HIV is a virus, not a crime
The Gleaner
CALLS FOR laws to address the “reckless and conscious transmission” of HIV touch a nerve. The ensuing public dialogue and quick political feedback are fuelled by increased awareness of the Caribbean’s 18,000 new HIV infections every year, 2,100 of which are in Jamaica. Support for criminalisation reflects a desire to reduce the spread of the virus while exacting justice for those who were intentionally infected.
The situation points to something more: the difficulty over the last decade in reducing the number of new HIV cases, the failure to develop and maintain programmes targeted at populations at highest risk, and the fallout of limited access to treatment. Another reality of HIV in this time is that treatment has been proven to be 96 per cent effective in preventing transmission between couples. Expanding access to such treatment, supporting increased condom use and bolstering the uptake of testing and counselling services are effective ways of reducing the transmission of HIV and protecting the most vulnerable. Criminalisation isn’t.
There’s no need for HIV-specific criminal laws
There are persons who maliciously transmit HIV with intent to harm others, and they should face appropriate criminal prosecution. For these cases there is no need to create HIV-specific legislation. The alternative is to invoke existing laws relating to assault or criminal negligence. In determining whether an act of transmission should attract criminal penalties, the complexities of human sexual behaviour must be carefully and fairly discerned. What are the reasonable and enforceable lines between criminal and non-criminal behaviour when it comes to HIV transmission?
There are several circumstances in which an HIV-positive person either does not present a significant risk of transmission or does not have criminal intent. Does the individual know that he is HIV positive? Does she understand how HIV is transmitted? Did he tell his partner that he was HIV positive or believe that his partner knew his status? Did she practise safe sex and regularly take medications? Was there an understanding that intimacy involved a certain degree of risk? A criminal law specifically related to HIV would cast all persons living with the virus as potential criminals and intensify the hysteria surrounding the virus.
Criminalisation is counterproductive
The stigmatisation of people living with HIV has implications for society as a whole. There are serious repercussions for public health when constructive responses are undermined by ineffective laws. Our legacy of legislating human sexual behaviour – from prostitution to abortion, to sodomy – bears out that statutes are often irrelevant to individual decision making surrounding sex. Before or after conviction, in or out of prison, the law does nothing to stop an individual from engaging in risky activities.
But while these laws may not be effective deterrents they do have an impact: the behaviours they are meant to curb are driven underground and become more difficult to address. The most powerful tools for promoting disclosure and safer sex are interventions anchored by voluntary testing and counselling and outreach. Criminalisation could reduce people’s willingness to learn their status and access treatment and support.
Criminal laws are often unfairly and selectively enforced. Where they exist these laws are often applied to people who are the most socially or economically marginalised. Migrants, sex workers, gay men and other men who have sex with men (MSM) and transsexual people can become easy targets for arrest. Women are also more vulnerable to prosecution under such laws because they access health services more frequently than men and are therefore likely to find out about their HIV status sooner. The partner who is aware of his or her status is not always the one who first contracted HIV. Infidelity, rape, sexual coercion and unequal power relations are among the dynamics that increase women and girls’ vulnerability to both HIV infection and prosecution under such laws.
Criminal cases give the authorities the green light to investigate anyone they suspect of having passed on HIV. This can manifest as an invasion of privacy as well as a breach of confidentiality. It has the impact of creating distrust in relationships between HIV-positive people and their health-care providers. People may fear that information regarding their status may be used against them. The provision of quality treatment and care is anchored in trust, and there should be no wide-ranging basis for violating this principle.
Responsibility of HIV-positive person
Jamaica’s HIV prevalence rate is 1.7 per cent. Exposure to the virus is a risk that every sexually active individual has a personal responsibility to manage. But a law relating to HIV transmission squarely places responsibility for risk-reduction only on people living with HIV.
Additionally, criminalisation may create a false expectation that the law has eliminated any danger from engaging in unprotected sex. Not knowing a partner’s status or assuming that he or she does not have a disease are not sufficient reasons for neglecting to use protection, discuss each other’s status and get tested. Ultimately those are the behaviours that will lead to a decline in HIV.
The way forward
Jamaica must within the next two years reduce its number of new infections by 50 per cent. Criminalisation won’t accomplish this, but more effective prevention programmes can. We need better access to sound information, services and support for all individuals including young people, gay men and other men who have sex with men, sex workers and prisoners. We need more counselling and testing. We need better access to age-appropriate sexuality education. We need to make it easier for sexually active people to obtain condoms and personal lubricants. We need interventions that support HIV-positive people in disclosing and practising safer sex. We need to continue to combat stigma and discrimination so that people can make healthy, responsible and safe choices about their lives, including decisions relating to sex and reproduction.
Developing an isolated law to criminalise transmission intensifies the climate of denial, secrecy and fear, providing an ever more fertile ground for the spread of HIV. Comprehensive legal reforms to address discrimination and vulnerability along with policy directives to improve the reach and quality of prevention programmes are needed. The criminalisation of HIV transmission won’t help.
