International consultation on the criminalization of HIV transmission

Abstract

Résumé

Depuis le début de l’épidémie de VIH, certaines juridictions ont appliqué le droit pénal à la transmission du virus. En 2002, l’ONUSIDA a publié une étude des politiques possibles en la matière. Devant les demandes accrues d’application du droit pénal à la transmission du VIH et les préoccupations émises à cet égard par le Groupe de référence de l’ONUSIDA sur le VIH et les droits de l’homme et d’autres organes, le PNUD et le Secrétariat de l’ONUSIDA ont décidé de réunir des juristes et d’autres parties prenantes pour débattre de la question dans le contexte d’une riposte efficace au VIH fondée sur les droits de l’homme et la santé publique. La discussion définira une politique générale ONUSIDA/PNUD sur ce thème. Il a été précisé que la consultation portera principalement sur la transmission sexuelle du VIH, même si l’application du droit pénal à la transmission du VIH dans d’autres contextes suscite aussi des inquiétudes. Cet article est formé d’extraits du rapport de la réunion.

Resumen

Desde el principio de la epidemia del VIH, algunas jurisdicciones han aplicado el derecho penal a la transmisión del VIH. En el año 2002, ONUSIDA publicó un artículo sobre opciones de políticas al respecto. En vista de nuevos llamados a la aplicación del derecho penal a la transmisión del VIH y de las inquietudes expresadas al respecto por el Grupo de Referencia de ONUSIDA sobre el VIH y los Derechos Humanos y otros, UNDP y la Secretaría de ONUSIDA decidieron reunir a varios peritos jurídicos y otras partes interesadas para tratar el asunto en el contexto de una respuesta eficaz de derechos humanos y salud pública al VIH. La discusión informaría a un compendio de políticas de ONUSIDA/UNDP al respecto. Se aclaró que la consulta se centraría principalmente en la transmisión del VIH por contacto sexual, aunque se señaló que existen inquietudes con relación a la aplicación del derecho penal a la transmisión del VIH en otros contextos. Este artículo consiste en pasajes del informe de la reunión.

Since the beginning of the HIV epidemic, some jurisdictions have applied criminal law to the transmission of HIV. In 2002, UNAIDS issued a policy options paper on this issue.^*

In light of renewed calls for the application of criminal law to HIV transmission and concerns raised in this regard by the UNAIDS Reference Group on HIV and Humans Rights and others, UNDP and the UNAIDS Secretariat decided to bring together a number of legal experts and other concerned stakeholders to discuss this issue in the context of an effective human rights and public health response to HIV. The discussion would inform a UNAIDS/UNDP policy brief on this subject. It was clarified that the consultation would focus primarily on HIV transmission through sexual contact, although it was noted that concerns exist in relation to applying criminal law to HIV transmission in other contexts. This Bookshelf article consists of excerpts from the report of the meeting.

In recent years there has been:

• An increase in the number of prosecutions for HIV transmission or endangerment, particularly in Europe and North America, with cases now numbering in the hundreds in the English-speaking world alone;^† and

• Increased attention to criminalization of HIV transmission in sub-Saharan Africa, parts of Asia, and parts of Latin America and the Caribbean, resulting in legislative proposals and enactments (often as part of the introduction of broader “AIDS laws”) and some prosecutions.

Cases of sexual transmission remain the primary focus, but in some cases criminal law has been applied to other situations. The push to apply criminal law appears to be driven principally by the wish to impose retribution for wrongdoing, that is, to punish behaviour perceived as wrongful – although some have argued that criminalization of HIV transmission also advances the objective of HIV prevention.

In light of the increased application of criminal law to persons who transmit HIV (or expose others to HIV), concern has grown about the potential adverse consequences of this application for both public health and human rights. Generally, there is limited evidence to help guide policy with respect to the effects that criminalization of HIV transmission may have. However, four central questions need to be addressed in determining the parameters of any criminalization of HIV transmission:

• Which acts should be subject to criminal prohibition, if any? In particular, should conduct that creates a risk of transmission be included (and if so, what degree of risk is required?), or should the criminal law deal only with cases where transmission actually occurs?

• What degree of mental culpability should be required for criminal liability? Only intentional behaviour or should some lower threshold be accepted?

• What defenses to criminal liability should be recognized?

• Should HIV-specific legislation be enacted instead of applying general criminal law?

Starting points

On the first day of the consultation, participants agreed on the following starting points for discussion:

Building on earlier work

In 2002, UNAIDS issued guidance on criminalization of HIV transmission entitled Criminal Law, Public Health and HIV Transmission: A Policy Options Paper. Participants noted that the document contains most of the essential background material, much of the necessary policy discussion, most of the options for consideration and decision, and many sensible and balanced conclusions and recommendations. Participants therefore agreed that the consultation should build on the 2002 policy options paper and focus on what value can be added to it.

Two other significant reports were placed before the participants which the participants recognized contained useful insights, often of a highly compelling nature:

• The Report of the WHO European Region Technical Consultation on the criminalization of HIV and other sexually transmitted infections (Copenhagen, October 2006).^*

• The report of the AIDS and Rights Alliance for Southern Africa (ARASA) and Open Society Initiative for Southern Africa (OSISA) Civil Society Consultative Meeting on the Criminalisation of the Wilful Transmission of HIV, Southern African Development Community (SADC) (Windhoek, June 2007).^†

A common feature of these reports was a general inclination against the introduction of HIV-specific statutes criminalizing HIV transmission, in light of the fact that there were no persuasive data to support the utility or effectiveness of such measures. It was therefore said, by several participants, that those who wished to change the recommendations contained in the earlier reports bore a heavy onus of persuasion that some new features had emerged that justified a recommendation to UNAIDS that it should change direction in this regard.

Participants emphasized that any new or revised policy guidance on criminalization of HIV transmission needs to be able to provide clear and persuasive answers about why the use of criminal law in the context of HIV should be limited, explain how exposure to HIV is different from other situations in which criminal law is used against people who expose others to potential risk of harm, and speak to people's hearts and minds.

Understanding the push for criminalization of HIV transmission

Participants felt that it was important to understand the motivations for enacting laws specifically criminalizing HIV transmission or exposure and for pursuing such criminal prosecutions. Participants underlined the need to be respectful of the democratic character of legislatures and appreciate that elected lawmakers, on such subjects, ordinarily have the last say, whatever experts may advise. In this regard, however, it is important that lawmakers have the opportunity to fully discuss the issues, particularly with those most affected and other experts, and that policy-making not be driven by prejudice, misinformation or over-reaction that are all too common in responses to HIV.

Acknowledging the desire for retribution and deterrence

In introducing criminal laws relating to HIV transmission, legislators appear to be responding to deep human motivations, including the desire for retribution and deterrence. In particular, participants acknowledged that there is anger and frustration about the continuing ravages of HIV, and hence a desire to do something that is perceived as preventing its spread and to impose punishment on people living with HIV who transmit HIV or risk transmitting the virus. Thus, there is a need to acknowledge the desire for retribution on the one hand, as well as a need to explain why it can only be justified for conduct that is blameworthy and only when it makes most public policy sense for HIV prevention, on the other hand.

Dealing with the concerns of women, particularly in countries where they suffer from inequality

Participants recognized the need to address the concerns that women in Africa and elsewhere have raised in support of criminalizing HIV transmission or exposure. These appear to stem from a drive for justice on the part of women who have been infected with HIV through rape and sexual coercion, including in marriage and other intimate relationships. A critical question in this context is whether criminalization of HIV transmission represents an effective way to deal with the entrenched and complex problem of violence against women and other factors that affect women's vulnerability to HIV, or whether there are better alternatives. It is also important to consider how criminalization of HIV transmission or exposure might negatively affect women, particularly those living with HIV.

All policies should be based on sound data

Participants emphasized that the best available scientific evidence regarding modes of HIV transmission and levels of risk must be one key factor for rationally determining if, and when, conduct should attract criminal liability.

Policy on the criminalization of HIV transmission must respect human rights

Any legal or policy responses to HIV, particularly the coercive use of State power, should not only be pragmatic in the protection of public health but should also conform to international human rights norms. In particular, the principles of non-discrimination, equality and due process must be respected. The Universal Declaration of Human Rights and the human rights treaties ratified by governments contain many provisions relevant to the questions at issue. In addition, the International Guidelines on HIV/AIDS and Human Rights ^* are a useful source of guidance for policy-makers regarding human rights obligations in the context of HIV. Guideline 4 states:

Criminal and/or public health legislation should not include specific offences against the deliberate or intentional transmission of HIV, but rather should apply general criminal offences to those exceptional cases. Such applications should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.

Key issues discussed and consensus reached

	Most cases of transmission of, or exposure to, HIV are not sufficiently blameworthy to qualify as subjects of the criminal law.
	Criminal penalties could be justifiably imposed on a person who acts with the malicious purpose of causing harm (i.e. the purpose of their act is to infect another with HIV). In general terms, this would constitute the highest form of criminal intention in common law systems and would be characterized as dolus directus in civil law systems.†
	Another of the reasons often advanced by policy makers for criminalizing HIV transmission is that it could promote public health by stopping HIV transmission or exposure by incapacitating or rehabilitating a particular person and/or by deterring the specific individual, or others more generally, from the conduct that is criminally prohibited. There was general agreement that imprisoning a person with HIV does little to prevent the transmission of HIV. Rape, sexual violence and HIV risk behaviours are prevalent in prisons around the world, and most prison systems continue to reject introduction of evidence-informed prevention measures, such as providing confidential access to condoms and sterile injecting equipment, and undertaking measures to reduce the prevalence of rape and other forms of sexual violence. Quite apart from this fact, a study undertaken in the United States of America ruled out prosecutions of people for HIV-related crimes as a major influence on the epidemic, saying that “far too few people were being imprisoned to have a serious impact on transmission”.*
	Participants heard that, at this time, there is no scientific data supporting the claim that criminal prosecution, or the threat thereof, has any appreciable effect in encouraging disclosure to sexual partners by people living with HIV or deterring conduct that risks transmission. A study undertaken in the United States provided the first empirical data on the actual effect of criminal law on the behaviour of those with HIV or at risk of HIV infection.† People who lived in a state with a criminal law explicitly regulating sexual behaviour of HIV-positive people were little different in their self-reported sexual behaviour from people in a state without such a law. People who believed the law required the infected to practice safer sex or disclose their status reported being just as risky in their sexual behaviour as those who did not.
	Participants expressed concern that pressure for the use of criminal law has been building especially where there have been insufficient HIV prevention programmes to prevent the spread of HIV. Legislators are tempted to use the criminal law, substituting criminalization for positive action such as implementing evidence-informed prevention programmes.
	Instead of more criminalization, a more effective HIV prevention strategy would be to adopt measures including: removal of criminal offences against men who have sex with men removal of criminal sanctions on sex work so as to promote empowerment of sex workers enactment of anti-discrimination laws protective of people living with HIV, or at risk of infection significantly expanding HIV prevention efforts, including education, the availability of condoms and sterile drug use equipment, and other strategies designed to reduce infection.
	The third reason often advanced by policy makers for criminalizing HIV transmission, particularly in African countries, is that its deterrent and retributivist functions are particularly important for women and girls – that is, it could protect those who may be especially vulnerable to HIV, such as women and girls, by changing men's sexual behaviour toward them and would punish men who pass HIV onto their female partners,** … including where rape and sexual coercion have occurred. In order to protect women, instead of focusing on criminalizing HIV transmission, countries need to take concerted action to deal with the needs of women and devote adequate resources to prosecuting cases of rape, including marital rape, increase general HIV prevention efforts, and secure legislative and policy changes to protect the rights of women, including passing legislation on issues such as domestic violence, equality in marriage, HIV-related discrimination and protecting women's property and inheritance rights.
	Given the stigma that still surrounds HIV and the persistence of HIV-related discrimination, participants expressed concern that criminal sanctions will be directed disproportionately at those who are socially and/or economically marginalized. Participants emphasized that, if States are to use criminal sanctions in response to conduct that risks transmitting HIV, they must ensure that those accused are not being punished simply for being HIV-positive, or because of their sexual orientation, their involvement in sex work, their use of illegal drugs, or other disfavoured status such as being a prisoner (or ex-prisoner) or immigrant. In addition, participants pointed out that, in jurisdictions where HIV transmission is criminalized, very few cases are prosecuted out of the numerous infections that occur each year; this led some participants to describe the intervention of the criminal law as largely “capricious” and therefore unjust. Several cases suggest that criminal law is invoked in sensational circumstances, sometimes in relation to accused who are migrants or otherwise perceived as “foreign”, and occasionally in response to emotional media campaigns.
	Proving that the accused was aware of his or her HIV infection at the time of the offence, proving who infected whom, and proving that the complainant did not in fact consent to the risky sex knowing his/her partner's status may pose serious challenges. The person who first learns of his or her HIV-positive status may be accused of having “brought” the virus into the relationship though it may not be clear who was first infected. Depending on the circumstances, it may also not be clear that it was the accused, rather than someone else, who actually infected the complainant. There is the potential for miscarriages of justice as a result of such criminal prosecutions. Furthermore, even if a person living with HIV is not ultimately convicted, irreparable damage may be done to individuals caught up in investigation and prosecution that is driven by unfounded accusations.
	While participants did not reach consensus on whether criminal liability should only exist where there is actual transmission of HIV, they all agreed that, if exposure is criminalized, it would be crucial to also consider the degree of the risk of HIV transmission in determining the physical acts to which the criminal law may apply. They agreed that only conduct that carries a ‘significant’ risk of HIV transmission is legitimately the target of the criminal law… This issue has arisen in a number of cases regarding the risk of exposure: In Canada, the prosecution in one case acknowledged that unprotected oral sex is conduct that carries only a low risk of HIV transmission and would not be the basis for a prosecution;* more recently, a trial judge interpreted the law to mean that there was no crime for not disclosing one's HIV-positive status where a condom was used for vaginal sex.† In a New Zealand case, the trial court concluded that neither vaginal sex with a condom, nor oral sex without a condom, carried a sufficiently high risk that the person with HIV could be held liable for criminal nuisance.** The Supreme Court of the Netherlands has ruled, in a case involving even unprotected anal and oral sex, that there was not a “substantial” per-act risk of transmission, and therefore a prosecution for recklessness could not succeed.†† In addition, participants noted that, given the negligible, or at most theoretical, risk of transmission, there is no justification for imposing criminal liability in cases such as spitting, scratching or biting. Finally, participants noted that there is also need to address definitions of exposure (and recklessness) in the context of unprotected sexual acts where a person's viral load is low or negligible as a result of anti-retroviral therapy.
	Participants agreed that criminal liability should never fall on persons who: do not know how HIV is transmitted do not know they are HIV-positive have disclosed their status to their partners reasonably believe their partner has consented to the risk of HIV infection, or have taken measures to reduce the risk, such as using condoms or otherwise practising safer sex.
12.	If people do not know about or understand the implications of the general criminal law as it applies in the context of HIV transmission, they cannot change their behaviour to comply with it. The Supreme Court of the Netherlands has stated that if the State is to pursue criminal prosecutions for HIV transmission or exposure, then the legislature should enact legislation that clearly defines what is prohibited.* There is the potential for more narrowly defining the prohibited conduct and punishment within HIV-specific statutes, rather than relying on the courts to interpret if and how traditional criminal offences apply to HIV transmission. A carefully drafted statute in this way could minimize the likelihood the judiciary or prosecution would overextend or misapply the general criminal law.
13.	Public health law could be a possible alternative to criminal law in addressing HIV transmission. It may: have greater flexibility than criminal law in protecting the rights of the individual and supporting public health protection and be more effective in rehabilitating and deterring people from risk behaviours… starting with behavioural interventions to reduce risk and moving to more coercive interventions, such as compulsory examination and treatment or detention to prevent onward transmission. However, public health law can also be subject to abuse, since it has fewer due process protections attached to it than criminal law†… [and should] be applied with appropriate and adequate due process protection, including in the case of denial of liberty. [However] in many settings in which there is currently a push for criminalization of HIV transmission, public health laws are outdated or suffer from lack of sufficient capacity to be properly enforced. In practice, therefore, relying on public health law as an alternative to criminal law is often not an option.
14.	In the opinion of the consultation, public health arguments and human rights concerns support extreme caution about the criminalization of HIV. In rare cases involving blameworthy behaviour, based on intent to cause harm, the criminalization of HIV transmission might theoretically be justified from a punitive or retributive viewpoint. However, it remains counter-productive as an overall strategy against the epidemic.

“In formulating the imperative arguments against criminal responses to HIV transmission and exposure we must again go back to the roots of this epidemic. HIV is treated exceptionally for one over-riding reason: the stigma associated with it as a sexually transmitted infection…. It is stigma that makes those at risk of HIV reluctant to be tested; it is stigma that makes it difficult – and often impossible – for them to speak about their infection; and it is stigma that continues to hinder access to the life-saving ARV therapies that are now increasingly available across Africa. Legislators bewildered, or baffled, or at a loss as to how to respond effectively to the epidemic may be seduced into erroneously taking recourse to criminalization, which may seem attractive, effective and media-friendly. Yet, tragically, it is primarily stigma that lies behind the drive towards criminal responses to the epidemic.” (Justice Edwin Cameron)

Disclaimer in original UNDP/UNAIDS publication of the meeting report

The designations employed and the presentation of the material in the publication do not imply the expression of any opinion whatsoever on the part of the Joint United Nations Programme on HIV/AIDS concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.

All reasonable precautions have been taken by the Joint United Nations Programme on HIV/AIDS to verify the information contained in this publication. However, the published material is being distributed without warranty of any kind, either expressed or implied. The responsibility for the interpretation and use of the material lies with the reader. In no event shall the Joint United Nations Programme on HIV/AIDS be liable for damages arising from its use.

This report contains the views and recommendations of the participants in the International Consultation on the Criminalization of HIV Transmission and does not necessarily represent the decisions or the stated policy of the UNAIDS Secretariat or any of the UNAIDS Cosponsors.

Acknowledgement

On behalf of UNAIDS Secretariat and UNDP, Ralf Jürgens acted as rapporteur of the meeting and drafted the meeting report for finalization by UNAIDS Secretariat and UNDP. Excerpted and reprinted with the kind permission of UNAIDS and UNDP. © 2009 Joint United Nations Programme on HIV/AIDS. All rights reserved.

Notes

* UNAIDS (2002), Criminal Law, Public Health and HIV Transmission: A Policy Options Paper.

† For some data from the United States of America on the frequency and distribution of prosecutions, see Zita Lazzarini, Sarah Bray and Scott Burris (2002), “Evaluating the Impact of Criminal Laws on HIV Risk Behavior”, Journal of Law, Medicine & Ethics 30:239-253. The article notes that between 1986 and 2001, 316 HIV-positive people were prosecuted for exposing others to or transmitting HIV in the United States. For data from Europe, see Global Network of People Living with HIV/AIDS Europe and Terrence Higgins Trust (2005), Criminalisation of HIV transmission in Europe: A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights. Available on-line at <http://www.gnpplus.net/criminalisation/rapidscan.pdf>.

* Available at <http://www.euro.who.int/Document/SHA/crimconsultation_latest.pdf>.

† Available at <http://www.arasa.info/publications.php>.

* Office of the United Nations High Commissioner for Human Rights and UNAIDS (2006), International Guidelines on HIV/AIDS and Human Rights: 2006 Consolidated Version. Available at <http://data.unaids.org/Publications/IRC-pub07/jc1252-internguidelines_en.pdf>.

† Participants acknowledged that different terminology is used in relation to mental culpability across different legal systems. However, it was generally agreed that the concept of “intentional transmission” of HIV should be limited to those rare cases where a person acts with the purpose of infecting someone.

* Lazzarini, Bray, Burris, supra, note 2.

† S Burris, L Beletsky, J Burleson, P Case, Z Lazzarini (2007), “Do criminal laws influence HIV risk behavior? An empirical trial”, 39:467-517. In the study, 490 people at elevated risk of HIV were interviewed, 248 in Chicago (Illinois) and 242 in New York City. Approximately half in each state were men who have sex with men and half were people who inject drugs. One-hundred sixty-two subjects reported known HIV infection (Chicago 58; New York City 104), and 328 reported being HIV negative or not knowing their HIV status. Indicators of the law were 1) residence in the state, and 2) belief that it is a crime for a person with HIV to have sex with another person without disclosing his or her serostatus. The study examined independent predictors of unprotected sex. The presentation by Scott Burris at the consultation about this study can be obtained via UNAIDS.

** Participants heard from Priscilla Misihairabwi-Mushonga, a Member of Parliament from Zimbabwe, who said that calls for criminalization in her country came from those who wanted to protect women and victims of rape from HIV. She highlighted that the debate about criminalization in Zimbabwe was a very emotional one and that many female Members of Parliament argued for criminalization of HIV transmission. However, she pointed out that the debate missed many important points, namely the fact that criminalization would not offer protection, and instead, would put women at risk of negative consequences.

* R. v. Edwards, 2001 NSSC 80 (Nova Scotia Supreme Court) at para. 6.

† R. v. Nduwayo, 2006 BCSC 1972 (British Columbia Supreme Court) at paras. 7-8.

** New Zealand Police v. Dalley, New Zealand District Court, 4 October 2005.

†† “AA” [January 2005 judgment of Supreme Court of the Netherlands] at para 3.5.

* However, as a result of extensive dialogue with HIV sector organizations in advance of this ruling, the Ministers of Justice and Health recognized that embarking on such a legislative reform project would be undesirable (in part because of the stigmatizing impact). Therefore, they determined that, for public health reasons, they would accept the ruling of the Supreme Court that effectively circumscribes the possibility and scope of future prosecutions.

† The case of Enhorn v. Sweden (2005), European Court of Human Rights, Application No. 56529/00, offers a prime example. In that case, the Court held that Sweden had violated the right to liberty, under the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 5) for the manner in which they had approached the compulsory detention of a person living with HIV. Under public health legislation, Swedish authorities had repeatedly extended his involuntary detention for a period eventually totalling almost seven years with the stated objective of preventing him from transmitting HIV to sexual partners, although his conduct was never adjudged to be criminal under Swedish law. The Court found that other, less severe measures had not been explored, with this detention being taken as a last resort, and awarded damages against Sweden for the violation of the complainant's rights under the Convention.