Impact on human rights

Edwin J. Bernard
Published: 18 July 2010

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The United Nations Commission on Human Rights (now the United Nations Human Rights Council) has explicitly recognised HIV status as a prohibited ground of discrimination. United Nations treaty bodies have also clearly indicated that the right to non-discrimination on various grounds includes the right to non-discrimination on the basis of HIV status.1 People living with HIV have all the same human rights as everyone else,2 including the rights to:

  • privacy and non-interference from the state

  • not be subject to arbitrary, discriminatory or capricious use of the criminal law

  • a fair trial, including the presumption of innocence until proven guilty.3

A recent report by the United Nations Special Rapporteur on the Human Right to Health notes that "the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health."4

Vague statutes and/or over-broad application of the criminal law that can punish behaviour that is not actually harmful

Many laws criminalising potential or actual HIV exposure or transmission raise human rights concerns solely on the basis of what they stipulate as punishable offences, and placing innocent people at risk of prosecution.5,6,7,8

See the chapter: Laws for further discussion of vague statutes and over-broad application of the criminal law and the chapter: Details for jurisdiction-specific information on such laws.

Such laws are poorly drafted and/or applied, and often encompass behaviour that has no HIV-related risk attached1 and/or makes no distinctions between high-risk and low-risk activities.2

The experiences of HIV-positive people accused of violating both HIV-specific laws and more general criminal laws by allegedly putting others at risk of HIV exposure amplify these concerns.[ref]

1. For example, Idaho’s HIV-specific law (Idaho Code § 39-608) prohibits the transfer of ‘urine’ and ‘saliva’ unless there has been prior disclosure of HIV-positive status.

2. This applies to all HIV-specific criminal statutes based on the N’Djamena model law which have been enacted in some 25 African nations.

Concerns about miscarriages of justice

As discussed at length in the chapter: Proof, law enforcement representatives have an obligation to conduct investigations sensitively and appropriately, respecting the privacy of people’s health information. The chapter also highlights many evidentiary pitfalls that have considerable potential for a conviction without sufficient evidence. Media reports from around the world provide anecdotal evidence that defendants in criminal trials may have had their rights violated in these ways (see reports on Criminal HIV Transmission. www.criminalhivtransmission.blogspot.com, 2007 to 2010).

No study has systematically investigated such violations on an international scale, but a 2009 report from the United Kingdom9 confirmed long-held fears that the scope and approach to investigations of alleged criminal HIV exposure or transmission in England and Wales may go far beyond what the law intends. The Terrence Higgins Trust (THT), a London-based HIV/AIDS organisation, announced, when it launched itsreview of police handling of criminal HIV-transmission investigations,9 that “scores, if not hundreds” of arrests had taken place since the first conviction for reckless HIV transmission in England and Wales in October 2003. During 2005 and 2006, there was an average of one arrest every two weeks – but most police investigations were then dropped due to a lack of evidence. During the course of these inconclusive investigations, THT suggested, “lives had been turned upside-down and some came close to being destroyed”.10

The report found that although there were some examples of good practice – including offering PEP promptly to a complainant who had been potentially exposed that night, and taking action to prevent inappropriate disclosure of the accused in the community – much more was found to be lacking, including:

  • A poor police understanding of HIV, leading to inappropriate management of cases.

  • A lack of clarity amongst police officers about the current law, and what is, and what is not, an offence.

  • Unnecessarily long and drawn-out investigations, ranging between four and twelve months for cases that did not result in prosecution, and between 6 and 34 months for those that did.

  • Difficulties in reconciling the realities of HIV transmission with the requirements of the charge under general English assault law. Notably, the report points out that “police are having to manage cases brought under a law never designed for such scientific complexity” and notes that the police “repeatedly misinterpreted the strength of their scientific evidence”.9

Case study: England and Wales

Difficulties faced by accused, complainant and police during investigations for criminal HIV transmission.10

Three cases known to THT reveal the complexities of allegations of reckless HIV transmission for all parties involved, including the police. ‘David’ was accused of recklessly infecting two men and, following his arrest, was held in custody for three weeks, and then placed on restrictive bail conditions for several months which obliged him to stop work and almost lose his job because the police believed he was “a danger to the public”. After phylogenetic analysis had been performed on all three men, it became clear that ‘David’ could not have been the source of any of the men’s infection, the case was dropped and 'David' was released from custody.

‘Cesar’ discovered he was HIV-positive when police arrived on his doorstep to arrest him for reckless HIV transmission. (Since one of the prerequisites of this ‘crime’ is to be aware of one’s HIV diagnosis, there were no grounds for the complaint or his arrest.)

‘Elizabeth’ accused her married lover of recklessly giving her HIV and complained to the police. However, charges were dropped after months of investigations, which included detailed sexual histories and the release of sensitive medical records, since the evidence suggested that ‘Elizabeth’ had, in fact, infected her lover.

Risk of selective or arbitrary prosecution

The United Nations Special Rapporteur on the Human Right to Health4 and human rights advocates internationally6,11,12,13,3,14 have expressed particular concern about how laws criminalising potential or actual HIV exposure or transmission may particularly impact on socially and economically marginalised groups who are often disproportionately vulnerable to both HIV infection and human rights violations.

A number of analyses of prosecutions in high-income, low prevalence settings have found some prelimimary evidence that may support their concerns in some – but by no means all – jurisdictions.

As detailed in the case study in the chapter: Laws (Preoccupation with alleged HIV exposure or transmission during biting and spitting) although there is no HIV-exposure risk from saliva that does not contain blood, HIV-related spitting cases continue to be prosecuted throughout the United States, representing 11.5% of all HIV-related prosecutions in a two-year period between 2007 and 2009.15 Most of the individuals prosecuted were already under the purview of the criminal justice system, most commonly for alleged violations of vagrancy laws, or were already incarcerated for previous offences.

A 2008 analysis of Canadian media reports of arrests and prosecutions for HIV exposure or transmission found that (heterosexual) migrants from high-prevalence countries were over-represented.16 Although they made up only 2% of the Canadian population and 12% of the Canadian HIV-positive population, migrants from high-prevalence countries (Uganda, Sudan, Zambia, Zimbabwe, the Democratic Republic of the Congo, Ethiopia and Trinidad) made up almost half of all criminal sexual HIV prosecutions in Canada in 2008.

A 2005 survey of 45 European countries found no association between the prevalence of HIV transmission in any country or jurisdiction and prosecutions for HIV exposure or transmission.17 However, in seven countries where socio-economic details were provided, the burden of prosecutions fell on individuals with HIV who were in vulnerable social and economic positions.

References

  1. Elliott R et al. HIV, disability and discrimination: making the links in international and domestic human rights law. AIDS 12: 29, 2009
  2. OHCHR and UNAIDS International Guidelines on HIV-AIDS and Human Rights (consolidated version). Geneva, 2006
  3. Brown W et al. Criminalising HIV transmission: punishment without protection. Reproductive Health Matters 17(34): 119-126, 2009
  4. Grover A Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. United Nations Human Rights Council, Fourteenth Session (A/HRC/14/20), 27 April 2010
  5. Galletly CL and Pinkerton SD Conflicting messages: how criminal HIV disclosure laws undermine public health efforts to control the spread of HIV AIDS Behav. 10: 451-461, 2006
  6. Burris S et al. The criminalization of HIV: time for an unambiguous rejection of the use of the criminal law to regulate the sexual behavior of those with and at risk of HIV. SSRN, 2008
  7. Pearshouse R Legislation contagion: the spread of problematic new HIV laws in Western Africa. HIV/AIDS Policy & Law Review 12 (2/3), 2007
  8. Pearshouse R Legislation contagion: building resistance. HIV/AIDS Policy & Law Review 12 (2/3), 2008
  9. Terrence Higgins Trust Policing Transmission: A review of police handling of criminal investigations relating to transmission of HIV in England & Wales, 2005-2008. London, 2009
  10. Bernard EJ Report shows police mishandling of investigations into alleged criminal HIV transmission. aidsmap.com. Available online at: www.aidsmap.com/page/1433222/, 28 January 2009
  11. IPPF, GNP+, ICW Verdict on a Virus: public health, human rights and criminal law. Available online at: www.ippf.org/en/Resources/Guides-toolkits/Verdict+on+a+virus.htm, 2008
  12. Jürgens R et al. Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission. New York: Open Society Institute, 2008
  13. Athena Network 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. Available online at: www.gnpplus.net/images/stories/10_reasons_why_criminalisation_harms_women_smaller_file.pdf, 2009
  14. Cameron E The Criminalization of HIV Transmission and Exposure. 1st Annual Symposium on HIV, Law and Human Rights, Toronto, June 12-13, 2009
  15. Bernard EJ Kafkaesque: a critical analysis of US HIV non-disclosure, exposure and transmission cases, 2007-2009. 18th International AIDS Conference, Vienna, abstract THPE1016, 2010
  16. Bernard EJ African Immigrant Damnation Syndrome. www.gnpplus.net/criminalisation, December 2008
  17. GNP+, THT Criminalisation of HIV transmission in Europe. Available online at: www.gnpplus.net/criminalisation/index.shtml, 2005
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This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.