Congratulations to Neiloy Sircar—this essay is a winner in the Harvard FXB Health and Human Rights Consortium 2017 Student Essay Competition. Neiloy Sircar is an LLM student at the O’Neill Institute, Georgetown University Law Center, Washington, DC.
This paper discusses the harmful impacts of archaic criminal laws poorly drafted to punish the transmission of human immunodeficiency virus (HIV). Many of these laws emerged in the 1980s and early 1990s, when HIV was imperfectly understood, yet they remain in force today. These laws are often used to unjustly aggravate charges against persons living with HIV solely due to their HIV status. HIV transmission should not be criminalized except in instances of intentional transmission or intentionally reckless disregard. Under any other conditions, the human right to health and mitigating factors preclude treating HIV transmission as a criminal offense.
HIV criminalization laws proliferated in the immediate wake of the HIV epidemic in the 1980s. In the United States, for example, a majority of states have criminal statutes pertaining to HIV exposure and transmission, and the federal government provides money to states for acquired immunodeficiency syndrome (AIDS) treatment contingent on the existence of adequate criminal statutes for HIV transmission.1 The goal of these criminal laws was, and remains, to deter (and so prevent) the spread of HIV by aggravating charges against HIV-positive tortfeasors. In effect, HIV criminalization laws are structured to coerce persons living with HIV.
HIV criminalization laws generally penalize HIV transmission through claims of fraud and nondisclosure, reckless exposure to HIV, and assault where HIV transmission occurred.2 Fraud claims are based on intentional dishonesty between the parties with regard to one’s HIV status and the subsequent deprivation or risk of deprivation for the other.3 Fraud can be mitigated through disclosure and fully informed consent, and some courts state further that there must be have been a “realistic possibility” of HIV transmission during the exchange.4 Exposure occurs by subjecting someone to HIV-infected fluids, though this definition is imprecise and permits inappropriate application of HIV criminalization laws to instances when actual HIV transmission was negligible or nonexistent.5 Assault where HIV transmission occurred is the narrowest grounds for HIV criminalization, particularly where the tortfeasor intends to transmit HIV or otherwise knew that HIV transmission was likely; however, assault is itself a crime, and doubly penalizing HIV status risks impugning non-criminals living with HIV.
At the same time that criminal statutes for HIV transmission came to be, prevention programs were built to reduce the risk for HIV among the general population and specific subpopulations. Early prevention programs were characterized by excessive coercion and discrimination against HIV-positive persons or people at risk for HIV, likely due to the uncertainty surrounding HIV and the relative lack of treatment options.6 Timely reforms to these programs improved their effectiveness and outreach, resulting in part from the advocacy efforts of HIV-positive persons and members of communities affected by HIV. The emergence of antiretroviral therapies dramatically changed the consequence of an HIV diagnosis and reduced the individual risk of an HIV-positive person spreading HIV. More recently, the development of pre-exposure prophylaxis reduces the risk that an HIV-negative person will contract the virus and provides another tool for members of HIV-prevalent communities to empower themselves and reduce the spread of HIV. The effectiveness of prevention programs is dependent on their being non-discriminatory, free of coercion, and accessible for persons who need them, as otherwise they risk undermining public health goals to reduce HIV prevalence and incidence and could lead to infringements of an individual’s rights—including the right to health.
HIV-positive status is not itself criminal, but many jurisdictions aggravate charges raised against HIV-positive individuals who commit a tortious act.7 For certain charges (sexual assault, for instance), such aggravation may appear to be vindictive justice and legitimate if the tortfeasor knew of his or her HIV-positive status.8 However, HIV criminalization laws exceed their just limitations when exposure to HIV is minimal or unintentional. Too many such laws are poorly structured or vaguely phrased, thus permitting abuse against persons living with HIV in the judicial system by their application to inappropriate cases and contexts. This is not to say that an HIV-positive person who intentionally commits a tort, such as sexual assault, is excused for that crime or should be excused for exposing someone to HIV through the criminal act. A judicial body should in all circumstances look to the conditions and context of the alleged crime and determine if the accused manifested intention to harm using HIV or demonstrated reckless disregard by exposing another person to HIV through a known transmission route.
Overly broad HIV criminalization undermines public health efforts to prevent the spread of HIV and reduce HIV prevalence by punishing persons who simply live with HIV. Consequently, HIV-positive persons or people at risk for HIV feel stigmatized and are less likely to utilize services that support prevention, diagnosis, and treatment. Poorly designed HIV criminalization statutes work to disempower communities while perpetuating the HIV epidemics affecting those same communities, without generating any substantial gains.
The right to health and HIV criminalization
HIV criminalization and the right to health can mutually coincide. Integrating people who live with HIV into the community empowers those individuals to realize their right to health while respecting their autonomy and dignity. For example, in India, public health experts engaged with sex workers in Sonagachi, Kolkata, to educate and empower them regarding HIV. Through community engagement (not suppression), best practices for HIV prevention increased and disease prevalence declined for that group. Integration can allow for more effective policy development and implementation, disbursement of resources, and provision of health services to prevent, detect, and diagnose HIV, and proactivity can even promote nondiscrimination.9 Criminalization of the intentional infliction of harm or injury, or of the intentionally reckless disregard for others that leads to preventable injury, forms the just barrier between public health needs and individual rights.
Many HIV criminalization laws, however, are based on archaic fears and outdated science on HIV and work to marginalize people living with or at risk of contracting HIV. Isolating individuals because of their HIV status, whether physically or socially, ensures the continuity of the HIV epidemic and violates fundamental rights and respect. Human rights and human dignity are infringed upon when individuals are punished for unintentionally transmitting or exposing others to HIV, which can result from their not knowing their HIV status in the first place or being unable to ascertain their HIV status due to barriers.10 Criminalization based on HIV status alone treats health status as a weapon, implying that people living with HIV are perpetual threats. Viewing these vulnerable communities as dangers only exploits their vulnerability and fosters the stigmatization of both the community and HIV-positive persons.
The right to health compels states to respect their populations’ right to health, to protect that right, and to fulfill their own duties toward the realization of the right to health.11 Each person has a right to be free from discrimination and marginalization, regardless of their HIV status, as well as a right to autonomy and self-determination. An individual is entitled to their human dignity and through legal norms a right to uncircumscribed due process. A person living with HIV is no more a threat to the public than any other person, and laws that function to discriminate against persons living with HIV represent unjustified infringements of the right to health.
Conflicts between public health and criminal law
Criminalizing HIV in broad terms—or having poorly drafted legislation that allows for inappropriate application—undermines the public health goals that such laws are designed for.12 HIV transmission may occur through any exchange of infected body fluids, such as mother-to-child transmission in utero or through breastfeeding. A primary tenet of criminal law is the motivation of the tortfeasor in the criminal act, and one cannot say that a mother ever intends to transmit HIV to her infant. Not every mother has access to suitable health systems, and where such systems exist they may not be available to every mother or of suitable quality to effectuate HIV mitigation. Nonetheless, mothers may be subject to serious penalties under HIV criminalization laws, regardless of whether they could have effectively prevented or lessened their risk of transmission to others. Penalizing a person for not doing that which could not be done is a mockery of justice and only embeds health inequities.
The communities at greatest risk for HIV (lesbian/gay/bisexual/transgender (LGBT) persons, sex workers, and intravenous drug users) often face discrimination and marginalization for reasons other than HIV. HIV criminalization laws paired with HIV prevalence likely reinforce stereotypes about these communities and work against their receiving proper resources to minimize their risk or utilize essential health services. The immediate consequence of overly applied HIV criminalization is a deepening of the stigmatization and isolation of people living with HIV and the at-risk community.
Further, where laws punish at-risk individuals for their work (such as sex workers) or identity (such as LGBT), they may be worsening the HIV epidemic and infringing on people’s right to health and adequate health services. Sex work, already viewed pejoratively, can be seen to abet HIV transmission and lead to draconian punishment or enforcement against people involved in the trade or those who work with people in the trade (but not, ironically, the clientele or enablers). HIV criminalization laws could be wrongfully applied to instances where HIV transmission does not or cannot occur, such as where social and health workers provide services to sex workers. By actively pursuing a public health goal—reduced HIV prevalence and the promotion of best practices—health workers and sex workers may both be at risk for punitive action. Our of fear of persecution and prosecution, sex workers may be less likely to report crimes to authorities or, when engaging with clients or authorities (or both), be at an even greater bargaining disparity given their work.
What is true for sex workers is also true for LGBT persons. Fear of being “outed,” injured, or penalized by authorities and other individuals keeps their community underground and further removed from the health services they are owed and require. HIV criminalization laws can impede the achievement of public health objectives while providing others with hostile views toward LGBT people another means to exploit LGBT vulnerability.
HIV criminalization laws disproportionately affect women
HIV-positive women in particular are challenged by stigmatization resulting from HIV criminalization, unfairly shifting the responsibility for ensuring HIV-negative status amongst the community from men. An HIV-positive woman may have contracted the disease from her partner and yet face the accusation of being the progenitor herself, placing her at great risk of personal and emotional harm. She may forego seeking health services due to this stigma and a justified fear of persecution. Such stigmatization is not limited to HIV-positive women, either, as women generally may fear being associated with or having HIV enough to forego clinic visitations to their detriment (and possibly their children’s, too).
HIV criminalization laws do not generally reflect the environmental and social conditions that foster or impede HIV transmission. An HIV-positive pregnant mother who has adequate health services (such as antiretroviral medications) both available and accessible to her, and who is freely able to utilize these services without fear of stigma or injury to her person for doing so, is unlikely to transmit HIV to her infant in utero or during breastfeeding.13 Absent such conditions, these laws may be inappropriately applied to a woman who did not know she had HIV while pregnant, did not have accessible or available health services, or could not use such services due to social or cultural barriers. Penalizing a mother for unintentionally transmitting HIV to her child or exposing her child to the virus in utero or after birth is a clear violation of human dignity and serves only to forestall meaningful investments in building a health system that empowers women to enjoy their right to health.
The end result of such wanton criminalization is the underuse and under-allocation of public health resources. Marginalized communities command less clout to secure these resources from providers and are burdened with the consequences of living without them. Where such services are provided, they may not be utilized due to a counterculture of punishing those with HIV as a result of perceptions of immorality or indignity. Treating a health status as a crime directly impairs efforts to both empower marginalized communities to realize their right to health and to respond to the health threat.
HIV criminalization and the right to health approach
HIV criminalization laws have been too broadly applied to individuals who transmit HIV or increase the risk of transmission through their actions. Criminalization laws should more clearly define the factors that enable HIV transmission and exposure, as well as the measures by which transmission may be effectively reduced. Criminalization has not yielded significant public health benefits or reduced the HIV epidemic—if anything, it has exacerbated the epidemic. Current practice is therefore bad law and worse policy: by punishing all HIV transmissions regardless of conditions or circumstances, instances of appropriate penalty are greatly outweighed by instances where no such intent was present.
The criminalization of HIV transmission should require proving that an individual, acting autonomously, either evinced malicious intent to transmit HIV or acted with intentional disregard for the well-being of others and recklessly exposed others to HIV. Reforming HIV criminal statutes to achieve increased clarity in design and implementation is necessary to achieve the just legal ends of punishing malicious acts while respecting the human dignity and rights of people living with HIV. UNAIDS’s guidelines, paraphrased below, for HIV criminalization statutes adequately incorporate the right to health framework and particularly the right to health’s deference to individual autonomy and respect while emphasizing the need for suitable health and legal systems.14 HIV criminalization laws should not apply under any of the following circumstances:
- when the risk or “realistic possibility” of transmission can be mitigated by, for example, using clean needles or practicing safe sex, including the use of pre- and post-prophylaxis, and such measures are taken15
- when the HIV-positive person did not know they were HIV positive
- when the HIV-positive person did not know how HIV was transmitted
- when the HIV-positive person fully disclosed their status to their partner and knew that their partner was fully informed as to how HIV spreads
- when the HIV-positive person was inhibited by a social or cultural condition, such as if the HIV-positive person had reasonable fear of persecution or prosecution that may have impeded their autonomy and self-care prior to transmitting HIV
- when the HIV-positive person could not have taken reasonable measures to reduce the risk of transmission or did not willfully disregarded such measures
- when the HIV-positive person and the HIV-negative person (or people) agreed on an acceptable level of risk in light of full disclosure.
An individual who intentionally transmits HIV to another, or who intentionally disregarded the welfare of others knowing fully that their recklessness constituted endangerment, should be punished. Under no other circumstance should HIV status bear relevance under criminal proceedings. Mother-to-child transmission is likely prima facie a breach of the right to health, as such transmission is most likely to occur when the mother did not have available or accessible health services, did not know she was HIV positive or otherwise had no knowledge of or means to prevent transmission, or was otherwise impeded from accessing those services.
The UNAIDS guidelines reflect the narrow grounds on which HIV may be considered an aggravating factor in a tortious act. A statute built on these guidelines would provide greater justiciability for rightful claims of injury and infringement on human rights from a tortfeasor who intentionally or recklessly turns HIV into a malicious device. At the same time, public health actors can operate and engage with vulnerable communities to educate and empower them to be part of the HIV prevention strategy, as has been done in India. Where those strategies require better health systems, advocates from within the community will be more capable of demanding the progressive development of those systems and, in turn, their community’s realization of its right to health. The goal of punitive statutes is to deter wrongdoing. There is nothing wrong with being a person living with HIV, and improper laws should be reformed to reflect fundamental respect for human dignity.
HIV criminalization laws are often poorly designed and discriminatorily implemented. The proper space for laws criminalizing HIV should be narrowed to when an HIV-positive person uses their HIV-positive status as a means to coerce, injure, or recklessly endanger another party. Laws that work to stigmatize or marginalize HIV-positive persons, or render it difficult for HIV-positive or at-risk persons to avail and access health services, are unjust and represent bad policy. People—regardless of their HIV status—have a right to health, and states need to respect their populations’ dignity with laws that ensure justice, protect those who are wronged or injured by the actions or inactions of the state, and fulfill their health and public health obligations to their people.
Rather than unduly burden HIV-positive persons with fear of persecution and prosecution, states should qualitatively assess their public health and legal strategies for containing their HIV epidemic and providing necessary services to at-risk communities. In so doing, states should also assess the conditions and circumstances that may prevent equitable access to and availability of essential health services and work to resolve such matters, including by reassessing other criminal laws that may disparately affect particular groups and work against the interests of the state and the community. Proactive engagement with these people and groups will help states design and implement legislation that addresses the legitimate need to deter some behaviors and foster others. In this way, the right to health may be more freely enjoyed and people’s level of health more highly attained.
- Centers for Disease Control and Prevention, HIV-specific criminal laws. Available at http://www.cdc.gov/hiv/policies/law/states/exposure.html.
- UNAIDS, Policy brief: Criminalization of HIV transmission (2008). Available at http://www.unaids.org/sites/default/files/media_asset/jc1601_policy_brief_criminalization_long_en.pdf.
- R. v. Cuerrier,  2 S.C.R. 371 (Can.).
- R. v. Mabior,  S.C.R. 584 (Can.).
- Center for HIV Law and Policy, When sex is a crime and spit is a dangerous weapon: A snapshot of HIV criminalization in the United States (May 2017). Available at http://hivlawandpolicy.org/resources/when-sex-crime-and-spit-dangerous-weapon-snapshot-hiv-criminalization-united-states-center.
- T. Anderson, “HIV/AIDS in Cuba: A rights-based analysis,” Health and Human Rights 11/1 (2009), pp. 93–104.
- Center for HIV Law and Policy, Ending and defending against HIV criminalization: A manual for advocates, Vol. 1; State and federal laws and prosecutions (May 2015). Available at http://www.hivlawandpolicy.org/resources/ending-and-defending-against-hiv-criminalization-state-and-federal-laws-and-prosecutions.
- UNAIDS (see note 2).
- A. Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable level of physical and mental health, UN Doc. A/HRC/26/31 (2014).
- Center for HIV Law and Policy (2017, see note 5).
- International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), Art. 12; UN Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000).
- A. Grover, Report of the Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health, UN Doc. A/HRC/14/20 (2010).
- World Health Organization, New guidance on prevention of mother-to-child transmission of HIV and infant feeding in the context of HIV (July 2010). Available at http://www.who.int/hiv/pub/mtct/PMTCTfactsheet/en.
- UNAIDS (see note 2).
- R. v. Mabior (see note 4).