Dominic d’Souza, a leading AIDS activist in India, did not know why he was arrested in February 1989, until he saw a medical report. His crime? Being HIV-positive. After he had donated blood several months earlier (which later tested positive for the virus), the hospital contacted the local police, who acted in accord with the province’s Public Health Act and detained him. Under the Act, detention for HIV-positive individuals was mandatory. He was held in a dirty, cramped, former TB sanatorium against his will for the next 64 days. Shortly afterward, this particular Act was amended to eliminate the mandatory detention of infected patients, but other oppressive, discriminating HIV laws exist throughout the world. A new publication by the Open Society Institute, Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission, seeks to counter the “unjust and ineffective public policy” of prosecuting HIV transmission. “Criminalizing HIV transmission will backfire and harm the very people it intended to protect,” said Jonathan Cohen of the Open Society Institute’s Law and Health Initiative, “The most vulnerable will surely be prosecuted.” The document argues that HIV-specific laws undermine public health goals such as empowering individuals to seek HIV testing and practice safe sex without fear of discrimination or stigma. Laws that incarcerate HIV-positive individuals also undercut HIV-prevention efforts both by exposing these individuals to a prison situation in which further spread is likely and also creating a false sense of security that the onus lies entirely with the already-infected individuals, rather than with a whole community to practice safe behavior. The most critical public health relationships of all — the trust between a health care provider and a patient — are even in danger where these laws are practiced.
“Criminalization would have created more problems than solving them,” Rama Valayden, Attorney General and Minister of Justice and Human Rights of the Republic of Mauritius declared in the document. Mauritius, an African country, has rejected HIV-specific criminal laws for the very reasons outlined in the publication, yet many countries throughout the world, including the United States, continue to utilize laws that are, in effect, a barrier to an effective response to the HIV/AIDS epidemic. The New York Times reported the May 2008 conviction in Dallas of Willie Campbell, 42, a homeless, HIV-infected man who was charged with harassment with a deadly weapon after he spat on a police officer. He was charged with a 35-year sentence (including other related charges). “The man was punished not for what he did, but for the virus he carried,” said Justice Cameron, a justice of the Supreme Court of Appeals in South Africa. While this publication is a critical step in highlighting the dangers of HIV-specific criminal laws, until countries eliminate or amend their laws, infected individuals will continue to be prosecuted rather than empowered to seek treatment.
Download the full Open Society Institute document here