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Criminalisation of HIV patients

by Nomad Thu Apr 30th, 2009 at 06:58:53 AM EST

Past weekend, I attended Africa Day, organised by the Evert Vermeer Stichting - which is an organisation affiliated to the Dutch Labour party. Prominent speakers were  the minister of Humanitarian Development, Bert Koenders (Labour), and Paul Rusesabagina, whose story during the Rwandan genocide was made into the movie "Hotel Rwanda".

There were plenty workshops and events to choose from, and as I felt no need to attend such workshops as "Who is Zuma?" I ended up on a subject I knew little about, but whose attendees were remarkably ardent against the subject: the creep of criminalisation of HIV patients. This is a recent development not just in Africa and Asia, but also, surprisingly, in Europe.

The two most vociferous speakers, one from ICSS, International Civil Society Support, another from GNP+, the Global Network of People Living with HIV/Aids, too most of the time. Thijs Berman, Labour MEP and campaign leader for the European elections, was the third panellist. Although Berman's portfolio is more directed to humanitarian development, he attended with the goal to explain what the European Parliament could do.

Several not-so hypothetical cases were brought to the fore. From Texas, USA: A man, who knows he is HIV-positive, spits at a police officer during his arrest. Should he be put in jail? (The judge said yes, and jailed him for 35 years.)

A woman, told by her doctor she has AIDS, breast-feeds her newly born - who gets HIV as result. Should she be convicted for harming her child? (She was.)

The arguments why countries were resorting to the criminalisation of HIV were convincing: people are compelled to stop HIV/AIDS by all means necessary, and by making HIV transmission a criminal act it may be an aid in reducing the spread of HIV. Particularly in Africa the use of HIV criminalisation has blossomed across the continent.

However compelling, both GNP+ and ICSS (and also UNAIDS) argue that, however understandable, the effects of criminalisation are actually counterproductive and harmful to the cause of AIDS reduction. They frustrate health care by a climate of fear and retribution, they increase discrimination towards HIV/AIDS patients, threatens transparency and, ultimately, undo prevention efforts.

For GNP+ and ICSS another sign on the wall is that judges in South Africa, which currently holds world's largest group of HIV/AIDS patients, have fiercely rejected criminalisation of HIV.

Tragically, it is stigma that lies primarily behind the drive to criminalisation. It is stigma, rooted in the moralism that arises from sexual transmission of HIV, that too often provides the main impulse behind the enactment of these laws.
Even more tragically, such laws and prosecutions in turn only add fuel to the fires of stigma. Prosecutions for HIV transmission and exposure, and the chilling content of the enactments themselves, reinforce the idea of HIV as a shameful, disgraceful, unworthy condition.

- Edwin Cameron, Justice of the Supreme Court of Appeal, SA, 2008

Yet surprisingly, European countries are not scat-free.

GNP+ has just started a worldwide scan, the Global Criminalisation Scan, on the status of the prosecution and convictions of HIV related cases, available here.

Data on European countries is already available, although still under development, and can be found here.

One striking aspect was the variety in law in EU countries. Another the slow spread of criminalisation towards eastern European countries. Whereas the rate of prosecutions and convictions has slowed in, for example, the Netherlands and Switzerland, in the UK the rate has trebled since 2004:

The Global Criminalisation Scan - United Kingdom of Great Britain & Northern Ireland

[I]t appears there have been a trebling of prosecutions since this scan was done in 2004. This increase in activity from the Crown Prosecution Agency (CPS) is far removed from the situation in 1993 when the CPS was said to be `powerless to act' when an attempt was made to prosecute a male haemophiliac who was accused of infecting four women. Until 2004, all those convicted were male and prosecutions were based on transmission during heterosexual sex.  Since then, two women have been convicted and three men prosecuted for transmission through homosexual sex. To date, there have been thirteen prosecutions in England and Wales for reckless transmission and 3 in Scotland.  Of the sixteen prosecuted, there were fourteen male and two female.  Out of the sixteen convicted (sic), 13 were convicted.

Spain was lauded, so far, as one of Europe's shining beacons when it came to specific criminalisation laws: there aren't any, apparently. Which is what both GNP+ and ICSS were arguing for: the already existing legal framework is sufficient to cover all cases of malevolent transmission of HIV/AIDS, and an additional, HIV specific law is unnecessary. Whether Spain is laudable because of omission or by choice was left in the middle.

Many remaining issues were left unaddressed due to time constraints, particularly what to do in those cultures where the dominant culture is misogynist, which strikes me as one of the more challenging problems. So the session ended slightly on a single issue: decriminalise, decriminalise, decriminalise! I guess that's what GNP+ and ICSS are pushing for, and they do it with fervour, but it even left Thijs Berman somewhat flustered, as he expressed more a generalist, global scope. There were only crumbs for him left to explain what the European Parliament could do in practice (launching a survey for EU countries, focus on health care in developing countries).

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the already existing legal framework is sufficient to cover all cases of malevolent transmission of HIV/AIDS, and an additional, HIV specific law is unnecessary.

As I was reading, that is what I was wondering - was it HIV specific laws or general laws being used to prosecute?  I too don't see the need for specific legislation on the transmission of HIV for that reason, any deliberate act of harm to another person is already covered by criminal law.

To further stigmatise HIV with separate legislation is as you say so counterproductive.  People can't seek help and advice when they are afraid to be checked or to discuss the issue with anyone.

Thanks for the diary, Nomad - it is always good to raise the profile of issues like this.

by In Wales (inwales aaat eurotrib.com) on Thu Apr 30th, 2009 at 06:05:22 AM EST
Have you heard of an internet rumour of spreading "infected needle attacks"?

For your information, a couple of weeks ago, in a Dallas movie theater, a person sat on something sharp in one of the seats. When she stood up to see what it was, a needle was found poking through the seat with an attached note saying, "you have been infected with HIV". The Centers for Disease Control in Atlanta reports similar events have taken place in several other cities recently. All of the needles tested HAVE been positive for HIV. The CDC also reports that needles have been found in the coin return areas of pay phones and soda machines.
Other versions talk of ATM machines, market places... It's quite an old rumor, but it still causes waves of scare in Asia or Eastern Europe...
by das monde on Thu Apr 30th, 2009 at 06:18:02 AM EST
That's a nasty practice.  I'd heard of it but always assumed it was an urban legend.
by In Wales (inwales aaat eurotrib.com) on Thu Apr 30th, 2009 at 06:33:47 AM EST
[ Parent ]
And now I've read the link, I see it is!  But still, nasty to start such a rumour in the first place.
by In Wales (inwales aaat eurotrib.com) on Thu Apr 30th, 2009 at 06:36:01 AM EST
[ Parent ]
A woman, told by her doctor she has AIDS, breast-feeds her newly born - who gets HIV as result.

In countries where breast feeding is the overwhelming norm this may well be virtually incomprehensible to most mothers, certainly if they do not have at least the equivalent of a western high school education.  Even if they do, they might not have the ability to feed their child by any other means.

The self-protecting delusion for lawmakers and health givers alike would be that by passing such a law they have actually done anything useful or humane.  It is, in effect, a status crime: by virtue of her status as HIV positive and a mother with a new-born without adequate resources, she is a criminal.  Either let the child get HIV, let it starve or immediately give it up, if there are even provisions for legally surrendering a new-born in that society.

"It is not necessary to have hope in order to persevere."

by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Fri May 1st, 2009 at 12:49:39 AM EST
From a lecture by a doctor specialised in this sort of thing I learnt that the order of least risk for transmission between mother and child is:

  1. No breast-milk.
  2. Only breast-milk.
  3. Mixed.

The order of 2 and 3 was the relevant point. If you give exclusively breastmilk the risk for transmission is less then if you generally use other food stuffs and sometimes gives brest milk. I do not remember the specifics of why this was the case. A law against breastfeeding might mean that someone who does not have HIV - a stigma in many socities. Thus with this law in place mothers might feel compelled to breastfeed in public in order to prevent stigma from attaching itself to them, while trying their best to give other foodstuffs in private. Thus creating greater risk for transmission.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se
by A swedish kind of death on Mon May 4th, 2009 at 09:36:19 AM EST
[ Parent ]
That is really interesting.  Maybe being fed only breast milk boosts the immune system and makes it a little more likely that the baby can fight the virus, whereas a diet of mostly other food is less likely to boost natural immunity so when breast fed infrequently, the baby can't fight off the virus and becomes more likely to contract HIV.
by In Wales (inwales aaat eurotrib.com) on Mon May 4th, 2009 at 01:32:55 PM EST
[ Parent ]
That would be my guess to, but unfortunately it has slipped my memory wheter she said this or it is just a conclusion based on breast milk boostering the immune system in general.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se
by A swedish kind of death on Mon May 4th, 2009 at 04:12:46 PM EST
[ Parent ]
It is also possible that it is a purely empirical result that has yet to be incorporated into a coherent theory.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Mon May 4th, 2009 at 04:52:15 PM EST
[ Parent ]

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