Criminalising HIV transmission: punishment without protection

Abstract

Allegations of the reckless or intentional transmission of HIV raise challenging questions about how states can best address a disease which is transmitted primarily through behaviours that both states and community “police” in different ways. This paper argues that in the rare cases in which someone engages in specific behaviour with the intent to infect another person with HIV, existing laws such as laws against battery are sufficient to allow for the application of the criminal law. It discusses three key points: the potential consequences of new laws criminalising the transmission of HIV, why vague laws criminalising the knowing transmission of HIV fail to meet key requirements of criminal law and are an abuse of the state’s policing power, and thirdly, the growing inclusion of such laws within sexual offences legislation. Laws criminalising the transmission of HIV risk bringing within the scope of legal sanction people living with HIV who are acting in ways that do not merit punishment and may as a result of prosecution face adverse human rights consequences.

Résumé

Les allégations de contamination intentionnelle ou par imprudence du VIH soulèvent des questions délicates sur la manière dont les États peuvent le mieux s’attaquer à une maladie qui est transmise principalement par des comportements que les États et la communauté « policent » de différentes manières. Cet article avance que dans les rares cas où un individu agit dans l’intention d’en infecter un autre avec le VIH, la législation existante, par exemple contre l’agression, suffit pour appliquer le droit pénal. Il examine trois points clés : les conséquences potentielles des nouvelles lois criminalisant la transmission du VIH, pourquoi les lois vagues qui criminalisent la transmission en connaissance de cause du VIH ne réunissent pas les critères essentiels du droit pénal et constituent un abus du pouvoir policier de l’État et, troisièmement, l’inclusion croissante de ces lois dans la législation sur les délits sexuels. Les lois qui criminalisent la transmission du VIH risquent de placer sous la menace de sanctions juridiques des personnes vivant avec le VIH dont les actions ne sont pas justiciables d’une punition et à qui ces poursuites peuvent valoir des conséquences négatives sur leurs droits fondamentaux.

Resumen

Las alegaciones de transmisión irresponsable o intencional del VIH plantean interrogantes difíciles de responder respecto a la mejor manera en que el estado puede tratar una enfermedad transmitida principalmente mediante comportamientos que tanto el estado como la comunidad “vigilan” en diferentes formas. En este artículo se arguye que en los raros casos en que alguien se comporta de una manera específica con la intención de infectar a otra persona con VIH, las leyes en vigor, como las que prohíben los malos tratos, son suficientes para permitir la aplicación de la ley penal. Se tratan tres puntos importantes: las posibles consecuencias de nuevas leyes que penalizan la transmisión del VIH, por qué las leyes poco precisas que penalizan la transmisión intencional del VIH no cumplen con los requisitos fundamentales de la ley penal y abusan del poder policial del estado y, por último, la creciente inclusión de dichas leyes en la legislación contra delitos sexuales. Las leyes que penalizan la transmisión del VIH arriesgan poner al alcance de la sanción jurídica a las personas que viven con VIH pero se comportan en formas que no merecen castigo y que, a consecuencia del enjuiciamiento, podrían afrontar adversas consecuencias para sus derechos humanos.

Key Words:

• HIV/AIDS
• human rights
• criminalisation
• criminal law

Since very early on in the HIV pandemic, there have been voices urging the use of the criminal law to punish those alleged to have deliberately or recklessly transmitted the virus. These discussions waned in the 1990s, but there is currently an increasing trend of governments to introduce HIV-specific criminal laws to respond to the potential or actual transmission of HIV – particularly regarding people engaging in consensual sexual activity without disclosure of a positive HIV status and through reckless or intentional transmission.¹ In cases of sexual violence, some legislation mandates the judiciary taking into account HIV transmission as an aggravating factor, attracting higher penalties.²³

We believe that the introduction of HIV-specific laws to punish individuals alleged to have transmitted the virus is unnecessary and counter-productive, and creates an environment in which the rights of people living with HIV are put at risk. However, as UNAIDS has indicated,⁴ where transmission of HIV has occurred and requisite intent of the perpetrator to cause harm can be established beyond a reasonable doubt, the courts should use existing legislation if prosecution is to be undertaken. In all cases, the right of due process and principles of a fair trial must be scrupulously observed. Additionally, the courts must be sensitive to the concerns of the victim, including around issues such as the confidentiality of his or her HIV status.

Human rights standards do not support the enactment of HIV-specific criminal laws. Guideline 4 of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the Office of the High Commissioner on Human Rights (OHCHR) International Guidelines on HIV and Human Rights 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 these exceptional cases. Such applications should ensure the elements of forseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.” ⁵

In considering the question of HIV transmission or exposure as part of a criminal procedure, there is a need to address the rights of people living with HIV and AIDS as well as the grievances of those who believe they have been recklessly infected with HIV.

Most HIV-specific laws focus on transmission through consensual sexual activity. Consensual sexual behaviour is complex and applying the criminal law to this intimate area of experience has often been based on social mores, for example laws which prohibit the use of contraception; laws which prohibit inter-racial sexual relationships or same-sex sexual relationships; laws which prohibit sexual contact that is not aimed at reproduction, etc. In all these examples, the principle of the right to privacy outweighs whatever legitimate interest the state claims to have.

Given this problematic history of the use of the criminal law in the context of consensual sexual activity, the enactment of HIV-specific criminal laws to address consensual sexual contact in the absence of any intent to cause harm is inappropriate and may undermine key public health principles and constitute and lead to human rights abuses.

Consequences of new laws and prosecutions

There are a range of potentially negative consequences of enacting HIV-specific criminal legislation, or applying the criminal law to HIV transmission. These include increased stigmatisation of people living with HIV/AIDS, which adds to existing disincentives for people to seek HIV testing since knowing one’s status could render one liable to prosecution.^{4 6 7} However, it is not yet known whether in practice there is a negative relationship between the existence of punitive laws and the level of uptake of voluntary counselling and testing.

There have also been fears expressed that since more women than men test, and thus know their HIV status; where women are disempowered in their intimate relationships they may fear and face violence or abandonment when disclosing an HIV positive status or insisting on condom use,⁸⁹ there therefore is a greater prospect of women being prosecuted for transmitting the virus.¹⁰ In addition women who become pregnant while HIV positive may risk prosecution in relation to any possible infection of their child.¹¹

Furthermore, by making non-disclosure of HIV positive status a criminal offence, safer sexual behaviour becomes solely the responsibility of people living with HIV, when safer sex is the responsibility of everyone.⁴⁷ While it may be desirable for people to be open about their sexual health and share their status, putting the onus solely on the person living with HIV to disclose is ineffective from a public health perspective. Many people living with HIV are unaware of their status, and people may wrongly assume that someone who has not disclosed their HIV positive status is therefore HIV negative.⁴

Additionally, in some of the more egregious cases in which the state has pursued criminal charges against a defendant, prosecutions have been based on allegations of an assault in which there was virtually no possibility of HIV exposure. For example, in the USA an HIV positive inmate was prosecuted for attempted murder because he spat at a prison guard.² Such cases undermine the work to be done to ensure that people know how HIV is and is not transmitted.

Constraints on the use of criminal laws

A constant challenge facing the human rights movement is ensuring that the state does not act outside the constraint of the law, including by abusing its power to enact criminal laws that:

• violate principles of individual privacy or non-interference;

• undermine freedom of expression and assembly;

• are enforced in discriminatory ways;

• have the effect of criminalising a person's status as opposed to an act;

• are imprecise or overly broad; and/or

• enable the state to use the law in an arbitrary or capricious manner.

Where a public health issue is also identified by the state as a criminal justice matter, criminal justice responses may conflict with health responses required to address this issue. For example, most states see the use of drugs as both a health issue and a criminal justice issue, but often put more emphasis on the criminalisation of drug use. As a result, people who use these drugs and need access to treatment for addiction will often be caught up in the criminal justice system and imprisoned, but denied therapy and help putting their lives back together. This violates their right to health, while the drug-related conviction will lead to their further stigmatisation and marginalisation.

Furthermore, enforcement of laws against drug use falls disproportionately on people who are in some ways marginalised in their societies. Studies of the application of law enforcement practices regarding the criminalisation of drug and alcohol use consistently show that people from marginalised communities are subject to enforcement, while people who have greater access to economic resources and are not disadvantaged but also have alcohol- or drug-related problems can often access treatment and avoid the criminal justice system.¹²¹³

The enactment of HIV-specific criminal laws and the wider application of the criminal law to HIV raises similar concerns. Groups who are disproportionately affected by HIV typically are already marginalised, stigmatised or disempowered within their societies, such as sex workers, injection drug users, and in some countries men who engage in homosexual conduct. Enforcing such laws risks exacerbating the already existing marginalisation. Finally, to meet standards of proof as required under international law, effective implementation of these laws would require sophisticated forensic analysis – phylogenetic analysis of the virus of the victim and the accused – which is not only unavailable in many of the countries enacting these laws, but may still not provide conclusive evidence and therefore represents a poor use of scarce resources.^14* Studies of effective interventions demonstrate that peer support and outreach programmes are significantly more effective at bringing members of high risk groups in from the margins than capturing people in the criminal justice system.¹⁵ Such programmes ensure access to information, offer HIV testing and counselling, and facilitate access to harm reduction or other treatment programmes.

Criminalisation of HIV transmission and exposure

The recent burgeoning of bills and laws punishing exposure and transmission of HIV has been matched by analysis and advocacy by non-governmental organisations, lawyers and academics challenging these applications of the criminal law.^† These briefings have discussed problems in applying and enforcing criminal law in relation to HIV, such as proving intent or reckless behaviour, pinpointing transmission by one individual to another, and the social and economic constraints on women’s ability to disclose HIV positive status and insist on safer sex. They have also explored the potential harmful impact of the application of the criminal law on other responses to HIV, including the loss of confidentiality, as medical records can be subpoenaed in investigations to determine a person's guilt or innocence, which in turn has an impact on quality of counselling and care. In addition, this body of work has highlighted the need to focus resources and efforts on evidence-based prevention rather than on the creation and adaptation of criminal legislation, which diverts resources away from evidence-based prevention.

Criminalisation of HIV in sexual offences legislation

In addition to the increase in legislation that criminalises HIV transmission or exposure and the wider application of non-specific criminal law to HIV in recent years, HIV has also been addressed in the context of sexual offences legislation, or in parts of legislation on HIV and AIDS that address the vulnerability of women and girls to HIV. Less attention has been devoted to these forms of criminalisation of HIV.

In some of the most heavily affected countries in southern Africa, sexual offences legislation includes provisions for mandatory testing for HIV for persons charged or convicted of rape. The sexual offences legislation of Lesotho and South Africa provides for compulsory HIV testing of anyone charged with a sexual offence, Swaziland for convicted offenders and Zimbabwe for both charged and convicted offenders.¹⁶

International human rights instruments, including the UN Declaration on the Elimination of Violence Against Women,¹⁷ recognise the need for legal provisions to ensure that the rights of both the survivor of violence and the accused are protected, where sexual violence has been alleged or has occurred. Survivors of sexual violence have the right to access effective judicial redress and social care and support services. This includes access to post-exposure prophylaxis (PEP) to prevent transmission of HIV, prophylaxis and treatment for other sexually transmitted infections, emergency contraception and other sexual and reproductive health services, and psychosocial support services, as well as legal services.^{18 19 20*}

The UN General Assembly 2008 Resolution on eliminating rape and other forms of sexual violence in all their manifestations, including in conflict and related situations, urges states to provide: “access to appropriate health care, including sexual and reproductive health care, psychological care and trauma counselling, as well as to rehabilitation, social reintegration and, as appropriate, effective and sufficient compensation, in accordance with relevant international and national law.” ¹⁸

However, while many states have enacted legislation to this effect, implementation is still lacking,^{19 20 21} and recent research has documented the persistent challenges faced by survivors of sexual violence in accessing justice and support services.⁸⁹ These included poor policing practices and limited support for survivors. Where survivors were found to be eligible for post-exposure prophylaxis, follow-up to provide counselling and support to ensure adherence to the regimen was often insufficient, of poor quality or not available at all. Barriers to accessing services, which are often not widely available, especially in rural areas, mean they are out of reach for poor women, especially where the cost of transport is prohibitive. Poor police follow-up and limited support mean that few cases of sexual violence reach court and even fewer achieve a conviction. In the UK, for example, a 2007 report found a conviction was only reached in 5% of rape cases.²² In Guyana, a review of cases from 2000-2004 found a conviction rate of only 1.5%,²³ and in South Africa in 2005, 3% of men charged were convicted in cases of rape of adult women.²⁴

In Swaziland, the draft Sexual Offences Bill Section 2(8)(c), originally made public in 2006, proposed the death penalty for rape “where HIV/AIDS is an aggravating factor”.²⁵ While the aim of the bill was to address a very grave situation, in which women and young girls were at risk of contracting HIV through rape and systematic sexual abuse, the imposition of the death penalty violates the right to life and its threat and application is the ultimate violation of human rights. Its inclusion in such legislation undermines moves to restrict the use of the death penalty, especially the call by the UN General Assembly in 2007 for a global moratorium on the death penalty,²⁶ which has yet to be adopted.

Human rights advocates, including Amnesty International, urged revision of the Swazi bill to remove the death penalty and to strengthen protection for people living with HIV, which resulted in the death penalty being removed from the draft legislation. This approach would not preclude the state from pursuing common law charges against suspects, where evidence emerges of intentional exposure of another person to HIV. Concerns had earlier been raised that in order to apply such legislation, the survivor of sexual violence would be required to have an HIV test the results of which would be discussed as part of the criminal proceedings.²⁷ At this writing, the legislation has remained in draft form but there have been reports that it had been introduced in the Swazi parliament.²⁸²⁹

In Botswana, where the sexual offences legislation includes the criminalisation of HIV transmission, problems in the implementation of the legislation have been evident. These have included challenges to prove perpetrators of sexual violence who are HIV positive were aware of their HIV status at the time of committing the crime. Human rights activists have also described problems with proving that seroconversion to HIV of the survivor resulted from the sexual violence.³

In South Africa, the South African Law Reform Commission, the Parliamentary Joint Ad Hoc Committee on Socio-Economic Development and the Parliamentary Portfolio Committee on Justice and Constitutional Development considered the inclusion of the issue of criminalisation of transmission, and of compulsory HIV testing as part of the review of the Sexual Offences Bill in 2005 and 2006, respectively. In submissions made to the Parliamentary Joint Ad Hoc Committee on Socio-Economic Development, the National Working Group on the Sexual Offences Bill, a consortium of civil society groups, stated in 2005:

“There are existing common law offences that already criminalise the deliberate transmission – these have rarely been used and give rise to difficult questions of evidence and proof. A new offence will not change this in any way.” ³⁰

The AIDS Law Project in South Africa emphasised the need to protect both the rights of the survivor of sexual violence and the rights of the accused, as well as the desirability of limiting the spread of HIV.³¹ When the final bill was signed into law in December 2007, while it included provisions for HIV testing of persons charged with a sexual offence, it did not include any provision to criminalise HIV transmission.

WHO guidelines for the medico-legal care of survivors of sexual assault recommend that all survivors receive an HIV test following the assault, and a further test three months later if the first result is negative, and that the provision of PEP be determined according to whether there were risk factors for transmission of HIV to have occurred.³² CDC guidelines also recommend a case-by-case decision on whether PEP is necessary following sexual violence.³³

Where the alleged perpetrator is known and arrested, especially in a high HIV prevalence context, the survivor has a legitimate interest in knowing his or her HIV status. In South Africa, the testing of alleged perpetrators was included in the sexual offences legislation. However, some observers were concerned that testing a person who has been charged with sexual violence for HIV and then informing both the charged person and the survivor of the test result was an inappropriate role for the police if skilled counselling, support and follow-up are not available. In such a situation the survivor has to cope not only with the trauma of sexual assault but also the possibility of HIV transmission, where the perpetrator has tested positive.⁸ Confidentiality of a test result is also a concern where the HIV test has been done as part of a criminal justice procedure. To ensure implementation of this policy in a way that protects the human rights of the survivor and perpetrator, services need to be sensitive to the issues involved. This will in many cases require additional resources and training, including of police and criminal justice staff.

Conclusion

There is widespread concern that the introduction of punitive laws to address alleged intentional or reckless transmission of HIV will not contribute to or meet the goals that such legislation might be expected to deliver: protection of women and children; justice for victims of sexual violence and limiting the spread of HIV. Further, there is documented evidence of negative consequences for people living with HIV that arises from this legislation.^{1 6 7} This includes increased stigma, discrimination and harassment through law enforcement.³⁴

Often, frustration drives people to turn to the blunt and draconian instrument of the criminal law but it is a poor tool to achieve the stated goals. The legislative tools to respond effectively to actions that constitute criminally harmful behaviour already exist in most jurisdictions. These allow for the prosecution of individuals whose behaviour is accompanied by the intent to cause harm to another. Where such laws are found to be inadequate they can be revised.

To consider HIV transmission as an aggravating factor in cases of sexual violence is understandable and responds to the desire to protect the rights of the survivor and limit the spread of HIV. However, there is no universally agreed stance on this. In the South African discussions surrounding the revision of the sexual offences legislation, the impact of HIV in sexual violence cases was acknowledged but ultimately the law did not include HIV status as an aggravating factor, even as it acknowledges the right of the survivor to know the risk (and thus the HIV status of the accused). The UNAIDS policy brief,⁴ on the other hand, acknowledges that in situations of violence, including rape, where the transmission of HIV has occurred or the risk of HIV infection increased, it may be considered an aggravating factor, but only in cases where the perpetrator was aware of his or her HIV positive status.

Evidence presented here highlights some of the difficult deliberations in considering HIV in the context of sexual offences legislation, an important area that deserves further attention by human rights and HIV activists. As the UNAIDS policy brief notes:

“Governments should also strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and children; improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and children, and support women’s equality and economic independence, including through concrete legislation, programmes and services. These are the most effective means of protecting women and girls from HIV infection and should be given the highest priority.” ⁴

Initial support for laws criminalising HIV transmission or exposure by women’s advocates underscores their frustration that states have failed to address sexual violence, abusive intimate relationships and gender inequalities effectively.

The evidence underlines the importance of addressing the HIV epidemic and its social drivers, including gender inequality and violence, through the implementation of provisions set out in human rights instruments,^{17 18 35} and increased evidence-based prevention rather than punitive measures that are difficult and arbitrary to enforce and may result in human rights violations.

It also demonstrates the need to expand HIV testing – including to men – in a way that takes account of the gender dynamics in many countries with a generalised HIV epidemic, and that addresses gender inequality and violence against women. It shows the need to emphasise that sexual health, safe sex and the prevention of HIV infection is everyone’s responsibility, not only of people living with HIV and AIDS.

The introduction of HIV-specific criminalisation laws will undermine human rights. The only way to begin to address and to eliminate the marginalisation and stigmatisation of people living with HIV is to ensure that all laws and policies relevant to HIV are based on principles of human rights.

The impetus of policymakers needs to change from use of the criminal law in cases of HIV transmission to focusing on laws and policies that address and work towards the elimination of all forms of sexual violence, including access to effective justice and support services for survivors.

Note

The views expressed in this paper do not necessarily represent the policies of Amnesty International. The authors accept sole responsibility for the content of the paper.

Notes

* In the UK, phylogenetic tests of the virus have been used in criminal cases alleging the transmission of HIV; these has demonstrated the limitations of this method.¹⁴

† The International Community of Women Living with HIV/AIDS,¹⁰ Canadian HIV/AIDS Legal Network,¹ Open Society Institute,⁷ and International Planned Parenthood Federation⁶ have all published briefings or reports on this since 2007.

* A large amount of the evidence drawn upon in these papers is from South Africa, given the high levels of both sexual violence and HIV and AIDS.