Criminal HIV transmission and exposure laws spreading around the world ‘like a virus’

Concern over the growing international trend towards the criminalisation of HIV transmission or exposure was documented in a Wednesday morning session at the XVII International AIDS Conference that highlighted “criminalisation creep” in Europe and Central Asia as well as the rapid spread of “highly inefficient laws” in West and Central Africa.

UNAIDS is so alarmed by these developments that this week they produced a new policy paper strongly suggesting that governments should repeal current laws that criminalise HIV transmission and exposure laws with the exception of intentional transmission.

With five major sessions over four days and least 20 different oral or poster presentations, the criminalisation of HIV transmission or exposure is one of the burning topics of the XVII International AIDS Conference agenda. And on Friday, South African Supreme Court Justice Edwin Cameron will deliver a plenary speech calling for an unambiguous rejection of the use of criminal law to regulate the sexual behaviour of those with and at risk of HIV.

Today, however, the conference heard evidence that laws enabling prosecutions for HIV exposure or transmission – whether via sex, needle-sharing or from a mother to an unborn child or infant – are high on the agenda of many nations around the globe, despite the fact that there is no evidence these laws change behaviour, and growing evidence that they may inadvertently exacerbate the HIV epidemic.

West African model law confusing and problematic

In a session entitled, ‘To transmit or not to transmit: is that really the question? Criminalisation of HIV transmission’, the conference heard that since 2005, Western and Central Africa has witnessed an explosion of national HIV-specific criminal exposure and transmission laws that threaten to make it one of the most legislated regions in the world for HIV.

So far, Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone have passed laws in rapid succession and more Western, Central and Southern African countries are proposing similar laws, including Angola, the Democratic Republic of Congo, Malawi, Madagascar, Tanzania and Uganda.

Most of these laws are based on the African Model Law, created in September 2004 during a workshop by Action for West Africa Region– HIV/AIDS (AWARE–HIV/AIDS), in N’djamena, Chad.

Richard Pearshouse of the Canadian HIV/AIDS Legal Network noted that AWARE-HIV/AIDS receives USAID funding, and is implemented by Family Health International with additional funding from US-based organisations including Population Service International and the Constella Futures Group. He suggested to conference delegates that they politely let these organisations know how they feel about this at their stands in the exhibition hall.

The model law comes in the guise of human rights legislation in order “to protect those who are infected and exposed to HIV,” and Mr Pearshouse pointed out that the model law does have some positive provisions, including a guarantee of pre- and post-test counselling; a right to healthcare services and medical confidentiality; and protection from discrimination when receiving healthcare and in the provision of goods and services.

However, Mr Pearshouse also pointed out that the model law contains a number of problematic provisions, such as the requirement that someone newly diagnosed with HIV must disclose their status to a “spouse or regular sexual partner” as soon as possible and at most within six weeks of the diagnosis; mandatory HIV testing during antenatal care, following a rape charge, and “to solve a matrimonial conflict”; and, most worryingly, the extremely vague offence of “willful transmission” defined as transmission of HIV “through any means by a person with full knowledge of his/her HIV/AIDS status to another person” including via sex, needle-sharing, and mother-to-child transmission.

He argued that the phrase “through any means” was imprecise and may end up criminalising all HIV-positive individuals, even those who practise safer sex regardless of disclosure and regardless of the actual risk of transmission.

Criminalising mother-to-child transmission is especially problematic, he said. The UNAIDS policy brief on criminal HIV transmission released this week argues that this is inappropriate because:

• everyone has the right to have children, including women living with HIV;
• when pregnant women are counselled about the benefits of antiretroviral therapy, almost all agree to being tested and receiving treatment;
• in the rare cases where pregnant women may be reluctant to undergo HIV testing or treatment, it is usually because they fear that their HIV-positive status will become known and they will face violence, discrimination or abandonment;
• forcing women to undergo antiretroviral treatment in order to avoid criminal prosecution for mother-to-child transmission violates the ethical and legal requirements that medical procedures be performed only with informed consent;
• and often, HIV-positive mothers have no safer options than to breastfeed, because they lack breastmilk substitutes or clean water to prepare formula substitutes.

Do women really need these laws?

These new laws have arrived under the guise of protecting women – who have few legal or human rights in many African nations – noted Michaela Clayton of the AIDS & Rights Alliance for Southern Africa (ARASA), but, “is this what women really want?” she asked.

She said that 61% of HIV-positive individuals in sub-Saharan Africa are women and that women are the often the first person in a couple to know their HIV status due to antenatal screening.

Women, she said, are then often blamed for “bringing HIV home” and consequently often feel unable to disclose their HIV status to their male partners due to a very real fear of physical harm and eviction.

In addition, due to power imbalances within relationships most women are unable to practise safer sex, since condoms are a male-controlled prevention method.

Under these laws, she said, it seemed likely that women as well as men will be arrested and prosecuted and suggested that these laws may deter women from accessing HIV testing and services aimed at preventing mother-to-child transmission of HIV.

“Criminalisation is bad public policy,” she concluded. “Jurisdictions should not adopt criminalisation policies and those that have already done so should reverse course.”

”Criminalisation creep” in Europe and Central Asia

The same conclusion was asserted even more forcefully by HIV-positive advocate, Julian Hows, who presented results of an updated scan by the Global Network of People Living with HIV/AIDS (GNP+) and the Terrence Higgins Trust (THT) of criminal HIV exposure and transmission laws in 53 countries in Europe and Central Asia.

A 2004 rapid scan, published in 2005, previously revealed that out of the 45 European countries surveyed, in at least 36, the actual or potential transmission of HIV can constitute a criminal offence.

During his presentation, Mr Hows revealed that Sweden, Switzerland and Austria remained at the top of the prosecutions league table, followed by Denmark, Finland, France, Italy, Netherlands, Norway, and the UK.

Only Albania, Bulgaria, Estonia, Luxembourg, and Slovenia had no existing or HIV-specific laws criminalising HIV exposure or transmission, although reliable data were lacking for Greece, Monaco, Portugal, Spain, and Uzbekistan.

However, Mr Hows pointed out that data on prosecutions is difficult to obtain in many countries and that the data may “significantly underestimate prosecutions.”

He noted that in the United Kingdom although there have ‘only’ been 16 prosecutions and twelve convictions to date, there have been more than 100 police investigations that did not reach the court, “but which also had devastating effects on individuals, their families and their communities” and suggested that this may also be the case in the other countries that currently prosecute HIV exposure or transmission.

He added that information on the enforced quarantine of HIV-positive individuals perceived to be a threat – such as is the case in Sweden – is also difficult to ascertain.

Since 2004, six countries have enacted or proposed laws that criminalise HIV exposure or transmission, including Albania, Moldova, Montenegro, Kyrgyzstan, Serbia and Turkey. In addition, Malta, Poland, Kyrgyzstan and Serbia can now be added to the list of countries that have prosecuted at least one individual for HIV exposure or transmission.

One bright spot, noted Mr Hows, is advocacy that has – or may have – a positive impact in four countries.

In Switzerland, the Swiss Federal AIDS Commission’s statement regarding the lack of infectiousness of individuals on effective treatment may reverse the trend that has seen ten prosecutions and eight convictions in the past four years.

However, last month the highest Swiss court ruled that all people with HIV can be criminally liable for HIV transmission, even if untested.

In the Netherlands, no prosecutions or convictions have taken place since 2005 due to two Dutch Supreme Court rulings in 2005 and 2007 following intense discussion between legislators, lawyers and civil society organisations.

However, there has been one prosecution for intentional transmission of HIV by a needle filled with HIV-infected blood.

In the United Kingdom, new guidelines by the Crown Prosecution Service have clarified some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, and given the high threshold of evidence required it seems likely that prosecutions will become increasingly rare – in fact the last three attempts to prosecute reckless HIV transmission in England and Wales have failed.

And, although there has been no change in law, the Ukrainian Network of People Living with HIV/ AIDS has had success in highlighting the unreliablity of phylogenetic testing and have avoided several prosecutions being initiated.

Mr Hows concluded, however, that “there is a slow ‘creep’ of increasing criminalisation across the countries being studied,” and that “laws are being introduced or being made more punitive without any regard or consideration for the evidence.”

He noted that “advocacy efforts to decriminalise where possible, mitigate where it is not, and ensure that laws are not introduced where there are none – are mainly noticeable by their absence”.

UNAIDS argues only intentional transmission should be prosecuted

In an attempt to counter the growing trend of criminalising HIV exposure and transmission, UNAIDS this week published a new policy brief that strongly argues against all prosecutions for HIV exposure or transmission with the exception of “cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.”

The paper states that, “there are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights.”

It argues that alternatives to criminal sanctions should be explored: “Instead of applying criminal law to HIV transmission, governments should expand programmes which have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative”

Further, UNAIDS suggest that governments “strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and children; improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and children, and support women’s equality and economic independence, including through concrete legislation, programmes and services. These are the most effective means by which to protect women and girls from HIV infection and should be given the highest priority.”

The paper concludes with several important recommendations, including:

• Governments should abide by international human rights conventions on equal and inalienable rights, including those related to health, education and social protection of all people, including people living with HIV.
• Governments should repeal HIV-specific criminal laws, laws directly mandating disclosure of HIV status, and other laws which are counterproductive to HIV prevention, treatment, care and support efforts, or which violate the human rights of people living with HIV and other vulnerable groups.
• General criminal laws should only apply to the intentional transmission of HIV, and governments should audit the application of general criminal law to ensure it is not used inappropriately in the context of HIV.
• Governments should redirect legislative reform, and law enforcement, towards addressing sexual and other forms of violence against women, and discrimination and other human rights violations against people living with HIV and people most at risk of exposure to HIV.
• Access should be significantly expanded to proven HIV prevention programmes (including positive prevention), and support voluntary counselling and testing for couples, voluntary disclosure, and ethical partner notification.