Criminalization of Same-Sex Sexual Behavior May Lead to False Reports of High HIV Testing

Laws prohibiting same-sex sexual behaviors are linked to implausibly low MSM estimates.

Do countries that criminalize men who have sex with men (MSM) reach targets to reduce the occurrence of HIV/AIDS? Sara L.M. Davis, PhD, of the Center for Human Rights and Global Justice at the New York University School of Law, led a study that discovered that countries with such punitive laws report implausibly low estimates of men who have sex with men (MSM).

The researchers evaluated the targets as described in the United Nations’ Joint Program on HIV and AIDS (UNAIDS) 2016-2021 strategy.

Part of the UNAIDS strategy is a focus on reaching particular populations—including MSM, sex workers, transgender people, and those who inject drugs—in order to make sure these at-risk populations have access to HIV prevention services. Multiple studies and research by various UN agencies and academics from civil society have found that, in countries where high risk populations are faced with punitive laws, they do not have access to critical HIV prevention services. The authors of the current article said that their aim was to analyze the relationship between criminalization of particular behaviors and the performance of national HIV programs.

“The law represents only one part of a complex legal environment that includes law enforcement, judicial interpretation of the laws, access to legal representation, and more,” the researchers noted in the Journal of the International AIDS Society, but maintain that analyzing the impact of the law is an important first step.

The researchers used the “2011-15 Political Declaration on HIV and AIDS, the UNAIDS 2011-15 strategy and the more recent 2016-21 Political Declarations and UNAIDS strategy” in order to examine differences between HIV data reported and indicators in legal statutes in the 4 targeted population groups. Such a strategy allowed the researchers to identify gaps in data and global patterns, however, it did not provide any kind of insight into HIV vulnerability for individuals.

“In this case, the methodology highlighted lack of sufficient HIV and legal data for most key population groups,” Davis (photo) and team wrote.

The Global AIDS Response Progress Report (GARPR) outlines global HIV indicators, including what is known as the 90-90-90 targets. Those targets aim for 90% of people living with HIV being tested, 90% of those who test positive to receive antiretroviral therapy (ART), and 90% of those on treatment to show reduced viral loads. The authors say that the 2016-2021 strategy adds a goal of 90% of members of the 4 key populations having access to prevention services. The ultimate goal is to end the public health threat posed by the AIDS epidemic by 2030.

Countries complete the GARPR annually, and in 2014 all 180 countries submitted. The researchers used the information from those reports for the current study, and say they were “focusing on the data reported for sex workers, men who have sex with men, transgender people, and people who inject drugs”. Additionally, they examined four GARPR report indicators: “size estimates, condom use coverage, HIV testing coverage, and HIV prevalence.” Not all 180 countries reported on all of the indicators the researchers investigated. In fact, they found that there was only enough information to complete the study on MSM.

It was while examining legal data the researchers found the most significant gaps in data. Although the UN has added monitoring the impact of the legal environment, particularly punitive laws, on HIV and AIDS, the researchers report “no UN agency had systematically mapped which countries have these punitive laws.”

Punitive laws, size estimates, and HIV testing among MSM were related. Countries with punitive laws reported implausibly low numbers of MSM compared to countries without such laws, especially in countries where same-sex sexual behavior is punishable by death.

Upon initial investigation, it appeared that laws prohibiting same-sex sexual behavior also impacted HIV testing among MSM. The researchers found “very high HIV testing coverage among MSM” in countries with punitive laws, but noted, “these findings were not consistent with findings from qualitative research.” They dug further and contacted civil society organizations working in the countries with what seemed like the most skewed numbers. Individuals within those organizations confirmed the researchers’ suspicions that the data were likely incorrect.

“We found that criminalization of same-sex sexuality is associated with implausibly low or absent size estimates for MSM; and in turn, that lack of plausible size estimates is a factor in implausibly high HIV testing coverage,” the authors concluded.

The study, “Punitive laws, key population size estimates, and Global AIDS Response Progress Reports: an ecological study of 154 countries,” was published in the Journal of the International AIDS Society.

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