Basics
A number of cases have been reported in which people living with HIV (Human Immunodeficiency Virus) have been criminally charged for a variety of acts that transmit HIV or risk transmission. In some cases, criminal charges have been laid for conduct that is merely perceived as risking transmission, sometimes with very harsh penalties imposed. Some jurisdictions have moved to enact or amend legislation specifically to address such conduct. The issue has also received public and academic commentary. In Europe alone, hundreds of people have been prosecuted, and several have been convicted.
These developments raise the question of whether criminal laws and prosecutions represent sound policy responses to conduct that carries the risk of HIV transmission, or if public health laws should be applied. Individual cases, and accompanying media coverage, may prompt public calls for such a response.
Info cards
AIDS (Acquired Immune Deficiency Syndrome) is the most serious stage of HIV infection. It results from the destruction of the infected person's immune system by the virus.
Your immune system is your body's defense system. Its cells fight off infection and other diseases. HIV weakens these defences by attacking and destroying these cells.
1. When they have too few CD4 cells (white blood cells that fight infection), or
2. They develop an AIDS-defining illness (one unusual in someone not HIV positive).
HAART is currently the most efficient treatment against the development of AIDS. Possible side effects are:
• liver problems
• diabetes
• high cholesterol
• increased bleeding in patients with hemophilia
• nerve problems
HIV can mutate (change form) while a person is taking anti-HIV medication. This may result in HIV that can no longer be controlled with those medications.
No one can tell for sure if a baby from an HIV positive mother will be born HIV infected. A drug called ZDV has been shown to reduce the risk of passing HIV to a baby by almost 70%.
Some health departments and HIV clinics have anonymous systems for this. Partners are told that they have been exposed to HIV, but are not told when or who provided their name.
1996
New HIV cases: 7600
New AIDS cases: 4100
2003
New HIV cases: 13300
New AIDS cases: 1800
Change 1996-2003
New HIV cases: +75%
New AIDS cases: -55%
The reduction in AIDS cases is mainly explained by a treatment called HAART (see infocard 4), introduced in 1997.
The most drastic increases in the number of new HIV diagnoses have been in the Baltic countries (Estonia, Latvia, Lithuania).
Reporting on HIV infections is still incomplete: some of the countries with the largest HIV/AIDS epidemics (Italy and Spain) do not yet have a national reporting system.
Nearly half of newly diagnosed cases in the 25 countries of the European Union in 2003 were in Italy (27%) and Spain (21%). Yet they only represent 22% of the EU population.
Women’s raising share of total number of people diagnosed:
1985: 10%
1995: 20%
2003: 27%
42%
Heterosexual contact
31%
Injected drug use
19%
Homo/bisexual contacts
The rate of new infections in the Russian Federation, Ukraine, and nearby countries has been the highest in the world. In Russia and Ukraine, one adult in every hundred is infected.
1. Prison stops the offender from reoffending while serving their sentence.
2. Help the offender change their behaviour
3. Punishment for wrongdoing
4. Deter people from offending in the future.
The World Health Organization says, “there is no public health rationale to justify isolation or quarantine based solely on the fact that a person is suspected or known to be HIV-infected”.
People may be forced into such activities (e.g. being raped or stabbed with a needle) or they may be willing participants (e.g. consensual sex, sharing injection equipment).
Generally it is gross negligence, that is reckless disregard for the safety of others, more than mere, ordinary negligence, that must be proved in order for the individual in question to be judged guilty of a crime.
Despite the treatments currently available, there is still no prospect of removing the HIV virus completely from the body. So there is always a risk of the virus being transmitted.
Every HIV infection that is detected and treated at an early stage is estimated to prevent between 10 and 20 further infections in the longer term.
When used consistently, this results in an 80% risk reduction as compared with unprotected sex.
With some sexual techniques, the risk of transmitting the HIV virus is so negligible that a person who is HIV-positive can engage in safer sex without using a condom.
• Wilfulness: you wish to harm someone
• Recklessness: you accept a significant risk that what you do will cause this harm
• Negligence: you did not intend to cause harm, but failed to exercise reasonable care to prevent the results
At least 130 people in Europe have been convicted for transmitting or exposing another person to HIV infection. In 90% of the cases this was through consensual sex.
Issue cards
Studies have found a direct relationship between poverty and the number of cases of AIDS. In addition, socioeconomic problems associated with poverty, including lack of access to good health care, can increase the risk of HIV infection.
Too often, stigma and ignorance have fuelled the AIDS epidemic by driving the problem underground. This has been particularly devastating when political leaders have not acknowledged and confronted the epidemic.
Three main actions are needed: prevention; treatment and care; and support systems and partnerships. The majority of these actions do not fall within the responsibility of the European Union, but are for individual countries to take.
The main aims should be:
1. Preventing the transmission of HIV
2. To conform to international human rights.
Imprisoning a person with HIV does not prevent them from spreading the virus, either during partners’ visits or to other prisoners.
1. Encourage prevention, for example safer sex practices
2. Improve access to HIV testing and health care for all, and in particular for migrants and poor people
Punishment is only justified for conduct that is morally blameworthy. This is unrelated to the main aim of preventing the transmission of HIV.
Criminal laws that only relate to HIV, inflammatory media coverage, or politicians’ comments on individual prosecutions stigmatises people with HIV as potential criminals and as a threat to the public.
If people who are aware of their HIV-positive status can be criminally prosecuted, this could put people off from getting tested.
Criminalizing HIV-positive people could create a false sense of security among people who are HIV-negative. They may think that this reduces the risk of unprotected sex.
There is a risk of invading people’s privacy, if counselling or health records are not kept confidential or through publicising court proceedings.
People do not need to know the HIV status of their sexual partner to make choices. These include omitting risky sexual acts or taking preventive measures such as using a condom.
If a person who knows of his/her partner’s HIV-positive status freely agrees to participate in some risky activity, then there is no justification for criminal charges against the HIV-positive person.
Good laws are based on good data. AIDS laws must not be based upon ignorance, fear, political expediency and pandering to the demand of the citizenry for ‘tough’ measures.
Experience with the HIV/AIDS epidemic confirms that the promotion and protection of human rights are essential in tackling HIV/AIDS.
Punishing people simply on the basis of their HIV status violates their human rights, especially the right to equal protection before the law and freedom from discrimination.
The main incentive to get tested is to get treatment. But most people with HIV/AIDS live in countries where treatment is unavailable or unaffordable.
For some women, simply suggesting that their husband use a condom can provoke physical abuse. If they are HIV positive, should they be punished if they transmit the virus? What if they become HIV positive from unprotected sex with their husband?
Should it only be conduct that actually results in HIV transmission, or also conduct that risks transmitting HIV even if there is no actual transmission?
All risky activities undertaken without the consent of the other person should attract criminal liability regardless of the HIV status of the people involved.
The main risk factors are the concentration of the HIV virus in the blood, generally highest immediately after an untreated infection, and whether an HIV infection is combined with other sexually transmitted diseases or infections.
Where two individuals enter into sexual relations, both are responsible for taking measures to protect their health and prevent undesirable effects (such as pregnancy or infection with HIV).
Adequate protection is available against infectious diseases such as HIV. If people are properly informed about the potential risks and have an opportunity to protect themselves, there is no need for legal protection.
Society cannot operate successfully unless everyone takes some responsibility for other people’s well-being. This includes preventing HIV and other infectious diseases.
Story cards
Policies
Enact HIV-specific criminal law
Apply existing criminal law offences (e.g. endangering public health, offence against the person, assault, etc.) to allow the prosecution for all forms of HIV transmission, including reckless and accidental.
Duty to disclose status
Enable a duty by law for HIV positive people to disclose their status before engaging in risk-transmitting activities with other people, even if these activities are consensual.
Use the law, but don’t create HIV-specific legislation
Apply existing criminal law and public health legislation where appropriate, but do not create HIV-specific legislation for deliberate, reckless or accidental transmission.
Prevention and counselling
Use prevention and counselling rather than the law. This means access to: 1. HIV testing, accompanied by counselling 2. information about avoiding HIV transmission and 3. the economic, social and personal support necessary to avoid conduct that risks HIV transmission
FUND is a project funded by the European Commission (