Kirby, Michael --- "HIV/AIDS Criminalisation - Deserved Retribution or Capricious Sideshow?" [2007] AltLawJl 29; (2007) 32(4) Alternative Law Journal 196

HIV/AIDS CRIMINALISATION
DESERVED RETRIBUTION OR
CAPRICIOUS SIDESHOW?

In November 2007, in Geneva, UNAIDS convened a consultation on the issues of criminalisation of HIV transmission. The consultation was timely. In many countries, particularly in Africa, legislation has been introduced criminalising wilful transmission of HIV, the virus that causes AIDS. Since 2001, Zimbabwe, Lesotho and Swaziland, along with Uganda and Kenya, have adopted such laws^[1]. Such legislation is being copied as models of what should be done to respond to the continuing spread of HIV.

In other countries, long existing crimes, expressed in general terms (such as assault occasioning grievous bodily harm or attempted murder) have been invoked, although rarely, to punish deliberate or knowing transmission of HIV^[2]. As well, provisions have been enacted, making it an offence to ‘transmit a serious disease with intent’. Such cases, charged in small but increasing numbers, are arising in many countries^[3]. In Australia, one such case, The Queen v Reid^[4], came before the High Court of Australia. It involved a charge under section 317 of the Criminal Code of Queensland. That section makes it an offence for any person ‘with intent … to … transmit a serious disease to any person …’. The applicant was found guilty by a jury and convicted. By majority, the Court of Appeal of Queensland dismissed his appeal. The High Court refused special leave to appeal.

Conventionally, the purposes of criminal law include deterrence; incapacitation by punishment; retribution; and reform of the offender^[5]. Against the background of such purposes, questions are presented as to the desirability and utility of such offences.

It was common ground that the participants in Geneva should not simply condemn such parliamentary initiatives out of hand. They should endeavour to understand the objectives of enacting such laws. Despite the proliferation of criminal laws, the number of cases brought to trial is still small when measured against the enormous numbers of persons infected with HIV and other STIs. Examination of the Westlaw Data Base in the United States discloses fewer than 100 reported cases in all involving criminal transmission of HIV.

From the viewpoint of containing the epidemic, therefore, the introduction of special criminal laws constitutes, in effect, a ‘sideshow’ in the struggle against HIV. Addressing the epidemic from a public health perspective, the capricious operation of criminal law means that it could never be a major player in the global response. Private sexual, injecting and other risky behaviours had not been effectively responsive to criminal law in the past. There is no reason to believe that things will change with new criminal laws or new enforcement.

A common theme at the consultation was the need to introduce more decriminalisation so as to address more effectively the issue of prevention. Participants expressed concern that prosecuting people for criminal offences might:

• dissuade those at risk from undergoing a test for HIV, lest a positive outcome would provide evidence for future criminal prosecutions;

• increase stigma and add to the burdens a new stigma of criminalisation;

• increase demands for access to medical records, aimed at demonstrating knowledge of HIV status for criminal law purposes;

• increase the costs devoted to criminal prosecutions; and

• be specially burdensome in societies with high HIV prevalence.

Three major conclusions emerged. The first was that specialised offences were not justified, at least from a viewpoint of responding effectively to the AIDS epidemic.

Secondly, to expand the provision of antiretroviral drugs to patients who are HIV positive, HIV testing has had to be expanded. This raises acutely the wisdom of imposing criminal sanctions on knowing about one’s own positive HIV status. The two strategies pull in opposite directions.

Thirdly, the more urgent need is that of decriminalisation:

• Removal of criminal offences against homosexuals, left over from colonial rule;

• Removal of criminal sanctions on commercial sex work so as to promote empowerment of sex workers in demanding use of condoms and safer sexual practices;

• Enactment of anti-discrimination laws protective of people living with HIV and AIDS and at risk of infection; and

• Promotion of education and the availability of condoms and other strategies designed to reduce infections.

The participants, many of whom were experts in criminal law, recognised the taxonomy into which conduct relevant to transmission of a serious disease might be divided. Much of the debate centred on those attributes of the will that lie between deliberate and purposeful intention to infect others and negligent conduct. In this taxonomy, various categories were examined including recklessness, viewed from the aspect of indifference or knowing awareness of the risks of dangerous conduct, proceeding to risky conduct regardless^[6]. A majority of the participants concluded that recklessness alone, without a purposive intent to transmit the HIV virus, should not be sufficient to justify imposition of criminal sanctions or prosecution.

The consultation was not purely devoted to criminal law doctrine. It was conducted within UNAIDS, the UN agency with prime responsibility to respond to HIV/AIDS. It was thus addressed to the issue of criminalisation of HIV transmission, not as one of academic concern^[7] but as a feature of the current stage of the HIV/AIDS epidemic.

Anger and frustration about the continuing ravages of HIV/AIDS are natural and understandable. Enacting criminal laws is relatively cheap and easy. It makes it appear that something serious is being done. It panders to media sensationalism and to popular concern. However, in the context of the huge challenge of the pandemic that HIV presents, it is not really an effective strategy. The countries that have done best in responding to AIDS and preventing its further spread are, paradoxically, those that have enacted laws to decriminalise conduct that needs to be controlled. The current wave of laws to criminalise transmission is, as the experts concluded, largely a sideshow and a distraction.

If such laws are enacted and prosecutions brought, judges and lawyers must give effect to them. But the threshold question remains: without a cure or vaccine in sight, is criminalisation a useful contribution to the most urgent task of halting or diminishing the spread of HIV? The answer to this question appears to be a resounding ‘no’.

— JUSTICE MICHAEL KIRBY of the High Court of Australia is a member of the UNAIDS Global Reference Group on AIDS and Human Rights. This Opinion contains his personal views.

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^[1] Cassandra Willyard, ‘Africa’s HIV Transmission Laws Based on Questionable Science’ (2007) 13 Nature Medicine 890.

^[2] See eg A P Simester and G R Sullivan, Criminal Law, Theory and Doctrine (3rd ed, 2007) 408; Sally Cameron, ‘HIV on Trial’ (2007) 5(4) HIV Australia.

^[3] See eg R v Dica [2004] QB 1250; R v Konzani [2005] EWCA Crim 706.

^[4] [2006] 1 Qd R 64.

^[5] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001) 19–27.

^[6] Adam Webster, ‘Recklessness: Awareness, Indifference or Belief?’ (2007) 31(5) Criminal Law Journal 272.

^[7] cf Kumaralingam Amirthalingam, ‘Caldwell Recklessness is Dead, Long Live Mens Rea’s Fecklessness ‘ (2004) 67 Modern Law Review 491, referring to the House of Lords decisions in England in R v Caldwell [1982] UKHL 1; [1982] AC 341 and R v G and Anor [2003] UKHL 50; [2004] 1 AC 1034.