Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health
Primary Author:
Jeffrey Crowley1
1 O’Neill Institute for National and Global Health Law, Georgetown University, Washington, District of Columbia, United States
Abstract Body:
Laws and policies have been used to protect people living with HIV and affected communities from stigma and discrimination. Indeed, the Americans with Disabilities Act (ADA) and the UN Convention on the Rights of Persons with Disabilities are just two legal instruments that help to create environments where people feel safe enough to come forward for HIV testing and to engage in care. Laws and policies also are used in ways that are highly stigmatizing and that hinder public health approaches to responding to HIV. In the United States, thirty-four states and territories have laws that criminalize the conduct of people living with HIV based on perceived exposure to HIV and without any evidence of intent to do harm. Far from representing a legacy of the past, people with HIV continue to be prosecuted and jailed for failure to disclose their HIV status prior to engaging in sex and for spitting and biting offenses, often in the context of arrest by law enforcement. Moreover, this is a challenge in countries across the globe. As of 2013, twenty-six African countries had overly broad and/ or vague HIV-specific criminal laws, most enacted over the past decade, with a further three countries considering new HIV-specific criminal laws. As governments, clinicians, researchers, and advocates seek to maximize population-level HIV viral suppression both to protect the health of people with HIV and also to reduce HIV transmission, these laws and policies could hinder our collective efforts. This talk will examine the current landscape of HIV criminal laws and policies in the US and selected African countries, will examine available data on the effectiveness of such laws at deterring behaviors such as failure to disclose HIV status prior to sexual encounters, and will look for common lessons from both Africa and the US to suggest a path forward for promoting effective evidence-based approaches to reducing HIV transmission.
Session Number:
S-5
Session Title:
Advancing HIV Prevention: Lessons from Biology, Medicine, and Public Health Law
Presenting Author:
Crowley, Jeffrey
Presenter Institution:
Georgetown University
Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women
The Court will hear arguments on behalf of two applicants – Pitty Mpofu and Samukelisiwe Mlilo – both of whom were unfairly convicted of “deliberate transmission of HIV” in 2012, and who are now represented by Zimbabwe Lawyers for Human Rights (ZHLR).
“The provision is too wide, arbitrary and therefore violative of the protection of the law guarantee. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.”Applicants head of arguments (1.1)
Law on trial
Although the ‘crime’ in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.
It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.”
This, argues the applicants, is overly broad and unconstitutionally vague.
”Criminal and/or public health should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”
It is eminently clear that Section 79 does not ensure that “elements of foreseeability, intent [or] causality” are adequately provided for, although there is a defence of informed consent via disclosure. (It is not clear, however, exactly what needs to be disclosed, given that it is possible to be prosecuted for anything that might be a risk even if you haven’t been tested).
Although the Zimbabwe law predates other African laws based on the flawed N’Djamena model law, funded and disseminated with US international aid money, it contains many of the same problems. (Zimbabwe passed the first version of Section 79 in 2001 and updated it in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.)
Notably, it recommends defining ‘deliberate transmission of HIV’ as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”.
It further recommends that no criminal liability should be imposed upon:
an act that poses no significant risk of HIV infection.**
a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.
a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.
a person living with HIV who practised safer sex, including using a condom.**
a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.
a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.
a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.
the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.
**The issues of significant risk and safer sex (along with the difficulties of proving timing and direction of transmission) are further expounded upon in UNAIDS expanded and updated 2013 guidance.
However, Zimbabwe could also decide to do away with Section 79 altogether, and implement a new law based on a model law developed for the Southern African Development Community (SADC; www.sadc.int), which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.
This model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008, integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission.
Today, they will launch the documentary in Harare under the banner; ‘HIV on Trial – a threat to women’s health’.
Ms Mlilo was found guilty of ‘deliberately’ infecting her husband with HIV and faces up to 20 years in jail despite there being no proof that she had infected her husband. She claims she had disclosed her status to him following her diagnosis during pregnancy, and that her husband only made the complaint in revenge for her own complaint of gender-based violence following the breakdown of their marriage.
“At this point we do not know who infected who,” ZLHR’s Tinashe Mundawarara told Voice of America News in August 2012. “This is an example of the violation of women’s rights. Women are likely to know of their status first. Mlilo might have been infected by her husband, no one knows, and got charged and convicted.”
The other applicant, Pitty Mpofu, was also found guilty of ‘deliberate’ transmission of HIV a month after Ms Mlilo.
It was alleged that he infected his wife sometime between October 2009 and June 2011 , although he wasn’t diagnosed until “sometime in 2010.” No proof regarding timing nor direction of transmission was provided during the trial.
Highest number of reported criminal prosecutions in Africa
The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.
In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.
UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process
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.
Sex, criminal law & HIV non-disclosure: What is wrong with Canada’s approach to HIV non-disclosure? (Canadian HIV/AIDS Legal Network, 2014)
This is the second of two short videos from the Canadian HIV/AIDS Legal Network explaining what the law currently is relating to HIV non-disclosure (covered in Part 1) and what is wrong with this approach. Watch Part 1 here: http://bit.ly/1oMs1DM
The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, people living with HIV continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.
Last week saw the launch of a new phase of a targeted social marketing campaign by AIDS ACTION NOW! (AAN) that features 42 short videos from members and allies of Toronto’s LGBTQI community.
‘Think Twice’ asks HIV-negative and untested gay, bi, queer and trans men to reconsider pressing charges for HIV non-disclosure (where there was no alleged HIV transmission) when they discover that a sexual partner has not disclosed their HIV-positive status before sex.
In October 2012, the Supreme Court of Canada confirmed that non-disclosure of known HIV status can be charged as aggravated sexual assault – with up to life imprisonment and sex offender registration – even if the person with HIV uses a condom: in order to avoid legal liability, they must also have a low viral load.
‘Think Twice’ is an AAN campaign originally launched just prior to the Supreme Court’s ruling aimed at decreasing the number of criminal prosecutions related to HIV non-disclosure. AAN want people involved in the criminalisation of HIV non-disclosure—people living with HIV, their sexual partners, police, Crown prosecutors, health care providers and others—to consider the complexity and uncertainty of Canada’s overly broad approach to HIV criminalisation, and the implications of their role in criminal prosecutions for HIV non-disclosure.
The first part of their campaign targeted Crown prosecutors since they play a pivotal role in driving criminal prosecutions.
Since December 2012, the ‘Think Twice’ campaign has also focused on another key advocacy target – potential complainants.
This new phase of the ‘Think Twice’ campaign focuses specifically on gay, queer, and trans men and other men who have sex with men, due a change in community norms in the past few years that has resulted in an increase in the numbers of men going to the police to lay charges against other men living with HIV.
According to the Canadian HIV/AIDS Legal Network, while the majority of cases in Canada are against men who had sex with women, an increasing number of gay men and other men who have sex with men are being charged and prosecuted in Canada. Whereas there were only five known cases prior to 2006, a further 25 cases have been tracked up to December 2013.
For this latest phase of the ‘Think Twice’ campaign, AAN placed an open call for gay, queer, bi and trans men, and their allies, to make a video that answered the question: ‘In 45 seconds what would you say to gay men to convince them to think twice before going to the police when a sex partner hasn’t disclosed to them.’
Although they only expected to make 25, a total of 42 individuals made videos, in a project organised by Jordan Bond-Gorr, Lauryn Kronick, Tim McCaskell and Eric Mykhalovskiy and filmed by multi-disciplinary artist, John Caffery, in Toronto over one weekend in August.
JUSTICE DEPARTMENT RELEASES BEST PRACTICES GUIDE TO REFORM HIV-SPECIFIC CRIMINAL LAWS TO ALIGN WITH SCIENTIFICALLY-SUPPORTED FACTORS
WASHINGTON – The Justice Department announced today that it has released a Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors. This guide provides technical assistance regarding state laws that criminalize engaging in certain behaviors without disclosing known HIV-positive status. The guide will assist states to ensure that their policies reflect contemporary understanding of HIV transmission routes and associated benefits of treatment and do not place unnecessary burdens on individuals living with HIV/AIDS.
This guide is in follow-up to the department’s March 15, 2014, article published with the Centers for Disease Control and Prevention (CDC), Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, which examined HIV-specific criminal laws. Generally, these laws do not account for scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken. As a result, many of these state laws criminalize behaviors that the CDC regards as posing either no risk or negligible risk for HIV transmission even in the absence of risk reduction measures.
“While initially well intentioned, these laws often run counter to current scientific evidence about routes of HIV transmission, and may run counter to our best public health practices for prevention and treatment of HIV,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. “The department is committed to using all of the tools available to address the stigma that acts as a barrier to effectively addressing this epidemic.”
The department’s efforts to provide guidance on HIV-specific criminal laws are part of its ongoing commitment to implementation of the National HIV/AID Strategy, released in 2010. Today’s guide furthers the expectation from the Office of National AIDS Policy that we tackle misconceptions, stigma and discrimination to break down barriers to care for those people living with HIV in response to the President’s Executive Order last year on the HIV Care Continuum Initiative. For more information on the National HIV/AIDS Strategy, visit the White House website.
The U.S. Department of Justice (DOJ) today issued important new guidance to help end the use of state criminal laws to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status. DOJ’s guidance, titled “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors,” rebuts the unsupported assumptions that triggered the adoption of most state criminal laws targeting HIV; outlines the impact on individuals and public health of the stigma these HIV-specific laws reinforce; and explains the current scientific knowledge and medical developments that compel reform.
“HIV criminalization laws are rooted in profound ignorance about the roots, risks and consequences of HIV transmission. This ignorance reflects and perpetuates stigma associated with an HIV diagnosis, and has no place in law and public policy,” said Catherine Hanssens, Executive Director of The Center for HIV Law and Policy (CHLP). “Today’s guidance is the first of its kind from a government law enforcement agency, and an important step in addressing that ignorance. The Department of Justice rightly focuses on three essential truths: that HIV is not an easy virus to transmit, that treatment and other risk-reduction methods can reduce that risk to negligible or zero, and that currently available therapies have transformed HIV into a manageable chronic disease.”
Nearly two-thirds of U.S. states have HIV-specific laws that impose criminal sanctions on people who do not disclose their HIV positive status to a sexual partner or who engage in behavior – such as spitting or biting – that poses virtually no risk of transmitting HIV. Regardless of whether HIV transmission occurs, those who are charged are prosecuted as serious felons, often receive lengthy sentences, and in nine states are burdened with mandatory sex offender registration. The classification of HIV exposure and transmission as a serious felony is grossly out of proportion to the actual threat of harm.
“The DOJ guidance carefully outlines the facts that call for modification of sentences associated with HIV transmission or exposure – the impact of current treatment options and the impact on life quality and expectancy. I wish the guidance more explicitly connected the dots by directly calling for an end to felony prosecutions. At the same time, this is the clear context for that information in the guidance,” Hanssens noted.
A number of states also use general criminal charges such as assault or reckless endangerment to prosecute people living with HIV who are sexually active or who are charged following altercations with law enforcement personnel. The DOJ guidance does not directly address these laws, although its underlying rationale is applicable to all forms of state HIV criminal law policy.
“At 43 years old I never imagined how different my life would be because of my arrest and incarceration,” says David Plunkett who was sentenced to 10 years in New York State, which has no HIV specific criminal law, for “assault with a deadly weapon” – his saliva. “I also never realized the stigma attached to those with HIV and especially those who also have a criminal record. I should have been able to focus on my health and career, not battling a system that incarcerates those who live with a chronic illness, and remains uninformed about the nature and transmission of HIV.”
Stigma associated with HIV is a barrier to testing, treatment, and prevention. Recent studies show that antiretroviral therapy can reduce the already-small per-act risk of transmission by an additional 96%, but approximately 16-20% of the one million Americans living with HIV do not know they have the virus and likely are the primary source of new infections. Those who are newly infected, when the level of HIV virus in their bodies is high, but who are unaware that they are infected, are the most likely to transmit HIV to another partner.
“Today, the risk of transmission of HIV from a patient taking effective medical therapy is close to zero, and the life expectancy of a newly diagnosed patient with HIV is nearly indistinguishable from his uninfected neighbor. But HIV remains with us and will do so as long as those who are infected are not diagnosed and treated,” says Dr. Wendy Armstrong, Program Director for the Infectious Disease Fellowship Training Program at Emory University in Atlanta, Georgia. “Criminalization laws do nothing to advance individual or public health, but rather enhance stigma, embrace blame, and discourage testing. There are more effective means to combat this epidemic.”
The guidance notes that many HIV-specific criminal laws run counter to scientific evidence about routes of HIV transmission, and undermine public health goals such as promoting HIV testing and treatment. DOJ recommends that states reform their laws to eliminate HIV-specific criminal penalties, with the exception of sentence enhancement in cases of sexual assault where HIV transmission could occur or in cases in which a person with HIV acts with the intention to transmit HIV and engages in conduct posing a significant risk of transmission.
The DOJ guidance is the product of two directives: one is President Obama’s National HIV/AIDS Strategy, which tasked DOJ with assessing HIV criminal laws and offering technical assistance to states looking to reform their laws; the other is a Congressional Committee Report that accompanied the Commerce, Justice, Science, and Related Agencies Appropriations Bill 2014, which called for similar action and an analysis of civil commitment laws used to extend the confinement of registered sex offenders. The DOJ guidance is available at http://hivlawandpolicy.org/resources/us-department-justice-calls-states-eliminate-or-reform-archaic-hiv-criminalization-laws.
Through the Positive Justice Project (PJP), a national coalition of organizations and individuals working to end HIV criminalization in the United States, CHLP is actively working with community advocates and people living with HIV across the country to modernize HIV-related criminal laws.
The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.
Regardless of the merits of individual cases, criminal prosecution of people for exposure or transmission of HIV is considered by some commentators to be problematic because prosecutions:
Quebec develops expert consensus on viral load and HIV transmission risk | CATIE – Canada's source for HIV and hepatitis C information
Quebec develops expert consensus on viral load and HIV transmission risk In the past few years, a large body of evidence has emerged supporting the use of antiretroviral therapy (ART) as an HIV prevention tool.
The AMA Adopts a Resolution Opposing HIV Criminalization
The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.
You can select your preferred language from the 'Select Language' menu at the top of the page.
Continue
We use cookies to ensure that we give you the best experience on our website. By continuing to use our site, you are agreeing to our use of cookies. You can change your cookie settings at any time if you want. Find out more in our Privacy & Cookie Policy.