October 25, 2012
This article originally appeared on PositiveLite.com, Canada's Online HIV Magazine. It is being reposted here in two parts.
Read part one: "Crime and Punishment: An International HIV Disclosure Dilemma."
As far as the United States and Canada are concerned, the HIV criminalization cases there have been well documented; leading to various degrees of outrage from LGBT and HIV groups alike. Probably the best known is the homeless man who was given thirty five years for spitting at a police officer in 2008, with his saliva being declared a "deadly weapon." This in spite of the fact that nobody has ever proved that saliva is a medium for transmitting HIV and the fact that the officer didn't contract HIV. This case was highlighted in the same year by South African judge, Edwin Cameron, in a speech about criminal transmission at the international AIDS conference of 2008.
"It stuns the mind that someone who has actually not harmed anyone, who has not actually damaged any property (or otherwise spoiled the world), could be locked away in these circumstances for 35 years. The inference that his HIV status played a pivotal role in sending him away for so long is unavoidable. In short: the man was punished not for what he did, but for the virus he carried."
There's little more that you can politely add to that statement. The sentence was inhumane and brutal and justified on the grounds of nothing but hearsay, fear and possible political influence. It certainly had no basis in scientific fact. The fact remains that in most states of the United States, a person living with HIV can be charged and found guilty of reckless endangerment, or assault with a deadly weapon (i.e. the HIV virus) if criminal intent can be proved. Unfortunately, the fact also remains that it is far too easy to "prove" criminal intent largely on the grounds of circumstantial evidence and often pure stigmatism.
One of the worst and most cruel aspects of US state legislation is that, despite official guidelines that call for confidentiality; all states are now implementing so-called "name-based reporting" where people's personal details can be handed over to the police by their medical providers. This exposes them from day one to public scrutiny if their case comes to court. What happens when that person is removed from the system? Do his or her medical details and stigmatizing labels get expunged at the same time? I seriously doubt it -- the authorities like to keep tabs on you.
In Canada, as most readers will know, it has been against the law since 1998 not to disclose your status and more than 130 people have been charged with sexual assault since that date. Canada is still the only country in the world to have convicted someone of murder for transmitting the virus and apparently, three quarters of Canadians believe someone should be imprisoned for not disclosing their HIV status. It beggars belief frankly but hopefully a few of the legal challenges that seem to be in the pipeline will be successful and bring a little sanity to the proceedings. Not only that; a successful challenge, with a clear explanation and public statement, will go some way to changing public attitudes about legal responsibility and HIV. Politicians can sway the public and vice versa but when the spiral of moral opinion and political mood and therefore legislation, shifts away from the facts, there are inevitably victims as a result.
It seems to me essential that all judicial bodies need to be made fully aware of the most up to date scientific knowledge about HIV transmission. They also need to be aware of the consequences of their legal decisions for people wondering whether to disclose or not. Furthermore, they need to know the risks of spreading the virus even further, if disclosure just becomes too dangerous for normal well-meaning people. Medical records need to be legally protected to ensure confidentiality and the police need to know exactly what they're dealing with and how many factors are involved. This is all happening in some countries but progress is still slow and when nations like the USA and Canada turn the clocks back on the basis of what is perceived as public moral outrage and convict through stigma, then the life sentence that comes with having HIV can turn into a sentence depriving you of your freedom as well.
In 2011, the Global Forum on MSM and HIV stated in their conclusions that:
Policy makers, parliamentarians and advocates should take necessary steps to:
1) Repeal laws that criminalize or punish consensual same-sex behaviors among adults, preferred gender identities and non-conforming gender expressions so that everyone, irrespective of sexual orientation, sexual identity, gender identity or gender expression can realize their basic health and human rights, including access to HIV-related and other health services without fear of ridicule, blackmail, harassment, arrest or violence.
2) Repeal laws that criminalize HIV non-disclosure, exposure or transmission, which are often used as proxies for human rights abuses against gay men and other MSM and which have absolutely no public health value.
Furthermore, in July, 2012 the Global Commission on HIV and the Law recommended the following:
To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:
2.1. Countries must not enact laws that explicitly criminalize HIV transmission, HIV exposure or failure to disclose HIV status. Where such laws exist, they are counterproductive and must be repealed. The provisions of model codes that have been advanced to support the enactment of such laws should be withdrawn and amended to conform to these recommendations.
2.2. Law enforcement authorities must not prosecute people in cases of HIV non-disclosure or exposure where no intentional or malicious HIV transmission has been proven to take place. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health.
2.3. Countries must amend or repeal any law that explicitly or effectively criminalizes vertical transmission of HIV. While the process of review and repeal is under way, governments must place moratoria on enforcement of any such laws.
2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.
This whole issue shows how much we still have to fight for in this world and how divided the world actually is regarding attitudes to HIV. I always assumed that despite the plethora of extremist views that can exist in North America; when it came to HIV and AIDS, we could at least rely on Americans and Canadians to lead the way in enlightened thinking and scientific advance. To discover that their systems of law applying to HIV have reverted to medieval practice in order to persecute small groups of people in medical need, is a shock that undermines a great deal of trust in the world order.
Other countries in the first world are by no means perfect; after all it is a crime to expose another person to HIV, or transmit HIV to them in over 60 nations but it seems that common sense and fairness play a much greater role in interpreting the law in many other lands. Actually, in the whole of the European Union, only Poland and Latvia have specific laws relating to HIV disclosure and transmission. One thing I've learned is that a government of coalition is much less likely to be swayed by moral hysteria than the two party systems that rule much of the Western world: perhaps the Netherlands is not such a bad place to live after all!
Finally, when it comes to the great argument as to whether to disclose or not; I personally wonder if there's not an argument for saying that HIV positive people should have the legal right to remain silent and not disclose if they don't want to. The burden of responsibility should then fall on the HIV negative participant to protect him or herself. Everyone then has the choice whether to state beforehand; "yes I want you to wear a condom," or "no I don't and I fully understand the risks." That way, more people may get tested because there's no legal sanction if they turn out to be positive. In fact the responsibility for self-protection from HIV should be everyone's, given the knowledge everyone now has. I somehow doubt if the statistics of HIV transmission would change one way or the other but at least people living with the virus wouldn't be living in fear of being punished twice.
There have been many excellent articles on this subject both here and elsewhere and if I'm repeating (or even unwittingly contradicting) things that have been said by for instance, Edwin Bernard and others on this site, please forgive me. This is a personal view on the issue from someone learning about it for the first time.