More HARM Than GOOD: How overly broad HIV criminalisation is hurting public health
In many countries around the world, people with HIV are being made criminally liable for HIV prevention.
Despite strong recommendations against this overly broad use of the criminal law by UNAIDS and the Global Commission on HIV and the Law, the latest report from the Global Network of People Living with HIV and the HIV Justice Network highlights that new laws continue to be proposed and enacted, and more prosecutions are taking place than ever before.
This 30 minute video from the HIV Justice Network, filmed at an international meeting on HIV prevention and criminal law in Toronto in April 2013, features interviews with social scientists, researchers and legal and public health experts who have studied the public health impact of HIV criminalisation.To download this video please click on the Vimeo link on the bottom right of the video which takes you the video on the HIV Justice Network’s Vimeo channel. Here you will have the option to download Mobile, SD and HD files.
Studies cited in the film
- Lazzarini Z et al. Evaluating the Impact of Criminal Laws on HIV Risk Behavior. Journal of Law, Medicine & Ethics, Vol. 30, No. 2, Summer 2002.
- Burris S et al. Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial. Arizona State Law Journal, 2007; Temple University Legal Studies Research Paper No. 2007-03.
- Galletly C and Pinkerton S. Conflicting Messages – How Criminal HIV Disclosure Laws Undermine Public Health Efforts to Control the Spread of HIV. AIDS and Behavior, 10, 451-461, 2006.
- Galletly C et al. Sexual behavior, stigma, perceived hostility, comfort with disclosure and New Jersey’s HIV exposure law. American Journal of Public Health, 102(11), 2135-2140, 2012.
- Mykhalovskiy E. The problem of “significant risk”: Exploring the public health impact of criminalizing HIV non-disclosure. Soc Sci Med. Sep;73(5):668-75, 2011.
- Adam B et al. How criminalization is affecting people living with HIV in Ontario. Ontario HIV Treatment Network, 2012.
- Adam B et al. Impacts of Criminalization on the Everyday Lives of People Living with HIV in Canada. Sex Res Soc Policy, August 2013.
- O’Byrne P and Gagnon M. HIV Criminalization and Nursing Practice. Aporia 4(2), 5-34, 2012.
- Hoppe T. Controlling Sex in the Name of Public Health, Social Problems, Vol. 60, No. 1, February 2013.
- Sero Project National Criminalization Survey 2012.
- O’Byrne P et al. Nondisclosure prosecutions and population health outcomes: examining HIV testing, HIV diagnoses, and the attitudes of men who have sex with men following nondisclosure prosecution media releases in Ottawa, Canada. BMC Public Health. Feb 1; 13:94, 2013.
- O’Byrne P et al. Nondisclosure Prosecutions and HIV Prevention: Results From an Ottawa-Based Gay Men’s Sex Survey. J Assoc Nurses AIDS Care. Jan-Feb; 24(1):81-7, 2013.
In addition, Patrick O’Byrne and colleagues at the University of Ottawa have reviewed all studies published to date on the public health impact impact of HIV criminalisation, which summarises all of the studies above, as well as others not mentioned in the documentary.
FEATURE STORY: Why overly broad HIV criminalisation is doing more harm than good
The most commonly cited rationale of the criminal law is to deter morally unacceptable behaviour through fear of punishment. Scott Burris and Zita Lazzarini were the first to explore whether US laws that criminalised HIV non-disclosure had the impact that the lawmakers intended.
Carol Galletly has added much to the body of evidence on the impact of laws that criminalise HIV non-disclosure. Working with a number of colleagues, she published a number of studies, including this one in 2006 and this one in 2012 examining whether or not these laws are having the impact they were intended to have.
Most laws and prosecutions focus on disclosure – in other words, whether or not the person with diagnosed HIV told their sexual partner before having sex. Whilst this may be the right thing to do, does this actually benefit HIV prevention? Eric Mykhalovskiy organised the workshop precisely because his own research found that criminalising non-disclosure was having the opposite effect of what was intended.
Barry Adam is Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network and lead author of How criminalization is affecting people living with HIV in Ontario.
Studies by Eric Mykhalovskiy, Chris Sanders and Martin French (the latter two are currently undertaking research studies and have not yet published their findings) have uncovered an unanticipated negative impact of HIV criminalisation on the healthcare workers who test and treat people with HIV, complicating their practice as public health professionals. They found that the criminal law is creating a chill, closing down discussions about HIV on both sides. (An in-depth report on the impact of HIV criminalisation on nursing practice can be found here.)
Trevor Hoppe found another, more sinister impact on healthcare workers. During his PhD research he discovered that some heath officials in Michigan’s public health system appeared to be invested in prosecuting people with HIV for not disclosing their status, resulting in some potentially problematic outcomes for HIV prevention.
One of the most worrying aspects of HIV criminalisation is the additional disincentive it plays in a person’s willingness to take an HIV test: a significant number of new infections come from people who are undiagnosed. But testing is not just about knowing one’s HIV status to modify behaviour, it’s also the gateway to accessing HIV treatment and care.
New guidelines from the World Health Organization now highlight that HIV treatment works not only to keep people alive and well for a lifetime, but also prevents new infections by reducing HIV to undetectable levels. Where there is no virus, there can be no transmission. Since treatment is also prevention, then not testing or accessing treatment, hurts not only the individual but also the communities in which they live, harming the broader public health.
Laurel Sprague is the Research Director of the Sero Project, and oversaw their 2012 national HIV criminalisation survey.
Patrick O’ Byrne is lead author of the 2013 review article, HIV criminal prosecutions and public health: an examination of the empirical research. He has also studied the impact of HIV prosecutions on gay men and documented how fear of HIV criminalisation has impacted their sexual and testing practices.
Criminalisation is a divisive issue with strong opinions often informed by morality and a desire to achieve justice by punishing perceived wrongdoing. However, understanding the impact of HIV criminalisation on public health is critical to making informed policy decisions.
The 2013 UNAIDS guidance note, Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations aims to ensure that any application of criminal law in the context of HIV achieves justice and does not jeopardise public health objectives.
The entire guidance is available below, and can be downloaded here.
The HIV Justice Network produces videos in conjunction with georgetown media that we hope are useful for both education and advocacy. If you find this or our other videos useful, please let us know.