The government of Africa has been moving toward criminalization of HIV transmission in its attempts to respond to the rising numbers of HIV infections however, those who advocate for human rights are concerned that these laws result in a violation of the rights of individuals living with HIV and ultimately resulting in the marginalization of these individuals. As well, it has been argued that laws criminalizing transmission of AIDS are counterproductive to the reason for their creation, which is that of slowing the rate of transmission and infection of HIV. There are arguments both for and against criminalization of HIV transmission that are valid and worthy of consideration.
The question addressed in this research study is one asking if criminalization of HIV transmission is a valid option to slowing the rate of infection among the population.
Significance of the Study
The significance of this study is the additional knowledge that will be added to the already existing knowledge base in this area of inquiry.
The methodology of this study is one of a qualitative nature involving an extensive review of literature in this subject area. Qualitative research is interpretive and descriptive in nature.
The work of the UNFPA, Worldaids Campaign, IPPF, and GYCA entitled "The Criminalization of HIV" reports that transmission of HIV in many countries is a criminal offense and in some countries exposing someone to HIV may be an offense that can be prosecuted. Charges may be brought under various laws and may include such as murder, assault, and grievous bodily harm. Some of the arguments are stated as follows:
(1) Promotes public health outcomes, but could deter people from VCT: While some people believe that criminalization can promote public health outcomes and HIV prevention, it may also deter people from accessing voluntary counseling and testing services, and discourage them from knowing their HIV status and seeking appropriate care and support.
(2) Holds people living with HIV responsible for prevention, rather than promoting individual responsibility irrespective of HIV status: Some proponents of criminalization contend that it will encourage people living with HIV to take responsibility for protecting their sexual partners, but this undermines the fact that sexual health is the responsibility of each individual and both partners in a sexual relationship.
(3) Punishes people who knowingly expose and/or infect someone with HIV, but undermines the human rights of people living with HIV: Many laws seek to "punish" people for not disclosing their status to sexual partners, but this undermines the human rights of people living with HIV by 'forcing' them to disclose their status. These laws do not take into account the lack of a supportive environment to promote disclosure nor the effects of HIV related stigma and discrimination.
(4) Controls unsafe behaviors: Some argue that criminalization will deter people from behaviors frequently negatively associated with the transmission of HIV such as injecting drug use and sex work. However, it may also contribute to the stigma surrounding groups engaging in such behaviors, and drive these behaviors further underground for fear of criminal persecution. (5) Protects vulnerable groups but could also lead to increased stigma Others argue that criminalization will help 'protect' certain groups at risk of HIV infection, such as girls and young women, migrants, and prisoners. However, this could also contribute to the stigma surrounding these same groups, by labeling them as "victims," sensationalizing the epidemic. (UNFPA, Worldaids Campaign, IPPF, and GYCA, nd, p.1)
Stated as alternatives to criminalization are the following options:
(1) protect public health by focusing on the UN target of achieving 'Universal Access to prevention, treatment care and support rather than punitive measures. This will requiring improvement of existing prevention, care and support programs.
(2) Promote prevention among people living with HIV or positive prevention by ensuring that this strategy feature moer prominently in the HIV responses of national governments including in their comprehensive HIV prevention streatgies.
(3) Tackle stigma and enable people living with HIV to be open about their status and to practice safer sex.
(4) Address the underlying cuases of vulnerability that relate to increasing HIV prevalence rates among women and girls. Included are issues such as gender-based violence, economic empowerment and early marriage. Such measures would enable women and girsl in controlling their futures and therby reduce the vulnerability to HIV. (UNFPA, Worldaids Campaign, IPPF, and GYCA, nd, p.1)
The work of Cameron, Burris and Clayton (2008) entitled "HIV is a Virus, Not A Crime: Ten Reasons Against Criminal Statutes and Criminal Prosecutions" reports that the criminalization of the transmission of HIV "has become a pressing issue in the management of the epidemic." (p.1) It is explained that in May 2008, a homeless man in Texas was sent to jail and was subsequently convicted of the commission of a serious offense while being arrested for drunk and disorderly conduct or specifically for harassing a public servant with a deadly weapon. The man was ultimately sentenced for 35 years and would have to serve half of the sentence before applying for parole. The deadly weapon used against the public servant was his saliva since he spat at the officers putting him under arrest. The man has HIV. It is the belief of Cameron, Burris and Clayton (2008) that charging this man in this way is absolutely a travesty of justice since empirical scientific knowledge is that the HIV virus cannot be transmitted through saliva. The man did not actually harm anyone and no property was damaged. The pistol he brandished during the arrest was a toy pistol, which was not even loaded. In another case a 26-year-old woman in Zimbabwe was placed under arrest in 2007 for having unprotected sex with her lover. She was living with HIV and was convicted of "deliberately infecting another person" even though her lover tested HIV negative. (Cameron, Burris and Clayton, 2008, p.1) The woman was convicted under the statute s79 of the Zimbabwe Criminal Law (Codifictaion and Reform) Act 23 of 2004 which is reported as an "extraordinary piece of legislation." (Cameron, Burris and Clayton, 2008, p.2) This statute is such that does not make it a crime for a person who has HIV and to knowingly infect another person but makes it a crime for "anyone who realizes that there is a real risk or possibility that she might have HIV to do 'anything' that she realizes involves a real risk or possibility of infecting another person with HIV.' (Cameron, Burris and Clayton, 2008, p.2) While this crime is termed 'deliberate transmission of HIV' this crime can be committed even if the individual does not know that they transmitted the HIV infection to another person and even if they do not have HIV. Stranger still due to the manner in which the statute is drafted "this defense can not apply where the accused does not in fact have HIV, or does not know that she has HIV -- by definition, in that case she cannot engage the informed consent defense by telling her partner she has HIV! IN short, this law creates a crime not of effect and consequence but of fear and possibility." (Cameron, Burris and Clayton, 2008, p.2) Furthermore, the way that the Zimbabwe law is worded "stretches wide enough to cover a pregnant women who knows she has, or fears she may have HIV. For if she does 'anything' that involves a possibility of infecting another person -- like giving birth, or breast-feeding her newborn baby -- the law could make her guilty of 'deliberate transmission' -- even if the baby is not infected. In all cases, the law prescribes punishment of up to twenty years in prison." (Cameron, Burris and Clayton, 2008, p.2) The lawmakers in Sierra Leon are reported to have gone even further and enacted a statute that removes all doubt through creating an offense of HIV transmission and it also criminalizes the exposure to HIV even without HIV being transmitted. The Sierra Leone law makes a requirement of a person with HIV who is aware that they have HIV to "take all reasonable measures and precautions to prevent the transmission of HIV to others -- a it expressly covers a pregnant woman" requiring the woman who is pregnant to "take reasonable measures to prevent transmitting HIV to her foetus." (of Cameron, Burris and Clayton, 2008, p.3) While there is no doubt that a mother will do all she can to take reasonable steps to protect her baby the law makes it more difficult for the mother to do so. (Cameron, Burris and Clayton, 2008, paraphrased) The person who has HIV and who is aware of this fact "must not knowingly or recklessly place another at risk of becoming infected with HIV, unless that person knew of the fact and voluntarily accepted the risk. This, too, applies to pregnant mothers." (Cameron, Burris and Clayton, 2008, p.3) Reported are the following current examples of the criminalization of HIV: