Limit Cases: How and why we can and should decriminalise HIV Transmission, exposure and non-disclosure

ABSTRACT: 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 (ie 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, and 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.

Risk of HIV transmission through condomless sex in serodifferent gay couples with the HIV-positive partner taking suppressive antiretroviral therapy (PARTNER): final results of a multicentre, prospective, observational study

Study findings provide conclusive evidence that the risk of HIV transmission through anal sex when HIV viral load is suppressed is effectively zero.Among the 782 serodifferent gay couples followed for almost 1600 eligible couple-years of follow-up, which included more than 76 000 reports of condomless sex, zero cases of within-couple HIV transmission were found. In the absence of ART, on the basis of the frequency and type of sex, for receptive condomless anal sex acts alone approximately 472 transmissions would have been expected. The results give equivalence of evidence for gay men as for heterosexual couples and indicate that the risk of HIV transmission when HIV viral load is suppressed is effectively zero for both anal and vaginal sex.

HIV criminalization exacerbates subpar diagnosis and treatment across the US:

Revisits the analysis described in Sweeney et al. (Association of HIV diagnosis rates and laws criminalizing HIV exposure in the United States), but stratifies the diagnosis rate into two response variables: i) the proportion of PLHIV diagnosed, and ii) annual percentage change in HIV prevalence. Counter to the conclusions of Sweeney et al., the researchers’ analyses indicate that laws criminalizing HIV exposure are associated with a lower proportion of HIV diagnosis and increased HIV prevalence.

Positive sexuality: HIV disclosure, gender, violence and the law—A qualitative study

Drawing on a feminist analytical framework and concepts of structural violence, this analysis sought to characterize the negotiation of sexual relationships and HIV disclosure among Women Living with HIV (WLWH) in a criminalized setting. Researchers conducted 64 qualitative interviews with cis and trans WLWH in Vancouver, Canada between 2015 and 2017. Despite frequently being represented as a law that ‘protects’ women, the study findings indicate that the criminalization of HIV non-disclosure constitutes a form of gendered structural violence that exacerbates risk for interpersonal violence among WLWH. In line with recommendations by, the WHO and UNAIDS these findings demonstrate the negative impacts of regulating HIV prevention through the use of criminal law for WLWH.

Rethinking Criminalization of HIV Exposure — Lessons from California’s New Legislation

Argues that laws criminalising HIV exposure fail to satisfy criminal law functions of retribution and deterrence. Retribution is problematic as laws are applied when no intention to transmit HIV, little to no likelihood of transmission and multiple factors may make disclosure difficult. Laws fail to deter unprotected sex and are a poor fit for acts that include no risk of transmission, including sex and blood donation. Instead, laws cause harm, with discriminatory enforcement compounding injustice and stigma. California’s law reform is commendable, while other problematic U.S. HIV-criminalisation statutes should be restructured, amended, or repealed.

A systematic review of risk of HIV transmission through biting or spitting: implications for policy

A systematic literature search was conducted using Medline, Embase and Northern Lights databases and conference websites. Results showed that there was no risk of transmitting HIV through spitting, and the risk through biting was negligible. Post‐exposure prophylaxis was not indicated after a bite in all but exceptional circumstances. Policies to protect emergency workers should be developed with this evidence in mind.

Prosecution of non-disclosure of HIV status: Potential impact on HIV testing and transmission among HIV-negative men who have sex with men

Aims to quantify the potential impact of non-disclosure prosecutions on HIV testing and transmission among MSM. Found that fear of prosecution over HIV non-disclosure was reported to reduce HIV testing willingness by a minority of HIV-negative MSM in Toronto; however, this reduction had the potential to significantly increase HIV transmission at the community level which has important public health implications.

Phylogenetic analysis as a forensic tool in HIV transmission investigations

Revisits HIV court case investigations published in the scientific literature, as well as the methodological aspects important for the application and standardization of phylogenetic analyses methods as a forensic tool. Concludes that there has been a lack of consistency between methods and that it is essential to define guidelines to be used by phylogenetic forensic experts in HIV transmission cases.

State-Level HIV Criminalization Laws: Social Construction of Target Populations?

Applying a social constructionist framework that places people living with HIV in the intersection of both minimal power and negative social construction, this study investigates whether HIV criminalization laws are more likely to be present in states that have a relatively larger percentage of socially marginalized populations, finding that that states with HIV criminalization laws have relatively larger African American populations.