US: Indiana Law Review critically examines how the state's HIV non-disclosure law is overly broad and problematic

Criminalization of HIV: Spread of the Viral Underclass

by Tyler J. Smith

J.D., 2015, Indiana University Robert H. McKinney School of Law

H-I-V. Arguably, no three letters in American society have generated more fear of a “viral underclass” [1] than those associated with the Human Immunodeficiency Virus (“HIV”). In many states, including Indiana, simply having HIV is a crime with potentially severe consequences. The criminalization of HIV is founded on a fear of something many people do not fully understand and the stigma of “HIV’s association with an ‘outlaw’ sexuality, anal intercourse, gay men, people of color, and people who use drugs.” [2] Indeed, convictions under these statutes rarely have anything to do with actual HIV transmission or risk of transmission. [3] Over thirty states currently have HIV specific criminal statutes “based on perceived exposure to HIV, rather than actual transmission of HIV to another.” [4]

The Infectious Diseases Society of America (IDSA) and HIV Medical Association (HIVMA) assert that “[c]riminalization is not an effective strategy for reducing transmission of infectious disease and in fact may paradoxically increase infectious disease transmission.” [5] Studies further indicate that “these laws discourage individuals from being screened and treated for conditions when early diagnosis and treatment of infected individuals is one of the most effective methods to control the disease.” [6] More people have been convicted under these laws in the United States and Canada than all other countries in the world combined. [7]

Numerous examples illustrate the unfounded fear and stigma that fuel egregious convictions and unjust sentences of HIV positive people. An HIV positive man in Michigan was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after he allegedly bit his neighbor. [8] Another HIV positive man in Texas is currently serving thirty-five years for spitting at a police officer. [9] A man in Iowa with an undetectable viral load received a twenty-five year sentence after a one-time sexual encounter in which he wore a condom. [10] His sentence was suspended, but he was placed on probation for five years and had to register as a sex-offender for ten years. [11]

Many states rightfully criminalize reckless, knowing, or intentional behaviors that actually put others at significant risk. However, some states have other criminal statutes that are overbroad, or criminalize simply having HIV and engaging in conduct that scientifically poses no risk of transmission. Such statutes clearly exhibit a complete lack of scientific understanding of how HIV is transmitted and because of their overbroad nature, give prosecutors “significant discretion in determining whether and how to prosecute individuals arrested or reported for HIV exposure.” [12] The actual risk of transmission depends on the amount of the virus in a person’s blood. [13] The risk-per-exposure for various sex acts, without factoring in how condoms or medical treatment reduce the risk even further, ranges from zero to eighty-two in 100,000. [14] Intravenous drug use risk-per-exposure ranges from sixty-three to 240 in 100,000. [15] Despite the relatively low risk, “courts rarely look at what a person did to further reduce the risk of transmission.” [16] Simply having HIV is a considered a crime.

With overwhelming bi-partisan support, criminalization of HIV became federal in 1990 with the Ryan White Comprehensive AIDS Resources Emergency Act. [17] The Act’s namesake, Ryan White, a thirteen-year old boy from Russiaville, Indiana, contracted the disease in 1984 following a blood transfusion. [18] This act created The Ryan White HIV/AIDS Program; the “most comprehensive Federal program that provides services exclusively to people living with HIV.” [19] It serves more than 500,000 people that do not have adequate health care coverage to manage their treatment. [20]

Congress exercised its power to control funding by requiring states to “protect against intentional transmission” to receive federal funding for the new program. [21] Section 2647 of the Act provided in part that “[t]he Secretary may not grant . . . to a State unless the chief executive officer determines that the criminal laws of the State are adequate to prosecute any HIV infected individual” who intended to transmit HIV through donation of bodily fluid, engaging in sexual activity intending to transmit HIV, or shared needles intending to transmit HIV. [22] This provision was repealed in 2000; however, the seeds for states to go above and beyond were already sown. Some states went further than what the federal law required by defining intentional transmission as non-disclosure of their positive status to a sexual partner. [23]

Although thirty-plus states criminalize HIV under HIV-specific criminal statutes or STD criminal statutes that specifically encompass HIV, [24] zero states have criminalized the transmission or the failure to disclose the positive status of other sexually transmitted diseases, such as the Human Papillomavirus (“HPV”). [25] According to the Centers for Disease Control and Prevention (“CDC”), 33,000 new cases of cancer are reported each year with about 26,900 of these cancers caused by HPV. [26] Nearly all cases of cervical cancer are caused by HPV [27] and 4074 women died of cervical cancer in 2012. [28] In 2013, an estimated 9278 women received a new diagnosis of HIV. [29] In 2012, among women who previously received a diagnosis of AIDS, an estimated 3561 women died. [30] Thus, more women were diagnosed with cancer caused by HPV than women who were diagnosed with HIV and more women died of cancer caused by HPV than women who died of AIDS. [31] Yet HPV has not been criminalized in any state. [32]

Portions of Indiana’s criminal code do make sense. Someone who recklessly, knowingly, or intentionally donates or sells semen or blood that contains HIV could rightfully face felony charges. [33] However, other statutory provisions in the criminal code are overbroad and punish scientifically unfounded conduct. For example, a person without HIV can be charged with a Class C Misdemeanor for “battery” by placing bodily fluid or waste on another person in a rude, insolent, or angry manner. [34] A person without HIV can be charged with “malicious mischief,” a Class B Misdemeanor, for placing bodily fluid or fecal waste with the intent that another person will involuntarily touch it. [35] If a person is HIV positive, both of these offenses become Level 6 Felonies for exposing to others any bodily fluid, including those scientifically proven to not transmit HIV. [36] Battery is a Level 5 Felony if the bodily fluid or waste is placed on a public safety officer, but only if the accused is HIV positive. [37] If the accused is not HIV positive, then committing battery on a public safety officer remains a Level 6 Felony. [38] Therefore, simply having HIV statutorily increases the penalty for these offenses.

Despite laws to the contrary, the CDC clearly states that “[c]ontact with saliva, tears, or sweat has never been shown to result in transmission of HIV.” [39] Very low quantities of HIV have been found in the saliva and tears of some AIDS patients. [40] However, “finding a small amount of HIV in a body fluid does not necessarily mean that HIV can be transmitted by that body fluid.” [41] HIV has not been found in the sweat of HIV-infected patients. [42] Indiana prosecutors have discretion to prosecute HIV positive persons criminally for a variety of offenses related to their HIV positive status regardless of intent to transmit or actual transmission and regardless of whether transmission is even scientifically possible.

Indiana law also criminalizes simply having what it defines a “dangerous communicable disease.” [43] Carriers of HIV, AIDS, and Hepatitis B have a duty to “warn or cause to be warned by a third party a person at risk” of the carrier’s disease status and the need to seek healthcare. [44] HIV positive persons must disclose their status to past, present, and future sexual or needle-sharing partners or face criminal penalty. [45] The burden of proof shifts to the accused to show he or she in fact disclosed his or her positive status to those past, present, or potential partners. [46] A person who “recklessly” violates the statutory provision commits a Class B Misdemeanor. [47] A person who “knowingly or intentionally” fails to comply with the statutory provision commits a Level 6 Felony. [48] Each day a violation of the duty statute continues is considered a separate offense. [49] In Indiana, a Class B Misdemeanor carries a penalty of imprisonment for a fixed term of not more than 180 days and a fine of not more than $1000, [50] and a Level 6 Felony carries a penalty of imprisonment for a fixed term between six months and three years, and a fine of not more than $10,000. [51] Neither the intent to transmit nor the actual transmission of HIV is required to be prosecuted under this statute. [52]

The “duty to warn” statutes make sense on their face, but no evidence exists to suggest these statutes fulfill their intent. Criminal consequences for a failure to disclose are intended by lawmakers to increase testing, encourage those who are positive to disclose, and thus decrease the number HIV infected persons. However, evidence and logic suggest the opposite is true. [53] People at risk are afraid to know their status in fear of being prosecuted.

Because public health is a significant state interest, one would think that state legislators would pass laws based on science and logic, not on fear of what or whom they do not understand. HIV is not easily transmitted, yet nearly seventy percent of states criminally target conduct unlikely to result in harm and increase criminal penalties for simply having HIV. [54] The first step in solving a problem is acknowledging there is one. States, including Indiana, must look beyond their own fear to see the “viral underclass” they have statutorily created. Having HIV or any disease should not be a crime.

[1] Sean Strub, Prosecuting HIV: Take the Test – And Risk Arrest?, Positively Aware (May/June 2012), http://www.positivelyaware.com/archives/2012/12_03/prosecutingHIV.shtml [https://perma.cc/3ZK7-RTYF].

[2] Sean Strub, Body Counts: A Memoir of Activism, Sex, and Survival 393 (2014).

[3] Id.

[4] H.R. Res. 1586, 114th Cong. (2015) (Introduced in Congress on March 24, 2015, this bill seeks to modernize laws and eliminate discrimination with respect to people living with HIV/AIDS).

[5] Infectious Diseases Society of America (IDSA) and HIV Medicine Association Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases, HIV Med. Ass’n (Mar. 2015), http://www.hivma.org/uploadedFiles/HIVMA/Policy_and_Advocacy/HIVMA-IDSA-Communicable%20Disease%20Criminalization%20Statement%20Final.pdf [https://perma.cc/G7AQ-WAN4].

[6] Id.

[7] Glob. Network of People Living With HIV, The Global Criminalisation Scan Report 2010 12 (2010), available at http://www.gnpplus.net/assets/wbb_file_updown/2045/Global%20Criminalisation%20Scan%20Report.pdf [https://perma.cc/X4CM-A44R] (reporting more than 300 people have been convicted under these laws in the United States and more than sixty in Canada).

[8] The Ctr. for HIV Law & Policy, Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions (May 2015), available at http://hivlawandpolicy.org/resources/ending-and-defending-against-hiv-criminalization-state-and-federal-laws-and-prosecutions [https://perma.cc/3E24-YVGZ].

[9] Id.; see also German Lopez, An HIV-Positive Man in Texas is Serving 35 Years in Prison for Spitting on a Cop, Vox (Feb. 19, 2015, 4:10 PM), http://www.vox.com/2015/2/19/8071687/hiv-criminalization [https://perma.cc/PP5Q-HLY5].

[10] The Ctr. for HIV Law & Policy, supra note 8; see also Diana Anderson-Minshall, Amazing HIV+ Gay Men: Nick Rhoades, Plus (Sep. 11, 2014 4:00 AM), http://www.hivplusmag.com/people/2014/09/11/amazing-hiv-gay-men-nick-rhoades [https://perma.cc/8NJX-L7EX].

[11] Id.

[12] The Ctr. for HIV Law & Policy, Ending & Defending Against HIV Criminalization: A Manual for Advocates 9 (2015), available at http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/HIV%20Crim%20Manual%20%28updated%205.4.15%29.pdf [https://perma.cc/S5D2-RHNU].

[13] See generally The Ctr. for HIV Law & Policy, Why Are We Putting People in Jail for Having HIV? (Nov. 2015), http://www.hivlawandpolicy.org/resources/why-are-we-putting-people-jail-having-hiv-a-grassroots-guide-hiv-criminalization-facts [https://perma.cc/DTF8-V7J9].

[14] Id.

[15] Id.

[16] Id.

[17] Pub. L. No. 101-381, 104 Stat. 576 (1990) (Congress reauthorized this act in 1996, 2000, 2006, 2009, and 2013).

[18] Who Was Ryan White?, Dep’t. Health & Hum. Servs., http://hab.hrsa.gov/abouthab/ryanwhite.html [https://perma.cc/7P2W-VKE5] (last visited Mar. 4, 2016).

[19] Ryan White CARE Act Celebrates 25^th Anniversary, Dep’t. Health & Hum. Servs. (Aug. 18, 2015), http://www.hhs.gov/about/news/2015/08/18/ryan-white-care-act-celebrates-25th-anniversary.html [https://perma.cc/HQD4-4EQD].

[20] Id.

[21] Ryan White Comprehensive AIDS Resources Emergency Act of 1990 § 2647.

[22] Id.

[23] See Mich. Comp. Laws 333.5210 (2015).

[24] The Ctr. for HIV Law & Policy, supra note 12, at 292.

[25] Strub, supra note 2, at 393.

[26] HPV and Cancer, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/cancer/hpv/statistics/cases.htm [https://perma.cc/TQY8-YQRM] (last updated June 23, 2014).

[27] Which Cancers Are Caused by HPV, Nat’l Cancer Inst., http://www.cancer.gov/about-cancer/causes-prevention/risk/infectious-agents/hpv-fact-sheet#q2 [https://perma.cc/M7K8-N7PT] (last reviewed Feb. 19, 2015).

[28] Cervical Cancer Statistics, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/cancer/cervical/statistics/#2 [https://perma.cc/HV3Y-DNMZ] (last visited Dec. 9, 2015).

[29] HIV Among Women, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/hiv/group/gender/women/ [https://perma.cc/9ED7-5ZJ6] (last reviewed Nov. 9, 2015).

[30] Id.

[31] Strub, supra note 2, at 393.

[32] Id.

[33] Ind. Code § 16-41-14-17 (2015).

[34] Id. § 35-42-2-1(b), (e), (g).

[35] Id. § 35-45-16-2(a)-(f).

[36] Id. § 35-42-2-1(b), (e), (g); id. 35-45-16-2(a)-(f).

[37] Ind. Code § 35-42-2-1(g).

[38] Id. § 35-42-2-1(d)(2).

[39] HIV and Its Transmission, Ctrs. for Disease Control & Prevention (July 1999), http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/CDC%2C%20HIV%20and%20its%20transmission.pdf [https://perma.cc/T2PQ-LPXC].

[40] Id.

[41] Id.

[42] Id.

[43] Ind. Code § 16-41-7-1.

[44] Id.

[45] Id.

[46] Id.

[47] Id. § 16-41-7-5.

[48] Id. § 35-45-21-3.

[49] Id.

[50] Id. § 35-50-3-3.

[51] Id. § 35-50-2-7(b).

[52] Id. § 16-41-7-1.

[53] HIV Medical Ass’n, supra note 5.

[54] The CTR. for HIV Law & Policy, supra note 12, at 292.

UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review

Following a scoping consultation which ran from autumn 2014 to spring 2015, the Law Commission (of England and Wales) has now published its report containing their final recommendations to the UK Government.

It recommends the adoption of a modified version of a 1998 draft Bill to replace the outdated Offences Against the Person Act 1861.

However, whereas the 1998 Bill only criminalised intentional disease transmission, their recommendation is to keep the existing law relating to HIV and other serious diseases ((based on Dica and Konzani and clarified through prosecutorial policy and guidelines) which criminalises reckless as well as intentional disease transmission, pending a wider review.

Both in the scoping consultation paper and in this report, we have considered the criminalisation of disease transmission at great length. Many consultees supported fundamental reform of the law in this area. However, we conclude that the issues were more complex than time or space allowed without delaying the main aim of reforming the law of offences against the person. For this reason, we suggest modifications to the draft Bill to preserve the present position pending a wider review involving more input from healthcare professionals and bodies.

The full report, (chapter six: ‘transmission of disease’ is excerpted in full below), includes a detailed discussion of their proposals and the responses of 35 concerned stakeholders (most of them experts in law, public health and human rights. The HIV Justice Network was one of them, and our opinions are quoted throughout.)

The entire report is of interest not just to those working on this issue in England & Wales, but globally. It rehearses, in great detail, nearly all of the arguments for and against HIV (and other STI) prosecutions, and finds that “there is a strong body of opinion, especially in the medical profession and groups concerned with HIV and sexually transmissible infections, that the transmission of these diseases should never be criminal unless done intentionally.”

The report helpfully summarises the five main arguments against overly broad HIV criminalisation:

(1) an offence of reckless transmission encourages people to choose not to be tested, so as not to have the awareness of risk that might constitute recklessness;

(2) it discourages openness with (and by) medical professionals, because they may have to give evidence against their patients;

(3) it encourages people to think that disclosure of HIV status is always a duty, and that if a potential partner has not mentioned his or her status then he or she is not infected;

(4) because of the difficulty of proving transmission, the existence of the offence leads to very wide-ranging and intrusive investigations affecting a great many people, out of all proportion to the small number who will be found deserving of prosecution; and

(5) the whole topic of HIV/AIDS is affected by an atmosphere of fear (often irrationally so), and there is still an undesirable stigma against people.

Nevertheless, although the report states that “it would be preferable to revert to the law as it stood in 1998” when prosecutions were not possible and to use the draft 1998 Bill as it stands (which would only criminalise the intentional transmisison of disease), it comes to a more conservative conclusion.

The discussion of this issue has almost exclusively concerned the transmission of disease by consensual sexual intercourse, and the transmission of HIV in particular. (Also, most of the evidence for the harmful effects of criminalisation is drawn from countries where there are specific offences concerned with HIV and STIs, and may not be relevant to the use of general offences of causing injury.) The same reasoning may well not apply to other diseases and other means of transmitting them, but the draft Bill excludes disease as a whole.

For these reasons, on the evidence we have we do not feel justified in recommending a change to the position in existing law, in which the reckless transmission of disease is in principle included in an offence of causing harm. If there is to be a change, this should follow a wider review which compares the position in different countries and gives full consideration to the transmission of diseases other than by sexual means.

Of note, and of global relevance, following a great deal of discussion (and a broad range of consultation responses) regarding whether not to create an HIV/STI-specific law and/or broaden the scope of the current law to include non-disclosure and/or potential or perceived exposure, the Law Commission is clear.

We do not recommend the creation of specific offences concerned with disease transmission, either in relation to disease in general or in relation to HIV and STIs in particular: this too would require a wider review of all the available evidence. Nor do we recommend an offence of putting a person in danger of contracting a disease, or an offence of failing to disclose an infection to a sexual partner.

Law Commission Scoping Report: TRANSMISSION OF DISEASE (November 2015)

Canada: New film explores the impact of using sexual assault law to prosecute HIV non-disclosure

This week sees the release of an important new short film from the Canadian HIV/AIDS Legal Network.

Consent: HIV non-disclosure and sexual assault law interrogates whether criminalising HIV non-disclosure does what the Supreme Court of Canada believes it does – protect sexual autonomy and dignity – or whether, in fact, it does injustice both to individuals charged and to the Canadian criminal justice system’s approach to sexual violence.

Produced together with Goldelox Productions, with whom the Legal Network also collaborated on their powerful 2012 documentary’ Positive Women: Exposing Injustice, this 28-minute film features eight experts in HIV, sexual assault and law whose commentary raises many questions about HIV-related legal developments in Canada.

At a time when society seems to be taking the prevalence of sexual

violence and rape culture more seriously, this film dares to ask some

difficult questions about its limits in the law. The law of sexual

assault is intended to protect women’s sexual autonomy, equality

and dignity, yet as applied with respect to alleged HIV non-disclosure,

these values are not necessarily being advanced. Through expert

testimonies, Consent shines a light on the systemic obstacles women

face in disclosing their HIV status, points to the dangerous health

and human rights outcomes of applying such a harsh charge as

aggravated sexual assault to HIV non-disclosure, and makes the

argument that the law needs to better protect those who are living

with and vulnerable to HIV. Consent demonstrates that advocacy

efforts opposing the overly broad criminalization of HIV non-disclosure

must address the use of sexual assault law and that such efforts must

do so alongside feminist allies.

From: http://www.consentfilm.org/about-the-film/

The Canadian HIV/AIDS Legal Network has for some time been exploring the implications of using sexual assault law to prosecute HIV non-disclosure cases, given the marked differences between the types of conduct that are typically referred to as sexual assault (including rape) and HIV non-disclosure cases.

In April 2014, the Legal Network convened leading feminist scholars, front-line workers, activists and legal experts for a ground-breaking dialogue on the (mis)use of sexual assault laws in cases of HIV non-disclosure. Consent: HIV non-disclosure and sexual assault law was filmed during this convening.

Their analysis demonstrates that the use of sexual assault law in the HIV non-disclosure context – where the sexual activity is consensual other than the non-disclosure – is a poor fit and can ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence.

The Consent website ( in English / in French ) also lists future screenings across Canada, which will be accompanied by panels and workshops, as part of an ongoing strategy to build up allies among women’s rights advocates for the longer-term work.

A discussion guide will also soon be available.

Canada: New study finds majority of women living with HIV who also inject drugs face legal obligation to disclose HIV status to sexual partners

A new study presented to the International AIDS Society conference in Vancouver, Canada last week (IAS 2015) found that 44 per cent of participants within a research cohort of people who use injection drugs living with HIV in Vancouver would be legally obligated to disclose their HIV status to their sexual partners. Within the study, 65 per cent of male participants compared with only 45 percent of female participants satisfied the Supreme Court of Canada’s legal test for HIV non-disclosure, based on the October 2012 ruling in R v. Mabior.

Under current case law, people living with HIV must disclose their HIV status to a partner before sexual activity unless both a condom is used and a low HIV viral load is present.

The vast majority (98 per cent) of cohort participants in this study either self-reported always using a condom or achieved a low HIV viral load (<1500 copies/ml), and as such took steps to reduce the risk of HIV transmission to sexual partners. A person living with HIV who is appropriately treated and sustained on effective antiretroviral therapy will have an undetectable viral load, meaning the chance they will spread the virus is extremely low.

“The law as it currently stands places an additional veil of threat over an already vulnerable and criminalized population within one of Canada’s most impoverished communities,” said British Columbia Centre for Excellence in HIV/AIDS Director, and IAS 2015 conference co-chair, Dr. Julio Montaner. “Current non-HIV non-disclosure laws in Canada are not aligned with the state of the scientific evidence, and as a result create further stigma and fear around HIV.”

“The criminalization of HIV non-disclosure can affect people living with HIV in Canada in many ways,” said Valerie Nicholson, an Aboriginal woman living with HIV and the Chair of the Board of Directors at Positive Living BC. “People may face criminal charges for not disclosing, which can lead to lengthy and damaging criminal prosecutions – based on no scientific evidence. In the wider community, the law increases stigma and discrimination, does not account for power or control imbalances in relationships, compromises our ability to lead healthy sex lives and may introduce questions about the limits of confidentiality in the health care setting.”

The poster presentation of the study, “Gender differences in meeting legal obligations to disclose HIV status within a cohort of HIV-positive illicit drug users in Vancouver” is below.

Patterson, Sophie. Gender differences in meeting legal obligations to disclose HIV status within a cohort o…

World Health Organization publishes analysis of impact of overly broad HIV criminalisation on public health

A new report from the World Health Organization, Sexual Health, Human Rights and the Law, adds futher weight to the body of evidence supporting arguments that overly broad HIV criminalisation does more harm than good to the HIV response.

Drawing from a review of public health evidence and extensive research into human rights law at international, regional and national levels, the report shows how each country’s laws and policies can either support or deter good sexual health, and that those that support the best public health outcomes “are [also] consistent with human rights standards and their own human rights obligations.”

The report covers eight broad areas relating to sexual health, human rights and the law, including: non-discrimination; criminalisation; state regulation of marriage and family; gender identity/expression; sexual and intimate partner violence; quality of sexual health services; sexuality and sexual health information; and sex work.

The authors of the report note that it provides “a unique and innovative piece of research and analysis. Other UN organizations are examining the links between health, human rights and the law: the United Nations Development Programme’s (UNDP’s) Global Commission on HIV and the Law published its report in 2012, and the Office of the High Commissioner for Human Rights (OHCHR) and United Nations Special Rapporteurs regularly report to the Human Rights Council on the impact of laws and policies on various aspects of sexual health. Nevertheless, this is the first report that combines these aspects, specifically with a public health emphasis.”

The points and recommendations made relating to overly broad HIV criminalisation (italicised for ease of reference) are included in full below.

Executive Summary: The use of criminal law (page 3)

All legal systems use criminal law to deter, prosecute and punish harmful behaviour, and to protect individuals from harm. However, criminal law is also applied in many countries to prohibit access to and provision of certain sexual and reproductive health information and services, to punish HIV transmission and a wide range of consensual sexual conduct occurring between competent persons, including sexual relations outside marriage, same-sex sexual behaviour and consensual sex work. The criminalization of these behaviours and actions has many negative consequences for health, including sexual health. Persons whose consensual sexual behaviour is deemed a criminal offence may try to hide it from health workers and others, for fear of being stigmatized, arrested and prosecuted. This may deter people from using health services, resulting in serious health problems such as untreated STIs and unsafe abortions, for fear of negative reactions to their behaviour or health status. In many circumstances, those who do access health services report discrimination and ill treatment by health-care providers.

International human rights bodies have increasingly called for decriminalization of access to and provision of certain sexual and reproductive health information and services, and for removal of punishments for HIV transmission and a wide range of consensual sexual conduct occurring between competent persons. National courts in different parts of the world have played an important role in striking down discriminatory criminal laws, including recognizing the potentially negative health effects.

3.4.5 HIV status (pages 22-23)

Although being HIV-positive is not itself indicative of sexual transmission of the infection, individuals are often discriminated against for their HIV-positive status based on a presumption of sexual activity that is often considered socially unacceptable.

In addition, in response to the fact that most HIV infections are due to sexual transmission, a number of countries criminalized transmission of, or exposure to, HIV, fuelling stigma, discrimination and fear, and discouraging people from getting tested for HIV, thus undermining public health interventions to address the epidemic.

Even where persons living with HIV/AIDS may be able, in principle, to access health services and information in the same way as others, fear of discrimination, stigma and violence may prevent them from doing so. Discrimination against people living with HIV is widespread, and is associated with higher levels of stress, depression, suicidal ideation, low self-esteem and poorer quality of life, as well as a lower likelihood of seeking HIV services and a higher likelihood of reporting poor access to care.

HIV transmission has been criminalized in various ways. In some countries criminal laws have been applied through a specific provision in the criminal code and/or a provision that allows for a charge of rape to be escalated to “aggravated rape” if the victim is thought to have been infected with HIV as a result. In some cases, HIV transmission is included under generic crimes related to public health, which punish the propagation of disease or epidemics, and/or the infliction of “personal injury” or “grievous bodily harm”.

Contrary to the HIV-prevention rationale that such laws will act as a deterrent and provide retribution, there is no evidence to show that broad application of the criminal law to HIV transmission achieves either criminal justice or public health goals. On the contrary, such laws fuel stigma, discrimination and fear, discouraging people from being tested to find out their HIV status, and undermining public health interventions to address the epidemic. Thus, such laws may actually increase rather decrease HIV transmission.

Women are particularly affected by these laws since they often learn that they are HIV-positive before their male partners do, since they are more likely to access health services. Furthermore, for many women it is either difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences, and they may therefore face prosecution as a result of their failure to disclose their status. Criminal laws have also been used against women who transmit HIV to their infants if they have not taken the necessary steps to prevent transmission. Such use of criminal law has been strongly condemned by human rights bodies.

Various human rights and political bodies have expressed concern about the harmful effects of broadly criminalizing the transmission of HIV. International policy guidance recommends against specific criminalization of HIV transmission. Human rights bodies as well as United Nations’ specialized agencies, such as UNAIDS, have stated that the criminalization of HIV transmission in the instance of intentional, malicious transmission is the only circumstance in which the use of criminal law may be appropriate in relation to HIV. States are urged to limit criminalization to those rare cases of intentional transmission, where a person knows his or her HIV-positive status, acts with the intent to transmit HIV, and does in fact transmit it.

Human rights bodies have called on states to ensure that a person’s actual or perceived health status, including HIV status, is not a barrier to realizing human rights. When HIV status is used as the basis for differential treatment with regard to access to health care, education, employment, travel, social security, housing and asylum, this amounts to restricting human rights and it constitutes discrimination. International human rights standards affirm that the right to non-discrimination includes protection of children living with HIV and people with presumed same-sex conduct. Human rights standards also disallow the restriction of movement or incarceration of people with transmissible diseases (e.g. HIV/AIDS) on grounds of national security or the preservation of public order, unless such serious measures can be justified.

To protect the human rights of people living with HIV, states have been called on to implement laws that help to ensure that persons living with HIV/AIDS can access health services, including antiretroviral therapy. This might mean, as in the case of the Philippines, for example, explicitly prohibiting hospitals and health institutions from denying a person with HIV/AIDS access to health services or charging them more for those services than a person without HIV/AIDS (167).

International guidance also suggests that such laws should be consistent with states’ international human rights obligations and that instead of applying criminal law to HIV transmission, governments should expand programmes that have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative.

3.6 Legal and policy implications (pages 29-30)

5. Does the state consider that establishing and applying specific criminal provisions on HIV transmission can be counter-productive for health and the respect, protection and fulfilment of human rights, and that general criminal law should be used strictly for intentional transmission of HIV?

The full report can be downloaded from the WHO’s Sexual and Reproductive Health website.

UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process

This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair – will conclude its scoping consultation of the reform the Offences Against The Person Act, the law that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The deadline for responses is this Wednesday 11 February 2015.

The consultation is a scoping review – it is looking at the scope of whether a further full review of the existing law should take place, rather than examining what the law should be.

The consultation asks six key questions (out of 38) specifically relating to HIV (and STI) criminalisation:

We consider that future reform of offences against the person should take account of the ramifications of disease transmission. Do consultees agree?
We also consider that in such reform consideration should be given to: (1) whether disease should in principle fall within the definition of injury in any reforming statute that may be based on the draft Bill; (2) whether, if the transmission of sexual infections through consensual intercourse is to be excluded, this should be done by means of a specific exemption limited to that situation. This could be considered in a wider review; alternatively (3) whether the transmission of disease should remain within the offences as in existing law. Do consultees agree?
If the transmission of disease is to be included in any future reform including offences causing injury, it will be necessary to choose between the following possible rules about the disclosure of the risk of infection, namely: (1) that D should be bound to disclose facts indicating a risk of infection only if the risk is significant; or (2) that D should be bound to disclose facts indicating a risk of infection in all circumstances; or that whether D was justified in exposing V to that risk without disclosing it should be a question for the jury in each particular case. Do consultees have any preference as to these possible rules?
We consider the reform of offences against the person should consider the extent to which transmission of minor infections would be excluded from the scope of injury offences. Do consultees agree?
Do consultees consider that future reform should pursue the possibility of including specialized offences of transmission of infection, endangerment or non-disclosure?
Do consultees have observations on the use of ASBOs, SOPOs or other means of penalizing non-disclosure?

Responses to the scoping consultation, including those from the HIV Justice Network, will be published soon. Following the consultation, the Law Commission will decide on their recommendations for the scope of reform in this area and present them to Government in the form of a scoping report.

In the meantime, the summary of key findings and outputs from the Economic and Social Research Council’s seminar series ‘Criminalizing Contagion: legal and ethical challenges of disease transmission and the criminal law’, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014, provides a comprehensive legal and academic overview regarding how the law should treat a person who transmits, or exposes others to the risk of, a serious infection such as HIV.

Written jointly by David Gurnham, Catherine Stanton and Hannah Quirk, the report provides a detailed overview of the discussions in the seminars as well as the numerous publications arising from them, and acknowledges contributions made by various groups and individuals.