Is it a crime to transmit HIV?

Most of us will never visit Chad, and I admit I had to double-check exactly what and where N’Djamena was when I started to look into the criminalization of HIV.  N’Djamena is the capital city of Chad – a city known for its meat-processing and lack of railway lines, in a country known for internal and external conflict.  It is also, incidentally, where a small group of well-meaning people sat down in 2004 to develop a “model general law of HIV” outlining the rights of persons living with HIV/AIDS.  The group was called AWARE-HIV/AIDS and their document has come to be known as the N’Djamena model law.  It includes the right to healthcare services, confidentiality, pre- and post-test counselling, as well as protection from discrimination.  These are all good things that we advocate here at PWN, so why is the HIV/AIDS community up in arms against it?

Receiving an HIV diagnosis is probably one of the most emotionally challenging and difficult experiences that many women will face.  Intense feelings of anger and injustice are likely to be a part of this emotional assault, especially in the early days.  If you were infected by somebody who knew they had HIV but didn’t tell you, shouldn’t you have some means of holding them accountable?  This is what the folks at N’Djamena were thinking when they drafted Articles 26 and 36 which aim to codify as law the duty to disclose HIV status and the right to criminally charge a sex partner who does not disclose.  These laws were intended to protect those who are HIV infected or vulnerable to infection.  Opponents of criminalization argue that in practice, they have done the exact opposite – targeting the most vulnerable, increasing stigma, and actually hindering genuine prevention efforts.

As Craig and Marc Kielburger point out, “articles like the forced disclosure rule disproportionately criminalize women living in fear of abuse”.  Around the world, women are more likely to get tested and be diagnosed, as HIV-testing is increasingly available during pregnancy.  Just because a woman is the first to test positive doesn’t mean she’s the one who brought the virus into the relationship, but she’s an easy target for an abusive partner who doesn’t want to admit he’s been stepping out for unprotected sex.  You may have heard about the brutal murder of 25 year old Glorius Kyarihunda.  Apparently she is just one of five women murdered in 2008 by Ugandan husbands following their wives’ disclosure of HIV status.  These are extreme cases, but the sheer number indicates that thousands more women experience and/or fear retribution including violence if they disclose their status.  If you add to this the fear of criminal prosecution, might people simply opt to avoid testing?  This would be completely counterproductive to treating and preventing HIV.

Then there are the horror stories of how criminal law has been applied to HIV transmission.  In 2008 in Switzerland, a man was convicted for transmitting HIV to his sex partner even though he honestly believed he was not HIV positive because he had not experienced seroconversion symptoms.  In Sierra Leone, an HIV-specific criminal law includes the responsibility of mothers to “take all reasonable measures” to prevent the transmission of HIV to a fetus during pregnancy—this in a place where many women don’t have access to the antiretroviral drugs that might make this possible.  In Canada, where charges and convictions are based on placing somebody “at significant risk of bodily harm”, there have now been a couple cases in which HIV positive gay men have been charged for performing oral sex without disclosing.  Of course, there was no transmission in these cases, and the almost negligible risk of transmission via falatio certainly does not qualify as “significant”.  The haphazard application of criminal law to HIV exposure is perhaps most blatant in the 2008 Texas case in which an HIV positive homeless man was sentenced to 35 years in jail for spitting on a police officer—“assault with a deadly weapon” despite the fact that we know HIV cannot survive to be transmitted in saliva.

I don’t think many people are advocating against criminal charges where they are really warranted – where there is coercion (which is assault or rape, regardless of HIV status) or where HIV infection really is intentional.  I don’t have all of the details, but perhaps Johnson Aziga is one of those rare and reprehensible cases in which criminal charges are warranted.  Aziga had unprotected (possibly coercive) sex with thirteen women, infecting seven of them.  He has been found guilty of two counts of first-degree murder for the death of two of these women to AIDS.  PWN has not taken a formal position on the question of criminalization of HIV non-disclosure (and the staff are not empowered to do so on behalf of the society).  There are many compelling arguments that have been put forward against using the criminal law in cases of HIV transmission, exposure, and non-disclosure of status.  It is impossible to present these arguments completely in a single blog post, but I will continue to follow the issue, and hopefully inspire discussion and dialogue.

-Miriam

This was posted on Friday, July 24th, 2009 at 10:00 am and is filed under HIV Prevention, News . Feel free to respond, or trackback. Read our comments policy.

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  Lisette Seldin May 5, 2010 at 2:13 am

  Thank you and I think this is a great post, I have to feed your blog to learn more useful information. Really appreciate it and I wait your next info about this topic more specifically.

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  Stuart Glenna July 30, 2010 at 1:41 pm

  Appreciate you sharing, great blog post.Much thanks again. Much obliged.

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