Criminalisation of HIV
Some people who live with HIV are surprisingly all for even stricter laws concerning HIV transmission and disclosure, others are fighting to review, rewrite; in view of recent research that Treatment is Prevention, or to abolish all laws specifically pertaining to HIV disclosure and transmission.
It would seem that the root of what side of the fence you stand on is possibly due to from what perspective the issue is viewed. We all that live with HIV acquired it from someone and often someone that did not tell you they were HIV+. In many cases because they themselves did not know, sometimes they did but were scared of the reaction, or rejection, or their status getting out, if they did disclose. Or some believe even without evidence, they did know but did not care or wanted to pass HIV onto another. In fact research and anecdotal evidence point to very few people living with HIV wanting to pass HIV onto another, but the issue is very emotive.
Therefore if this issue is viewed subjectively, from the point of view of a person living with HIV’s own feelings and emotions regarding acquiring HIV, many can and do believe even stricter laws regarding disclosure and transmission are neccessary. Many of us hold at least a residue of anger towards the person we acquired HIV, whether they knew that had HIV or not and feel that if the law was stricter, this would potentially be a deterrent and lead to less transmission. However the research says otherwise.
Opinion on this issue are often based, for both HIV- and HIV+, on individuals own experiences and their own perceptions of risk, actual or feared, than the facts on whether specific laws against transmission of HIV are effective in lessening transmission or reducing the risk.
No other disease, even potentially sexually transmitted diseases, even those that are proven to be even more easily transmitted are singled out this way.
For example here are no specific laws to single out the transmission of Hepatitis C even though much transmission is sexually and it is far more infectious than HIV and can also lead to severe health problems or even death. While HCV is recently curable in some by new medications many cannot endure that cure, or are not in a medical position to try for a cure.
Genital human papillomavirus (also called HPV) is the most common sexually transmitted infection (STI) and is the cause of over 70% of cervical, uterine and vulval cancers in women and or many oral and anal cancers in both men and women is also not singled out for legislation. HIV is unique in this.
Personal Perspective
I have to admit when I first thought of writing it I intended to be complexly objective, and not mention my own position on this issue. But I find this is impossible. HIV will never again be merely an academic issue to me. As HIV is now part of my life, and always will be, so are all issues surrounding HIV.
That it will and does lead to less HIV people disclosing that they are HIV especially when they are with new partners
Criminalization will increase stigma:
'I am not leading a risky lifestyle for HIV, I do not use intravenous drugs, I do not know anyone with HIV so HIV does not concern me, so I do not need to know about it nor is there any need to protect myself or my partners from it.'
(this was said by someone who knows me. They seemed to have forgotten that I live with HIV so little has my disclosure or discussion of the issues meant anything to them!)
So my view is: result of HIV criminalisation = more ignorance, more stigma , more HIV transmission.
Whatever your stance on this, it is certain that this is of concern and interest to all people living with HIV, within the UK and worldwide. It is not possible in a short article to outline the full debate; all that can be done here is highlight some up some of the issues.
Part of the reason for this high level of debate recently has been a court case that took place in the Supreme Court of Canada that eventually ruled on October 5th 2012 that:
‘if someone takes the treatment for it ( HIV) , they can become for all intents and purposes, non-infectious.’
In the UK existing laws such as ‘grievous or actual bodily harm’ in the case of those that are proven to be recklessly, deliberately, or maliciously attempting or actually infecting others with HIV are in UK law deemed to be sufficient.
In Scotland this is not the case. In February 2010, an HIV-positive man was convicted of 'culpable and reckless conduct' for having unprotected sex with four women, although three of the women were not infected.
Much existing research informed debate confirms that the UK approach is more effective than specific laws.
As long ago as 2008 the Open Society Institute stated:
They go on to say that policymakers often state that people who transmit or expose others to HIV ought to be punished because their behavior is “morally wrong” or “harmful.” Yet most people who transmit HIV do so either not knowing they have it or because they fear disclosure of their status will risk violence, discrimination, rejection by family and friends, and other abuses based on their HIV status. This does not absolve individuals from moral obligation to take steps to protect others but equally that legislation neither deters behaviour in general nor achieves justice. That Applying criminal law to HIV transmission could discourage people from getting tested and finding out their HIV status, as lack of knowledge of one’s status could be the best defence in a criminal lawsuit and promotes fear and stigma.
Since then it has been confirmed that being on HIV medication and undetectable can vastly lower infectiousness. Of course no one is suggesting that HIV positive people should no longer use protection as blips can occur in detectable virus load and there is some evidence that HIV can exist in seminal fluid and other secretions even with those on ARV medications.
However no one can deny the recent research has altered the ball game when it comes to criminalisation of HIV as specific legislation; it has been described as a ‘serious game changer’ by Michel Sidibe, executive director of the Joint United Nations Programme on HIV/Aids (UNAIDS).
However prosecutions do take place under these existing laws in the UK and many countries have laws specific to HIV.
The Global Commission on HIV and the law summarised the global the global state of play as regards the criminalisation of Human immunodeficiency virus (HIV) transmission and exposure. In their working paper ‘The Criminalisation of HIV Exposure and Transmission: A Global Review’
Historically it has been found that criminalising transmission of any infection is either useless in curtailing the said infection or counterproductive.
Dr Alice Welbourn, a well known UK social scientist, who also lives with HIV, specialising in HIV, gender issue and women, sums her views on this from a UK historical perspective in her presentation:
What relevance is this to people currently
living with HIV?
While many are debating this issue worldwide, there are many living with HIV who do not feel it is of any relevance in their lives. But the reality is it concerns us all, especially those of us that are currently sexually active.
However even if you do not want to enter the debate it is wise to be aware of the issues even in countries like the UK where there are no specific laws, as there is a possibility of these laws being used.
The SERO project in the US has even gone so far as to suggest that PLWHIV get their potential partners to sign, prior to sexual activity a ‘HIV DISCLOSURE ACKNOWLEDGEMENT.
SERO is : ‘a not-for-profit human rights organization promoting the empowerment
of people with HIV, combating HIV-related stigma and advocating for sound
public health and HIV prevention policies based on science and epidemiology
rather than ignorance and fear. Sero is particularly focused on ending
inappropriate criminal prosecutions of people with HIV for non-disclosure of
their HIV status, potential or perceived HIV exposure or HIV transmission’SERO is of course based in the US where in many states even disclosure of your status is necessary by law to potential sexual partners.
I am not at all sure myself, living in the UK, of the viability of getting partners to sign such an agreement, or in view of the Swiss Statement and recent research stating Treatment is Protection that it is necessary. I am even worried that such directions may increase stigma.
Personally despite my stance against criminalisation of HIV I personally am not condoning at all reckless, deliberate or malicious attempts to pass HIV on to anyone and I would always use protection, or ensure my partner did, despite my current undetectable virus load and adequate CD4 count.
However I am left feeling that disclosure is up to the individual at any stage in a relationship, and it is up to BOTH parties to protect themselves not just a partner who has HIV to be totally responsible to protect any other they may have sex with.
After all, the facts as far as I am able to ascertain is that those aware they are living with HIV and on ARVs can be more at risk from picking up other STI infections, or a further exposure to HIV from someone untreated and unknowing of their status than, those who are on ARV treatment and know their status are a risk to others; therefore it is the responsibility of all sexual partners to protect themselves.
Also disclosure for some and in some circumstances can bring danger, the threat of violence, and other consequences, and indeed I have heard from many that it has. Gender based violence towards women with HIV is a problem in the UK.
The workers at Positively UK I am in touch with who answer their helpline and run support groups see all the time the correlation between GBV and HIV and at a BHIVA conference earlier in 2012 another important study on GBV in the UK was presented by Dr. Rageshri Dhairyawan, which showed that 52% of women living with HIV accessing services at Homerton Hospital, an East London clinic, who responded to a questionnaire, had experienced Intimate Partner Violence in their lifetime. For more information on this and other related issues see ‘Speaking Up’ an online blog written by Silvia Petretti Deputy CEO at Positively UK.
Of course for many men also, to disclosure can have very adverse consequences.
Therefore, in my opinion, disclosure, should remain a personal choice in the UK and not be subject to specific legislation and criminalisation.
Grass roots and larger organisations in the US, UK and elsewhere are increasingly coming out in their support to end criminalisation of HIV in their countries and worldwide, Queerocracy, IPPF ( international Planned Parenthood Federation) International Community of Women Living with HIV/AIDs (ICW) Sero Project, Sophia Forum, Positively UK, NAM, to name only a few . The list is long and getting longer all the time.
It has to be asked why in the face of growing evidence that they are ineffective, stigmatising, even an infringement of human rights, exposes HIV+ people to danger and counterproductive, these laws persist and in some countries are becoming more punitive or existing laws used more widely?
References:
Perhaps they cannot be included and it can just be said that if interested references can be obtained?)
Queerocracy - http://www.queerocracy.org/events.html
(http://healthland.time.com/2011/05/13/early-treatment-with-anti-hiv-drugs-stops-transmission-between-partners/) May 13, 2011
