Explained: HIV is not a crime
The criminalisation of transmitting HIV, or exposing someone to the risk of acquiring HIV, or non-disclosure of HIV status, continues to be a significant issue. Nic Holas explains.
From Australia to Canada, the US to Nigeria, people living with HIV have been accused, arrested, charged, and convicted of both HIV-specific and HIV-related crimes. It’s a hot button issue that draws on over 30 years of HIV fear and stigma to inform the public’s reaction.
At a surface level, some people may think it’s entirely reasonable that laws exist to prevent people from spreading HIV. Given that HIV still conjures up those 80s and 90s images of dying gay men, why wouldn’t we have laws to stop that awful thing happening to anyone one else? Well, firstly because in Australia, those days are over, but the reality is HIV criminalisation has never successfully prevented new infections - just driven those living with HIV further underground.
When HIV is treated as a criminal issue it results in the ongoing discrimination of all HIV+ people, and hinders the fight against HIV by reinforcing stigma, which discourages disclosure, testing and treatment. If you don’t know you’ve got it, you cant be charged with transmitting it. Criminal accusations, even without a resulting charge or trial, have previously ruined the lives of HIV+ people, and in overseas' country's even sent innocent ones to prison.
To better understand why HIV criminalisation must end, we need to peer past the red ribbon and peer into the grey area of this complicated issue.
HIV is a public health issue, not a criminal issue
It stands to reason that of the 35 million people around the world living with HIV, some will be capable of committing crimes. HIV is a rather broad church, what with it being a chronic manageable illness acquired via a complex variety of human interactions. In the event that a criminally minded person set out to knowingly and maliciously infect other people with HIV, we already have general laws to deal with them, the same way that we would deal with any other individual whose intention is to do harm to another person.
We have an alternative to criminal prosecutions in the public health system, and that's a system that has proven itself to be highly effective at protecting the public while supporting positive people who are doing the wrong thing. Unlike the criminal justice system, the public health system focuses on achieving sustained behaviour change, not on punishing past behaviour that, as wrong as it may be, is usually the product of issues such as mental health, substance use, or the impacts of HIV stigma.
The issue with HIV criminalisation is that the laws referring to transmission are both overly broad, and completely ignore the fact that HIV in 2016 is so far from the era AIDS in this country.
Intentionally passing on HIV isn’t the same as not disclosing your HIV status
This is a tricky one for some people to wrap their head around because it speaks to the very issue that leads to HIV criminalisation in the first place: stigma. There are many complex and varied reasons why people cannot, or choose not, to disclose their HIV status.
Historically, HIV disclosure has been met with acts of violence and even homicide, along with gross violations of privacy in the name of “protecting” the community. HIV+ people are regularly rejected as partners, ejected from social circles, and in certain culturally specific situations, banished from their communities of origin. HIV+ women may be blackmailed by abusive partners, who threaten to report them to police for exposing them to being infected.
Since the advent of HIV treatment as prevention, which has proven that effective use of daily medication is a valid method of reducing the risk of transmission, some HIV+ people avoid the various risks associated with disclosing their HIV status because they are proactively managing their health and understand the reduction of risk is so great. Legally, this is perhaps the greyest of grey areas, as no-one has tested whether an undetectable viral load is an acceptable form of “reasonable precaution”, a murky caveat attached to the disclosure requirements expected of HIV+ people in NSW.
Some people might argue that they still deserve to know they are sleeping with an HIV+ person, so they can assess that risk based on their own knowledge and values. That’s certainly a fair request to make, as is the expectation that before you jump into bed with someone, you’ll ask any questions you need answered. The burden of keeping our community safe from HIV is not the responsibility of the positive person, but that's the way the law currently sees it.
You can’t legislate against heartache
People choose not to disclose all sorts of things before they have sex with someone, and some people even flat out lie in their quest to get laid. Truths about people’s marital status, income, age, dick size, and waistlines are regularly fudged, distorted or flat-out denied. If you’re a straight guy on Tinder, that includes how often you hang out with tigers.
HIV status is another one of those things, and increasingly so is HIV- guys PrEP status. If a guy says he’s HIV-, but he turns out to be HIV+ and in the process of you fucking him you also become HIV+, that is going to present some emotional difficulties. Regardless of how difficult it is for some people to disclose, the actions of another person resulted in your life changing. So should they go to prison? Most HIV criminal cases involve highly subjective, personal situations that lack witnesses, so it truly is a case by case basis.
That’s why state health departments, under public health laws, have systems in place to address any accusations that HIV+ are putting others at risk. That system is led by public health experts, who review each case. In the event that the person has acted with intent, i.e. the person set out to infect the other person, then the case can be referred to the police. The reality, however, is that virtually all cases of HIV transmission in Australian courts have been about reckless, rather than intentional, transmission. The media-fuelled spectre of the pathological individual who sets out to infect others isn't borne out by the facts.
The criminal process damages HIV+ people, regardless of guilt
Unfortunately, when alleged incidents involving HIV transmission are handled directly by the police, things rarely are handled with the appropriate level of sensitivity. A common course of action sees the police release information to the media as soon as a charge is laid.
This creates a media flurry, because even though we’re now two decades from the year HIV went from death sentence to chronic manageable illness, “AIDS sex crime” will still get clicks on a news website, and “it’s in the public’s interest to know that [HIV+ person] is out there deliberately infecting everyone” is often the justification for police releasing the info.
However it’s vital to remember that at this stage of the legal proceedings, the accused is still innocent. More often than not, accusations of HIV transmission do not proceed to trial. Often, the accused is found to be not guilty, but not before their names and HIV status appear across newspapers and social media, sometimes with people demanding they be tried for attempted murder.
People rarely recover from criminal accusations of reckless #HIV transmission that reach the media, regardless of innocence. In the past, accused HIV+ people have lost their jobs, been kicked out of housing, and been vilified by their communities.
This is not to say people who intentionally, wilfully, or maliciously infect another person with HIV deserve a light touch in the media and community just because they’re HIV+. We have laws to protect us from those who would do harm to others, but as the law currently stands it paints the entire HIV+ community as something that the rest of the world needs to be protected from.
While the justice system continues to treat every pozHIV+ person as a potential criminal, we provide a deterrent to testing and disclosure, and we enable more HIV stigma. Until the government can ensure a public health driven, realistic, and informed approach to handling this complicated issue, they continue to pay little but lip service to their promise of ending HIV by 2020.
The author acknowledges the input of HIV criminalisation activist Paul Kidd in this article.
Main image: AIDS 2014 mobilisation march. Photo by Cec Busby.