Analysis Human Rights

Is Criminalization of HIV Transmission Effective? Swedish Case Reveals Why the Answer is No

For anyone who cares about human rights from a health and discrimination angle, recent cases criminalizing HIV transmission raise multiple red flags.

Earlier this month, a 31-year-old woman in Sweden was sentenced to one and a half years in prison for having unprotected sex without disclosing to her partner beforehand that she is living with HIV.

Even a perfunctory news search reveals that this is not the first time the Swedish justice system has applied criminal sanctions to potential HIV-transmission. In January, a 20-year-old man was sentenced to eight months in prison for having unprotected sex without disclosing his status. In December 2006, a 34-year-old woman got two months, and in January 2003, a 32-year-old woman one year. All of these sentences also required the person living with HIV to pay monetary damages to their former sex-partners.

For anyone who cares about human rights from a health and discrimination angle, these cases raise multiple red flags.

For starters, consensual sex between consenting adults should, in principle, never be subject to government control or regulation. Moreover, the criminalization of HIV transmission has multiple negative outcomes. It leads to distrust in the health and justice systems; it can discourage people from seeking to know their HIV status; it adds to the stigmatization of those living with HIV; and it is ineffective in bringing down HIV transmission.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

In fact, UNAIDS recommends that governments limit criminal sanctions for HIV transmission to cases where all of three conditions are met: the person charged 1) knows he or she is living with HIV; 2) acts with the intention of transmitting the virus; and 3) actually transmits it. UNAIDS also recommends that cases of such intentional HIV-transmission should be tried under generic criminal provisions for bodily harm or assault, and not under HIV-specific provisions.

Public health and human rights activists are clear on this. That is why the Swedish Embassy in France was defiled with paint-filled condoms in protest against the 2003 ruling. And that is also why my own reaction to the ruling was to declare it “bad” over twitter, a statement that was re-tweeted several times.

A closer read of the cases highlighted in the Swedish media, however, leads me to reconsider, at least in part. 

If the media-accounts are accurate, the Swedish government has, in fact, partially followed UNAIDS recommendations. The convicted individuals all knew their HIV status and the cases were brought under general criminal law provisions on grave assault, physical abuse, and attempt to cause physical harm. So far so good.

The two remaining questions — intent and actual transmission — are more difficult to gauge.

Consider this.  

In most of the cases, the convicted person either has multiple convictions over several years for the same thing, or the conviction is based on multiple unprotected sexual interactions with different partners without disclosure. It is perhaps valid for prosecutors to ask if, absent proof of intent which is hard to produce, the fact that an individual living with HIV repeatedly and knowingly exposes someone else to a deadly virus shouldn’t count for something.

Further, actual HIV transmission may not be the only harm caused. The 20-year-old convicted man was charged with having unprotected sex with eight women, none of whom ultimately ended up HIV-positive, though they all claimed to have suffered severe emotional trauma as a result of the experience. In cases of domestic violence we often ask prosecutors to consider emotional distress as real harm, so why require actual transmission in order to prove harm in this case?

Then again, consider this.

The 20-year-old man was born HIV-positive and is being charged as an adult also for those unprotected sexual encounters that occurred when he was a teenager. He was initially placed in solitary confinement, seemingly because of his HIV status.

Also, one of the convicted women alleged she had been raped.  The male partner produced evidence to the contrary and she later withdrew the allegation. Nevertheless, coercion and fear is highly relevant when it comes to decisions about how and when to disclose HIV status. Research indicates that many women in fact are reluctant to disclose their HIV status because they quite legitimately fear abuse.

And with regard to actual harm caused, it is at least possible that the ramped-up attention to the cases have contributed in some part to the severity of the emotional distress of the sex partners.

It is, of course, reckless to knowingly expose anyone to real danger, also through potential HIV-transmission, even if the danger ultimately does not materialize. This is a notion the UNAIDS recommendations to a large extent fail to acknowledge.

But the highly publicized use of the criminal law in Sweden to punish those living with HIV for being timid about their health status does not make it easier for anyone to disclose. So perhaps the real question with regard to any government’s approach to HIV transmission should not be whether it follows UNAIDS recommendations, but rather if it is effective.  An educated guess says, not so much.

News Human Rights

Louisiana Is ‘Ground Zero’ for HIV, Incarceration Crises, Report Says

Kanya D’Almeida

Both of these epidemics disproportionately harm Black people, who account for 70 percent of new HIV infections in Louisiana and 66 percent of the state’s prisoners.

Thousands of prisoners in Louisiana’s county jails are routinely denied access to HIV testing and treatment, with five of the state’s 104 jails offering regular tests to inmates upon entry, according to a new Human Rights Watch (HRW) report.

The same people who are at the highest risk of HIV—people of color, sex workers, and low-income communities, for instance—face disproportionate incarceration rates in Louisiana, meaning that low-income people of color, and especially Black people, are bearing the lion’s share of the burden of inadequate HIV care in county jails, called “parish” jails in Louisiana.

Louisiana has the nation’s second highest rate of new HIV infections, and the country’s third highest rate of adults and adolescents living with AIDS, according to the report. The state has the highest incarceration rate in the nation, locking up an estimated 847 people per 100,000 residents, compared to the national average of 478 prisoners per 100,000 people. On any given day, there are roughly 30,000 people in Louisiana’s parish jails, contributing to an incarceration rate that is 150 percent of the national average.

Many of those whose treatment has been interrupted while in jail were arrested for minor, non-violent crimes, per HRW.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Both of these epidemics disproportionately harm Black people, who account for 70 percent of new HIV infections in Louisiana (compared to 24 percent for white people), and 66 percent of the state’s prisoners—even though Black people account for 32 percent of Louisiana’s 4.6 million residents.

“This is not a coincidence,” Megan McLemore, a senior researcher at HRW and author of the report, told Rewire. “The history of the state of Louisiana has been, to say the least, disturbing in relation to African Americans.”

HRW interviewed more than 100 people for the report, from formerly incarcerated people to medical staff in parish jails to HIV service providers. What they found was a pattern of rights violations, including the failure of most parish jails to comply with recommendations by the Centers for Disease Control and Prevention that all inmates be tested for HIV upon entry at a corrections facility.

Jail officials reportedly told HRW that they avoid testing because they can’t afford to treat those who test positive: a course of medication for a single patient can fall in the range of $23,000-$50,000 per year. But the HRW report claims that failing to conduct proper testing, interrupting patients’ treatment plans, and neglecting to provide linkages to treatment centers for people leaving jails could end up costing the state much more in the long run.

Strict adherence to antiretroviral medication regimes has been found to greatly enhance successful management of HIV, the report said, by strengthening a person’s immune system and decreasing the amount of virus in the body, thereby reducing the risk of transmission. By denying inmates access to their medications, Louisiana’s parish jails are contributing to an already grave epidemic: the state is home to more than 20,272 people living with HIV, with half of them diagnosed with AIDS, according to the report.

Jail officials’ behavior heightens the stigma around HIV, advocates said. McLemore told Rewire that Louisiana’s inmate population represents some of the country’s most vulnerable and heavily policed communities.

“These are people who are already stigmatized—add HIV, and the situation becomes almost unbearable. So when jail officials intentionally avoid or neglect testing and treatment, they are not only adding to that stigma, they are actually being discriminatory,” McLemore said, adding that some caseworkers claimed their HIV-positive clients avoided disclosing their status to jail staff because they had no assurance that it would guarantee care.

Darren Stanley, a case manager at the Philadelphia Center in Shreveport, told HRW that half his clients have spent time in jail, and the majority of them are denied their medications on the inside. One of his clients, who spent three weeks in the Caddo Parish Prison in 2013, paid the ultimate price.

“I tried to get in touch with him but he was very sick without his medications,” Stanley told HRW. “He died of AIDS two weeks after he got out.”

A formerly incarcerated woman named Joyce Tosten who spoke to HRW claimed parish jail officers informed her that she would need to have her mother deliver any necessary HIV medications to the jail. But she couldn’t call her mother because she didn’t have phone privileges at the time. Other sources alleged that even when family or friends brought medications to the jail, they were never delivered.

The problem does not stop at incarceration. According to HRW, “release from parish jail is often a haphazard process consisting of whatever is left of their medication package, a list of local HIV clinics, or nothing at all.”

The report includes a series of recommendations such as setting aside adequate funding for HIV testing and care, training jail staff on effective treatment and management options, and strengthening links with local care providers and community-based centers for returning citizens.

Deon Haywood, executive director of Women With A Vision (WWAV), a New Orleans-based grassroots health collective responding to the HIV epidemic in communities of color, told Rewire that HRW’s recommendations were “spot on.”

“They speak to the conditions we have seen in the community for the past 26 years,” she said. “Through my work at WWAV and other New Orleans agencies, I’ve witnessed the failure of incarceration to better the community. We urge Louisiana to invest in education rather than criminalization, and shift the state’s resources and policies towards solutions that address the systematic inequalities that poor communities of color face on a daily basis.”

HRW’s report adds to a list of woes that Louisiana residents confront on a daily basis. The state recently ranked last on a nationwide index measuring social justice issues like poverty and racial disparities.

CORRECTION: This story has been updated to reflect Louisiana’s correct incarceration rate.

Commentary Sexual Health

Charlie Sheen Deserves Your Scorn, But Not Because He Has HIV

Becky Allen

HIV is not a punishment for bad behavior. It's an illness. And it's not OK to act like it is a punishment for some crime, even when the "criminal" is a public jackass like Sheen, because that just reinforces the HIV stigma our culture is already swimming in.

Cross-posted with permission from TheBody.com.

I usually work behind the scenes here at TheBody.com, but after spending eight years quietly immersed in the HIV community, it turns out I can no longer see HIV in the news without having some pretty strong reactions.

Since Charlie Sheen confirmed this week he is HIV-positive, oh man, has the news coverage been making me cringe—and that was before I made the number-one Internet mistake of reading the comments on some mainstream coverage.

I started to rant about it to my coworkers, and they encouraged me to actually write those rants down, so here you go: my five initial reactions to the conversation around Charlie Sheen’s HIV status.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

1. Charlie Sheen Has Done Terrible Things, But HIV Is Not a Punishment for Being Terrible

I am not going to defend Charlie Sheen. Sheen has a long history of domestic violence. He has frequently behaved like a total jackass (and a borderline anti-Semitic one at that)He’s also anti-vaccination. Charlie Sheen is not a guy I want to know or spend time with. I avoid his television shows and movies.

I get that it’s tempting, when bad things happen to a bad person, to revel in the schadenfreude—especially given that Sheen has always seemed to be very proud of his sex-and-drugs lifestyle. But this isn’t comeuppance or just desserts—and sorry folks, the jokes about contracting HIV from tiger blood aren’t funny.

HIV is not a punishment for bad behavior. It’s an illness. And it’s not OK to act like it is a punishment for some crime, even when the “criminal” is a public jackass like Sheen, because that just reinforces the HIV stigma our culture is already swimming in. HIV stigma makes it less likely that people will get tested for HIV, and makes it dangerous for people living with HIV to disclose their status and lowers the chances they’ll get health care.

So look: I’m not defending Sheen. But he deserves your scorn for the crappy things he’s done and said, not because he has HIV.

2. Charlie Sheen Has Access to Better Care Than Most People Living With HIV

Hey, did you know HIV medications are super expensive? They are! Do you know who has a lot of money? Charlie Sheen, the former highest-paid man on television! But do you know who isn’t that wealthy? Most people living with HIV.

The super awesome thing is that with effective medication and care, people living with HIV can expect to live roughly as long and healthy a life as their HIV-negative peers. But HIV disproportionately impacts marginalized communities, which means that a high percentage of people living with HIV can’t get the care they need, let alone pay for the meds that literally save their lives—especially if they live in one of the states that has refused federal money to expand Medicaid, the biggest payer for care to people with HIV in the United States.

Living with HIV won’t be a walk in the park for Sheen, but he has access to resources that the majority of people living with HIV just don’t.

3. Because Sheen Is Getting Proper Care and Treatment, He’s Less Likely to Transmit HIV

Now that Sheen’s interview with Matt Lauer on Today has aired, we know that Sheen is on HIV treatment, that he has alerted his sexual partners to his status, and that, yes, he has had unprotected sex since his diagnosis. He said it’s “impossible” that he transmitted HIV to them. For outsiders to the HIV community, that might not sound true, but actually? It pretty much is. Yes, even when the sex was unprotected.

Basically, when people are on effective HIV treatment, the amount of actual virus in their bloodstream goes way down—and if the virus isn’t there, they can’t pass it on to other people. (Here, have a video.)

So while I would hope that no one wants to have sex with Sheen, that’s because of the aforementioned domestic violence stuff, not out of fear of acquiring HIV. And yes, right now there are a lot of rumors that he has actually passed HIV on to others, but:

4. HIV Criminalization Might Sound Good on the Surface, But It Increases HIV Transmission

There’s been a lot of speculation of the legal trouble Sheen might land in if he did knowingly pass HIV to anyone else. And on some level, it might feel good to say: “Yeah! He’s ruined people’s lives, he should pay for it!”

Except that first, the idea that HIV is a life-ruiner is, again, stigmatizing, and second, criminalizing HIV doesn’t help anything—in fact, it actively does harm. In order for transmitting HIV to be a criminal offense, the transmitters have to know their HIV status. That … really just gives people a pretty good reason not to get tested. It can seem counterintuitive, but is incredibly important to understand, so here are some more really good points about why criminalization doesn’t work.

And oh yeah, let’s also keep in mind, it’s stigma that made it possible for Sheen to be blackmailed over his status. If we removed the idea that HIV is something awful and shameful—something worth literally sending people to jail for—then you also remove the reason even celebrities like Sheen feel a need to keep their status silent.

5. Adult Film Stars Have Relatively Low Rates of HIV

And finally, there’s this: Sheen has been open about the fact that he’s dated and slept with porn stars. People are citing that as if it means of course he was going to acquire HIV. But in reality, porn stars are tested really frequently for HIV. It’s big news when a production is shut down due to possible HIV transmission—but it’s big news because it’s rare.

When adult film performers test positive, they find it out much more quickly than most people. Again, I don’t know the lives of the people Sheen has slept with—but the porn stars probably knew their HIV statuses. Which, considering that one in eight people living with HIV in the U.S. don’t know it, is pretty impressive.

So while we’re working to avoid stigmatizing HIV, let’s try not to stigmatize sex workers, either, OK? (And that goes for you, too, Matt Lauer, for referring to sex workers as “unsavory persons” throughout the interview.)

There is a lot more to say about this, especially about the intersection of mental health, drug addiction, and HIV. But if nothing else, please keep this in mind: The jokes you make about Charlie Sheen won’t hurt him. He’s a super wealthy celebrity in a culture that worships those. But most people living with HIV don’t have those advantages, and the stigmatizing jokes and misinformation can and do hurt them.