The role of the law in the global response to HIV

Edwin J. Bernard
Published: 18 July 2010

Twitter

  • DeBalie is filling fast so register now for Beyond Blame 2018: Challenging HIV Criminalisation, Amsterdam, Monday 2… https://t.co/FTA2WzVjt0 24 May 2018
  • RT @KELINKenya: .@AIDS_Free_World’s Legal Consultation Centers provide delegates and the public with free with attorneys on #HIV & law. Are… 23 May 2018
  • We're almost half-full already, so if you want to share your experiences, or learn more about, ending HIV criminali… https://t.co/skvEu5Z3yY 23 May 2018
  • RT @HIVJusticeNet: Register now for #BeyondBlame2018: Challenging #HIVCriminalisation De Balie, Amsterdam, 23 July 2018 #HIVJusticeWorldwid17 May 2018
  • RT @Beyond_Positive: NEW BLOG: 'Changing my mind on HIV by criminalisation' by @PatchworkSteve “If you had a dog, and that dog had rabies… 10 May 2018
  • Register now for #BeyondBlame2018: Challenging #HIVCriminalisation De Balie, Amsterdam, 23 July 2018… https://t.co/9xAvewQRBV 09 May 2018
  • Register now for #BeyondBlame2018: Challenging #HIVCriminalisation, De Balie, Amsterdam, 23 July 2018… https://t.co/90XJUNnqFj 09 May 2018
  • Mexico: Supreme Court finds Veracruz law criminalising ‘wilful transmission’ of HIV and STIs to be unconstitutional… https://t.co/GhT3Fbun0y 01 May 2018
  • RT @Bojorquez: The Mexican Supreme Cort rules unconstitutional to criminalize people living with HIV/AIDS and other STI's in the state of V… 01 May 2018
  • RT @EbaPatrick: Les ONG francophones se réunissent pour étudier les stratégies contre la pénalisation du VIH #AFRAVIH2018 @MalecheAllan @HI27 Apr 2018
  • RT @MalecheAllan: In 2014 we worked with @commonwealthorg to analyze our HIV laws in Kenya & identified the punitive ones https://t.co/70Gq… 27 Apr 2018
  • RT @UNDP: 6 years ago, @HIVLawCom showed the 🌎 how bad laws & policies are holding back progress on HIV. It’s time to revisit the discussio… 27 Apr 2018
  • RT @Synergiaihr: Edwin J. Bernard, @HIVJusticeNet : criminalization of HIV is ineffective & targets vulnerable communities. “Kerry is HIV p… 27 Apr 2018
  • RT @AAI_AIDSwatch: @HIVJusticeNet Edwin Bernard speaks to the need to educate lawmakers who think they are doing good by introducing #hiv t… 27 Apr 2018
  • RT @napwha: We've two ideas for the cover of the upcoming issue of Positive Living. Which one we run is up to you: white or black..? https:… 11 Apr 2018
  • RT @kenpinkela: The Eloquent and Inspiring Justice Edwin Cameron - #Stigma and the Role of Courts: The Disquieting Case of #AIDS https://t.… 10 Apr 2018
  • RT @iasociety: 68 countries and 98 jurisdictions have specific #HIV criminalization laws in place. IAS Member and @HIVJusticeNet Global Coo… 10 Apr 2018
  • Thanks to Cecile Kazatchkine from @AIDSLAW for leading on HIV JUSTICE WORLDWIDE's support of an emerging Francophon… https://t.co/Q18WDqaWTC 10 Apr 2018
  • Thanks @nicheholas. As you know, the indefatiguable @o_g_ford pulled all this together for @uspwn on behalf of HIV… https://t.co/fX6ZdLBW5w 10 Apr 2018
  • RT @AIDSLAW: Webinar: Making Media Work for HIV Justice - April 5 11 a.m. ET. Explore material from the HIV Justice toolkit, and hear from… 04 Apr 2018

AIDS makes us angry. But in law we must be rational. We must recognise the limitations of our discipline. We must acknowledge that law has only a partial success in achieving behaviour modification: particularly where sexual, drug-use or other human pleasures are involved. We must take as our guiding principle for law something more than the creation of a response to a dangerous epidemic. We must look for effective and just laws which contribute to slowing the spread of AIDS. We must seek to learn from the experience of others, whilst recognising the unique character of each legal jurisdiction.

Justice Michael Kirby, High Court of Australia, 1995.1

There is a clear role for the use of law in the response to HIV. The United Nations General Assembly's 2001 Declaration of Commitment states: “By 2003, enact, strengthen or enforce…legislation…to eliminate all forms of discrimination against, and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS..; in particular to ensure their access to, inter alia…legal protection, while respecting their privacy and confidentiality; and develop strategies to combat stigma and social exclusion…”.2

This was reaffirmed in the United Nations General Assembly’s 2006 Political Declaration on HIV/AIDS which stated that “the prevention of HIV infection must be the mainstay of national, regional and international responses to the epidemic” and which pledged “to promote a social and legal environment that is supportive of and safe for voluntary disclosure of HIV status".3

These international declarations envisage using the law in a protective way. Edwin Cameron, Justice of the South African Constitutional Court, and one of the world’s leading experts on HIV and the law, argues that the primary purpose of the law in response to HIV is to contain the epidemic and to mitigate its impact. “It should aim to save the uninfected from infection and to protect the infected from the unjust consequences of public panic," he states.4 In order to achieve this, he asserts, the role of the law should be primarily protective.

Laws can facilitate policies that allow the implementation of a combination of interventions that, for example: provide large-scale HIV education; make condoms and other HIV-prevention tools (including ART) available; integrate prevention of mother-to-child HIV transmission programmes into standard antenatal care; and endorse the distribution of sterile injection equipment to people who use drugs.[ref][ref]

UNAIDS also recommends that governments address the root causes underlying vulnerability to HIV infection, such as income and gender inequality, sexual violence, discrimination and problematic substance use.5

Since women are both biologically and socio-economically more vulnerable to acquiring HIV, UNAIDS further recommends that governments:

  • strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and girls.
  • improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and girls.
  • support women’s equality and economic independence through legislation, programmes and services.6

Nevertheless, notes Justice Cameron, "the law is a blunt instrument. Dominant social policy can be mistaken in how it seeks to employ the law, and the actual implementation of even well-directed policy can be crude and misjudged. Hence the intrusion of legal instruments and mechanisms in public health can be counter-productive and harmful."4

To these ends, the law can be a protective 'shield' or a punitive 'sword'.  It has been argued that, in the context of HIV, punitive laws can create legal barriers that impede effective HIV/AIDS interventions by penalising people with – or at heightened risk of acquiring – HIV through criminal sanctions or other policies.7

For example, in many jurisdictions around the world, a substantial number of individuals at highest risk of acquiring HIV – notably people who use drugs, sex workers, and men who have sex with men – are criminalised, and yet it is argued by UNAIDS and its partners that punitive approaches often drive the targets of these punitive laws underground, limiting their ability to access HIV information, prevention, treatment, care and support.8

Consequently, UNAIDS recommends the removal of punitive laws, policies and practices that block effective AIDS responses, and greater support to law, law enforcement and access to justice that protects the human rights both of people living with HIV and those who are HIV-negative, and supports access to programmes that are proven to reduce the risk of HIV transmission. Recommended reforms to legislation and the legal environment include:

  • removing criminal offences against men who have sex with men
  • removing criminal sanctions on sex work so as to promote empowerment of sex workers
  • allowing the provision of harm-reduction programmes, informed by evidence, for people who use drugs
  • enacting privacy and anti-discrimination laws that protect people living with HIV
  • strengthening legal prohibitions on all forms of gender-based violence, including rape within marriage
  • enacting laws that ensure that sexual-health education and HIV-prevention services and commodities are available to all people living with, and at risk of acquiring, HIV.9

Applying the criminal law to cases of potential or actual HIV exposure and transmission

Any attempt to press the criminal law into service for the purpose of furthering the public health goal of reducing the spread of the AIDS virus will be expensive, ineffective, and counterproductive. That is not to say that there will be no cases where transmission, or risk of transmission, of the AIDS virus would merit prosecution. One of the principal purposes of the criminal law is to prevent injury to people. Where the evidence is solid that the actor intended to transmit the virus and chose an effective way to do so, or knowingly created a high risk of transmission, prosecution may be justified. However, public health interests are best served by encouraging those at risk to come forward to be tested, counseled, and otherwise helped in this very difficult time...If history is any indication, resisting the unwise use of coercion generally, and the criminal law in particular, will not be easy.

Professor Gene Schultz, St Louis University, United States, 1988.10

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.

Why is there concern over the application of the criminal law to potential or actual HIV exposure or transmission?

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 others14,13 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 debate15,16,6,5,13,17,14,18,19 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

The role of public health law in the global response to HIV

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

References

  1. Kirby M HIV and Law - A Paradoxical Relationship of Mutual Interest. IUVDT World STD/AIDS Congress, Singapore. Available online at www.lawfoundation.net.au/ljf/app/&id=E916CEB7E3CF905ECA2571A8007FC70E, 1995
  2. United Nations General Assembly Declaration of Commitment on HIV/AIDS. Available online at: www.un.org/ga/aids/coverage/FinalDeclarationHIVAIDS.html, 2001
  3. United Nations General Assembly Political Declaration on HIV/AIDS. Available online at: http://www.unfpa.org/public/global/pid/1105, 2006
  4. Cameron E Using the law in the HIV pandemic: sword or shield? London: Birkbeck College, 28 June 2007
  5. UNAIDS/UNDP International Consultation on the Criminalization of HIV Transmission: Summary of main issues and conclusions. Geneva, 2008
  6. 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
  7. Gable L et al. A global assessment of the role of the law in the HIV/AIDS epidemic. Public Health 123(3):260-4, 2009
  8. UNDP Removal of punitive laws essential for effective AIDS responses. Press release, 10 August 2009
  9. GNP+, UNAIDS Positive Health, Dignity and Prevention. Technical Consultation Report. Amsterdam, 2009
  10. Schultz G AIDS: public health and the criminal law. St Louis University Public Law Review 7: 65-113, 1998
  11. Gostin L The politics of AIDS: compulsory state powers, public health, and civil liberties. Ohio State Law J. 49(4):1017-58, 1989
  12. United Nations General Assembly Human Rights Council Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Anand Grover. Office of the United Nations High Commissioner for Human Rights, April 2010
  13. 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
  14. Jürgens R et al. Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission. New York: Open Society Institute, 2008
  15. UNAIDS Criminal law, public health and HIV transmission: a policy options paper. UNAIDS, Geneva. Available online at www.data.unaids.org/Publications/IRC-pub02/JC733-CriminalLaw_en.pdf, 2002
  16. ARASA/OSISA Report on the ARASA/OSISA Civil Society Consultative Meeting on the Criminalization of the Willful Transmission of HIV. www.arasa.info, 2007
  17. 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
  18. 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
  19. 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
  20. Cameron E Criminalization of HIV transmission: poor public health policy. HIV/AIDS Policy & Law Review 14 (2), December 2009
  21. Washington Times Growing chorus disputes need to tell HIV status. Available online at: www.washingtontimes.com/news/2010/apr/14/growing-chorus-disputes-need-to-tell-hiv-status, 14 April 2010
  22. Schuklenk U Should we use the criminal law to punish HIV transmission? International Journal of Law in Context 4 (3): 277-284, 2009
  23. Hodge JG and Gostin LO Handling cases of willful exposure through HIV partner counselling and referral services. Women's Rights Laws Reporter 23 (1): 45-62, 2001
  24. Klein A Criminal law, public health, and governance of HIV exposure and transmission. The International Journal of Human Rights 13(2/3): 251-278, 2009
  25. Australian Government National Guidelines for the Management of People with HIV Who Place Others at Risk. Available online at: www6.health.gov.au/internet/main/publishing.nsf/Content/phd-hiv-guideline-at-risk, April 2008
  26. Urwitz V New demands on counselling. in Report on HIV Sweden's conference on HIV and Criminal Law Stockholm, 9 June 2009
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.
Community Consensus Statement on Access to HIV Treatment and its Use for Prevention

Together, we can make it happen

We can end HIV soon if people have equal access to HIV drugs as treatment and as PrEP, and have free choice over whether to take them.

Launched today, the Community Consensus Statement is a basic set of principles aimed at making sure that happens.

The Community Consensus Statement is a joint initiative of AVAC, EATG, MSMGF, GNP+, HIV i-Base, the International HIV/AIDS Alliance, ITPC and NAM/aidsmap
close

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.