Doug PollardCriminalising HIV/AIDS
November 18th 2008 20:24
Justice Michael Kirby gave the 2008 Burnet Institute Oration Monday
Monday night I had the privilege of meeting Justice Michael Kirby, and hearing him speak at the Burnet Institute on the nexus between human rights and combating HIV/AIDS.
He’s worried about the rising tendency around the world for governments to use the criminal law to try to combat the spread of HIV/AIDS, and indeed is working with the UN and WHO on the issue.
Justice Kirby argues that the unique nature of the HIV epidemic – the modes of transmission, the lack of a cure or vaccine – means it has to be handled like no other epidemic. It cannot be handled just by medical means. Human rights are also an essential part of an effective response.
The argument goes something like this - and I should say these are my words, not Justice Kirbys.
Those most at risk from HIV are sex workers, men who have sex with men, and injecting drug users. Where those activities are illegal, people are reluctant to seek treatment or information on how to protect themselves, because that could identify them as ‘criminals’ and they could end up in jail. That makes controlling the spread of HIV more difficult.
For example, in the US, the ‘war on drugs’ has made it politically impossible to legalise needle exchange programs and safe injecting rooms. Hopefully, with the election of the new president, the US will come to its senses on this. As a result injecting drug users are one of the main transmission routes for HIV.
Where needle exchanges are possible, as in Australia, the numbers are tiny. In short, respecting human rights is essential in an effective response to HIV.
It’s also pretty stupid to put HIV infected people into jails, especially if you’re not going to provide safe-sex information, condoms and clean needles in there. That just turns them into HIV transmission factories.
At first sight, prosecuting people who infect others with the virus might sound attractive, but using the criminal law is problematic, to say the least. In some African countries, where a large percentage of the population is infected, it’s clearly unworkable. You can’t lock up half a country. The economy couldn’t stand the cost. The temptation – especially for an autocratic regime – could be to make it a capital offence. Bullets are way cheaper than jail cells.
What makes it worse is that the police and judiciary may be corrupt. People who think they might be jailed or shot if the authorities knew they were HIV positive are not going to disclose their status readily – even (or perhaps especially) to government health agencies set up to provide treatment. Nor are people going to seek out prevention advice, if this might bring them under suspicion.
Then there’s the question of how you define the ‘crime’. Do you make it illegal to knowingly pass on the virus, or to intentionally pass on the virus?
If it’s knowingly, then potentially any HIV positive person could be arrested for having unprotected sex with an uninfected partner. It could be tricky to prove you didn’t know you were infected: it could be argued, for example, that given your mode of life, you ought to have known you could be infected.
If it’s intentionally, then it’s similar to assault, with the virus as your weapon, but then there are problems proving – or disproving – intent.
Not to mention the near-impossibility, even in well-run and sophisticated countries, of proving scientifically that a particular sex act led to sero-conversion. That means identifying the specific strain of HIV involved and then showing it could only have been passed on from x to y during sex-act z. It's so difficult, in fact, that charges here in Australia have been dropped because proof was impossible to obtain.
But – horror scenarios in autocratic countries aside - if you don’t have criminal sanctions available as a last resort, how do you deal with someone who is determined to spread the virus? As recent cases have shown, there are some people who ignore medical attempts at behaviour modification and control. At what point do you decide that their human rights are less important than those of the people being infected without their knowledge?
Under Victorian public health law, that decision is made by doctors. You can be quarantined indefinitely – effectively imprisoned – if you’re deemed to be a danger to others. But should we really be giving doctors, rather than the law, the power of indefinite detention?
Although I don’t doubt the integrity of Australian doctors, it seems to me that to have your fate decided in secret by a committee of health experts is not acceptable in a democratic society. Recent cases, where the doctors dithered for far too long before involving the police, indicate they they’re uncomfortable with the judge/jury/jailer role, too.
There are no easy answers. Wholesale criminalisation is counter-productive, yet we must retain criminal sanctions as a last resort. I wish Justice Kirby well in his discussions at the UN and the WHO - but I don't envy him.
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