In the midwestern American state of Michigan, prosecutors
and judges still consider HIV infection to be a death sentence and are
dismissive of scientifically grounded arguments about transmission risk and
life expectancy, an analysis of court transcripts has shown.
Moreover, heterosexual black men are at an elevated risk of
being pursued by the legal system for not disclosing their HIV status to a
sexual partner, Trevor Hoppe of the University of Michigan told the 19th
International AIDS Conference (AIDS 2012) in Washington DC yesterday.
The conference also heard from Nick Rhoades, who has himself
been jailed for not disclosing his HIV status, and from Marama Pala who regrets
being the first ‘victim’ to bring a case in New Zealand.
In Michigan, as in many other states of the US, the law does
not concern the actual transmission of HIV, but sexual contact when a person
with HIV has not disclosed their HIV status. The law defines sexual contact in
an extremely broad and inclusive way, so that even low-risk or no-risk
activities such as cunnilingus or a finger entering the vagina are covered. The
use of a condom is not a defence.
Trevor Hoppe searched police records, local newspaper reports
and court records in order to identify as many cases as possible, from 1992
(when the first Michigan case took place) to 2010.
From the 56 convictions he identified, he had enough
information to examine 30 in more detail. In only two of the 30 cases was there
an allegation of HIV transmission – in all others, the allegation was of
He compared the demographic profile of those who were
convicted with that of the local HIV-positive population. Whereas 37% of
defendants were black men who had had sex with women, just 14% of local people
with HIV belonged to this group. White men who had sex with men were less
likely to be convicted – 15% of defendants, but 39% of local people with HIV.
Most defendants settled the case through plea-bargaining (in
other words, they admitted guilt and did not have a full trial). In this case,
their average jail sentence was just over 20 months. Those individuals who
exercised their right to have a jury trial were punished more harshly – an
average sentence of over 50 months.
Transmission does not need to occur for a person to be guilty.
Trevor Hoppe examined the court transcripts of 26 cases in
detail. He was particularly interested in how the consequences of HIV infection
were described, and found that prosecutors and judges frequently made analogies
with death. Such analogies were actually more commonly used in recent years
than in the 1990s – occurring in six of seven cases from 2007 to 2010.
Moreover, the courts were usually sceptical and dismissive
of arguments about effective HIV treatment, the life expectancy of people with
HIV and actual transmission risks. Hoppe noted that the ‘expert witnesses’ were
not usually specialised researchers but officials from the local public health
department who often made inaccurate and exaggerated claims.
Nick Rhoades, who received a 25-year jail sentence in Iowa,
spoke to a press conference earlier in the day. Although Rhoades was charged
under a section of the law entitled ‘criminal transmission of human
immunodeficiency virus’, actual transmission does not need to occur for a person
to be guilty. Indeed, in Rhoades’ case, no transmission occurred, he used a
condom and his viral load was in any case undetectable.
He was put into a maximum security jail and kept in solitary
confinement for the first six weeks, only seeing visitors for 20 minutes a
week. His supply of antiretroviral drugs was interrupted on several occasions.
Following advocacy work, he was released from jail after 13
months, but at the price of spending the rest of his life as a registered sex
offender. This has made finding employment very challenging.
Rhoades noted that the state of Iowa spends at least US$65,000
a year on each person it incarcerates, but is currently cutting HIV prevention
and treatment budgets.
“Those in care and with undetectable viral loads are up to
96% less likely to [pass on] the virus, but we're cutting the funding away from
proven HIV prevention programmes while we're increasing costly prosecutions and
imprisonments of people like me living with HIV,” he said.
Coming from the other side of the judicial fence, Marama
Pala recounted her experience as the claimant or ‘victim’ in New Zealand’s
first HIV transmission case, brought in 1993 when she was 22 years old.
Soon after she tested HIV positive, the police asked her to
bring a complaint. “At the time I felt completely shattered from my diagnosis,”
she recounted. She felt that she was “pushed along” by the police, the course
of events and other people’s agendas.
“My experiences with the media were very detrimental to me,”
she told the press conference. “They not only demonised him, but demonised me –
there was a lot of negative publicity about what I should have done to protect
She now advocates for decriminalisation and regrets her
experience. “I didn't feel I had the chance to speak to him face-to-face, to
have some kind of closure or some discussion around what had happened,” she
said. “That was taken away from me.”
Criminalisation is a tool for intimate partner abuse, coercion and harassment
Brook Kelly of the US Positive Women’s Network said that the
laws of many American states served to criminalise the sexuality of women with
HIV – sex itself has become a crime.
Until late last year, all people testing HIV positive in
Mississippi had to sign a form in front of a Health Department official, which
acknowledged a series of ‘requirements’. One was the necessity of disclosing
HIV status before sex, even if condoms were used.
Extraordinarily – and unconstitutionally – another
requirement was the “necessity of not causing pregnancy or becoming pregnant”.
Women were asked to put their initials next to each requirement.
One testimony that she cited showed how fear of such laws often
has a debilitating effect on women’s day-to-day life and wellbeing:
“I refuse to be judged
by this disease for I am much, much more than the disease. So, I keep this a
secret. As a teacher I could lose my job. Not disclosing could get me jail
time. Therefore, I no longer date. It's difficult being a leper of the 21st
Kelly noted that when there are difficulties in
relationships, male partners can get the police involved, or threaten to do so.
Criminalisation is a tool for intimate partner abuse, coercion and harassment,
Edwin J Bernard said that, while many African countries have
introduced HIV-specific laws since 2004, there were no records of court cases
until more recently. He is now aware of cases in Cameroon, Togo, the Republic
of Congo, Zimbabwe, Botswana and Egypt.
While laws are frequently introduced in the name of women’s
rights, they often have a disproportionate impact on women, he said. For
example, four of six Zimbabwean cases have prosecuted women.
In a very recent Zimbabwean case, a woman was found guilty
of transmitting HIV to her husband – although there was a strong likelihood
that it was the husband who had in fact infected her. The only ‘evidence’ used
to suggest who had infected who was that the wife had tested HIV positive
whereas her husband had never taken a test. Zimbabwean human rights lawyers are
now appealing the conviction, based on it being unconstitutional.
But the countries where people with HIV have the greatest
risk of being prosecuted are all high-income countries. Edwin J Bernard
collates as many reports of cases as he can, compares these to the number of
people living with HIV in the country, and calculates the proportion of people
with HIV who have been prosecuted.
The country that prosecutes the greatest proportion of its
people with HIV is the United States of America. The laws used are state laws,
rather than federal laws, and many of the states in which prosecutions are most
likely are in the midwest – South Dakota, Idaho, Iowa, Michigan, Louisiana,
Tennessee, Illinois, Missouri, Indiana, Ohio and Oklahoma.
The other countries he ‘named and shamed’ are, in
order: Bermuda, Malta, Sweden, Australia, New Zealand, Finland, Norway, Austria,
Denmark, Canada, Czech Republic, Switzerland, Hungary and Singapore.
Two weeks ago, the Global Commission on HIV and the Law
issued its main report. Compiled by a group of statesman, experts and activists
the report addresses a number of areas, including the criminalisation of HIV
exposure and transmission, intellectual property laws and the rights of a
number of social groups who are at elevated risk of HIV infection.
Progressive reform is possible.
The report makes recommendations to governments on law
reform, arguing that laws that explicitly criminalise HIV transmission, HIV
exposure or failure to disclose HIV status must be repealed. Moreover,
individuals who have been convicted of such offences should have their cases
reviewed with a view to being pardoned.
And progressive reform is possible, as show by some examples that
Switzerland will soon revise its law on epidemics and is
expected to remove the draconian public health approach. Denmark suspended its
HIV-specific law in February 2011, following lobbying that drew the
government’s attention to scientific data on transmission risks and life
expectancy. In Norway, an independent committee is looking into law reform and
leading politicians of two political parties this week called for total
In Africa, Sierra Leone has redrafted its law so that it can
no longer be used to prosecute women for vertical transmission. Mauritius
removed its criminalisation statute in 2007. Finally, the AIDS Law Project in
Kenya is currently filing a constitutional petition to challenge their law on
the basis that it is discriminatory, broad and vague.