Criminalizing HIV Transmission

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Criminalizing HIV Transmission

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Is it a crime to spread AIDS? That is the question most are asking themselves. The HIV virus is a condition that is considered an epidemic to humans in the world. Everyone is aware of it, knows how it is transmitted, its effect to one’s health and how it is avoided. It is therefore an individual’s decision to get it or avoid it. To imprison persons who spread the virus is a debate that has and still is argued by many.

Every individual has his own right to chose what he does with his or her life. It is therefore an individual’s responsibility to protect his own life and health. One can decide to engage in sexual activities or abstain. Imprisoning persons intentionally spreading HIV/AIDS is not the best option since in today’s era everyone has an idea about it and how to protect themselves from it.

Currently a big number of people are infected with the virus and it is a primary concern on how others will not be infected. Infected persons are well aware of the challenges and difficult that comes with being infected with the virus. A few of them wish it on other people. However, these People do not take the necessary safety measures they are supposed to take.

Ever since the AIDS pandemic began, there are many stories that have been heard of in the media like stories of reckless or deliberate transmission of HIV/AIDS. Some people have been charged and imprisoned for transmitting the virus intentionally. The prosecution of persons for deliberate transmission of the deadly virus may be understandable but many fail to understand that this step can bring certain consequences and also bring several problems.

According to AVERT, an international HIV and AIDS charity organization, there are several issues to be addressed when accusing someone for transmitting HIV/AIDS. This also brings the questions, is it right to imprison the HIV persons for this? And are there any past cases of the same scenario? And what are the lessons do we learn from them? Transmission of the HIV virus can be intentional, through recklessness or accidental.

Deliberate or intentional transmission is the serious offence in criminal transmission. There are cases where HIV positive persons have used needles and other equipments to infect others with the HIV virus intentionally. Other cases involved HIV positive persons who engaged in sex with others with the intentions of passing on the virus. This type of transmission can also take place where a negative person has a wish to be infected with the virus. Although it may not lead to prosecution but it can be used as consent of both parties.

The second transmission method is reckless. In this the virus is transmitted through a careless act and not deliberate. An example of such an act is when a person with the HIV virus has unprotected sex with a negative person and fails to consider the risks. This in court could be considered reckless since transmission occurred as part of satisfying sexual pleasure and not with the intention to transmit the virus. Moreover, the HIV virus is not usually transmitted whenever someone engages into unprotected sex.

The third cause of transmission is accidental and it is the common method. In court, it will be ruled as an accidental transmission if the person was unaware that he/she had the virus and so they did not have protected sex or maybe they were aware of their status and used protective measures like a condom but the condom failed.

When prosecuted, it is difficult to determine the cause of transmission since the task is complex. An individual’s interpretation towards these categories is not that clear. Courts find it hard to decide whether someone is guilty or not and there are other issues to look at before prosecuting an individual. The first issue is proof. It is very difficult to prove that the accused is the source of HIV to the accuser. This might require more test and evidence like sexual history, scientific evidence and testing history. DNA comparisons between the two can be done. If the results are different then it means that the accused certainly is not the source and therefore the case will not continue. If the result is similar, it can also be possible that the accuser was the one who transmitted to the other. However, scientific tests called phylogenetics may not reliably show the direction of HIV transmission. It could also be possible that the two could have been infected by the same third person or different people who shared the same HIV strains. Even though it is used, phylogenetics has its shortcomings. Often, the only perfect proof would be a negative test on the accuser that was carried out after the accused received a positive test. Still, if the accuser had many sexual partners, pinning blame on the accused could be very difficult.

There are cases where deliberate transmission should be proven, the evidence should find that the accused deliberately wanted to transmit the virus to the accuser. It can often be one person’s word against the other, unless there is physical proof (e.g. a syringe, a written confession, or a note). I most cases of sexual transmission, proving the intention can be practically not possible since, the nature of HIV transmission through sex means there are no witnesses A charge of reckless transmission will be chosen if there is no evidence of intentional transmission. It depends with the country’s law to legally charge someone with reckless transmission.

Most of the criminal cases of sexual transmission of HIV come about when the HIV positive partner did not inform the other partner of his/her status. In most cases, the infected person lied to his or her partner about his or her status just because he or wants to have unprotected sex with the partner. Other times, the infected simply don’t open up about their status. When prosecuting individuals because of deception then the penalty might be severe than a simple confession. This is because this affects an individual’s choice to approve to sex.

If the accused never mentioned about his status, then the prosecution will argue that they per careless and never mentioned their status to their partners and informing them of the risks involved in having unprotected sexual intercourse. In criminal prosecutions, consent is a vital issue. However, in defense it could be argued that the balance of accountability is 50:50, since approving to having unprotected sex, then ‘victim’ in fact approved and was well aware of all the risks implicated, including HIV infection. This was the argument used in the case trial of Mohammed Dica, the first person in England to be prosecuted of carelessly transmitting HIV.

However, if the accused had lied to their partner, and informed them that they were negative, then the hearing could quite easily argue that the 50:50 balance of liability null and this will make the accused more legally responsible to prosecution.

The same argument of not disclosing the status can also be used even in a situation where the accused used a condom. This is because sometimes condoms are known to be not 100% effective to protect someone against contracting the virus. Therefore, in case a condom does not protect the other and he or she is infected, then the individual can accuse the partner for being careless and not disclosing information that would have maybe control their choice to have sex.

It is difficult to disclose one’s HIV status to a close partner. Many people are in denial of having contracted the HIV virus and accepting their status. Some fear to be rejected and be stigmatized. This makes them deny the fact that they are HIV positive and they fear to let their close people find out about their status. It is also difficulty to ask some else’s status for fear of offending him or her. Therefore many end up making assumptions. For example a positive person might assume if he engages in sex with a negative person and this person does not propose the use of condom or not asking about the others status, then that negative partner is also positive or does not care about the risks involved and vice versa.

Another issue is trust. In many relationships, partners have faith in each other. Therefore each partner believes, the other is honest and faithful. However, when the other partner lies, blames are turned and each. Anyway who is to blame, the deceptive or the one who was faithfull to trust the other?

With the forms of transmission, the courts are faced with the difficulty of determining the form of transmission. There are different views regarding this issue. There are a few people who think that there should be no criminal charges on HIV transmission no matter what situation. These people believe that the virus is simply a virus that is supposed to act in its own rules of nature and not according to the rules of men. They also believe that banning this prosecuting will make things better.

On the other hand, others argue that transmission of the virus intentionally should be criminalized. Most health officials, AIDS organization and civil rights groups are in favour of this. It is argued that the law should restrict the cases to intentional and not reckless. With this, the HIV positive persons will not be confused on what is legal and what is not. This will also reduce the number of HIV positive persons who are criminalized unjustly and prosecuting those who truly deserve the punishment and be brought to trial. In cases of accidental and reckless transmission, most have the same opinion that the best method is through education and counseling. It also argued that the law should try and consider its wording and not be HIV-specific since this stigmatizes HIV people.

Many states and countries allow prosecution of HIV-positive people for all the transmission methods including reckless, accidental, intentional and exposure even if transmission has not taken place. In any type of criminal trial, once one trial is effectively achieved, it sets a example for future prosecutions, and this makes lawyers more likely to take on related cases. Many organizations that are trying to support HIV positive persons are concerned with this trend of criminalization of HIV positive persons.

In some ways, criminalization affects the lives of HIV persons. How? Most HIV positive persons practice safe sex and they never would have any cause to be taken into the court. However, this issue affects them. According to AVERT, a survey conducted by sigma research team revealed that 90% of this people were keen on the growing trend for prosecuting those involved in reckless HIV transmission. Another number believed that imprisoning of HIV positive persons is a move that goes way back as blame to the epidemic.

Is criminalization right or wrong? Criminalization does not mean that there is a major concern for HIV positive person who engage in a sexual relationship, therefore, many HIV organizations are trying to educate and advice the affected persons concerning the issue.

Around the world, there have been several cases of criminal transmission. Most of the cases are from the West. There is one case of Brian Stewart that happened in December 1998. Stewart, a medical technician from Illinois was imprisoned for life after he intentionally injected his son with HIV positive blood. His reason was to try and avoid paying child support. Another case was the case of Christophe Morat that happened in June 2004. He was found guilty of not disclosing his status to two women, Isabelle and Aurore, who were subsequently infected with the virus. He was imprisoned for six years.

The table below show situations where it is considered a crime or not.

FOR CRIMINALIZATION AGAINST CRIMINALIZATION

If one is HIV positive, then failing to use protection is wrong, and people who do wrong should be brought to justice through the law regardless of their health status or background. Criminalising HIV positive people does not address the complexities involved in disclosure and increases HIV stigma, particularly when positive people being brought to trial are demonised by the press.

Giving someone HIV is akin to murder. HIV is an unpleasant virus to live with, but it is no longer a death sentence, and with modern antiretroviral drugs, HIV positive people can live a healthy life for many years.

If you are HIV positive, it is your duty to use protection. The idea of ‘shared responsibility’ is based on ideals that came about when HIV was still a ‘gay’ illness. With heterosexual relationships, it is not always a practical reality. Many women, even in the West, do not necessarily have the power to force their partners to wear a condom. The more cases that come to court, the more people will believe that the responsibility for having safe sex should lie solely with positive people. This could in turn lead to more incidents of unprotected intercourse, with people believing it to be a legal responsibility for their partner to disclose any infection. Safe sex should always be a shared concern.

Criminalising people for reckless transmission will act as a deterrent and will make HIV positive people think twice before having unprotected sex. The law has little effect on people’s sexual behaviour, as is clear from the number of teens who have illegal underage sex. Criminalisation of transmission does however enable lovers to use the law as a way of exacting revenge. In such cases, the original HIV positive partner would always be at a natural disadvantage.

To ensure that people don’t believe they are immune from prosecution just because they haven’t taken an HIV test, it should be possible to call an HIV positive person ‘reckless’ even if they have never actually had an HIV test – knowledge that they have put themselves at risk in the past should be enough to make them aware of their HIV risk and thus legally obliged to use a condom in the future. Prosecuting positive people for reckless transmission could well leave many afraid to be tested, believing that if they do find out their status, they could be liable to all sorts of criminal charges. Avoiding this problem by telling people they should be ‘aware’ of their risk even if they haven’t tested for HIV is entirely unfair. It is also impossible to assess or judge how ‘aware’ of past risk of infection any one person is or should have been.

Putting people in prison will stop them from spreading HIV and endangering the community. In the short term, this may be true, but imprisonment does nothing to help people come to terms with their HIV and take a safer attitude towards sex. Education and psychological counselling would be a more appropriate course of action in many cases. The sharing of needles for injecting drugs and the high incidence of male rape and sex between men in prisons also mean that HIV transmission is still perfectly possible, even behind bars.

Criminal cases help to uncover and warn lots of HIV positive people who might not otherwise learn their status. Criminal cases give police licence to investigate the background of anyone they suspect of having passed on HIV. This can represent a serious invasion of privacy as well as a potential breach of confidentiality and anonymity, and it may well be entirely unjustified.

Laws on the transmission of diseases do not necessarily apply just to HIV. Many laws relating to HIV could potentially be used to prevent people spreading many other fatal illnesses. No other illnesses are treated with the same hysteria as HIV, and few people are ever criminalised for transmitting them. It is for example very unlikely that anyone would think to prosecute an employee of a residential care home for coming into work with the flu and giving it to the residents, even if several of those residents subsequently died. HIV is only singled out in criminal cases because of its association with stigmatised groups and promiscuity.

HIV positive people can easily be divided into legal definitions of “guilty” (people who ‘bring HIV upon themselves’ and recklessly give it to others) and “innocent” (victims who were infected through no fault of their own, and would never put anyone else at risk). These categorisations are far from clear cut, and most HIV positive people have at some point in their lives belonged to both. After all, everyone who transmits HIV was once a ‘victim’ of someone else with the virus.

Vulnerable women who do not have control over their sexual relations will find protection in laws that would prosecute reckless male partners. Women will face a greater risk of prosecution as they more often know their status through attending health clinics more frequently. A HIV positive man may accuse his female partner of infecting him, because she was diagnosed first, even if he infected her and was not diagnosed until much later.

The criminalization of people who transmit HIV is both a moral and also a practical issue. With the past cases of transmission, it is clear how difficult it can be to prosecute and pass a verdict on an issue where an individual point of view, stigma, feelings, and the good of public health are so extremely mixed.

According AVERT, the UNAIDS organization explains that there is no proof to suggest that criminalizing HIV spread is an efficient means to stop the further spread of the virus or attain criminal integrity. Governments that wish to make an impression in their countries’ HIV/AIDS epidemic will better have effective prevention programmes available. This can include testing centers, counselling and general public awareness campaigns. In areas where criminalization laws have been proposed to protect defenseless women and girls from their HIV-positive partners, then an efficient approach would be to deal with gender-related cruelty, discrimination and forced sexual act.

In conclusion, everyone should remember that HIV is an infectious disease. Therefore every single person accused of transmitting the virus by whatever means, then at some point might have been the victim of a ‘transmitter’ themselves. Reproduction and contamination is the main objective of any type of virus. We as human might not be the real criminal and perhaps it is not the human host therefore, but HIV virus itself.

Work Cited

BIBLIOGRAPHY l 1033 ANTIGUA, CARIBARENA. Should HIV Transmission Be Criminalized . 19 January 2010. 29 April 2011 .

AVERT. Criminal Transmission of HIV. 29 April 2011. 29 April 2011 .

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