| Edwin J. Bernard, aidsmap.com, Thursday, August 07, 2008
Concern over the growing international trend towards the criminalisation of HIV transmission or exposure was documented in a Wednesday morning session at the XVII International AIDS Conference that highlighted “criminalisation creep” in Europe and Central Asia as well as the rapid spread of “highly inefficient laws” in West and Central Africa.
UNAIDS is so alarmed by these developments that this week they produced a new policy paper strongly suggesting that governments should repeal current laws that criminalise HIV transmission and exposure laws with the exception of intentional transmission.
With five major sessions over four days and least 20 different oral or poster presentations, the criminalisation of HIV transmission or exposure is one of the burning topics of the XVII International AIDS Conference agenda. And on Friday, South African Supreme Court Justice Edwin Cameron will deliver a plenary speech calling for an unambiguous rejection of the use of criminal law to regulate the sexual behaviour of those with and at risk of HIV.
Today, however, the conference heard evidence that laws enabling prosecutions for HIV exposure or transmission – whether via sex, needle-sharing or from a mother to an unborn child or infant – are high on the agenda of many nations around the globe, despite the fact that there is no evidence these laws change behaviour, and growing evidence that they may inadvertently exacerbate the HIV epidemic.
West African model law confusing and problematic
In a session entitled, ‘To transmit or not to transmit: is that really the question? Criminalisation of HIV transmission’, the conference heard that since 2005, Western and Central Africa has witnessed an explosion of national HIV-specific criminal exposure and transmission laws that threaten to make it one of the most legislated regions in the world for HIV.
So far, Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone have passed laws in rapid succession and more Western, Central and Southern African countries are proposing similar laws, including Angola, the Democratic Republic of Congo, Malawi, Madagascar, Tanzania and Uganda.
Most of these laws are based on the African Model Law, created in September 2004 during a workshop by Action for West Africa Region– HIV/AIDS (AWARE–HIV/AIDS), in N’djamena, Chad.
Richard Pearshouse of the Canadian HIV/AIDS Legal Network noted that AWARE-HIV/AIDS receives USAID funding, and is implemented by Family Health International with additional funding from US-based organisations including Population Service International and the Constella Futures Group. He suggested to conference delegates that they politely let these organisations know how they feel about this at their stands in the exhibition hall.
The model law comes in the guise of human rights legislation in order “to protect those who are infected and exposed to HIV,” and Mr Pearshouse pointed out that the model law does have some positive provisions, including a guarantee of pre- and post-test counselling; a right to healthcare services and medical confidentiality; and protection from discrimination when receiving healthcare and in the provision of goods and services.
However, Mr Pearshouse also pointed out that the model law contains a number of problematic provisions, such as the requirement that someone newly diagnosed with HIV must disclose their status to a “spouse or regular sexual partner” as soon as possible and at most within six weeks of the diagnosis; mandatory HIV testing during antenatal care, following a rape charge, and “to solve a matrimonial conflict”; and, most worryingly, the extremely vague offence of “willful transmission” defined as transmission of HIV “through any means by a person with full knowledge of his/her HIV/AIDS status to another person” including via sex, needle-sharing, and mother-to-child transmission.
He argued that the phrase “through any means” was imprecise and may end up criminalising all HIV-positive individuals, even those who practise safer sex regardless of disclosure and regardless of the actual risk of transmission.
Criminalising mother-to-child transmission is especially problematic, he said. The UNAIDS policy brief on criminal HIV transmission released this week argues that this is inappropriate because:
- everyone has the right to have children, including women living with HIV;
- when pregnant women are counselled about the benefits of antiretroviral therapy, almost all agree to being tested and receiving treatment;
- in the rare cases where pregnant women may be reluctant to undergo HIV testing or treatment, it is usually because they fear that their HIV-positive status will become known and they will face violence, discrimination or abandonment;
- forcing women to undergo antiretroviral treatment in order to avoid criminal prosecution for mother-to-child transmission violates the ethical and legal requirements that medical procedures be performed only with informed consent;
- and often, HIV-positive mothers have no safer options than to breastfeed, because they lack breastmilk substitutes or clean water to prepare formula substitutes.
Do women really need these laws?
These new laws have arrived under the guise of protecting women – who have few legal or human rights in many African nations – noted Michaela Clayton of the AIDS & Rights Alliance for Southern Africa (ARASA), but, “is this what women really want?” she asked.
She said that 61% of HIV-positive individuals in sub-Saharan Africa are women and that women are the often the first person in a couple to know their HIV status due to antenatal screening.
Women, she said, are then often blamed for “bringing HIV home” and consequently often feel unable to disclose their HIV status to their male partners due to a very real fear of physical harm and eviction.
In addition, due to power imbalances within relationships most women are unable to practise safer sex, since condoms are a male-controlled prevention method.
Under these laws, she said, it seemed likely that women as well as men will be arrested and prosecuted and suggested that these laws may deter women from accessing HIV testing and services aimed at preventing mother-to-child transmission of HIV.
“Criminalisation is bad public policy,” she concluded. “Jurisdictions should not adopt criminalisation policies and those that have already done so should reverse course.”
”Criminalisation creep” in Europe and Central Asia
The same conclusion was asserted even more forcefully by HIV-positive advocate, Julian Hows, who presented results of an updated scan by the Global Network of People Living with HIV/AIDS (GNP+) and the Terrence Higgins Trust (THT) of criminal HIV exposure and transmission laws in 53 countries in Europe and Central Asia.
A 2004 rapid scan, published in 2005, previously revealed that out of the 45 European countries surveyed, in at least 36, the actual or potential transmission of HIV can constitute a criminal offence.
During his presentation, Mr Hows revealed that Sweden, Switzerland and Austria remained at the top of the prosecutions league table, followed by Denmark, Finland, France, Italy, Netherlands, Norway, and the UK.
Only Albania, Bulgaria, Estonia, Luxembourg, and Slovenia had no existing or HIV-specific laws criminalising HIV exposure or transmission, although reliable data were lacking for Greece, Monaco, Portugal, Spain, and Uzbekistan.
However, Mr Hows pointed out that data on prosecutions is difficult to obtain in many countries and that the data may “significantly underestimate prosecutions.”
He noted that in the United Kingdom although there have ‘only’ been 16 prosecutions and twelve convictions to date, there have been more than 100 police investigations that did not reach the court, “but which also had devastating effects on individuals, their families and their communities” and suggested that this may also be the case in the other countries that currently prosecute HIV exposure or transmission.
He added that information on the enforced quarantine of HIV-positive individuals perceived to be a threat – such as is the case in Sweden – is also difficult to ascertain.
Since 2004, six countries have enacted or proposed laws that criminalise HIV exposure or transmission, including Albania, Moldova, Montenegro, Kyrgystan, Serbia and Turkey. In addition, Malta, Poland, Kyrgystan and Serbia can now be added to the list of countries that have prosecuted at least one individual for HIV exposure or transmission.
One bright spot, noted Mr Hows, is advocacy that has – or may have – a positive impact in four countries.
In Switzerland, the Swiss Federal AIDS Commission’s statement regarding the lack of infectiousness of individuals on effective treatment may reverse the trend that has seen ten prosecutions and eight convictions in the past four years.
However, last month the highest Swiss court ruled that all people with HIV can be criminally liable for HIV transmission, even if untested.
In the Netherlands, no prosecutions or convictions have taken place since 2005 due to two Dutch Supreme Court rulings in 2005 and 2007 following intense discussion between legislators, lawyers and civil society organisations.
However, there has been one prosecution for intentional transmission of HIV by a needle filled with HIV-infected blood.
In the United Kingdom, new guidelines by the Crown Prosecution Service have clarified some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, and given the high threshold of evidence required it seems likely that prosecutions will become increasingly rare – in fact the last three attempts to prosecute reckless HIV transmission in England and Wales have failed.
And, although there has been no change in law, the Ukrainian Network of People Living with HIV/ AIDS has had success in highlighting the unreliablity of phylogenetic testing and have avoided several prosecutions being initiated.
Mr Hows concluded, however, that “there is a slow ‘creep’ of increasing criminalisation across the countries being studied,” and that “laws are being introduced or being made more punitive without any regard or consideration for the evidence.”
He noted that “advocacy efforts to decriminalise where possible, mitigate where it is not, and ensure that laws are not introduced where there are none – are mainly noticeable by their absence”.
UNAIDS argues only intentional transmission should be prosecuted
In an attempt to counter the growing trend of criminalising HIV exposure and transmission, UNAIDS this week published a new policy brief that strongly argues against all prosecutions for HIV exposure or transmission with the exception of “cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.”
The paper states that, “there are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights.”
It argues that alternatives to criminal sanctions should be explored: “Instead of applying criminal law to HIV transmission, governments should expand programmes which have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative”
Further, UNAIDS suggest that governments “strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and children; improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and children, and support women’s equality and economic independence, including through concrete legislation, programmes and services. These are the most effective means by which to protect women and girls from HIV infection and should be given the highest priority.”
The paper concludes with several important recommendations, including:
- Governments should abide by international human rights conventions on equal and inalienable rights, including those related to health, education and social protection of all people, including people living with HIV.
- Governments should repeal HIV-specific criminal laws, laws directly mandating disclosure of HIV status, and other laws which are counterproductive to HIV prevention, treatment, care and support efforts, or which violate the human rights of people living with HIV and other vulnerable groups.
- General criminal laws should only apply to the intentional transmission of HIV, and governments should audit the application of general criminal law to ensure it is not used inappropriately in the context of HIV.
- Governments should redirect legislative reform, and law enforcement, towards addressing sexual and other forms of violence against women, and discrimination and other human rights violations against people living with HIV and people most at risk of exposure to HIV.
- Access should be significantly expanded to proven HIV prevention programmes (including positive prevention), and support voluntary counselling and testing for couples, voluntary disclosure, and ethical partner notification.
References
UNAIDS Policy Brief Criminalization of HIV Transmission August 2008.
Pearshouse R et al. Legislation contagion: the spread of problematic new HIV laws in Africa. 17th International AIDS Conference, Mexico City, abstract WEAE0101, 2008.
Clayton M et al. Criminalising HIV transmission: is this what women really need? 17th International AIDS Conference, Mexico City, abstract WEAE0102, 2008.
Hows J et al. Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia. 17th International AIDS Conference, Mexico City, abstract WEAE0103, 2008.
MEXICO CITY, 7 August 2008 (PlusNews) – In an attempt to stem the spread of the virus, African countries are increasingly passing legislation that criminalises HIV exposure and transmission. But these laws could do more harm than good, delegates attending the International AIDS Conference in Mexico, heard on Wednesday.
“Africa has burst into this whole frenetic spasm of criminalising HIV,” said South African Justice, Edwin Cameron.
Laws that make HIV transmission an offence are nothing new in the developed world. In Switzerland, a man was sent to jail this year for infecting his girlfriend with HIV, even though he was unaware of his HIV status and a Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances the officer was exposed to the virus were virtually zero.
Now African governments – particularly in West Africa – are jumping on the bandwagon.
Four years ago, participants from 18 countries met at a regional workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa. But the law that they came up with was far from “model”, in fact Cameron described some of its provisions as “frankly terrifying”.
According to Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, the model law’s broad definition of wilful transmission could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.
The law also makes provision for compulsory HIV testing for accused rapists and for the settling of marital disputes; empowers healthcare workers to disclose a patient’s HIV status to their spouse or sexual partner; and requires people with HIV to tell their partners as soon as possible or within six weeks of learning their diagnosis.
Worryingly, at least seven countries in West and Central Africa have already used the model as the basis for their national HIV legislation, while at least six others are in the process of developing similar laws.
Some countries have chosen to adopt the “model” law word for word, while others have attempted to simplify it, making the legislation “profoundly human rights unfriendly and human rights regressive”, according to Pearshouse.
Southern Africa, where the burden of HIV is the highest, has a mix of effective and ineffective HIV laws, but very few countries have so far introduced legislation that criminalises HIV transmission.
However, Michaela Clayton, executive director of the AIDS and Rights Alliance of Southern Africa, told delegates that in Malawi, a bill with very broad provisions for criminalising transmission, including from mother-to-child, is currently being debated. If found guilty under the proposed law, an HIV-positive person could face imprisonment of up to 14 years. Mozambique is considering passing similar legislation.
 Criminal law is simply the wrong framework for dealing with HIV transmission. Everywhere it has been tried, it has been counter-productive |
“Bad laws can spread the virus”
Speakers agreed that the intentional and malevolent infection of another person is a criminal offence, but warned about the difficulty of drawing a line between criminal and non-criminal transmission.
Julian Hows, from the Global Network of People living with HIV/AIDS, urged delegates to consider the effect of criminalisation laws on HIV-positive people. He said they created “fear and confusion” and made people living with the virus feel like criminals.
“Criminal law is simply the wrong framework for dealing with HIV transmission,” Cameron commented. “Everywhere it has been tried, it has been counterproductive and applied unjustly.”
Instead of preventing HIV, criminalisation fuels stigma and discourages people from getting tested, disclosing their status to partners or accessing treatment.
Criminalisation is often positioned as a way of protecting women, but Clayton pointed out that because women test for HIV in greater numbers than men, it is women who were more likely to be arrested and prosecuted. She also warned that the laws would create mistrust between people living with HIV and health care providers.
“Just like faulty condoms or unsafe medical supplies, bad laws can spread the virus,” Cameron said.
An excellent article published today in the online edition of Canada’s gay newspaper, Xtra, examines the impact of criminal prosecutions for HIV exposure (and transmission) in the country with currently the most prosecutions per capita in the world (that we know about, at least).
I must admit I may be somewhat biased about the article, since the writer, Shawn Syms, interviewed me for it; however, it does also include an interview with Richard Elliott of the Canadian HIV/AIDS Legal Network.
Criminalizing HIV may only fuel the epidemic
Laws create disincentive for testing
Shawn Syms / Xtra.ca / Thursday, July 17, 2008
Want to know a great way to increase the spread of HIV? Criminalize it.
In Canada, a person with HIV can be put in jail if they have unprotected sex with someone who didn’t ask about their HIV status. This means that HIV-negative people have the power to seek prosecution of HIV-positive people over sexual choices they made together, even if no HIV transmission occurs at all.
On first glance, this may sound fair. After all, isn’t the person with HIV being dishonest, hiding information that any HIV-negative person deserves to know so they can avoid hopping in the sack with them in the first place? If you judge by media coverage, or common public sentiment, or even the views of many gay men, you might agree. But things aren’t that simple.
The Supreme Court decided a decade ago that a person with HIV can be prosecuted if they engaged in sex that involved a “significant risk of serious bodily harm” — but the question of which activities meet that criteria and which don’t hasn’t been definitely settled.
If there are unanswered legal questions, the lack of community agreement is just as apparent. I think there’s a shared ethical consensus that it’s malicious to lie about HIV status to convince someone to have unprotected sex. Beyond that though, opinions are all over the map.
Some negative gay men assert their own responsibility to play safe and don’t discriminate based on known or perceived HIV status — while others express righteous indignation that anyone would engage in even the safest of activities without informing others if they have HIV.
Some men with HIV feel that if they disclose, any behaviour that both parties agree to is acceptable. Others think playing extra safe should be enough. And significant numbers of people with HIV actually support criminalization. Can we all come closer together as a community on these questions? And does criminal prosecution under the law offer us any assistance in that goal?
“These laws harm public health — and they don’t help anyone,” argues Edwin Bernard, a writer and researcher who studies HIV criminalization laws around the world. “The subtle but very real impact of these legal cases is that people with HIV don’t have the same sexual and reproductive rights as others.”
If you read the judgments in court cases of so-called “reckless” HIV-transmission risk — more and more of which are prosecuting gay men — they seem to send the message that people with HIV are completely responsible for protecting the sexual health of others, and that HIV-negative people don’t have any personal responsibility for the choices they make.
That’s not exactly the case, says Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, which has advocated for the legal rights of people with HIV since 1992. He points out the kinds of charges levelled in these cases — such as “criminal negligence causing bodily harm” — are specific to criminal law, which is only concerned with the innocence or guilt of the accused person. In fact, the responsibility of the other partner when it comes to safer sex isn’t even really considered.
So why could criminalizing the HIV-transmission risk actually increase the threat of HIV? Because it encourages the people at very greatest risk of passing HIV on — those who don’t even know they have it — to avoid testing, diagnosis and treatment.
“This creates yet another disincentive for people to get tested,” says Elliott, since knowing your HIV status makes you a target for criminalization — whether or not you consistently practice safer sex. That’s because there is very little to protect someone from an HIV-negative person lying about them — and it’s left to the judge to decide who is telling the truth.
Often the name of the person with HIV is dragged through the media in terms that are sensational at best, and inaccurate at worst — as was seen in the recent case of gay man Ryan Handy. The London Free Press headline blared “HIV positive man spread virus, jailed 8 months,” even though he didn’t do that at all. Consistently, the name of the accuser is withheld — potentially creating a safe space for malicious liars to attack responsible people with HIV with relative impunity.
“What’s happening in Canada is a witch hunt against HIV-positive people,” says Bernard. He points to the Quebec case earlier this month where a woman with HIV pressed charges against her boyfriend for domestic assault. The boyfriend countered that the woman had exposed him to HIV, even though the woman said she disclosed her HIV status early in the relationship and claimed the sex had been protected all along.
“This is a revenge case,” says Bernard. “Any time anybody has a grudge against an HIV-positive person, it is now possible to make a complaint and it will always end up being a ‘he-said/she-said’ or ‘he-said/he-said’ case in court.”
I’d like to expect that all judges and prosecutors are free of bias and well-informed about the real risks of HIV transmission — but that may be a foolish hope. Two months ago an American man with HIV was sentenced to 35 years in prison for spitting on someone. Late last year, an Ontario judge insisted that a witness with HIV and hepatitis C wear a protective mask in the courtroom despite zero risk to anyone in the room. And prosecutors have provided judges and juries with inaccurate information about the ability to medically determine which person infected which in HIV-transmission cases.
“So many of these cases are one person’s word against another — and juries are predisposed against HIV-positive people,” adds Bernard. “Condom use and disclosure must be proven. But unless people start using mobile phones to video the moment of disclosure and the condom being put on… it gets ridiculous.”
There is a common perception that people diagnosed with HIV represent a serious risk to others. But the far more grave threat lies elsewhere — with people who believe themselves to be HIV-negative and who, with little risk of legal prosecution, go around having unprotected sex with anyone they want, perhaps with little discussion of sexual risk and responsibility.
Placing a legal burden on people who know they are HIV-positive goes after the wrong people the wrong way. These women and men have taken the responsibility to get tested and are most likely to be on treatment, which itself significantly reduces their likelihood of infecting others. And when we punish them and throw them in jail, we put them in a situation where they have less access to medication, safer-sex supplies or clean needles — creating a dire epidemic of HIV and hep C in our prison system among people who will eventually be released in far worse shape.
Meanwhile, Bernard points out, studies in Canada and the US have concluded that people who don’t know their status — who may believe themselves to be negative — are the ones responsible for the majority of new HIV infections. “Nearly all new HIV infections can be attributed to HIV-positive persons unaware of their HIV status,” he wrote in an analysis of multiple research studies for the online resource Aidsmap.
This is because these people are more likely to practice unprotected sex and because the amount of HIV in someone’s system is dramatically elevated at the point of initial infection — making it easier to pass the virus on. (The ruling in one Canadian case has suggested these people may be legally liable as well, but this has not been definitively confirmed by the courts.)
All this means that practicing safer sex — rather than mandating that all people with HIV always disclose their status — is the best bet for everyone who wants to remain HIV negative. Disclosing HIV status doesn’t protect positive men and women from legal action, and it opens them up to discrimination, stigma and danger.
That can include the threat of physical violence. “Do I risk getting beaten up by disclosing? Or do I risk getting criminally prosecuted if I just stay quiet?” says Elliott of the situation faced by some people with HIV. “This is a really good example of how the criminal law is of very little use in a really complicated human interaction.”
“Disclosure is not the answer,” says Bernard. He points to the case of David Summers, who, according to a report in the Halifax (UK) Evening Courier, violently beat and brain-damaged a man who disclosed his HIV status after sex, “leaving his victim unconscious in his blood-spattered flat.” The report did not indicate that the sex was unprotected.
Bernard has reviewed legal cases of criminal HIV transmission from around the world. In his view, Canada’s record is one of the worst. Per capita, he says, “Canada is criminalizing more people with HIV than anywhere in the world.” The punishments in the US are the most severe, and the laws in Switzerland are most “draconian” — there, unlike in Canada, using a condom doesn’t protect someone from prosecution.
Bernard and Elliott both point to the response to criminalization in England and Wales as hopeful. The UK Crown Prosecution Service developed a guidance document to advise prosecutors on HIV criminalization cases, incorporating input from AIDS service organizations. But Elliott cautions that the comparatively decentralized nature of the Canadian system makes a similar response here unlikely.
Is there any way out of this mess? “The fewer of these laws there are, the better off we will be, in terms of the health of the public at large,” argues Bernard, suggesting that criminalization be replaced with a renewed focus on safer sex for everyone and testing, diagnosis and treatment for people who do acquire the virus. “HIV is everybody’s concern and sexual health is everybody’s responsibility.”
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