You don't need to be signed in to read BMJ Blogs, but you can register here to receive updates about other BMJ products and services via our site.

Human rights

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.

Sexually Transmitted Infections blog

Sexually Transmitted Infections

Discussion and suggestion space for readers of STIs.
Visit site



Creative Comms logo

Latest from Sexually Transmitted Infections

Latest from Sexually Transmitted Infections