Intimacy and Responsibility

The Criminalisation of HIV Transmission

Matthew Weait

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135308155
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In what circumstances and on what basis, should those who transmit serious diseases to their sexual partners be criminalised? In this new book Matthew Weait uses English case law as the basis of a more general and critical analysis of the response of the criminal courts to those who have been convicted of transmitting HIV during sex.

Examining cases and engaging with the socio-cultural dimensions of HIV/AIDS and sexuality, he provides readers with an important insight into the way in which the criminal courts construct the concepts of harm, risk, causation, blame and responsibility.

Taking into account the socio-cultural issues surrounding HIV/AIDS and their interaction with the law, Weait has written an excellent book for postgraduate and undergraduate law and criminology students studying criminal law theory, the trial process, offences against the person, and the politics of criminalisation. The book will also be of interest to health professionals working in the field of HIV/AIDS genito-urinary medicine who want to understand the issues that may face their clients and patients.

Chapter 1
The terrain: the state, criminal
justice and HIV

The criminalization of HIV has been a strange, pointless exercise in the long fight to control HIV. It has done no good; if it has done even a little harm the price has been too high. Until the day comes when the stigma of HIV, unconventional sexuality and drug use are gone, the best course for criminal law is to follow the old Hippocratic maxim, ‘first, do no harm.’

(Burris et al, 2007: 49)

Introduction

HIV and AIDS¹ have been the subject of academic interrogation since the first cases of AIDS were diagnosed in the early 1980s. The nature of that interrogation has been extraordinarily diverse, reflecting a wide range of intellectual and practical concerns. For sociologists, economists, psychologists, social historians, philosophers, political and cultural theorists, writers, artists and – importantly people living with HIV and with AIDS (PLHA), the virus and its effects (both physiological and social) have provided an opportunity to question and explore from a novel perspective the nature of identity, stigma and dignity, the impact of globalisation, the right to health, the parameters of responsibility, and relations between people of different genders, ethnicities and sexualities. We have come, in short, to understand that HIV and AIDS is as much an ‘epidemic of signification’ (Treichler, 1988) as it is an epidemic that blights bodies.

From a specifically legal perspective, HIV and AIDS have also provoked a range of interventions. Some, reflecting the fact that – above all – HIV and AIDS have had stigmatising and discriminatory effects on those who live with the virus, have had a practical orientation. ‘AIDS law’ guides and handbooks were critically important in the early years of the pandemic, providing both the means by which PLHA might know their rights in areas such as housing, employment, insurance, and immigration, and also a means by which legal practitioners might be alerted to the particular needs of a new and growing client base (see, for example Burris et al, 1993; Haigh and Harris, 1995; Rubenstein et al, 1996). Other interventions have been more academic, focusing in particular (though not exclusively) on the human rights, civil liberties and public health implications of HIV and AIDS (for example Sullivan and Field, 1988; Monk, 1998; Elliott, 2002; Lazzarini et al, 2002; Watchirs, 2003; Gostin, 2003).² Still others have been professedly theoretical in their orientation, albeit grounded in the case law (for example Rollins, 2004).

This book is an attempt to make a sustained and critical contribution to a particular, but important, area of legal scholarship in the field of HIV and AIDS: the criminalisation of HIV transmission. This is a topic that has not only generated a vast amount of literature in jurisdictions with a common law heritage,³ but has also engaged the attention of international human rights and health organisations (Elliott, 2002; WHO, 2006). The reasons for the interest in the subject are discussed in detail in subsequent chapters. Here, it is sufficient to note that they are relatively self-evident. Most people are HIV negative. Many, if not all, HIV negative people are afraid of HIV and AIDS; many, if not all, people are aware that HIV is a transmissible disease; and many, if not all, people think that those who transmit HIV to others – especially to those with whom they have an intimate sexual relationship – have by definition done something wrong and should be punished for it.

The purpose of this book is not to deny the validity of those who hold these views, although they are not ones I share. Rather, it is an attempt – focusing on the law in England and Wales – to problematise the way in which the criminal law has responded to the transmission of HIV, to question the justifications for using the criminal law against those who transmit HIV to their sexual partners, and – I hope – to provide some original insight into the way criminal law constructs us as responsible subjects before the law.

Context

This may be a book about the response of the English criminal law to the sexual transmission of HIV, but it would be foolhardy to begin that discussion without locating the particular subject matter within its broader political and historical context. A fundamental part of the argument I attempt to present about the criminal law’s response to HIV is that it has failed to acknowledge the fact that HIV and AIDS are, and should be understood as, public health issues first and foremost, rather than as problems necessarily capable of effective legal resolution through the criminal law. Although the UK has been fortunate in the relatively low number of people living with HIV infection and with AIDS-defining illnesses (as a percentage of the total population, and compared with both other Western European countries and – more obviously – many African countries), it is nevertheless a public health crisis on a grand scale. To explore and attempt an analysis of the response of the criminal law to isolated incidents of transmission between individuals would be possible; but a purely juridical analysis would be equivalent to attempting to understand the principles of English contract law without acknowledging their development and functions within a capitalist economy. We might be able to learn the rules, but we would not understand why they exist, or how they are interpreted and to what end.

In order to give some background, this chapter therefore provides, first, a brief overview of the HIV epidemic in the UK, the relationship between the nature of the epidemic and the characteristics of the prosecutions that have been brought. It then explores the way in which the epidemic has informed international human rights principles, and how those principles have been articulated within the context of the epidemic. This discussion is important, since debates surrounding the criminalisation of HIV transmission have, in large part, been set against that human rights background.⁴ The chapter then considers, in a little more detail, the way in which the use of criminal law, as a coercive power of the state, interrelates with public health law. Here I suggest that public health law may – rather than being a ‘soft option’ – amount to criminalisation by the back door, and that its coercive potential not only threatens the human rights of PLHA but may actually impede the effective management of the epidemic. The final part of the chapter sets out, in brief, the relevant legislative and policy history immediately preceding the first cases in which people were convicted for transmitting HIV in England and Wales, and a summary of the cases that have been decided so far.

HIV/AIDS in the United Kingdom: an overview ⁵

Epidemiology

2006 marked the twenty-fifth anniversary of the first reported case of AIDS (in the United States), and the beginning of HIV surveillance in the UK. By the end of March 2007 there had been a total of 86,738 HIV diagnoses in the UK, 45 per cent of which were among men who have sex with men (MSM), 40 per cent among heterosexuals, and 5 per cent among injection drug-users (IDUs). Of those diagnosed, 70 per cent have been male and 30 per cent female. Although many initiatives aimed at limiting the spread of HIV within the population have been successful and beneficial (for example blood- and ante-natal screening, voluntary and confidential HIV testing, the provision on the NHS of highly active anti-retroviral therapy (HAART), targeted HIV and AIDS information and needle-exchange programmes for IDUs) the number of reported cases of HIV infection continues to rise. In 2005 there were an estimated 63,500 people living with HIV in the UK, one-third of whom were ignorant of their HIV positive status. This increase in the number of reported HIV cases has been mirrored by an increase in the rate of other sexually transmitted infections (STIs). Between 1996 and 2005 the number of people presenting with an STI at genito-urinary medicine (GUM) clinics in the UK increased by 60 per cent, and 790,000 acute STIs were diagnosed. Of particular concern in recent years has been the clinical management of people with HIV and other STIs who present for care and treatment with multiple infections (including tuberculosis (TB), and hepatitis B and C). Not only are those with HIV and TB co-infection – most of whom come from minority ethnic populations – harder to treat, since the first line drug used to treat TB reacts adversely with some drugs used in HAART, but also the increased prevalence of HIV and syphilis, or HIV and LGV (lymphogranuloma venereum), co-infection indicates a significant link between infection and high-risk (unsafe) sexual behaviour.

Until 1984 only those people whose HIV infection had resulted in the development of AIDS were subject to reporting, since until that time there was no test for HIV itself. That year therefore saw a substantial increase in HIV diagnoses (to just over 3,000). The annual number of diagnoses has more than doubled since then (7,450 in 2005), though that number has remained relatively stable since 2003. The number of AIDS-related deaths, however, reached a peak in 1995 and has been in decline since then as the result of the availability of HAART. Since 1998 there have been fewer than 1,000 AIDS diagnoses annually (with most being of people who had been diagnosed HIV positive late in the course of their HIV infection), and even fewer deaths.

These bald figures do not, though, illustrate the way that the HIV epidemic has progressed in different population groups. The increase in diagnoses in the early to mid-1980s was largely among men who have sex with men (MSM), those who needed blood products (such as haemophiliacs), and IDUs. As the rate of diagnoses in these groups stabilised, so the number of heterosexuals testing positive increased. Between 1996 and 2005 there was a 52 per cent increase in new diagnoses among MSM, but an almost 500 per cent increase among heterosexuals, with a greater increase among heterosexual women (partly as a result of routine ante-natal screening). The rise in heterosexual diagnoses generally is largely attributable to the number of heterosexual men and women in the UK who were infected in countries with a high HIV prevalence (primarily sub-Saharan Africa). Of the 1,374 HIV diagnoses of MSM in 2005 where the country of origin of infection was reported, 84 per cent were infected in the UK, whereas among heterosexuals it was 15 per cent. The increase in infections acquired heterosexually outside the UK correlates significantly with the ethnic distribution of HIV. Of heterosexuals living with diagnosed HIV in the UK in 2005, 70 per cent were of black African ethnicity, 18 per cent were white, just under 4 per cent were black Caribbean, and 1.4 per cent were Indian, Pakistani or Bangladeshi. This distribution is in marked contrast to MSM, where 88 per cent were white, 1.3 per cent black African, and less than 1 per cent Indian, Pakistani or Bangladeshi.

Epidemiology and criminal cases involving HIV transmission

The epidemiology of HIV in the UK is thus a complex one. It impacts differently on people depending on their sexuality, their ethnicity, and their gender. It is a virus that does not distinguish between people at the molecular level, but at a socio-economic one. For the purposes of this book, what is particularly significant is that the vast majority of onward transmissions occur as the result of sexual contact between adults. While it would, in theory, be possible to convict women who recklessly transmit HIV to their newborns through breastfeeding, or diagnosed IDUs who allow others to share their needles, there have been no cases in the UK on these facts. Instead, and to this extent at least the cases that have been brought so far reflect the epidemiology, prosecutors have focused on those who have consciously taken unjustified risks (as the law views these) in the context of lawful consensual sex.⁶ There is, however, a marked negative correlation between HIV epidemiology in the UK and the gender, sexuality and ethnicity of the defendants in cases involving HIV transmission (James, Azad and Weait, 2007). Thus, whereas 45 per cent of HIV positive diagnoses to March 2007 were among MSM, only 2 of the 14 cases to date (less than 20 per cent) have involved same-sex transmission (contrasted with 40 per cent heterosexually caused diagnoses and over 80 per cent of the cases). Similarly, whereas approximately one-third of those accessing HIV care in the UK are heterosexual men, 10 out of the 14 cases concern men in this group. Lastly, whereas less than 20 per cent of heterosexuals accessing HIV care in the UK are white, this group constitutes the majority of heterosexual defendants. There are too few cases in the UK to be able to engage in anything other than conjecture about the possible significance of these differences. As for the sexuality of defendants, it is possible that gay men (to now at least) have, in general, been more willing to treat HIV infection as a matter of shared responsibility than, say heterosexual women, and thus less willing to go to the police if they discover that they have been infected. Alternatively, it is possible that more gay men who discover that they are HIV positive are unable, as the result of multiple sexual partners, to be sure about the identity of the person who transmitted the virus to them. As for ethnicity, it was initially of concern to some that the first three defendants in England were of black African origin, but now the proportion of those from minority ethnic communities is more representative of the epidemic as a whole. What can be said with some degree of certainty is that, as far as the criminal law is concerned, every HIV positive person who recklessly transmits HIV – irrespective of the ways in which their cultural or ethnic heritage, their gender, or their sexual orientation may have affected their subjective understanding of responsibility or their ability to negotiate safer sex – is fair game.⁷

HIV/AIDS, human rights and criminal law

Having provided some epidemiological context, it is now appropriate to consider the more immediate legal background against which the cases have taken place. The mid-1990s was a critically im...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• Acknowledgements
• Table of Cases
• Chapter 1: The Terrain: The State, Criminal Justice and HIV
• Chapter 2: The Trial of Feston Konzani
• Chapter 3: Harm, Causation and HIV Infection
• Chapter 4: Risk, Recklessness and HIV
• Chapter 5: Consent, Knowledge and Disclosure
• Chapter 6: Responsibility, HIV Transmission and the Criminal Law
• References