Preface

It is a pleasure and a privilege for both of us to endorse this important new book on HIV and the criminal law from NAM – one of us is living with HIV, each of us has been closely involved for many years in the struggle for justice, rationality and fairness in the epidemic, and both of us feel deeply that criminal laws and prosecutions are in most instances wrong-headed, counter-productive and damaging to effective prevention, treatment and anti-stigma initiatives.

The book is not only thoroughly researched and authoritative – it is very timely, since an epidemic of ill-judged laws and prosecutions targeting people living with HIV is superimposing itself upon the heavy cost that AIDS is already exacting from men and women throughout the world. This is particularly so in Africa, where many states have adopted punitive laws, but also in Western Europe and North America.

The book is timely for a further reason. In June 2010, the United Nations Development Programme (UNDP) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) launched the Global Commission on HIV and the Law. 

Both of us agreed to serve on the Commission. We did so because as lawyers we have always believed that laws have a central role to play in the epidemic – but that those laws should be rational, based on sound epidemiology and physiology, and directed at diminishing rather than increasing the impact of the epidemic.

Hence the Commission’s work – which is to see how laws can support, rather than block, effective HIV responses and to develop actionable, evidence-informed and human rights-based recommendations – seemed to be well-timed and important.

Over the next 18 months, the Commission will focus on some of the most difficult legal and human rights issues in HIV. These include criminalisation of behaviours and practices such as drug use, sex work and consensual adult same-sex sexual relations.

The Commission will also explore the increasing trend across the world towards punishing non-disclosure of HIV, and exposure to and transmission of HIV. The devastating human and legal consequences of these laws will form one of our focuses.

For even though the epidemic has been identifiably present for nearly 30 years, there is still much work to be done – not only in bringing life-saving treatment to everyone who faces death from AIDS, but in shaping insights about how best to deal with AIDS. The grief, pain and loss the pandemic inflicts can make us angry. Ignorance of how HIV is transmitted can make us fearful. HIV-related stigma can make us respond irrationally to those living with the virus.

The public – and policy- and law-makers – may feel frustration with the slow progress being made in HIV prevention. That spawns the temptation to demand more draconian measures – including criminal measures.

However, profound ethical and legal problems arise from the blunt, often misshapen and ill-directed instrument of the criminal law.

As in any area of the law, it is imperative that we base our policies and programmes not on ignorance, fear, stigma, political expediency or pandering to public opinion. That leads to what one of us has dubbed "highly inefficient laws". We must be rational. We must judge fairly. And calmly. Good laws, and good policy responses, can be founded only on good data. We must look not for any laws – but for effective and just laws that help slow the spread of HIV. We must learn from the best experiences of others, while recognising the unique character of each legal jurisdiction.

This means that policymakers, law enforcement officials, prosecutors and judges, and those reporting and writing about such things, must work with caution.

This book will, we think, be very helpful to the Commission. By exploring whether laws, and individual prosecutions for potential or actual HIV exposure or non-intentional transmission, do more harm than good to public health and human rights objectives, this book feeds right into the work of the Commission.

The book is well-structured, carefully stated and authoritative. It argues a point – that criminal laws and prosecutions should be used with dread – but does so with insight, evidence and empathy. 

Through its information and the authority with which it uses its arguments, this book makes an important contribution to global understanding of policy in the epidemic.

For the first time a history of the global reach of laws and prosecutions, and all of the evidence – covering the history and all of the medical, social, ethical, political and judicial issues – are gathered together in one place, helping to contextualise the impact of the criminal law on individuals living with, and vulnerable to, HIV and how such laws and prosecutions impact upon society.

By helping us to understand the impact of criminal law on the spread of HIV, and on the lives of those living with the virus, this book establishes its importance and authority within the writing on the epidemic.

The Hon. Michael Kirby AC CMG

Edwin Cameron, Justice of the Constitutional Court of South Africa