Norway, criminalising HIV, and the romance of ascertaining ‘consent’

Last week, the Norwegian Law Commission* published its report on the law and communicable disease, with a particular focus on HIV. Sadly, its recommendations do not address any of the concerns noted in the previous blog, and the result is a potential mess of recommendations that will do nothing to address the concerns of those who see legislative responses to HIV as deeply worrying.

Inevitably, given the tradition of such laws, it does not distinguish between transmission (where infection occurs) and exposure (which does not result in infection). Draft legislation, the Commission recommend, should “cover both transmission of infection and exposure of another person to the risk of infection.” Yes, one can be prosecuted for dangerous driving, or driving under the influence, regardless of harm being caused. But applying that principle here demonstrates a woeful lack of knowledge about risk in relation to infection with HIV, and smacks of witch-hunting.

Recognising the difficulties of demonstrating wilful negligence and/or deliberate efforts to infect, the Commission seeks to distinguish between those who may occasionally lapse in their efforts to take reasonable precautions, and those whose actions may be deemed criminal. It suggests the prosecutions would only take place when the “perpetrator” (already using stigmatising language) had “expose[d] two or more persons to the risk of infection or exposes another person to such risk on repeated occasions or through reckless behaviour.”

This raises obvious problems, not least how to discover whether an individual is a serial offender in this regard. Are they envisaging adverts in papers: ‘Have you slept with this person? Did they use a condom? Was their sexual behaviour reckless’? But more seriously, although the intention is to focus on those whose behaviour falls foul of reasonable expectations of the occasional slip-up, the effect is to label those who may have good reasons for their behaviour, criminals: a designation that does little to help control the spread of the virus, but does increase marginalisation and stigmatisation of often already vulnerable individuals.

Also worrying are the prescriptions for mother-child transmission, or where sex workers have been pressured into unprotected sex. Here the Commission advises “caution should be generally exercised with regard to the institution of criminal proceedings” (seeking to tone down the implications of existing legislation). But it still leaves open the possibility for a prosecution. The notion that mothers might intentionally infect their unborn or recently born children has very little evidence to sustain it. And for those very rare cases where a mother is not taking sufficient care to minimise infection, there are plenty of other ways to set in place child protection. This is an issue for social services, not for HIV criminalisation.

If these areas are worryingly problematic, one area is simply barmy: how to manage the thorny issue of proving consent to unprotected sex between discordant couples (i.e. couples where one is positive, and the other not). Proving consent is notoriously difficult, as discussed in the previous blog. But rather than follow what one might assume is the logical path of ditching the idea, the Commission proposes another solution:

“The draft contains a provision to the effect that consent exempts a person from liability to a criminal penalty in the case of infection transmitted by sexual activity. In order for consent to have an exempting effect, such consent must be given in the presence of health care personnel in connection with infection control counselling.”

That’s right. In some perverse mirroring of a partnership ceremony, couples must give their consent in front of a health care professional, having undergone counselling. Where to begin with this? The idea that consent over sexual relationships is a single, one-off event (which would surely have pretty awful consequences for laws on marital rape)? The idea that couples will not have discussed and considered this already (and this clearly can only be a proposal designed for couples: I can’t quite see health clinics setting up shop in the corner of a club to ensure witnessed consent for all those hooking up)? The way it reduces human relationships, desire, lust and sex to a rational exercise in risk analysis? It ignores issues surrounding sexuality: where people feel unwilling or unable to be public in their sexuality, a trip with partner to the health clinic for the consent ceremony is yet another barrier. And what about those with multiple partners? Perhaps schedule one lover five minutes after the other, with a curtain to ensure secrecy is maintained (disguises optional)?

It’s unworkable nonsense, of course. But nonsense that has real impacts on those living with HIV, and makes it harder to put into effect real prevention, care and treatment programmes, especially for those who might feel stigmatised for reasons of sexuality or other reasons.

* Thanks to Matthew Weait, Professor of Law and Policy at Birbeck, for telling me about the report. He has written extensively on the HIV and the law. His book, Intimacy and Responsibility: the Criminalisation of HIV Transmission (Abingdon: Routledge-Cavendish, 2007) is excellent.

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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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