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Why HIV "Crimes" Harm HIV Prevention and People With HIV

November 16, 2010

For our World AIDS Day 2010 section, we wanted to capture the diversity of the AIDS community. So, we reached out to people across the world -- mostly those who have never written for us before -- and asked them to guest blog. These columns are written by people who are living with HIV, have been affected by HIV, or work in the field.

Edwin J. Bernard

Edwin J. Bernard

For the past few years I've been following the arrests and prosecutions of people with HIV for non-disclosure, exposure and transmission. I keep a blog that tries to put such 'crimes' into perspective.

The Global Network of People Living with HIV estimates that since 1987 more than 40 countries around the world -- most of them in high-income countries throughout North America, Europe and Australasia -- have convicted at least 600 people with HIV for these so-called 'HIV crimes'. It very likely there have been hundreds more arrests and cases that have gone unreported.

Most of the cases prosecuted around the world have not actually focused on criminal HIV transmission, but rather on exposure to the risk of transmission. These cases often hinged on whether or not someone with HIV had informed their sexual partner -- sometimes a one-night stand, sometimes a long-term partner or spouse -- that they were HIV-positive before having sex that may -- but may not -- have risked HIV transmission.

Very few cases have involved people who truly intended to harm anyone. That's the 'line in the sand' that most experts, including UNAIDS, have agreed fulfil the criteria of when it is justified to prosecute allegations of criminal HIV transmission. Rather, what most of these cases boil down to is perceived responsibility for HIV prevention. Research suggests that most HIV transmission takes place during sex between two consenting adults, neither of whom is aware that one them is living with HIV.


Nevertheless, despite knowing that there are always risks associated with unprotected sex, the people who complain to the police -- supported by HIV-specific criminal laws and/or the entire criminal justice system -- believe that only a diagnosed HIV-positive partner is responsible for HIV prevention and that they should be specifically warned of the risks. Never mind the incredible difficulties we might have disclosing this very sensitive information to people who we don't trust; the deep denial we often face earlier on in our diagnosis; the difficulties we have negotiating condoms; or the fact that those of us who are aware of our HIV status and are on effective treatment are going to be far less infectious than people who are undiagnosed and who couldn't possibly warn their partner.

Lawmakers and those who make the decisions in the criminal justice system appear to believe that by picking out a few unfortunate people who come to their attention in a completely random way, and prosecuting them, it will scare the rest of us living with HIV to keep the virus to ourselves. Actually, most of us already do that, and the law doesn't impact at all on those who can't or won't use condoms or who feel unable share their status with their partners if condoms aren't used. To really prevent new infections, such actions need support, not punishment.

Have such laws and prosecutions reduced the number of new infections? There is absolutely no evidence that they have. Have they made more people with HIV disclose? There's no evidence there, either. However, there is some evidence that HIV-specific criminal laws and prosecutions for non-disclosure have made people who are at risk of HIV, and who expect to be told if their sexual partner is HIV-positive, feel more secure, even though this is a false sense of security. And there's little doubt that these laws and prosecutions have further increased the stigma associated with HIV, sometimes making people living with HIV feel even more insecure about disclosing -- the very thing expected of us.

The jury may still be out on whether such laws and prosecutions do more harm than good, but an increasing number of smart thinkers -- including the Positive Justice Project -- believe they are discriminatory, unnecessary and should end. My own conclusion? The criminal justice system is ill-equipped to deal with the complexities surrounding HIV transmission and needs to get out of the HIV prevention business.

Edwin J. Bernard is the editor of the Criminal HIV Transmission blog and has produced a new international resource, HIV and the criminal law, published by NAM.

This article was provided by TheBody.

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