The negative impact on public health

Edwin J. Bernard
Published: 18 July 2010

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In recent years a number of organisations have published papers, monographs and policy documents highlighting ways in which using the criminal law to address potential or actual HIV exposure or transmission might undermine HIV-prevention efforts.1,2,3,4,5,6,7,8,9

As discussed in the section above, since such laws can only target those people living with HIV who have been tested and diagnosed, these organisations argue that using the criminal law to address potential or actual HIV exposure or transmission focuses disproportionate attention and resources on a relatively small number of individuals. They suggest that these significant personal and financial resources could be more productively used to expand evidence-informed and human rights-based HIV-prevention efforts.

They also suggest that using the criminal law to address potential or actual HIV exposure or transmission might be counterproductive in the following ways:

  • By overstating risks. Prosecuting individuals for behaviour that is very unlikely to expose someone to HIV (e.g., when using condoms or when an individual is on successful ART with an undetectable viral load and no other STIs); extremely unlikely to expose someone to HIV (e.g., biting, oral sex); and impossible to expose someone to HIV (e.g., spitting, and throwing urine or faeces) may perpetuate popular misconceptions about what puts people at risk, as well as compounding HIV-related stigma.

  • By creating a false sense that HIV is someone else’s problem. Placing the responsibility for HIV prevention on the person aware they are living with HIV contradicts the message of shared responsibility during consensual sex, where both partners in a sexual relationship should take measures to reduce the risk of HIV transmission/acquisition.

  • By providing further incentive for people to avoid learning their HIV status. The prospect of facing stigma and discrimination contributes to some people’s reluctance to get tested for HIV, and the possibility of criminal sanctions may function as an additional disincentive.

  • By discouraging HIV-positive people from accessing HIV-prevention resources. People aware they are living with HIV may be less likely to seek support in their efforts to avoid infecting others if they fear that information they share about risky behaviour could be used against them in the criminal justice system.

These, and other issues, are further explored in the following sections.

The impact on people who are aware they are living with HIV

People living with HIV may be negatively affected by using the criminal law to address potential or actual HIV exposure or transmission in multiple ways.

Increasing HIV-related stigma

While it is difficult to empirically prove that laws and prosecutions for potential or actual HIV exposure or transmission have had a direct impact on worsening HIV-related stigma,1 this is a common assertion, for example, by:

  • leading publications by and for people living with HIV in Canada,10 the United Kingdom11,12 and the United States.13

  • newspaper articles quoting people living with HIV or their advocates in Kenya,14 Uganda15 and Zambia.16

  • internationally focused documents produced by United Nations agencies,3,2,7,9 civil society organisations17,5,6,8 and legal experts.4

A 2006 study of 125 people living with HIV in three UK cities18 found that following several high-profile prosecutions2, 90% of participants were critical of using the criminal law to address potential or actual HIV exposure or transmission, primarily because of its stigmatising effect and negative impact on HIV prevention and treatment. The opinions of people living with HIV are significant because perceptions of HIV-related stigma affect their willingness to access HIV-related treatment, care and support, which has major public health implications.19

However, as Burris and colleagues suggest, "perhaps the effect is more indirect: framing the transmission of HIV as a matter of individual moral choice and culpability hardly seems likely to generate a supportive social atmosphere for those who have HIV, let alone a robust investment of public resources in proven interventions that help people get tested and sustain safe behaviour."20

1. International research is underway in this area, undertaken by a global partnership of local, national and international communities and organisations. Results will be published on the People Living with HIV Stigma Index website.

2. These prosecutions for reckless – not intentional – transmission resulted in headlines in the two highest circulation newspapers in the UK, the Sun and the Daily Mail, that included the phrases "AIDS Assassin", "AIDS Avenger" and "AIDS Attacker".

Disincentive to disclose HIV-positive status to sexual partners

Such indirect framing may also affect one’s willingness to disclose an HIV-positive diagnosis to sexual partners, which has implications for what happens both during and after sexual encounters.

Researchers from the United Kingdom observed that some HIV-positive gay men reacted to the fear of criminal justice system involvement by not disclosing their HIV-positive status prior to sex that risked HIV exposure.21

An earlier United States study also found that some HIV-positive gay men reported not disclosing their HIV status to sexual partners due to fear of the potential legal repercussions. The investigators noted that this was an "unexpected" finding.22

There are negative public health repercussions should such behaviour be widespread. As discussed in the chapter: Responsibility, a sexual partner who wrongly believes that he or she is with an HIV-negative person may be more inclined to engage in higher-risk activities such as unprotected vaginal or anal intercourse. In addition, should a person living with HIV be too afraid to disclose their HIV-positive status to a partner after unprotected intercouse out of concern that this might place them at risk of criminal sanctions, this might also lead to their sexual partner failing to access post-exposure prophylaxis (PEP) after episodes of potential exposure.

Disincentive to disclose HIV-related risk behaviours to healthcare professionals

As discussed in the chapter: Proof, despite the ethical obligation of doctors and other healthcare professionals to maintain confidentiality, legal mechanisms such as search warrants and court orders can allow for confidentiality to be breached. This may reduce the likelihood of honest and open discussions between people living with HIV and healthcare professionals regarding their sexual behaviour, reducing opportunities for sexual-health screening and support to reduce HIV-related risk taking. A 2009 essay examining the impact of prosecutions on people living with HIV in several Australian states reported that confidence in patient confidentiality had fallen due to fears that information could be obtained by the police and used to prosecute sexual risk-taking behaviour.23

Conversely, there are concerns among healthcare professionals that engaging clients in discussions about their risk-taking behaviour will obligate them to share what they learn with law enforcement agencies and perhaps even testify against clients in court.24 This has resulted in the production of documents in Australia25 and the United Kingdom26 specifically to guide healthcare professionals regarding their duties to their patients and to others.

Case study: Canada – Doctor's testimony over 'safer sex' discussion used as evidence. In a 2008 trial for sexual assault and aggravated assault in Quebec, the case hinged on whether the female defendant had engaged in a single instance of unprotected sex without disclosing her HIV-positive status at the start of a five-year relationship. There was no dispute over whether condoms were subsequently used. Her doctor's testimony included repeating a confidential discussion they had at the time about maintaining sexual practises. During that discussion the woman admitted to a single instance of unprotected intercourse, and this was admitted into evidence. In his ruling27, Judge Marc Bisson noted that the doctor's testimony was the only convincing piece of evidence supporting the prosecution's case. Consequently, it is likely that the woman would not have been convicted had she not talked frankly about safer sex with her doctor. The woman was a given a one-year sentence to be served in the community due to her fragile health.28

Concerns of this nature also appear to inhibit HIV-positive individuals' willingness to provide researchers with information that can potentially inform HIV-prevention strategies. Researchers in the United Kingdom have reported reluctance on the part of HIV-positive individuals to participate in studies where they disclose their sexual behaviour because of fears about the possibility that what they disclosed could be used against them in criminal prosecutions.29,30,31

Novel HIV-prevention strategies that may result in improved public health outcomes, such as identifying diagnosed and undiagnosed individuals within sexual networks through a combination of contact tracing and phylogenetic analysis, is also being impeded by the potential legal repercussions.32 United States researchers exploring such strategies note, that “[t]here is significant concern that [these] public health procedures could place source partners of HIV transmission at legal jeopardy, because in nearly every jurisdiction in the United States, it is illegal to transmit or expose someone to HIV.” In fact, the investigators obtained a “certificate of confidentiality to help protect the identity of the study participants and ensure that investigators will not be forced to divulge confidential research information without their written permission, even in the face of a court order.” Consequently, they conclude that their methods can only be considered to be useful and safe once “unintended HIV transmission during consensual exposure” is decriminalised and when there is “legal recognition that phylogenetic [analysis] does not prove beyond a reasonable doubt that transmission between partners occurred.”32

The impact on people who are unaware they are living with HIV

Concern that laws and prosecutions for potential or actual HIV exposure or transmission provide a direct – as well as an indirect (via increasing HIV-related stigma) – disincentive for people to be tested for HIV has existed since the earliest application of the criminal law to HIV exposure or transmission,33 and continues unabated two decade later.5,6,19,7,8,9

This is a major public health issue, since it is well established that people who are unaware they are living with HIV contribute disproportionately to onward transmission.34 To provide only one of many illustrations, a study from the United States’ Centers for Disease Control and Prevention estimated that reducing the average number of undiagnosed HIV infections nationally from 30% in 2001 to 25% in 2004 helped to prevent an estimated 6000 new infections over the three-year period.351

In short, policies that drive earlier testing and counselling lead to the earlier adoption of HIV risk-reduction behaviour and earlier utilisation of antretiroviral treatment by HIV-positive people, reducing the likelihood of onward transmission.36,37 In this context, any policy that has the potential to discourage people from learning their HIV status via voluntary and confidential testing would appear to be counterproductive to public health.

Anecdotal evidence suggests that, in some cases, media reports have actually persuaded some people at high risk of being HIV-positive to test, particularly when they have had prior sexual contact with the accused.38 On the other hand, it is also possible that such reports may dissuade someone who is highly aware of the possible legal repercussions of his or her high-risk behaviour from getting tested.19

Empirical evidence showing that laws, prosecutions and/or ensuing media reports have any effect – positive, negative or neutral – on people with HIV wanting to finding out their HIV status is not easy to obtain. There are, in fact, no data suggesting that people are inclined to delay or avoid testing specifically due to fear of criminal or other legal consequences.20,39 However, examining overall HIV testing and counselling rates following the enactment of a new HIV-specific law,40 or following a highly publicised criminal case,41,42 cannot prove a direct impact of the law alone because a wide range of personal, social, medical and legal factors may simultaneously encourage and discourage testing, with different people responding differently to these factors.43,39

1. The findings in such modelling exercises are predicated on the access to comprehensive counselling and support by those people who are newly diagnosed.

The impact on people at risk of acquiring HIV

It has been asserted that using the criminal law to address potential or actual HIV exposure or transmission produces conflicting messages regarding who is responsible for HIV prevention.44 As discussed in the chapter: Responsibility, not all people aware they are living with HIV are willing or able to disclose their HIV status every time they have sex that risks HIV exposure. If people at risk fail to recognise this, and think instead that HIV-positive sexual partners should and will always disclose their status, they may fail to take steps to reduce their risk of becoming infected.

There appears to be only one published study examining the views of at-risk people in relation to the use of the criminal law, disclosure and misconceptions about responsiblities for HIV prevention. Drawing on data from more than 12,000 gay and bisexual men in the United Kingdom, Dodds and colleagues found that most men who were (or believed themselves to be) HIV-negative approved of criminal prosecutions in cases involving HIV-positive people who had failed to disclose their status before having sex. Despite the fact that accurate up-to-date information about HIV is widely available in the communities represented by the study population, most of the men who supported prosecutions considered HIV to be invariably fatal. Having this erroneous belief, the researchers noted, may lead to assumptions that people who look well, and do not disclose that they are HIV-negative, are free from the virus.

The same researchers found that as support for the use of the criminal law increased, so did expectations of disclosure.45 The investigators expressed concern that the aggregate impact of criminal prosecutions is that it exacerbates misconceptions around responsibility for HIV prevention, "particularly the perception that the law now provides negative and untested men with added protection from HIV in sexual interactions."21

How media coverage may worsen the negative public health impact of prosecutions

Newspapers have the power to provide concrete knowledge, to influence fears about personal safety, to shape perceptions of who is considered a threat to public safety, and to influence how people perceived to be a threat are treated.

Professor Jeanne Flavin.46

As explained in the chapter: Harm, many people receive information about HIV through the popular media, primarily through news reports. The same is likely to be true for the provenance of most people's information about HIV and the criminal law, including police, prosecutors, judges, potential complainants and defendants.

All news media report stories in ways that are intended to reach their specific audiences, within the parameters of their format. However, some media outlets and the journalists who work within them are able to provide more detailed, factual HIV-related reporting because their format and audience allow that to happen. In other cases, the news media report stories about HIV in ways that work for their format and style – often grabbing their reader's or viewer's attention by focusing on stories that are "deviant, equivocal, and unpredictable" and covering them with a relatively small amount of text or factual explanation of the situation.47 This does not often fit well with helping readers understand the complexities of the individual case, the law as it relates to HIV exposure or transmission, or the wider issues of HIV-related harm, risk and responsibility.46 Consequently, some of the information people receive about HIV and its relationship with the criminal law may be provided through an inaccurate, and at times stigmatising, lens.5

Misinformation regarding HIV-related harm, risk and responsibility can reach the public even if the reporting uncritically records statements made by police, prosecutors or judges. For example, when a Texas court sentenced a 42-year-homeless man with HIV to 35 years in prison after finding him guilty of using his saliva as a 'deadly weapon', only three of the 175 mainstream news reports actually mentioned that HIV cannot be transmitted via spitting.48

When the media’s response is intended to be inflammatory, focusing on the role of the person with HIV who has been charged under criminal HIV exposure or transmission laws, sensationalist headlines and articles, written out of context, have vilified individuals, misrepresented facts on HIV-related harm, risk and responsibility, confused HIV exposure with transmission, and conflated intention to infect with knowledge of HIV-positive status (see reports on Criminal HIV Transmission. www.criminalhivtransmission.blogspot.com, 2007 to 2010).31 The impact of such stories on HIV-related stigma, as well as the general public's confusion over HIV-related harm, risk and responsibility is particularly noticeable when reading comments on news stories online (see reports on Criminal HIV Transmission. www.criminalhivtransmission.blogspot.com, 2007 to 2010).

International resources providing links to further information about HIV and the criminal law and accurate information on HIV-related harm, risk and responsibility can be found in the chapter: Details. 

Accurate, factual and impartial sources of information about HIV and the criminal law,49,50 and about HIV-related harm, risk and responsibility, are available. Those people who know they are living with HIV and who are in contact with HIV service providers, or members of high HIV-prevalence communities – such as gay men51 or women in southern Africa52 – may take advantage of these resources. However, not all information about HIV and the criminal law aimed at communities of high HIV prevalence is necessarily helpful, since stigmatising views may skew the information’s accuracy. See, for example, New Zealand: ‘Alleged “HIV predator” highlights gay community tensions’, 15 May 2009 at Criminal HIV Transmission, www.criminalhivtransmission.blogspot.com.

References

  1. ARASA/OSISA Report on the ARASA/OSISA Civil Society Consultative Meeting on the Criminalization of the Willful Transmission of HIV. ARASA/OSISA, 2007
  2. UNAIDS/UNDP Policy brief: criminalization of HIV transmission. Available online at: http://data.unaids.org/pub/%20BaseDocument/2008/20080731_jc1513_policy_%20criminalization_en.pdf, 2008
  3. UNAIDS/UNDP International Consultation on the Criminalization of HIV Transmission: Summary of main issues and conclusions. Geneva, 2008
  4. Burris S et al. The criminalization of HIV: time for an unambiguous rejection of the use of the criminal law to regulate the sexual behavior of those with and at risk of HIV. SSRN, 2008
  5. IPPF, GNP+, ICW Verdict on a Virus: public health, human rights and criminal law. Available online at: www.ippf.org/en/Resources/Guides-toolkits/Verdict+on+a+virus.htm, 2008
  6. Jürgens R et al. Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission. New York: Open Society Institute, 2008
  7. UNAIDS Reference Group on HIV and Human Rights Statement on criminalization of HIV transmission and exposure. Available online at: http://data.unaids.org/pub/Report/2009/20090303_hrrefgroupcrimexposure_en.pdf, 2009
  8. Athena Network 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. Available online at: www.gnpplus.net/images/stories/10_reasons_why_criminalisation_harms_women_smaller_file.pdf, 2009
  9. Grover A Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. United Nations Human Rights Council, Fourteenth Session (A/HRC/14/20), 27 April 2010
  10. Xtra! Beyond the Courts. www.xtra.ca, 1 October 2009
  11. O'Connor Law and disorder Positive Nation 126, October 2006
  12. Cairns G HIV prosecutions are reckless, say campaigners. aidsmap.com, available online at: www.aidsmap.com/page/1427848/, 18 July 2007
  13. Morton J et al. Sex crime. POZ Magazine, October 2009
  14. Plus News/IRIN Unease over new HIV transmission law. 12 December, 2008
  15. Mugisa A HIV group to fight anti-AIDS law. New Vision, 17 October 2008
  16. Kelly MJ Zambia: HIV/AIDS transmission and the law. Africa Files, 9 February 2010
  17. ARASA/OSISA Report on the ARASA/OSISA Civil Society Consultative Meeting on the Criminalization of the Willful Transmission of HIV. www.arasa.info, 2007
  18. Dodds C and Keogh P Criminal prosecutions for HIV transmission: people living with HIV respond. Int J STD & AIDS 17(5): 315-318, 2006
  19. Wainberg MA HIV transmission should be decriminalized: HIV prevention programs depend on it. Retrovirology 5: 108, 2008
  20. Burris S et al. Do criminal laws influence HIV risk behaviour? An empirical trial. Arizona State Law Journal 39: 467-517, 2007
  21. Dodds C et al. Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales. Reproductive Health Matters 17(34): 135-145, 2009
  22. Gorbach PM et al. Don’t ask, don’t tell: patterns of HIV disclosure among HIV positive men who have sex with men with recent STI practising high risk behaviour in Los Angeles and Seattle. Sex Transm Inf 80: 512-517, 2004
  23. Menadue D The Impact of the Criminalisation Issue on HIV-positive People. in Cameron S and Rule J (eds) The Criminalisation of HIV Transmission in Australia: legality, morality and reality NAPWA, 2009
  24. Lowbury R, Kinghorn GR Criminal prosecution for HIV transmission: a threat to public health. BMJ 333(7570): 666-67, 2006
  25. Australasian Society for HIV Medicine Guide to Australian HIV Laws and Policies for Healthcare Professionals. Online resource last updated 8 March 2010, available at: www.ashm.org.au, 2010
  26. Phillips M et al. HIV Transmission, the Law and the Work of the Clinical Team. British HIV Association (BHIVA)/British Association of Sexual Health and HIV (BASHH), 2010
  27. Quebec Court of Appeal R c DC [2008] QCCQ 629 (Full ruling only available in French; translated English excerpts available at: Bernard EJ ‘Canada: condom use no defence for HIV exposure liability’ (28 February 2008). Criminal HIV Transmission. www.criminalhivtransmission.blogspot.com), 2008
  28. CBC News 1 year sentence for HIV-positive woman guilty of assault. 9 July, 2008
  29. Power L et al. AIDS Assassins? – the impact of introducing criminal charges for HIV transmission in the UK. Sixteenth International AIDS Conference, Toronto, abstract MOPE0877, 2006
  30. Ridge D et al. Positive prevention: contemporary issues facing HIV positive people negotiating sex in the UK. Social Science and Medicine, 65 (4): 755-770, 2007
  31. Power L Unintended impacts of prosecutions for HIV transmission in England and Wales. Eighth AIDS Impact Conference, Marseille. Presentation 47.1, abstract 208, 2007
  32. Smith DM et al. A public health model for the molecular surveillance of HIV transmission in San Diego, California. AIDS 23, 225-232, 2009
  33. Schultz G AIDS: public health and the criminal law. St. Louis University Public Law Review 7: 65-113, 1988
  34. UNAIDS AIDS Epidemic Update 2009. Geneva, 2009
  35. Pinkerton SD et al. Infections prevented by increasing HIV serostatus awareness in the United States, 2001 to 2004. J Acquir Immune Defic Syndr 47: 354-357, 2008
  36. International AIDS Society IAS Urges New Focus on Art as Prevention, Calls for Immediate Global Action and Funding for Universal Access to HIV Therapy. 4 November, 2009
  37. UNAIDS Antiretroviral Treatment for Prevention. Press Release, 6 November 2009
  38. Bernard EJ New Zealand: ‘“HIV predator” case increases testing and stigma. Criminal HIV Transmission blog, 10 July 2009
  39. Wise DL Criminal Penalties for Non-disclosure of HIV-positive Status: Effects on HIV Testing Rates and Incidence. Kansas City: University of Missouri, 2008
  40. Dwyer JM Legislating AIDS Away: the limited role of legal persuasion in minimizing the spread of the human immunodeficiency virus. J Contemp Health Law Policy 9: 167-76, 1993
  41. Codere G HIV testing in Scotland and Glasgow in the wake of the Stephen Kelly case. Fourteenth International AIDS Conference, Barcelona, 7-12 July, Abstract WePeC6153, 2002
  42. Chalmers J Legal Responses to HIV and AIDS. Oxford: Hart Publishing, 2008
  43. Burris S Law and the social risk of health care: lessons from HIV testing. Albany Law Review 61 (3), 842-56, 1998
  44. Galletly CL and Pinkerton SD Conflicting messages: how criminal HIV disclosure laws undermine public health efforts to control the spread of HIV AIDS Behav. 10: 451-461, 2006
  45. Dodds C Homosexually active men’s views on criminal prosecutions for HIV transmission are related to HIV prevention need. AIDS Care 20 (5), 509-514, 2008
  46. Flavin J (Mis)Representing risk: headline accounts of HIV-related assaults. American Journal of Criminal Justice 25 (1): 119-136, 2000
  47. Ericson R et al. Representing Order: crime, law and justice in the news media. Toronto: University of Toronto Press, 1991
  48. Bernard EJ Texas jury concludes saliva of HIV-positive man a “deadly weapon”, sentenced to 35 yrs jail. aidsmap.com, available online at: www.aidsmap.com/page/1430404/, 16 May 2008
  49. NAT/THT Prosecutions for HIV Transmission: a guide for people living with HIV in England and Wales. May, 2009
  50. CATIE HIV Disclosure: a legal guide for gay men. March, 2009
  51. Xtra! Transcending the poz/neg divide. www.xtra.ca, 20 March 2009
  52. AIDS and Rights Alliance for Southern Africa Decriminalisation of Wilfull Transmission of HIV/AIDS www.arasa.info, 2010

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A writer and advocate on a range of HIV-related issues, Edwin has a particular specialism in HIV and the criminal law. He works with national and international HIV organisations, including the International AIDS Society, GNP+ and UNAIDS, as well having as a long association with NAM as a writer on this topic and as the former editor of HIV Treatment Update. To visit Edwin's blog and respond to posts click here.

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.
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This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.