Criminalisation of HIV transmission: Where, what and why

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Criminalisation of HIV transmission Where, what
and why?
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Where...?

• In Texas a man convicted of assault with a deadly
  weapon for spitting sentenced to 35 years
• In Switzerland a man sent to jail for infecting
  his girlfriend even though he thought he was
  negative
• In Canada a Zimbabwean immigrant sentenced to 7
  years imprisonment on a guilty plea to aggravated
  sexual assault for not disclosing his HIV status
  to 8 women before engaging in consensual
  unprotected sex none became positive

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The Ndjamena African Model Law (2004)

• In Africa a USAID funded model law that broadly
  criminalises transmission and exposure has been
  adopted by 15 countries
• Requires disclosure of HIV-positive status to a
  spouse or regular sexual partner as soon as
  possible and at most within 6 weeks of
  diagnosis.
• Creates an offence of wilful transmission
• through any means with full knowledge of
  status wide enough to cover MTCT!

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Following suit in West Africa exposure,
transmission

• Benin
• Exposure alone is criminalised regardless of
  degree or assumption of risk or whether actual
  transmission takes place
• Guinea Bissau, Guinea, Mali, Niger
• Broad definition of wilful transmission wide
  enough to cover MTCT - transmission through any
  means with full knowledge of HIV status
• Sierra Leone
• A person who is infected with HIV (and aware of
  the fact) must not knowingly or recklessly place
  another person (And in the case of a pregnant
  women, the foetus) at risk of becoming infected
  with HIV......

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And in Southern Africa

• Tanzania
• Immediate disclosure to spouse or sexual partner
  required
• wilful transmission the transmission of HIV
  from an infected to an uninfected person, most
  commonly through sexual intercourse, blood
  transfusion, sharing of intravenous needles,
  during pregnancy or breastfeeding
• wilful transmission LIFE IMPRISONMENT

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Madagascar

• Transmission by recklessness, carelessness,
  inattentiveness, negligence 6 months to 2 years
  and a fine of 100 000 to 400 000 ariary

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DRC

• Disclosure immediate notification of spouse
  and sexual partners
• Transmission life imprisonment and fine of 200
  000 FC (now reduced to 10 years)

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Malawi

• Mandatory testing pregnant women, sex workers,
  persons charged with sexual offences
• Transmission Any person who deliberately,
  recklessly or negligently does an act or omission
  that he knows or has reason to believe to be
  likely to infect another person with HIV commits
  an offence and shall be liable to imprisonment of
  14 years

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Why...?

• To prevent new infections
• To protect those vulnerable to becoming infected
  especially women
• To encourage disclosure by those who know their
  status
• Often supported by womens groups
• GOOD INTENTIONS BAD POLICY

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Criminalisation is bad public policy
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Does not reduce spread of HIV

• Incapacitation prisons are high risk
  environments
• Rehabilitation little evidence to suggest
  criminal penalties will rehabilitate individual
  behaviour change more likely to result from
  counselling and support
• Deterrence unlikely that criminal sanctions
  will act as deterrent

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Can undermine prevention efforts

• Deterrent for testing
• Spreading misinformation about HIV overbroad
  ambit of transmission provisions spitting,
  biting, scratching...
• Create false sense of security
• Create distrust between PLHA and health care
  providers

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Promotes fear and stigma

• Contributes to stigma and further stigmatizes
  people living with HIV as potential criminals and
  a threat

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Impact on women

• First to know
• Cannot disclose or insist on safer sex
• Face prosecution

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Drafted too broadly

• Poorly drafted and sufficiently broad to cover
  behaviour regardless of risk of transmission
• MTCT

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Selectively, unfairly and ineffectively applied

• Selective prosecution of MSM, sex workers, IDUs
• Difficulties with evidence / proof and risk of
  miscarriage of justice
• proving the accused was positive at time of
  offence
• proving source of infection requires scientific
  evidence phylogenetic testing technical
  evidence and its limitations often not well
  understood by prosecutors, the police or courts

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There are already laws in place

• Most jurisdictions have laws in place to address
  rare cases where a person acts with intent of
  infecting another person and in fact does infect

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Recommendations

• Criminalization is bad public policy.
• Jurisdictions should not adopt criminalization
  policies.
• Those that have already done so should reverse
  course.

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• Efforts should be focused on
• removing legal barriers to HIV prevention,
  treatment care and support
• addressing the root causes that drive the demand
  for criminalization