Justice Edwin Cameron calls for a campaign against 'misguided criminal laws and prosecutions'

“HIV is a virus, not a crime,” argued South African Supreme Court Justice Edwin Cameron during his impassioned call for “a campaign against criminalisation” on the final day of the XVII International AIDS Conference in Mexico City.

Justice Cameron’s plenary presentation was the vocalisation – and culmination – of a growing movement against criminalisation of HIV exposure and transmission that has been supported – and nourished – by organisations as powerful and diverse as UNAIDS and UNDP; the Global Network of People Living with HIV/AIDS (GNP+); the International Community of Women Living with HIV and AIDS (ICW); the International Planned Parenthood Federation (IPPF); the Open Society Institute; the Canadian HIV/AIDS Legal Network; and the AIDS and Rights Alliance for Southern Africa (ARASA); as well as many individual academics and HIV advocates.

Adding to the high-profile voices calling for an end to HIV criminalisation laws was the French HIV/AIDS Ambassador, Louis-Charles Viossat. In a Wednesday afternoon session chaired by Justice Cameron, Ambassador Viossat said that “the fight against criminalisation is the fight against HIV/AIDS itself.”

He stressed that France – currently the president of the European Union – “will fight actively against criminalisation policy. You can count on us,” he added.

He promised that France would circulate evidence regarding criminal laws relating to HIV; set up a taskforce; initiate bilateral discussions with governments about the issue; increase support to HIV treatment and care programmes; and work with minorities and vulnerable populations in partnership with civil society.

However, when reminded that there are several HIV-positive individuals in prison in France who have been convicted of the peculiarly French law of “poisoning”, and asked about whether France intends to decriminalise HIV transmission in its own country, he was unable to make any firm promises.

“As for the national situation,” he said, “this is an internal issue. I am an ambassador, not a lawmaker, but I get your point and I will convey your message.”

Prosecutions: a “distracting and dangerous ‘sideshow’”

Justice Cameron began with an overview of how criminal HIV transmission and exposure laws – both HIV-specific and those that use existing assault legislation – “are stunningly wide in their application and fearsome in their effects.”

Examples included the case of a homeless Texas man sentenced to 35 years in prison because the jury believed he was using his saliva as a deadly weapon; and a young Zimbabwean woman on successful antiretroviral therapy given a five year suspended sentence for HIV exposure.

He also highlighted Egypt’s imprisonment of nine men simply because they were HIV-positive - apparent 'proof' that they were in the "habitual practice of debauchery" – or gay – which is against Egyptian law; and “grievously misguided” HIV exposure laws in Singapore and Switzerland. Such laws are “irrational, unhelpful and resource-sapping,” he said.

In a Tuesday afternoon session examining the impact of criminalisation and alternatives to criminal laws to mitigate the HIV epidemic, Susan Timberlake, UNAIDS’ senior human rights and law adviser, characterised many of the prosecutions seen around the world as “a distracting and dangerous ‘sideshow’”.

She said that although enacting a law criminalising HIV transmission might be seen as a “get tough” measure, it is a “get tough” measure on paper only. Indeed, Justice Cameron said he understood why policymakers and politicians “want to invoke any available and effective means” to deal with the HIV pandemic, including statutes and prosecutions targeting HIV and that “in the abstract and from a distance from social reality, there seems a certain justice that criminal penalty should be applied against those who negligently, recklessly or deliberately pass on the virus, even when there is only a risk of that happening.”

Ten reasons why criminal prosecutions are bad policy

However, he provided ten reasons why creating HIV-specific laws, or applying current assault laws, to anything other than intentional HIV transmission are “misdirected and bad” policy. Many of these arguments were developed from a paper that Justice Cameron recently published in JAMA, co-written with Scott Burris of Temple University Beasley School of Law and Michaela Clayton of ARASA.

• Criminalisation is ineffective since it targets people already diagnosed, when studies show that most HIV transmission takes place during sex between two consenting adults neither of whom is aware that the other is infected with HIV.
• Criminal laws and criminal prosecutions are “shoddy and misguided substitutes” for measures that really protect those at risk of contracting HIV. “We need effective prevention, protection against discrimination, reduced stigma, strong leadership, greater access to testing and most importantly, treatment,” he said.
• Criminalisation victimises, oppresses and endangers women. Although policymakers’ impulse is often to protect women, “it is a grievously misguided impulse” because many laws, especially those in Africa, expose women “to assault, to ostracism and to further stigma” making them “more vulnerable to HIV, not less vulnerable. Rather, he argued, we need laws that guarantee a women’s social and economic status, and that enhance their “capacity to negotiate safer sex and to protect them for predatory sexual partners. We must change the social circumstances that will empower those women to say no when they wish to and to insist on protection when they want to.”
• Criminalisation is often unfairly and selectively enforced. He noted that “prosecutions and laws single out already vulnerable groups like sex workers, men who have sex with men, and in European countries, black males.”
• Criminalisation places blame on one person instead of responsibility on two. “The person who passes on the virus may be more guilty that the person who acquires it,” he said, “but criminalisation unfairly and inappropriately places all the blame on the person with HIV.”
• Criminalisation laws are difficult and degrading to apply. “Those laws that target reckless, or negligent or inadvertent transmission of HIV only introduce uncertainty into an area that is already difficult to police,” he noted. “In court we look back with a clinical harshness of the lawyer's eye on the complexities of these transactions and I do not believe that it is proper for the law to do so.”
• Many HIV-specific laws are extremely poorly drafted. He cited the example of Sierra Leone, based on the African Model Law, which explicitly criminalises mother-to-child transmission and is vague about who will be prosecuted and under what circumstances.
• HIV criminalisation increases stigma. “It is stigma,” he said, “that I believe lies behind the enactment of these bad laws. Those laws seem attractive, but they are not prevention or treatment friendly. They are hostile to both. And this is simply because they add fuel to the fires of stigma. Prosecutions for HIV transmissions and exposure and the chilling content of the laws themselves reinforce the idea of HIV as a shameful, disgraceful, unworthy condition requiring isolation and ostracism.”
• Criminalisation is a blatant disincentive to testing. “Why would a woman in Kenya want to go for an HIV test when she knows that it will expose her to seven years in jail?” he asked.
• Criminalisation assumes the worst about people with HIV, and punishes their vulnerability.

A pragmatic approach

“I want to engage your resolve to practical action today,” Justice Cameron concluded. “Let this be the start of a campaign against criminalisation. Let one of the conference outcomes be a major international pushback against misguided criminal laws and prosecutions.”

However, during a pre-conference meeting of 400 HIV-positive advocates from around the world, Living 2008: the positive leadership summit, it was acknowledged that it might not be possible to revoke all criminalisation laws, and so a more pragmatic approach might be necessary.

This would take the form of using evidence-based advocacy, working together with policy makers, media, criminal justice system, medical specialists, as a form of ‘harm reduction’.

This, noted GNP+’s Christopher Mallouris, would include education for the criminal justice system; education for the media; and education of people living with HIV regarding their legal rights and responsibilities where they reside, or travel.

Finally, if instead of a punitive model, a human rights approach to HIV and the law is followed, focused on strengthening laws that:

• support people to protect themselves from infection;
• empower infected individuals to avoid infecting others;
• allow people to be able to know their status and disclose it, or practise safer behaviours without coercion or fear;
• and allow women to be able to determine the conditions under which they have sex or children, or not, then, argued UNAIDS’ Susan Timberlake, in the July 2008 issue of IPPF’s HIV/AIDS Update “empowerment will remove any need for the application of criminal law to HIV transmission, because there will be no cases deserving of criminal sanction; only tragic ones that could and should have been avoided, had the right support been in place.”