Criminalization of HIV Exposureby Jennifer Gibson, PharmD | November 4, 2011
Approximately 1.2 million people in the United States are infected with the human immunodeficiency virus (HIV). Roughly 20% of these don’t even know they are infected. What is more startling is that nearly 100% of the people infected with HIV don’t know they might be criminals.
Preventing sexually transmitted diseases is a difficult public health challenge, and HIV prevention is no exception. The use of criminal laws to address issues of HIV transmission and exposure are examined in a recent overview of international legal issues related to HIV, published in Future Virology. The authors of the article assert that the laws are misguided public health policy and should be repealed or reformed.
As of 2010, 53 countries had HIV-specific laws that criminalized virus exposure or transmission. Many other countries use existing non-HIV-specific laws related to sexual assault to criminalize virus exposure. The laws have been used to impose harsh penalties on those who have spread the virus, but still leave many question unanswered. What is the degree of responsibility necessary to cause criminal prosecution? Is non-disclosure of HIV status really equivalent to rape, sexual assault, or the intent to cause harm? Do safe sex practices mitigate criminal sanctions?
In the US, 36 states and 5 territories have laws criminalizing HIV transmission exposure through sexual contact or intercourse. Through 2010, 36 HIV-specific laws in the US resulted in more than 350 prosecutions for HIV exposure and transmission; a high percentage of these resulted in imprisonment of the offender.
The authors of the article acknowledge that sex brings out the worst in policy-makers, and many of these laws are the result of moral judgments rather than sound scientific evidence. Criminalization of any vice, be it food, drink, or sex, rarely leads to less of it, and criminalization of HIV exposure has never been shown to prevent the spread of infection. Interestingly, HIV is not nearly as contagious as many other viruses, even sexually-transmitted ones, but in the public’s mind, the virus’s roots in homosexuality, promiscuity, drug use, and sex work earned it regulation based on fear and stigma.
There are surely cases of people infected with HIV who have malicious intent to cause harm to others, but these cases are rare. Most people living with HIV do not intend to knowingly, cruelly inflict harm on others. Human rights advocates, as represented by the authors of the current article, do not support the use of criminal laws to address HIV exposure if there is no significant risk of transmission or when reasonable measures have been taken to reduce the risk of transmission; additionally, after full disclosure of HIV status, if all parties involved consent to sexual contact, criminal intent is not supported.
The authors also claim that criminal HIV statutes undermine public health responses to HIV, making people less likely to accept HIV testing or care, since that would make them culpable in “knowingly” transmitting the virus. Ignorance is a defense in this case, it seems. Additionally, punishing or imprisoning a person infected with HIV does not prevent them from spreading the virus. Situations and living conditions in prisons actually facilitate virus transmission owing to uncontrolled and unsafe sex practices, unsafe tattooing equipment, and drug use.
The authors assert that the criminal justice system should be reserved for administering justice for the most heinous and serious of crimes against society, not improving public health. Criminalization of HIV exposure does not incapacitate criminals, rehabilitate offenders, or prevent future virus transmission. Moral judgments are getting in the way of evidenced-based policy decisions. All of the achievements in removing the stigma associated with HIV over the last 2 or 3 decades are negated by the criminalization of virus exposure. Shared responsibility for safe sex practices and improved prevention education among the most at-risk groups are needed to prevent HIV exposure, not more laws.
The CDC estimates that approximately 50,000 people are newly-infected with HIV each year in the US. What would the criminal justice system look like if each of these people could prosecute the person that infected them? Would society be safer or healthier as a result?
Centers for Disease Control and Prevention (CDC) (2011). HIV surveillance–United States, 1981-2008. MMWR. Morbidity and mortality weekly report, 60 (21), 689-93 PMID: 21637182
Csete, J., & Elliott, R. (2011). Criminalization of HIV transmission and exposure: in search of rights-based public health alternatives to criminal law Future Virology, 6 (8), 941-950 DOI: 10.2217/fvl.11.74
Dodds C, Bourne A, & Weait M (2009). Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales. Reproductive health matters, 17 (34), 135-45 PMID: 19962647
Dodds C, Hammond G, Weatherburn P, Hickson F, Keogh P, Reid D, Henderson L, & Jessup K (2008). Homosexually active men’s views on criminal prosecutions for HIV transmission are related to HIV prevention need. AIDS care, 20 (5), 509-14 PMID: 18484317
Dodds C, & Keogh P (2006). Criminal prosecutions for HIV transmission: people living with HIV respond. International journal of STD & AIDS, 17 (5), 315-8 PMID: 16643681
Mears A (2007). The criminalization of HIV transmission in England and Wales: a brief review of the issues arising. Current opinion in infectious diseases, 20 (1), 47-53 PMID: 17197881
Prejean J, Song R, Hernandez A, Ziebell R, Green T, Walker F, Lin LS, An Q, Mermin J, Lansky A, Hall HI, & HIV Incidence Surveillance Group (2011). Estimated HIV incidence in the United States, 2006-2009. PloS one, 6 (8) PMID: 21826193
Image via Dan Bannister / Shutterstock.
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