The tension between our right to privacy (in order to protect ourselves from experiencing stigma, discrimination, rejection or violence) and a duty to disclose sensitive and confidential information about our HIV status (or to have others disclose this in pursuit of public health or criminal law aims) is central to the criminalisation debate.
Can the law force us to disclose? Can the police, or the courts, compel disclosure of confidential information in order to obtain evidence to prosecute us? Can the media publicise someone being investigated for criminal HIV exposure or transmission before there is any proof that they have committed a crime?
The answer is yes in most cases, and in most places around the world.
Disclosure: an ineffective prevention tool
Carol Galletly and Steven Pinkerton have written about HIV exposure laws in the US (i) (around half of the states require HIV disclosure before sex, in some cases even if condoms are used). In a 2006 article examining the impact of the criminal law approach to persuade HIV-positive people to disclose their HIV status to their sexual partners, they write: “There are many flaws inherent in using disclosure as a prevention strategy.
“To be effective," Galletly and Pinkerton argue, "HIV-infected persons must be aware of their positive HIV status; second, HIV-positive persons must possess the skills needed to enable them to disclose their serostatus under all social and environmental circumstances; third, HIV-positive persons must choose to disclose their serostatus to all potential sex partners despite the sometimes substantial disincentives to doing so; and fourth, prospective partners, once informed, must either forgo sex entirely or practice safer sex."
There are, of course, all kinds of reasons why an HIV-positive person may not disclose their status before sex. There might be an expectation that there will be no risk of transmission (whether or not condoms are used) due to misperceptions about their partner’s HIV status, or interpreting an undetectable viral load as meaning they are uninfectious (see The Swiss statement: changing the rules?). There’s also a very real fear of rejection, or violence, as exemplified in these recently reported cases from Uganda and Australia.
Confidential information is not privileged
Almost every jurisdiction in the world has laws that in some way limit our rights to privacy and confidentiality. Confidential information (such as our HIV status, or our sexual history) is different from privileged information – which only applies to communications between an individual and their lawyer. This means we have to assume that any sensitive information held by healthcare professionals, or indeed information held by ourselves (such as in a diary or on a computer), is potentially available to the police in conducting a criminal investigation, as well as to a criminal court. (ii)
Although proper procedures - such as the obtaining of search warrants or court orders – are supposed to be followed, this is often not the case. In Melbourne, Australia, police investigating the case of Michael Neal obtained not only Mr Neal’s file from the health department but also files of 16 other HIV-positive people with whom the health department had been concerned over the last two decades, which resulted in the charging of Lam Kuoth for criminal HIV exposure.
What kind of impact could this lack of absolute confidentiality have on the doctor/patient relationship? A report from an international consultation on criminalisation hosted by UNAIDS and UNDP last year suggests that “compromising confidentiality may affect the willingness of HIV-positive people to discuss risk behaviours with counsellors and to seek help, as well as on the willingness to seek treatment of other sexually transmitted infections, the presence of which increases the risk of HIV transmission.” (iii)
Privacy and police ‘fishing’expeditions
In many places around the world, the media can, explicitly or implicitly name, show a photo, or otherwise publicise data that allows for clear identification of a particular person being investigated for criminal HIV exposure or transmission (a task made easier in small towns or in very specific contexts) and often does so with the full cooperation of the police or public health officials.
Recent examples of this kind of invasion of privacy include a case in Australia, where Canberra public health officials held a press conference to name an HIV-positive male sex worker even though they had no evidence to suggest he had put anyone at risk; a case in Scotland, where a national tabloid printed the name of a man accused of, but not yet arrested for, criminal HIV transmission; and a case in the US, where a teenager accused of HIV exposure was interviewed by a local TV station in his cell.
In contrast, Dutch privacy laws (iv) do not allow for the ethnicity or full names of people accused – or even convicted – of crimes to be released to the media.
One might refer, here, to Articles 11 and 12 of the Universal Declaration of Human Rights that state:
“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” (Article 11)
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."(Article 12)
In many countries the system seems to be open to all kinds of abuse, and although there are legal mechanisms to claim against these abuses there are no reports of anyone successfully claiming damages for the violation of their human rights in this way, even when they are found to be not guilty.
i Galletly CL and Pinkerton SD. Conflicting messages: how criminal HIV disclosure laws undermine public health efforts to control the spread of HIV. AIDS and Behavior. 10(5): 451-61, 2006.
ii For a detailed discussion of these issues as they relate to the UK, see: Chalmers J. How confidential is confidential? AIDS Treatment Update 159, Aug/Sept 2006. Available at: www.aidsmap.com/files/file1001041.pdf
iii UNAIDS/UNDP. Summary of main issues and conclusions: international consultation on the criminalisation of HIV transmission, 31 Oct-2 Nov, 2007. UNAIDS, September 2008. Available at: http://data.unaids.org/pub/Report/2008/20080919_hivcriminalization_meeti...
iv Constitution of the Kingdom of the Netherlands 2002, available at http://www.minbzk.nl/contents/pages/00012485/grondwet_UK_6-02.pdf