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Innocent until proven positive

The Daily’s Nadja Popovich investigates the global trend toward the criminalization of HIV/AIDS

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“What I want to do is to ask you this morning to come on a journey with me,” invited Edwin Cameron, Justice of the Supreme Court of Appeal of South Africa, in his closing plenary speech at the International AIDS Conference in Mexico City in August. The journey he proposed was one to examine the criminalization of HIV/AIDS.

The criminalization of HIV/AIDS, one of the major topics at the AIDS conference, has previously garnered scant media attention in comparison to other of-the-moment HIV/AIDS issues, yet, around the world a wave of new legislations attempting to control the spread of HIV/AIDS through criminal prosecution has been gaining momentum. Laws criminalizing the transmission of HIV, in their various forms, have been implemented from Texas to Zimbabwe, Sweden to Singapore, transgressing cultural and economic boundaries.

As defined by an article published in the August 6, 2008 volume of the Journal of the American Medical Association (JAMA), the criminalization of HIV/AIDS, “takes the form of HIV-specific criminal statutes and the application of general criminal law (such as assault) to exposure or transmission of HIV.” Though this type of legislation, in various guises, has been cropping up internationally, HIV,criminalization has seen opposition from some of the highest international authorities on the disease, including the Joint United Nations Programme on HIV/AIDS (UNAIDS), and various non-governmental organizations around the world.

“Criminalization is driven by an AIDS phobia and an exaggerated view of the risks of HIV transmission,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “It comes down to the fact that we’ve seen the kinds of cases where people are being charged for spitting or scratching.”

A case in Texas earlier this year is one oft-cited example of such legislation stretched to an extreme. Last March, The New York Times reported that an HIV-positive homeless man, while resisting arrest for drunk and disorderly conduct, spat in the face of the arresting officers. The man was charged with assault with a deadly weapon; that weapon was his infected saliva.

Although neither of the police officers involved in the arrest tested positive for HIV, the jury upheld the assault charge. The accused was convicted under a habitual offender statute for similar offenses of disorderly conduct in the past and sentenced to 35 years in prison, at least half of which he must serve before being eligible for parole.

The characterization of saliva as a “deadly weapon” exemplifies one major problem behind the idea of criminalizing HIV/AIDS: often such cases ignore scientific evidence.

According to the Centers for Disease Control and Prevention, “Contact with saliva, tears, or sweat has never been shown to result in transmission of HIV. Furthermore, according to a UNAIDS Policy Brief on the criminalization of HIV/AIDS, “there is no evidence that criminal laws specific to HIV transmission will make any significant impact on the spread of HIV or on halting the epidemic.”

In the developing world, where the prevalence of HIV/AIDS is often much higher than the Western world, there is a more immediate need to mitigate the spread of the disease, and thus criminalization laws can seem more appealing.

“As the epidemic has exploded in the developing world, there has been a simultaneous push to legislate against the disease. Often it comes in the form of omnibus laws, which address many issues, and usually throw in criminalization,” said Elliott.

While the adoption of criminalization laws can be a concrete way to fight the spread of HIV, the legal systems in many developing countries tend to be ill-equipped to deal with the complexities of such laws and their social consequences.

Elliott offered the example of Sierra Leone. “[It] has gone as far as to pass a law that a woman can be criminally charged for transmitting AIDS to her baby,” he said.

But Sierra Leone is not alone. A “model law” adopted in many West African countries has been the basis of the criminalization push.

The African Model Law, under Article 36, says, “Any person guilty of willfull transmission will be sanctioned with…” However, what “willfull transmission” means is defined as, “[the] transmission of HIV virus through any means by a person with full knowledge of his/her HIV/AIDS status to another person.”

This model law came out of a largely U.S.-funded project on HIV/AIDS in West Africa, AWARE-HIV/AIDS, in 2004, and has been written into legislation in a number of countries since its inception.

It is this model that has led many countries to criminalize mother-to-child transmission. Such laws stipulate that a woman can be criminally charged with not taking the steps necessary to prevent HIV transmission to her fetus, such as taking anti-retroviral medications during pregnancy. It is hard to imagine a mother wanting to spread HIV to her child, but with the stigma surrounding the disease often coupled with limited knowledge about medications, many women are simply not in a position to make such a decision.

The ambiguity of such laws, especially in developing areas, is exactly what Elliott finds troubling. While in developed states, these types of laws are often born from precedents set by prosecution, in the developing world they are written directly into legislation. When these laws are written into national legislation, rather than based upon individual cases, they tend to be loosely -defined and risk spiraling into an extension of criminal law beyond reasonable bounds.

Legislation to stigmatize

The negative repercussions that may arise in the public health and human rights arenas are central to the problem defining the boundaries of HIV-specific legislation.

A 2007 issue paper for the UNAIDS Reference Group on HIV and Human Rights raised concerns over the use of criminal law specific to HIV transmission as a “return to ‘blaming’ people with HIV, a possible increase in stigma against people living with HIV, and a possible decrease in people taking individual responsibility for protecting themselves.”

Christine Vézina, lawyer and head of the Programme Droits et VIH at the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-Sida), agreed. She argued that the idea of criminalizing HIV transmission contradicts the last two decades of public health strategies for combatting the disease.

“The major point regarding public health strategies is focusing on shared-responsibility. This means that everyone is responsible for their own sexual life,” Vézina said. “The criminal laws are hurting this idea. What they suggest is that even if you don’t protect yourself, [you shouldn’t] stress too much, because it is the responsibility of those who have HIV to do the protecting, and the law will make sure of this.”

“People are looking for a security net, and shared responsibility is less able to provide this. It’s not comfortable for them,” added Vézina.

A rights-based concern with HIV-criminalization is the risk of disproportionate effects on marginalized populations. Already stigmatized groups such as sex workers, men who have sex with men, and drug abusers are seen as prime targets of such criminal legislation. Elliott cautioned that these groups are among the most vulnerable, often already working outside of the protection of the law.

The uneven application of HIV-specific criminal laws is reiterated in the UNAIDS Policy Brief, which adds that criminalization risks reinforcing stigma, “driving [people living with HIV] further away from HIV prevention, treatment, care, and support services.”

The gender divide

Women, especially in developing nations, are another group often unevenly affected by HIV-specific criminal prosecutions. Paradoxically, the laws are often intended to protect women; specifically, to give women a legislative tool by which to demand protection. But often, reality does not meet the intention.

HIV-criminalization can disadvantage women because they are often in a position of weakness vis-à-vis their male partners. In many cultures, sexual coercion and multiple partnerships for men are seen as the norm, and discriminatory social factors, contribute to women’s heightened risk of contracting HIV, according to the UNAIDS Policy Brief. Such social factors could include financial reliance and domestic obligations, among others.

Vézina identifies part of the problem as one of unequal information on HIV-status. She elaborates that women are generally more likely to know their HIV-status than men, as they make greater use of health services, such as maternity clinics where HIV tests are administered as a part of pre-natal check-ups. This not only puts the woman in the position of being the perceived bearer of HIV into the home, as she holds the tangible medical report of disease, but with HIV-criminalization, it also opens up the possibility of criminal action being levied against her.

Meanwhile, Vézina says, men can avoid obtaining concrete medical proof, and thus remain in denial of their own HIV-status – leaving their partners to shoulder the shame alone. In developing countries, she says, men have even been known to interfere in their wives’ efforts to seek care, as this is taken as public acknowledgement of the disease, which brings shame on the household.

“Women are in the middle of a crazy circle. Criminalization is just enforcing the problems they are often already facing in their countries just for being women, says Vézina, “Violence, stigmatization, discrimination, are all exacerbated by the criminalization laws.”

“For many women, it is also either difficult or impossible to negotiate safer sex,” according to the UNAIDS Policy Brief. As Vézina put it, women wield less decision-making power over the use of protection than their male partners; condoms tend to be seen as a male prerogative, and female condoms are much less common. Thus, women could be prosecuted for situations over which they had little control.

According to the JAMA article, “Criminalization also is not an effective way of protecting vulnerable populations from coercive or violent behavior, such as rape, that can transmit HIV. Sexual violence is already criminalized. Criminal laws do nothing to address women’s subordinate socioeconomic position.”

The UNAIDS Policy Brief suggests that in such situations, the implementation of laws that protect women from related transgressions, such as “sexual violence, discrimination based on gender and HIV status, and [various inequalities]” can more adequately protect women from exposure to HIV.

Criminalization hits home

Though Canada does not have any formal laws regarding the criminalization of HIV/AIDS, it would be naive to think that it is an exception to the trend.

In Canada, many cases involving HIV transmission as a criminal act have been tried, as reported in a 2008 publication on Criminal Law and HIV by the Canadian HIV/AIDS Legal Network.

“Normally what we see [in Canada] are lawsuits that are based on aggravated assault, or sexual assault, turned to HIV/AIDS cases,” said Vézina, recounting a case in Montreal – ruled upon just last month – that saw a woman charged of aggravated assault for exposing her ex-boyfriend to risk of HIV infection.

According to a July 9, 2008 report on, a woman and a man– identified only by their initials – were involved in a long-term relationship, which ended in the woman, D.C., filing an assault charge over claims of domestic abuse against the man, J.L.P. This move was met with a counter suit of aggravated assault against D.C. for failure to disclose her HIV status to J.L.P for the first three months of their five-year relationship.

D.C. testified that they had used protection over the initial three-month period. Although J.L.P. tested negative for HIV/AIDS, the court ruled that the couple had engaged in unprotected sex at least once. D.C. was found guilty of aggravated assault for not immediately making her HIV status known, thereby invalidating her then-boyfriend’s consent to engage in sexual relations. The judge ruled that anyone with HIV had a legal duty to inform their partner, and that not doing so was irresponsible.

This lawsuit is not the first of its kind in Canada. A number of cases involving undisclosed HIV status have been tried as sexual or aggravated assault.

The reasoning that without full knowledge of a person’s HIV status, one cannot be in a position to legitimately consent to sexual relations may be well-intended, but it can lead down a slippery slope, from accountability to blame. As Vézina said, too many value judgments are already placed on those with HIV/AIDS, and it would be hard to believe that such biases could be kept from the courtroom.

“It is hard to keep a presumption of innocence for the defendant when the party has HIV,” said Vézina, adding that this played a large role in D.C.’s conviction in the Quebec case.

Whether considering unintentional exposure to risk, or uneducated mother-to-child transmission, concerns over the implications of criminalization, and the extent to which these laws can be stretched has led UNAIDS to “[urge] governments to limit criminalization to 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,” in their Policy Brief on Criminalization of HIV Transmission.

The UNAIDS Policy Brief emphasizes the limitation of criminalization, stressing that governments should be expanding those “evidence-informed” strategies already proven to reduce HIV transmission, such as education combatting stigmatization and discrimination, testing and counseling, and access to medication and care facilities.

In Cameron’s closing speech at the conference, he accused the criminal approach to addressing HIV prevention as being “punitive and angry,” and reiterated that there is now, more than ever, a need for a human-rights based, “positive vision of HIV prevention.”

“Criminalization assumes the worst about people with HIV. And in doing so, it punishes their vulnerability,” Cameron said.

His call to action was one encouraging people around the world to come out explicitly against the use of the unchecked criminalization of HIV/AIDS.

As Cameron, the only HIV-positive member of the Supreme Court of Appeal of South Africa, asserted: “It’s a virus. Not a crime.”