Why criminalisation is bad public policy

Last updated on: 24 April 2012

The use of the criminal law to prosecute individuals who have either exposed or transmitted HIV to others is not a new phenomenon – the earliest prosecutions began in the global North in the 1980s, under non-HIV-specific laws such as those penalising assault and attempted murder.

The first HIV-specific laws were passed in some of the states making up the United States in the early 1990s, and since then many more jurisdictions have either passed HIV-specific laws or defined more clearly under what circumstances an individual might be prosecuted for exposing or transmitting HIV.

More recently, many countries in the global South are turning to HIV-specific laws in an equivocal attempt to be seen to be doing something about individuals who are perceived to be driving the HIV epidemic. Richard Pearshouse of the Canadian HIV/AIDS Legal Network writes, in an overview of Africa’s move towards criminalisation writes: “The pressure on legislators and governments in jurisdictions across the globe to produce a legal response to HIV is enormous. However, laws pertaining to HIV, even those dressed in the garb of human rights, are not always progressive. These laws can be instrumental in promoting effective initiatives to address the HIV/AIDS epidemic, but they can also impede such initiatives.” (i)

South Africa’s first openly HIV-positive public figure, Justice Edwin Cameron of the Supreme Court of Appeal, goes further. He argues that laws criminalising behaviour that may transmit HIV are “the product, not of rational public health choices, but of irrational fears, which provide an inveterately poor basis for rational law-making.” (ii)

Mr Justice Cameron highlighted ten reasons why criminalisation is “misdirected and bad” public policy during his impassioned call for “a campaign against criminalisation” on the final day of the XVII International AIDS Conference in Mexico City in August 2008.

  1. Criminalisation is ineffective
  2. Criminal laws and criminal prosecutions are a poor substitute for measures that really protect those at risk
  3. Criminalisation victimises, oppresses and endangers women
  4. Criminal laws are often unfairly and selectively enforced
  5. Criminalisation places blame on one person instead of responsibility on two
  6. Criminal laws targeting HIV are difficult and degrading to apply
  7. Many [HIV-specific] laws are extremely poorly drafted
  8. Criminalisation increases stigma
  9. Criminalisation is a blatant disincentive to testing
  10. Criminalisation assumes the worst about people with HIV, and punishes vulnerability.

“HIV is a virus, not a crime,” he concluded, to great applause. (iii)

Mr Justice Cameron’s plenary presentation summarises the reasons expressed by a growing movement against the criminalisation of HIV exposure and transmission that has been supported - and nourished - by many civil society organisations (including GNP+), academics and HIV advocates, and which, for the first time, was wholeheartedly supported by influential policymakers including the French AIDS Ambassador and the United Nations.

UNAIDS is so alarmed by these developments that it has produced a new policy paper (iv) strongly suggesting that governments should repeal all current laws that criminalise anything other than intentional HIV transmission (which is defined as “wilful and knowing behaviour with the purpose of transmitting the virus” (v).

It also states 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,” it says.

Looking at the issue in-depth

Most people – even those who disagree with HIV exposure or transmission laws – agree that HIV transmission as a result of forced sex, sex with a minor, or with intent (i.e. planning and desiring to infect someone with HIV by whatever means) should be punished, and since these are usually covered by rape, assault or murder laws, there is no need to enact new laws.

Some commentators argue that the criminal law may also have a place where public health measures have failed and where it can be agreed that that an individual made a significant contribution to their local epidemic. These cases – such as the recent trials of Johnson Aziga in Canada, or Michael Neal in Australia – are, thankfully, extremely rare.

More problematic, however, is when existing laws or HIV-specific laws define consensual, unprotected sex between a diagnosed HIV-positive individual and their untested or uninfected partner as something to be punished – particularly when the only ‘harm’ is HIV exposure, but not transmission.

Many of these laws do not discriminate between non-disclosure and deception (and do not allow for mitigating circumstances, such as fear of violence). Some do not even care if sex has been made ‘safer’ (such as by the use of condoms or other harm-reduction methods) and if the non-disclosing HIV-positive individual did everything in their power to reduce the risk of HIV exposure or transmission.

In addition, some laws criminalise sexual (or non-sexual) activity – such as receptive oral sex by the HIV-positive partner, urinating, biting, or spitting – that have such a low risk of transmission on a population level that the per-act risk can be said to be close to zero.

In a series of in-depth articles, using examples from cases around the world, we will take a look at the real difficulties in implementing these laws.

We will start by examining the problematic issue of how one proves that the law has been broken. (The Burden of Proof)

Then we’ll look at whether current understanding of the risks of sexual HIV transmission have relevance to current laws and legal understanding of potential ‘harm’, and whether condomless sex without disclosure can always be considered blameworthy from a transmission risk perspective. (Understanding HIV transmission )

GNP+ is especially concerned about the impact of criminalisation on HIV-positive people. We will first examine the impact these laws have on our privacy. (Do we have a right to privacy? )

Then we’ll take a look at whether the law is discriminatory. Does criminalisation primarily pick on visible, powerless minorities in order to assign blame for the HIV epidemic? (Does criminalisation victimise victims? )

Finally, we will examine how the law could be used to criminalise mother-to- child transmission. (What price reproductive rights?)

Credits: About the author

Edwin J Bernard is a British-based journalist who has written extensively on criminal HIV transmission, and runs a blog on the subject (criminalhivtransmission.blogspot.com). He is the author of the book, Criminal HIV Transmission (NAM, 2007) and co-author of HIV Forensics: the use of phylogenetic analysis as evidence in criminal investigation of HIV transmission (NAM/National AIDS Trust, 2007).

v UNAIDS/UNDP. Summary of main issues and conclusions: international consultation on the criminalisation of HIV transmission, 31 Oct-2 Nov, 2007. UNAIDS, September 2008.



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