Criminalisation of wilful transmission of HIV: sitting on the fence?

By Christele Diwouta, a researcher with Idasa’s Governance and AIDS Programme

In August this year the eyes of the world were upon an HIV-positive German pop star found guilty of having unprotected sex with her ex-partner and infecting him with HIV. Nadja Benaissa, 28, was found guilty and given a two-year suspended sentence as well as 300 hours of community service.

Nadja’s trial stirred up controversy and her story is not an isolated one. In the recent history of HIV and AIDS, there have been reported cases of wilful transmission of HIV. Some countries view the act of infecting a person with HIV as first-degree murder, as in the case of Ugandan-born Johnson Aziga under Canadian law.  Or it can be defined as serious bodily harm, as in the case or R. v. Cuerrier  where the supreme court of Canada ruled that a partner cannot truly give informed consent if the other fails to disclose their HIV status. In the American state of Florida, a person with a sexually transmitted disease other than HIV who knowingly passes on the disease through sexual activity is guilty of a misdemeanour.  But it is a felony  for any person who is knowingly infected with HIV to intentionally or recklessly pass it on to another person .

In 1997, American Nuishawn Williams admitted to having had unprotected sexual intercourse with several women, knowing that he was infected with HIV. In 1999, he pleaded guilty to two counts of statutory rape (two of his victims were under age) and one count of reckless endangerment in the first degree for having unprotected sex with a woman who did not know his HIV status. He received a four-to-12-year sentence. South African born André Chad Parenzee was convicted of three counts of endangering human life by exposing others to the risk of infection through unprotected sex because he told them that he was HIV seronegative. In one instance he actually transmitted the virus. In January 2006, he was convicted on three counts of endangering life. The basis of the conviction was that he had unprotected sex with three women over a period of several years, despite being aware of how HIV was transmitted. On appeal, Parenzee claimed that the existence and virulence of HIV have not been proven. Prominent researchers,  including s Robert Gallo,  testified to the scientific consensus that HIV exists and causes AIDS. Ultimately, the judge rejected the qualifications and testimony of the AIDS dissidents who were witnesses, saying that there “is no longer any genuine scientific dispute” that HIV exists and causes AIDS.

The case of Brian Stewart is slightly different from those mentioned above. Stewart infected his 11-month-old son with contaminated blood when the baby was receiving treatment in hospital for pneumonia and asthma. On January 9, 1999, Stewart was charged with first-degree assault  and sentenced to life imprisonment at St. Charles County Circuit Court in the United States. The alleged motive behind the crime was Stewart’s wish to avoid paying child maintenance to support his son.

In all the above instances, the act of having sexual intercourse or injecting an infant can not be separated from the criminal intent otherwise called mens rea.  Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged. The cases mentioned above clearly show that the defendants were fully aware of their status or the nature of the blood and had the intention to transmit the virus, either via sexual contact or injection.

In spite of the above, in May 2010 a Canadian court made a groundbreaking ruling, acquitting a man of exposing others to HIV on the basis that the risk was not significant enough for liability.  Based on the evidence before her, the judge concluded that the sexual encounters did not represent a “significant risk of serious bodily harm”. This is the legal threshold set out by the Supreme Court of Canada for triggering a duty to disclose known HIV-positive status.

It is well established that HIV causes Aids. What differentiates AIDS from other infectious diseases is that, over and above stigmatisation and discrimination, AIDS, if not properly monitored, leads to premature death. Although the advent of antiretrovirals is helping to prolong lives, there is no cure for AIDS. There is a strong connotation of fear, emotional and physical trauma attached to the disease, leading in most jurisdictions to a tort of outrage otherwise known as intentional infliction of emotional distress. In all instances of wilful transmission, the four elements of intentional infliction of emotional distress are present:

1. Defendant acted intentionally or recklessly;
2. Defendant’s conduct was extreme and outrageous;
3. Defendant’s act was the cause of the distress; and
4. Plaintiff suffered severe emotional distress as a result of defendant’s conduct.

The above cases show that the transmission of HIV and AIDS are serious concerns to the legal and medical profession and the public at large. It has been punished under several jurisdictions already and there are ongoing debates for more countries to expand their criminal law to prosecute wilful transmission of the disease.

This paper does not seek to further support nor does it want to discourage proponents of criminalisation of HIV infection. The aim is to discuss both schools of thoughts and stimulate debate around criminalisation of HIV infection and its ultimate goal.

Divergent opinions on criminalisation of wilful transmission of HIV

To some, wilful transmission of HIV should be criminalised for the greater good of society as illustrated in the following statement:

“Someone who knows they are HIV positive, but has not listened to the counselling and continues to live a very disorganised life for whatever reason, and knowingly transmits the virus to someone else, that is a criminal act.” 

In the particular instance of Southern Africa, the proponents of criminalisation brought forth three major factors that prompted calls for wider criminalisation. These factors are a high prevalence of HIV/AIDS, a high incidence of cases of sexual violence and a call for government action. Southern Africa remains the global epicentre of the epidemic, with about two thirds of the global total of 33.4 million infected people. In South Africa in 2006 there were close to 55 000 reported rape cases and an estimated 450 000 rape cases that went unreported.  In addition to this, certain cultural beliefs promote the spread of HIV, such as the idea that sex with a virgin can cure someone of the disease. The calls for actions are generally directed at the executive and legislative bodies to take appropriate steps, namely the use of the coercive power of the state to deal with those who wilfully or negligently transmit HIV.

To others, a blanket application of criminalisation could cause more harm as it has the high potential of further fuelling stigmatisation and discrimination of people living with HIV. Furthermore, there are issues of public health and human rights at stake. There are uncertainties around what criminalisation of HIV includes and its impact on people living with HIV, their partners and society at large. UNAIDS advises that available data show that there is no difference in behaviour between places where laws criminalising HIV transmission exist and where they do not. HIV is a virus not a crime.  Or is it more than just a virus?

For the Canadian HIV/AIDS Legal Network, a milder approach is necessary based on the particular facts of each case. In a statement, it said that the judgment in R v. J.A.T (2010) reinforced the basic point that not every risk of transmission will be considered “significant”. It said that this illustrated the importance of ensuring that courts considered carefully the scientific evidence before them in determining when there was a “significant risk” of harm, rather than simply criminalising non-disclosure in all circumstances. While critical of the accused’s conduct, describing it as unethical, the judge said: “But not every unethical or reprehensible act engages the heavy hand of the law.”

In this particular case, the accused HIV-positive partner was exclusively the receptive partner during anal sex, and the prosecution’s medical expert estimated the risk of transmission per act as 0.04 percent (for a cumulative risk of 0.12 percent over the three occasions). In addition, the judge found that HIV infection is now a chronic and manageable condition. Therefore, as the possible harm decreases, the risk of harm must be higher in order to warrant criminal prosecution.

Has criminalisation of diseases worked before?

The tiny HI virus with the huge impact  is not the first disease that has been criminalised. People diagnosed with venereal diseases used to be imprisoned, isolated, excluded or separated from the rest of the community. As early as 1864, people with venereal diseases were detained in the United Kingdom. This led to discrimination and victimisation of many working-class women who were not necessarily commercial sex workers. The Contagious Diseases Act (1864) required women suspected of being prostitutes to be physically examined and if they showed any sign of infection, they were detained in a venereal diseases hospital. In R. v. Clarence,  a man who knew that he was suffering from gonorrhea had sexual intercourse with his unsuspecting wife and passed the disease onto her. He was charged with inflicting grievous bodily arm and assault occasioning actual bodily harm. He was convicted at trial. However, when he appealed against his conviction he was successful. This was due, in part, because of the consent attributed to the wife to have sex with the husband and because that consent was held not to be impaired by the husband’s failure to disclose his illness in advance of sexual intercourse.

On its part, the UK’s Public Health Act of 1917 imposed a penalty of up to two years imprisonment for anyone who treated or publicly offered to treat or advise on treatment of venereal diseases. Even today, public health legislation has criminalised exposure to certain diseases. For instance, Malawi, Zambia and Zimbabwe have provisions in their public health legislation that target sexually transmitted diseases or venereal diseases.  Probably because of the social, physical, economic intricacies of sexually transmitted infections and their close link to sex and sexuality, they have been, for many generations, an uncomfortable topic of discussion.

We must examine venereal diseases not only as biological entities, but as diseases that have engaged certain attitudes, values and beliefs about their causes and consequences that, in turn, affect responses to the problem. A society’s response to those who are ill and its use of medical discoveries and resources is closely related to its most basic assumption and beliefs.

The very nature of these diseases, and in particular their mode of transmission, has led to what could be described as a witch hunt. In the past, those with sexually transmitted infections who infected others were punished..

The psychological background for severe legal provisions against venereal diseases goes far back in human history. Martin Bouyer referred to the concept of the sexual act as a sin, a conspicuous element of those religions prevailing in Europe, namely Christianity and Islam. To sin is added fear of the unknown consequences of venereal diseases and punishment is a primitive reaction to sin and fear.  In England, and in some countries dominated by English political philosophy, a unique respect for the integrity of the individual has been a bulwark against compulsory provisions in the handling of venereal diseases. In countries dominated by Germanic influence, and even more in communist countries, anti-venereal diseases laws and regulations prescribed detailed procedures and sanctions. 

In Denmark, until 1947, the Law against Public Immorality and Venereal Infections was in force. It contained a mixture of provisions against prostitution and procedures against a group of diseases. The law dealt with persons who were suspected of various sorts of immorality. It mentioned confinement in hospital for defaulters and imprisonment for up to two years if a person exposed somebody to venereal infection. However, the then Danish Administration of Justice Act 1916 stated that nobody was obliged to confess a crime that they had committed. This means that the doctor is entitled to ask his patient only about his source of infection and not about his later contacts, since to admit the latter would be to incriminate himself. So, already, the ultimate aim of criminalisation was hampered by limitation as far as the full extent of disclosure was concerned.

The full force of the law can be stopped when remedies and alternative measures are invoked. In Denmark again, venereologists suggested that the wisest procedure would be to maintain a legal basis in order to secure funding for specific anti-venereal diseases purposes:

– to provide free treatment to all patients with venereal diseases, including foreigners;
– to provide technical assistance e.g. by providing investigators to assist doctors charged with the duty of tracing sexual partners; and
– to maintain the State Serum Institute – paid for by the State – as a central laboratory service for the whole country.

In other words, transmission of venereal diseases ceased to be a criminal offence and defaulters were no longer punished, except where the carrier of such disease spread it deliberately. Up to the 70s, Denmark had very rigorous anti-venereal diseases legislation. But it could not be established with absolute certainty that countries with less severe laws or with no anti-venereal diseases legislation at all, such as England – where criminalisation of venereal diseases was later outlawed – had a higher incidence of venereal diseases.

Several countries in Africa and elsewhere have legislation providing for the prosecution of HIV transmission or exposure. These criminal law measures range (but are not limited) from murder, manslaughter (culpable homicide), and assault to attempted murder.  Under some legislation – mainly in the US – a case of transmission of HIV could be brought under a civil law suit and treated as intentional infliction of emotional distress, negligence, fraud or battery.

The implications of criminalisation of wilful 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,” said Justice Michael Kirby, a judge in the High Court of Australia. “Applying criminal law to HIV transmission has a heightened role in stigmatising HIV, it is ineffective and public health strategies are better used to advance HIV prevention,” said Justice Edwin Cameron, Supreme Court of Appeal in South Africa.

To date, African countries such as Zimbabwe , Lesotho  and Madagascar  have legislation criminalising HIV. Tanzania  and Swaziland  are at their draft stage. The bid to criminalise HIV has even caused some legislation to redefine or expand the definition of existing crime such as rape. Section 3(4) (c) of the draft Offence Act of South Africa makes it “rape” for an HIV-infected person to have sexual intercourse without informing his partner of his sero-status.

There is a need for a comprehensive reflection in countries on the criminalisation of HIV infection and its implications. It should be also noted that the criminalisation of HIV transmission targets those who have taken the initiative to know their status, and therefore their risks. This affects women disproportionately because more women than men know their HIV status. Several arguments make the relevance of criminal law in dealing with the pandemic dubious.  To its opponents, the criminalisation of HIV transmission means that, in the case of sero-discordant couple, each time a couple has sex, they will be committing a crime. Similarly, each time a nursing mother breastfeeds her baby, she will be committing a crime. Practically, the criminalisation of HIV raises more questions, such as how does one prove whether or not he or she was already infected with HIV before the sexual act with the accused occurred? How does one prove the burden of proof if the accused pleads not guilty since the necessity of proof always lies with the person who the lays charges?

Research has shown that when people are coerced, they show resistance and negative attitudes. Between 1973 and 1975, American physician-epidemiologists in South Asia, working under the auspices of the World Health Organisation, intimidated local health officials and resorted to coercive methods in the final stages of the Smallpox Eradication Programme. While intimidation and coercion were successful in the short-term in ensuring disease containment, they evoked resentments among health professionals and the populace. The long-term effect of the coercion may have been to foster negative attitudes toward subsequent vaccination campaigns. These episodes suggest a need for paying attention to actual and perceived abuses when global health measures are introduced from “above” into regional settings.

Advocates of compulsory HIV testing would probably foresee a state with the capacity to test its entire population at regular intervals, a scenario that is financially and practically impossible.
Studies also show that criminalising wilful transmission of HIV will target groups that are already marginalised or vulnerable, including women, migrant workers, men who have sex with men and commercial sex workers. The focus of efforts should be on availability of treatment, care and support and not criminalising because it may drive people away from testing and seeking treatment. Coercive measures always serve a negative purpose. When it comes to sex, with its potent elements of need, want, trust, passion, shame, fear, risk and heedlessness, normal, reasonable people simply do not always follow public health guidelines.  HIV status is a private matter but in specific circumstances – when a third party is at risk – the International Guidelines on HIV/AIDS and Human Rights recommend the conditions under which the HIV status of an individual can be disclosed to a third party. These conditions are as follows:

(i) The HIV-positive person in question has been thoroughly counselled;
(ii) Counselling of the HIV-positive person has failed to achieve appropriate behavioural changes; (iii) The HIV-positive person has refused to notify, or consent to the notification of his/her partner(s);
(iv) A real risk of HIV transmission to the partner(s) exists;
(v) The HIV-positive person is given reasonable advance notice;
(vi) The identity of the HIV-positive person is concealed from the partner(s), if this is possible in practice; and
(vii) Follow-up is provided to ensure support to those involved, as necessary.

As mentioned earlier, in many societies special laws have been enacted obliging an HIV-positive person to tell the person they are planning to be sexual active with of their HIV status.  In other jurisdictions, specific laws have been enacted to make it an offence to transmit a dangerous health condition. 

Amongst the multi-sectoral responses to the HIV epidemic, there are those described by Justice Kirby as “the contagion of highly ineffective laws (HIL).”  He is of the opinion that legal and punitive laws should be set aside because their aggressive deployment has generally been seen as counter-productive. He goes on to add that this is because of the typical ineffectiveness of criminal law as a response to activities important to individual identity and pleasure, such as sex. In addition, criminal law and its agencies for its enforcement tend to drive persons at risk, and those servicing their needs, into “underground” activity, out of the reach of safer behaviour messages essential to behavioural change and the protection of  themself and others.

There have been concerns of violation of human rights in criminalising wilful transmission of HIV. Article 26 of the N’djamena draft model law requires a person diagnosed with HIV to disclose to his or her “spouse or regular sexual partner” as soon as possible (and at most within six weeks of the diagnosis) of his or her HIV status. This obligation of disclosure is not related to specific sexual conduct but instead to particular relationships.

In many (perhaps most) of the countries concerned, such disclosure can lead to severe stigma, discrimination, violence and even deadly abuse, targeted particularly at women. It can also lead to infringements of privacy and basic rights that are disproportionate to the outcome. On its part, Article 36 of the N’djamena draft model law addresses criminalisation by making “wilful transmission” an offence; this is defined as transmission of HIV “through any means by a person with full knowledge of his/her HIV status to another person”. Concerns has been expressed that this provision is also too broad. Potentially, it imposes criminal liability, although a person may practise safer sex which reduces or eliminates actual risk of transmission to a sexual partner; take steps to disinfect injecting or skin piercing equipment; or involving mother-to-child transmission of HIV, regardless of the actual risks involved in the particular case.

As they would experience double stigmatisation by being HIV positive and part of vulnerable group, vulnerable and marginalised groups are likely to perceive or experience criminalisation of HIV as a way of further stigmatising them and deepening the divide between “them” and the rest of society. Women in particular are at greater chances of being stigmatised as they are often the first to know about their status, largely through childbearing. Studies in Southern Africa, where domestic violence is rampant, showed that women are likely to face abandonment and physical abuse when disclosing their HIV-positive status to their husbands. 

Those opposed to HIV criminalisation are concerned 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 are of the opinion that such laws will protect women from HIV infection; however, discrimination against women, de facto  and de jure , renders them disproportionately vulnerable to HIV and AIDS. Besides their biological make up, women’s subordination in the family and in public life is one of the root causes of the rapidly increasing rate of infection among women. Systematic discrimination based on gender also impairs women’s ability to deal with the consequences of their own infection and/or infection in the family, in social, economic and personal terms.  However, 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 criminalising HIV transmission.”

Criminalisation of wilful transmission of HIV has the potential of creating even new groups of population at risk. This was the case involving a disc jockey in Zimbabwe, who infected a 15-year-old and was considered a member of a group described as playful and displaying deviant sexual conducts.  Would it have made a difference if the accused was a middle-class professional working in finance?

Conclusion
Criminalisation of wilful transmission of HIV could be a solution to reducing the spread of the disease. But it cannot be viewed as the magic bullet that will solve the ever-increasing problems of HIV. There could be a solution in the combination of efforts including, but not limited to, the use of punitive law. A combined effort, including improved education levels, awareness of the disease, access to affordable healthcare services and reducing stigmatisation and discrimination, especially of vulnerable groups, would probably be more effective than mere criminalisation.

This paper poses the fundamental questions of the purpose, aim and ultimate goal of criminal law as far as HIV is concerned. It cautions the universal application of criminalisation based on past and current experiences with infectious diseases and interrogates the effectiveness of laws, despite their attractiveness with policy makers, lawmakers and the general public. We should not be too quick to run with criminalisation of HIV, just because it forms part of a vast world movement. The focus should rather be on the ultimate goal of criminalisation.

In the words of South African judge and HIV activist living with the disease, Edwin Cameron, the role of the law in a public health crisis should be “to contain the epidemic and to mitigate its impact”. He adds that the law’s function should be primarily protective and “should aim to save the uninfected from infection and to protect the infected from the unjust consequences of public panic”.  The question then remains is has the drive for criminalisation and actual criminalisation of wilfull transmission of HIV achieved this aim?

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