Community meeting on criminalisation of HIV transmission: jailing people for passing on HIV may threaten public health

The European AIDS Treatment Group (EATG) organised a satellite session at the beginning of the conference, and issued the following press release afterwards.

The conviction and imprisonment of people with HIV for transmitting their virus is counterproductive and may even threaten public health, the Eighth International Congress on Drug Therapy in HIV Infection was told this week. HIV criminalisation experts were addressing the conference’s community workshop, organised by the European AIDS Treatment Group.

Matthew Weait of the Research Institute for Law, Politics and Justice at Keele University said that there was a difference between believing that transmitting HIV, especially to partners unaware of the risk, was morally bad and that the law should be used to prosecute such cases. “We need to challenge that linkage,” he said.

Weait stressed the possible adverse consequences of the criminalisation of HIV transmission:

  • It could act as a disincentive for people to test, as ignorance of status might be a defence.
  • It made it difficult for HIV positive people to disclose or recommend post-exposure prophylaxis to a partner if there had been unprotected sex.
  • Since recklessness means that people knew there was a risk of transmission and decided to take it, the use or attempted use of a condom could even be used as prosecution evidence.

Research was urgently needed to find out if criminalisation was already affecting people’s testing and disclosure behaviour, he said. Lisa Power of the Terrence Higgins Trust said that there had been prosecutions for HIV in 26 European countries. She said that many countries had prosecuted people who had had unprotected sex even when they had not transmitted their virus. Most countries had imposed custodial sentences with sentences of 5-10 years not uncommon.

However the meeting also heard that some countries there had been successful challenges both to the underlying law on criminalisation and the scientific evidence used to prove transmission.

Roland Brands, Policy Officer for the Social and Legal Aspects of HIV for the Dutch SOOAIDS Project, said that between 2001 and 2005 the Netherlands prosecuted 10 people with HIV who had unsafe sex and did not disclose to their partners for attempted manslaughter and attempted GBH. There was only one HIV transmission in these 10 cases.

However after appeals by AIDS activists, the Dutch Supreme Court in January 2005 decided that prosecuting people for exposure was unjust since exposure did not inevitably mean infection.

Virologist Anna-Maria Geretti said that individual cases could be successfully challenged on the basis of the scientific evidence. She said that though genetic testing could rule out an HIV transmission, it was very difficult to prove, without corroborating evidence, that one person did infect another.

The issue was twofold: firstly, the way samples from the alleged victim and perpetrator were compared with control samples tended to exaggerate their similarity, and secondly, it was often difficult to exclude the possibility that a third party may have infected both people or served as an intermediary.

This was demonstrated in one specific UK case recently, which was as a result dismissed.

Bernard Forbes, Chair of the UK Coalition of People Living with HIV and AIDS, co-moderating the session, commented that the UK Department of Health had recently launched a campaign stressing that young people had a responsibility to protect themselves from sexually transmitted infections. Criminalisation, on the other hand, made it the entire responsibility of the infected person.

“These two ideas just don’t fit,” he said. “Maybe we should suggest that the Crown Prosecution Service indicts the Department of Health for encouraging GBH.”

Srdan Matic, STD/HIV programme advisor for the World Health Organisation European office, presented a personal perspective, because the WHO does not as yet have a position on criminalisation, though it is expected to produce one in 2007. Matic said that society should intervene in individual behaviour only if it was the only way to ensure public health. Experience with injecting drug users showed exactly the reverse – the more severely countries punished the use and supply of drugs, he said, the worse their drugs and HIV problem tended to be. He said that the severity of the sentences handed down in HIV transmission cases may violate the UN Declaration on Human Rights. “We know where criminalisation starts,” he said. “But where does it end?”

All presentations from the Community Workshop on the Criminalisation of HIV Transmission can be downloaded from:

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