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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.

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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.com.

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Reader Comments:

Comment by: Rick (Canada) Wed., Jan. 19, 2011 at 2:28 am EST
Several years ago I was charged with "assault causing bodily injury" after spitting on someone. (I am a recovering alcoholic and was in an alcohol blackout - my last drinking binge). The charge carried up to 5 years in prison. The prosecutor was seeking jail time.

In the drunk tank I asked for my medications - that disclosure led to the charge. My victim was tested several times = negative.

My defense focused on the science - there is no documented spit transmission case. It is a hysterical reaction.

My charge was negotiated down to common assault and I received a suspended sentence.

Police offices and prosecutors should be better educated on the science of HIV transmitting risk. Both my victim and I were traumatized. While waiting trail I survived an attempted suicide. The fear of press and jail time was unbearable. I felt suicide was my only means of protesting the injustice. The prosecutor used this against me - I was a risk to society.

(A few years later the police officer was charged with child molestation and imprisoned. Who was he to judge me?)
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Comment by: Anthony (Seattle, WA) Sun., Jan. 16, 2011 at 4:14 pm EST
Since being kicked off ADAP in Washington State due to state budget cuts, I was so enraged that I considered "educating" members of the state legislature of the need for ADAP funding by drizzling my multi-drug-resistant HIV tainted blood on the walls and doors of the state capitol building, but, I have cooled down and am coping...
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Comment by: alan (uk) Fri., Jan. 14, 2011 at 10:13 am EST
well if I met someone who wanted to bareback no questions asked after several decades of aids awareness I would just assume they were HIV+, hiv- people need to take as much responsibility for their own actions as HIV+ people do!
By criminalizing HIV you just instil a “id rather not know way of thinking” people stop people getting tested and give themselves a get out of jail free card on the basis of being unaware of there status, so it doesn’t work. Draconian laws breed fear and ignorance and will spread this disease far more quickly than what are a few isolated cases of malicious intent.
People are people and I hate this idea that you’re innocent when you’re HIV- and guilty once you’ve crossed the line to being HIV+ we were all once HIV- Let’s move on from this “them and us” attitude. Take away the stigma and work together towards a common goal of openness and discussion.
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Comment by: Lisa (Michigan) Fri., Jan. 14, 2011 at 8:28 am EST
This is about the third blog I have written on this subject. You state "there have been very few cases that TRULY in tended to harm anyone"??? Are you speaking of those infected who have no idea they have been exposed or are you speaking about those whom put themselves at risk knowingly yet refuse to get tested because they may find out they are poz?
I do NOT understand how anyone who is against these laws can say they should be changed??
It is true that we ALL have to be responsible for our own care when it comes to putting ourselves at risk with our partners & I take 100% responsibility for my contraction of HIV, however being in a RELATIONSHIP with a man whom I trusted later to find out that he KNOWINGLY infected me along with many others including a baby is NOT someone who should be protected by the law but should be prosecuted for his actions!! He has left a vast path of destruction of lives in his "journey" to hurt others & yet you people say there should NOT be any laws against this??
I live with this everyday, live with the stigma just as you & many, many others do however I do not feel that I have no rights because of the criminalization law. I do however feel that I have to do whats right by others (as anyone should poz or not!) & disclose to those whom I feel I can trust. True it is a hard thing to do, have been let down many times when disclosing, been outcasted, etc however it is not anyone's right being poz NOT TO DISCLOSE to another. If you CAN'T wrap your willy then don't have sex, period end of story!!! If you can't TRUST another to tell them then they should NOT be in your life, much less engaging in sex...period end of story.
I pray everyday that something could have been done to this man to stop him from infecting others, but unfortunately there was not as the women he infected "after" me & after a non- anonomous test was on record in his name would not come forward out of fear of disclosure. You tell me is this someone who deserves rights??
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Comment by: russ (nc) Fri., Jan. 14, 2011 at 12:04 am EST
well it seems a totally random and unfair law. Yes the person who has HIV should be honest up front about it...HOWEVER it should NOT be the sole responsibility and therefore any so-called criminality to fall on just the HIV person...as someone has said it takes two to tango...the other person in the sex act with the HIV person has just as much responsibility as the HIVer..I mean for instance the supposed non-HIVer say in this case(and for all we know even that person could be walking around infected and not know...look at the huge numbers/estimates of those who do not know) this person has consented to and has often sought out a sexual encounter with another person with the intent of not using protection or ever intending to do so...how is that NOT reckless and just as contributory liability as say the other person?
If you are going to have sex without protection...consent to it...and even seek out such encounters then....you have NO one to get angry and "take down" as someone has put, but yourself! The HIV person should not have to bear any greater liability/responsibility than the other person. It is ludicrous to persecute one and give a pass to the other when the other is just as negligent.
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Comment by: Denver (Colorado) Thu., Jan. 13, 2011 at 11:42 pm EST
Laws against bank robbery don't reduce the number of bank robberies nor do laws against murder reduce the number of murders either. But they are still crimes for which the perpetrator should be punished. Similarly, noting that criminalizing knowingly exposing a partner to HIV without disclosure is unlikely to limit the spread of the disease is asking the wrong question. It is simple assault for which the perpetrator should be punished. The person who gave me HIV knew his status. Had he informed me (and in fact he not only did not inform me but said that he was tested and negative) I certainly would not have allowed myself to be exposed. The issue is punishing someone who knowingly does harm to someone else, not some more lofty goal of containing the epidemic.
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Comment by: Bren (Melbourne, Australia) Thu., Jan. 13, 2011 at 6:12 pm EST
@brooklyn guy / @Lynn et al. The perspective of someone who is HIV negative is very different from someone who is HIV positive. In order to understand the issues, you have to try and see what it's like from the other side.

Firstly, HIV positive humans have a right to have sex with another human who might be HIV positive or who might be HIV negative. Do not continue to read this comment if you disagree.

If HIV positive people do not intend to deliberately infect their partner (the "line in the sand" Edwin refers to) then they should not have to disclose. It cuts both ways, those who are positive have an ethical responsibility to protect their partners, and those who are negative have an ethical responsibility to protect themselves. But "ethical responsibility" doesn't mean legal requirement. In reality, we all behave within a spectrum of responsibility, and we do so inconsistently. To emphasise, that's ALL of us. If that were not true, there would be almost no HIV positive people.

Surely it doesn't take a sophisticated understanding of human nature to know that trying to force HIV positive people to disclose will drive many "underground"? It would dissuade them from seeking supporting mechanisms (and discourage development of those mechancisms), and, ultimately, put more HIV negative people at risk. That, I think, is the point of the article.
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Comment by: Drew(Sydney AUS) (Sydney , AUS) Sun., Jan. 2, 2011 at 9:15 pm EST
A very good article. I always say it "takes two to tango" responsibilities should be taken by both partners.

Question: How can the individual who has been infected be certain its the person who they are accusing??? Does everyones HIV have its own DNA structure???? I'm really confused.

Thanks.
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Comment by: Jerry R (Joplin, Mo) Thu., Dec. 30, 2010 at 12:23 pm EST
Most of these laws were enacted early on in the epidemic, and are fear and ignorance based. Much has changed since then, and the laws no longer, or probably never did help or fairly apply. They feed discrimination, and stigmatism, and in my opinion, hurt much more than they ever were intended to help. At the very least, they need sorely updated to reflect the current knowledge and risk of transmission under current circumstances....They are totally out of context for today....
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Comment by: brooklyn guy (nyc) Thu., Dec. 23, 2010 at 9:06 am EST
How does criminalization of people knowingly infecting others with HIV hurt everyone??? I fail to see the connection in the headline. Also this article reads as self pity. The bottom line is people who have a deadly disease and knowingly infect others through unprotected sex should be prosecuted! Anyone who says otherwise lives in a really bizare world. I have seen numerous news articles about this subject and not one case involved someone who didn't know they were positive. There are people that knowingly and purposely try to infect others and that has to be punished. Our justice system would be corrupt if it didn't try to stop that from happening...no?
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Comment by: LynnM (Southern USA) Thu., Dec. 23, 2010 at 4:47 am EST
And one more thing; wth are people doing sleeping with people they dont trust enough to let that person decide if they want to take that risk, ie "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. Your statements to me seem rather selfish. God forbid someone had to be a little embarrassed/uncomfortable with disclosing their status to someone they are about to be intimate with...... As for the statement "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", "f" that. There is no guarantee that its still not infectious, so still again , the other party should be advised of status and make that decision theirself.
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Comment by: pita (Oz) Mon., Dec. 20, 2010 at 2:31 am EST
Disclosure is a big deal for some and they shouldn't be required by law to do it. If you're negative and absolutely want to stay that way, be monogamous or have safer sex always - expecting Poz guys to disclose to a 1 night stand is ridiculous - AIDS Hysteria ..
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Replies to this comment:
Comment by: Lawrence (Athens, GA) Tue., Dec. 21, 2010 at 12:52 pm EST
I agree. Regardless of our obligation to disclose, moving the burden of prevention from those who have the most to gain to those who have the least to lose is just counterproductive public health policy. Prosecuting in the face of non or minimal risk can only be seen as stigmatization, and stigma will only make people LESS likely to learn their status. Meanwhile, we've created an atmosphere where people don't feel empowered to protect themselves. I predict terrible consequences.


Comment by: Jack S. (NYC , NY) Sun., Dec. 19, 2010 at 11:28 am EST
So what of HIVer who have sex sans condom with sero diiscordant partners -and not disclose there status ?
A reward maybe ??
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Comment by: d (pa) Sat., Dec. 18, 2010 at 2:41 pm EST
HIV does not show up 6 months or 10 years down the road. Science shows us that if one is infected it "shows up" with in 3 months after exposure; that is why the thresholds for testing are scheduled with the frequency that are established. We all need to be informed and always practice safer, barrier protected sex.
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Comment by: Lynn M. (Southern USA) Mon., Dec. 6, 2010 at 5:49 am EST
To quote you,"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." How could anyone think that just because its a "one-night-stand or partner/spouse, that they do not have the right to be warned so that they have the right to protect their own health? It almost seems like you are saying they shouldn't be procecuted because they just wanted to get "off" To be honest , that pisses me off.Please tell me you do not believe that just because "this time", the party who didn't know the HIV infected persons status before they had sex wasnt infected, who's to say 6 mos- 10 years down the road, it won't show up? Also,lets say this person isn't charged, they get out there and infect hundreds more people, since they love one night stands and keeping their partner/spouse in the dark;why not take a few more with them when and if they die?I'm here to tell you and whoever, if the situation were to happen to me due to not being informed of said persons status, I guarantee said person most likely wouldn't make it to jail/trial.
I feel a mixture of sympathy,respect and feelings I can't describe,for anyone with the disease.To all the people that have taken the time to share their stories about their life with HIV/AIDS,I wish you & yours continued good health& a cure in immediate future.
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Comment by: Mari (Japan) Fri., Dec. 3, 2010 at 10:42 am EST
If I found out a previous partner knew he was positive and didn't tell me, I sure as hell would want to take that bastard down!
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