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Prevent and treat HIV, don't criminalize it

In Dallas, a 42-year-old homeless man was arrested for "harassing a public servant with a deadly weapon" - a fancy way of saying he spit on a cop. Because Willie Campbell was HIV-positive, he was jailed for 35 years, even though there has never been a documented case of the AIDS virus being transmitted by saliva.

In Zimbabwe, an infected woman was arrested for having unprotected sex with her lover.

The woman was convicted of "deliberately infecting another person," even though the man was not infected and did not want to press charges. She was sentenced to five years in prison.

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In Windsor, Ont., Carl Leone was sentenced to 18 years in prison after being convicted of 15 counts of aggravated sexual assault. The 32-year-old did not tell his sexual partners he was infected with HIV. Five of the women contracted the virus. Around the world, women and men infected with HIV are increasingly being prosecuted.

Mr. Justice Edwin Cameron of the Supreme Court of Appeal of South Africa told delegates to the International AIDS Conference last week that the growing criminalization of HIV-AIDS is a travesty that risks undermining progress and fuelling the epidemic.

"HIV is a virus, not a crime," he said.

Judge Cameron, who is HIV-positive himself, said there are instances in which criminal prosecutions are appropriate, such as rape and when an infected person deliberately and knowingly spreads the virus, as in the case of Mr. Leone in Canada. But those crimes are covered by existing legislation.

Judge Cameron said what is troublesome in a world where 33 million are infected with HIV is the creation of special laws relating to HIV transmission and exposure.

In Egypt, for example, being infected with the AIDS virus is a crime, regardless of behaviour.

In Sierra Leone, "HIV transmission" is now a crime and the law applies to anyone who exposes another to the virus, even without transmission. The law expressly applies to pregnant women, meaning an HIV-positive woman can be jailed for being pregnant or breastfeeding, even though there are effective measures for preventing transmission.

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Judge Cameron said HIV is a fearsome virus, but the response is largely irrational and counterproductive. He listed 10 reasons criminal laws make for bad health policy:

1) Criminalization is ineffective: There is no proof it stops the spread of HIV.

2) Criminal laws and prosecutions are a poor substitute for measures that really protect those at risk.

3) Criminalization victimizes, oppresses and endangers women. Worldwide, the vast majority of those who know they are infected are women, because of policies of testing them before the birth of a child.

4) Criminal laws and prosecutions are often unfairly and selectively applied. Those who end up being prosecuted are sex workers, men who have sex with men, intravenous drug users and, in Western countries, immigrants.

5) Criminalization places the blame on one person in a sexual relationship instead of responsibility on two people. In much of the world, women are in a subordinate position and cannot protect themselves.

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6) Criminal laws targeting HIV are difficult and degrading to apply. Should consensual sex be subject to cross-examination? (Rape and the deliberate attempt to infect are different issues entirely.)

7) Many of the laws are poorly drafted and they would not pass muster in democratic states.

8) Criminalization increases stigma.

9) Criminalization is a strong disincentive to testing. And if a person is not tested, he or she will not be treated.

10) Criminalization assumes the worst about those with HIV and punishes vulnerability.

Put simply, Judge Cameron said, "Criminalization is a poor tool for controlling HIV-AIDS. There is no public health rationale whatsoever for invoking criminal law sanctions against those who unintentionally transmit HIV or expose others to it."

It is also well established that countries that respect human rights and civil liberties, and encourage the undiagnosed to be tested for HIV, do a far better job of containing the epidemic than those adopting punitive, moralistic strategies.

The epidemic of HIV-AIDS is now in its third generation, and is likely to be with us for several more generations.

Prevention and treatment are the main tools available to fight this plague, with a dollop of human rights on the side. The world will never be able to prosecute away this massive public health challenge.


HIV-AIDS in the courts

In the past two decades, 46 people have faced criminal charges in Canada for transmitting HIV-AIDS. Here is a sample of recent cases:

Tendai Mazambani was sentenced last month to seven years in prison on eight counts of aggravated sexual assault for failing to tell his sexual partners he was infected with HIV. None were infected.

Suwalee Lamkhong was sentenced last summer to two years in prison after being convicted of aggravated assault and criminal negligence for failing to tell her husband she was HIV-positive. Her husband was infected.

Carl Leone was sentenced in April to 18 years in prison after being convicted of 15 counts of aggravated sexual assault. He failed to tell his sexual partners he was HIV-positive, even when asked explicitly. Five women were infected.

Trevis Smith, a former football star with the Saskatchewan Roughriders, was sentenced last year to 5½ years on two counts of aggravated sexual assault. He had unprotected sex with two women without telling them he was HIV-positive; neither was infected.

Vincent Walkem was sentenced last year to four years and eight months in prison on two counts of aggravated sexual assault endangering life. He infected two women with the AIDS virus.


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