Senegal

Senegal has an omnibus HIV-specific statute that has both protective and punitive provisions.

Article 36 of the Law on HIV/AIDS makes it an offence for anyone who is knowingly living with HIV and has knowledge of the modes of transmission of HIV, to have unprotected sex with the specific intention to transmit HIV. Transmission is not actually required, meaning that the provision, despite its title, criminalises mere ‘exposure’. As well as requiring knowledge of HIV status, knowledge of the routes of transmission, and an intent to transmit, this provision includes a list of circumstances in which criminal liability is precluded. No one can be prosecuted in cases of transmission or exposure from mother-to-child, acts that do not carry any significant risk of transmission; or when condoms were used. The penalty under this law is five to ten years’ imprisonment and a fine.

The Law on HIV/AIDS also includes punitive penalties for people found guilty of committing discriminatory acts against people living with HIV, disseminating misleading information on HIV, violating confidentiality regulations, and imposing forced HIV testing.

To our knowledge there have been three cases of HIV criminalisation reported in Senegal to date.

In the first case, reported in 2017, a woman who was working as a sex worker was given a suspended sentence of two years’ imprisonment for allegedly having sex while knowingly living with HIV. The report suggests that the facts of the case were contested; while the accuser claims that the sex was unprotected, the woman claimed not to have had sex with the man in question, and in any case, always used condoms and had an undetectable viral load. Although expert medical evidence given at trial highlighted the impossibility of transmission due to her undetectable status, the Court found her guilty under Article 36 of the Law on HIV/AIDS, finding that being undetectable did not preclude liability under the law. This case demonstrates the gap in the implementation and letter of the law, as Article 36 states that acts which don’t pose a significant risk of transmission – which by nature include all sexual acts involving a person living with HIV who has an undetectable viral load – should not result in prosecution.

The second case, reported in 2022, involved a man living with HIV allegedly having sex multiple times with his partner without disclosing his status, for which he was arrested and prosecuted. It is not clear under which provision he was prosecuted.

In the third case in 2024, two men were arrested for committing ‘acts against nature’ (the provision criminalising same-sex activity in Senegal). Subsequent reporting suggests one of the men was HIV-positive, while the other was a minor. This led to a number of charges including ‘wilful transmission of HIV’, although this was subsequently dropped. The man was sentenced to five years’ imprisonment for the other offences.

In August 2024 it was reported that advocates were seeking to have the HIV law reformed to better reflect modern science. Civil society, including the National Alliance of Communities for Health, made a request to the National Assembly to organise a training session to highlight the limits of the existing law and the gaps with modern scientific understandings on HIV.