IRIN : VIENNA, 23 July 2010 (PlusNews) – There is a tug-of-war going on with governments trying to criminalize the transmission of HIV on one side, and activists who say such laws are not only ineffective as a deterrent but are also harming the fight against AIDS, on the other.
“There is no evidence of criminal law application serving HIV prevention goals, instead [it] has a negative impact on access to HIV services,” Pavel Aksenov, of the Russian Harm Reduction Network (RHRN), said in a debate on criminalizing HIV at the International AIDS Conference in Vienna, Austria.
A 2008 article by the Soros Foundation’s Open Society Initiative, said laws criminalizing HIV exposure and transmission make HIV-negative people complacent by placing the burden of responsibility solely on those living with the virus.
Such laws can also damage efforts to increase HIV testing rates by creating mistrust of health service providers who may, according to some of the new legislation, report a person’s HIV status to their partner, or even testify against them in court.
There is disagreement over whether “reckless transmission” (where HIV is transmitted through a careless rather than deliberate act) should be criminalized, but most parties agree that people who intentionally infect others should be prosecuted. However, distinguishing between the two is tricky.
In many countries the laws are so broad that any number of reckless actions could fall within the ambit of “deliberate transmission”, including sex work or injecting drug use.
Proving that a person was responsible for another’s HIV infection can also be problematic. Phylogenetic testing – which determines whether two individual strains of HIV are genetically related – is expensive, or unavailable in many countries, and may not prove that one person infected another beyond a reasonable doubt.
Using existing laws
Activists argue that there is no need to create HIV specific laws because most countries have existing laws that are sufficient to deal with clear cases of deliberate transmission.
“Someone who stabs another person with a needle full of HIV-infected blood does need to be punished by law, but in most countries that could easily fall under existing laws, such as grievous bodily harm,” said Lucy Stackpool-Moore, HIV Officer for Stigma at the International Planned Parenthood Foundation.
“By creating HIV specific laws, countries are treating HIV as an exacerbating factor and … promoting stigma against people living with HIV.”
But when countries do use existing laws to prosecute people for HIV transmission, they often use extremely punitive laws. Canada has successfully prosecuted cases of deliberate HIV transmission using the crime of attempted murder, but in an age when HIV is defined as a treatable chronic disease, many have called the charge excessive.
Stackpool-Moore said the failure to disclose one’s status – one of the main reasons for prosecution – could be better handled by properly counselling HIV-positive people.
“Criminal law is ill-equipped to respond to complex layers of individual identity; legal judgments seldom consider challenges to disclosure, such as fear of violence and rejection,” she noted.
In Uganda, clauses criminalizing the transmission of mother-to-child transmission have been removed from HIV related bills, while US President Obama’s new national HIV/AIDS strategy discourages laws that criminalize transmission of HIV.
Ultimately, say activists, if governments do pursue criminal prosecution in the rare cases of intentional HIV transmission, they need to find a way to apply the law while upholding public health principles, and protecting the rights of people living with HIV.