Criminal Transmission of HIV - The Legal, Political and Social Problems

The Legal, Political and Social Problems

The initial stages of HIV-positive are asymptomatic for periods usually exceeding one year. A person who engages in sexual activity or donates blood during this time may therefore have no reasonable basis upon which to suspect that he or she is transmitting a virus. The American Civil Liberties Union and other national groups have expressed concern that many newly drafted laws are too vague because they may criminalize individuals by virtue of their membership of a higher risk class of person, e.g. known drug users, the sexually promiscuous, etc. which will simply encourage prejudice and discrimination against the groups identified.

Moreover, most countries only criminalize HIV exposure or transmission if a person has been tested for HIV, and knows their positive test results. Because knowledge of status is a requirement for prosecution, criminal laws may act as a disincentive to testing, especially among the most high risk communities.

The offense would therefore have to be based on the exposure of others to risk or endangerment. This may place a legal duty of routine medical testing or of medical testing for cause, followed by a duty of disclosure on those who have actual or imputed knowledge of their condition, but ignores the social reality that the stigma associated with HIV may make disclosure difficult, e.g. loss of marriage and employment through prejudice and discrimination, or dangerous in communities where violence against HIV-positive people is common. After all, there is no confidentiality agreement in the bedroom and prosecutions may be initiated out of revenge.

The problems may be particularly acute in marriages and more permanent relationships where disclosure is an admission of sexual infidelity, rape or IV drug use. Seeking a less obvious route such as suddenly suggesting the use of a condom may be difficult without explanation of the implications to the other partner.

The political issues are many:

• Although the other STDs are not fatal, infection can have severe consequences. Legislatures therefore need to justify why HIV should be treated differently from, say, infection with gonorrhea.
• There may be human rights, civil rights and constitutional issues of privacy to consider.
• Whether medical screening would need to be made compulsory; if so, with what degree of regularity; how would such compulsory testing possibly be enforced across all populations in all circumstances; and what should the testing centers do with the information thus obtained. (For example, all women could be tested as a part of their pregnancy management regime; in this context, note that some life insurance companies already require disclosure of HIV-relevant information as a precondition of the validity of the policies issued.)
• If reckless transmission is criminalized and there are many high-profile prosecutions, those who might be infected may be deterred from testing so that they spare themselves actual knowledge of their positive status; such a phenomenon on a wide scale could have serious public health implications.
• The legislation might have to amend existing laws on medical confidentiality so that doctors, nurses, and other health workers can trace those possibly exposed to the virus. But if their knowledge could be compelled testimony in any subsequent criminal trial, this might deter those infected from making any, or any complete, disclosure of their sexual or other activities which, again, could have serious public health implications.

Ruth Lowbury, executive director of the Medical Foundation for AIDS and Sexual Health in London (UK) and George R. Kinghorn, clinical director for communicable diseases at Royal Hallamshire Hospital in Sheffield (UK), argue that for the above and related reasons (such as the potential risks of prosecution of HIV/AIDS affected people) may dissuade them from warning present or ex-partners about, "criminal prosecutions for HIV transmission threaten public health".

Lowbury and Kinghorn are sceptical of the preventive role of prosecution for reducing the infection rate and recommend that research be carried out to determine whether the net effect of prosecution is to decrease or increase the growth rate of the epidemic. They conclude their report stating that "in the case of criminal prosecution for reckless transmission of HIV, the public interest is not best served by pursuing justice against the few at the expense of the health of the many." The same argument has been made by a number of lawyers, policy makers and sociologists in recent years. See an article by Dr Matthew Weait (Keele University) and Dr Yusef Azad (National AIDS Trust) here.

There is a report by the World Health Organization on Criminalizing HIV Transmission, which can be found here.

The legal, political and social problems associated with HIV were discussed at a seminar series at Keele University in 2005/6. The papers at that seminar can be accessed here.