HIV prosecutions are reckless, say campaigners

Judges, prosecutors and the police have been guilty of reckless conduct in carrying on with prosecutions of people for transmitting HIV, despite harmful consequences, two UK HIV advocates told the Eighth AIDS Impact Conference in Marseilles this month. This biennial conference is the only international one devoted entirely to the social and psychological impact of HIV.

Lisa Power of the Terrence Higgins Trust and Edwin J Bernard, editor of NAM's treatment newsletter AIDS Treatment Update, both told the conference that criminal prosecutions were already having numerous unintended consequences.

There have now been 15 prosecutions and 13 convictions in the United Kingdom. Eight of these resulted from guilty pleas, raising concerns about the quality of legal advice defendants are getting. Three defendants have been gay men and four from sub-Saharan Africa, but all types of people had been prosecuted including two women. Power said numerous other gay cases had to her knowledge been investigated but had not come to court.

Power said that the legal situation interfered with the doctor/patient relationship; nearly half of people with HIV had told a survey by the UK Coalition of People Living with HIV that it would make them less frank in discussing sex with clinics and only 15% say it would increase honesty. It might make people reluctant to tell partners to get post-exposure prophylaxis (PEP) in the case of condom accidents; and clinical staff were confused about their legal responsibilities if people with HIV disclosed that they had had unprotected sex, or been infected by a named partner.

She said that the most alarming consequence at present was that local police and prosecutors are extremely confused about the law, and conducted “inappropriate pursuits of non-cases”, with oppressive consequences for people with HIV.

She cited several cases. In one, an HIV-positive gay man had had a brief relationship with a negative man, using condoms throughout. When he disclosed, citing his HIV status as a reason why he thought the relationship would not work, his partner reported him to the police, who continued to try to charge him with a variety of ‘non-existent offences’ for months.

In another, a man just diagnosed with HIV named the person he thought had infected him. The police turned up at this person’s house in a riot van and he was told he would be arrested if he did not accompany them to the clinic for an HIV test. He turned out to be negative but was deeply distressed by the experience.

In numerous cases, an accusation of transmission or even that someone was HIV-positive and having unprotected sex led to ‘fishing’ expeditions, with the police trawling through people’s sex contacts to find a case of infection.

The law targeted the most vulnerable: “Acquittal appears closely related to ability to negotiate the system and obtain expert help,” Power said.

“The law appears an ass, clinicians are confused and divided, people without HIV are being encouraged into complacency and a lot of people with HIV are worried,” she added.

Edwin J Bernard, in the conference’s opening plenary, said that the worst impact of the law was that it perpetuated social divisions.

“It sets the moral majority against people with HIV, patients against clinicians, positive women against positive men, positive gay men against negative gay men, and “good” HIV-positive people against “bad” HIV-positive people,” he said.

He said there was a direct contradiction between the law, which states that people with HIV are 100% responsible for keeping their virus to themselves, and public health policy, which states that everyone has an equal responsibility to look after their sexual health.

He said: “The law tells HIV-negative people: ‘Rely on people disclosing to protect you, because they have to’. Public health campaigns say ‘You can’t rely on disclosure’.”

The legal situation did not help HIV-negative gay men – three-quarters of whom expect that an HIV-positive partner will disclose their status before sex – have a realistic idea of sexual risks, he said.

He added that the prosecutions were already having numerous other unintended consequences. One had been to scientific research, where investigators were now avoiding asking people with HIV about sexual risks they had taken, as it was tantamount to self-incrimination.

A public consultation undertaken by the Crown Prosecution Service had not yet published its results, despite these being promised by February this year, and a recent Department of Health consultation was due to have been published by the end of June. The DoH consultation included proposals which could broaden the scope of the law, turning possible exposure to HIV into a crime even if no transmission occurs, as it is in some other countries.

Bernard agreed with Lisa Power that clinicians were confused about what to tell people diagnosed with HIV.

“Some clinicians think they have to advise everyone not just to use condoms, but also to disclose. Some clinicians think it is their legal duty to inform people who are not their patients who are potentially put ‘at risk’ by their patient; and some think they should advise their newly diagnosed patients to complain to the police. None of these are correct,” he said.