The Futility of Criminalizing HIV Transmission

Yet another blog posting that demonstrates the futility of criminalizing having sex with someone without disclosing one's HIV status. It's quite simple. If you don't want to risk prosecution for the offense, don't get tested. Or make sure you get tested anonymously.

In this case, a man, who says he was infected in the late 1980s (but appears to have survived without antiretroviral drugs until about 20 years later) has unprotected sex, once, with a long term sex partner. How do we know that she wasn't already HIV positive at the time? That doesn't exonerate him, of course, but if she had kept her status secret from anyone, his behavior is punishable and hers is not.

The more people get tested the better. And better still if people get tested regularly if they think they continue to run risks of infection. But if knowing that you are HIV positive means you might accidentally infect someone with whom you haven't discussed your status, it's better to test anonamously.

People are not being criminalized for being HIV positive, they are being criminalized for being tested openly, in a manner that can be traced, should someone wish to trace it. Instead of getting people to test as early as possible, this makes it preferable for them to test as late as possible and to disclose their status as little as possible, perhaps never.

For people in developing countries, it's fairly obvious who is most likely to be punished by such laws. Women are under a lot of pressure to test when they are pregnant, sometimes more than once. For various reasons, it is often difficult, perhaps impossible, for them to keep their status confidential. And there is always the danger that someone else could reveal it.

In fact, if a woman needs any health services, especially before, during and after pregnancy, it is very unlikely that she can remain untested, or that her status can remain confidential, should the matter be scrutinized later.

Women in developing countries are more likely to be infected than men, often substantially more likely. They are more likely to have to test in local facilities (because of relative lack of mobility), where they are known by others.

Far from reducing stigma, this kind of criminalization would increase stigma. People would be under suspicion just because of things that may be known about them, or even because of characteristics that are merely attributed to them.

The orthodox view of HIV in developing countries is that HIV is almost always transmitted through heterosexual sex. But it is people who are felt to be engaging in more sex that will be most stigmatized, sex workers, pregnant women, perhaps young women, because prevalence is so high among them.

In the case mentioned above, both the woman and the man are intravenous drug users. They are both at high risk, far higher than people who engage in a lot of heterosexual sex. If the woman did know her status, it would probably be difficult to prove that.

And if she didn't know her status, perhaps, being an intravenous drug user, it might be suggested that she should have been tested a long time ago. It is claimed she was not tested till 2006, though the unprotected sex act was said to have occurred in 1999.

But why would anyone test if it's safer not to? If there was any chance that criminalization could reduce HIV transmission, there might be some justification for it, though it's hard to imagine what that could be. But in fact, it only makes things worse. It risks punishing people who may have been a lot more careful, or honest, and risks exonerating those who keep their test results to themselves, or don't even bother testing.