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Phylogenetic analysis

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.

Viral suppression through ART prevents HIV transmission between long-term sero-different MSM and heterosexual partners regardless of condom use

8 Sep, 16 | by Leslie Goode, Blogmaster

The HPTN 052 study demonstrated the preventative benefit of ART, showing a dramatic 96% reduction in HIV transmission in HIV+ participants randomized to early ART initiation compared with the group that deferred treatment.  This is very encouraging.  But from the perspective of a gay person considering the risk of engaging in condomless sex with a long-term HIV+ partner, these results do not provide an adequate basis on which to make a decision.  For a start, HPTN 052, like other such studies, focuses largely on heterosexual couples engaging in vaginal sex – which is recognized to carry only a fraction (c. 0.1) of the risk of HIV transmission of anal sex.  Besides, the study reports high levels (93%) of condom use.  Much remains obscure, therefore, as to the level of protection that a gay person could reasonably expect from ART against HIV transmission through condomless anal sex with a long-term partner.

This question is squarely addressed, however, in a recently reported prospective observational study – PARTNER (Partners of People on ART – A New Evaluation of the Risks) – involving 888 sero-different MSM (330) and heterosexual (548) couples reporting condomless sex who contributed a total of 1,238 eligible couple-years.  This study did not limit itself to establishing cases of transmission, but conducted phylogenetic analysis in those cases in order to determine whether or not the transmission had resulted from sex with the long-term partner.  Of the 11 transmissions that took place in the course of the 1,238 couple-years (10 amongst heterosexual, one amongst the MSM, couples), none were found to be phylogenetically linked.  The paper also examined the association between the HIV transmission which did take place (i.e. not from primary partner) and the sexual behaviours reported by HIV- partners.  Not surprisingly, this was found to be elevated in heterosexual couples where anal sex was reported, and in MSM where anal sex was receptive and receptive with ejaculation (1.68 and 2.70 per 100 couple-years, respectively).

With the couple-years accrued hitherto, appreciable levels of risk over the long-term, especially with anal sex, cannot yet be excluded: a rate of 2.2 per 100 couple-years remains the upper limit (20% over ten years) – though, of course, the risks could prove to be considerably lower than this.   With a view to arriving at a more precise estimation, the MSM side of the PARTNERS study remains ongoing.  So far, however, the news seems to be good.

Aside from its implications for personal decision-making about condom use, the question of the preventative effectiveness of ART could presumably also have relevance for health policy decisions affecting resource allocation that involve determining the relative priority to be accorded to interventions promoting engagement and retention in treatment as against other interventions (e.g. PrEP) (Punyacharoensin & White/STIs/blogNHS kicks PrEP into the long grass/STIs/blogs). The greater the effectiveness of viral suppression through ART as an HIV prevention tool, the better the case for prioritizing interventions to achieve higher targets for engagement and retention in treatment.

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