Conclusion

Edwin J. Bernard
Published: 18 July 2010

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Criminalisation misplaces the moral onus of self-protection and shifts the burden of preventing transmission to one person instead of recognising it as shared by two. This is a hard but necessary thing to say. HIV has been around for three decades, during which the universal public health message has been that no one is exempt from it. So the risk of getting HIV must now be seen as an inescapable fact of having unprotected sex...We cannot pretend that the risk is introduced into an otherwise safe encounter by the person who knows or should know he has HIV. The risk is part of the environment, and practical responsibility for safer sex habits rests on everyone who is able to exercise autonomy in deciding to have sex with another.

Justice Edwin Cameron, South Africa Constitutional Court, 2008.1

Legal and ethical commentators have suggested that laws which place a greater burden of the responsibility of HIV prevention on the diagnosed HIV-positive individual may be unfair and one-sided.1,2,3,4 Legal academic Matthew Weait, referring to the role of the HIV-negative sexual partner, says, “[T]he law ignores my risk-taking, my irresponsibility and legitimates my gullibility.”5

Legal ethicists Bennett, Draper and Frith believe that everyone has a general duty not to assume their partner is HIV-negative. “In many cases of HIV transmission, at least via consensual acts,” they note, “it seems probable that the responsibility for any resulting harm is, in some sense, held jointly by both partners.”6

Since the vast majority of people living with HIV in the world have not been tested and are unaware of their status,7 and most cases of sexual HIV transmission take place during sex between two consenting adults, neither of whom is aware that one them is living with HIV,8 it has been suggested that people who have been tested and know that they are HIV-positive are, in fact, being more 'responsible' than those who have not been tested and make assumptions about their status.9

In fact, laws in a handful of jurisdictions criminalise HIV transmission by people who “ought to have known” their status, but did not. However, UNAIDS argues that to increase the scope of criminal liability beyond those with diagnosed HIV infection to those who think they may be infected, or to those that it is felt ought to know they are or may be HIV-positive casts the net of criminal law far too broadly, and is likely to open the door to stigmatised attitudes and prejudice against the marginalised individuals who are often considered at 'high risk' of HIV.10

In a broader analysis of whether the application of the criminal law to potential or actual HIV exposure or transmission produces ‘just outcomes’, it may be appropriate to consider both parties' responsibility to protect themselves during mutually consensual sex. Since both partners may make the identical mistake of assuming that a lack of disclosure means the other person has the same serostatus, there is a question of fairness to be asked if only the diagnosed HIV-positive partner is criminally liable. The discussion of responsibility might be further widened to consider an obligation upon HIV-negative people to try to understand why some HIV-positive people have difficulties disclosing their status.

Case study: Singapore and Switzerland – how two jurisdictions broadened criminal liability to include the undiagnosed.

Singapore enacted an HIV-specific law in April 2008 that further broadened iability for prosecution under existing HIV-specific laws, making it a crime for a person who is unaware of their HIV status but has "reason to believe" they may have the virus due to a history of 'high risk' sexual behaviour if they have sex without informing a sexual partner, or without taking "reasonable precautions" to protect them.11

In July 2008, Switzerland's highest court – the Federal Court in Lausanne – ruled that an undiagnosed individual was culpable under existing HIV-specific laws when he was aware of a 'high risk' sexual past, and had unprotected sex that transmitted HIV without first disclosing that sexual history.12

References

  1. Cameron E HIV is a virus, not a crime: Criminal statutes and criminal prosecutions – help or hindrance? Plenary session, 17th International AIDS Conference, Mexico City, 2008; available at www.tac.org.za/community/files/MexicoPlenaryCrim3drAug08.pdf (accessed 2 August 2010), 2008
  2. Weait M Intimacy and Responsibility: the criminalisation of HIV transmission. Abingdon, Oxon: Routledge-Cavendish, 2007
  3. Burris S, Cameron E, Clayton M The criminalisation of HIV: time for an unambiguous rejection of the use of criminal law to regulate the sexual behavior of those with and at risk of HIV. Social Science Research Network, 2008
  4. Jürgens R et al. Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission. New York: Open Society Institute, 2008
  5. Weait M Taking the blame: criminal law, social responsibility and the sexual transmission of HIV. Journal of Social Welfare and Family Law 23(4) 441-457, 2001
  6. Bennett R et al. Ignorance is bliss? HIV and moral duties and legal duties to forewarn. Journal of Medical Ethics 26:9-15, 2000
  7. WHO Towards universal access: scaling up priority HIV/AIDS interventions in the health sector. Geneva, 2009
  8. Marks G et al. Meta-analysis of high-risk sexual behaviour in persons aware and unaware they are infected with HIV in the United States. JAIDS, 39(4):446-53, 2005
  9. Dixon-Mueller R & Germain A HIV testing: the mutual rights and responsibilities of partners. The Lancet 370 (9602):1808-1809, 2007
  10. UNAIDS/UNDP International Consultation on the Criminalization of HIV Transmission: Summary of main issues and conclusions. Geneva, 2008
  11. Bennett S HIV Ignorance Is No Defense in Singapore Plan to Curb Risky Sex. Bloomberg, 12 February 2008
  12. Bernard EJ Swiss court rules all people with HIV can be criminally liable for transmission, even if untested. aidsmap.com. Available online at www.aidsmap.com/page/1430883, 18 July 2008
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.

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