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For anyone who cares about human rights from a health and discrimination angle, recent cases criminalizing HIV transmission raise multiple red flags.

Written by Marianne Møllman for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Earlier this month, a 31-year-old woman in Sweden was sentenced to one and a half years in prison for having unprotected sex without disclosing to her partner beforehand that she is living with HIV.

Even a perfunctory news search reveals that this is not the first time the Swedish justice system has applied criminal sanctions to potential HIV-transmission. In January, a 20-year-old man was sentenced to eight months in prison for having unprotected sex without disclosing his status. In December 2006, a 34-year-old woman got two months, and in January 2003, a 32-year-old woman one year. All of these sentences also required the person living with HIV to pay monetary damages to their former sex-partners.

For anyone who cares about human rights from a health and discrimination angle, these cases raise multiple red flags.

For starters, consensual sex between consenting adults should, in principle, never be subject to government control or regulation. Moreover, the criminalization of HIV transmission has multiple negative outcomes. It leads to distrust in the health and justice systems; it can discourage people from seeking to know their HIV status; it adds to the stigmatization of those living with HIV; and it is ineffective in bringing down HIV transmission.

In fact, UNAIDS recommends that governments limit criminal sanctions for HIV transmission to cases where all of three conditions are met: the person charged 1) knows he or she is living with HIV; 2) acts with the intention of transmitting the virus; and 3) actually transmits it. UNAIDS also recommends that cases of such intentional HIV-transmission should be tried under generic criminal provisions for bodily harm or assault, and not under HIV-specific provisions.

Public health and human rights activists are clear on this. That is why the Swedish Embassy in France was defiled with paint-filled condoms in protest against the 2003 ruling. And that is also why my own reaction to the ruling was to declare it “bad” over twitter, a statement that was re-tweeted several times.

A closer read of the cases highlighted in the Swedish media, however, leads me to reconsider, at least in part. 

If the media-accounts are accurate, the Swedish government has, in fact, partially followed UNAIDS recommendations. The convicted individuals all knew their HIV status and the cases were brought under general criminal law provisions on grave assault, physical abuse, and attempt to cause physical harm. So far so good.

The two remaining questions — intent and actual transmission — are more difficult to gauge.

Consider this.  

In most of the cases, the convicted person either has multiple convictions over several years for the same thing, or the conviction is based on multiple unprotected sexual interactions with different partners without disclosure. It is perhaps valid for prosecutors to ask if, absent proof of intent which is hard to produce, the fact that an individual living with HIV repeatedly and knowingly exposes someone else to a deadly virus shouldn’t count for something.

Further, actual HIV transmission may not be the only harm caused. The 20-year-old convicted man was charged with having unprotected sex with eight women, none of whom ultimately ended up HIV-positive, though they all claimed to have suffered severe emotional trauma as a result of the experience. In cases of domestic violence we often ask prosecutors to consider emotional distress as real harm, so why require actual transmission in order to prove harm in this case?

Then again, consider this.

The 20-year-old man was born HIV-positive and is being charged as an adult also for those unprotected sexual encounters that occurred when he was a teenager. He was initially placed in solitary confinement, seemingly because of his HIV status.

Also, one of the convicted women alleged she had been raped.  The male partner produced evidence to the contrary and she later withdrew the allegation. Nevertheless, coercion and fear is highly relevant when it comes to decisions about how and when to disclose HIV status. Research indicates that many women in fact are reluctant to disclose their HIV status because they quite legitimately fear abuse.

And with regard to actual harm caused, it is at least possible that the ramped-up attention to the cases have contributed in some part to the severity of the emotional distress of the sex partners.

It is, of course, reckless to knowingly expose anyone to real danger, also through potential HIV-transmission, even if the danger ultimately does not materialize. This is a notion the UNAIDS recommendations to a large extent fail to acknowledge.

But the highly publicized use of the criminal law in Sweden to punish those living with HIV for being timid about their health status does not make it easier for anyone to disclose. So perhaps the real question with regard to any government’s approach to HIV transmission should not be whether it follows UNAIDS recommendations, but rather if it is effective.  An educated guess says, not so much.

Originally posted to RH Reality Check on Tue Apr 24, 2012 at 11:32 AM PDT.

Also republished by HIV AIDS Action.

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Comment Preferences

  •  You may be right (3+ / 0-)

    But this isn't the criminalization of consensual sex. It's the criminalization of lying about something really, really, REALLY important, much the way men who have sex with a woman and get her pregnant are forced to be accountable for their actions.

    I agree that sex is a very personal matter, but I'm not sure why things that happen in the bedroom are somehow completely cut off from government regulation. If someone strangled someone during sex play, clearly the law has a role there.

    I suspect with any crime, there are "sympathetic" actors who get caught up in the system. That's why laws need to be written very carefully, and laws enforced consistently and carefully too. But I'm not sure it follows there shouldn't laws.

    Btw, I'm gay (not that it matters).

    Explore "Brent's Brain" at http://www.brenthartinger.com

    by BrentHartinger on Tue Apr 24, 2012 at 11:49:45 AM PDT

    •  Sorry, but I think you're wrong. (0+ / 0-)

      First, it most certainly is the criminalization of consensual sex.  Each and every person who has sex these days knows, or should know, about the threat of HIV.  Each and every person has a responsibility to protect him/herself from that threat.  No one should simply trust that his partner is HIV-negative.

      Second, related to the first point is your implicit assumption that the responsibility for preventing HIV transmission lies solely with the HIV+ person.  But sexual relations require at least two people, and the responsibility is a shared one.

      Third, as a person living with HIV, I very much resent the hyperbolic comparison to strangulation.  I very much doubt that most positive people who fail to disclose actually intend to kill their partners.  Nor would HIV be a particularly effective means of doing so, since it is now a treatable chronic infection rather than a death sentence.  And of course, most of these statutes don't even require that HIV be transmitted, so we're punishing conduct that leads to no actual physical harm (although there may be emotional trauma due to HIV stigma).

      Finally, I'm not sure what you mean by "sympathetic" actors.  Do you mean people with HIV who are somehow less blameworthy (at least in your mind) than others?  If so, by what criteria do you presume to judge us?  I'd be very interested in finding out.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Tue Apr 24, 2012 at 02:49:59 PM PDT

      [ Parent ]

  •  UNAIDS is only 2/3rds right (0+ / 0-)
    In fact, UNAIDS recommends that governments limit criminal sanctions for HIV transmission to cases where all of three conditions are met: the person charged 1) knows he or she is living with HIV; 2) acts with the intention of transmitting the virus; and 3) actually transmits it.
    It should just be the first two.  If you think that #3..actually transmits it needs to be included in this, then I ask you this one question.

    Why do we have ATTEMPTED MURDER as a crime?  Since it was only attempted and never suceeded, why prosecute?

    (Maybe because that person would try again if there was no repercussions...hmmm...)

    "Stupid is as stupid does" - The republican motto you can believe in as they live it daily!

    by Mannie on Tue Apr 24, 2012 at 12:37:41 PM PDT

    •  there are mayn crimes w/o an attempt variant (0+ / 0-)

      Actually, the murder case is more the exception than the norm.

    •  with 1,2, and 3 (0+ / 0-)

      it's first degree murder.  With one and two, it's only attempted murder.  1 alone is reckless endangerment, and someone who knows he's been exposed but never gets tested could be guilty of a crime without meeting any of these criteria.

      It's a really, really, really stupid idea.

    •  And the negative partner has no role? (0+ / 0-)

      Really, this is what kills me (no pun intended) in all discussions of HIV transmission.  Seronegative people disclaim all responsibility for their own health and well-being.  Where the sex is consensual, the victims in all of these cases could have prevented the problem simply by insisting on condom use.  Is that really so hard?

      Every sexually active adult should by now be aware that HIV is out there.  Every such person should be taking steps to protect himself from the virus.  I certainly don't excuse HIV+ people who knowingly transmit the virus, but none of this would be necessary if the HIV-negative would accept responsibility for their choices and protect themselves by having only protected sex.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Tue Apr 24, 2012 at 02:55:21 PM PDT

      [ Parent ]

      •  Condoms aren't 100% effective n/t (0+ / 0-)

        "Stupid is as stupid does" - The republican motto you can believe in as they live it daily!

        by Mannie on Tue Apr 24, 2012 at 07:06:27 PM PDT

        [ Parent ]

        •  Um, and so? (0+ / 0-)

          So, since condoms aren't 100% effective, that means you shouldn't use them?  Or that you should just rely on what someone else tells you about his serostatus?

          I swear, sometimes I think seronegative people live in a state of complete and utter denial.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Tue Apr 24, 2012 at 10:14:15 PM PDT

          [ Parent ]

          •  just means (0+ / 0-)

            Even if you take precautions, you should still be warned.

            A condom does not negate a persons responsibility for informing you.

            "Stupid is as stupid does" - The republican motto you can believe in as they live it daily!

            by Mannie on Tue Apr 24, 2012 at 10:48:39 PM PDT

            [ Parent ]

  •  "Born HIV-positive." So what? (1+ / 0-)
    Recommended by:
    Dr Erich Bloodaxe RN

    This portion of the post seems to suggest that how a person acquired HIV is somehow relevant to whether his status should be disclosed.  I fail to see why.  A person born with HIV or who acquires it through a transfusion is no different from a gay man who is infected through sex.  

    To me, this sounds like the kind of crap we used to hear back in the 80s about the so-called "innocent" victims of HIV.  It was homophobia then, and it's homophobia now.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Tue Apr 24, 2012 at 02:59:11 PM PDT

  •  Meh. We had a case fairly locally iirc in which a (0+ / 0-)

    HIV+ professional wrestler type barebacked it with a dozen women, knowing full well he was infected.  At the very least it's depraved indifference, similar to knowing you're infected with XDR TB and hopping on a plane and exposing everyone because you don't want to be treated in the country in which you were diagnosed - another thing that will net you jail time.

    It is morally indefensible to knowingly expose other people to virulent communicable diseases without their knowledge, whether you're doing it as part of some rogue study or simply because you get a kick out of having sex without protection with unknowing partners.

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