The Case Against Criminalization of HIV Transmission

Criminal law has been invoked throughout the HIV epidemic to deter and punish transmission. The public health community has not favored its use, but neither has it taken a vigorous stand against it. Meanwhile, governments continue to adopt HIV-specific criminal laws, and individuals with HIV continue to be prosecuted under general criminal law. Criminal law cannot in this area draw reasonable lines between criminal and noncriminal behavior, nor prevent HIV transmission. For women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.

“Criminalization of HIV” takes the form of HIV-specific criminal statutes and the application of general criminal law (such as assault) to exposure to or transmission of HIV. More than 25 years after the first description of AIDS, criminalization has become a facet of policy throughout the world.¹ Recently, criminalization reached a new pitch in a “model HIV law” crafted by West African parliamentarians assisted by the US-funded Action for West Africa Region HIV/AIDS Project (AWARE-HIV/AIDS). Since its debut in N’Djamena, Chad, in 2004, the law's criminalization provisions have been enacted in 9 countries. The N’Djamena provision criminalizes “transmission of HIV virus through any means by a person with full knowledge of his/her HIV/AIDS status to another person” regardless of whether the actor had any intention to do harm.²

National legislation adds even broader elements, criminalizing exposure as well as transmission and explicitly including mother-to-child exposure.³ In June 2008, a Swiss court ruled that a person unaware of his infection but aware that a past partner had HIV was properly convicted of negligent transmission of HIV for having unprotected sex with a later partner. The court reasoned that Swiss public health guidelines created a standard of care that should be enforced by the criminal law.⁴ Criminal statutes have also been directed against individuals who expose others by sharing syringes.⁵ In the United States, there have even been prosecutions based on acts that pose no significant risk of transmission, including a 2008 case in which the HIV-positive defendant received 35 years in prison for spitting at a police officer.⁶

Criminalization involving HIV generally concerns sexual exposure, but the arguments hold true for other behaviors as well. Evidence and experience compel the conclusion that criminalization of HIV is inconsistent with good public health and respect for human rights. This conclusion, in turn, demands systematic efforts to oppose criminalization and mitigate its harms.

The central problem of criminalization is drawing the line between criminal and noncriminal behavior. Criminal liability typically depends on a blameworthy state of mind. Injury to the victim may be unnecessary, or broadly defined to include fear or loss of autonomy. Most individuals would agree that the achieved intent to infect another with HIV is blameworthy, while exposing or infecting another when the actor reasonably does not know he/she is infected is innocent. The difficulty arises with cases falling between: individuals who know they are at risk of having HIV but avoid testing; those who know they are HIV infected but occasionally have unprotected sex; and those who know they are HIV infected and regularly have sex without disclosing or taking precautions.

The severity of the risk and the harm further complicate matters for law makers, judges, lawyers, and juries.⁷ The probability of HIV transmission via sexual exposure is variable, involving a number of host and other factors, including the nature of exposure.⁸ The risk of HIV transmission may be decreased in those receiving highly active antiretroviral therapy (HAART).⁹ Where HAART is accessible, the harm caused by acquiring infection can be palliated by medical care.

But the objective risk is hardly determinative in policy making, in court, or in human behavior. Risk assessments are heavily influenced by psychological and social biases. The riskiness (and blameworthiness) of sexual behavior depends on the observer's perceptions of the value of sex, the responsibilities of sex partners for self-protection, and the applicable norms of sexual behavior. Every day, millions of individuals have unprotected sex with partners they must assume might be infected. They evidently rate the risks and benefits of sex differently than people who retrospectively judge sexual behavior in legal proceedings. Thus conduct that seems normal to many—ie, sex without protection despite the presence of risk—exposes those who have HIV to severe criminal penalties, including life imprisonment.^{5 ,7}

Unfair treatment of defendants is also a problem. Judges and juries may consciously or unconsciously take into consideration the race, nationality, or social position of the accused. This fear is borne out by close scrutiny of trial transcripts in sexual transmission cases.⁷

Liability based on something less than achieved intent to harm another is inconsistent with a rational, desirable norm of personal responsibility in matters of sexual risk. Sexually transmitted infections are sufficiently prevalent that in most settings rational people operating with genuine autonomy should recognize exposure as a normal risk of sexual behavior. Except where coercive sexual subordination is present, the focus should be on both sexual partners' responsibility, not that of the partner with HIV alone.

Regulation of sex implicates rights of privacy, autonomy, and self-expression, not to be abridged without a compelling justification. Although protecting individuals from a significant risk of harm is a sufficient justification in general, there is after more than 25 years no credible evidence that HIV criminalization protects individuals or society.

Public health interventions including voluntary testing, outreach, and training of peer leaders are backed by evidence of effectiveness in promoting disclosure or safer sex.¹⁰ In contrast, no evidence supports criminalization of HIV transmission as an HIV prevention tool. The one published study of which we are aware testing the influence of criminalization was unable to disprove the null hypothesis that law does not influence condom use in anal or vaginal sex.¹¹ The study authors interviewed 490 individuals at high risk of HIV infection who lived in either Illinois (which has a law explicitly requiring disclosure by HIV-positive persons and criminalizes sexual contact by persons with HIV unless they disclose their HIV status and obtain consent from their partners) or New York (which has no specific law involving criminalization of HIV transmission) and found no significant difference in sexual behavior between individuals who believed that their state law required condom use and those who did not.

There are many plausible reasons that law would be ineffective. Prosecutions are rare in relation to the number of unprotected sex acts, and most transmission comes from individuals who are not “covered” by the law because they do not know their HIV status.¹² While the study found no strong evidence of a negative effect on HIV risk behavior or transmission, a qualitative study in the United Kingdom found that criminal prosecutions, and the attendant publicity, increased perceptions of stigma and were perceived by people with HIV to undermine public health efforts to encourage safer sex.¹³

Criminalization also is not an effective way of protecting vulnerable populations from coercive or violent behavior, such as rape, that can transmit HIV. Sexual violence is already criminalized. Criminal laws do nothing to address women's subordinate socioeconomic position, which makes it more difficult for women to insist upon safe sex with nonmonogamous partners, particularly husbands, and may make it dangerous for them to disclose their own infection. Criminalization is a poor substitute for improving women's status and offering serious protection of women's rights to sexual decision making and physical safety. Indeed, criminalization may fall unfairly and disproportionately on women. In sub-Saharan Africa, many HIV diagnoses occur among women presenting for antenatal testing. First to be diagnosed, they are blamed for introducing HIV into the family; many report violent reactions by spouses and others.¹⁴ Some women are unable to disclose their HIV status because of the risk of violence or ostracism, yet they face the added possibility of prosecution if they fail to disclose.

The use of criminal law to address transmission of HIV is inappropriate except in cases in which it can be shown that a person acted with the conscious intent to transmit HIV and in fact does so. For such cases, the existing criminal law suffices; no HIV-specific statute is needed. The use of criminal law can never be justified when a person with HIV took risk-reducing measures or could not reasonably have used them. Criminal law is never appropriately applied to the behavior of people who do not know their HIV status.

These are propositions of policy, but they rest on empirical evidence, practical experience, and positive values. Most individuals, including those with HIV, value sexual expression and reproduction. Individuals who know they have HIV must protect others when they engage in sexual or other potentially transmissive behavior and when their circumstances make it possible to disclose their HIV status without risk of violence. Those who do not know their status must protect themselves and others when they engage in sexual behavior and can take protective action without fear of victimization. These responsibilities are mirrored in those of society as a whole, which has an obligation to provide an environment in which these behaviors are feasible and rewarding. It is essential to address the subordination of women, who may be exposed to violence and dispossession as they seek to fulfill their moral duties of care for others.

An effective public health and human rights response to criminalization of HIV is overdue and has at least 3 elements.

First, it must be seen that criminalization is bad policy: framing the problem of the spread of HIV in terms of criminal behavior does nothing to stop the epidemic and does a great deal to undermine the supportive social environment needed to stop the spread of HIV. Jurisdictions should not adopt criminalization policies, and those that have already done so should reverse course.

Second, efforts against criminalization should be linked to policies that meet the needs that drive the demand for criminalization. Policies should protect women against violence; promote equal status of women in marriage, inheritance, access to credit, and employment; and address cultural practices such as dry sex and “wife inheritance” that render women more vulnerable to HIV.

Finally, if rejecting criminalization is politically unattainable, vigorous efforts to reduce the harms from criminalization are needed. Most HIV-specific criminal laws are defective even on their own terms, poorly drafted or covering conduct that poses no risk.¹⁵ Both HIV-specific statutes and general criminal laws leave room for police and prosecutorial discretion. Policy guidance and training can be deployed by UNAIDS (the Joint United Nations Programme on HIV/AIDS) and other agencies to minimize the inappropriate use of criminal law.

In the overwhelming majority of cases, HIV is not spread by criminals but by consensual participants in a sexual act, neither of whom know their HIV status: individuals, in short, acting in ways that most would recognize as ordinary. We believe that within the constraints imposed by their knowledge, resources, and environment, most people do their best to protect themselves and others. Society's obligation is not to condemn, but to create conditions in which safe behavioral choices become rational and desirable. The blunt use of HIV-specific criminal statutes and prosecutions does the opposite.