The role of the law in the global response to HIV

The criminal law is most often used to reflect a community's standards for socially acceptable behaviour in order to protect people from serious harm. By setting these standards, and punishing individuals who fall short, the criminal law serves four theoretical functions:¹¹

• It deters individuals and members of society from engaging in harmful behaviour in the future
• It separates individuals who have engaged in harmful behaviour from society for a period of time by imprisoning them, which incapacitates them from doing further harm
• This period of incapacitation also serves to rehabilitate individuals, preventing them from doing further harm once they leave prison
• The entire process provides retribution and sometimes restitution, both to victims of this behaviour and to society as a whole.

New HIV-specific laws continue to be enacted, notably in sub-Saharan Africa and parts of Asia. In the United States, Canada, Europe and Oceania, there have been signs of increasing enthusiasm for prosecuting people under existing HIV-specific laws, leading to more convictions. The majority of rulings from the highest judicial bodies in many high-income countries with low HIV prevalence have further supported the use of the criminal law for cases of potential or actual HIV exposure or transmission. Read more in the chapter: Laws

Efforts have been made to apply criminal law in the context of potential or actual HIV exposure and transmission in the following circumstances:

Consensual sex. Most prosecutions worldwide have been for consensual sexual acts. In the majority of these cases, HIV transmission did not occur; rather, the partner was exposed to the risk of acquiring HIV but did not actually acquire it. In the minority of cases in which the partner later tested HIV-positive, proof that the defendant intended to harm the partner and/or was the source of the infection has often been absent or less than definitive.

Other consensual risk-taking behaviour. The consensual sharing of needles or syringes by someone who knows they are living with HIV is also against the law in some jurisdictions, although prosecutions are extremely rare.

Non-consensual acts. Many jurisdictions take the position that when perpetrators of non-consensual sexual acts, such as rape or child abuse, know themselves to be HIV-positive, their HIV status should be considered an aggravating factor. Some jurisdictions prosecute and convict individuals living with HIV for non-consensual acts that pose only a theoretical risk of HIV transmission, such as spitting, biting and scratching. A few jurisdictions have also prosecuted, or have a law that makes it possible to prosecute, a woman who passes HIV to her baby during pregnancy, birth or breastfeeding. A few people, some of them living with HIV, have also used needles or syringes containing HIV-infected blood as weapons, threatening to infect, or actually infecting, others.

Blood donation. Some jurisdictions make it illegal for someone with HIV to donate blood, although prosecutions are rare.

UNAIDS,⁶ the United Nations General Assembly Human Rights Council¹² and others¹³ strongly argue that the criminal law should only ever be used as a last resort in situations of HIV transmission, to deal with rare and egregious cases of intentional HIV transmission.

There is also concern over miscarriages of justice due to lower standards of proving culpability than might be expected during fair and rational legal processes. This is further explored in the chapter: Proof

Since the turn of the 21st century, the international community has become increasingly concerned about the use of the criminal law not as a last resort but as a purported ‘tool’ for HIV prevention. UNAIDS⁶ and others^14,13 argue that the significant personal and financial resources devoted to a limited number of individual cases within the criminal justice system could be more productively used to expand evidence-informed and human rights-based HIV-prevention efforts.

A great deal of debate^{15,16,6,5,13,17,14,18,19} has taken place about the use of the criminal law in the following situations in particular:

• Perceiving consensual sex in the absence of disclosure of HIV-positive status as a physical or sexual assault when there was no intention to harm and when this may actually be a consequence of communication failures within relationships.
• Prosecuting consensual sex even when there was prior disclosure of HIV-positive status and/or that posed a very low risk of HIV infection and that did not result in transmission.
• Applying enhanced prison sentences to alleged HIV ‘exposure’ during non-consensual acts that pose very little or no risk of HIV infection, e.g. spitting, biting and scratching.
• Applying the criminal law to mother-to-child transmission of HIV during pregnancy, or following birth via breastfeeding.

As both the number of new HIV-specific criminal laws and prosecutions under general laws continues to increase, so does international concern.^{6,13 14,20,21} The main point of contention is whether applying the criminal law to individual cases of potential or actual HIV exposure or transmission does more harm than good in terms of the impact on public health and human rights.

Proponents of the use of criminal law claim that they do not have to prove whether the use of the criminal law is counterproductive to public health and human rights because "the criminal law's deterrence effect has been demonstrated time and time again...If an argument is made that in a specific context (e.g. where sex is involved) the deterrence effect does not work, empirical evidence must be provided".²²

The impact of the known and potential effects of the use of the criminal law to mandate disclosure of HIV status prior to sex and/or to prosecute individual cases of alleged or actual HIV exposure or transmission can be found in the chapter: Impact

However, opponents claim the opposite: "The case against criminalization is strong, built not just on research and experience but also a commitment to human rights. Whilst more data will be useful, the burden of proof should be placed on proponents of criminalization to show that it meets public health goals."¹³

In some jurisdictions, public health law may provide greater flexibility than the criminal law in protecting both individual rights and public health. Public health laws can: mandate counselling and treatment; order individuals to refrain from behaviour that may expose others to HIV; and/or incapacitate people via quarantine or hospitalisation. In these ways, it may be far more effective in achieving three of the criminal law's four primary objectives – deterrence, rehabilitation and, in some cases, incapacitation. Furthermore, it may be able to accomplish these aims in a highly individualised way, addressing only people whose behaviour necessitates intervention, thus avoiding many of the suspected negative public health consequences of criminalisation.

Public health laws have been used as an alternative to criminal HIV exposure or transmission laws in some parts of the United States,²³ some Canadian provinces²⁴ and some Australian states.²⁵ National guidelines from Australia, produced in 2008 following several high-profile criminal HIV exposure and transmission cases, provide an example of how a graduated public health approach may work when a person living with HIV, who is having difficulties with safer sex or disclosure, is identified by healthcare workers. Nevertheless, advocates remain concerned that the guidelines do not clarify exactly when and how the public health department will involve the police.

Case study: Sweden. When public health laws can violate the right to liberty and security. Sweden's Communicable Diseases Act requires all people who know they are living with HIV to both disclose that they are HIV-positive to potential sexual partners and also to practise safer sex. Those who are identified as not following these rules can be forcibly isolated, and it is thought that at least 100 people living with HIV (out of a total HIV-positive population of 8000) have been subject to forced isolation. In 2005, the European Court of Human Rights held that Sweden had violated the right to liberty and security of an HIV-positive man forcibly detained for a period eventually totalling almost seven years, with the stated objective of preventing him from transmitting HIV to sexual partners, although his conduct was never adjudged to be criminal under Swedish law. The court found that other, less severe, measures had not been explored, and awarded damages against Sweden for the violation of the complainant’s rights under the Convention. The act was amended in 2004, emphasising less draconian measures, such as counselling, education and support, and the National Board for Health Welfare now monitors the support given to people living with HIV who have ended up in criminal court.²⁶

As the case study from Sweden suggests, public health law can also be subject to abuse, since it has fewer due process protections attached to it than criminal law. Consequently, policymakers should be aware that when public health law is applied to HIV-related cases, appropriate attention should be given to due process.

In addition, many jurisdictions, particularly those in low- and middle-income countries, may have outdated public health laws or suffer from lack of sufficient capacity to properly enforce them. In these countries, devoting already scarce resources to public health authorities to deal with such cases under public health law is unlikely to be an option.⁵