The same conclusion was asserted even more forcefully by HIV-positive advocate, Julian Hows, who presented results of an updated scan by the Global Network of People Living with HIV/AIDS (GNP+) and the Terrence Higgins Trust (THT) of criminal HIV exposure and transmission laws in 53 countries in Europe and Central Asia.
A 2004 rapid scan, published in 2005, previously revealed that out of the 45 European countries surveyed, in at least 36, the actual or potential transmission of HIV can constitute a criminal offence.
During his presentation, Mr Hows revealed that Sweden, Switzerland and Austria remained at the top of the prosecutions league table, followed by Denmark, Finland, France, Italy, Netherlands, Norway, and the UK.
Only Albania, Bulgaria, Estonia, Luxembourg, and Slovenia had no existing or HIV-specific laws criminalising HIV exposure or transmission, although reliable data were lacking for Greece, Monaco, Portugal, Spain, and Uzbekistan.
However, Mr Hows pointed out that data on prosecutions is difficult to obtain in many countries and that the data may “significantly underestimate prosecutions.”
He noted that in the United Kingdom although there have ‘only’ been 16 prosecutions and twelve convictions to date, there have been more than 100 police investigations that did not reach the court, “but which also had devastating effects on individuals, their families and their communities” and suggested that this may also be the case in the other countries that currently prosecute HIV exposure or transmission.
He added that information on the enforced quarantine of HIV-positive individuals perceived to be a threat – such as is the case in Sweden – is also difficult to ascertain.
Since 2004, six countries have enacted or proposed laws that criminalise HIV exposure or transmission, including Albania, Moldova, Montenegro, Kyrgyzstan, Serbia and Turkey. In addition, Malta, Poland, Kyrgyzstan and Serbia can now be added to the list of countries that have prosecuted at least one individual for HIV exposure or transmission.
One bright spot, noted Mr Hows, is advocacy that has – or may have – a positive impact in four countries.
In Switzerland, the Swiss Federal AIDS Commission’s statement regarding the lack of infectiousness of individuals on effective treatment may reverse the trend that has seen ten prosecutions and eight convictions in the past four years.
However, last month the highest Swiss court ruled that all people with HIV can be criminally liable for HIV transmission, even if untested.
In the Netherlands, no prosecutions or convictions have taken place since 2005 due to two Dutch Supreme Court rulings in 2005 and 2007 following intense discussion between legislators, lawyers and civil society organisations.
However, there has been one prosecution for intentional transmission of HIV by a needle filled with HIV-infected blood.
In the United Kingdom, new guidelines by the Crown Prosecution Service have clarified some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, and given the high threshold of evidence required it seems likely that prosecutions will become increasingly rare – in fact the last three attempts to prosecute reckless HIV transmission in England and Wales have failed.
And, although there has been no change in law, the Ukrainian Network of People Living with HIV/ AIDS has had success in highlighting the unreliablity of phylogenetic testing and have avoided several prosecutions being initiated.
Mr Hows concluded, however, that “there is a slow ‘creep’ of increasing criminalisation across the countries being studied,” and that “laws are being introduced or being made more punitive without any regard or consideration for the evidence.”
He noted that “advocacy efforts to decriminalise where possible, mitigate where it is not, and ensure that laws are not introduced where there are none – are mainly noticeable by their absence”.