Recent trends in high-income countries

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Curiously, the advent of powerful new drugs with the potential to greatly extend the lives of people living with HIV does not seem to have reduced the appeal of the application of the criminal law to potential or actual HIV exposure or transmission in high-income countries.

In the first decade of the 21st century, many countries saw prosecutions for HIV exposure or transmission either begin (for example, Estonia, Poland, Singapore and the United Kingdom), or take place more frequently (for example, Australia and Canada, the latter of which had its first-ever conviction for murder subsequent to sexual transmission in 20091). Other high-income countries, including Denmark, Malta and Slovakia, have only recently enacted HIV-specific laws.

In these high-income settings, in which HIV epidemics disproportionately affect men who have sex with men, migrants and people who inject drugs, an inordinate number of heterosexual men have been prosecuted. In particular, migrant heterosexual men from countries where HIV is endemic,2 and/or those with mental illness,3 seem particularly prone to prosecution.

Commentators4,5,6 have suggested that this may be due to a variety of factors, including:

  • Heterosexual populations may be less likely than gay men to know about or adopt the concept of mutual responsibility, as HIV-prevention information has been targeted to higher-risk sub-populations.

  • Women generally have fewer sexual partners than either gay men or heterosexual men, so it may be easier to trace their sexual partner(s).

  • Women may more readily identify as 'victims' than gay men.

  • Individual and institutionalised cultural factors, including xenophobia, racism and homophobia may be at play.

  • There may be a lack of capacity by the criminal justice system to recognise and deal effectively with mental health issues.

References

  1. Bernard EJ Swiss court accepts that criminal HIV exposure is only 'hypothetical' on successful treatment, quashes conviction. www.aidsmap.com, 25 February 2009
  2. Bernard EJ African Immigrant Damnation Syndrome. GNP+ Global Criminalisation Scan, December 2008
  3. McDonald A and Worth H Mad and bad: mental illness, intellectual disability, and the law. Sexuality Research and Social Policy Journal 2(2): 51-62, 2005
  4. Worth H et al. Introduction to reckless vectors: the infecting “other” in HIV/AIDS law. Sexuality Research and Social Policy Journal 2(2): 3-14, 2005
  5. Weait M Intimacy and Responsibility: the criminalisation of HIV transmission. Abingdon, Oxon: Routledge-Cavendish, 2007
  6. Cameron S et al. International trends towards the criminalisation of HIV transmission. UK, New Zealand and Canada: laws, cases and response. in Cameron S and Rule J, The Criminalisation of HIV Transmission in Australia: legality, morality and reality Silver Spring: National Association of People with Aids (NAPWA), 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.
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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.

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.