Judge for yourselves
Results of our survey on the criminalisation of HIV transmission are in: here’s what you think
Words Bernard Forbes
Image Russell Plows
From
the moment Mohammed Dica was jailed for eight years for recklessly infecting
two women with HIV, it was clear we had a problem. Whatever the moral rights
and wrongs of his behaviour, HIV and crime were suddenly umbilically linked
in the minds of the general public. Worse still, people living with HIV were
now potential criminals if they failed to disclose their HIV status to every
new
sexual partner. Meanwhile, the concept of shared responsibility for sexual
health lay in tatters outside the courtroom door. But amid the furore, no
one seemed to be asking HIV positive people what they really thought about
what was going on in UK courts. In autumn 2004, UKC tried to fill the void
by holding a debate at its national conference run by and for people with
HIV.
In May this year, Positive Nation ran a questionnaire to find out what you,
the readers, felt about the increasing prosecutions of people with HIV (six
to date). The questionnaire also appeared on the UKC website. Our aim was
to canvas views to help UKC adopt a realistic policy on criminalisation, informed
by people living with the virus. More than 230 of you responded. While this
is not big enough to be a representative sample, it provides a snapshot of
what you think. A total of 165 respondents identified themselves as HIV positive.
Key findings*
83 per cent, the vast majority, thought the prosecutions
would worsen stigma and discrimination against people with HIV.
46 per cent of HIV positive respondents said the Crown
should prosecute intentional transmission only, while 37 per cent thought
there should be no prosecutions at all.
42 per cent felt the government should change the law
to cover intentional transmission of HIV (with malice of forethought or using
HIV as a weapon).
11 per cent, the lowest figure, thought there should
be a
specific law to cover both intentional and reckless transmission.
48 per cent felt the prosecutions would have no impact
on HIV transmission rates while 35 per cent believed prosecutions would increase
the spread of HIV.
48 per cent felt prosecution would not make any difference
to their disclosure behaviour with sexual partners.
47 per cent said it would make them less frank in discussions
about sex with health professionals and HIV organisations.
UKC
policy
Law change
UKC will continue to argue that only people who use HIV as a weapon should
be prosecuted. We will continue to oppose prosecution of reckless transmission
on the basis of the potential damage to public health. UKC will argue that
the law must change but any change must not result in an HIV-specific law
that reinforces rather than reduces the stigmatisation of HIV above all other
serious communicable
diseases. Legislation should help to reduce the spread of HIV based on public
health principles, not those that inform criminal law. The law should be there
to protect and empower people with HIV.
An acceptable law change might be to introduce an offence of intentional transmission
of serious disease, as proposed in 1998; an alternative might be restricting
the existing law to put back the precedent set in 1888 in R v Clarence which
determined that STIs should not be considered assault; a precedent swept away
by the appeal court in R v Dica. It may be possible to argue for a restriction
in the way the existing law is applied if those convicted appeal to the House
of Lords; the House has powers to examine whether the application of the law
to the broader circumstances of society is appropriate. UKC will continue
to work with lawyers, the Home Office, CPS, police, the All Party Parliamentary
Group on Aids and other HIV organisations to achieve a satisfactory outcome.
Positive prevention
Sex between two (or more) consenting adults should not be the ultimate responsibility
of one person alone. Individuals should be responsible for their own behaviour
and not duck responsibility for their choices or actions. Everyone should
assume that anyone they sleep with could be HIV positive. Ignorance of safer
sex should not be an excuse for either party. More money should be put into
primary HIV prevention activity that directly targets people living with HIV
rather than the broader population. The Court of Appeal judgment in R v Konzani
was clear that deliberate concealment of HIV status almost inevitably equals
deception. So work should prioritise helping HIV positive people deal with
disclosure.
Stigma and discrimination
A vast majority of respondents feared prosecutions would increase stigmatisation
of HIV. UKC will carry out and support work that targets discrimination in
the broader community and help HIV positive people to reduce internalised
‘self stigma’. UKC will also challenge the media and the Crown
Prosecution Service over its portrayal of defendants as ‘evil’
and ‘victims’ as innocent.
What you said:
“If the sex was rape, then and only then should there be a
law against transmission.”
“What about influenza, TB or herpes? Will people who pass these to people
with HIV be prosecuted too?”
“If people don’t want to use condoms they know the risk and shouldn’t
complain if they are then infected.”
“Establish clearer rules of evidence and legislate to protect
people with an HIV or Aids diagnosis from worrying prosecution and persecution
at the hands of a prejudicial judiciary.”
“There are evil people out there who would infect a partner to get back
at them for something. So in this respect, these people should be made to
pay, too.”
“It’s compensation culture breaking out in a different
way so that people can duck responsibility for their own choices.”
“Anybody who is positive and doesn’t disclose their status to
a prospective partner is an idiot.”
“Do not criminalise HIV; it’s a disease for goodness sake.”
More comments and the full results from the survey can be viewed online at
www.ukcoalition.org
