HIV/AIDS Skepticism

Pointing to evidence that HIV is not the necessary and sufficient cause of AIDS

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.

12 Responses to “The case against criminalization of HIV transmission”

  1. heja said

    Henry,
    I totally agree with the main gist of your argument. However, even if one could prove that a germ causing immunodeficiency exists, is pathogenic, can be transmitted and detected with some blood tests, that would not yet be enough for me to criminalise it. I accept that human beings may be infectious creatures the same way they may be polluting creatures and that it may be not possible or even not advisable to correct all negative ‘externalities’ with appropriate laws and policies. Someone once said very philosophically that there is something inherently unhuman about “public policies”. This is because very often they sacrifice individuals in the name of public good.

    But in this context, it is interesting that other known or presumed pathogens are not criminalized the same way HIV is. Can you be put in jail for transmitting a deadly bacterium? I have not heard about this. Or, even, can you be charged with passing a ‘flu virus’ (also probably non-existing) to your colleagues at work? Realistically, I do not think so. Yet, the non-proven HIV, surprise surprise, got special treatment: they managed to create so much fear that it was possible to criminalise it. It served the purpose of perpetrating fear in early phases of this scandal. Yet now, there is no question in my mind, the criminalisation stands in the way of the very existence of the flawed paradigm. This is because it makes more difficult to get people to test which is the entry point to the AIDS Inc.. That is why those guys stand up all of a sudden and say “we do not have any solid reason for it but it should be decriminalised”. So you are correct in saying that the non-existent HIV got special treatment in the past in the sense that people were going to jail for allegedly transmitting a non-proven virus. Now they will likely get a special treatment in the process decriminalising transmission of “the most deadly germ in human history”, because this is “the right thing to do”. I would not even be surprised if in a few years time we have laws prohibiting any sort litigation of “HIV positives” because they “should not be discriminated against”, as long as they do not question the flawed paradigm and swallow the toxic drugs…

    Quite depressing!

  2. Henry Bauer said

    Heja:

    You make a better point than Burris & Cameron, by asking whether any other infection is criminalized. But they are caught up in the belief that HIV is special, indeed unique, in being not only fatal but also transmissible only in ways that can supposedly be prevented.

  3. jell said

    Sorry several days after the post but I only read this site every now and then, so maybe nobody will see this comment.

    Anyways I’d like to write a short comment to argue for prosecution even in the event that hiv is as you describe it (not the cause of aids, doesn’t even exist and whatever else, etc.)

    First I would just like to say Heja, re not criminalizing other infectious diseases, people can be forced into quarantine, even recently some people were put in quarantine w/ sars. While this is not the same thing as being criminally prosecuted, as pointed out by Mr Bauer the difference is most likely to do w/ the perception that those w/ hiv can control someone else’s infection. Also if someone w/ sars attempted to escape quarantine I am sure they would be open to prosecution at the least. (Also remember a while back when that guy w/ tuberculosis went on that flight there was a lot of talk over whether he would be prosecuted (which seems to suggest it was a possibility) also the fact that nobody on the flight with him got tuberculosis is most likely the largest reason he wasn’t prosecuted not b/c it was his human right to travel however he pleased w/ tb.

    Now back to hiv… to use the drunk driving analogy again, let’s say I believe that if I drive drunk I absolutely still have control of my vehicle and am driving safe I still cannot make that decision for others on the road with me no matter how much I believe it for myself.

    I think in the case of hiv it should most likely be that if either party asks and the other knowingly lies about their hiv status before proceeding to engage in sex then they should be vulnerable to prosecution. You may believe your hiv status is meaningless to me and my health but I should be able to make that decision for myself especially if I Inquire. (And I think similarly for other std’s where if one party lies the other should be able to sue for damages if they ‘catch’ that std, e.g. doctor fees, loss of income etc)

    Another theoretical example lets say I sell a particular food product (water or soda or whatever) and I believe fluoride or some other additive is completely harmless at 1ppm but I know that some people believe it is harmful so I label my water/soda fluoride at 0.3 ppm (or perhaps some other additive that I think is harmless I label no red# whatever) if I lie I am committing fraud and should be prosecutable regardless of how ‘harmless’ the levels or additives were. In the same way if my sexual partner asks and I lie I think that’s fraud and should be prosecutable. (I realize this makes it difficult along s/he said s/he said but similar difficulties exist in other laws without resulting in the law completely being thrown out).

    Similarly when two corporations or individuals are entering a business agreement if they do not disclose important information the other party can sue for damages or claim negligence.

    About the statement, “sacrificing individuals for the public good” is pretty meaningless because in this case you are really talking about protecting individuals from individuals you just choose which side you call individuals and which you call society …kinda like individual murderers are sacrificed so little human sized pieces of society don’t have to be killed as much right? ..j/k

    I forgot to say I do think the sentences you mentioned (35 years for spitting etc) are way too harsh and that the sentences should have been more in line with (if any) observed damages and that is a much harsher sentence than even e.g. actual manslaughter in many cases. My discussion was on the logic of prosecution or civil lawsuit not on the length/nature of punishment.

    (Oh and thx for your site it’s v interesting and informative)

  4. heja said

    Jell,

    What you wrote convinces me in absolutely no way. You cannot abstract from the substance of the matter!

    You argue “for prosecution even in the event that HIV is as you describe it (not the cause of AIDS, doesn’t even exist and whatever else, etc.)”.

    So how about a situation where someone comes up with some scientific lie on, say, one human race being dangerous for existence of other races and convinces legislators and public opinion that they should ban this race’s existence because it is of “danger to the rest”. Does this remind you of any situation from the past and do you still stand by your otherwise “impeccable” argument?

  5. jell said

    Heja:
    Just to clarify, since you seem to think I argued for exterminating all HIV-positive people, I didn’t argue for prosecuting being HIV-positive, I argued for prosecuting fraud by deceiving a sexual partner of one’s HIV status. Ideally, the HIV-positive person should seek informed consent; but probably only in cases where someone has knowingly lied to the other and then engaged in sex with them, should it be legally prosecuted.

    On to your comment, you are conflating my argument with racism when there was none. Nearly every principle or law can be exaggerated to racism/ridiculousness in the way you have done without that meaning anything about the original law. For example, obviously assault should be illegal (most people would agree), one individual should not be able to assault/strike another. A political power could claim that being in the presence of a certain minority is so horrible to the rest as to constitute assault (they could use some story where some little old lady was walking down the street, saw a young male of a minority race just walking on the other side of the road, got so frightened and had a heart attack or died, and then they could decide to argue and make laws to remove minorities on the pretext their being there is “assault”). The fact that a political power could do this (and has in various different ways) does not mean anything about the actual principle of assault, which obviously should be illegal in its actual original sense.

    And lastly I wanted to comment on your pointing out on how I said “even if HIV doesn’t exist… etc. etc.” A problem with the arguments from both sides (one side that believes HIV=AIDS=death and for prosecution and the other that believes HIV doesn’t = AIDS and is against prosecution) is that the courts/law-makers have to reach the CORRECT determination on it.

    As we all know, that can be very difficult to achieve, my statement was acknowledging that underneath all the debate on HIV there’s a truth (and it’s not both sides are right and wrong at the same time, there is one truth about what HIV is and does). Even saying this side is correct (“it doesn’t exist, etc. etc.”) doesn’t by itself ensure that the legal system will always know the correct side of every scientific question. Even though the law should aim towards the truth and will doubtless be influenced by popular science, it should still be sound by legal principles and usable, even if you can’t guarantee all the science is correct (100% sure, 100% of the time). An informed-consent solution to the problem is the type used in nearly every other similar situation, medicine, business, labeling (or “abstracts from the subject matter” as you called it).

    2 more examples: If a doctor knows “for sure” a certain treatment is the best thing for you, they still cannot just do it to you without consent. There are couples that enjoy to beat each other up, but it is not assault because they have each others’ consent. I don’t think it should be illegal for an HIV-positive to sleep with an HIV-negative, I think it should be illegal to do it without consent by lying. If neither party asks the other’s status, consent can be presumed, but asking and being lied to is a violation of consent in my opinion.

    Also thanks for calling my argument impeccable, even I didn’t say that.. stellar maybe…

  6. heja said

    Jell,

    So, you argue for an informed consent solution to anything a person may ask the other person (e.g. what did you have for breakfast this morning?) and if the asked person lies, this is a basis for prosecution? Or, to take another example, should a public transport bus driver demand my consent over his recent diet at the time I enter the bus he drives? Should I be able to sue him if he ate something bad and caused an accident, without asking a consent from me?

    In other words how do you (or the system) define the boundaries of the informed-consent principle? Do you envisage such boundaries? In fact how does this correspond to other principles such as right to privacy, for example? Where does my privacy stop? Anywhere where the other side of a contract defines? Or are there any limits?

    PS. BTW I am not a lawyer, thank God, and I am not really interested in what is the right verdict in the current (highly imperfect) legal system (this is the approach often taken by jurists and I must say it is really irritating for people who are trying to deal with the substance matter–I know it from my own discipline which is not virology, btw) but how the legal system should be constructed to be as close to the truth (or acknowledge as much about the uncertainty we live in) as possible! Of course, the informed consent principle is very convenient from the lawyers’ point of view (think of all these ‘easy’ but expensive lawsuits) but does not take us any closer to what ‘should be’.

  7. Oscarlena said

    Jell,

    If you demand someone’s disclosure of his or her “HIV”-status for informed consent matters, you obviously believe in the contagiousness of “HIV”.

    It would be ridiculous to prosecute the nondisclosure of my presumed positive migraines-status to my partner before engaging in sex. This also applies for “HIV”, as “HIV” is as contagious as are migraines.

    Of course you are likely to test “HIV”-positive when you decide to believe that “HIV-disease” is a deadly disease, because the belief in a presumably deadly poison could by itself be lethal.

    But should other people really be prosecuted for what you believe?

  8. jell said

    Oscarlena,

    You discussed what I believe, let’s consider the other side for a second. Right now the majority of people “know” that hiv is a deadly sexually contagious virus and a minority “know” it is harmless, noncontagious, maybe doesn’t even exist. The other side will use the exact same argument you just did, “why should people be exposed to and given deadly hiv in sexual contact just because of what some people believe (that hiv doesn’t exist) and btw as we all know both sides claim science proves them to be correct without a doubt.

    Like I mentioned above with both sides basically arguing the same thing (their own scientific certitude) you have to rely on the law makers to always come to the correct scientific decision (even though in this case they would need to side with a minority of the scientific community to do so).

    When there is such a disagreement in the scientific community not only to such a degree but to such potential magnitude (the difference between harmlessness and death) the choice should most likely come down to individuals after honest disclosure. (This is also a very different situation to the one where, as far as I know, none of the scientific community believe migraines are sexually contagious from one person to the next and in the vast majority are not fatal, so the cost of being wrong is also much smaller).

    Now once again I’m saying it may be true that in the end it is proved (and accepted by the vast majority) that hiv was harmless all along, but in the meantime when both sides are arguing that their case is already scientifically proven the law needs to reflect the uncertainty (by in my opinion the use of informed consent as a legal tool). Or else you have basically argued your way back into the prosecution of transmission as it stands now.

    Because by arguing against individuals making their own risk assessments based on honest disclosure, you are saying “follow what is scientifically proven”, and the law makers and the majority of science are saying “yes, and we are, as it has been proven that hiv is the std that causes aids”.

    Heja, not anything a person may ask another, it is obvious that with hiv if you are wrong and the rest of the science community is right then the risks from someone lying about their status before sex are very large (possibly death). The risks are not large nor does it affect the other person if you eat eggs before having sex with them.

    If the driver ate/ingested within the last couple hrs: alcohol, drugs, sleeping pills, peyote etc yeah you would be thankful if he answered honestly so you could get off the bus. (Those are illegal while driving because it is known that they can incapacitate a driver, more disputed things while restricted for public transport drivers are legal for the general driving public). But let’s say you get in a car with your friend and they are talking or txting on a cell phone or you see they are looking drowsy and find out they have been awake for the last 24 hours working on an assignment you should be able to ask them to let you out of the car so you can find alternate transport.

    Obviously feel free to comment back, I find it hard to stop myself from commenting when I disagree with people too, but I will try not to comment back again because this back and forth could go on forever.

  9. jell said

    Sorry I forgot something I also wanted to say.

    Heja you said “should the driver demand consent from you before letting you on the bus” in my earlier comment I argued if neither party inquires about each others status (and nobody volunteers fraudulent information) consent can be presumed. For example it is reasonable to assume you consent to e.g. meat or peanuts being in a food product or meal if nothing is written and no one inquires but if you specifically ask and are lied to or the product is specifically labeled “meat free” or “peanut free” and then there is meat or peanuts in the food product you could likely sue the manufacturer or restaurant for damages.

    So no there would be no reason for the driver to demand consent. And in regards to privacy you could always choose (of any question anybody asks you) to say “it’s none of your business” and then the other person could say “ok give me my shirt back I’m gonna go catch the late showing of mama mia” or you could say, “pull up a chair i’m going to tell you a story about a man named gallo and a scam he pulled on all the land”

  10. heja said

    Jell said:
    “Obviously feel free to comment back, I find it hard to stop myself from commenting when I disagree with people too, but I will try not to comment back again because this back and forth could go on forever.”

    yes this back and forth could go on forever because by saying:

    “Heja, not anything a person may ask another, it is obvious that with hiv if you are wrong and the rest of the science community is right then the risks from someone lying about their status before sex are very large (possibly death). The risks are not large nor does it affect the other person if you eat eggs before having sex with them. ”

    you clearly state that you are convinced that I am “wrong and the rest of the science community is right”. you do not state that directly but by demonizing the potential consequences of hiv and by downplaying the potential effects of eating eggs you situate yourself as a believer in the current “scientific consensus”.

    See, I have done my homework on that (I am not suggesting you have not) and I have convinced myself (for my own purposes) that avialable scientific research does not demonstrate any specificity of the tests or pathogenecity of the purported germ. Not that it makes me feel better, but so are convinced many thousands of other researchers as well as ordinary people.

    This is why will have to agree to disagree. But that proves that the logic of law does that you were so courageously promoting here not sort out anything here. It IS about whether there is a proof of the germ’s existance and pathogenecity or no.

    As simple as that (and I do not expect any answer from you)

    Best

  11. Oscarlena said

    Jell,

    Don’t worry, there’s no need to comment back on this comment, because I also won’t comment back again. It’s an exhausting waste of energy to argue with a believer who prefers to believe rather than doing his homework.

    With a phrase like “When there is such a disagreement in the scientific community…” you are mistaken even twice. Nowhere on earth you’ll find an entity like a “scientific community”. What you will find is called the scientific establishment. And the owner of the scientific establishment is the pharmaceutical industry.

    Your second error is your assumption, there would be any disagreement within the industry-owned scientific establishment. In fact, if you do your homework, you’ll find nothing but total consensus between the brothers and sisters of the “community”.

    Like to know what the inventor of “Jurrasic Park” said about this phenomenon? Here we go:

    “(T)he work of science has nothing whatever to do with consensus. Consensus is the business of politics. Science, on the contrary, requires only one investigator who happens to be right, which means that he or she has results that are verifiable by reference to the real world. In science consensus is irrelevant. What is relevant is reproducible results. The greatest scientists in history are great precisely because they broke with the consensus… There is no such thing as consensus science. If it’s consensus, it isn’t science. If it’s science, it isn’t consensus. Period.”

    My source of this quote is a document with the cute title “Gallo’s Egg”. You’ll find it on the Internet. Googling always helps.

    I recommend reading it as the first part of your homework, not because the title is cute, but because the story is funny and thrilling.

    Neither funny nor thrilling, but presumably cute is a lady who eleven years ago invented this extremely cute phrase:

    “We observed no seroconversions after entry into the study.”

    Isn’t that cute? This lovely observing lady is called Dr. Nancy Padian. That’s why this study became famous and has since been called the “Padian-Study”. I recommend reading it as part no. 2 of your homework. It’s just a few pages.

    Part no. 3 of your homework is the easiest task. You don’t even have to google around. It’s all here on this very blog. Need some hints? Allright. Archives. February 2008. Scroll down the page and you’ll find Tony Lance’s “Intestinal Dysbiosis”. Don’t know what that is? You should! You really should read this – not yet, but soon – famous piece of work.

    Let me finally comment on your words “… you have to rely on the law makers to always come to the correct scientific decision…”

    I strongly disagree with this idea. I have never been ready to outsource my brainworks to law makers or lawyers, to doctors or scientists, may they be real ones or corrupt creatures like the majority of them. How could a politician ever be able to make a “correct scientific decision”? That’s not what they are paid for.

    I’ve always preferred to think for myself, because in the end it’s always me and nobody else who is responsible for my life and my health. Never a doctor, a politician, or a lawyer. That’s why in my previous comment I discussed your belief. You may sue whom you want to, even if you win it won’t change anything if it is your belief that kills you.

    Good luck, Jell!

  12. jell said

    I’m sorry I’m commenting back again (I’ll keep it short).

    I just wanted to say I am familiar and/or agree with pretty much everything you said scientifically. (Especially the comment that science is not a consensus.)

    But I disagree with you legally (most simply put: clearly it matters what decision law makers and judges make since their current siding with “science establishment” has led to heavy sentencing of innocent people).

    My argument was for the type of solution where you don’t need the law to make the correct scientific determination.

    You all disagree, we agree to disagree. And once again I apologize for commenting again. But even if you don’t believe it I wanted to inform you that I mainly disagree with you legally not scientifically.

    Best of luck to you both as well!

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