Ever since the discovery of HIV and its modes of transmission there has been a debate about the circumstances in which it is legitimate to criminalise those who pass on the virus to others, or who expose others to the risk of its acquisition.
For some, these behaviours are no different from any other kind of assault that causes, or could cause, serious harm. As such, the usual principles of criminal law should apply, and perpetrators should be treated no differently from those who intentionally or recklessly injure others with fists, guns, or knives, or who attempt to do so but fail. The only concession admitted by those who take this view (and not necessarily by all) is that consent to the risk of transmission – for example, by willingly agreeing to have unprotected sex with a person who has disclosed their HIV positive status – might reasonably provide a defence.
Another perspective, one shared by many activists, sexual health clinicians, and organisations concerned with minimising the spread of HIV, is that it should be treated as a matter of public health rather than as one concerned with individual wrongdoing. Their concern is that criminalising HIV transmission, exposure, and non-disclosure (especially where countries have HIV-specific criminal laws) contributes to the stigma associated with HIV infection and so acts as a barrier both to prevention efforts and to accessing effective treatment. As such, only the most egregious and exceptional cases should result in criminal proceedings – those involving the deliberate infection of another person with the intention to cause harm (or, arguably, deliberate attempts to do so). For people and organisations holding this view, non-disclosure should not in and of itself attract criminal liability, nor should exposure that does not result in infection, and informed consent to the risk of acquisition should always provide a defence.
It is important to recognise that criminal law was first applied in cases involving HIV when there was no effective treatment, and most people living with HIV developed and died from AIDS-related illnesses. Some countries, in response to this and the impact of their local epidemics, introduced HIV-specific laws while others applied their general criminal provisions. The thinking was not only that the gravity of HIV infection and its consequences justified this, but that prosecution and punishment would operate as a deterrent, reduce risk-taking, and assist in prevention (despite the evidence of any evidence to support this argument). Over the past thirty years, however, our understanding of HIV, and of how to prevent and treat it, has changed radically. Deaths from AIDS are increasingly rare, and where anti-retroviral drugs are available people who are diagnosed early, who are able to access treatment, and who adhere to the prescribed treatment regimen can expect to live long and otherwise healthy lives. HIV is no longer the death sentence it once was, and instead has come to be recognised as a serious but chronic condition.
Unfortunately, the criminal law has not kept pace with these developments. Despite the fact that we now know, uncontrovertibly, that a person who has an undetectable viral load is unable to transmit the virus sexually (that U = U), and that Pre-Exposure Prophylaxis (PrEP) practically eliminates the risk of acquisition, relatively few countries have actively reviewed and / or repealed their laws or prosecution practices to reflect this. This is despite a number of national, regional, and global policy and legal reform projects and initiatives. Some of these have recommended abolishing HIV-specific laws, severely curtailing the use of criminal law, and repealing those laws (such as those that criminalise sex work, homosexuality, and drug use) which directly or indirectly impede access to prevention and treatment technologies and services by those at higher risk of HIV acquisition. The most significant such initiative to date has been the Global Commission on HIV and the Law, which reported in 2012 and 2018. Others, led by leading scientists and clinicians, have sought to influence and educate legislators, judges, and those working in the criminal justice system by explaining the HIV transmission risk associated with different kinds of sexual activity and the benefits of effective treatment, and suggesting that it is no longer legitimate to treat HIV-infection per se as a serious bodily harm. The most important, and potentially most influential of these, is the Expert Consensus Statement published at the World AIDS Conference in Amsterdam in 2018.
It remains to be seen what the long-term impact of these interventions will be. Certainly some countries have acted on the evidence gathered by, and recommendations of, the Global Commission; and some jurisdictions have acknowledged that it is absurd to criminalise those who fail to disclose their HIV-status when there is no risk of onward transmission. Such positive developments will be welcomed by anyone committed to ensuring that the criminal law is not used as a blunt and ineffective tool in the fight against HIV. However, it is important to acknowledge that to the extent that criminalisation is reduced because of the availability of treatment, it will only be those in a position to access treatment who will benefit. Those for whom treatment is unavailable and / or inaccessible, or who for reasons beyond their immediate control find adherence difficult, will not benefit to the same extent, if at all
It will only be when governments acknowledge that there are fundamental, rights-based, arguments for de-criminalisation that those at highest risk of HIV acquisition will be adequately protected; and it will only when HIV is recognised as an environmental phenomenon and as fact of life for some people (rather than something that should be treated axiomatically as a serious bodily harm) that comprehensive de-criminalisation will, or can, be achieved.
Limit Cases: How and Why We Can and Should Decriminalise HIV Transmission, Exposure, And Non-Disclosure by Matthew Weait was published in the Medical Law Review