Three tactics to stem the tide of criminal prosecutions

Scientists, lawyers and advocates have been able to reduce unwarranted prosecutions of HIV exposure and transmission in three European jurisdictions by employing three distinct approaches, Robert James told the Eighteenth International AIDS Conference in Vienna last week.

The conference also heard details of non-disclosure, exposure and transmission cases in the United States, the country in the world which has convicted the largest number of people with HIV of such offences. The presenter described the situation as being “Kafkaesque: nightmarishly complex, bizarre or illogical”. Moreover, a study conducted in Michigan, a state with a particularly harsh non-disclosure law, found that the law had no impact on people with HIV’s behaviour.

Europe

Robert James presented an analysis of cases in the Netherlands, England and Switzerland. In each of these jurisdictions, the laws used are not specific to HIV but are general laws against assault or the transmission of disease.

Moreover, in each country there had previously been a considerable number of convictions, but identification of an appropriate tactic to use has led to an acquittal in a specific case and a subsequent reduction in the number of future convictions.

In the Netherlands, the country’s supreme court ruled in 2005 that if it were to use an existing law in order to convict a man for exposure to HIV, this would undermine the principle of the separation of powers. This principle states that whereas the country’s parliament is responsible for making new laws, the court’s role is to interpret the law. The court decided that to use the existing law for cases concerning a person with HIV having unprotected sex (exposure) would overstep its own remit. The question had to go back to parliament, who would also need to consider the interest of public health in their legislation.

HIV-specific laws and legal precedents which originate from earlier in the HIV epidemic “reflect moral panic and poor understanding of HIV transmission risks. Edwin J. Bernard, author of HIV and the Criminal Law

In England, a court accepted expert scientific testimony which highlighted the limitations of phylogenetic analysis (the scientific evidence about a comparison of the viral strains of the complainant and the accused). Whereas prosecutors had previously presented phylogenetic analysis as providing definitive proof, it became established that two viral strains could be closely related without there being any certainty about who had infected who. This tactic is relevant in transmission (rather than exposure) cases.

In Switzerland, the Geneva Court of Justice ruled that a person was not guilty of unlawfully exposing a sexual partner to HIV because the accused had an undetectable viral load and was fully adherent to treatment. In these circumstances, the objective risk of transmission was judged to be so low that it was hypothetical. In this decision, the court was aided by the Swiss Federal AIDS Commission’s statement on transmission risks and by expert testimony from one of its authors. This tactic is relevant in exposure (rather than transmission) cases.

Robert James recommended that while it was not necessary for national medical bodies to make declarations stating that an undetectable viral load means that a person is uninfectious, it would be helpful for authorities to state that an undetectable viral load (with full adherence and no sexually transmitted infections) is “as good as condom use”. Activists could encourage their national medical organisations to make such statements.

United States of America

Also at the conference, Edwin J. Bernard (author of the new NAM resource HIV and the Criminal Law) presented an analysis of cases of non-disclosure, exposure or transmission in the United States. Far more people have been convicted of such offences in the US than in any other country. In a period of 25 months, Bernard identified 82 cases of arrest or prosecution through published media reports (other cases probably went unreported).

Just over half of all cases occurred in eight states, all of which had an HIV-specific law: Arkansas, Florida, Illinois, Michigan, Missouri, Ohio, South Carolina, and Tennessee. Moreover, three quarters of cases occurred in the 25 states with HIV-specific laws.

Men were four times as likely to be prosecuted as women.

A quarter (21 of 82) of all reported cases involved activities which pose no risk of HIV transmission: spitting (10), biting (9) and scratching (2).

Half the cases involved unprotected sex without disclosure, but no alleged HIV transmission.

Bernard commented that HIV-specific laws and legal precedents which originate from earlier in the HIV epidemic “reflect moral panic and poor understanding of HIV transmission risks”. A person can be convicted without demonstrating that they intended to transmit HIV, without demonstrating that they behaved in a way in which there is a significant risk of harm, or without actual transmission occurring.

As noted above, Michigan is one of the states which prosecutes the most. Under state legislation, people with HIV are legally obliged to disclose their HIV status before any kind of sexual contact.

Disclosure is meant to occur before sexual intercourse “or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body”. This would include even fingering or the use of a sex toy.

Carol Galletly reported on a study with 384 people with HIV who live in Michigan (but recruitment methods and demographics were not fully described). Three quarters of respondents were aware of the law.

She wanted to see if the existence of the law had any impact on her respondents’ behaviour. Comparing those who were aware of the law with those who were not, people who knew about the law were no more likely to disclose their HIV status to sexual partners. Moreover they were not less likely to have risky sex.

On the other hand, approximately half of participants believed that the law made it more likely that people with HIV would disclose to sex partners. Having this belief was associated with being a person who did disclose HIV status to partners.

In fact a majority of participants supported the law. Individuals who Gallety characterised as possibly being marginalised were more likely to support the law: women, non-whites, people with less education and people with a lower income.