Who is a "Criminal?" Exclusion of Vulnerable Groups from International AIDS Conference Nothing to Celebrate

@RHRealityCheck

As the International AIDS Conference ended in Washington D.C. last week, rumor has it that the lead organizer invited participants to celebrate the fact that “criminals” had been kept out of the conference. This with reference to the fact that sex workers and those convicted for drug crimes were prevented by current law from obtaining visas for the gathering.

Setting aside for a moment the insanity of excluding the voices of two groups very much affected by the HIV epidemic in general and by misdirected prevention policies in particular, and regardless of whether the rumors are true, we can use this opportunity to reflect on the definition, use, and potentially manipulative power of criminal laws and policies.

For starters, our concept of what is criminal is relative and fluid at best. When I did research on access to abortion for rape victims in Mexico in 2006 and 2007, I was shocked to learn that child victims of incest were considered criminals in many jurisdictions. Meanwhile, rapists could escape the label by marrying their victim, a relatively common provision in several other countries too, including Cameroon and Brazil. This notion of incest victims as criminals and rapists as... not criminals, illustrates the fluidity of the concept.

Sex workers too are not always breaking the law. In some jurisdictions, such as Canada until very recently, sex workers can avoid criminal sanctions by doing only out-calls or by working alone—conditions that tend to render their work more dangerous. In other jurisdictions, such as for example Nevada and New Zealand, sex work is generally legal, subject to regulation.

Punitive measures attached to drug use also depend on the jurisdiction, down to quite substantial differences on what constitutes an illegal substance in the first place. Considering the uncontested and severe health consequences of tobacco and alcohol overuse, it is amazing that these drugs are in legal circulation in the United States while other drugs with equal or lesser negative health implications are not. Moreover, there is now an overwhelming consensus that drug addiction is an illness rather than a malicious choice, and that treating it as an illness renders better (and cheaper) results than treating it as a crime.

But even if we believe existing criminal provisions in whichever jurisdiction we live in are just, the use of the criminal law to target specific populations for punishment should cause pause.

In the United States, Michelle Alexander has documented the highly selective application of the criminal law, in particular as it relates to drug-related infractions. For example, while whites and blacks use drugs at similar rates (and whites are slightly more likely to deal illegal drugs), blacks are overwhelmingly more likely to be targeted for arrest, prosecution, and punishment. Likewise, ambiguous criminal law provisions on sex work in Louisiana up until very recently allowed the police to apply the provisions with the most severe punishments to trans sex workers of color.

Such police discretion in the use of criminal law—even if one agrees with the provisions as they stand—converts the penal code into a very effective tool for repression and discrimination.

In fact, those who believe in the fairness of existing criminal laws should be particularly worried about the selective application of them. If you think that everyone who smokes pot belongs in jail (and that the threat of jail sentences is a good way to bring down pot use), shouldn't you be worried that individuals who are neither resource-poor nor of color hardly ever are punished (and therefore will not benefit from the dissuasive powers of the law)?

More to the point, the selective implementation of criminal sanctions creates the illusion that white, upper-middle class people can't be violent repeat offenders, something the exposure of Dominique Strauss-Kahn’s sexually aggressive nature—whether considered criminal or not—should by now have been dis-proven.

In other words, the definition of criminal offenses, the selective implementation of the law, and the resulting stereotypes generate a self-enforcing loop of discrimination and exclusion to the detriment of all. The exclusion of so many legitimate voices from this year’s AIDS conference is just one example. The incarceration of 10 percent of the adult black population in the United States is another.

“Criminal” is not an objective term, and the application of criminal sanctions has consequences that go way beyond jail sentences or fines. Policy makers would do well to remember that when they seek to devise solutions to the many human rights violations suffered by sex workers, injection drug users, and others vilified by the law.

Is Criminalization of HIV Transmission Effective? Swedish Case Reveals Why the Answer is No

@RHRealityCheck

Earlier this month, a 31-year-old woman in Sweden was sentenced to one and a half years in prison for having unprotected sex without disclosing to her partner beforehand that she is living with HIV.

Even a perfunctory news search reveals that this is not the first time the Swedish justice system has applied criminal sanctions to potential HIV-transmission. In January, a 20-year-old man was sentenced to eight months in prison for having unprotected sex without disclosing his status. In December 2006, a 34-year-old woman got two months, and in January 2003, a 32-year-old woman one year. All of these sentences also required the person living with HIV to pay monetary damages to their former sex-partners.

For anyone who cares about human rights from a health and discrimination angle, these cases raise multiple red flags.

For starters, consensual sex between consenting adults should, in principle, never be subject to government control or regulation. Moreover, the criminalization of HIV transmission has multiple negative outcomes. It leads to distrust in the health and justice systems; it can discourage people from seeking to know their HIV status; it adds to the stigmatization of those living with HIV; and it is ineffective in bringing down HIV transmission.

In fact, UNAIDS (the Joint UN Programme on HIV/AIDS) recommends that governments limit criminal sanctions for HIV transmission to cases where all of three conditions are met: the person charged 1) knows he or she is living with HIV; 2) acts with the intention of transmitting the virus; and 3) actually transmits it. UNAIDS also recommends that cases of such intentional HIV-transmission should be tried under generic criminal provisions for bodily harm or assault, and not under HIV-specific provisions.

Public health and human rights activists are clear on this. That is why the Swedish Embassy in France was defiled with paint-filled condoms in protest against the 2003 ruling. And that is also why my own reaction to the ruling was to declare it “bad” over twitter, a statement that was re-tweeted several times.

A closer read of the cases highlighted in the Swedish media, however, leads me to reconsider, at least in part. 

If the media-accounts are accurate, the Swedish government has, in fact, partially followed UNAIDS recommendations. The convicted individuals all knew their HIV status and the cases were brought under general criminal law provisions on grave assault, physical abuse, and attempt to cause physical harm. So far so good.

The two remaining questions — intent and actual transmission — are more difficult to gauge.

Consider this.  

In most of the cases, the convicted person either has multiple convictions over several years for the same thing, or the conviction is based on multiple unprotected sexual interactions with different partners without disclosure. It is perhaps valid for prosecutors to ask if, absent proof of intent which is hard to produce, the fact that an individual living with HIV repeatedly and knowingly exposes someone else to a deadly virus shouldn’t count for something.

Further, actual HIV transmission may not be the only harm caused. The 20-year-old convicted man was charged with having unprotected sex with eight women, none of whom ultimately ended up HIV-positive, though they all claimed to have suffered severe emotional trauma as a result of the experience. In cases of domestic violence we often ask prosecutors to consider emotional distress as real harm, so why require actual transmission in order to prove harm in this case?

Then again, consider this.

The 20-year-old man was born HIV-positive and is being charged as an adult also for those unprotected sexual encounters that occurred when he was a teenager. He was initially placed in solitary confinement, seemingly because of his HIV status.

Also, one of the convicted women alleged she had been raped.  The male partner produced evidence to the contrary and she later withdrew the allegation. Nevertheless, coercion and fear is highly relevant when it comes to decisions about how and when to disclose HIV status. Research indicates that many women in fact are reluctant to disclose their HIV status because they quite legitimately fear abuse.

And with regard to actual harm caused, it is at least possible that the ramped-up attention to the cases have contributed in some part to the severity of the emotional distress of the sex partners.

It is, of course, reckless to knowingly expose anyone to real danger, also through potential HIV-transmission, even if the danger ultimately does not materialize. This is a notion the UNAIDS recommendations to a large extent fail to acknowledge.

But the highly publicized use of the criminal law in Sweden to punish those living with HIV for being timid about their health status does not make it easier for anyone to disclose. So perhaps the real question with regard to any government’s approach to HIV transmission should not be whether it follows UNAIDS recommendations, but rather if it is effective.  An educated guess says, not so much.