The Utility of Criminal punishment as a means of preventing the spread of HIV/AIDS in the SADC Region – Judicial Officer’s perspective, Hon Justice Prof. OBK Dingake

Posted by Mutaleni on June 3, 2015

Director of proceedings, I should commence my intervention this morning by expressing my sincere gratitude to the organisers of this event for inviting me to share with this distinguished gathering of regional legislators my thoughts on the utility of criminal punishment as a means of preventing the spread of HIV/AIDS in the SADC region.

My multiple roles as a citizen of the region, Judge and an interim Co-Chair of a newly established UNAIDS Regional Think Tank on HIV, Health and Social Justice in Southern and Eastern Africa makes this intervention both a matter of duty and indeed an honour. It is not quite often that a member of the judicial arm of the State has an intellectual moment with those mandated to make laws for the good order and governance of our countries.

More than thirty years on, HIV epidemic remains one of the leading causes of death globally. Sub-Saharan Africa continues to be the epicentre of the epidemic. These days none can dare contest the link between HIV, health, human rights and the law. The link is too plain to contest.

In its watershed report titled ‘Risks, Rights and Health’, released in July 2012, the Global Commission on HIV and the Law found that legal environments can play a powerful role in the wellbeing of people living with HIV and those vulnerable to HIV. The report made it clear that good laws, fully resourced and properly enforced can widen access to prevention and health care services, improve quality of treatment enhance social support for people affected by the epidemic, and protect human rights that are vital to survival and save public money.

The report also recognises that the judiciary can play an important role in generating jurisprudence that can uphold the right of people infected and affected by HIV, more particularly key populations at high risk of HIV exposure.

I would also submit, with greatest of respect, that it is time the three arms of the State, the Judiciary, the Executive and the Legislature consider themselves partners in the area of honouring rights than protagonists. In this way, the ultimate objective of law being the welfare of society will be better served. The efficacy and or utility of criminal punishment as a means of preventing the spread of HIV has its supporters and opponents.

I wish to briefly capture or highlight the major arguments of both sides.

The case for Criminalising HIV/AIDS Transmission and special Legislation

A survey of the literature globally suggests that the arguments in favour of using criminal punishment against persons found guilty of transmitting HIV/AIDS are grounded on the retributive and deterrent functions of criminal law. It has been argued that, given the fatal and debilitating effects HIV/AIDS, the law should punish those who wilfully or recklessly transmit it to innocent victims. Those who subscribe to the philosophy of an eye for an eye, maintain that punishment can serve as an effective deterrent to others. Consequently, those who support criminalising HIV/AIDS transmission argue that criminalisation can curb the spread of HIV/AIDS by reducing new infections.

The above argument proceeds from the assumption that criminal punishment can play an important role in containing the spread of the pandemic. However, it recognises that the general criminal law is an inappropriate method for addressing HIV/AIDS transmission for a number of reasons. HIV/AIDS presents unique evidentiary problems relating to proof of a criminal transmission. This is so because not all transmissions may be criminally culpable. For example, due to the specific characteristics of HIV/AIDS – such as long period of incubation – it is not easy to prove causation and fault in certain cases of HIV/AIDS transmission.

Another crucial difficulty to successful prosecution of HIV/AIDS transmission – related cases under general criminal law lies in the defence of consent. In cases of consensual sex, it is difficult to prove deliberate intention to transmit HIV/AIDS.

In view of the evidential difficulties of proving fault, those in favour of criminalisation of HIV transmission argue that special HIV laws criminalising transmission could create offences of strict liability to avoid problems relating to proof of the intention of the accused.

The case against the use of Criminal Sanctions in HIV/AIDS prevention

Opposition to legislation criminalising HIV/AIDS rests on the general perceived ineffectiveness of criminal law in dealing with the pandemic. It has been argued that criminal sanctions intensify the spread of HIV/AIDS rather than reduce it because it encourages people to avoid HIV testing.  The obvious reason for so doing being that knowledge of HIV status could have implications for criminal liability. As a result, many people would not be able to know their status, which is crucial to HIV/AIDS prevention efforts. This may create an environment of unsafe sexual activities between partners. Research has shown that punishing HIV transmission may have adverse public health consequences.

In their research on the implications of the Scottish judgement in the case of R v Kelly, in which a man was convicted of reckless transmission of HIV/AIDS to a woman, Bird and Brown have established that a modest decline in HIV/AIDS testing could result in a one-third increase in new HIV/AIDS infections. Refraining from testing also means that many people would not be able to know whether they need anti-retroviral treatment or not. This may in turn increase the death rate associated with HIV/AIDS.

To the argument that criminalising HIV/AIDS serves a retributive purpose, opponents of criminalisation argue that the current trend in international criminal law points to a shift form a retributive model of punishment to one based on reformation and rehabilitation. The problematic nature of criminalisation of HIV transmission is more evident when considering the issue of mother to child transmission, to give but one example. Criminalisation could have the double effect of discouraging testing and driving away pregnant women from skilled health care providers for fear of criminal reprisals. This would in turn hamper efforts at reducing mother-to child transmission of HIV/AIDS, which are more successful in a context where voluntary HIV testing and public education is both encouraged. Furthermore, it will lead to a significant rise in maternal morbidity and mortality because pregnant women will resort to unskilled personnel for child delivery.

Criminalisation of mother-to-child transmission of HIV/AIDS also encourages unsafe abortions. This problem would be more acute in countries which have restrictive abortion laws and elective abortion is unavailable. This situation leaves women with two choices only – giving up their child through abortion or having the child and risking prosecution, thus clearly impinging upon women’s reproductive rights.

Another problem with criminalisation is the high risk of selective or arbitrary prosecution: Given the stigma that still surrounds HIV and the persistence of HIV-related discrimination, criminal sanctions are often directed disproportionately at those who are socially and/ or economically marginalised.

 Evidentiary problems

There are serious evidentiary problems with criminalisation of HIV transmission. Providing that an accused person was HIV-positive at the time of an alleged offense, as well as providing who infected whom and when, is a serious challenge. In a sexual relationship, the one blamed for transmitting HIV will most likely be the one who first learned of his or her status, not necessarily the one who was first infected. Even if the accused person was infected first, it could have been a third party who actually infected his or her sexual partner. To prove guilt, scientific evidence of transmission by the accused person is require.

In recent years, where resources exist, prosecutors handling cases of HIV transmission increasingly have resorted to ‘phylogenetic testing’ which seeks to establish a genetic relationship between the HIV viruses of the two parties. However, such evidence only indicates similarities in the viruses; it does not prove beyond a reasonable doubt the source of the virus. Such technical evidence and its limitations are well understood by police, prosecutors, defence lawyers, courts, the media or people living with HIV or HIV organisations. Phylogenetic testing is also very expensive to apply and thus unaffordable in many low resource countries. As a result of all these factors, there is considerable potential for a conviction without sufficient evidence.

Of recent, the debate on the efficacy of criminalisation of HIV transmission has shifted against an attempt to using criminal punishment as a means of preventing the spread of HIV/AIDS. It is generally acknowledged that any criminal law response to HIV should:

  • Appropriately reflect the best and latest available scientific and medical knowledge relating to HIV;
  • Treat HIV proportionally to similar harms and risks – not singling out HIV for harsh treatment and
  • Require generally applicable criminal law principles and elements in support of any prosecution or guilty verdict.

The above principles require a harm to another person, mental culpability, proof to the appropriate standard to support a guilty verdict, and proportionality between the offence.

Experts, however concede that the use of criminal law in the context of HIV can be legitimate where there is an actual and significant harm intentionally caused to another person. UNAIDS position is that the harm can only be deemed actual and significant, thus warranting criminal prosecution, where the conduct of the person living with HIV resulted in HIV transmission.

Most constitutional and criminal law experts are increasingly concerned having regard to emerging scientific and medical evidence, about the negative impact of the overly broad criminalisation on people living with HIV, who may be charged, prosecuted and incarcerated even though they did not intend to cause harm or did not cause any significant harm.

Some sources suggest that England and Wales prosecutions are not allowed where people have not actually transmitted HIV, unless the prosecutor can prove the highest standard mental culpability, namely “intent to transmit HIV”. England and Wales does allow prosecutions for reckless transmission of HIV, but only where a serious harm has been caused to another.  A serious harm is defined as HIV having been actually transmitted to the sexual partner by the person living with HIV.

Most experts now recognise that the discovery and subsequent use of antiretroviral (ART) in the mid-to-late 1990s has resulted in a re-characterisation of HIV infection, thus significantly altering the level and degree of harm caused by HIV transmission. Though HIV infection remains a serious, lifelong and chronic health condition, it has become manageable for the majority of those on antiretroviral therapy.

It follows in my view the manner in which legislators, prosecutors and courts characterise HIV infection and the harm resulting from it for the purpose of defining criminal liability, initiating prosecution should reflect current advances in HIV treatment and the reality of living with HIV today (if an individual is on treatment and under care). The fact that treatment significantly improves the length and quality of life of people living with HIV means that HIV infection can no longer reasonably be the basis of criminal charges of “murder”, “manslaughter”, or “attempted murder”, as it appears to be in some jurisdictions.

Finally, Honourable Members of Parliament and distinguished colleagues, please allow me to conclude with a relevant quote form Honourable Henrietta Bogopane-Zulu from South Africa in 2007. She said:

In countries such as South Africa where there are still high levels of discrimination against people living with HIV, a specific law criminalising HIV transmission can never be implemented. HIV would be pushed underground. Criminalisation would defeat attempts to encourage testing and voluntary disclosure. It will also further perpetrate stigma, creating a parallel society of “us” and “them”.

Thank you.  

Judge of the High Court of Botswanan and Residual Special Court of Sierra Leone, Extra Ordinary Law Lecturer, University of Pretoria and Professor of Public Law, University of Cape Town. Interim Co-Chair of the Think Tank on HIV, Health and Social Justice in Southern and East Africa.