A new report by the Global Network of People living with HIV/AIDS Europe (GNP+ Europe) and Terrence Higgins Trust highlights the widespread criminalisation of HIV transmission across Europe and calls for an informed and measured approach based on public health and human rights.
The UNAIDS funded report, Criminalisation of HIV transmission in Europe, comes at a critical time, amid media hype surrounding HIV transmission cases in the UK, the Netherlands, Sweden and Finland.
The report identifies and analyses the laws used in relation to HIV transmission and maps prosecution within signatory States of the European Convention of Human Rights. It also discusses the value and appropriateness of the use of criminal law and other punitive measures in the response to the epidemic.
Until recently the majority opinion seemed to be that criminal law should only be used in the context of HIV as a last resort, for example in cases of rape or wilful deception.
Many different types of law are used to prosecute transmission of HIV, including HIV-specific laws and general criminal law provisions. Some laws require intent, some do not. Some laws criminalise only actual transmission, while others criminalise the risk of transmission. Furthermore, some laws include “reckless” as well as “negligent” behaviour in addition to “intentional” behaviour in their legal provisions.
Though data on the background of people prosecuted was hard to find, it appears that a substantial number are from marginalised groups, in particular migrants. Men appear more likely to be prosecuted than women and there have been no traceable convictions for transmission from mother to baby.
The study not only aims to highlight trends, but also to help governments, non-governmental organisations and people living with HIV and AIDS to examine the compatibility and conformity of these laws with human rights principles and obligations.
According to Julian V Hows, on behalf of GNP+ Europe: “The unenlightened, stigmatising and discriminatory public policy and practice displayed by some of the states who are signatories to the European Convention on Human Rights show that we, as HIV+ people, have a long way to travel to be treated with equity and fairness.”
“We ask governments and others to work in partnership with HIV+ people to re-examine the need and usefulness of such laws.”
Lisa Power, Head of Policy at Terrence Higgins Trust adds: “Lawmakers should take an informed approach based on human rights and public health if they wish to bring the law to bear on HIV transmission.”
“Criminalising consensual sexual acts will discourage people with HIV from seeking help in maintaining safer sex and drive such behaviour underground. Positive support to maintain safer sex is a basic part of preventing onward transmission.”
The study is intended to be a living document and its authors are keen that organisations and individuals across Europe continue to contribute to it to keep it up-to-date with legislation changes.