Rolling Back HIV Prosecutions
posted: 03/08/2010
While over 600 people have now been convicted worldwide of transmitting or exposing others to HIV, and some countries are making new laws for prosecuting HIV, there is some good news.
Ghana, Mauritius and other countries have rejected a ‘model law’ that proposed prosecuting HIV transmission; in the Netherlands a new policy makes prosecutions for unintentional transmission unlikely; and Sierra Leone has ended its policy of prosecuting mother to child transmission. In England and Wales, work with police, prosecutors and expert virologists have helped make successful prosecutions a rarity.
UNAIDS Priority
Susan Timberlake of UNAIDS stated at a International AIDS Conference session that it was now a “corporate priority” of UNAIDS to “remove punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV”.
She said that it was essential that advocacy does not just consider laws, but also must dealwith law enforcement and access to justice.
Working with legislative bodies to remove laws is an extremely complex and time-consuming process that requires political know-how and can backfire.
Harm Reduction - Working with Police and Prosecutors
Timberlake suggested law enforcement approaches (engaging with the police, prosecutors and judges who make decisions on taking cases forward or not) can be more productive than risking law repeal which could backfire and make the situation worse. She said that any countries that do not yet have prosecutorial guidelines should make these high priority.
In England and Wales, because helpful law reform is unlikely, a lot of effort has been put into reducing the harm of prosecutions – and as a result of HIV prosecution and investigation guidelines few cases get to court, and convictions are now rare.
An English court accepted expert scientific evidence that showed the limits of phylogenetic analysis (the scientific evidence comparing the viral strains of the complainant and the accused). At first prosecutors presented phylogenetic analysis as providing definitive proof that the accused must be guilty. However expert evidence showed that two viral strains can seem closely related without there being any certainty about who had infected who. It is now a key part of police investigation guidelines and prosecution policy to use phylogenetic analysis. This evidence seriously weakens most prosecution cases and convictions are now rare.
Knowledge, Representation and Stigma
More still needs to be done to improve people with HIV’s knowledge of laws and their rights (‘legal literacy’) and access to legal support and services. This needs to be linked with broader efforts to reduce HIV stigma and discrimination.
New Book on HIV and Criminal Law
This International Conference meeting also saw the publication of HIV and the Criminal Law, a new guide to the use of the criminal law in prosecutions related to HIV transmission, written by Edwin Bernard and published free online by NAM.
Videos
The video of the meeting is now online at aidsmap
The video of Edwin's presentation and press conference
Sources
Criminalising Transmission
Tactics to Stem Tide of Prosecutions
Permalink