Criminal Law Not Effective Against HIV

Posted by Mutaleni on February 20, 2015

THE CONFESSIONS of the 40-year-old man who went on a “deliberate spree to infect as many other people as possible” in 2002 (The Namibian, 14 January 2015) sparked a series of media reports in the past few weeks, which featured calls from the public for the enactment of an HIV-specific crime of intentional transmission of HIV.

The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing spread of HIV, coupled by what is perceived to be a failure of existing HIV prevention efforts. 

No one suggests that a person who, knowing he has HIV, sets out intending to infect another, and achieves his aim, ought to escape prosecution. In these cases, as infrequent as they may be, the victims and their society seek justice because harm was caused with clear intention. 

There is, however, no need to enact a new HIV-specific law to address this situation. We have existing common law crimes that can be applied. Where we seek to apply these, we must ensure that the use of criminal law in relation to HIV should be guided by the current best available scientific and medical evidence. 

Two key scientific and medical developments in the past five years call for a reconsideration of the application of criminal law in the context of HIV. The first is that we know that effective HIV treatment has significantly reduced AIDS-related deaths and has transformed HIV infection from a condition that inevitably resulted in early death to a chronic manageable condition. 

In Namibia the treatment programme has been a flagship of the response, achieving 2010 Universal Access target 2009, and has since continued to register remarkable achievements. By March 2014, an estimated coverage of over 81% of eligible adults and 54% of eligible children were on anti-retroviral therapy (ART). 

Secondly we now know that effective HIV treatment significantly reduces the risk of HIV transmission from people living with HIV to their sexual partners. Since HIV is now a chronic treatable health condition, it is thus no longer appropriate for criminal prosecution for HIV transmission to involve charges of murder, attempted murder or assault with intent to cause grievous bodily harm. 

Based on current evidence, the harm of HIV infection should not be treated differently from that of other serious sexually transmitted infections like hepatitis B or C. Transmission of these infections is, however, seldom if ever subject to criminal prosecution. 

In addition, the effectiveness of criminal law as a tool for reducing the spread of HIV is questionable. Criminal law is traditionally used to incapacitate, rehabilitate or deter offenders.

Why then should we treat HIV differently?

In order to slow the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex or engaging in other risk behaviours, which no criminal law could possibly do. 

Indeed, imprisoning a person with HIV does not prevent the transmission of HIV. HIV risk behaviours are prevalent in prisons, yet correctional services authorities continue to reject the introduction of evidence-informed prevention measures such as condoms and fail to address sexual violence in prisons. 

There is little evidence to suggest that criminal penalties for conduct that transmits HIV will “rehabilitate” a person such that they avoid future conduct that carries the risk of HIV transmission. Most cases of HIV transmission are related to sexual activity - human behaviour that is complex and very difficult to change through the blunt tool of criminal penalties. 

There is no scientific data to support the claim that criminal prosecution, or the threat thereof, has any appreciable effect in encouraging disclosure to sexual partners by people living with HIV or deterring conduct that poses a risk of transmission. What nearly 30 years of addressing AIDS has taught us is that key to preventing the spread of HIV is the reduction of stigma and discrimination on the basis of HIV status, real or perceived, the fear of which deters many people from seeking HIV testing and knowing their status as an entry point to accessing HIV treatment and other related services. 

Applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights. 

Instead of focusing our attention on passing more criminal laws that provide for an HIV-specific crime, we should rather be putting our energies into creating an enabling legal environment in which the social and legal constructs that place some people more at risk of HIV infection than others are addressed. In particular we should ensure that the laws in place protect women's equal rights and that their right to be free from violence are enforced. 

We should promote access to comprehensive, age-appropriate sex education and sexual and reproductive health services and other evidence-based strategies designed to reduce HIV risks. We should adopt a comprehensive anti-discrimination law that protects people against discrimination on the basis of real or perceived HIV status or on the basis of sexual orientation and gender identity and we should repeal laws that criminalise or further marginalise vulnerable groups such as sex workers, people who use drugs, and men who have sex with men, which create barriers to access to effective HIV prevention and treatment services by these groups. 

Our response must be based on the best scientific and medical evidence rather than misguided fears and stigma.

• Michaela Clayton is a human rights lawyer who has worked on HIV and human rights in Namibia and internationally since 1989. She is Director of the AIDS and Rights Alliance for Southern Africa, based in Windhoek and serves as the Co-Chair of the UNAIDS Reference Group on HIV and Human Rights as well as Co-Chair of the Human Rights Reference Group of the Global Fund to Fight AIDS, Tuberculosis and Malaria. She was the recipient of the 2009 Human Rights Watch and Canadian AIDS Legal Network International Award for Action on HIV/AIDS and Human Rights. The opinions expressed in this article are shared by the SADC Parliamentary Forum and the UNAIDS Namibia Country Office, both of which have contributed to its development.

This Op-ed was published in the Namibian newspaper. To read it online, click here.