Punishing those who spread HIV is tricky

By New Vision
Published in HIV/AIDS News by LearnScapes, issue 294
23/03/2008

Kampala - There is a debate on the appropriateness of using criminal sanctions to prosecute HIV-positive people who deliberately or negligently infect others with the virus.

Proponents argue that such a policy would deter such conduct while the anti-criminalisation lobby argue that where behaviour is spontaneous and driven by human passion, as is sexual behaviour, it is unlikely that punishment will have a meaningful effect on people's behaviour.

History indicates that punitive policies are counterproductive in the promotion of public health issues. Criminal prosecutions will deter those most at risk from getting tested.

Opponents base their stand on the human rights implications of criminalisation for people infected with HIV/AIDS. This raises a number of questions: Should we punish individuals who, knowing that they are HIV+, engage in behaviour that can transmit HIV without using precautions and without informing their partners about their HIV status? Is it possible to use existing provisions of the Penal Code to punish 'offenders', for example, provisions on causing grievous harm, attempted murder, or negligent act causing death? Or would there be a need to create a specific provision criminalising the relevant conduct?

The UN HIV/AIDS and Human Rights Guidelines provide that criminal legislation should not include specific offences against the deliberate and intentional transmission of HIV, but rather should apply general criminal offences to these exceptional cases. The guidelines identify four elements that need to be established to justify criminal sanctions: Foreseeability, intent, causality and consent. What does this mean?

Foreseeability: The prosecution must prove that at the time of sexual intercourse, the accused knew or had reason to believe that he/she was HIV-positive. The accused must also be aware that it is harmful and capable of being transmitted through sexual intercourse.

Intent: What kind of mens rea will be adequate? Must it be intention, recklessness or even negligence? It is imperative that laws relating to criminal transmission are used judiciously. They should criminalise the wilful transmission of HIV and not the HIV-positive status of a person. The relevant state of mind must be clearly established so as not to punish the accused simply because of the act of transmission.

Causality: If the law is to punish only instances in which transmission occurs, then for the offence of criminal transmission, the prosecution must establish that the complainant was infected by the accused. The prosecution must prove that the complainant was HIV-negative at the time she/he engaged in sexual activity with the accused. It must be proved that the complainant was infected by the accused and not by anybody else. However, the law may punish a person who willfully engages in conduct which exposes another to the risk of infection even where the complainant escapes infection. This can be a specific offence or such behaviour can be punished according to the principles of attempts to commit a crime. The law would thus focus on criminal offences that prohibit behaviour which either results in transmission of disease or puts people at risk of contracting disease.

Consent: Would informed consent be a defence to a criminal charge? If A reveals his/her HIV status to B and B nevertheless consents to unprotected sexual activity with A, this would perhaps offer a defence to A in the event of B being infected by A. So what constitutes informed consent is not that B willingly had sex with A, but that B knew that A was HIV-positive and willingly agreed to have unprotected sex with him/her.

The Supreme Court of Canada ruled, in a case against a man who had unprotected sex with women without disclosing his HIV status to them, that without disclosure of HIV status, there cannot be true consent. The consent cannot simply be to have sexual intercourse. Rather, it must be consent to have it with a partner who is HIV-positive.

A further issue also needs to be considered: If an accused does not reveal his/her HIV status, but takes precautions such as the use of a condom to protect his/her partner, but nevertheless transmission occurs, what would his/her criminal responsibility be?

.