Ignorance and stigma provide foundation for gay men's support of criminalisation of HIV transmission

The majority of gay men in the UK support the use of the criminal law to punish people who infect a sexual partner with HIV, a new report published by Sigma Research shows.

Overall, 57% of gay men supported the prosecution and imprisonment of people with HIV who had recklessly infected a sexual partner with the virus.

The report, titled Sexually charged, showed that men who had never been tested for HIV were the group most likely to support the use of the criminal law in this way. Earlier research has shown that men who have never tested for HIV are the group of gay men least likely to know somebody with HIV, and often feel that HIV is not present in either their social circles or everyday life.

Men who supported prosecutions generally regarded the responsibility to prevent HIV infections during sexual encounters as being vested solely with the HIV-positive partner. They also held strongly stigmatising views about HIV and appeared to have little appreciation of the effectiveness of HIV treatment.

The report’s authors note that few gay men thought that prosecutions would help reduce the transmission of HIV and express concern that such cases have created unrealistic expectations that people who know they are HIV-positive will disclose this to their sexual partners.

Since 2001, the criminal law in England and Wales and in Scotland has been used to prosecute and imprison individuals for the reckless transmission of HIV. The cases have involved individuals who did not inform their partner (or partners) that they were HIV-positive before having unprotected sex that resulted in HIV transmission.

In 2006, men completing the annual Gay Men’s Sex Survey were asked a series of questions to assess their attitudes towards these prosecutions. There was considerable mainstream media reporting of such prosecutions at this time.

A total of 8152 men answered questions indicating whether they agreed, disagreed, or were not sure about prosecutions. A clear majority of men (57%) indicated that they thought that it was “a good idea to imprison people who know they have HIV [and] pass it on to sexual partners who do not know they have it”.

Just over a quarter of men (26%) said they opposed this and 18% said they were unsure.

There were significant differences in the characteristics of men who supported, opposed or were not sure about the use of the criminal law to punish transmission of HIV.

Men who had never tested for HIV were the group most likely (64%) to express their support and HIV-positive men were the group most likely to oppose (49%) imprisonment. A majority (57%) of men who said they were HIV-negative supported imprisonment.

Support of prosecutions was also related to demographic, social and behavioural characteristics. Most notably, men with over 30 sexual partners a year, were the only group where a clear majority opposed imprisonment (54%), even though researchers excluded men who were HIV-positive.

The majority of men supporting imprisonment provided information explaining why they held this position. The harm caused by HIV transmission emerged as the major factor why individuals supported prosecution.

Many respondents emphasised the risk of death that they perceived as resulting from infection with HIV. Some individuals equated the transmission of HIV with murder.

“These responses reveal the perception that there is little capacity for living well or longevity among people with diagnosed HIV”, write the researchers, “getting HIV is regarded as utterly disastrous.” There was little appreciation of the effectiveness of HIV treatment.

Moral harm also emerged as a theme amongst respondents supporting imprisonment. For example, a 22 year old from Wales who had never been tested for HIV wrote, “to have sex with someone when you know you are HIV+ without telling them is one of the worst things that could ever be done. These people should be given life sentences.”

It was also clear that those who supported imprisonment viewed the responsibility of preventing HIV transmission as being vested solely with the HIV-positive partner. As one HIV-negative man from southern England wrote, “once you contract HIV it is your responsibility to ensure that you do not transmit it.”

By contrast, men who opposed imprisonment often believed that the responsibility to prevent HIV transmission should be shared between partners, one HIV-negative man from London summing up his position thus: “it takes two to tango”.

The view was also expressed that prison was an inappropriate punishment for this offence, with one HIV-negative respondent from Scotland writing “it’s not a good idea, it’s reactionary.”

Approximately an eighth of those who opposed imprisonment indicated that they did so because of the impact prosecutions could have on the HIV epidemic. A significant proportion of these men expressed the opinion that such action only served to increase the stigma and discrimination surrounding HIV. “Living with the virus is bad enough without locking people up who have it”, wrote a 33-year-old man with HIV from the English Midlands. He noted the exceptional way that HIV was treated by the criminal law, “we do not lock up people who pass on colds, flu or even more serious viruses. The approach of the courts/CPS is another example of prejudice towards HIV sufferers.”

Some men expressed the belief that criminalisation would discourage HIV testing.

About a quarter of men were unsure about criminalisation. The answers of these men indicated that forming an opinion would depend on the circumstances of the case, including issues such as shared understanding and intent. When the researchers looked at the responses of these men in detail, it became apparent that as many as a third of men who said that they were unsure actually gave responses that suggested that they had very grave doubts about the imprisonment of people for transmission of HIV.

The researchers believe that the findings of the report have important implications for HIV health promotion. They note “most the men who supported prosecutions considered HIV to be invariably fatal”. They express concern that “the perception that HIV equals certain death helps to maintain the stigma related to HIV, which in turn, negatively impacts on the environment in which prevention interventions occur.”

And concern is also expressed by the researchers that individuals supporting prosecutions seem to expect their HIV-positive sexual partners to disclose their status. The researchers note that this is unrealistic given that a third of gay men with HIV are unaware that they have the infection and that large numbers of diagnosed men find disclosure problematic. Furthermore, they write that an expectation of disclosure, “presumes that men without HIV have no part to play in protecting themselves from infection.”

Addressing the evident stigma with which many men regard HIV was also another theme emerging from the report that the researchers believe needs to be addressed. They write: “the degree to which the reality of living with HIV is misunderstood, and the fear and loathing with which men characterise those ‘other’ gay men and bisexual men with HIV is clearly evident”. The researchers conclude, “the othering of HIV continues to be the largest underlying challenge to our HIV response.”