HIV/AIDS and the law: no consensus in sight

Some laws may be hindering prevention efforts around the world.

Health care professionals, legal professionals and human rights activists do not agree about the relationship between HIV/AIDS and the law. Though many agree that unjust laws related to HIV exist worldwide and that they often are applied unfairly, there is almost no consensus about which laws are most damaging to public health or why.

In the United States, it is possible to be prosecuted for failure to disclose HIV status or intentional transmission of the virus in 32 states, according to the International Planned Parenthood Federation. The organization also reported that 58 countries prosecute people who transmit HIV; another 33 countries are considering enactment of similar laws.

Some countries have created laws specific to HIV, and others use existing laws to prosecute specific incidences of transmission. Even where HIV-specific statutes do not exist, enforcement of certain laws can be detrimental to treatment and prevention efforts.

“There is a great deal of legislation around the world that is hindering prevention efforts, and there is very little legislation that is helping those efforts,” according to Ralf Jurgens, JD, co-founder of the Canadian HIV/AIDS Legal Network. “So we end up with a mixed bag of laws, none of which are really doing anything to reduce the disease.”

Many of the high-profile cases involving HIV/AIDS transmission and prosecution deal with issues of disclosure and criminalization of transmission. One of the most famous of these cases is that of Johnson Aziga.

Aziga was born in Uganda and now lives in Ontario. He was diagnosed with HIV in 1996. Following his diagnosis, he failed to disclose his HIV status and had unprotected sex with 13 women, seven of whom tested positive for HIV. Two of the women who contracted HIV died from AIDS-related complications. Aziga was found guilty of first degree murder by the Supreme Court of Canada and received a life sentence.

Philip B. Berger, MD, medical director of the inner city health program and chief of the Department of Family & Community Medicine at St. Michael’s Hospital in Toronto, said that medical and legal professionals disagree about the case.

“Even within the medical community, we have seen a range of responses to this and other situations like it,” Berger said. “Some feel outright prosecution is acceptable; some say you should never prosecute; some say you should prosecute rarely.”

Berger said that few physicians have read the statutes or the legal opinions that relate to HIV. Conversely, law enforcement and the courts may not be familiar with the clinical and biological issues related to HIV/AIDS.

This lack of information between the two groups has contributed to little professional consensus about the issue, according to Berger.

“Judges and prosecutors are not experts in HIV/AIDS,” Berger said. “Furthermore, they are pursuing these charges in a vacuum of any standards, guidelines, criteria or uniformity. The result is that the charges and sentences might not be consistent with other forms of unlawful behavior.”

Edwin Cameron, of the Constitutional Court of South Africa, cited an example at the recent 2009 Annual General Meeting of the Canadian HIV/AIDS Legal Network in Toronto. According to Cameron, a man in Iowa was sentenced to 25 years in prison and was required to register as a sex offender and undergo a sex offender treatment program because he failed to disclose his HIV status to a one-time sexual partner. The virus was not transmitted in the encounter.

For many, the argument is whether there should be a law that targets HIV specifically or whether criminal statutes regarding bodily harm are sufficient to handle cases involving disclosure and HIV transmission.

“Regular laws can work when there is intent to infect,” Jurgens said. “Most countries have provisions for dealing with issues of bodily harm that could work fine for clear cases of intentional HIV transmission.”

Jurgens noted that these two comments raise many of the key legal issues, such as the definition of ‘intent.’ Defense attorneys for Aziga argued that his intent was not to infect but to have unprotected sex. There has been no consensus among medical or legal professionals on the definition of intent or the obligation to disclose.

In some countries, the law states that if a person knows they are infected, they have an obligation to disclose their status to potential partners. While many medical professionals do not object to this position, experts such as Berger have concerns.

“If a patient is exhibiting the classic signs of HIV and has been told so, by a doctor, but refuses a test, I would argue that that is the same as a clinical diagnosis,” Berger said. “Simply refusing a test does not preclude holding that person accountable if they deliberately transmit the virus.”

Misinformation guiding some laws

Spitting, biting and splashing blood have also resulted in prosecution. Cameron cited the case of a homeless man in Texas who was sentenced to 35 years in jail for “harassing a public servant with a deadly weapon,” he said.

According to Cameron, the ‘deadly weapon’ in question was saliva and it was alleged to be deadly because he had HIV.

Jurgens said that “criminalizing behavior such as spitting or biting that carries no risk of HIV transmission is completely wrong and sends out the wrong message about how the virus is transmitted. Apart from being a miscarriage of justice, it contributes to the stigma associated with HIV/AIDS.”

Mark Wainberg, PhD, is the director of the McGill AIDS Centre at McGill University in Montreal. He said that many legal penalties are too severe, and he has argued that HIV is now usually a chronic condition, not a “death sentence.”

“Fifteen years ago, in many cases, contracting HIV was tantamount to a death sentence,” he said. “Obviously, that is not the case anymore. In many cases, the punishment does not fit the crime. If you adhere to your medications and the virus is suppressed to undetectable levels, the likelihood of transmission is extremely low,” he said. “This brings us back to the question of whether a person in that position has a legal obligation to disclose.”

Wainberg also noted that transmission of other sexually transmitted diseases, such as syphilis and gonorrhea, is not criminalized, nor is transmission of HPV, which can cause fatal cervical cancer.

Ron MacInnis, director of policy and programs at the International AIDS Society, said that HIV/AIDS-related law varies from country to country. For example, injection drug users in Eastern Europe are provided little protection. Harm reduction and needle exchange programs remain stigmatized, even in the medical community.

Women in many sub-Saharan African nations have few rights, especially when it comes to sexual relations, MacInnis said. Beyond statutes that assure male dominance within the institution of marriage, many African women do not have the legal or personal leverage to negotiate something as simple as condom use.

Jurgens said that laws such as these are becoming more, not less, common. He said that the global community is in the midst of an “epidemic of bad legislation.”

“We want to get as many people tested as quickly as possible,” Wainberg said. “However, with the current culture of laws around the world, it has become advantageous for many people simply to not get tested and not know their status. If you do not know you have the virus, you cannot be prosecuted for transmitting it. This provides clear motivation to stay away from the clinic.”

Rationale for some laws

Zita Lazzarini, JD, MPH, director of the Division of Medical Humanities, Health Law and Ethics at the University of Connecticut Health Center, said that states continue to pass HIV-related laws despite the paradox that they often do more harm than good.

“These laws are a visible step to prevent HIV,” she said. “They do not involve huge ongoing sums for education and prevention or job training or drug treatment. They involve enacting a law and saying, ‘we are going to give a tool to law enforcement to lock people up.’

“This is what is said during debates on the issue in legislative bodies. ‘We have to take this seriously, set a moral tone and put our actions where our mouth is.’”

According to Berger, emotion dictates the passage of some laws. “Society has a natural desire to seek revenge on people like Johnson Aziga, so prosecution seems like a logical solution,” he said. “The average person takes the position of law and order. It is an easy argument to follow.”

However, because of the fear and stigma they create, these laws ultimately increase the incidence of HIV and society ends up being ill-served.

Lazzarini said that selective application of HIV/AIDS related laws is a problem. Inconsistent application removes the potency of law as a deterrent to people who may have a desire to intentionally transmit the disease.

“In 17 years, we have documented about 300 cases,” she said. “The laws were not used overwhelmingly, but if you look at the penalties, they were extraordinarily long. This is not effective use of legislation.”

Patient perspective

The CDC recommendation for universal testing for all individuals aged 13 to 64 years has won support among health care professionals, but there has been a vocal minority against the recommendation.

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said that testing for HIV without informed consent constitutes “a violation of bodily integrity.”

“The problem is that we are only using one measuring stick to evaluate progress against HIV: that is the number of people getting tested,” Elliot said. “There are many other ways to measure advancement in the fight against this disease.”

Elliott also voiced concerns about whether states and countries can treat everyone infected. “An opt-out testing program is well-intentioned, but I wonder whether all of those people who get diagnosed will actually end up in treatment,” he said. “If there is no follow-through, then opt-out testing is going to do no good.”

A large number of people with HIV who are unaware of their status are poor and have not been diagnosed. They are unlikely to receive treatment, he said.

Elliott challenges what he calls the paradigm of ‘doctor knows best.’ “Patient empowerment has been such a cornerstone of the HIV/AIDS movement,” he said. “A position like opt-out testing seems to run up against that.”

The idea of patient empowerment is one that many experts believe can and should be used to reduce the spread of HIV.

Berger agreed. “People with HIV have long been excluded from the committee rooms where decisions that affect them are made,” he said. “Most people with HIV would sit in horror at the notion of infecting somebody else, even accidentally. It is a few people at the fringe who are deliberately infecting others.”

“Many gay rights groups oppose criminalization,” Wainberg said. “But many women’s rights groups support it.” He said that many gay rights activists feel that the criminalization of transmission is simply another way in which MSM can be persecuted and stigmatized, whereas women are more likely to support laws that could be perceived as providing them with protection.

He said that while HIV-specific laws may be effective for the rare instances of intentional infection, they are more often being misused in cases of accidental transmission or mere negligence on the part of one or both partners. In some cases, the laws are being used to prosecute women who are transmitting the disease in childbirth.

Cameron discussed what he called “the forbidding Sierra Leone statute.” He said that “lawmakers there have enacted a statute that requires a person with HIV to ‘take all reasonable measures and precautions to prevent the transmission of HIV to others’ — and it expressly covers a pregnant woman.” He said that a similar law is being adopted in many countries, primarily in sub-Saharan Africa.

Lazzarini put some of these issues into a broader context. “If you study an individual in any given setting, whether it is an MSM in the United States or a woman in sub-Saharan Africa or an injection drug user in Eastern Europe, you will see how various aspects of law affect their risk,” she said. “There is a whole world of laws out there that impact patients.”

“Clinicians need to make their patients aware of laws that pertain to their HIV status,” MacInnis said. “A lot of these laws are difficult to find, but doctors need to find them.”

“Given the vast number of immigrants living in the United States and Canada, physicians need to understand that the patient may have a whole set of fears and values that they bring to the clinic,” he said.

Many experts in this field contend that legal issues should be placed at the top of the agenda for IAS and IDSA meetings. Public debate and discussion could lead to a unified voice of the medical community.

“Much of what we see with regard to HIV and the law involves the prosecution of so-called criminals. But there is plenty that the law can do by protecting, promoting and providing as opposed to punishing,” Lazzarini said. – by Rob Volansky

For more information:

• Berger PB. CMAJ. 2009;180:1368.
• Cameron E. The Criminalization of HIV Transmission and Exposure. Presented at the 2009 Annual General Meeting of the Canadian HIV/AIDS Legal Network. June 12, 2009. Toronto, Canada.
• Wainberg MA. CMAJ. 2009;180:688.
• Wainberg MA. Retrovirology. 2008;5:doi:10.1186/1742-4690-5-108.

The growing trend of putting HIV-specific laws in place to criminalize HIV transmission and make disclosure of HIV status to sexual partners mandatory is sparking debate and concern on whether the use of criminal law in this context is contributing to or hindering public health goals of universal access to HIV prevention, treatment, care and support. There is particular concern about the negative impact that such laws will have on women.

Laws that criminalization HIV and require mandatory disclosure of HIV status can have serious implications for the human rights of people with HIV and populations most at risk of HIV and may jeopardize programs aimed at encouraging testing and openness about HIV (thus hindering access to treatment), while there is little evidence that it is effective in meeting either public health or justice objectives.

Very often the creation of HIV-specific criminal offences for transmission and a legal duty to disclose HIV status is justified as a means for protecting women. It has been argued that criminalizing HIV transmission and creating a legal duty of disclosure can protect women and appropriately punish men who infect their female partners. Yet the use of criminal law may well prove disproportionately punitive towards women with HIV. Because of routine screening in antenatal clinics, women are more likely than their male partners to learn their HIV status and thus be blamed if their partner is subsequently also diagnosed with HIV. Criminal laws also fail to recognize that for many women it is either difficult or impossible to negotiate safe sex or disclose one’s status to a partner for fear of violence, abandonment or other negative consequences. Should the criminal law be applied to willful transmission of HIV and create a legal duty to disclose, many women will find themselves in a situation where they are unable to disclose their HIV status to their husband or partner for fear of violence or abandonment and will face the possibility of prosecution as a result of their failure to disclose.

Strengthening initiatives that address the underlying causes of women’s vulnerability, such as legislation and social programs against domestic violence and rape is more likely to promote women’s health and equality than laws that criminalize HIV transmission and create a legal duty to disclose.

– Michaela Clayton

Director, AIDS & Rights Alliance for Southern Africa, Windhoek, Namibia