A statement from the United Nations Joint Team on AIDS
Recent call for laws to address the “reckless and conscious transmission” of HIV has raised concerns. The ensuing public dialogue and quick political feedback are fuelled by Trinidad and Tobago’s increased awareness of its 1400 new HIV infections every year.
Recent call for laws to address the “reckless and conscious transmission” of HIV has raised concerns. The ensuing public dialogue and quick political feedback are fuelled by Trinidad and Tobago’s increased awareness of its 1400 new HIV infections every year. Support for criminalisation reflects a desire to reduce the spread of the virus while exacting justice for those who were intentionally infected.
The situation points to something more: the challenges over the last decade to significantly reduce the number of new HIV cases, the deficiency to develop and maintain programmes targeted at populations at highest risk, and the need for expansion of access to treatment. Another reality of HIV in this time is that treatment has been proven to be 96 percent effective in preventing transmission between couples. Expanding access to such treatment, supporting increased condom-use and bolstering the uptake of testing and counseling services are effective ways of reducing the transmission of HIV and protecting the most vulnerable. Criminalisation isn’t.
There’s no need for HIV-specific criminal laws
There are persons who maliciously transmit HIV with intent to harm others and they should face appropriate criminal prosecution. For these cases there is no need to create HIV-specific legislation. The alternative is to invoke existing laws relating to assault or criminal negligence under the Offences against the Person Act. In determining whether an act of transmission should attract criminal penalties the complexities of human sexual behaviour must be carefully and fairly discerned. What are the reasonable and enforceable lines between criminal and non-criminal behaviour when it comes to HIV transmission?
Intentional transmission of HIV is difficult to prove and in many instances people do not know that they are HIV positive or understand how HIV is transmitted. There are also several circumstances in which an HIV positive person either does not present a significant risk of transmission or does not have criminal intent including when safe sex is being practiced and when the HIV positive partner is taking ARV medications. A criminal law specifically related to HIV would cast all persons living with the virus as potential criminals and intensify the misunderstanding surrounding the virus.
Criminalisation is counter-productive
The stigmatisation of people living with HIV has implications for society as a whole. There are serious repercussions for public health when constructive responses are undermined by ineffective laws. The legacy of legislating human sexual behaviour—from prostitution to abortion, to sodomy—bears out that statutes are often irrelevant to individual decision-making surrounding sex. Before or after conviction, in or out of prison, the law does nothing to stop an individual from engaging in risky activities.
But while these laws may not be effective deterrents they do have an impact on the behaviours they are meant to curb and instead drive people underground making behaviour change more difficult to address. The most powerful tools for promoting disclosure and safer sex are interventions anchored by voluntary testing and counseling and outreach. Criminalisation could reduce people’s willingness to learn their status and access treatment, and support.
Criminal laws are often unfairly and selectively enforced
Where they exist these laws are often applied to people who are the most socially or economically marginalised. Migrants, sex workers, gay men and other men who have sex with men (MSM) and transsexual people can become easy targets for arrest. Women are also more vulnerable to prosecution under such laws because they access health services more frequently than men and are therefore likely to find out about their HIV status sooner. The partner who is aware of his or her status is not always the one who first contracted HIV. Infidelity, rape, sexual coercion and unequal power relations are among the dynamics that increase women and girls’ vulnerability to HIV infection.
Criminalization of HIV gives law enforcement the green light to investigate anyone they suspect of having passed on HIV. This can manifest as an invasion of privacy as well as a breach of confidentiality. It has the impact of creating distrust in relationships between HIV positive people and their health care providers. People may fear that information regarding their status may be used against them. The provision of quality treatment and care is anchored in trust and there should be no wide-ranging basis for violating this principle.
Criminalisation places responsibility solely on the HIV positive person.
Trinidad and Tobago’s HIV prevalence is 1.5 percent. Exposure to the virus is a risk that every sexually active individual has a personal responsibility to manage. But a law relating to HIV transmission squarely places responsibility for risk-reduction only on people living with HIV.
Additionally, criminalisation may create a false expectation that the law has eliminated any danger from engaging in unprotected sex. Not knowing a partner’s status or assuming that he or she does not have a disease are not sufficient reasons for neglecting to use protection, discuss each other’s status and get tested. Ultimately those are the behaviours that will lead to a decline in HIV.
Criminalisation may violate Trinidad and Tobago’s international obligations
Trinidad and Tobago has committed itself to ensuring that its general criminal laws are consistent with its international obligations to protect and promote the human right to the highest attainable standard of health. The country acceded to the International Covenant on Economic, Social and Cultural Rights in 1978, and in 2006, Trinidad and Tobago pledged in a UN General Assembly Resolution to promote a social and legal environment that is supportive of and safe for voluntary disclosure of HIV status. With respect to HIV transmission, UNAIDS and UN High Commissioner on Human Rights have clarified that “criminal and/or public health legislation should not include specific offences against the deliberate or intentional transmission of HIV, but rather should apply general criminal offences to these exceptional cases. Such applications should ensure the elements of forseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”
The way forward
Trinidad and Tobago must within the next two years reduce its number of new infections significantly. Criminalisation won’t accomplish this, but more effective prevention programmes can. There is a need for improved access to sound information, services and support for all individuals including young people, gay men and other men who have sex with men, sex workers and prisoners. These include greater access to counselling and testing, access to age-appropriate sexuality education, for sexually active people to obtain condoms and personal lubricants. In addition interventions those support HIV positive people in disclosing and practicing safer sex, to continue combating stigma and discrimination so that people can make healthy, responsible and safe choices about their lives, including decisions relating to sex and reproduction.
Developing an isolated law to criminalise transmission intensifies the climate of denial, secrecy and fear, providing an ever more fertile ground for the spread of HIV. Comprehensive legal reforms to address discrimination and vulnerability along with policy directives to improve the reach and quality of prevention programmes are needed. The criminalisation of HIV transmission won’t help.
A statement from the United Nations Joint Team on AIDS