM
have sex with women, whether because of attraction or social pressure to maintain
concurrent heterosexual relationships.51 Half of all MSM in the Asia-Pacific region
Zulu K, Bulawo NK, Zulu W, ‘Understanding HIV risk behavior among men who have sex with men in
Zambia’, International AIDS Conference, Toronto, Canada (13 August 2006)
43 Baral S, Adams D, Lebona J, et al. ‘A cross-sectional assessment of population demographics, HIV risks
and human rights contexts among men who have sex with men in Lesotho’, J Int AIDS Soc (2011) 14: 36
44 Henry E, Marcellin F, Yomb Y, et al. ‘Factors associated with unprotected anal intercourse among men
who have sex with men in Douala, Cameroon’, Sex Transm Infect (2010) 86: 136–40; Larmarange J, Wade
AS, Diop AK, et al. ‘Men who have sex with men (MSM) and factors associated with not using a condom at
last sexual intercourse with a man and with a woman in Senegal’ PLoS One (2010) 5: e13189; Geibel S,
Luchters S, King’Ola N, Esu-Williams E, Rinyiru A, Tun W. ‘Factors associated with self-reported
unprotected anal sex among male sex workers in Mombasa, Kenya’, Sex Transm Dis (2008) 35: 746–52
45 Ibid
46 WHO, Priority HIV and sexual health interventions in the health sector for men who have sex with men and
transgender people in the Asia Pacific Region, Manila (2010)
47 Commission on AIDS in Asia, Redefining AIDS in Asia: Crafting an Effective Response (2008): 57
48
UNAIDS, ‘Report on the global AIDS epidemic’, Geneva (2008); UNAIDS, ‘Keeping Score II: A Progress Report
towards Universal Access to HIV Prevention, Treatment, Care and Support in the Caribbean’ (2008).
49
The Lancet, 'Common roots: a contextual review of HIV epidemics in black men who have sex with men
across the African diaspora', Vol. 380, Issue 9839, Pages 411-423 (28 July 2012 ), p. 418.
50
Commission on AIDS in Asia, Redefining AIDS in Asia: Crafting an Effective Response, Oxford University Press
(2008), p. 203.
51 UNAIDS, Universal Access for Men who have Sex with Men and Transgender People, Action Framework
(2009)
42
are believed to have sex with women, including wives, girlfriends, female clients and
female sex workers.52 Some of these women will acquire HIV from the men, and
some will pass the virus onto their babies. Therefore, failure to repeal these laws
would significantly heighten the overall HIV infection and transmission rate for all
adult groups.53 A report from The Lancet concludes that “No population at risk for
HIV infection can be excluded if we are to achieve control of AIDS worldwide….
achieving an AIDS-free generation will not happen unless new and effective
approaches are developed and implemented at scale for MSM.”54
Use of the Criminal Provisions by the Authorities
27. As has been mentioned in several reports discussed above, the laws criminalising
homosexuality are regularly used by authorities to hinder and prohibit HIV prevention
activities aimed at LGBTI people. The following are just three examples:

In February 2012, the Ugandan authorities shut down a workshop organized by
activists advocating for the rights of lesbian, gay, bisexual, and transgender
(LGBT) people. The workshop was aimed at empowering participants with skills
to advocate for respect for their rights; to engage and influence government policy
and laws in a peaceful manner; to build leadership qualities and equip the
participants with knowledge on project planning and economic empowerment.
Reducing the risk of HIV transmission and access to HIV education were key
components of this workshop. Claiming that these activities were, amongst other
things, a conspiracy and incitement to commit criminal offences, the workshop
was shut down.55

In Cameroon, on 27 March 2012 armed police broke up a planned three-day
meeting on HIV/AIDS and sexual minorities organized by the Association of
Adolescents Against HIV/AIDS (Sid’Ado). A government official told the
gathering, “[It is] a seminar on the rights of sexual minorities. We don’t accept
that here, go and do it elsewhere.” The workshop had been authorised in advance
by the sub-prefect, but he then revoked his authorisation. The police reportedly
disbanded the workshop and detained a human rights activist for three hours56.

In Singapore, Action for AIDS has on several occasions been asked to stop
distributing materials containing information on homosexuality even though these
materials were meant specifically for MSM venues and events. The reasons
repeatedly given by the authorities were that because homosexual sex is illegal, it
cannot be mentioned; therefore providing information on safe sex relevant to
MSM is also illegal. Several police actions targeting venues frequented by MSM
have hampered and interrupted HIV prevention programmes. Some venue owners
have expressed their fear and concern that the provision of condoms and
Commission on AIDS in the Pacific, Turning the Tide: An Open strategy for a response to AIDS in the
Pacific (2008): 39
53 United Nations Development Programme, Legal Environments, Human Rights, and HIV Responses among
Men who Have Sex with Men and Transgender People in Asia and the Pacific (July 2010): 18
54 The Lancet, ‘A call to action for comprehensive HIV services for men who have sex with men’, Vol. 380,
Issue 9839, pp 424–38 (20 July 2012): 425
55
Human Rights Watch, Minister Shuts Down Rights Workshop, 16 February 2012. See:
http://www.hrw.org/news/2012/02/16/uganda-minister-shuts-down-rights-workshop
56
Human Rights Watch, LGBT Rights Workshop Shut Down, 27 March 2012. See:
http://www.hrw.org/news/2012/04/05/cameroon-lgbt-rights-workshop-shut-down
52
lubricants on their premises may be used as evidence that they were promoting
illegal homosexual sex. The criminal status of homosexual sex has made it very
difficult to get all venue owners together and to commit their businesses to adhere
to best practice health and safety standards.57
Criminalisation and Under-Investment in HIV Services
28. There is a strong correlation between criminalisation and under-investment in HIV
services for MSM.58 This is partly because these laws make it politically difficult for
governments to justify the necessary funding for providing HIV support.59 More
broadly, criminalisation lowers the visibility and leads to inaccurate data on HIV
subepidemics.60 By the end of 2011, only 87 countries had reported prevalence of
HIV in MSM, with data most sparse for the Middle East and Africa, “regions where
criminal sanctions against same-sex behaviour can make epidemiological
assessments challenging.”61 The paucity of information means that HIV prevention
programs are less likely to be properly resourced and driven by reliable evidence on
sexual diversity.
Conclusion
29. Assumptions that criminalising sexual minorities will prevent the spread of HIV and
AIDS are ill-founded and often based on ignorance and longstanding prejudice. The
criminalisation of homosexuality in Commonwealth countries has a major impact on
the global efforts to halt the spread of HIV/AIDS as Commonwealth countries
comprise over 60% of people living with HIV globally despite representing about
30% of the world’s population. The global evidence is clear that public health is best
served by removing discrimination and prejudice against LGBTI persons and thereby
ensuring that the widest possible information regarding safe sex practices, health
services and HIV prevention and treatment measures is accessible to the people who
need it most. Removing stigma through decriminalisation of private, adult, consensual
same-sex sexual relations is the first step in promoting healthy, tolerant and respectful
societies.
57
Roy Chan (President, Action for AIDS Singapore): Sections 377 and 377A of the Penal Code Impact on AIDS
(2007). See:
http://www.afa.org.sg/otherpublications/Penal%20Code%20Sections%20377,%20377A%20and%20Effect%20
on%20AIDS%20Prevention%20in%20%20Singapore.pdf
58 American Foundation for AIDS Research, ‘Achieving an AIDS-free generation for gay men and other
MSM: financing and implementation of HIV programs targeting MSM’, Washington, DC. (2012)
59 Beyrer C., ‘Global prevention of HIV infection for neglected populations: men who have sex with men’,
Clin Infect Dis (2010) 50 (suppl 3): S108–13
60 Jenkins C., ‘Male sexuality and HIV: the case of male-to-male sex’, Background Paper: Risks and
Responsibilities, Male Sexual Health and HIV in Asia and the Pacific, New Delhi (2006): 11
61 The Lancet, ‘A call to action for comprehensive HIV services for men who have sex with men’, Vol. 380,
Issue 9839, pp 424–38 (20 July 2012): 425