HIV prosecutions may deter testing
Register Citizen
Should people living with HIV be charged with a crime if they fail to disclose their status to sex partners?
That’s currently the law in many places. But a new study suggests that such prosecutions might actually deter at-risk individuals from seeking medical advice and getting tested — thus making them more likely to transmit the virus.
In the wake of a series of high-profile HIV nondisclosure prosecutions, researchers surveyed men who have sex with men in Ottawa, Canada. They found that a significant minority of participants — 17 percent — said the prosecutions had “affected their willingness to get tested for HIV,” and nearly 14 percent said the prosecutions “made them afraid to speak with nurses and physicians about their sexual practices.”
The researchers found that this same group reported receiving less testing for HIV and other sexually transmitted infections, was more likely to engage in higher-risk sexual activities, and had a higher number of recent sexual partners.
The findings provide the first empirical support for the contention that HIV-related criminal laws might pose an obstacle to HIV testing. Until now, advocates for those living with HIV have only been able to point to anecdotal evidence that some people at risk for infection might avoid getting tested out of fear of being prosecuted — a phenomenon they have dubbed “take the test, risk arrest.” The reasoning? Knowing of an HIV-positive status can make one criminally liable, while not knowing can be a defense against prosecution.
Patrick O’Byrne, a professor in nursing at the University of Ottawa and the study’s lead author, cautioned that the research has several limitations. The sample was not randomized, subjects were recruited in high-risk sexual activity locations, and the demographic skews to white, gay men. The results, therefore, cannot be generalized.
In addition, O’Byrne says that the research “must be interpreted within its context: Ottawa, Canada within one year after a nondisclosure prosecution involving headline, front-page media attention.” O’Byrne pointed specifically to a case in which law enforcement officials ”released the [accused’s] full name, photograph, and sexual orientation.”
Indeed, according to a 2010 report by the Global Network of People Living with HIV, Canada has convicted more than 60 people of HIV-related crimes. That’s second only to the United States, which has convicted more than 300. (However, other countries had higher rates of prosecution per 1,000 people living with HIV.)
Carol Galletly — a professor, lawyer, and researcher at the Medical College of Wisconsin — says the results of the Canadian study might not translate to U.S. experiences. According to Galletly, preliminary analysis from at least one U.S. study on HIV criminalization currently undergoing review “did not reveal a deterrent effect” on testing.
Still, Galletly says scientists “can’t afford to ignore” O’Byrne’s research.
While HIV nondisclosure laws might be intended to stem HIV transmission, studies have suggested that they have little impact on risk behavior.
“Incidence of HIV infection in states with and without HIV exposure laws does not differ, as one would expect if the laws were preventing new infections,” says Galletly, who has been a leading researcher on the impact of HIV criminalization laws on behavior.
In addition, research suggests these laws may provide a misplaced sense of safety in relying on a partner to disclose his or her infection.
According to Galletly, “Preliminary data from an unpublished study seem to indicate that among persons who are at increased risk for HIV infection, awareness that one’s state has an HIV exposure law may be associated with increased confidence in [HIV-positive] status disclosure — a very problematic HIV prevention strategy.”
The issue of criminalization is slowly shaping into an international dialog. In several U.S. states, citizen groups are working to repeal HIV-specific laws. In Congress, a bill has been introduced by Rep. Barbara Lee that would encourage reform of state and federal HIV policies. And in 2010, President Barack Obama’s National HIV/AIDS Strategy called on states to revisit their laws.
Last week, the Global Commission on HIV and the Law recommended that HIV-specific laws be repealed. The report also recommends that those convicted under such laws be pardoned.
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