Bangladesh is on the verge of criminalizing the nondisclosure of communicable diseases including HIV/AIDS. The Communicable Diseases Prevention, Control and Eradication Bill, 2018 was recently placed before the Parliament of Bangladesh with the provision that the nondisclosure of communicable disease including HIV/AIDS will be a criminal offence. In many Western countries such as Canada and the United States, criminal laws require that persons living with HIV/AIDS (PHAs) must disclose their status before engaging in any sexual activities with their partners. However, in Bangladesh, the proposed law will oblige PHAs to report their HIV status to the respective authorities so that they can be kept under surveillance. Presumably, if such a bill comes into a law in the near future, more people will report their HIV/AIDS status due to the fear of deterrence. Consequently, it is expected that if more people report their HIV status, it will contribute to the prevention and control of the spreading of HIV/AIDS. However, the question arises, does criminalization represent a sound policy response to minimizing the risk of transmitting HIV/AIDS? I have pondered this policy question with regard to the Rohingya refugees who are already vulnerable to several pandemic diseases such as Tuberculosis, Hepatitis, and AIDS. In my opinion, if the criminalization goes without reflection, it may produce unforeseeable public health consequences for the Rohingya community.

As of August 2018, a United Nations report states that 900,000 Rohingya refugees have fled to Bangladesh following a brutal military crackdown in Myanmar in 2017. While Bangladesh’s humanitarian stance on the Rohingya crisis is appreciated worldwide, the massive influx of refugees has posed an additional burden on the healthcare system of Bangladesh. It has become difficult for the Bangladeshi government to identify PHAs with its limited resources. A recent article in The Lancet claims that 83 individuals have already identified as HIV positive in the refugee camps with the possibility of many undiagnosed cases. International organizations that work with the Rohingya community also suspect that the numbers are more likely to be higher than the current estimation. In order to control the spreading of HIV in the Rohingya camps and in the neighbouring districts, it is crucial to identify the individuals who are more likely to transmit the disease to others. But, will the criminalization of the nondisclosure of HIV/AIDS increase the voluntary reporting of PHAs’ HIV status?

A growing body of public health literature concerning the criminalization of HIV/AIDS nondisclosure claims that criminal laws do not enhance activities that deter HIV transmission nor does it encourage people to self-report. Conversely, the existence of criminal laws creates a sense of discomfort among the PHAs to disclose their HIV status before engaging in sexual behaviours that would more likely spread HIV/AIDS. Moreover, often criminal laws do not have any impact on the HIV risk behaviour of PHAs because they are overly broad. They do not inform people about their obligations in accordance with their specific disease conditions. While criminalization has very little or no effect on an individual’s HIV risk behaviour, it will be misleading for the health system of Bangladesh to depend heavily on criminal laws as a policy response to the prevention of the HIV spreading in the country. With this considered, further reflection is needed to examine how criminalization presents implications for the public health in the Rohingya community in Bangladesh. Among others, I will highlight five possible implications of the criminalization for the Rohingya community.  

First, the criminalization as a policy response undermines the alternative public health strategies for the prevention of HIV/AIDS such as a needle exchange program that allows drug users to avail of a clean needle with little or no cost. Needle exchange strategy is regarded as one of the most useful tools to prevent HIV spreading among drug users. While a substantial number of Rohingya refugees use injectable drugs, the criminalization might undermine the value of public health strategies, such as needle exchange in the Rohingya communities.

Second, once the criminalization is enacted, health officials including front-line mental health counsellors will be legally obliged to report the HIV status of their patients. Once patients know that their information regarding HIV status could be breached through their health care providers, the trusting relationship between health care providers and patients would be at stake. The lack of a trusting relationship between Rohingya refugees and health care providers may present serious public health implications for the refugees. In fact, the health care providers who are working with the Rohingya refugees report that already many refugees are reluctant to seek health care services. Therefore, the criminalization of nondisclosure has the potential to result in the further deterioration of the health care provider-patient relationship. Consequently, the lack of a trustworthy relationship may further prevent them from seeking necessary health care services. This will jeopardize the effort of global and local health authorities in providing health care services for the Rohingya communities.

Third, although the goal of criminalization is the prevention and control of HIV/AIDS, it can be used as a tool to stigmatize against a certain population. Historically, it was believed that homosexual men were to be blamed for the spreading of HIV/AIDS. The gay communities were stigmatized for a long time and criminalization perpetuated such stigmatization. However, recent advancement of our understanding of HIV/AIDS has proved it wrong. This is relevant to our discussion of the Rohingya community since the criminalization can further discriminate against the Rohingya refugees who are already blamed for the spreading of HIV/AIDS in the neighbouring districts. Although most of the people in Bangladesh have welcomed the Rohingya refugees in their lands, the criminalization can bring implications for this refugee community. For instance, this criminalization can stimulate situation of prejudice and bullying for the PHAs of the Rohingya community.

Fourth, the criminalization can create a false consciousness among the Rohingya refugees. This law may seem to guarantee that it is safe to engage in risky behaviours, such as sharing a needle and having sexual intercourse without the use of protective measures. In other words, the existence of a criminal law in the country could result in individual’s falsely assuming that his or her partner would disclose his or her HIV status. However, in reality, the existence of a criminal law cannot guarantee that an individual will disclose one’s HIV status before engaging in high-risk behaviour that could result in the transmission of HIV/AIDS. Consequently, criminalization will less likely benefit a community such as the Rohingya. Instead, people of the Rohingya community may develop a false sense of security regarding their vulnerability concerning HIV/AIDS transmission.

Finally, the criminalization of HIV/AIDS may create a fear among the Rohingya community that the HIV status of a person will affect his or her restoration to Myanmar. Such fear will discourage people to self-report their HIV status to the respective authorities. Furthermore, due to the criminalization, many people will believe that if they are tested HIV positive, it will bring unintended consequences for them and their families such as social isolation. If someone is tested positive for HIV, his or her mobility may be restricted. The creation of such fear will discourage individuals to test for HIV status. Thus, criminalization may work as an obstacle rather than an advancement towards the prevention of HIV/AIDS in the Rohingya community. If individuals develop a fear of potential ‘positive’ test result, then they may forego being tested together. This will result in a large barrier for HIV/AIDS prevention since an increased population of PHAs will live in the community, oblivious to their positive HIV status.

In my understanding, the criminalization as a policy response to the HIV/AIDS crisis needs a profound analysis of the relevant contexts and exploration of public health alternatives. As seen through our reflection of the Rohingya community, the criminalization of nondisclosure needs to be reconsidered given the various negative implications for the community.    

The writer, a doctoral student in Canada, is an Assistant Professor of Philosophy at Jahangirnagar University and