UNAIDS: Edwin Cameron on criminal HIV transmission

UNDP and UNAIDS Secretariat Consultation on criminalization of HIV transmission, Geneva 31 October – 2 November 2007

Opening remarks on 2 November and recap of previous day (1 November 2007) by Edwin Cameron, Supreme Court of Appeal of South Africa


The debate over the last two days has revealed many differences between us – but also
substantial common ground. We have found broad agreement amongst ourselves that:

• the criminal law is in general an inappropriate tool for regulating HIV infection and transmission;
• there is no public health rationale for invoking criminal law sanctions against
those who transmit HIV or expose others to it;
• the sole rationale for so doing must be found in the criminal law aim of retribution;
• the retributive nature of the justification means that a high threshold is required
for its invocation to be warranted;
• the use of the criminal law in this context should therefore generally be confined
to cases of the intentional transmission of HIV; and
• use of the criminal law can never be justified where the person accused of HIV
transmission or exposure has no actual knowledge of his or her HIV infection.

More importantly even than these areas of consensus, and far more important than the
issues that continue to divide us is this: that we have, in this meeting, found our moral and intellectual centre, as well as a clear path to our forward impetus. This lies in what can appropriately be called a “crisis of criminalization”: laws are being enacted that appear to be so ill-judged, so poorly formulated and so over-broadly expressed that they unite us in alarm at their enactment and in concern that their adoption might be emulated elsewhere. (1) We have reached strong consensus on the need for a clearly and respectfully expressed, but emphatic and unequivocal response to these laws and to the threat of further such enactments.

In thinking about the terms of this response, there are, as Justice Michael Kirby has
observed, questions of both principle and strategy. These require us to be pragmatic in the terms and content of our response, and to bear in mind – as we have rightly been reminded by the legislators among us– that those enacting these laws hold positions of authority and come from communities that are feeling the real impact of HIV.

Yet strategy and pragmatism should not mute our commitment to a clearly principled
position. We tend to feel defensive in opposing criminal statutes which we know to be
detrimental to HIV prevention and to the lives and safety of those living with and at risk of HIV. Yet here we must draw strength by reminding ourselves of the history of other battles that were fought in this epidemic. Often these appeared to involve “unwinnably” quixotic struggles: yet in each case the viewpoint of justice and rationality ultimately prevailed.

Here we should remind ourselves of the struggle to make human rights count at all in
global and national responses to the epidemic – a struggle started by Jonathan Mann,
and most prominently and eloquently advanced by Michael Kirby over the last twenty
years; and the battle to formulate and adopt the International Guidelines on Human
Rights and HIV and AIDS – which initially seemed over-ambitious, but which were
vindicated when the entire international community stood behind human rights principles in the Declaration of Commitment adopted at the UN General Assembly Special Assembly on HIV and AIDS in 2001.

Most signally, the fight to introduce mass public provision of anti-retroviral treatment in resource-poor settings in Africa and elsewhere – until 2000, that seemed an impossible prospect; yet now it is a commonplace of national and international AIDS policy. For myself, this last issue has an especial resonance, since next week I will mark a significant anniversary. It will be ten years since I started on the ARV therapy that saved me from certain death from AIDS.

This for me is not merely a private celebration, but a constant reminder that far too few of those who right now need ARVs are receiving them – and that daily the toll of
unnecessary deaths from AIDS continues to climb. While 400 000 people are receiving
publicly-provided ARVs in South Africa, and 60 000 in Zimbabwe – figures whose growth
we should celebrate – many multiples more people need the life-saving medications but
are not receiving them, and are facing death from AIDS. And it bears most directly on
our deliberations, for the ill-judged laws that trouble us seem indubitably certain to make access to testing and thence to treatment more difficult in countries where they are adopted. And treatment access represents the most urgent issue in the response to the epidemic in Africa today.

Our response must therefore take into account both the increasing prosecutions of HIV
transmission and exposure in resource-rich countries, where HIV prevalence generally
remains low and the enactment of these laws in high-prevalence, low-resource
countries. Our response has an especial importance in these countries, for regrettably the capacity for strong, well-informed and assertive civil-society responses to these laws is often lacking there. And it is in these countries, as many in the meeting have insistently reminded us, that the burden of the HIV epidemic falls most harshly on women; and it is upon women that the severest impact of these laws will also fall, for most people in Africa who know their HIV status are women who discover it through their visits to ante-natal clinics.

In formulating the imperative arguments against criminal responses to HIV transmission and exposure we must again go back to the roots of this epidemic. HIV is treated exceptionally for one over-riding reason: the stigma associated with it as a sexually transmitted infection. No other infectious disease, not even any other sexually transmitted disease, is treated as HIV is treated. From May 1981, when the first case of AIDS was diagnosed within the gay community of San Francisco, HIV has been treated differentially, and more harshly.

It can truly be said that stigma lies at the heart of the experience of every person living with HIV – as is poignantly articulated by the witness of persons with HIV recorded at the meeting that the AIDS and Rights Alliance of Southern Africa held with the Open Society Institute in Johannesburg in July 2007. (2)

It is stigma that makes those at risk of HIV reluctant to be tested; it is stigma that makes it difficult – and often impossible – for them to speak about their infection; and it is stigma that continues to hinder access to the life-saving ARV therapies that are now increasingly available across Africa and elsewhere. Legislators – bewildered, or baffled, or at a loss as to how to respond effectively to the epidemic – may be seduced into erroneously taking recourse to criminalization, which may seem attractive, effective and media-friendly. Yet, tragically, it is primarily stigma that lies behind the drive towards criminal responses to the epidemic. It is stigma, rooted in the moralism connected with the sexual transmission of HIV that often provides the main impulse behind the enactment of these laws.

But the enactment of such laws in turn merely adds fuel to the fires of stigma. It is not only prosecutions for HIV transmission and exposure, but the chilling content of the enactment of the laws themselves, that reinforces the idea of HIV as a shameful,
disgraceful, unworthy condition. And so prosecutions and laws of this sort, by
reinforcing stigma, make it more difficult for those with or at risk of HIV to access testing, to talk about diagnosis with HIV, and to receive treatment and support.
We therefore have a drab but irrefutable calculus: these laws will lead to more deaths, more suffering and greater debilitation from AIDS. We ourselves and the UN system must speak skillfully and deftly and respectfully, but must not compromise principle in setting out the case against laws and prosecutions that detrimentally affect a just and rational response to AIDS.

Too many lives are at stake for that message to be blunted.

Notes
1 The meeting considered generally laws in Asia, Europe, Southern, Western and Central Africa.
2 See Meeting Report, ARASA/OSISA Meeting on the Criminalization of HIV Transmission, July, 2007

(Disclaimer: These remarks are those of the author and do not necessarily reflect the view of those attending the meeting or of the UNAIDS Secretariat, UNDP or other Cosponsors of UNAIDS.)

From http://www.unaids.org/en/MediaCentre/PressMaterials/FeatureStory/20071106_criminalization_HIV_transmission.asp

Editorial: The Transmission of HIV and the Criminal Law

THE TRANSMISSION OF HIV AND THE CRIMINAL LAW
Editorial by Matthew Groves in Criminal Law Journal (Australia)
(2007) 31 Crim LJ 137

There has recently been considerable publicity about the criminal law and the transmission of human immunodeficiency virus (HIV). In South Australia, the two issues came together in an appeal concerning so-called “AIDS-denialists”. In Victoria, the possible use of the criminal law in a case involving criminal conduct and the transmission of HIV generated widespread publicity about the alleged failure of administrative arrangements to manage the behaviour of people who are HIV positive and are suspected of engaging in inappropriate behaviour. The common theme in each instance was the continued difficulty that the law has in grappling with HIV-related issues. Another common point arising from each controversy is that legal responses to HIV, at least in the criminal arena, remain vexed about issues of knowledge and consent. Even the most recent of cases shows that these age-old issues are not capable of easy resolution of exact legal principle.

THE GHOSTS OF CLARENCE AND PAPADIMITROPOULOS
Criminal cases about the transmission of HIV almost always involve sexual conduct. In most of these cases, a key dispute of fact is usually whether the alleged victims knew the accused was HIV positive. Many also raise the question of whether the accused knew if he (as it usually is a male) was HIV positive. The spectre of the Clarence1 case has long hung over such cases. That notorious case involved a husband who knew that he was suffering from gonorrhoea, but nonetheless had sex with his unsuspecting wife and passed the disease to her. Clarence was charged with inflicting grievous bodily harm and assault occasioning actual bodily harm.2 His appeal against conviction succeeded in part because the consent of Mrs Clarence to have sex with her husband was held not to be vitiated by her husband’s failure to disclose his illness. The case became more controversial over time by reason of its reliance on the artificial proposition that a married woman was, by virtue of her status as a wife, deemed to have consented to have sex with her husband. But considerable difficulty also flowed from
the suggestion of Stephen J that fraud would not vitiate consent unless it went to either the nature of the act or the identity of the other person. The main problem with that approach was that it greatly narrowed the circumstances in which fraud would stymie consent.

The High Court essentially adopted a similar view Papadimitropoulos v The Queen3 when it held that an accused who had taken a woman through a sham marriage was not guilty of rape when the two subsequently had sex (on what the woman mistakenly thought was their wedding night) because the woman knew of, and consented to, both the nature of the act and the identity of the accused. The court explained that “once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape”.4
The reasoning adopted by Stephen J in Clarence was not decisively accepted in England until
over a century later,5 but the decision had been steadily narrowed in the meantime.

Papadimitropoulos was similarly chipped away by the introduction of many lesser sexual offences under which similar fraud could have been prosecuted.6 The reasoning in these decisions has assumed renewed importance with the rise of HIV-related prosecutions because most of these cases involve allegations of fraud that are not unlike those in Clarence and Papadimitropoulos. The experience of other jurisdictions suggests that further difficulties arise from the circumstances of many HIV-related cases.

THE NEW ZEALAND EXPERIENCE
The leading New Zealand case of R v Mwai7 clearly invoked the spectre of Clarence. The defendant who was HIV positive had unprotected sex with five women without disclosing his HIV status. Two of the women became HIV positive. On appeal it was argued that the defendant could not control the virus and, therefore, had not failed to discharge any legal duty to which he might be subject. On appeal, attention focused on the likelihood that one of the defendant’s partners would contract HIV.

More particularly, it was argued that the many biological factors that could influence whether any particular sexual encounter might lead to the transmission of HIV were such that the required causal connection between the sexual act and HIV infection could not be established to the standard required in criminal cases. This argument was essentially accepted in a string of Victorian cases,8 but was flatly rejected by the Court of Appeal of New Zealand.9

Surprisingly little attention was given to the failure of the defendant to disclose his HIV status but the Court of Appeal did accept that disclosure could have made an important difference. The issue arose in the context of the extent of the defendant’s possible duty, as a person who had a dangerous thing under his control or charge,10 and the nature of the duty to take precautions against and to use reasonable care to avoid resulting dangers. The court accepted that:

It is certainly arguable that there would be no duty if the partner consented to run the risk. Seen in thisway, the duty to use a condom would arise only if there were a failure to disclose.11


Although the Court of Appeal accepted that this point was made irrelevant by the defendant’s failure to disclose his HIV status, it was clearly prepared to entertain the possibility that an informed partner might be able to consent to unprotected sex with a HIV positive person. The logically related proposition that a duty to use condoms might only fall upon a HIV positive person if he or she disclosed his HIV status assumes that the person knows of his or her own HIV status. A key problem with that approach is that proof on the part of a defendant of his or her HIV status might be difficult.

Another problem is that, if a duty to engage in protected sex might only arise if there is knowledge and disclosure of HIV status, no such duty arises in other instances. That possibility does not sit well with the great emphasis that health authorities have tried to place on the need to engage in safe sex practices in all instances.

THE CANADIAN EXPERIENCE
In the leading Canadian case of R v Cuerrier,12 the accused, who was HIV positive, was charged with assault after he had unprotected sex with two women without disclosing his HIV status to either of them. The case turned on s 265(3)(c) of the Canadian Criminal Code, which provides that consent to the use of force is not obtained if the victim submits or does not resist by reason of fraud. All members of the Supreme Court held that Cuerrier’s failure to disclose his HIV status could constitute fraud within the meaning of this provision and could, therefore, vitiate consent.13 The case did not provide an entirely satisfactory precedent because the various judges issued three different theories on the requirements necessary to prove fraud in this sense.

Cory, Major, Bastarache and Binnie JJ held that a complainant’s consent to sexual activity could be vitiated by fraud if an accused failed to disclose his or her HIV status dishonestly, and this dishonesty had the effect of exposing the complainant to a significant risk of bodily harm. This latter requirement was clearly met by the risk of engaging in unprotected sex, while the proper use of condoms could reduce harm sufficiently so that there was no “significant risk of bodily harm”.

According to this view, unprotected sex could give rise to criminal liability, but protected sex
probably would not. The remaining judges added a requirement that the prosecution establish that an accused either knew, or ought to have known, that his or her fraud actually induced the complainant’s consent to have unprotected sex. McLachlin and Gonthier JJ essentially argued that Clarence should be cast aside, so that deception or dishonesty about one’s HIV status or another sexually transmitted infection could constitute fraud, which would vitiate any apparent consent to sex. L’Heureux-Dubé J cast a wider net, holding that fraud occurred when the dishonest act induced the other person to consent to the conduct, irrespective of the danger or risk of the act. On this view, any form of fraud would effectively vitiate consent.

THE ENGLISH EXPERIENCE
R v Dica14 was another case involving a HIV positive man who had unprotected sex with several women without informing them of his HIV status. He was charged with the same offence used in Clarence and was convicted after the trial judge ruled that it was open to the jury to find the defendant guilty, partly on the basis that the knowledge or ignorance of the women of his health status was irrelevant because they did not have the capacity to consent to the serious harm of HIV infection.

After this ruling, the defendant chose not to give evidence. On appeal, the defendant argued that, had the trial ruling not been made, he would have testified that the women knew of his condition but consented to have unprotected sex with him.

The Court of Appeal overruled Clarence, holding that a victim’s consent to sex was not
necessarily consent to the possible consequential risk of contracting HIV, but it did concede that consent could provide a defence to the charge of inflicting grievous bodily harm. The issue of consent was, therefore, wrongly withdrawn from the jury and Dica’s conviction was overturned. This approach suggests that a person who is aware that he or she is HIV positive and recklessly transmits HIV to another person may be guilty of an offence, but the issue will depend largely on the facts of each case.

The Court of Appeal accepted that consent could not extend to conduct which amounted to a
deliberate intention to transmit HIV,15 though it is clear that proof of intentional conduct would also depend greatly on the facts of each case.16

The Court of Appeal also engaged in a curious attempt to explain the possible consequence of its acceptance of the role of consent. It reasoned that the criminalisation of risk-taking was fraught with difficulty and that “interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament”.17 The Court of Appeal also observed:

The problems of criminalising the consensual taking of risks like these include the sheer
impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life.18

While the reasoning of the Court of Appeal provoked strong opinions on the extent to which
people can and should be able to give consent to the risk of HIV infection,19 there is a clear consensus that this issue does not lend itself to a simple solution. Most of the cases to date have involved an accused who knew of his or her HIV status and nonetheless engaged in unprotected sex. All of these cases assumed that a HIV person knew the risks associated with unprotected sex but the Supreme Court of South Australia was recently faced with a novel situation in which that key assumption was challenged.

AIDS DENIALISM IN THE SUPREME COURT OF SOUTH AUSTRALIA
In R v Parenzee,20 the defendant appealed three convictions of conduct endangering life. The
defendant was HIV positive and had unprotected sex with three women. The prosecution focused on the defendant’s knowledge of his condition and led evidence that he knew of his HIV status and had been advised of the risks associated with unprotected sex. That evidence provided a strong foundation for a prosecution argument that the defendant knew his actions were likely to endanger the lives of his partners and that he was recklessly indifferent to this danger. The defendant’s appeal sought to completely undercut the basis of the prosecution by essentially denying the existence and effect of HIV. It was argued that existence of HIV had not been clearly proven, that the tests used to diagnose HIV infection were unreliable, and that there was no clear evidence that HIV killed CD4 cells (these are key cells associated with a healthy immune system). It was also argued that, even if HIV existed, there was no clear proof that it was sexually transmitted. An alternative to this latter argument was that, even if did HIV exist, the risk of transmission by sexual activity was extremely low. Although
these arguments were ostensibly raised as potentially relevant to sentencing, the applicant also sought an extension of time for permission to appeal. That permission was refused and the detailed consideration undertaken by Sulan J would no doubt greatly influence any future attempt to deny the existence of HIV or its connection to acquired immune deficiency syndrome (AIDS).

After a careful review of the evidence provided by expert witnesses called by the prosecution and defence, Sulan J rejected the “AIDS denialism” theory offered by the defence because the two witnesses who sought to give evidence in support of the theory were not qualified to give evidence in the fields of their claimed expertise. He also held that, even if the witnesses were regarded as suitably qualified to be experts, the basic assumptions that they sought to challenge were supported by such an overwhelming body of scientific evidence that no jury would fail to conclude that the HIV virus exists, that it is the cause of AIDS and that HIV was sexually transmissible.21

The conclusions of Sulan J fill in an important gap in the wider puzzle of HIV and criminal
liability. Relatively little attention has been paid to the issue of the knowledge of a HIV positive person about the likelihood of transmission or infection. It has usually been assumed that an accused must surely have known the key points found by Sulan J but, in the absence of clear findings to this effect, it would be possible for an accused person to deny the existence of either HIV or AIDS, or the possibility of the sexual transmission of HIV. This possibility would have pre-empted the arguments about knowledge or consent because it simply would have denied the existence of danger about HIV or AIDS. Parenzee essentially forced prosecutors to go “back to basics” and seek judicial confirmation of some fundamental points about HIV. If this ruling is adopted in other jurisdictions, and there seems little reason to doubt the very careful reasoning of Sulan J, it is now virtually impossible for an accused to deny the fundamental parameters of the medical evidence about HIV and AIDS. It is to be
hoped that these propositions will not be re-argued. While a few more “monkey trials” might provide a novel spectacle and grist for the academic mill, they would simply muddy an already obscure area.

Despite the detailed decision delivered by Sulan J in Parenzee, it was not entirely clear to whom the issues decided were relevant, ie did they affect the state of mind of the defendant or his partners? The points decided about the existence and potential danger of HIV and AIDS are clearly relevant to the offences of both endangerment and the actual infliction of harm. They are also relevant to the mental element of both defendants in HIV transmission cases and the partners of any such people who might be argued to have consented to the risk of unprotected sex. For the latter group, it seems increasingly difficult to maintain the possibility foreshadowed in Dica, namely that people may essentially provide informed consent to even the most serious possible harm because the common law has always shied away from the over regulation of personal sexual behaviour. One might suggest that the modern evolution of the laws of sexual offences, especially the reform of rape laws, represents a long journey away from that timidity.

Matthew Groves is a senior lecturer in law at Monash University, Melbourne.

References
1 R v Clarence (1889) LR 22 QBD 23.
2 Respectively under ss 20 and 47 of the Offences Against the Person Act 1861 (UK) (24 & 25 Vict c 100).
3 Papadimitropoulos v The Queen (1957) 98 CLR 249.
4 Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261.
5 R v Linekar [1995] QB 250.
6 See, eg Crimes Act 1900 (NSW), s 61R(2)(a)(ii); Crimes Act 1958 (Vic), s 57; Criminal Code (WA), s 192.
7 R v Mwai [1995] 3 NZLR 149.
8 See the cases noted in B; D (1997) 21 CrimLJ 40; Mutemeri v Cheesman [1998] 4 VR 484; (1998) 100 A Crim R 397.
9 R v Mwai [1995] 3 NZLR 149 at 155-156.
10 Under s 156 of the Crimes Act 1961 (NZ).
11 R v Mwai [1995] 3 NZLR 149 at 156.
12 R v Cuerrier [1998] 2 SCR 371.
13 One assumption of the case was that this provision extended to sex because of the force involved, or rather that sex would normally constitute an assault in the absence of consent.
14 R v Dica [2004] QB 1257.
15 R v Dica [2004] QB 1257 at 1273. It is also worth noting that the Home Office had previously recommended that criminal liability should only attach to the intentional transmission of HIV: United Kingdom Home Office, Violence: Reforming the Offences Against the Person Act 1861 (1998).
16 The same applies to an offence under s 19A of the Crimes Act 1958 (Vic) which creates an offence of intentionally infecting another person with a serious disease.
17 R v Dica [2004] QB 1257 at 1271.
18 R v Dica [2004] QB 1257 at 1271.
19 See, eg Ryan S, “Reckless Transmission of HIV: Knowledge and Culpability” [2006] Criminal Law Review 981; Weait M,
“Criminal Law and the Sexual Transmission of HIV: R v Dica” (2005) 68 Modern Law Review 121.
20 R v Parenzee [2007] SASC 143.
21 Sulan J also rejected related arguments that the tests for the detection of HIV were not scientifically reliable or credible.

UNAIDS: Is HIV transmission a crime?

Is HIV transmission a crime?

UNAIDS – November 6, 2007

Several countries have recently introduced laws to criminalise HIV transmission, or exposing another person to the virus. A number of jurisdictions have used general laws against serious bodily harm in cases where someone is accused of knowingly transmitting HIV or willingly exposing others to HIV transmission.

Subject of controversy, these measures are sparking debate and concern among policymakers, legal and public health professionals, international organizations and civil society, on whether criminal law is applicable in such cases and if such application is accomplishing or damaging public health goals such as universal access to HIV prevention, treatment, care and support.

Addressing these issues, UNAIDS brought together a range of stakeholders in Geneva for a three-day international consultation (31 October – 2 November) to discuss the apparent trend of criminalization of HIV in the context of national responses to AIDS.

The purpose of the consultation, co-hosted by the UNAIDS Secretariat and UNDP, was to foster dialogue and provide an opportunity to reach an understanding of what constitutes appropriate application of criminal law to HIV transmission, if at all, given public health and human rights imperatives. Participants in the meeting included parliamentarians, members of the judiciary, criminal law experts, civil society representatives and people living with HIV, alongside representatives of WHO, ILO and the Office of the UN High Commissioner for Human Rights.

Consultation participants expressed concern about the apparent rise in the number of cases in which people living with HIV have been criminally charged for transmitting HIV, or engaging in acts that risk transmitting HIV. In some cases, criminal charges have been laid for conduct that is “perceived” as risking transmission, but where no real risk exists, and sometimes with very harsh penalties imposed. Participants also expressed concern that there are jurisdictions moving to enact or amend legislation specifically to criminalize transmission and exposure. While noting that many legislators may be acting out of good intentions, consultation participants stated clearly that such laws are not an effective way of dealing with the transmission of HIV.

“Like in the early years of the epidemic when I declared that we have now ‘HIL – Highly Inefficient Laws’, when there were the proposals for testing everyone in society, we now have a new wave of HIL. And it’s a wave that’s coming particularly in Africa, but also in other parts of the world,” stated Justice Michael Kirby, judge in the High Court of Australia, in the concluding session of the consultation.

While little is known about the impacts of criminalizing HIV transmission, many are concerned that it may have a negative impact on the uptake of HIV testing and access to HIV prevention, treatment and care services. Sensational media reports can exacerbate stigma and discrimination, and jeopardize HIV prevention strategies currently in place. “Applying criminal law to HIV transmission has a heighten role in stigmatizing HIV, it is ineffective and public health strategies are better used to advance HIV prevention,” said Justice Edwin Cameron, Supreme Court of Appeal, South Africa. Furthermore, there is also concern that criminal proceedings may compromise basic civil rights such as the right to privacy, especially among the most vulnerable populations.

Recommendations from the meeting will inform the finalization of UNAIDS’ policy position and other guidance documents on the criminalization of HIV transmission. “A clear message from the meeting was that criminal law is a very blunt tool to deal with HIV,” said Seema Paul, UNAIDS Chief of Policy Coordination. “The real goal of policy makers is preventing new infections but, in fact, criminalizing HIV transmission – excepting in a very small sub-set of cases dealing with retributive justice – will create disincentives for learning about one’s HIV status and accessing health and other services,” she added.

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Africa’s HIV transmission laws based on questionable science

Africa’s HIV transmission laws based on questionable science
by Cassandra Willyard, New York
Nature Medicine 13, 890 (2007)
Published online: 31 August 2007

Faced with an AIDS epidemic that kills millions every year, countries in sub-Saharan Africa are contemplating a new prevention strategy: criminal charges.

Uganda, touted as the rare success story in the region, is the latest nation to propose a law that would criminalize knowingly transmitting HIV to another person, the country’s health minister announced in June. Since 2001, Zimbabwe, Lesotho and Swaziland have also adopted similar laws.

Few say the laws do what they’re intended to: reduce the spread of HIV. “They make lawmakers feel good, but they have very limited positive benefits for the public,” says Jonathan Berger, head of policy and research at the Johannesburg-based AIDS Law Project.

Apart from stigmatizing the disease more than it already is, critics warn, the laws ignore the fact that these countries may not have the resources to perform the careful genetic analysis required to distinguish the innocent from the guilty.

Phylogenetic analysis helps pinpoint how closely related two isolates of HIV are. In a criminal case, a virologist would obtain genetic sequences of the virus from both parties involved and compare them to sequences in a database, such as the US National Institutes of Health’s GenBank, or from other infected individuals in the community.

If the viruses appear more closely related to each other than they are to samples taken from the larger population, it increases the likelihood that one person infected the other.

The procedure has its limitations, however. “It doesn’t say anything about the direction of movement. It doesn’t say anything about timing. It doesn’t even really say that the transmission took place between the two people,” says Yusef Azad, director of policy and campaigns at the National AIDS Trust, a UK-based advocacy group. “They both could have been infected by a third party.”

Still, phylogenetics can exonerate the innocent. If the two HIV samples aren’t closely related, it’s unlikely one person could have infected the other. “The greatest power of it is exculpatory,” says Gerald Learn, a microbiologist at the University of Washington. “If I was a defense lawyer, I would insist on it.”

But the procedure is complicated and costly. “Scientists who are not trained in this field couldn’t just read published reports and try to do this on their own without having the proper tools,” says Michael Metzker, assistant professor of molecular genetics at the Baylor College of Medicine in Houston.

Genetic analysis of each HIV sample can require more than 100 sequences, with a price tag between $1 and $5 per sequence—no small sum in a developing country.

A few labs in Uganda are equipped to do the analyses, says Maria Wawer, a professor of population, family and reproductive health at Johns Hopkins University who conducts research in Uganda. “But it is likely to remain too expensive for the foreseeable future,” she says.

Courts in these countries may instead rely on circumstantial evidence, raising the risk of wrongful convictions.

“In the absence of really clear scientific evidence as to who infected whom,” says Azad, “there will too often be an assumption that those categorized as undesirable by society are guilty of infecting other people.”

In 2002, UNAIDS argued against laws that penalize HIV transmission, recommending instead that responsible individuals be prosecuted using standard criminal laws, notes Azad. “Any legislation which singles out HIV for this kind of criminal sanction is breaching international human rights guidelines.”

Canada: How HIV can turn you into a criminal

How HIV can turn you into a criminal
HEALTH & LAW / Confess, confess & consent

Shaun Proulx / Xtra / Thursday, June 09, 2005
Like it or not, there’s such a thing as HIV assault. That means that if someone becomes infected with HIV, police and public health authorities will listen to and act on accusations against the person they believe infected them.

The result thus far? There are the blaring headlines from an uninformed mainstream media, like in the case in March at Canadian Forces Base Borden, where 31-year-old Jennifer Murphy, who has AIDS and kept it to herself, was charged with two counts of aggravated assault after allegedly having unprotected sex with men stationed there. And there’s an approach to HIV infection issues that seems to allow people to shun responsibility for their own health, while HIV-positive people are portrayed as potential killers on the loose.

Rita Shahin, associate medical officer of health with Toronto Public Health, says her sense is that the majority of complaints regarding HIV infection are from straight, not gay people.

“Most often the people complaining are women, not men,” says Shahin. “The few complaints I have received from gay men are usually complaints about activities going on in a specific venue, not complaints about individuals.”

These kinds of complaints seem to imply that people don’t know that unprotected sex could lead to transmission of HIV/AIDS – and gay men certainly can’t make that claim. Still there are other motivations for blaming others for a newly acquired HIV infection (see sidebar story).

Catherine Allen of the HIV And AIDS Legal Clinic (Ontario) (HALCO) says it is not a crime to transmit HIV. What is a crime is to put someone at substantial risk of HIV infection and not warn them.

When a person claims to have been given HIV by a sexual partner, two things can happen. Public health legislation gives public health units the authority to control the spread of communicable diseases by investigating each complaint. Shahin says that even though there are thousands of people in Toronto living with HIV, only a handful of complaints are received each year.

“My sense is that a vast majority [of complaints] are legitimate and very few – one to two per year at the most – may be malicious,” she says, though she points out that cases are not tracked.

Anonymous, third-party complaints or those seemingly malicious in nature can be difficult to follow up on. If a specific individual is named, at the minimum Toronto Public Health would contact and inform that person. Their version of the story would be assessed and they would be counselled about the need to disclose their status to their partners before penetrative sex. The physician of the alleged infector (there is no specific term Toronto Public Health uses to describe a person alleged to pass on the virus) might also be notified, and a mental health assessment could be requested.

Shahin says they attempt to deal with each situation in a sensitive manner, although multiple independent complaints about the same person may be additional evidence of someone’s behaviour.

“We have had situations where we have either had repeated complaints about an individual or they themselves have told us they will not disclose to sexual partners despite counselling,” says Shahin. “We attempt to work with clients in a manner that is least intrusive first, such as working with their healthcare provider, or attempting to help them access community supports that may facilitate behavioural change.”

If this fails, Toronto Public Health has the ability to issue orders under the Ontario Health Protection And Promotion Act. An order can require an individual to take certain actions to reduce the risk of spreading communicable diseases, such as disclosing to sexual partners prior to penetrative sex, and the use of condoms. Under this legislation, only reasonable and probable grounds of a possible health risk are necessary, not absolute proof. In Toronto very few such orders are issued yearly and only as a last resort.

“It is also not unusual to have people admit to us that they are not disclosing, especially in anonymous situations such as bathhouses or through Internet sites,” says Shahin. “Some individuals believe that if they are meeting partners through certain venues, everyone there is HIV-positive and there is no need to disclose. We do remind them through our counselling that they still have a duty to disclose to their partners, especially since others may not share that assumption.”

The police can also be brought into the matter when one person claims another has infected them with HIV. Shahin says Toronto Public Health is concerned about protecting the confidentiality of their clients and wouldn’t bring the police into any situation, though they might point the accuser in the direction of the Toronto Police Service’s Sex Crimes Unit.

When police pursue a case where someone claims to have been exposed to HIV or infected without their consent, the charge is usually sexual assault, which can be punishable by up to 10 years in jail (lesser summary conviction charge can result in up to 18 months in jail).

“The person must obviously be aware he is HIV-positive and is intentionally infecting people,” says Staff Insp Joe Tomei of the Sex Crimes Unit. “It has to be an extremely overt and malicious act.” Tomei says he hasn’t seen any data on whether there are more charges involving gay or straight people.

With so much hinging on whether people are aware of their HIV status, what happens if you infect someone with HIV without knowing that you yourself are positive? Or what happens if you become HIV-positive by consent, if an HIV-negative person has unsafe sex with a person they know to be HIV-positive?

Ruth Carey, executive director of HALCO, says people who are unaware they are HIV-positive have no risk of criminal or civil liability – but that could change.

Contained in the 2003 Supreme Court Of Canada case of R versus Williams, Carey says there’s a hint “that a person who was willfully blind to their own status might in the future be deemed to be in the same position as a person who had actual knowledge of their infection.”

While the court’s remarks did not change current law, they did point police and courts toward future prosecutions, musing that the courts may be asked to distinguish between recklessness (where a person knows they are HIV-positive but chooses not to forewarn partners) and willful blindness (where a person suspects there should be HIV testing done but chooses not to).

HALCO’s not keen on too much criminalization.

“Criminal law is a very blunt instrument that should only be resorted to in the most serious of cases where public health measures to stop the person’s behaviour have first been tried and failed,” says Carey.

There is also debate about what the charge should be. Sometimes police charge people with sexual assault, sometimes with criminal negligence causing bodily harm, which has a maximum sentence of 10 years in jail. (Murder charges are almost impossible because the statute requires that the death occur within one year and one day of the act. HIV/AIDS doesn’t act that quickly.)

Carey says most instances of HIV transmission that might be appropriately criminalized sit better with the language of criminal negligence than assault. As she points out, when we speak of a failure “to take precautions” or to “reduce the risk of infection,” we are implying that a person can also take care to prevent harm – and should do so. This approach is seen as preferable to the arguments used in sexual assault: that nondisclosure of HIV status is fraud, invalidating any consent. After all, sexual assault traditionally means using force, rather than failing to provide information.

Carey says there is much misinformation. A CTV report in March stated that people with HIV are legally required to disclose their HIV status. On its website, CTV reported: “In the eyes of the law, someone can’t consent to sex if they are not fully informed about their partner’s HIV status. In such cases, they are considered alleged victims of assaults.”

“These misstatements do not in any way address the fact that only when there is a significant risk of transmission is the law regarding nondisclosure vitiating consent applicable,” says Carey. “These media statements lead people to believe that they will always be told by their potential partners if their partner is HIV-positive and if they’re not, it’s illegal. This is a dangerous misperception for sexually active individuals to have. Just think about it. Can’t you just hear people thinking to themselves: ‘Oh, he hasn’t told me he has HIV. That means he must not have it. So we can skip using condoms and I’ll be safe.'”
The HIV And AIDS Legal Clinic (Ontario) is at Halco.org. The AIDS Committee Of Toronto is at Actoronto.org.