Will criminalising HIV transmission work?

UNAIDS has urged governments to limit criminalisation to cases "where a
person knows his or her HIV-positive status, acts with the intention to
transmit HIV, and does in fact transmit HIV". The reality is that
intentional and malevolent acts of HIV transmission are rare, so in
most instances criminal prosecutions are not appropriately applied.

In Switzerland, a man was sent to jail earlier in 2008 for infecting
his girlfriend with HIV, even though he was unaware of his HIV status,
and a Texas court recently sentenced a man living with HIV to 35 years
in prison for spitting on a police officer, although the chances of the
officer being exposed to the virus were negligible.

Laws making HIV transmission an offence are not new to the developed
world, but the trend has been growing in African countries, where
higher prevalence levels make such laws all the more attractive to
policymakers.

"Africa has burst into this whole frenetic spasm of criminalising HIV,"
said South African Justice Edwin Cameron, who is also HIV positive, at
the International AIDS Conference in Mexico earlier this year.

In Uganda, proposed HIV legislation is not limited to intentional
transmission, but also forces HIV-positive people to reveal their
status to their sexual partners, and allows medical personnel to reveal
someone’s status to their partner.

Most legislative development has taken place in West Africa, where 12
countries recently passed HIV laws. In 2004 participants from 18
countries met at a regional workshop in N’djamena, Chad, to adopt a
model law on HIV/AIDS for West and Central Africa.

The law they came up with was far from "model", according to Richard
Pearshouse, director of research and policy at the Canadian HIV/AIDS
Legal Network, who maintains that the model law’s broad definition of
"wilful transmission" could be used to prosecute HIV-positive women for
transmitting the virus to their babies during pregnancy.

People living with HIV have expressed concerns that the growing trend
to criminalise HIV infection places legal responsibility for HIV
prevention solely on those already living with the virus, and dilutes
the message of shared responsibility.

UNAIDS has warned that using criminal law in cases other than
intentional transmission could create distrust in relationships with
healthcare workers, as people may fear the information will be used
against them in a criminal case. Such laws could also "discourage HIV
testing, since ignorance of one’s status might be perceived as the best
defence in a criminal law suit."

Some policymakers have called for HIV legislation as a means to protect
women from HIV infection, but the irony is that sometimes these laws
may result in women being disproportionately prosecuted. Many women
find it difficult to negotiate safer sex or to disclose their status to
their partner.

What are the alternatives? UNAIDS recommends that instead of applying
criminal law to HIV transmission, governments should expand programmes
proven to have reduced HIV infection. At the moment, there is no
information indicating that using criminal law will work.