www.ambiente.us AUGUST / AGOSTO 2008
A tragedy, not a crime
by Edwin Cameron, Michaela Clayton and Scott Burris
A few months ago in Dallas, Texas, Willie Campbell was convicted of assault with a "deadly weapon" against
police officers who were arresting him for being drunk and disorderly. He was sentenced to 35 years in
prison.
Too bad, you may say, but so what? Well, Campbell has HIV, and the "deadly weapon" was saliva, which he
spat into the officers' faces. But saliva has never been shown to transmit HIV, so the "deadly weapon"
Campbell wielded was no more lethal than a toy pistol - and it wasn't even loaded.
His sentence also reflected his criminal record, but there is no denying that Willie Campbell was punished
not just for what he did, but for the virus he carried.
He is not alone. Across the world, people with HIV are going to prison even when they have not transmitted
the virus and never intended to.
Bermuda recently jailed a man with HIV for 10 years for having unprotected sex with his girlfriend, even
though she has tested negative. A Swiss man was sent to jail this year for infecting his girlfriend, even
though he thought he was HIV-negative.
In Africa - which has about two-thirds of the world's HIV cases - a U.S.-financed "model" statute that broadly
criminalizes transmission and exposure has been adopted by 11 countries, and others may do the same.
The law requires those who know they have HIV to inform "any sexual contact" in advance - without defining
"sexual contact." (Does the definition, for example, include kissing?)
Sierra Leone's version of the law expressly brings a pregnant mother within its terms. She can be jailed if
she does not "take all reasonable measures and precautions to prevent the transmission of HIV" to her
unborn baby.
So what is behind the drive to deal with HIV through criminal laws? It aims to stem the rising tide of
infections, to protect those vulnerable to becoming infected - especially women, who often fall prey to
careless or unscrupulous men - and to encourage disclosure by those who know they have the virus.
Good intentions, but bad policy. Studies and more than two decades of experience show that making
exposure and accidental transmission into crimes does not change sexual behavior or stem the spread of
HIV.
Criminalization is a misguided substitute for measures that really protect those at risk of contracting HIV:
effective prevention, protection against discrimination, efforts to reduce the stigma associated with AIDS,
greater access to testing, and, most important, treatment for those who are dying of the disease.
Far from protecting women, criminalization endangers them. In Africa, most people who know their HIV
status are female because most testing occurs at natal health-care sites. The result is that most of those
who will be prosecuted because they know - or ought to know - their HIV status will be women.
The material circumstances in which many women find themselves - especially in Africa - make it difficult for
them to negotiate safer sex, or to discuss HIV at all. These circumstances include social subordination,
economic dependence and traditional systems of property and inheritance that make them dependent on
men. Criminalization will make them more vulnerable to HIV, not less.
Moreover, criminalization is often unfairly and selectively enforced. Prosecutions and laws single out already
vulnerable groups - like prostitutes, men who have sex with men and, in European countries, black males.
Criminalization also places blame on one person instead of putting responsibility on two. Realistically, the
risk of getting HIV (or any sexually transmitted infection) must now be seen as an inescapable facet of having
sex. We cannot pretend that the risk is introduced into an otherwise safe encounter by the person who knows
or should know he or she has HIV. The practical responsibility for safer sex practices rests on everyone.
These laws are difficult and degrading to apply. Where sex is between two consenting adults, the apparatus
of proof and the necessary methodology of prosecution degrade the parties and debase the law. What is
more, the legal concepts of negligence and even recklessness are incoherent in the realm of sexual
behavior. We know that the "reasonable person" often has unprotected sex with partners of unknown sexual
history in spite of the known risks - that's why we have an HIV epidemic, and that's why interventions to
reduce unsafe sex are so important.
Criminalization increases stigma and may well deter testing. Why would a woman in Sierra Leone want to
have an HIV test that will, if positive, put her at risk of a seven-year jail sentence if she becomes pregnant, or
the next time she has sex? The laws put diagnosis, treatment, help and support further out of her reach.
Public health and human rights activists put this issue onto the agenda of the world AIDS conference this
week in Mexico - which brings together 25,000 physicians, researchers, health workers, community activists
and journalists. Delegates will be asked to take home with them a practical undertaking from the conference,
a resolve to combat irrational laws and prosecutions.
Delegates from countries that have adopted laws targeting people who have been infected with the AIDS
virus will be asked to campaign to have those laws repealed. International organizations and donor countries
will be asked to strongly oppose - and stop financing - criminalization initiatives.
The prevention of HIV is not just a technical challenge for public health. It is a challenge to all humanity to
create a world in which behaving safely is feasible for both sexual partners.
Criminalization does the opposite. It is a harsh, punitive and unproven policy toward an epidemic that has
consistently responded best to interventions that care for and support people doing their best to be healthy.
Edwin Cameron is a justice of South Africa's Supreme Court of Appeal. Michaela Clayton is director of the
AIDS and Rights Alliance of Southern Africa, Windhoek, Namibia. Scott Burris is law professor at Temple
University in Philadelphia.
Copyright © The International Herald Tribune & AMBIENTE MAGAZINE. Do not reproduce without citing this source.
A tragedy, not a crime
by Edwin Cameron, Michaela Clayton and Scott Burris
A few months ago in Dallas, Texas, Willie Campbell was convicted of assault with a "deadly weapon" against
police officers who were arresting him for being drunk and disorderly. He was sentenced to 35 years in
prison.
Too bad, you may say, but so what? Well, Campbell has HIV, and the "deadly weapon" was saliva, which he
spat into the officers' faces. But saliva has never been shown to transmit HIV, so the "deadly weapon"
Campbell wielded was no more lethal than a toy pistol - and it wasn't even loaded.
His sentence also reflected his criminal record, but there is no denying that Willie Campbell was punished
not just for what he did, but for the virus he carried.
He is not alone. Across the world, people with HIV are going to prison even when they have not transmitted
the virus and never intended to.
Bermuda recently jailed a man with HIV for 10 years for having unprotected sex with his girlfriend, even
though she has tested negative. A Swiss man was sent to jail this year for infecting his girlfriend, even
though he thought he was HIV-negative.
In Africa - which has about two-thirds of the world's HIV cases - a U.S.-financed "model" statute that broadly
criminalizes transmission and exposure has been adopted by 11 countries, and others may do the same.
The law requires those who know they have HIV to inform "any sexual contact" in advance - without defining
"sexual contact." (Does the definition, for example, include kissing?)
Sierra Leone's version of the law expressly brings a pregnant mother within its terms. She can be jailed if
she does not "take all reasonable measures and precautions to prevent the transmission of HIV" to her
unborn baby.
So what is behind the drive to deal with HIV through criminal laws? It aims to stem the rising tide of
infections, to protect those vulnerable to becoming infected - especially women, who often fall prey to
careless or unscrupulous men - and to encourage disclosure by those who know they have the virus.
Good intentions, but bad policy. Studies and more than two decades of experience show that making
exposure and accidental transmission into crimes does not change sexual behavior or stem the spread of
HIV.
Criminalization is a misguided substitute for measures that really protect those at risk of contracting HIV:
effective prevention, protection against discrimination, efforts to reduce the stigma associated with AIDS,
greater access to testing, and, most important, treatment for those who are dying of the disease.
Far from protecting women, criminalization endangers them. In Africa, most people who know their HIV
status are female because most testing occurs at natal health-care sites. The result is that most of those
who will be prosecuted because they know - or ought to know - their HIV status will be women.
The material circumstances in which many women find themselves - especially in Africa - make it difficult for
them to negotiate safer sex, or to discuss HIV at all. These circumstances include social subordination,
economic dependence and traditional systems of property and inheritance that make them dependent on
men. Criminalization will make them more vulnerable to HIV, not less.
Moreover, criminalization is often unfairly and selectively enforced. Prosecutions and laws single out already
vulnerable groups - like prostitutes, men who have sex with men and, in European countries, black males.
Criminalization also places blame on one person instead of putting responsibility on two. Realistically, the
risk of getting HIV (or any sexually transmitted infection) must now be seen as an inescapable facet of having
sex. We cannot pretend that the risk is introduced into an otherwise safe encounter by the person who knows
or should know he or she has HIV. The practical responsibility for safer sex practices rests on everyone.
These laws are difficult and degrading to apply. Where sex is between two consenting adults, the apparatus
of proof and the necessary methodology of prosecution degrade the parties and debase the law. What is
more, the legal concepts of negligence and even recklessness are incoherent in the realm of sexual
behavior. We know that the "reasonable person" often has unprotected sex with partners of unknown sexual
history in spite of the known risks - that's why we have an HIV epidemic, and that's why interventions to
reduce unsafe sex are so important.
Criminalization increases stigma and may well deter testing. Why would a woman in Sierra Leone want to
have an HIV test that will, if positive, put her at risk of a seven-year jail sentence if she becomes pregnant, or
the next time she has sex? The laws put diagnosis, treatment, help and support further out of her reach.
Public health and human rights activists put this issue onto the agenda of the world AIDS conference this
week in Mexico - which brings together 25,000 physicians, researchers, health workers, community activists
and journalists. Delegates will be asked to take home with them a practical undertaking from the conference,
a resolve to combat irrational laws and prosecutions.
Delegates from countries that have adopted laws targeting people who have been infected with the AIDS
virus will be asked to campaign to have those laws repealed. International organizations and donor countries
will be asked to strongly oppose - and stop financing - criminalization initiatives.
The prevention of HIV is not just a technical challenge for public health. It is a challenge to all humanity to
create a world in which behaving safely is feasible for both sexual partners.
Criminalization does the opposite. It is a harsh, punitive and unproven policy toward an epidemic that has
consistently responded best to interventions that care for and support people doing their best to be healthy.
Edwin Cameron is a justice of South Africa's Supreme Court of Appeal. Michaela Clayton is director of the
AIDS and Rights Alliance of Southern Africa, Windhoek, Namibia. Scott Burris is law professor at Temple
University in Philadelphia.
Copyright © The International Herald Tribune & AMBIENTE MAGAZINE. Do not reproduce without citing this source.
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