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HIV & the law

Criminalizing HIV transmission: Is imprisonment ever the right response?

28 Nov, 16 | by Leslie Goode, Blogmaster

This month sees the publication of a ‘Consensual Statement’  by Australian medical professionals on ‘Sexual Transmission and the Law’.  This draws on a similar Canadian ‘Consensus Statement’  issued in 2014.

The involvement of the law in this area remains a highly controversial matter.  It is easy to assume that UNAIDS policies underlining the public health disbenefits of “overly broad criminalization” largely concern those African nations which have recently adopted draconian legal previsions in response to the HIV crisis (Kpanake & Mullet/STIs; Stackpole-Moore/STIs).  Yet we should not forget that prosecution and imprisonment for transmission of HIV continues to occur in first-world countries as well (e.g. 16 custodial sentences in England over the period 2001-2012 (Phillips & Sukthankar/STIs)).  National jurisdictions differ in respect to whether, in order to be subject to prosecution, the transmission must be intentional or reckless.

Many in sexual health, I suspect, would reject the idea of involving the criminal law in such cases.  Stackpole-Moore/STIs, for example, argues that its use “in order to guide normative behaviour” is irreconcilable with the concern to avoid internalized stigma among at risk populations.  According to S, employing criminal sanctions in this area involves promoting just the kind of social stigma that health policy makers have found so counter-productive in fighting the epidemic.  However, this side-steps the question whether there might ever be a moral argument for legal sanctions regardless of their impact on behaviour.  Phillips & Sukthankar/STIs, in their theoretical examination of traditional justifications for sentencing to imprisonment, recognize the possibility that ‘retributive justice’ could provide some genuine justification for imprisonment for HIV transmission.  This might explain why those African legislators responsible for passing the recent severe previsions, tend, when asked about their motivations, to revert to the argument of retribution – even where that is not the ‘official’ justification (Stackpole-Moore/STIs and Kpanake & Mullet/STIs).

To come at last to the recent Australian and Canadian statements – these discourage, even if they don’t quite exclude, the involvement of the law.  However, they do so not on the grounds of a principled rejection of all justifications for criminalization (such as advocated by Stackpole-Moore/STIs), but on the grounds of the changing reality, and changing perceptions, of HIV.  They specify the risk of per sex-act transmission – in the case of penal-vaginal transmission, rated low (0.4%-1.4%) – and point to the effectiveness and tolerability of treatment.  If HIV is no longer a ‘death-sentence’, then transmitting HIV to a partner can hardly be considered ‘killing’.  Still more conclusively, perhaps, they point to the inadequacy of phylogenetic analysis as forensic evidence, which, they argue, “simply cannot determine beyond reasonable doubt that the reference samples are linked”.

Yet it should be remembered that the first two of these three considerations (unlike the claims of retributive justice) are context-dependent.  Whether or not HIV amounts to a ‘death sentence’ may depend on where you live.  Were the same kind of arguments to be applied in the case of the African countries discussed by S and K&M, they would need to take account of the very different health realities obtaining in those countries.

Health professionals violate human rights of sex workers in Kenya

10 Feb, 16 | by Leslie Goode, Blogmaster

 

‘Key’ populations – such as sex workers – are now seen as crucial to turning the tide of the HIV epidemic. Given the recognized epidemiological potential of such marginalized groups to act as ‘bridging populations’ into the wider population, much importance has rightly been attached to countering the kind of routine violations of human rights that can effectively exclude such vulnerable populations from participation in health interventions designed to deal most effectively with the causes of the epidemic (UNAIDS Gap Report; UNAIDS (STI/blog). Amidst the talk of public health ‘strategies’, Speaking Out, a recent report based on the personal testimonies of 30 Kenyan sex workers, offers a powerful reminder that the problem of HIV in key populations is a cultural and social challenge before it is a technical one.  It is also a corrective to any strategy that would underestimate, in these days of expanded ART provision, the apparently softer but more complex challenge of cultural interventions to protect human rights. The report offers the results of one of the local community-led research projects supported in eleven countries by the Global Network for People Living with AIDS (GNP+).

At the heart of the problem of violations to the human rights of sex workers is the behaviour of health professionals. Officially, the human rights of such minorities are protected in Kenya by robust constitutional and legislative provisions; in practice, they are routinely flouted by everybody – including health workers. The authors of the report place violations in the following categories. Around HIV diagnosis. An attendee at an ante-natal clinic is HIV tested without her knowledge, and informed of the result in the presence of her current partner, who subsequently separates from her. Breach of confidentiality. On discovering the sex worker status of a positive-diagnosed attendee, a doctor scrolls down to ‘mama’ on the patient’s mobile and summons her mother to the hospital. Discrimination. A health worker who recognizes the status of a women attending with a stab injury announces to colleagues: ‘This is a sex worker who has been stealing other men’s husbands. Just stitch her. If it heals, well and good. If not, so be it’. Denial of services. A sex worker attending a facility following rape, is abused for her status, laughed at for claiming rape, and refused PEP on the grounds that it was not for ‘people like her’.

Such total disregard for the human rights of sex workers is shared by law enforcement officers who refuse to take seriously accusations or rape, refuse protection before the law for human rights violations, summarily arrest, then extort from, and sexually harass, their sex workers, inflict degrading treatment on them while they are in custody, and deny them access to treatment for the duration of their stay.

It is difficult to see how much progress is likely to be made in turning the tide of HIV in this particular ‘key population’ without a wholesale transformation of attitudes. The kind of abuses this study reveals are evidently paralleled in many countries. For example, Ndondo & Dlovu (STIs) and Jose & Nathan (STIs) draw attention, on the basis of qualitative survey evidence, to similar kinds of violations to sex workers’ human rights by law enforcement officers in Zimbabwe and East Timor, respectively. Mayhew & Hawkes (STIs) discuss violations in respect to a number of vulnerable groups including sex workers by both law enforcement officers and health professionals in Pakistan. It would seem that in many countries the UNAIDS strategy of controlling HIV in key bridging populations will encounter stiff cultural challenges.

Indiana State ban on Needle Share programmes faces challenge of an IDU-fuelled HIV spike

20 Apr, 15 | by Leslie Goode, Blogmaster

In 2011 18.5% of HIV infections in the US were attributable to intravenous drug-use (IDU) – a significant proportion (Lansky & Wejnert (STIs)).  The issue of IDU fuelled HIV transmission has been brought forcibly to the attention of Americans in the last few weeks by the recent HIV outbreak in Scott County, Indiana, US.  This local epidemic appears to have been the result of the recreational use of the opiate, Opala. The number of infections has continued to rise, reaching a new peak of 130 this last week (Indystar/needle exchange; npr/Indiana’s HIV spike).

The effectiveness of public health interventions amongst IDU, including needle exchange programmes is well-established. Recent studies in Russia and East-European contexts (Vagaitseva & Demyanenko (STIs); Boci & Bani (STIs)), where IDU accounts for greatest proportion of infections,  have also come to very positive conclusions about their cost-effectiveness (Demyanenko & Vagaitseva (STIs).  They have also considered ways of improving uptake among drug-users (Boci & Hallkaj (STIs).  Sadly, in 23 states of the US – as in Russia and some East-European countries – traditional legal restrictions on needle exchange programmes remain in force (LawAtlas/US).  Indiana just happens to be one of these US states.  Its governor, who has had to authorize a short-term moratorium on the legal restriction of needle exchange in response to the outbreak, just happens to be Mike Pence, a republican who is known for his especially hawkish views on social issues (see “US Republicans prepared to put the poor at risk” (STI/blogs)) and favours continuation of the ban.

Needless to say, an order authorizing the temporary suspension of the restrictions on needle exchange was issued last month.  A needle-exchange programme has distributed 5,300 clean needles to drug-users since 8th April when it began its activities.

Unfortunately, however, the temporary suspension is due to expire on 25th April.  It also applies only to Scott County. Health experts are pushing legislators to allow needle exchange in neighbouring counties of Indiana, where high levels of HCV indicate a high risk of similar outbreaks.  On Monday, a joint Senate and House Legislative Committee will consider a measure, authored by Ed Clere, a representative from a neighbouring county, to authorize local public health and law enforcement authorities to work together to start their own need exchange programmes. But Governor Pence has threatened to veto the measure.  He declines to explain his position in public, but is said by Senate President, David Long, to believe that needle exchange programmes lead to greater drug use (News & Tribune/Indiana’s needle exchange bill).

HIV criminalization: do service providers have a responsibility to protect sexual third parties or public health?

2 Apr, 13 | by Leslie Goode, Blogmaster

It is a criminal offence in the UK (as in some other countries) to transmit HIV “intentionally” or “recklessly”.  Community advocates claim there have been over 200 investigations in the UK regarding HIV transmission on grounds of recklessness, leading to 20 prosecutions (http://www.hivandthelaw.com/information/fast-facts).  (Canada & the US lead the world for HIV criminalization with a combined total over 300 convictions).  How does the threat of prosecution impact on sexual health services and the relations between sexual health providers and users?

A report of the qualitative research study Keeping Confidence (Dodds, Weatherburn et al.) considers how the criminalization of HIV transmission in the UK is perceived by clinical and voluntary service workers on the basis of evidence provided by seven focus groups (http://sigmaresearch.org.uk/projects/policy/project55/).  Sections of the report deal with: how well staff understand the UK law (1); in what circumstances the topic of criminalization arises in their dealings with service users (2); how they perceive the responsibilities both of service users and of themselves in respect to “criminal” HIV transmission (3); what access they have to information and guidance (4).

Not surprisingly, participants see their primary function as meeting the needs of their patients, rather than those of their patients’ partners (2).   The issue that elicited the liveliest debate among participants concerned whether they saw themselves as having, in addition, some measure of responsibility for protecting third parties – i.e. patients’ partners or the health of the public more generally (3).  Participants sometimes spoke in general terms of using the threat of the law to alter behaviour – which would suggest the recognition of some such wider responsibility.  But this may seem hard to reconcile with the widespread negative perception of the impact of criminalization on health care, with no positive benefit being anticipated from prosecutions, either for the individuals concerned or for public health generally.  The authors comment on the disagreement between those clear about where they placed responsibility, and those who were more inclined to problematize situations – or, in the rather unsympathetic terms of the authors (and maybe of those taking the former position?) “having unresolved personal dilemmas”.  Interestingly, the latter position tended to be occupied by those in junior and non-managerial roles.

The least satisfactory section of this report is the first.  It seems doubtful whether it is possible to conclude that participants “get the law wrong” or “elide their own subjective understanding …. with the technical legal definition of recklessness”, as the authors claim, on the basis of the kind of statements cited in the report.  So we remain largely in the dark, therefore, about the true state of the participants understanding of the law.  Why not assess participants’ knowledge by an individual written test, using multiple choice questions?  Surely this would work better than seeking indications of knowledge in the statements that were clearly meant to communicate a perception or express a view in the context of a lively discussion with fellow participants?

STI readers and (potential) contributors may be interested to hear that STI will be publishing a Special Issue on HIV criminalization, guest-edited by David Gurnham, later in the year, in collaboration with two other BMJ specialist journals – The Journal of Medical Humanities and The Journal of Medical Ethics.

 

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