HIV/AIDS transmission and the law

http://www.africafiles.org/article.asp?ID=22890

There is some talk about making a law that would make HIV/AIDS transmission a criminal offence in Zambia. However, the general view of those involved in HIV/AIDS work is that this would be quite counter-productive. Many people are of the view that making the transmission of HIV/AIDS a criminal offence would help in preventing new HIV/AIDS infections and thereby slow down the progress of the AIDS epidemic. But we have to ask whether this would really happen, or whether applying criminal law to HIV transmission might actually make the situation worse.

What criminalisation means  

Criminalisation is used here in the sense of applying criminal laws in two possible situations:

• the act of exposing another person to possible HIV infection, and
• the actual transmission of HIV to another person.

The laws in question may be either new laws enacted for this purpose or existing laws that are applicable to the HIV/AIDS case in question. Laws dealing with exposure are primarily concerned with whether both parties consented freely to the activity that brought the risk of exposing one of them to HIV/AIDS infection, or whether any kind of force or undue pressure was involved. Transmission laws are concerned not only with the consent aspect, but also with proof that the virus was actually transmitted.

Why criminalise?  

In the 1980s, in a bid to control the HIV/AIDS epidemic, many of the industrialised countries developed specific criminal exposure and transmission laws. In more recent years, countries in Africa and Asia have followed their example. In particular, there has been a dramatic rush by a number of countries in Western and Central Africa to introduce HIV/AIDS-specific exposure and transmission laws.

There are three principal reasons for introducing such laws:

• To provide for the punishment (and possible rehabilitation) of those who wilfully take actions that might transmit HIV to others;
• To provide a deterrent that would contribute to slowing down the progress of the epidemic; and
• To provide some measure of protection for women and girls, particularly those subjected to sexual violence or the risk of becoming HIV infected by sexual partners who do not reveal their HIV status to them.  

Clearly, an individual who knowingly and purposely or maliciously transmits HIV/AIDS to another merits prosecution. If found guilty, such a person deserves an appropriate punishment. Such cases are very rare. In fact, the available evidence shows that most people living with HIV/AIDS who know their status take steps to prevent transmitting the virus to others. In the past, one of the myths about HIV/AIDS was that some persons living with the disease were alleged to have said that they did not want to die alone, that they would take others with them to the grave by transmitting HIV/AIDS to them.

There is no strong evidence that this was ever a common occurrence. In so far as it ever did occur, the basis for this repulsive approach has changed radically with the availability of antiretrovirals that suppress the activity of the virus and prolong life. In the rare circumstances where there seems to be an instance of wilful transmission, the existing penal code will almost certainly contain offences that could be used for bringing the case to court.

The expectation that applying criminal sanctions to HIV/AIDS transmission would contribute to slowing down the epidemic seems to be grounded in dissatisfaction with the slow progress of efforts to prevent the spread of the disease. A government may also wish to demonstrate that it is taking strong and effective action against the epidemic. There is no evidence, however, that criminal laws specific to HIV/AIDS make any significant impact on the spread of HIV/AIDS or on halting the epidemic. According to UNAIDS, “available data show no difference in behaviour between places where laws criminalising HIV/AIDS transmission exist and where they do not”.

How criminalisation would affect women  

Concern about preventing HIV/AIDS transmission to women and girls is very legitimate, especially in the light of the many social and cultural factors that make them particularly vulnerable to infection. Motivated by this concern, some women’s rights groups have joined others in advocating for the criminalisation of HIV/AIDS transmission as a way of protecting women. But instead of improving the situation for women and girls, applying criminal law to HIV/AIDS transmission is likely to worsen it.

The very steps that are being proposed for their protection are more likely to deepen their oppression and increase the injustices to which they are exposed. This is because women access health services more readily than men and hence are more likely than men to know their HIV/AIDS status. This is especially true of pregnant women attending antenatal clinics who are almost always tested for HIV/AIDS.

Criminalisation laws would require a woman who knows that she is living with HIV/AIDS to disclose her status to her partner or face the possibility of prosecution for not doing so. Having to disclose that she is HIV positive puts the woman at risk of violence, being abandoned, being denied her property rights, losing custody of her children, or being blamed by her partner, his family and the wider community, for bringing HIV/AIDS into the relationship. The social circumstances and the law combine to place such a woman in a cruel dilemma: if she discloses to her partner that she is HIV positive, she risks losing everything; if she does not disclose, she risks prosecution on criminal charges.

The interests of women and girls would be better served by more vigorous and forcibly implemented laws that would protect them against all forms of gender-based violence, rape inside and outside of marriage, and every form of discrimination based on gender and HIV/AIDS status. They would also be better served by actions to improve the effectiveness of criminal justice systems in investigating and prosecuting sexual offences against women and children.

Undesirable outcomes of criminalisation  

The criminalisation of HIV/AIDS transmission and HIV/AIDS exposure also raises concerns that such legislation would undermine global and national strategies that are central to a comprehensive response to the HIV/AIDS epidemic:

• Criminalisation would discourage HIV testing, since the best defence in the case of a possible prosecution would be ignorance of one’s HIV/AIDS status.
• Because people would fear that information on their HIV/AIDS status might be brought forward at a criminal trial, criminalisation could effectively undermine the relationships of trust that should exist between clients and doctors, other health professionals and counsellors.
• Although it is not intended to do so, criminalisation points the finger of blame at persons living with HIV/AIDS and scapegoats them as potential criminals. In this way, it disempowers them and worsens the stigma that they already experience. Thereby it runs the risk of actively demolishing the very pillars of justice and equality that the law is meant to protect.
• Criminalisation increases the self-stigma of persons living with HIV/AIDS who, in addition to their disabling sense of self-blame, must now live with the fear of being labelled as a criminal, not because of their actions but because their bodies host a virus.
• Criminalisation places the responsibility for preventing HIV/AIDS transmission very heavily on the person living with HIV/AIDS and thereby goes against the public health principle that sexual partners should share responsibility for their sexual health.
• A criminalisation law gives scope for selective and arbitrary prosecution with actions being more often directed at those who are socially and/or economically marginalised.
  
  In May 2006, an African-American homeless man with a history of previous arrests, resisted arrest for being drunk in public and spat at the arresting police officer while telling him that he was HIV positive. Two years later, a court in his home state, Texas (which has a law criminalising exposure of another party to possible HIV/AIDS infection), found the man guilty of using a deadly weapon to resist arrest and sentenced him to 35 years imprisonment. This was in spite of the unanimous scientific view that spitting cannot transmit HIV/AIDS.
  
• Because of the difficulty of establishing with certainty that the virus came from a particular individual, a law criminalising HIV/AIDS transmission will be either ineffective or may lead to a conviction based on insufficient evidence. Even the most sophisticated tests currently available can do no more than prove similarity between samples of the virus drawn from two individuals.
• Scientifically, it is virtually impossible to prove that an accused person transmitted HIV/AIDS to the one making the accusation. The only exception to what has immediately preceded is in the case of vertical transmission of the virus, from a mother to her child.
• Criminalisation laws have led to the ludicrous situation that, in some countries, motherhood can be criminalised: a woman can be criminally charged if she does not take steps to prevent HIV transmission to her baby, including taking antiretrovirals during the pregnancy.  

The way forward  

In the light of these concerns, the expert advice is to avoid introducing new HIV/AIDS-specific criminal laws. What should be done instead is to apply general criminal law to the wilful transmission of HIV/AIDS and, even in this situation, to make sure that the general law is not used inappropriately or too broadly in the context of HIV.

At a more general level, the advice of UNAIDS is that “instead of applying criminal law to HIV/AIDS 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/AIDS negative”. In practice, this will require greater attention to the rollout of programmes for preventing mother-to-child transmission, greater determination in dealing with all forms of gender-based violence, significant expansion of prevention and treatment interventions, promoting gender equity in education and employment, and stronger protection for women’s property and inheritance rights.

These measures are heavily focused on women. Pursuing them would be a practical acknowledgement of the insight of the great human rights activist, Jonathan Mann: “the central issue in the HIV/AIDS epidemic is not technological or biological. It is the inferior status and role of women”.

*Professor (Fr.) Michael J. Kelly, S.J. is a consultant on HIV and AIDS and
 educational issues in Zambia.

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