In Bed With The Penal Code

By Anne Gotfredsen

In October 2013, a Swedish man, formerly sentenced to one year in prison, was freed from charges of inciting harm to other. He was charged because he had unprotected sex with four women without revealing his positive HIV-status. None of the women were infected.

The latest ruling was based on medical input that the transmission risk was in reality almost zero, since the man was in stable treatment. The verdict represents a shift in Swedish interpretation of existing laws regulating exposure to HIV. According to the Communicable Disease Act, a carrier of HIV must communicate his or her status (Disclosure Act) to the person(s) he or she will engage in sexual activities with. The key issue is not if transmission occurs, but whether or not there is a risk of transmission and if the person has acted intentionally or negligently. Around 40 persons have been convicted and about 100 forced into isolation since the late 1980s according to RFSU (the National Council for Sexual Education), the sentence mainly being aggravated assault. Half of those 40 convictions happened between 2004 and 2010. According to UNAIDS, Sweden has one of the most active law enforcements in the world in relation to its HIV-infected population, with a top ten ranking in convictions.

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International legislation
With the recent verdict in Sweden it seems a much-needed change is about to come. In many countries, including Sweden, HIV is no longer classified as a deadly disease, which should be reflected in the legislation. Nevertheless, without access to HIV testing and accurate treatment the HIV/AIDS is still a highly fatal disease, a grim reality for millions of people globally. Around 60 countries have specific HIV legislation that criminalizes HIV transmission or exposure, and many more have related legislation that present obstacles to prevention or treatment. These laws are often specifically targeted at subgroups in the population that are deemed as “risky” (for example men who have sex with men, sex workers and injecting drug users). The history of HIV and the national responses to it is complex and multi-layered, intersecting with other forms of discrimination since many of the infected, are members of already vulnerable and/or impoverished populations and communities. What could then be the way forward?

The United Nations and various NGO’s around the world are arguing for a limitation of contain- and-control-strategies since they increase stigma and discrimination, are often randomly enforced – and, introduced and interpreted without evidence. However, it is important to include available evidence in the human rights argument, evidence that shows how these kind of measures do more harm than good to the general public’s health. Control of “risky” individuals is not the answer and several other strategies show better results; communication and empowerment of sex workers, needle and syringe exchange, and active inclusion of the groups involved to outline prevention programs. Still, if criminalization prevails, there are ways to make it safer; Crown Prosecution Service for England and Wales has for example introduced a guidance that sets out a number of factors that should be considered when deciding whether to prosecute someone for transmitting HIV, as a way to limit wrongly or random convictions.

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Shared responsibility and brave politicians
Most transmissions occur when we are unaware of our HIV- status, which indicates that policies should promote testing and early treatment, instead of criminalization that might discourage people from taking the test in the first place. To isolate the causal relationship between stigma and delayed testing is difficult, since many of the groups at risk already face heavy discrimination. Yet, this is not a convincing argument for keeping barriers that indirectly contribute to negative health outcomes for the population as a whole. Anyone can be HIV-positive and criminalization, through disclosure acts, might lead to a false sense of security. There is a shared responsibility for one’s sexual health but the current Swedish legislation forces the responsibility on only one part. To argue for decriminalization is complex, and policy-makers have to be brave. The burden of proof lies on the promoter and it is a complicated matter to prove that the abolishment of a law is less harmful than keeping it. Research is also very time-consuming and costly, but indeed necessary. A law that regulates intimacy and our sexual life has to be well argued for and evaluated both in terms of moral and scientific evidence.

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