HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Saturday, August 9, 2008

Seeking Better Laws on H.I.V.

The New York Times reports that the 17th International AIDS Conference ended on Friday in Mexico with a call for the reversal of laws that criminalize and stigmatize groups at risk for H.I.V.  Lawrence K. Altman writes,

Red_ribbon“Criminalization is a poor tool for regulating H.I.V. infection and transmission,” Edwin Cameron, a justice of the Supreme Court of Appeals in South Africa, said in a plenary session.

“Let one of the conference outcomes be a major international push-back against misguided criminal laws and prosecutions,” said Justice Cameron, who is himself infected.

Citing cases in Texas, Zimbabwe, Sierra Leone, Bermuda and Switzerland to illustrate the “folly of criminalization,” the judge said, “There is no public health rationale for invoking criminal law sanctions against those who unintentionally transmit H.I.V. or expose others to it.”

Justice Cameron said he understood that society feared the deadly virus and that public officials might want to invoke laws to counter those who recklessly passed it to others.

But, he said, “Criminalization is warranted only where someone sets out, knowing he has H.I.V., to infect another and succeeds.”

Justice Cameron cited the conviction in Dallas in May of Willie Campbell, 42, a homeless, H.I.V.-infected man who was charged with harassing a public servant with a deadly weapon after he spat at a police officer who arrested him.

Mr. Campbell must serve at least half of his 35-year sentence before he can apply for parole.

Justice Cameron pointed out that, according to the Centers for Disease Control and Prevention, saliva has never been shown to result in the transmission of H.I.V.

“The man was punished not for what he did, but for the virus he carried,” the judge said.

At the trial Mr. Campbell’s lawyer said he was indicted as a habitual offender, with a minimum penalty of 25 years, because he had been convicted of attacking two other officers in a similar manner and biting two inmates, as well as more than two dozen other offenses.

Justice Cameron described a law in Sierra Leone that requires a woman to take reasonable measures and precautions to prevent transmitting H.I.V. to her fetus. But testing for the virus and treatment for an infected mother are not widely available, health officials have said.

At least a dozen African countries have adopted similar laws, many poorly drafted, said the judge, who called them poor substitutes for measures that protected those at risk.

Another plenary speaker, Dr. Bruno Spire, the president of AIDES, a nongovernmental group in France, also called for improving laws and policies to combat stigma and discrimination against groups most vulnerable to H.I.V., typically gay and bisexual men, injecting drug users and sex workers.

The conference drew more than 25,000 participants, the second largest attendance in its history; it was the first held in Latin America. Half of the participants attended the conference for the first time, organizers said.

The conference theme was “universal action now” with an emphasis on the urgency of allowing infected people to be treated equally as a human rights issue and of wider use of prevention measures.

But Oxfam International, a global confederation of aid organizations, said in a statement that the conference had failed to come up with a clear plan or any new impetus to reach the 2010 goal of universal access to H.I.V. prevention, treatment and care.

Dr. Pedro Cahn of Buenos Aires, the immediate past president of the International AIDS Society, which runs the conferences, said that “we have learned more than ever” that treatment worked as a prevention tool but “we must be better at using it in prevention practice.”

At a news conference, Dr. Cahn said “the 25,000 participants are now accountable to push their governments” for better prevention and treatment of H.I.V. “We still have five new infections for every two patients” who receive antiretroviral therapy, he said.

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