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Sunday 24 February 2008

UK: New book explores criminal HIV transmission

An excellent new book on the criminalisation of HIV transmission by Dr Matthew Weait, senior lecturer in law and legal studies at Birkbeck College, University of London, has recently been published.

The book, Intimacy and Responsibility: The Criminalisation of HIV Transmission,was welcomed by HIV clinicians and advocates at its February 12th launch at Waterstone's bookshop at the Wellcome Institute in London.

My story on the book and its launch from follows comments from Dr Catherine Dodds, a research fellow at Sigma research, University of Portsmouth, who has studied the impact of criminal prosecutions in affected communities, I'm including them here.

In her brief talk, Dr Dodds provided an incisive overview of not just the book, but also Dr Weait's immeasurable contributions to the debate on the criminalisation of HIV transmission over the past decade:

When criminal prosecutions became a reality in England and Wales Matthew encouraged the development of a network of activists,academics, HIV service providers, doctors, politicians, lawyers, civil servants, researchers and journalists and anyone who was interested, frankly... who might be able to collate their knowledge and their talents and their energy to act in whatever way was possible to challenge, clarify and respond to the developments.

As a part of developing this network, he raised the funds from the Economic and Social Research Council to host a series of seminars at Keele University in Stoke and at Birkbeck College here in London. People attending those seminars exchanged knowledge and experiences. They offered a space where people were encouraged to think out loud.

What abides with me from attending those seminars is the way that those attending simply shared their humanity - in all of its strength and frailty and warmth - and that had a great amount to do with the kind of environment that Matthew created. It was an opportunity for learning and planning and thinking and sharing unlike any I have ever known.

Whether it is setting up message-boards so that people can share information and thoughts instantly - or making the time to speak with (and listen to) groups of people with diagnosed HIV, or with groups of medical or legal professionals - what Matthew has always wanted to do is to get people talking about criminal prosecutions for the transmission of HIV. Because he learned, and he taught me to see, that once people chew it over and consider it for a while - the obviousness of applying the criminal law to such situations, tends to grow a little less obvious.

In writing Intimacy and Responsibility, Matthew has effectively thrown that discussion open to a much broader audience. I can tell you from personal experience, that if you want to get noticed - sit on the tube and read this book. Never have I been so aware of so many people being so aware of what it is I am reading. Perhaps they are intrigued by its cover, and on a number of occasions, I have noticed continued glances and thoughtful expressions that indicates they are thinking and wondering about what such a book on such a topic might hold between its covers.

What Matthew does in Intimacy and Responsibility is to pull together and present information from a huge array of different academic disciplines because these are all required in order to begin untangling the complexities of such prosecutions. While a different writer may have tried to dissect this application of the law at the expense of considering what it is to be one of the people involved in such cases, it is from the standpoint of those very people - both complainant and defendant - that Matthew's main argument begins.

He effectively opens a window into the lived experience of the trial, by closely analysing the transcript of an early prosecution for reckless sexual transmission of HIV. It is here that he begins to forensically dig into the reality of a criminal judicial process that fails to make sense of what it is to be human. He muses that in the criminal justice system's pursuit of ensuring that blame is laid - the system has perhaps lost sight of what it is to make human society better - by losing sight of (or perhaps not even considering) what is required to reduce HIV transmission in the midst of this epidemic.

This isn't an easy discussion to initiate, by any means. Matthew is quite frank in the pages of his book that he knows that the odds stack up against his position, and that many people will have a gut instinct about the morality and the criminality of such situations. But despite the uncomfortableness that it might cause, he argues that slowing the HIV epidemic requires us to prioritise the public good. This in no way diminishes Matthew's recognition of the pain, the hurt, the fear and the distrust that is likely to be a part of the experience of both complainants
and defendants involved in such cases.

In extending this debate, Matthew's book asks us to consider what our own priorities are. It asks us to engage actively as citizens who think about how our criminal justice system works, and who ask if it should be the place to resolve all of the issues in our complicated, intimate, messy, sloppy, passionate, tangled, painful human lives. As he says, and I paraphrase here a bit: 'The fact that we inhabit a society... in which an ever more extensive and punitive system of criminal law is understood as the mechanism that can provide the solution, does not mean that we should allow our imaginations to rot'.

The extent to which Matthew has extended his leadership, and energy and intellectual capacity and humanity to challenging and responding to this application of the criminal law cannot be overstated. This book incorporates and reflects that wider project and it will prove to be a tremendous resource for many years to come.

Decriminalise reckless HIV transmission, argues HIV legal expert
Edwin J. Bernard, Friday, February 22, 2008

A new book on the criminalisation of HIV transmission by Dr Matthew Weait, senior lecturer in law and legal studies at Birkbeck College, University of London, argues that current English law has “the potential to do more harm than good” if “its primary purpose is to prevent onward transmission.”

The book, Intimacy and Responsibility: The criminalisation of HIV transmission, was welcomed by HIV clinicians and advocates at last week’s central London launch, which highlighted the impact of criminal prosecutions on the ability of doctors and researchers to work effectively.

Dr Jane Anderson, consultant physician at Homerton Hospital, and lead author of the British HIV Association’s (BHIVA) briefing paper on HIV transmission, the law and the work of the clinical team said that the spectre of criminal prosecutions had affected the way the NHS provided services to HIV-positive patients “in terms of care, advice and confidentiality” and had created “a great deal of anxiety and concern.”

She said that many healthcare staff working with HIV-positive patients felt that “the law was looking over people’s shoulders” and that it had significantly affected the doctor-patient relationship since doctors could potentially be asked to testify as expert witnesses for either prosecution or defence.

Dr Anderson also highlighted the impact recent prosecutions have had on research. “The rigour of our research has been coloured by prosecutions,” she said. “We have had to reconsider whether we ask certain questions whilst researching sexual behaviour in the current climate.”

Also speaking at the launch was Dr Catherine Dodds, a research fellow at Sigma research, University of Portsmouth, who has studied the impact of criminal prosecutions in affected communities. She said that in his book, Dr Weait “asks us to engage actively as citizens who think about how our criminal justice system works, and who ask if it should be the place to resolve all of the issues in our complicated, intimate, messy, sloppy, passionate, tangled, painful human lives.”

Dr Weait’s book critically examines and deconstructs the English criminal law’s approach to criminal prosecutions for reckless HIV transmission. In one of the book’s most revelatory chapters, he uses transcripts from the trial of Feston Konzani to show how the English criminal law reduces complex human thoughts, feelings and interactions to “over-simplified accounts of responsibility and irresponsibility, of guilt and innocence.”

The book also examines concepts of harm, risk, recklessness, consent, and responsibility and strongly suggests that the criminal law is ill-equipped to understand these concepts pragmatically. If the primary purpose of the criminal law is to prevent onward transmission, he argues, then it “has the potential to do more harm than good.”

Edwin Cameron, Justice of the South African Supreme Court of Appeal, and one of the world’s leading figures on HIV and AIDS and the law, writes in the book’s preface that “Weait’s premise is that criminal law and criminal justice should be used for the public good rather than as means of securing reparation for particular individuals.”

“If his argument is correct,” he continues, “then we must question criminal laws that may discourage people from HIV testing, or from being candid about their sexual history when confiding in health care workers. We must question whether it is good to impose criminal liability when media coverage is often sensational and inaccurate – with the effect of demonising all with HIV, and marking them as potential aggressors. We must question whether such laws acknowledge the difficulties that some living with HIV – particularly women, who may risk violence and expulsion from the home – have in negotiating safer sex.”

“And we must question the public ‘good’ that comes from ascribing sole responsibility for transmission (as such laws do) to the person with HIV, thus attenuating the partner’s responsibility for avoiding transmission – especially in an epidemic when all should be aware of the risks of unprotected sex,” writes Mr Justice Cameron.

The best way to promote “a more authentic and socially beneficial approach to the meaning, practice and expression of responsibility than that which the law constructs and reinforces,” concludes Dr Weait “is to decriminalise the reckless transmission of HIV.”

Weait M. Intimacy and Responsibility: The criminalisation of HIV transmission ISBN 978-1-904385-70-7; Routledge-Cavendish, 2007.



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