Reproductive Health Matters Criminalisation Issue (November 2009)

Reproductive Health Matters Volume 17, Issue 34, November 2009 (actually published in January 2010) focuses entirely on criminalisation, sexual and reproductive rights, public health − and justice and has a series of excellent articles on the criminalisation of HIV exposure and transmission.

The cost is €21 / US$28 for the single issue.




Highglights include:

Criminalising HIV transmission: punishment without protection
Widney Brown, Johanna Hanefeld, James Welsh
pages 119-126

Abstract 

Allegations of the reckless or intentional transmission of HIV raise challenging questions about how states can best address a disease which is transmitted primarily through behaviours that both states and community “police” in different ways. This paper argues that in the rare cases in which someone engages in specific behaviour with the intent to infect another person with HIV, existing laws such as laws against battery are sufficient to allow for the application of the criminal law. It discusses three key points: the potential consequences of new laws criminalising the transmission of HIV, why vague laws criminalising the knowing transmission of HIV fail to meet key requirements of criminal law and are an abuse of the state’s policing power, and thirdly, the growing inclusion of such laws within sexual offences legislation. Laws criminalising the transmission of HIV risk bringing within the scope of legal sanction people living with HIV who are acting in ways that do not merit punishment and may as a result of prosecution face adverse human rights consequences.

Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales
Catherine Dodds, Adam Bourne, Matthew Weait
pages 135-145

Abstract

In England and Wales, criminal prosecutions for recklessly causing serious bodily harm by transmitting HIV have occurred since 2003. Understanding how people respond to the application of criminal law, will help to determine the likely impact of prosecution. As part of a wider qualitative study on unprotected anal intercourse amongst homosexually active men with diagnosed HIV in England and Wales, 42 respondents were asked about their awareness of criminal prosecutions for the sexual transmission of HIV, and how (if at all) they had adapted their sexual behaviour as a result. Findings demonstrate considerable confusion regarding the law and suggest that misunderstandings could lead people with HIV to wrongly believe that how they act, and what they do or do not say, is legitimated by law. Although criminalisation prompted some respondents to take steps to reduce sexual transmission of HIV, others moderated their behaviour in ways likely to have adverse effects, or reported no change. The aim of the criminal justice system is to carry out justice, not to improve public health. The question addressed in this paper is whether desirable public health outcomes may be outweighed by undesirable ones when the criminal law is applied to a population-level epidemic.

Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso
Patrice Sanon, Simon Kaboré, Jennifer Wilen, Susanna J Smith, Jane Galvão
pages 146-153

Abstract

In 2004, parliamentarians from 12 countries in West and Central Africa created a template for legislation aimed at protecting the rights of people with HIV and stemming rising HIV infection rates by criminalizing HIV transmission. Since then, the template has been adopted as national law in 15 African countries, including Burkina Faso in 2008. The Burkina Faso law offers a number of protections for people with HIV, such as confidentiality of HIV test results, and holds the government accountable for providing health services for people with HIV and education about HIV in schools. However, other articles in the law, which criminalize HIV transmission and mandate disclosure of HIV status, may contribute to violations of the human rights of women and men with HIV. This article reviews the two cases brought in Burkina Faso under the 2008 HIV law to date, both against women, and explores the implications of specific elements of the legislation. It recommends that Burkina Faso use guidance provided by UNAIDS and the Southern Africa Development Community to repeal harmful articles in the HIV-specific legislation and implement the positive provisions. Prioritizing HIV prevention over punishment is the best way to respect the rights of people living with HIV and AIDS.

Vertical HIV transmission should be excluded from criminal prosecution
Joanne Csete, Richard Pearshouse, Alison Symington
pages 154-162

Abstract

Prevention of mother-to-child transmission of HIV (PMTCT) is an important part of global and national responses to HIV and AIDS. In recent years, many countries have adopted laws to criminalise HIV transmission and exposure. Many of these laws are broadly written and have provisions that enable criminal prosecution of vertical transmission in some circumstances. Even if prosecutions have not yet materialised, the use of these laws against HIV-positive pregnant women could compound the stigma already faced by them and have a chilling effect on women’s utilisation of prevention of mother-to-child transmission programmes. Although criminal laws targeting HIV transmission have often been proposed and adopted with the intent of protecting women, such laws may disadvantage women instead. Criminal laws on HIV transmission and exposure should be reviewed and revised to ensure that vertical transmission is explicitly excluded as an object of criminal prosecution. Scaling up PMTCT services and ensuring that they are affordable, accessible, welcoming and of good quality is the most effective strategy for reducing vertical transmission of HIV and should be the primary strategy in all countries.

Ten reasons to oppose the criminalization of HIV exposure or transmission
Ralf Jürgens, Jonathan Cohen, Edwin Cameron, Scott Burris, Michaela Clayton, Richard Elliott, Richard Pearshouse, Anne Gathumbi, Delme Cupido
pages 163-172

Abstract

Recent years have seen a push to apply criminal law to HIV exposure and transmission, often driven by the wish to respond to concerns about the ongoing rapid spread of HIV in many countries. Particularly in Africa, some groups have begun to advocate for criminalization in response to the serious phenomenon of women being infected with HIV through sexual violence or by partners who do not reveal their HIV diagnoses to them. While these issues must be urgently addressed, a closer analysis of the complex issues raised by criminalization of HIV exposure or transmission reveals that criminalization is unlikely to prevent new infections or reduce women's vulnerability to HIV. In fact, it may harm women rather than assist them, and have a negative impact on public health and human rights. This paper is a slightly revised version of a document originally released in December 2008 by a coalition of HIV, women's and human rights organizations. It provides ten reasons why criminalizing HIV exposure or transmission is generally an unjust and ineffective public policy. The obvious exception involves cases where individuals purposely or maliciously transmit HIV with the intent to harm others. In these rare cases, existing criminal laws – rather than new, HIV-specific laws – can and should be used

International consultation on the criminalization of HIV transmission: 31 October – 2 November 2007, Geneva, Switzerland
Joint United Nations Programme on HIV/AIDS (UNAIDS), United Nations Development Programme (UNDP), 2007
pages 180-186

Abstract

Since the beginning of the HIV epidemic, some jurisdictions have applied criminal law to the transmission of HIV. In 2002, UNAIDS issued a policy options paper on this issue. In light of renewed calls for the application of criminal law to HIV transmission and concerns raised in this regard by the UNAIDS Reference Group on HIV and Humans Rights and others, UNDP and the UNAIDS Secretariat decided to bring together a number of legal experts and other concerned stakeholders to discuss this issue in the context of an effective human rights and public health response to HIV. The discussion would inform a UNAIDS/UNDP policy brief on this subject. It was clarified that the consultation would focus primarily on HIV transmission through sexual contact, although it was noted that concerns exist in relation to applying criminal law to HIV transmission in other contexts. This Bookshelf article consists of excerpts from the report of the meeting