International Journal of Law in Context


Unsafe law: health, rights and the legal response to HIV

Matthew Weait  *

Birkbeck College, University of London


This paper describes the ways in which, over the past three decades, law has come to serve as an obstacle in the fight against HIV, and how it contributes to the stigmatisation of, and discrimination against, people living with the virus. It argues that in order to make unsafe law safer, policy-makers, legislators and those responsible for the interpretation and enforcement of law must base their HIV response not on populist morality but on the strong evidence base provided by three decades of clinical, scientific and social research. Drawing on that research and the author's own involvement in policy development in this area, it suggests that rights-based arguments are, while important, insufficient as the basis for delivering the changes that are necessary, discusses the difficulties involved in achieving those changes, and argues that legal scholarship and research has an important role to play in HIV activism and combating the global epidemic.



*  Professor of Law and Policy, Birkbeck College, University of London. The author was a member of the Technical Advisory Group to the Global Commission on HIV and the Law ( and has acted in the past as a consultant on legal and human rights issues concerning the criminalisation of HIV to UNAIDS. The outputs and recommendations of these bodies are discussed in this paper, but the views expressed are the author's own. A shorter version of this paper was presented at the ESRC seminar ‘Criminalising Contagion: Legal and Ethical Challenges of Disease Transmission and the Criminal Law’, at the University of Southampton, 10 January 2013, and thanks are due to David Gurnham and others, including the anonymous reviewers, who provided valuable comments.