Jun 11, 2009
Edwin Cameron is a justice of the South African Constitutional Court and a recognized authority on the criminalization of HIV transmission. He took questions on this troubling legal phenomenon.
Why are we seeing a rise in criminal prosecutions for HIV exposure and transmission in many parts of the world at this point in the epidemic?
This trend is hard to explain because, with AIDS being fully treatable and the world’s epidemic stabilizing, one would have hoped for the opposite. The answer may lie in circumstance – the Ndjamena “model law”, adopted by more than 15 African countries, was intended to be a progressive piece of law-making, which got an AIDS crime tagged on at the end from what I suspect was misguided over-enthusiasm. In Canada, Scandinavia and Australasia, the upswing in prosecutions may be due in part to the “heterosexualisation” of the epidemic.
You’ve spoken out against criminalizing HIV transmission or exposure, at least in some cases. Why? Do you think there are any circumstances where criminal charges are warranted? Any circumstances where prosecution is clearly unjustified?
My main passion in opposing criminalisation is that it adds fuel to the fires of stigma; but even so, I do not oppose all criminal prosecutions. Like UNAIDS, I think that if someone who knows he has HIV sets out deliberately intending to infect another, and achieves this object, criminal sanctions are justified. They are not justified when no transmission occurs, or when transmission is unintentional.
Do criminal charges for HIV exposure and/or transmission protect women from infection? Would convictions give women justice if they’ve been harmed by reckless or deceptive partners? In the era of HIV, do we need to criminalize HIV transmission or exposure in order to protect women’s rights fully?
Some of the impulse behind criminalization, both in Africa and the rest of the world, does seem to be to protect women. However, it springs from a false premise, especially in Africa. Women bear the far greater burden of HIV, and most people diagnosed with HIV in Africa are women. These laws will be used to target them and weaken their position even more. It is telling that the very first person prosecuted in Africa for HIV exposure was a woman – a Zimbabwean woman prosecuted under Section 79 of the Zimbabwe Criminal Code – even though she was on ARV therapy and did not transmit the virus to her lover.
I understand that criminal prosecutions may increase stigma against people living with HIV and also invades people’s privacy. But isn’t it worth it if even a few infections can be prevented? Isn’t preventing infections more important than privacy?
The paradox is that these laws, far from protecting the uninfected, put them at greater risk by fuelling stigma. The answer to containing HIV lies in broad, sensible and just prevention and treatment policies, not in punitive targeting of those living with HIV. Overwhelmingly, infection occurs when two people have sex, neither of whom knows that one has HIV. Criminal punishment does nothing to help that situation – but makes it more difficult for the untested, but infected partner to find out his/her condition because of increased stigma.
If someone is unwilling or unable to disclose his or her HIV-positive status or to practice safer sex consistently, what is the alternative to criminal charges? What about within marriage, where there is often an assumption that no condoms should be used and having children is expected?
Nearly thirty years of public health experience in this epidemic have taught us that decreasing stigma, protecting against discrimination and increasing sound information about HIV promote testing and disclosure. The key to more treatment is more testing and disclosure, and we can only have more testing when people feel protected enough to choose to be tested. Criminalization works to the opposite effect. The marriage issue is potent because, more often than not, it is the wife who, because of ante-natal care, knows that she has HIV but could risk violence and expulsion from the marital home if she tells her husband. Criminal laws put such women at greater risk.
If a person can be charged for sexual transmission, what about HIV transmission from mother to child? If a woman doesn’t take steps to prevent transmission to her child, should this lead to criminal charges?
The lawmakers of Sierra Leone clearly thought so, since their new HIV criminal provision expressly includes pregnant mothers. This can only be described as horrifying and counter-productive. No mother wants to infect her child. What she wants is good health for both her child and herself. Both the health and criminal justice systems should enable her to access testing, treatment and support. Criminal sanctions will drive her away from all of these.
When draft HIV/AIDS bills have been proposed that include broad provisions criminalizing HIV transmission or exposure, they are often widely supported by the public and in the media. What do you think should be done to stop such bills from being passed?
We need to understand that the first reaction from many people, when thinking about HIV criminalization, is to support it. But better reflection mostly turns the tide. We – the community of people committed to justice and rationality in this epidemic – must do more to get our message out there. We must make the arguments that stigma fuels fear, and fear drives people away from rational self-protection and protection of others. The safest, surest route to effective HIV containment is just laws that protect people with HIV and encourage them to be tested and to talk freely and “normally” about their infection. In most countries, we have a very long way to go before achieving that. Criminal laws drive us even further away.
For further reading, please click here to access a PDF copy of “The Criminalization of HIV Transmission and Exposure”, a public lecture given on 12 June 2009 by Justice Edwin Cameron at the Canadian HIV/AIDS Legal Network’s 1st Annual Symposium on HIV, Law and Human Rights: “From Evidence and Principle to Policy and Practice”.