AIDS: The Time for Changes in Law and Policy is Now (original) (raw)
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AIDS: The Time for Changes to Law and Policy is Now
Existing policies on HIV testing were developed decades ago when HIV infection led nearly inevitably to AIDS and death. Since then rapid clinical progress has occurred. HIV infected people with access to lifepreserving care and treatment no longer experience an existential threat to their life andwellbeing. HIV infection today, at least in North America and Western Europe, represents a chronic but manageable illness. Moreover, with treatment most infected people are rendered, to all intents and purposes, noninfectious. In this paper, we discuss the ethical, policy and legal implications of the changing clinical picture of HIV/AIDS. In particular, we propose significant changes to existing HIV testing policiesas well as to policies pertaining to the criminalisation of infected people’s sexual behaviour in North America and Western Europe.
Medical Law Review, 2019
Across the world, people living with HIV and AIDS (PLHA) face investigation, prosecution, conviction, and punishment if they transmit HIV to another person, expose others to the risk of HIV acquisition, or fail to disclose in advance their HIV positive status. This article seeks to explain why limiting the criminalisation of HIV is important and necessary; identifies some of the ways in which it has been, and might be, limited; and, finally, offers some reflections on whether there exists a principled limit to decriminalisation arguments (i.e. whether there are cases which, even if the general principles underpinning decriminalisation is accepted, justify state punishment). Drawing on recent international policy guidance, current scientific knowledge about HIV prevention and treatment, research on the impact of criminalisation of PLHA, the article argues that decriminalisation is critical to eradicating HIV and should be a public health priority, that biomedical advances in prevention and treatment will assist the decriminalisation project but are insufficient in the absence of legal and criminal justice practice reform.
Future Virology, 2011
The use of criminal law to address HIV transmission and exposure has been misguided and ineffective. Criminalization of HIV transmission and exposure raises difficult legal questions: what is the appropriate degree of mental culpability to trigger criminal prosecution? Is it appropriate for the law to equate nondisclosure of (known) HIV-positive status to a sexual partner with rape (as the law does in some jurisdictions)? Can it be justified to treat mere nondisclosure of HIV status as equivalent to the intent to cause harm? To what extent will the law recognize circumstances that mitigate harm, risk of harm and mental culpability, such as safer sex practices and low viral load, in mitigating the application of criminal sanctions? Sound guidance on avoiding the misuse of the criminal law in this area has been developed, but unfortunately many criminal laws in this area allow for prosecution even in cases where there is little justification. It is reasonable to expect that the use of...
Title: Criminally False: Challenging the Criminality of Being HIV Positive
In Canada, consensual sex becomes aggravated sexual assault solely by the presence of HIV antibodies in one partner. If the other partner not only becomes HIV-positive but dies from AIDS, first-degree murder is charged. Being HIV-positive is the only difference between a consensual act of sexual love, and a crime warranting many years in jail, or forever. But HIV is a strange weapon. If your partner knows you are wielding it, its use is not a crime. The criminalization of HIV is based on the belief it is a deadly, sexually transmitted virus. But that hypothesis has been challenged by evidence since AIDS was first postulated as viral in 1981 (then called Gay-related immune deficiency or GRID). Even though there are other viruses believed to kill more people – such as influenza – it is extremely rare for anyone to be charged criminally, and never with the same severity. One reason that an HIV positive test result counts as a potentially criminal offence may be because of moral judgments. In Western countries HIV is believed to be transmitted mostly by gay male sex or IV drug use, and both still come with a heavy moral burden, despite changing attitudes towards both. In Africa, black people are obviously the majority of victims and blacks, especially men, are still perceived by many whites as sexually insatiable and irresponsible. We challenge HIV criminalization by examining the science underlying HIV-AIDS diagnoses. If an accused is truly ‘innocent until proven guilty’ and to be ‘given the benefit of the doubt’, then the questions about whether HIV causes AIDS must be answered conclusively. It is notable that some highly credentialed scientists, such as molecular biologist Dr. Peter Duesberg, who questioned the HIV=AIDS=Death dogma in the 1980s, still maintain their skepticism and critical questions about the causal link to this day. The many concerns surrounding HIV science raise important philosophical and juridical questions. For instance, suppose (as test manufacturers admit) there is no definitive test for the cause of AIDS, just as there is no test for possession by the devil. If you believe that you are possessed by the devil, and that this possession can be transferred by touching another person, are you guilty of a crime when you touch someone? If someone does not believe that HIV causes AIDS, are they guilty of a crime when they engage in unprotected sex without communicating their HIV antibody status? This talk will describe how the laws of fraud have been used to criminalize HIV, and we will consider what such a basis for prosecution might mean in other circumstances. We use Canada as an example because the federal legal framework is clearer than in the United States, where many states have individual HIV-related laws or precedents. We will summarize critiques of the HIV=AIDS dogma, the dogma that is the implicit basis for criminalization.
The Boundaries of the Criminal Law: The Criminalization of the Non-Disclosure of HIV
2008
In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their sexual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assault or aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences.After reviewing public-health and criminal law options for dealing with non-disclosure of one's HIV status, the author concludes that criminal law should only be invoked in the most serious circumstances and only where all other public health measures have been exhausted. Criminal law should be reserved for individuals who demonstrate a pattern of non-disclosure either over time or with different sexual partners. The author also explores the social and legal reason...