Criminalising HIV?

In August 2010, German popstar, Nadja Benaissa, was given a two year suspended sentence having been found guilty of causing bodily harm to one man, and attempted bodily harm on two others. Her crime was to have ‘intentionally and recklessly” infected a former partner with HIV.

Nadja’s high profile ensured this case received considerable international attention. But over 600 people (and probably many more) have been convicted for similar acts under legislation designed to prosecute the transmission of the virus. Where cases have been publicised, the individuals have often been excoriated in the press (often with very one-sided accounts), seen as malicious, wanting vengeance on former partners, or callous in their consideration for others.

The question of how the law is used in relation to HIV control was raised again last week with the publication of a report by a Norwegian Commission looking into the country’s legal response to ‘criminal’ HIV infections (of which more in the next blog post). Events elsewhere have also drawn attention to this issue. At the beginning of October, the Canadian Supreme Court ruled that people with a low HIV viral load and who use condoms (and thus have a low risk of transmitting the disease) need not inform sexual partners of their status. The ruling makes changes to the 1998 law which declared non-disclosure of status to be an aggravated sexual assault.

The ruling is controversial: in some provinces it may have served to increase the obligations imposed on people living with HIV; and it does not overturn other problematic legal issues in relation to the criminalisation of HIV. Over the past year or so, there has been increasing attention paid to the dangers of HIV-specific legislation, as well as increasing numbers of such laws appearing on statute books.

In July 2012, the Global Commission on HIV and the Law published its report. In it, the Commission explores how the law has created obstacles to accessing HIV services and support, created new vulnerabilities and exacerbated existing inequalities that both help fuel epidemics and worsen the experiences of those living with HIV. It highlighted the ways in which such laws impact negatively on the rights of those infected, and have a deleterious effect on wider society.

But despite widespread, and long-standing, concerns over the use of such laws, HIV-specific legislation that seeks to outlaw what are variously described as malicious, deliberate, reckless or wilfull attempts to infect others with HIV, exists in 34 states in the USA; 27 countries in Africa, 13 in Latin America, and 9 in Europe. Most of those prosecuted (over 300) live in the US and Canada.

In Africa many countries have enacted legislation (encouraged by the US) based upon a model law for west and central African countries drawn up at N’Dajema, Chad, in 2004 . Kenya’s HIV/AIDS Prevention and Control Act states:

“A person who is and is aware of being infected with HIV … shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person … voluntarily accepted the risk of being infected.” [section VI (24)]

For many, the use of such laws against those who are aware of their status, and who do not take every precaution to prevent onward infection (wearing a condom, not sharing needles, informing sexual partners about status etc), appears eminently reasonable. After all, don’t we each have a personal responsibility not to harm others whether through action or inaction? If someone has deliberately tried to infect another, should they not face prosecution for what, even if increasingly (for those with access to treatment) a chronic condition, nevertheless has lifelong implications?

Leaving aside the questionable assertion that there are sufficient numbers of individuals who do seek to deliberately infect others, the problem is that such laws do not do the job with which they are primarily tasked: protecting those who are not positive; and encourage openness and transparency about status. More than that, they are riddled with inconsistencies and problems that not only makes them ineffective, but potentially dangerous. There are many problems with these prosecutions, but to consider just a few:

  1. Such laws often seek to criminalise both transmission (the passing of the virus to a non-infected person, i.e. where infection occurs), and exposure (where no transmission of the virus occurs, i.e. no infection). People have been convicted despite not infecting their sexual partner. A homeless person with HIV in the US was sentenced to 35 years for spitting at a police officer, despite there being no chance of infection for the officer. This makes the law a blunt instrument at best. It also treats the positive status as an aggravating factor in other criminal charges, which only serves to increase stigmatisation of those living with HIV.
  2. Many laws acknowledge that some individuals may consent and willingly agree to unprotected sex with a  positive individual. How can the law deal with such cases? In some instances there is an obligation on the individual to inform their partner of their status (such as Lesotho, where provided an individual has told their partner, they should not be prosecuted, even if transmission occurs). In other countries (for example, South Africa) consent may not be sufficient in itself to protect from prosecution. But the issue of consent is notoriously difficult to determine.
  3. The laws fail to take account of social inequalities, power imbalances and stigma that marginalise. The issue of consent seeks to impose a cold rationality upon decisions that are driven by emotion, desire, addiction, etc – very far from rational decision-making. But more importantly, it assumes that it is always possible for positive individuals to inform partners of their status. In societies where women are often blamed for ‘bringing the virus into the home’, where domestic violence is both common and protection by police and state institutions weak, or where exposing ones status might lead to loss of land, livelihood or home, it is not possible to assume transparency is possible or even advisable.
  4. The laws not only fail to take social, economic and political factors into account, they can exacerbate existing inequalities and stigma. Women are more likely to be tested for HIV (through, for example, accessing sexual and reproductive health care). As a result, it is likely that the positive status of a woman would be confirmed first, whether she was infected before or after (and by) her partner. That would place her at higher risk of prosecution. Women are likely to retreat from healthcare services rather than face the prospect of being thrown out of their home, and losing access to their children and land. Where being gay is illegal, it makes it very difficult for men who have sex with men to access services (including testing) when even that basic act could leave them vulnerable to arrest or harassment. Sex workers, similarly, are frequent targets for such laws, and in doing so create new patterns of marginalisation and exclusion. In the UK, asylum seekers and migrants have been over-represented in criminal prosecutions.

There may well be arguments, in very isolated and rare cases, for prosecution of individuals. But new HIV-specific laws are not the answer; nor are they actually needed. Existing legislation can be, and is, used in such cases. However, as a general rule, criminalisation of transmission and exposure produces results precisely counter to those intended by such legislation. It exacerbates discrimination and marginalistion. It increases vulnerability and risk taking. What it does not do is offer protection, to anyone.

In 2007, UNAIDS noted:

“… punitive approaches that involve mandatory HIV testing, disclosure or treatment, or that criminalize HIV transmission, exacerbate already existing HIV stigma and discrimination and drive people away from HIV prevention and treatment into greater fear, secrecy and denial.  As a result, people may be afraid to be tested, afraid to disclose their status and afraid to take up HIV prevention and treatment lest it reveal that they are HIV positive – all of which maintains a spiral of more infection, less treatment and more infection.”

Five years on, and are legislators listening at all?

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About Mike Jennings

I am a Senior Lecturer in Development Studies at the School of Oriental and African Studies (SOAS), London. My work is on the history and politics of international development in sub-Saharan Africa. Research areas include: - The history of development in Africa, from the late nineteenth century to the current day - Politics of East Africa (Kenya, Tanzania and Uganda) - the role of non-state providers (NGOs, FBOs and self-help groups) in welfare service provision - Social aspects of health, including HIV and AIDS, and malaria
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