PHA-Exch> UNAIDS: Concern over Criminalization of HIV Transmission

[Claudio Schuftan]

From: Vern Weitzel <vern.weitzel at gmail.com>
crossposted from: "[health-vn discussion group]" health-vn at cairo.anu.edu.au


http://www.unaids.org/en/KnowledgeCentre/Resources/FeatureStories/archive/2007/20071106_criminalization_HIV_transmission.asp

Concern over Criminalization of HIV Transmission

Several countries have recently introduced laws to criminalise HIV
transmission,
or exposing another person to the virus. A number of jurisdictions have used
general laws against serious bodily harm in cases where someone is accused
of
knowingly transmitting HIV or willingly exposing others to HIV transmission.
Subject of controversy, these measures are sparking debate and concern among
policymakers, legal and public health professionals, international
organizations
and civil society, on whether criminal law is applicable in such cases and
if
such application is accomplishing or damaging public health goals such as
universal access to HIV prevention, treatment, care and support.

Addressing these issues, UNAIDS brought together a range of stakeholders in
Geneva for a three-day international consultation (31 October – 2 November)
to
discuss the apparent trend of criminalization of HIV transmission in the
context
of national responses to AIDS.

The purpose of the consultation, co-hosted by the UNAIDS Secretariat and
UNDP,
was to foster dialogue and provide an opportunity to reach an understanding
of
what constitutes appropriate application of criminal law to HIV
transmission, if
at all, given public health and human rights imperatives. Participants in
the
meeting included parliamentarians, members of the judiciary, criminal law
experts, civil society representatives and people living with HIV, alongside
representatives of WHO, ILO and the Office of the UN High Commissioner for
Human
Rights.

Consultation participants expressed concern about the apparent rise in the
number of cases in which people living with HIV have been criminally charged
for
transmitting HIV, or engaging in acts that risk transmitting HIV. In some
cases,
criminal charges have been laid for conduct that is "perceived" as risking
transmission, but where no real risk exists, and sometimes with very harsh
penalties imposed. Participants also expressed concern that there are
jurisdictions moving to enact or amend legislation specifically to
criminalize
transmission and exposure. While noting that many legislators may be acting
out
of good intentions, consultation participants stated clearly that such laws
are
not an effective way of dealing with the transmission of HIV.

"Like in the early years of the epidemic when I declared that we have now
'HIL –
Highly Inefficient Laws', when there were the proposals for testing everyone
in
society, we now have a new wave of HIL. And it's a wave that's coming
particularly in Africa, but also in other parts of the world," stated
Justice
Michael Kirby, judge in the High Court of Australia, in the concluding
session
of the consultation.

While little is known about the impacts of criminalizing HIV transmission,
many
are concerned that it may have a negative impact on the uptake of HIV
testing
and access to HIV prevention, treatment and care services. Sensational media
reports can exacerbate stigma and discrimination, and jeopardize HIV
prevention
strategies currently in place. "Applying criminal law to HIV transmission
has a
heightened role in stigmatizing HIV, it is ineffective and public health
strategies are better used to advance HIV prevention," said Justice Edwin
Cameron, Supreme Court of Appeal, South Africa.

Furthermore, there is also concern that criminal proceedings may compromise
basic civil rights such as the right to privacy, especially among the most
vulnerable populations. Some legislators and women's rights groups think
such
laws will protect women from HIV infection, but as Susan Timberlake, UNAIDS
Human Rights and Law Advisor noted, "There is great concern that in fact
these
laws would hurt women most, as it is women who first find out their status
and
thus will be first subject to prosecution.  Laws to ensure women's equality
inside and outside marriage would protect them more than laws criminalizing
HIV
transmission."

Recommendations from the meeting will inform the finalization of UNAIDS'
policy
position and other guidance documents on the criminalization of HIV
transmission. "A clear message from the meeting was that criminal law is a
very
blunt tool to deal with HIV," said Seema Paul, UNAIDS Chief of Policy
Coordination. "The real goal of policy makers is preventing new infections
but,
in fact, criminalizing HIV transmission – excepting in a very small sub-set
of
cases dealing with retributive justice – will create disincentives for
learning
about one's HIV status and accessing health and other services," she added.
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