For
the past 18 months, the Global Commission on HIV and the Law, led by the United
Nations Development Programme (UNDP) on behalf of the Joint United Nations
Programme on HIV/AIDS (UNAIDS), has been gathering evidence from all over the
world about the impact of the law on HIV. The Commission has been examining
issues much broader than the criminalisation of HIV non-disclosure, exposure
and transmission. These include the criminalisation of sex between men, sex
work and drug use; the impact of the law on women and children; and the impact
of intellectual property law and trade agreements on the availability of
generic antiretrovirals.
However,
some of the world's leading experts on the criminalisation of HIV
non-disclosure, exposure and transmission are part of the Commission's
Technical Advisory Group, including the UK's Professor Matthew Weait. And
the Commission's report (due soon) is expected to censure countries that
continue to treat people with HIV as potential – and actual – criminals and
where HIV-related stigma is trumping evidence-informed laws and policies.1
At
the Commissions' High Income Countries Dialogue held in Oakland, California,
in September 2011, the issue of criminal prosecutions for HIV non-disclosure,
exposure or transmission was very much at the heart of the meeting. The often
emotional testimony was skilfully moderated by BBC presenter Nisha Pillai,
herself moved to tears by the end of the meeting, overwhelmed by the stories of
legal injustices perpetrated against people with HIV.
"The
Western world’s treatment of many people with HIV is nothing short of
barbaric," Pillai wrote in a blog entry a few days later. "The
distressing testimony I witnessed from people living in the world’s richest
countries – the US, Canada, the UK,
Denmark, Germany, and elsewhere in Europe
– left me profoundly shocked… The reason is simple – criminalisation... In some
states of America
you can kill someone in a car accident and get a lighter sentence than if you fail to pass on HIV to a sexual
partner. Passing on herpes or hepatitis C isn’t prosecuted, but
not passing on HIV is.
The injustice is staggering. Seldom in my many years as a BBC journalist, and
now as an international moderator, have I felt so outraged."2
The
meeting was hosted by the sole US
member of the Commission, Oakland Congresswoman Barbara Lee. Congresswoman Lee
recently unveiled the Repeal HIV Discrimination Act which creates financial incentives
and support for states to review and reform HIV-specific laws that are not
consistent with good public health or HIV science.3
The Western world's treatment of many people with HIV is nothing short of barbaric. The distressing testimony I witnessed...left me profoundly shocked. Nisha Pillai, international moderator
“Laws
that place an additional burden on HIV-positive individuals because of their
HIV status lag far behind the medical advances and scientific discoveries in
the fight against the epidemic,” said Congresswoman Lee. “Instead of
progress against the disease and protection for people living with HIV/AIDS,
criminalisation laws breed fear, discrimination, distrust, and hatred. Although
our country has made notable advances in the global fight against HIV/AIDS, we
have a long way to go. The decriminalisation of HIV/AIDS is one way we can
reduce stigma in our communities, while fighting the epidemic in a rational,
holistic, and truly rights-based fashion."4
Although
it is unknown whether the bill will pass when introduced to the US House of
Representatives, at the very least it will create awareness and debate amongst
US lawmakers about the issue.
Since
2008, when they produced their policy brief on the issue,5 UNAIDS
and UNDP have been actively trying to persuade governments and policymakers to
repeal HIV-specific criminal laws and to limit the application of general
criminal law to actual cases of intentional transmission, where a person:
- knows
his or her HIV-positive status;
- acts
with the intention to transmit HIV;
- and
does in fact transmit it.
At
the heart of this position is the need to establish a threshold for criminal
liability that would serve justice in truly blameworthy cases – where the
intention to harm can be clearly established – while avoiding overly broad
application of the criminal law which risks jeopardising public health and
human rights.