XVII International AIDS Conference Plenary: 8 August 2008 Mexico City HIV is a virus, not a crime: Criminal statutes and criminal prosecutions Edwin Cameron Supreme Court of Appeal South Africa with Scott Burris Temple University Beasley School of Law, Philadelphia, USA, & Michaela Clayton AIDS and Rights Alliance of Southern Africa, Windhoek, Namibia

Introduction 1. Why this is one of the most serious issues in the epidemic at the moment 2. Troubling facts and inferences 3. A resolve today to practical action

Texas, USA

Texas – May 2008 Homeless man convicted of committing a serious offence while being arrested for drunk and disorderly conduct: ‘harassing a public servant with a deadly weapon’ Because of his past encounters with the law, he ended up being sentenced to 35 years in jail He must serve at least half before he can apply for parole

Texas – May 2008 The man had HIV The ‘deadly weapon’ was his saliva He was jailed because he spat at the officers arresting him After sentencing, Officer Waller is reported to have said he was ‘elated’ with the jury's verdict: ‘I know it sounds cliché[d], but this is why you lock someone up … Without him out there, our streets are a safer place.’

Quick Facts 1. Saliva ‘has never been shown to result in transmission of HIV’ (CDC) The ‘deadly weapon’ the man was accused of wielding was a toy pistol – and it wasn’t even loaded Ratcheting up the criminal law because the man had HIV was thus inappropriate and unscientific 2. Length of sentence: 35 years. Whatever past conduct, how could someone who has not injured anyone or damaged property be locked away so long? HIV status played a probably pivotal part in sending him away for so long The man was punished not for what he did, but for the virus he carried

Bulawayo, Zimbabwe

Bulawayo A 26 year old woman from Bulawayo arrested for unprotected sex with her lover She was living with HIV She was convicted of ‘deliberately infecting another person’

Bulawayo Her lover tested negative She was on ARV therapy Before sentencing her, the court tried to get a further HIV test from the lover even though reportedly he didn’t want to proceed with the charges She was eventually sentenced to a suspended term of 5 years’ imprisonment Swiss HIV clinicians’ consensus statement (2008): ‘individuals with HIV on effective antiretroviral therapy and without sexually transmitted infections are sexually non- infectious’

Zimbabwe Criminal Law Act 23 of 2004 Section 79 doesn't make it a crime merely to infect another It is a crime for anyone who realises ‘that there is a real risk or possibility’ that she might have HIV, to do ‘anything’ that she ‘realises involves a real risk or possibility of infecting another person with HIV’ This is called ‘deliberate transmission of HIV’, even if you do not transmit HIV You can commit the crime even if you do not have HIV – you merely have to realise ‘that there is a real risk or possibility’ that you have HIV – and then do ‘anything’ that involves ‘a real risk or possibility of infecting another person’

Zimbabwe Criminal Law Act 23 of 2004 Offers a defence when a person really does has HIV: If the other person knew this, and consented, then the accused is exempt But this can not apply where the accused does not in fact have HIV, or does not know that she has HIV – by definition, she cannot then engage the informed consent defence by telling her partner she has HIV! This law creates a crime not of effect and consequence, but of fear and possibility.

Zimbabwe Criminal Law Act 23 of 2004 Is wide enough to cover a pregnant woman who knows she has, or fears she may, have HIV If she does ‘anything’ that involves a possibility of infecting another person – giving birth, or breast-feeding her newborn baby – the law could make her guilty of ‘deliberate transmission’ – even if her baby is not infected In all cases, the punishment is up to twenty years in prison

Sierra Leone

Sierra Leone HIV/AIDS Act 2007 Offence of ‘HIV transmission’, though this covers exposure to HIV, even without transmission A person with HIV who is aware of this must ‘take all reasonable measures and precautions to prevent the transmission of HIV to others’ Expressly applies to a pregnant woman It requires her to take reasonable measures to prevent transmitting HIV to her foetus This law will make it more difficult for mothers to take reasonable measures to protect their babies

Sierra Leone HIV/AIDS Act A person with HIV who is aware of it must not knowingly or recklessly place another at risk of becoming infected with HIV, unless that person knew of the fact and voluntarily accepted the risk Also covers pregnant mothers The provision criminalises not only actual transmission of HIV from mother to child – but makes a criminal of any pregnant woman who knows she has HIV but does not take reasonable measures to prevent transmission to her baby

Other Examples Egypt: men arrested merely for having HIV: -under law against the ‘habitual practice of debauchery [fujur]’ Singapore: a man with HIV sentenced to prison for exposing sexual partner to HIV – even though the risk (he fellated) was minimal Bermuda: a man with HIV who had unprotected sex with his girlfriend sentenced to ten years’ in jail, even though he did not infect her Switzerland: a man convicted of negligently transmitting HIV when he knew that a past partner had HIV – even though he believed that he himself did not have HIV

World-wide: 1. Law-makers are creating special crimes of HIV transmission or exposure at least a dozen African countries have already adopted laws similar to Sierra Leone law Many countries have done so with help of an American- funded organisation 2. Courts and prosecutors are targeting men and women with HIV for special prosecution These laws and prosecutions are creating a crisis in HIV management and prevention efforts

Why criminalise HIV? HIV is a fearsome virus – its effects are potentially deadly Public officials invoke any effective means to counter – including criminal statutes and prosecutions In the abstract, and away from social reality, a certain justice in punishing those who negligently, recklessly or deliberately pass on the virus – even against those whose actions create only the risk of doing so

Why criminalise? African lawmakers and policy-makers look for strong remedies Many African countries face a massive epidemic with agonising social and economic costs Women experience the heaviest burden of AIDS

10 reasons why criminal laws and prosecutions make bad policy in the AIDS epidemic

10 Reasons 1. Criminalisation is ineffective 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 1. Criminalisation is ineffective 2. Criminal laws and criminal prosecutions are a poor substitute for measures that really protect those at risk 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 1. Criminalisation is ineffective 2. Criminal laws and criminal prosecutions are a poor substitute for measures that really protect those at risk 3. Criminalisation victimises, oppresses and endangers women 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 1. Criminalisation is ineffective 2. Criminal laws and criminal prosecutions are a poor substitute for measures that really protect those at risk 3. Criminalisation victimises, oppresses and endangers women 4. Criminal laws and prosecutions are often unfairly and selectively applied 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 1. Criminalisation is ineffective 2. Criminal laws and criminal prosecutions are a poor substitute for measures that really protect those at risk 3. Criminalisation victimises, oppresses and endangers women 4. Criminal laws are often unfairly and selectively enforced 5. Criminalisation places blame on one person instead of responsibility on two 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 6. Criminal laws targeting HIV are difficult and degrading to apply 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 6. Criminal laws targeting HIV are difficult and degrading to apply 7. Many of the laws are extremely poorly drafted 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 6. Criminal laws targeting HIV are difficult and degrading to apply 7. Many of the laws are extremely poorly drafted 8. Criminalisation increases stigma 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 6. Criminal laws targeting HIV are difficult and degrading to apply 7. Many of the laws are extremely poorly drafted 8. Criminalisation increases stigma 9. Criminalisation is a strong disincentive to testing 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

10 Reasons 6. Criminal laws targeting HIV are difficult and degrading to apply 7. Many of the laws are extremely poorly drafted 8. Criminalisation increases stigma 9. Criminalisation is a strong disincentive to testing 10. Criminalisation assumes the worst about people with HIV, and so punishes vulnerability 10 reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.

Human Rights Justice Michael Kirby: countries with human rights laws that encourage the undiagnosed to test for HIV do much better at containing the epidemic than those adopting ‘punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction’ The prevention of HIV is not just a technical challenge for public health It is a challenge to all humanity to create a world in which behaving safely is truly feasible and safe for both sexual partners

Human Rights When condoms are available, when women have the power to use them, when those with HIV or at risk of it can get testing and treatment, when they are not afraid of stigma, ostracism and discrimination, they are far more likely to be able to act consistently for their own safety and that of others The global consensus on human rights and the enabling environment captures this positive vision of HIV prevention As against the punitive and angry and destructive approach of criminalisation, the consensus approach is more important now than ever

A firm and clear message: Criminalisation is a poor tool for regulating HIV infection and transmission There is no public health rationale for invoking criminal law sanctions against those who unintentionally transmit HIV or expose others to it The sole rationale for criminalisation is retribution and punishment – but that is a poor public health law aim Criminalisation is warranted only where someone sets out, knowing he has HIV, to infect another, and succeeds.

Let us return strengthened in our resolve to fight AGAINST stigma, against discrimination, and against criminalisation – and to fight FOR justice, good sense, effective prevention measures and for access to treatment Let today be the start of a campaign against criminalisation. Let one of the conference outcomes be a major international push-back against misguided criminal laws and prosecutions. Let us return to our countries, determined to persuade law- makers and prosecuting authorities of the folly and distraction of criminalisation. Conclusion Let us return strengthened in our resolve to fight AGAINST stigma, against discrimination, and against criminalisation – and to fight FOR justice, good sense, effective prevention measures and for access to treatment