Getting tough on criminalisation

“Nothing short of barbaric.” This was the comment of a BBC presenter, confronted with the number and sheer arbitrary injustice of criminal convictions of people accused of transmitting HIV or exposing other people to it. In some cases, people have been jailed for failing to disclose HIV in situations where they couldn’t possibly have transmitted it.

And yet, says Edwin J Bernard, there have been some encouraging international policy developments in the fight against the unjust persecution of people with HIV.

Worldwide, arrests, prosecutions and their associated media reports continue to have a devastating impact on the people accused of exposing or transmitting HIV, as well as adding further to the stigma of living with HIV.

Yet since HTU last covered the issue of HIV and the criminal law (HTU 199, September 2010), there have been some remarkably encouraging national and international policy developments.

"Nothing short of barbaric"

For the past 18 months, the Global Commission on HIV and the Law, led by the United Nations Development Programme (UNDP) on behalf of the Joint United Nations Programme on HIV/AIDS (UNAIDS), has been gathering evidence from all over the world about the impact of the law on HIV. The Commission has been examining issues much broader than the criminalisation of HIV non-disclosure, exposure and transmission. These include the criminalisation of sex between men, sex work and drug use; the impact of the law on women and children; and the impact of intellectual property law and trade agreements on the availability of generic antiretrovirals.

However, some of the world's leading experts on the criminalisation of HIV non-disclosure, exposure and transmission are part of the Commission's Technical Advisory Group, including the UK's Professor Matthew Weait. And the Commission's report (due soon) is expected to censure countries that continue to treat people with HIV as potential – and actual – criminals and where HIV-related stigma is trumping evidence-informed laws and policies.¹

At the Commissions' High Income Countries Dialogue held in Oakland, California, in September 2011, the issue of criminal prosecutions for HIV non-disclosure, exposure or transmission was very much at the heart of the meeting. The often emotional testimony was skilfully moderated by BBC presenter Nisha Pillai, herself moved to tears by the end of the meeting, overwhelmed by the stories of legal injustices perpetrated against people with HIV.

"The Western world’s treatment of many people with HIV is nothing short of barbaric," Pillai wrote in a blog entry a few days later. "The distressing testimony I witnessed from people living in the world’s richest countries – the US, Canada, the UK, Denmark, Germany, and elsewhere in Europe – left me profoundly shocked… The reason is simple – criminalisation... In some states of America you can kill someone in a car accident and get a lighter sentence than if you fail to pass on HIV to a sexual partner. Passing on herpes or hepatitis C isn’t prosecuted, but not passing on HIV is. The injustice is staggering. Seldom in my many years as a BBC journalist, and now as an international moderator, have I felt so outraged."²

The meeting was hosted by the sole US member of the Commission, Oakland Congresswoman Barbara Lee. Congresswoman Lee recently unveiled the Repeal HIV Discrimination Act which creates financial incentives and support for states to review and reform HIV-specific laws that are not consistent with good public health or HIV science.³

The Western world's treatment of many people with HIV is nothing short of barbaric. The distressing testimony I witnessed...left me profoundly shocked. Nisha Pillai, international moderator

“Laws that place an additional burden on HIV-positive individuals because of their HIV status lag far behind the medical advances and scientific discoveries in the fight against the epidemic,” said Congresswoman Lee. “Instead of progress against the disease and protection for people living with HIV/AIDS, criminalisation laws breed fear, discrimination, distrust, and hatred. Although our country has made notable advances in the global fight against HIV/AIDS, we have a long way to go. The decriminalisation of HIV/AIDS is one way we can reduce stigma in our communities, while fighting the epidemic in a rational, holistic, and truly rights-based fashion."⁴

Although it is unknown whether the bill will pass when introduced to the US House of Representatives, at the very least it will create awareness and debate amongst US lawmakers about the issue.

Since 2008, when they produced their policy brief on the issue,⁵ UNAIDS and UNDP have been actively trying to persuade governments and policymakers to repeal HIV-specific criminal laws and to limit the application of general criminal law to actual cases of intentional transmission, where a person:

• knows his or her HIV-positive status;
• acts with the intention to transmit HIV;
• and does in fact transmit it.

At the heart of this position is the need to establish a threshold for criminal liability that would serve justice in truly blameworthy cases – where the intention to harm can be clearly established – while avoiding overly broad application of the criminal law which risks jeopardising public health and human rights.

Basing legal decisions on good science

Three years before the 'Swiss statement'⁶ on the impact of antiretroviral therapy on infectiousness, the Netherlands' highest court decided that one act of insertive unprotected anal sex when the accused was on treatment was not significant enough to be considered a risk of serious harm. The result is that, consistent with UNAIDS' recommendations, only maliciously intentional exposure or transmission remains a criminal offence.⁷ The impact of the Swiss statement was not only felt in Geneva, where HIV exposure charges were dropped because the risks were considered to be purely "hypothetical",⁸ but also in Austria,⁹ Canada¹⁰ and the US military.¹¹

In August 2011, UNAIDS convened an expert meeting in Geneva on the scientific, medical, legal and human rights aspects of the criminalisation of HIV non-disclosure, exposure and transmission. This was the first part a project funded by the Government of Norway to expand on its 2008 policy brief in order to provide more detailed guidance and inform law and policy internationally.¹²

Criminalisation laws breed fear, discrimination, distrust and hatred. Congresswoman Barbara Lee

The meeting presented a unique opportunity to explore the latest developments in HIV science – such as the impact of treatment on transmission risk and life expectancy. It was also a chance to provide the UNAIDS Secretariat and other stakeholders with recommendations that would promote an application of criminal law to HIV non-disclosure, exposure and transmission, if any, that serves justice, without jeopardising public health objectives and fundamental human rights. The meeting reached expert consensus on issues such as HIV-related risk and harm; clarifying criminal intent and acceptable defences; and highlighting limitations of scientific evidence in proving transmission.¹³

The second part of the project – a high level policy consultation – will take place in February 2012 in Oslo. It is hoped that the Oslo meeting will lead to a greater understanding of the current issues around HIV non-disclosure, exposure and transmission and assist countries to reform their HIV-related criminal laws, policies and practices.

The problem with HIV-specific laws

However, for every sign of progress – such as the February 2011 suspension of Denmark's HIV-specific criminal law¹⁴ or Guyana's rejection of a new HIV-specific criminal law in September 2011¹⁵ – there have been at least as many problematic developments, such as Romania's new HIV-specific criminal statute, implemented in October 2011,¹⁶ or South Africa's opposition leader Helen Zille's recent speech calling for men who don't use condoms to be prosecuted for attempted murder.¹⁷

In addition, many jurisdictions, notably high-income countries in Australasia, western Europe and North America, continue to prosecute people living with HIV inappropriately for non-disclosure, alleged exposure and non-intentional transmission.¹⁸ Last year also saw prosecutions in Belgium¹⁹ and in the Congo²⁰ for the first time, both using anti-poisoning laws. The vast majority do not meet criteria for “deliberate” transmission, despite the frequent use of this word in the media.

HIV-specific laws are found all over the world - notably in Africa, central Asia, eastern Europe and Latin America.²¹ At least 32 states of the United States also have such laws, and in the US there are arrests on an almost daily basis.²²

Rather than criminalising HIV transmission, most US laws criminalise behaviour that may or may not (and in some cases definitely does not) risk HIV transmission. Some outlaw practices that are not significantly risky or harmful (for example, sharing sex toys, spitting, performing oral sex); and others criminalise non-disclosure of known HIV-positive status, regardless of whether or not a condom or other risk-reduction methods is relied upon.²³ Consequently, states with HIV-specific laws that make disclosure compulsory, that do not require proof of intent and/or that do not require proof of significant harm or transmission have generally had much higher prosecution rates than those without.²⁴

For example, Louisiana's HIV-specific criminal law, first enacted in 1987 and revised in 1993,²⁵ specifies that it is "unlawful for any person to intentionally expose another to HIV through sexual contact or through any means or contact (including spitting, biting, stabbing with an HIV contaminated object, or throwing of blood or other bodily substances) without the knowing and lawful consent of the victim." The maximum prison sentence is ten years. A 1993 appeal²⁶ found that the statute was neither too vague nor too broad and it has not been challenged since.

In recent years, several people with HIV in Louisiana have been arrested for behaviour that carries a very low risk of HIV transmission, including a man for having oral sex with his wife;²⁷ a male sex worker for suggesting to an undercover policeman, but not actually having, unprotected sex;²⁸ and an injured man receiving medical attention for throwing a "blood-covered identification card into the face" of, and "trying to spit" on, a healthcare worker.²⁹ The outcome of these cases is unknown.

Criminalisation confusion

In the rest of the world, most prosecutions are taking place under general criminal laws, such as physical or sexual assault statutes. Their relevance to HIV non-disclosure, exposure or transmission is often based on legal precedents informed by one or more cases taken to appeal early in the HIV epidemic that were commonly informed by HIV-related stigma and/or incomplete understanding of HIV science. In an attempt to fit non-disclosure, exposure or transmission into a wide variety of legal definitions, many jurisdictions appear to have inappropriately characterised the risks and/or harms of these acts. When the law is unclear – as it often is when it evolves based on case law – this also creates uncertainty over what behaviour is criminal and what is not, leading to conflicting standards of HIV-related risk and the conflation of non-disclosure with a malicious intent to deceive or harm.

This is the case in Canada, the country with the second highest number of prosecutions – at least 130³⁰ – after the United States. That’s about one prosecution for every 550 people with HIV – considerably higher per capita than in the US where there have been well over 300 prosecutions but whose larger HIV-positive population means that about one person per 3300 has been prosecuted. Prosecutions intensified following a 1998 Supreme Court ruling which established that a person who knows they are living with HIV has a duty to disclose their HIV status before engaging in conduct that poses a “significant risk” of exposing another person to the virus. Non-disclosure (regardless of whether it is active deceit or as a result of not discussing HIV risk) is treated as fraud that invalidates consent to sex and which results in this sexual contact being classified as an assault.

The problem is that "significant risk” has not been clearly or consistently definedand prosecutions for non-disclosure prior to oral sex³¹ and sex with condoms³² have taken place. As a result, substantial confusion amongst people living with HIV, healthcare workers and legal practitioners exists regarding when the duty to disclose arises.³³

Next month, in a case that will have far-reaching implications for people living with HIV in Canada, its Supreme Court will revisit two cases, allowing a re-examining of the 1998 ruling in the light of inconsistent lower court decisions. In particular, it will examine what constitutes a "significant risk" of HIV transmission in the context of recent scientific developments. Although both sides agree that the "significant risk" test is unfair and should be reassessed, the representatives of the Crown are arguing that the only way to make the law work fairly is to obligate disclosure (and, therefore, criminalise non-disclosure) before any kind of sexual activity, regardless of the risk involved. Advocates working to assist the defence are hoping that the Court will recognise advances in HIV science and rule that when a person with HIV uses a condom and/or has an undetectable viral load due to effective antiretroviral therapy the criminal law will not apply.³⁴

When disclosure is no defence

Although the current situation in Canada seems harsh, some countries in Europe have an even more draconian approach. In Austria, Finland, Norway, Switzerland and Sweden, people with HIV can be prosecuted for having consensual unprotected sex even when there was prior disclosure of HIV-positive status and agreement of the risk by the HIV-negative partner.³⁵

Fortunately, most of these countries are in the process of examining such laws and policies. Norway has set up a special committee to examine whether its current law should be rewritten or abolished: its recommendations are due in May.³⁶ Switzerland is currently revising its Law on Epidemics, to be enacted later this year, and the latest version appears to be mostly consistent with UNAIDS' recommendations.³⁷ And a recent conference attended by police, prosecutors and politicians that highlighted the many human rights concerns over its current laws and policies, may result in a review of the Swedish Communicable Diseases Act, as well as a change in the application of legislation and regulations for people with HIV in Sweden by the end of the year.³⁸

England and Wales: a 'best practice' example...

The expert meeting heard how a partnership between the HIV sector and the criminal justice system in England and Wales led to the creation of prosecutorial³⁹ and police guidelines,⁴⁰ which have helped to clarify the circumstances regarding when prosecutions might be warranted and reduced the flow of cases reaching court. Attempts to replicate this pragmatic response are now going on in Scotland,⁴¹ the Canadian provinces of Ontario and Quebec, on a federal level in Canada⁴² and in the Australian state of Victoria.⁴³

The Crown Prosecution Service prosecutorial guidelines were recently updated to highlight how tests for recent infection are unreliable for legal purposes,⁴⁴ and to clarify that the reduced transmission risks of having an undetectable viral load on treatment could be seen as an "appropriate safeguard" alongside condoms and thus be used as an affirmative defence in 'reckless' transmission cases.⁴⁵

...but guidelines aren't always followed

However, there continue to be inappropriate investigations, arrests and prosecutions with remarkably different outcomes often solely depending on whether the accused obtained timely access to good legal advice. "What's weighing on my mind," Lisa Power, policy director at Terrence Higgins Trust (THT) tells HTU, "probably because of these latest cases, is how often the police are still not following their own guidelines and what a huge difference it makes if someone gets a decent, experienced lawyer early on. It's important to remember that so far not one person has been found guilty in England and Wales [who] pleaded not guilty from the start and got decent representation."

Not one person has been found guilty in England and Wales [who] pleaded not guilty from the start and got decent representation. Lisa Power, policy director, Terrence Higgins Trust

This suggests that not only should anyone living with HIV contact THT Direct for referral to a lawyer and/or other support the moment they are involved in a criminal case – as a defendant or a complainant – but also that any healthcare worker should do the same, mindful, of course, of patient confidentiality issues. The benefit of the latter is that THT is then aware of an ongoing case and the healthcare worker may receive some good advice about how to best support the prospective complainant or defendant.

"I think a healthcare worker should ring THT Direct if they have doubts as to their own practice," Yusef Azad, NAT's director of policy and campaigns tells HTU, "and also, when it is published, look to the [updated] BHIVA/BASHH guidance [on the management of the sexual and reproductive health of people living with HIV] - but they, of course, should not disclose any identifiers of a patient without that patient's consent."

For more information

For NAM’s book on HIV and the criminal law and the latest news on the subject, visit: www.aidsmap.com/law

For information if you are personally affected, see: www.myhiv.org.uk/Telling-people/Law. If you are being investigated, or you think that someone may make a complaint against you, it’s important you get good advice from an HIV organisation and find an experienced lawyer prior to making any statement. THT Direct, can help you find both these; you can speak to them in confidence on 0808 802 1221. You may also want to speak to THT Direct if you are thinking of making a complaint. You can find HIV organisations near where you are using NAM’s online e-atlas at www.aidsmap.com/e-atlas.

Edwin’s own blog, which gathers together news and developments on the subject from around the world, is at http://criminalhivtransmission.blogspot.com and you can follow him on Twitter @edwinjbernard.

POZ magazine founder Sean Strub has made a trailer for what he hopes will be a full-length documentary featuring people unjustly criminalised for HIV non-disclosure, exposure or non-intentional transmission. See www.youtube.com/watch?v=iB-6blJjbjc.