James’ life took a drastic turn when his personal information was splashed across a news website, accusing him of infecting his former partner with HIV. But this was just the beginning of a five-year nightmare for James, as he navigated through the legal system before his case was finally dropped in 2018. However, the news of the case being dropped didn’t bring him much relief; instead, it fueled his anger towards the lengthy process.
Unfortunately, James’ case is not an isolated incident. Many countries have laws that criminalize the transmission of HIV, with various approaches and consequences. Between 2019 and 2021, nearly 700 cases were brought before courts globally, according to the HIV Justice Network. In Europe, France reported the highest number of cases where general laws were applied to HIV criminalization.
But there are growing concerns about whether the legal system is the appropriate venue to handle these cases, as well as the broader impact on public health. Kat Smithson, from the National AIDS Trust, argues that criminalization undermines effective public health approaches to HIV, such as shared responsibility for sexual health and treating people living with HIV as neither threats nor dangers.
UNAIDS, the United Nations program on HIV/AIDS, firmly believes that criminal law should only be applied in extremely rare cases of intentional transmission. Laws that criminalize unintentional or reckless transmission of HIV hinder efforts to prevent new infections and pose a barrier to the goal of ending AIDS as a public health threat by 2030.
HIV criminalization originated in the 1980s during the early days of the epidemic in the U.S., when HIV was considered a death sentence. However, medical advancements since then have transformed HIV into a manageable chronic condition. Advocates argue that current laws are based on outdated science and discriminatory attitudes.
For example, it is now widely known that individuals on effective HIV treatment can reach an undetectable viral load, which significantly reduces the risk of transmitting the virus.
Yet, it was only recently that the prosecution service in England and Wales updated its guidance, stating clearly that individuals on effective HIV treatment cannot transmit the virus intentionally or recklessly.
Edwin Bernard, the executive director of the HIV Justice Network, points out that the law often lags behind scientific advancements and our understanding of HIV-related risks and harms.
Beyond the discussions about risk and harm, Bernard emphasizes that prosecutions for HIV transmission perpetuate stigma, reinforcing the notion that people living with HIV should be treated differently solely because of their status. Stigma can have real-life consequences, hindering access to HIV services and medication adherence.
It is vital to recognize that individuals caught up in HIV criminalization cases, like James, are ordinary people living with HIV who have not done anything out of the ordinary.
Looking ahead, it is likely that cases like James’ will continue unless there is a shift away from criminalization. James himself emphasizes that he wouldn’t wish the experience he went through on anyone.
The broader question arises: Is the criminal law the most suitable way to address these situations, or can we better support public health efforts and ensure that individuals are aware of their HIV status and receive appropriate treatment?
Moving forward, it is crucial to explore alternatives to criminalization that prioritize public health, reduce stigma, and support individuals living with HIV in a way that is compassionate, informed, and inclusive.
