The case against criminalization of HIV transmission
Posted by Henry Bauer on 2008/09/23
That’s the title of a “Commentary” in JAMA, 300 (2008) 578-81, by Scott Burris, JD (affiliated with a Center for Law and the Public’s Health) and Edwin Cameron, MA (Supreme Court of Appeals in South Africa, and author of Witness to AIDS). It reminded me of a fierce argument I had long ago: we agreed on what a particular policy should be, but we were at complete odds over WHY! (It was about 1957, and we were agreed that tests of nuclear weapons should be halted. I argued on empirical, practical, utilitarian grounds. John Bochel, a socialist Scot from Nairn, argued on ideological and moralistic grounds. My disagreement with Cameron & Burris reflects a similar division.)
HIV transmission should not be criminalized, in my view, because it’s never been shown that HIV exists; nor that, if it exists, it can be transmitted; nor that, if it exists and can be transmitted, that it’s harmful.
Cameron & Burris, however, accept that HIV causes AIDS and is transmissible, yet they insist that “Evidence and experience compel the conclusion that criminalization of HIV is inconsistent with good public health and respect for human rights”; they oppose criminalization for reasons of “empirical evidence, practical experience, and positive values” — which, however, they fail to specify: What evidence? What experience? What “positive” values? Who judges whether a value is “positive” or not?
Burris & Cameron deplore, as do I, that “criminalization has become a facet of policy throughout the world” including, in 9 countries that legislate against “’transmission of HIV virus through any means by a person with full knowledge of his/her HIV/ AIDS status to another person’ regardless of whether the actor had any intention to do harm”. They cite cases that I also deplore: “that a person unaware of his infection but aware that a past partner had HIV was properly convicted of negligent transmission of HIV for having unprotected sex with a later partner”; “statutes . . . directed against individuals who expose others by sharing syringes”; “a 2008 case in which the HIV-positive defendant received 35 years in prison for spitting at a police officer”.
Cameron & Burris object to people being treated as criminals for “conduct that seems normal to many —ie [sic], sex without protection despite the presence of risk”; I ask, does that really seem normal to many people? “Every day, millions of individuals have unprotected sex with partners they must assume might be infected”; I ask, why MUST they assume so? How do Burris & Cameron know it’s millions every day?
This type of special pleading also pervades Cameron’s Witness to AIDS. It’s easy to understand Cameron’s fraught frame of mind and to sympathize with his dilemmas, but still it’s inappropriate for a jurist to argue so illogically. He and Burris argue that there should be no penalties if there is no “intention to harm”; would they make the same argument against convicting people of manslaughter when they accidentally, without intent, kill someone?
“Conduct that seems normal to many” certainly includes having “just one or two drinks” before driving. Should there be no penalties for driving under the influence? I don’t know whether it’s “millions” “every day”, but surely a lot of people drive while using pain medications and anti-allergy medications whose directions warn against driving, so they “must” assume that there’s a certain risk attached, not to speak of those who drive under the influence of marijuana or alcohol. There are enough of the latter among prominent individuals, “a tip of the iceberg”, that we may be sure that the numbers cannot be small, since it’s unlikely that every instance is found out and publicized.
Perhaps the most surprising is that.
That “there is after more than 25 years no credible evidence that HIV criminalization protects individuals or society” is perhaps the strangest point offered in this farrago of special pleadings from scholar-practitioners of the law. Where is the credible evidence that there’s less burglary, assault, murder, or any other crime because of any particular criminal statute? Arguments have raged for decades, if not centuries, over whether the death penalty deters the actions for which that penalty is prescribed. In recent times in developed countries,. the chief justification for criminalizing anything is for the purpose of deterrence, since we have abandoned the notion that we should exact vengeance or that a God has commanded us to chop off hands for burglary, say. We “punish” — or usually claim to — not for the sake of punishing but so that others might be deterred.
Let me repeat, I agree that there should be no criminal penalties for transmitting HIV, or for having sex with someone while HIV-positive, or for sharing a needle with someone while HIV-positive. I do so because HIV can’t be transmitted, and “HIV-positive” is a measure and not a cause, it’s like a fever and not an indication of pathogenic infection.
But if I agreed with Cameron that HIV causes AIDS, and that this meant either death or lifelong medication with substances whose “side” effects are anything but pleasant, then I would be all in favor of criminal statutes against people who expose others to a risk of “catching” HIV, just as I concur with statutes against driving under the influence, burglary, assault, and anything else that causes harm to “individuals or society”.
HIV/AIDS beliefs have nurtured a host of absurdities. The labored, self-deceptive sophistries of Burris and Cameron furnish a truly sad example of the intellectual contortions that are made necessary by dogmatic belief in something that isn’t so.