Leading HIV Researchers Call for End to HIV Criminalization

AMSTERDAM, Netherlands — In no uncertain terms, leading HIV researchers worldwide have declared that HIV criminalization laws are misguided, ineffective and unwarranted and called for them to end.

In an emotional press conference at the 2018 International AIDS Conference, leading HIV researchers and public health officials presented a general consensus statement, “Expert consensus statement on the science of HIV in the context of criminal law,” prompted by “concern that criminal law is sometimes applied in a manner inconsistent with contemporary medical and scientific evidence: including overstating both the risk of HIV transmission and also the potential for harm to a person’s health and wellbeing.”

Linda-Gail Bekker, President of the International AIDS Society, opened the conference by pointing out that at least 68 countries have HIV-specific statutes that criminalize either non-disclosure, exposure or transmission while 33 more have applied non-HIV-specific statutes to penalize people living with HIV.

Bekker said that after researchers reviewed given rationale for HIV criminal laws from all perspectives, “The clear conclusion is that these laws are ineffective and unwarranted.”

“Rather than reducing HIV infection or protecting anyone, these ill-conceived laws most likely make the epidemic worse by perpetuating HIV stigma and driving people living with HIV and at risk of HIV infection away from HIV services and indeed into hiding,” Bekker said.

Bekker was joined on the panel by Peter Godfery-Faussett, senior science adviser at UNAIDS and corresponding author on the statement, president and chief executive officer of the International Association of Providers of AIDS Care Jose Zuniga, HIV Justice Network global coordinator Edwin Bernard and president of the Women’s Lawyers Association of Malawi Sarai-Chisala Tempelhoff. At the end of the panel was an empty seat for Kerry Thomas of the HIV criminalization justice organization Sero Project. Thomas is currently incarcerated in Idaho for having sex while living with HIV. He is serving two consecutive 15 year sentences despite having an undetectable viral load and using a condom when he had sex.

Bekker said that the empty chair also “represents the loss to all of us that HIV criminalization laws create, a loss felt most severely by those people who have been arrested and incarcerated because of these regressive laws.”

Godfery-Faussett began the panel phase of the conference by saying that this document was created to help courts understand the progress made in HIV science since these laws were first enacted. He made reference to the newly-released PARTNER2 study, which affirmed that having an undetectable viral load means someone cannot transmit the virus and also said he hoped that this statement would lead to fewer convictions on the basis of HIV transmission or disclosure.

Zuniga stressed that people living with HIV take steps every day to prevent transmission of the virus, including getting into medical care and taking their antiretroviral medication. He said that courts must be willing to learn what science already knows.

“Action is required now to ensure that the criminal justice system understands the science of HIV in 2018,” Zuniga said.

Bernard pointed out that the majority of reported cases of HIV criminalization happened in the United States, Belarus, Russia, Ukraine, Canada, and Zimbabwe. In the United States, he added, most cases were in Florida, Ohio, and Tennessee.

“Criminal law is supposed to be based on rationality, yet our analysis of the data shows that these laws are unscientific and unjust and the vast majority of prosecutions are driven by stigma, not science,” Bernard said. “Science alone is not sufficient to end HIV criminalization. The criminal justice system and lawmakers must also consider the impact of prosecutions on the human rights of people living with HIV as well as public health advocates to end the HIV epidemic.”

Tempelhoff spoke about the criminalization of women and girls in her native Malawi, especially women who have been criminalized for an act of breastfeeding a child.

“We now have a tool to resist the overly broad and unjust criminalization of HIV,” Tempelhoff said.

After a brief Q&A and a video detailing his story, Thomas called in from a prison in Idaho, where he was not allowed to use the phone until 7:00 a.m. Thomas pointed out that in his own case, the courts never looked at medical evidence about being undetectable and chose not to speak with his doctor.

“In Idaho, the medical facts of the case were not taken into account. They were ignored,” Thomas said. Thomas said that though he was undetectable and used a condom, the court only cared about his disclosure. “Had the science of HIV transmission had been taken into account at that time, it’s reasonable to conclude that I would not be serving a 30-year sentence.”

The full statement is available at the Journal of the International AIDS Society.