Australia: Review critical of Victoria’s public health response to ‘risky’ HIV-positive individuals

A review of the Victorian Health Department’s management of ‘risky’ HIV-positive people has been published. The Age puts its own negative spin on the story, but somewhat reassuring is the response from Dr John Carnie, Victoria’s chief health officer.

He said cases warranting police intervention were rare and that the review reinforced education and counselling to change people’s behaviour rather than criminal prosecution.

The full story, from The Age, is reproduced below.

‘Reckless’ HIV patients not reported
Julia Medew
The Age
February 23, 2008

HEALTH authorities failed to refer to police HIV-positive people who ignored warnings not to have unprotected sex, a report has found.

A review of the Department of Human Services’ management of “risky” HIV-positive people has also revealed authorities lost track of people they were monitoring and did not take action against some who breached public health orders restricting their behaviour.

The review, of 15 cases before the department last year, urges an overhaul of procedures.

The review was ordered by former health minister Bronwyn Pike last year after she sacked Victoria’s chief health officer Dr Robert Hall for his management of HIV-positive people who exposed others to the virus.

The review found that while swift and decisive action was taken against some people, there were “occasions where the evidence demanded action but none was forthcoming”.

Most of the cases under review involve either recent migrants or gay men.

The examination, carried out by former Western Australian police commissioner Bob Falconer, and former health bureaucrat Dr John Scott, said: “The reviewers believe . . . that involvement of police without the client being referred to police has not always happened when it should have, and this is by no means a recent issue.

“The authors have found the system is in need of significant overhaul and improvement.”

It is understood that more than one of the cases reviewed included examples of criminal behaviour that should have been referred to the police.

The report said people who had been served with public health warnings controlling their behaviour were often “uncontactable for a period of time” and that a number of clients who breached behavioural rules were not properly controlled.

The review also found:

■There was no dedicated facility to isolate HIV-positive people who posed a risk to public health under the Health Act.

■Internal procedures for managing cases left a perception that decisions about people’s cases were made in an “ad hoc” fashion.

■Legal advice for “contentious” decisions resulted in “significant delays in action being taken” against people.

■Access to interpreters was minimal.

Victorian chief health officer Dr John Carnie yesterday said changes had been implemented to ensure the department returned to “world’s best practice”. He said the department had been working with Victoria Police to create a shared understanding of each agency’s role in managing cases of concern. He said cases warranting police intervention were rare and that the review reinforced education and counselling to change people’s behaviour rather than criminal prosecution.

A Canadian expert who reviewed the report said the department’s new protocols were in line with world best practice.

Health Minister Daniel Andrews said the Government was committed to implementing the review’s recommendations.

Australia: Western Australia proposes new public health laws to detain HIV-positive people who ‘put others at risk’

A proposed change to Public Health law in the State of Western Australia would allow people with HIV to be detained and forced to undergo medical treatment.

WA’s Public Health executive director, Tarun Weeramanthri, used recent concerns over a sex worker who was named and shamed by health officials in the Australian Capital Territory, to argue that these changes were a good thing.

Ironically, Health Consumers Council executive director, Michelle Kosky, is also for the changes. She believes that the new law would provide HIV-positive individuals with more rights, because for the first time, it allowed people detained under these laws to be able to appeal to the State Administrative Tribunal.

Full story from The Sunday Times (of Australia) below:

Disease carriers may be detained without charge
By Anthony Decegle
February 24, 2008 01:00am
Article from: The Sunday Times

PEOPLE carrying dangerous diseases and sexually transmitted infections, such as HIV, could be detained without charge and forced to undergo medical treatment under legal changes.

A new public health Bill is set to replace the existing law, which is nearly 100 years old, and give the The Western Australian Health Department powers to deal swiftly with individuals who it suspects pose a threat to the community.

Those affected could be banned from venues such as nightclubs, public baths or bars and have to submit to supervision or face the threat of a $50,000 fine. They could also be forced to take antibiotics.

If passed, the new law would replace the WA Health Act 1911 which, according to State Government literature, has “significant limitations in regard to its application to people who knowingly expose others to the risk of HIV infection”.

Public Health executive director Tarun Weeramanthri said the deliberate spreading of sexual diseases was a real threat.

The Health Department was forced to put out an urgent warning earlier this month after a 41-year-old male sex worker infected with HIV was charged by police in the Australian Capital Territory.

The sex worker previously lived in WA.

“It is believed that the man may have had unsafe sex with clients in the ACT and other jurisdictions, including WA,” Communicable Disease Control director Gary Dowse said.

“It is believed some of the people contacted may have been WA residents and it is possible that other persons in WA may have had contact with the man in the past.”

Dr Weeramanthri said the Public Health Bill clarified the terms for dealing with people who had infectious diseases.

“The old act gives certain powers, but doesn’t say exactly under what circumstances you may apply them,” he said.

“This Bill clarifies the range of circumstances in which someone might act.”

Dr Weeramanthri said the Bill was based on a principle of precaution; officials could act on suspicions faster.

“If you think there is a serious risk in the intermediate to long term, even though you may not have all of the evidence right now, it’s ethical and prudent to act on the risk,” he said.

“You can’t just use the lack of definitive evidence as an excuse for not acting. You use common sense.”

Public Health Association national president Mike Daube said the Bill would modernise public health legislation.

“It ensures that the health of the community is properly protected,” he said. “This is much better than trying to work off legislation that was written long before HIV was even dreamed of.”

The Health Department refused to reveal the number of people with an STD infection who were being monitored.

Health Consumers Council executive director Michelle Kosky said the new Bill would provide people with more rights. For the first time, these individuals would be able to appeal to the State Administrative Tribunal.

New Zealand: New bill proposes to make HIV a notifiable disease

A Press release from the New Zealand AIDS Foundation highlights concerns over the forthcoming Public Health Bill to make HIV a notifiable disease. The NZAF supports the Bill as along as all the necessary epidemiological information remains anonymised.

NZAF is keen to point out that this data collection system has not and would not involve identification of HIV positive people.

“This is about collecting the ‘what’, ‘where’ and ‘how’ of new HIV infections, not the ‘who’,” Le Mesurier explains. “The confidentiality of HIV positive New Zealanders must be protected.

“However, we need reliable data to map the changes in the HIV epidemic. For example, treatment-related deaths are a new complication that can only be monitored by analysing HIV diagnoses, rather than AIDS.

HIV data collection must be secured
Friday February 22, 2008

Adding HIV to the Ministry of Health’s list of notifiable conditions will help create an “HIV census”, ensuring that anonymous data collection on New Zealand’s HIV and AIDS epidemic is secured for the future, says the New Zealand AIDS Foundation (NZAF).

NZAF is supporting moves in the forthcoming Public Health Bill to make HIV a “notifiable” condition, providing the current anonymous coding system is retained. AIDS has already been a notifiable condition since 1985 with no breaches of confidentiality.

“AIDS represents the end result of HIV infection, and with the effectiveness of new treatments for HIV, information on AIDS notifications are increasingly less useful as a tool for tracking the spread of the epidemic,” says Rachael Le Mesurier, Executive Director of the New Zealand AIDS Foundation.

New HIV diagnosis information is currently sent by GPs, sexual health clinics and NZAF centres to the AIDS Epidemiology Group at Otago University, who collate the six-monthly AIDS New Zealand reports.

This system has been working very well since 1985 and has been entirely voluntary. Nearly 2,500 New Zealanders with HIV have given their permission for data on their diagnosis to be collected and published in AIDS New Zealand.

“The AIDS Epidemiology Group currently receives information on over 95% of HIV diagnoses, but there is no legal requirement for this data to be collected,” Le Mesurier says. “With the many demands placed on our health services, and the good news that treatments have drastically reduced AIDS deaths, we need to ensure that HIV is given the priority treatment it deserves by making the anonymous data collected secure for the future.”

NZAF is keen to point out that this data collection system has not and would not involve identification of HIV positive people.

“This is about collecting the ‘what’, ‘where’ and ‘how’ of new HIV infections, not the ‘who’,” Le Mesurier explains. “The confidentiality of HIV positive New Zealanders must be protected.

“However, we need reliable data to map the changes in the HIV epidemic. For example, treatment-related deaths are a new complication that can only be monitored by analysing HIV diagnoses, rather than AIDS.”

The Public Health Bill is currently before the Health Select Committee. The closing date for submissions is Friday March 7, 2008.

Singapore: Government plans to criminalise ‘risky sex’ without prior disclosure

An interesting article from Bloomberg (which is usually more associated with business news than with HIV policy) on Singapore’s worrying plans to criminalise people who do not disclose they have previously had “unsafe” sex, and have “reason to believe” they may be HIV-positive, previously reported here last September.

Offenders would face as much as 10 years in prison and a S$50,000 fine. Penalties for those who know they’re HIV-positive and don’t inform their partners, already a crime under legislation that took effect in 1992, would be increased to the same level. No one has been prosecuted under the existing law.

Enforcement would depend on an aggrieved partner filing a complaint and prosecutors proving that a defendant had a history of high-risk sexual behavior.

HIV Ignorance Is No Defense in Singapore Plan to Curb Risky Sex

By Simeon Bennett

Feb. 12 (Bloomberg) — Every weekend, men from Singapore take a one-hour ferry ride to Indonesia’s Batam Island for cheap golf, beer and sex.

About S$70 ($49) hires an island prostitute for the day, compared to just an hour with a Singapore hooker. The trade has contributed to a doubling of Singapore’s HIV infection rate in the past 10 years, the government says.

The city-state proposes to curb infections by making it a crime for those who engage in such unsafe practices, and thus have “reason to believe” they may be HIV-positive, to have sex without informing their partners of the risks. United Nations groups and AIDS activists say that would violate human rights and increase infection rates by encouraging anonymous sex.

“Stigma and discrimination are major drivers of the HIV epidemic,” Dr. Roy Chan, president of the Singapore advocacy group Action for AIDS, said in written comments on the legislation, which may be considered by parliament this month. “The net effect will be poorer control of HIV infection.”

The government disagrees, saying the bill would encourage people to get tested and avoid risky behavior such as having unprotected gay sex or frequenting prostitutes. Violators may be prosecuted even if they don’t test positive for HIV.

“We’re trying to find a way essentially to ask them to be responsible for their own actions,” said Koh Peng Keng, the Health Ministry’s senior director of operations. “There is a greater impetus to get more people to come forward for testing.”

No ‘Witch Hunt’

Offenders would face as much as 10 years in prison and a S$50,000 fine. Penalties for those who know they’re HIV-positive and don’t inform their partners, already a crime under legislation that took effect in 1992, would be increased to the same level. No one has been prosecuted under the existing law.

Enforcement would depend on an aggrieved partner filing a complaint and prosecutors proving that a defendant had a history of high-risk sexual behavior.

“It’s never the intention to go on a witch hunt,” Koh said. “It’s going to help in public education.”

The government also plans to double spending on AIDS prevention programs to S$8 million annually for the next three years, he said.

Zack, a self-employed electrical engineer who suspects he contracted HIV from a prostitute, isn’t convinced of the government’s motives, especially considering that gay sex is illegal in Singapore.

“People are going to hide,” said Zack, 36, who spoke on condition his real name not be used for fear of losing his business.

Infected for Years

Singapore’s HIV infection rate has doubled in the past 10 years. About 1 in 10,000 people were newly infected in 2006, compared with fewer than 0.5 in 1996, according to government statistics. More than half of those diagnosed in 2006 also had AIDS, indicating they’d been infected for years without knowing it, Koh said.

In total, about 7 of every 10,000 people in Singapore have HIV, the government says.

UNAIDS estimates the rate may be as high as 30 once undiagnosed cases are included. That’s higher than estimated infection rates in other developed Asian nations such as Japan and South Korea. Singapore’s rate is lower than in neighboring nations, including Malaysia and Thailand.

The UN agency calculated its figure from government data for high-risk groups — including prostitutes and their customers, gay and bisexual men, and intravenous drug users — and statistics provided by HIV and pregnancy clinics.

UN Opposition

Seema Paul, chief policy coordinator for Geneva-based UNAIDS, said the Singapore bill would force people to get HIV tests, putting them at risk of discrimination and violence if others learned they were HIV-positive.

“We have consistently advocated that HIV testing should be voluntary,” she said in an e-mail.

Stuart Koe, chief executive officer of media company Fridae Ltd., said those who contract HIV won’t disclose the names of their partners to doctors for fear of being prosecuted, and that will contribute to spreading the disease.

“There’ll be a lot of unexpected negative effects,” said Koe, who works with AIDS support groups in Singapore and whose company runs a gay Web site.

The groups primarily responsible for spreading HIV in Singapore are men who visit prostitutes, and gay and bisexual men, the government says.

Refusing Condoms

In Batam, brothels occupy storefronts scattered among homes, shops and bars like the PP Banana Laptop Lounge. Pimps ply their trade wherever foreigners are found.

The AIDS rate in the province including Batam is the third- highest in Indonesia after Papua and Jakarta, the national AIDS commission said on its Web site.

Ayu, a 28-year-old prostitute, said most of her clients are married Singaporean men and not all practice safe sex.

“Sometimes the customer does not want a condom,” she said, her purple eye shadow sparkling under neon lights. “I cannot force.”

Like many Indonesians, Ayu uses only one name.

Koh said the government works with activist groups to educate men before they get on the Batam ferry. Those efforts include handing out condoms and HIV prevention information.

“There’s this huge reservoir of people who are HIV-positive and may not know,” he said. “Once someone knows they’re positive, typically they change behavior.”

US: South Dakota makes ‘HIV criminals’ sex offenders, too

The South Dakota Senate voted unanimously last Thursday to register as sex offenders people who have already been convicted of the state law against ‘intentional’ HIV exposure/transmission.

This, according to writer Thomas Heald in a blog published before the vote, would “add the punishment of sex offender status, thus adding a ‘Scarlet Letter’ to their conviction, which would add restrictions on where they could live (1000 feet of schools churches, etc.), and allow neighborhood searching and registration so that families can “protect themselves” and/or unofficially harass the offender.”

The Act (SB65) to define intentional exposure to HIV infection by sexual intercourse as a sex crime subject to registry as a sex offender’ has now amended its sex offender law (§ 22-24B-1) by adding the following clause: “Intentional exposure to HIV infection as set forth in subdivision § 22-18-31 South Dakota Codified Laws.”

§ 22-18-31 is ‘intentional exposure to HIV infection’, a Class 3 felony (punishable by up to 15 years in prison and/or a $15,000 fine) which criminalises “any person who, knowing himself or herself to be infected with HIV, intentionally exposes another person to infection by…engaging in sexual intercourse or other intimate physical contact with another person.”

The report, from the Associated Press/Rapid City Journal, gets its facts wrong, and says the law is about “intentionally infecting sex partners”. Sadly, this has been repeated in other reports, including those at Poz.com.

Much, much worse, of course, is the ignorance of South Dakota’s lawmakers, including Senator Sandy Jerstad – author of this latest Act – who has conflated HIV exposure with HIV infection and thinks that people exposed to HIV will “have to take HIV tests for years (although a negative antibody test six months after exposure is enough to know that HIV infection has not taken place) and they live with the consequences of this crime for the rest of their lives.”

The latter is possibly true – if someone has been found guilty of this ‘crime’ through a fair trial – but surely this is true only if the ‘victim’ has become HIV-positive. Or is she suggesting that simply having sex with someone who is HIV-positive results in life long trauma?

The full Associated Press/Rapid City Journal report is below.

Senate approves HIV legislation

By The Associated Press

PIERRE — The South Dakota Senate decided Thursday that people who are convicted of intentionally infecting sex partners with the AIDS virus should have to register as sex offenders after release from prison.

Sen. Sandy Jerstad, D-Sioux Falls, said that would warn the public about the danger those people present.

“There’ll always be a certain small portion of our population who set out to intentionally harm others by committing sex crimes,” she said.

Two people in the state have been convicted of intentionally infecting others with HIV, Jerstad said.

She said the maximum prison term for the crime is 15 years in prison, but the victims must face the fear that they’ll get AIDS.

“Those victims will have to take HIV tests for years, and they live with the consequences of this crime for the rest of their lives,” Jerstad said.

SB65 cleared the Senate 34-0, sending the legislation to the House.

South Africa: New rape laws mandate HIV testing for alleged offender

From March South Africa’s new Sexual Offenses Amendment Act will allow victims of rape to apply for a court order to force their alleged attacker to take an HIV (antibody?) test.

“The bill was approved by parliament before it went into recess last month after being held up for more than a year because of technical legal problems over the clauses about compulsory HIV tests for sexual offenders.

The revised legislation said all victims should be entitled to apply for a court order to compel the alleged sex offender to take an AIDS test, and should get free medication immediately after the rape to reduce the risks of contracting the virus. Given the delay in HIV infection showing up in tests, many women currently face weeks of agonized uncertainty over whether their attacker carried the deadly virus.

The provisions on AIDS testing will take effect in March because of the legal complexities involved, the Justice Ministry said.”

Full story from the Associated Press here.

India: Bombay court rules existing criminal law sufficient to investigate HIV exposure/transmission

A short and somewhat unclear story from The Telegraph of Calcutta, India suggests that existing Indian law can be used to investigate and prosecute HIV exposure following non-disclosure (and possibly ‘reckless’ HIV transmission) under Sections 308 and 420 of the Indian Penal Code (IPC).

Section 308 deals with attempt to culpable homicide not amounting to murder and Section 420 deals with cheating and ‘confidence tricks’.

The paper reports that the police refused to register a complaint from a woman against an HIV-positive man who had not disclosed his status before marrying her. It is not clear whether the woman is also now HIV-positive.

“The Bombay High Court ruled that whenever a complainant discloses a cognizable offence, the police is bound to register it and start an investigation. The court directed the hospital where the man was undergoing treatment to co-operate with the police by giving access to all relevant documents.”

Story with headline ‘Positive Impact’ can be read at The Telegraph, India online.

Botswana: MPs consider criminalising HIV transmission

Criminalising HIV transmission sparks debate

LOBATSE – The issue of criminalising intentional transmission of HIV received mixed reaction from residents of Lobatse and surrounding areas.

While some accepted the idea of making intentional spread the disease a criminal offence, others were totally opposed to the idea.

Opponents of the idea felt that criminalising the disease would erode the success the country had made in fighting stigma associated with it.

Speaking during a public hearing on HIV/AIDS by MPs, one of the residents commented that infecting someone with the disease was like putting poison in someones food.

Critical of criminalising the disease was a youth, Ms Neo Komanyane who argued that those who spread the disease were those who did not know their status.

She argued that testing was the best preventive method instead of criminalising the disease. Some residents felt that criminalising the disease would further discriminate it thus worsening the stigma.

They also argued that people who knew their status were living positively and therefore, would not willfully spread the disease. Residents suggested that an expectant couple be required to take an HIV test in order to save the child.

They noted that refusal by the couple to take the test should be regarded as a criminal offence. Also MPs heard that non-disclosure of HIV status to a partner should be criminalised.

On whether people should pay for HIV treatment most of the audience felt that doing that would alienate most of the people from getting treatment.

Source: Botswana Press Agency

http://www.gov.bw/cgi-bin/news.cgi?d=20071015&i=Criminilising_HIV_transmission_sparks_debate

Singapore: Criminal HIV transmission laws proposed

http://newpaper.asia1.com.sg/news/story/0,4136,143384,00.html

I may have HIV। Will you still sleep with me?

Under proposed changes to law, those at risk must disclose sex history to partner TELL the truth, says a new legal proposal that seeks to put the onus on those who lead risky sexual lifestyles to come clean with their partners।

By Ng Wan Ching 30 September 2007

TELL the truth, says a new legal proposal that seeks to put the onus on those who lead risky sexual lifestyles to come clean with their partners। Deceive – if there is a possibility that you have been exposed to the Aids virus – and you face up to 10 years in jail and a fine of up to $50,000. Will such a law be effective in stemming the spread of Aids? Or could it drive people further into secrecy?

Imagine saying before sex: ‘I may have been exposed to HIV. If you have sex with me, you should accept the risk of infection.’ Under the Infectious Diseases Act now, a person who knows that he is HIV-infected must inform his partner before having sexual intercourse. His partner must agree to accept the risk of infection. If he doesn’t warn his partner, he’s breaking the law.

The Ministry of Health (MOH) is proposing to expand the act to include those who, although unaware that they are HIV-positive, have reason to believe that they have been exposed to the risk of contracting HIV or Aids. This could be from having unprotected casual sex with multiple partners and prostitutes or sharing needles.

Another condition is that he must have had tested negative for HIV and not had sex or engaged in any risky activity since then.

Finally he must take reasonable precautions during sex, such as by wearing a condom.

Said Mr Benedict Jacob-Thambiah, an HIV/Aids educator: ‘Who can be bothered? I think this will drive such people underground even more. Because now you are saying they are potential criminals.’

BLAME GAME?

The proposed laws appear to be more intent on ascribing blame rather than to treat HIV/Aids as a public health concern, said Mr Jacob-Thambiah.

Said Mr Brenton Wong, former vice-president of Action for Aids: ‘This is putting the law in the bedroom, but how are the authorities actually going to police it?

‘This is saying that if you are morally questionable, then you will get HIV. Only if you remove the stigma and make treatment available and affordable will people come forward.’

Dr Stuart Koe, chief executive officer of Fridae.com and a trained pharmacist specialising in HIV medicines, predicts that the new law will rarely be used.

‘It will have minimum impact on HIV in Singapore. I think we could use our resources better,’ he said He thinks that to accuse someone of infecting another person with HIV is a difficult thing to prove in court.

Said Dr Koe: ‘Firstly, the chain of transmission is fairly difficult to ascertain.

‘Secondly, if it’s between a married couple, usually the wife will not want to prosecute the husband for fear of breaking up the family.’

If the Government is willing to go to the extent of changing the law, he thinks it would be much more helpful to change it to protect HIV individuals from workplace and insurance discrimination.

‘We should improve their access to treatment and care rather than further alienating them,’ said Dr Koe.

Already, there are fears that there is a hidden HIV epidemic.

A study of more than 3,000 leftover blood samples from public hospital patients early this year showed that one in 350 was infected with HIV.

If accurate, this would mean that Singapore has about 9,000 infected adults, much more than the official figures. Neither the patients in the study nor their doctors were aware of their HIV status. Also, HIV is now a treatable disease like any other chronic disease.

‘With treatment, people have stopped dying from HIV. But that message has not gone out. Instead when people find out they are positive, they go underground and they feel helpless,’ said Dr Koe. But Health Minister Khaw Boon Wan points out he has good reasons for the proposed changes. Every year, 10 per cent of those newly infected with HIV are women. About half of them are married women whose husbands are HIV positive.

Said Mr Khaw: ‘I draw the conclusion that they got it from their husbands.’ These are among the people he wants to protect. The new laws will help the Ministry deal with the minority of people who are sexually irresponsible.

For the majority of people, ABC – abstain, be loyal or use a condom – is good enough.

The minority may need CRT – condom and regular testing.

‘If you insist on harming yourself by visiting prostitutes and so forth, then do CRT and inform your sexual partner,’ said Mr Khaw. Three cases have been dealt with under the existing laws.

In 2005, investigations unearthed the case of an HIV-positive foreigner from Nigeria who had unprotected sex with several women in Singapore.

He did not inform them of his status before they had sex. He left Singapore before he could be charged.

Earlier this year, an HIV-positive man did not inform his wife of his status before engaging in sex, using a condom.

His wife, who was a foreigner and unwilling to testify against her husband, tested negative for HIV.

He was fined.

An HIV-positive individual who may have had sexual intercourse without informing his partner of his HIV status is also being investigated.

Will the amendments take it a step further in preventing the spread of Aids?

Yes – but only if honesty is a policy that is practised in bed.

Africa’s HIV transmission laws based on questionable science

Africa’s HIV transmission laws based on questionable science
by Cassandra Willyard, New York
Nature Medicine 13, 890 (2007)
Published online: 31 August 2007

Faced with an AIDS epidemic that kills millions every year, countries in sub-Saharan Africa are contemplating a new prevention strategy: criminal charges.

Uganda, touted as the rare success story in the region, is the latest nation to propose a law that would criminalize knowingly transmitting HIV to another person, the country’s health minister announced in June. Since 2001, Zimbabwe, Lesotho and Swaziland have also adopted similar laws.

Few say the laws do what they’re intended to: reduce the spread of HIV. “They make lawmakers feel good, but they have very limited positive benefits for the public,” says Jonathan Berger, head of policy and research at the Johannesburg-based AIDS Law Project.

Apart from stigmatizing the disease more than it already is, critics warn, the laws ignore the fact that these countries may not have the resources to perform the careful genetic analysis required to distinguish the innocent from the guilty.

Phylogenetic analysis helps pinpoint how closely related two isolates of HIV are. In a criminal case, a virologist would obtain genetic sequences of the virus from both parties involved and compare them to sequences in a database, such as the US National Institutes of Health’s GenBank, or from other infected individuals in the community.

If the viruses appear more closely related to each other than they are to samples taken from the larger population, it increases the likelihood that one person infected the other.

The procedure has its limitations, however. “It doesn’t say anything about the direction of movement. It doesn’t say anything about timing. It doesn’t even really say that the transmission took place between the two people,” says Yusef Azad, director of policy and campaigns at the National AIDS Trust, a UK-based advocacy group. “They both could have been infected by a third party.”

Still, phylogenetics can exonerate the innocent. If the two HIV samples aren’t closely related, it’s unlikely one person could have infected the other. “The greatest power of it is exculpatory,” says Gerald Learn, a microbiologist at the University of Washington. “If I was a defense lawyer, I would insist on it.”

But the procedure is complicated and costly. “Scientists who are not trained in this field couldn’t just read published reports and try to do this on their own without having the proper tools,” says Michael Metzker, assistant professor of molecular genetics at the Baylor College of Medicine in Houston.

Genetic analysis of each HIV sample can require more than 100 sequences, with a price tag between $1 and $5 per sequence—no small sum in a developing country.

A few labs in Uganda are equipped to do the analyses, says Maria Wawer, a professor of population, family and reproductive health at Johns Hopkins University who conducts research in Uganda. “But it is likely to remain too expensive for the foreseeable future,” she says.

Courts in these countries may instead rely on circumstantial evidence, raising the risk of wrongful convictions.

“In the absence of really clear scientific evidence as to who infected whom,” says Azad, “there will too often be an assumption that those categorized as undesirable by society are guilty of infecting other people.”

In 2002, UNAIDS argued against laws that penalize HIV transmission, recommending instead that responsible individuals be prosecuted using standard criminal laws, notes Azad. “Any legislation which singles out HIV for this kind of criminal sanction is breaching international human rights guidelines.”