In April, a Swedish woman was sent to prison for a year and a half, because she had unprotected sex without telling her partner that she had HIV (New, 2012). This was not the first time that a Swedish person had received a criminal punishment for knowingly having had unprotected sex with someone, without notifying the partner about HIV status. She was also required to pay damages to her former partner.
At first blush, this does not seem to be such a bad thing. After all, HIV is a disease that is fatal without an expensive combination of medicines that one has to take for the rest of one’s life. It is not the automatic death sentence that it used to be, but it represents a major change in one’s health, and contracting it can have lifelong effects on one’s ability to initiate and maintain intimate relationships.
However, the woman in question did not lie about her status; the partner with whom she had sex did not inquire as to her HIV status. Also, she did not actually transmit the disease to her partner. So locking her up for being part of a situation in which her sexual partner might have become infected is pushing the envelope of sexual regulation a bit far. Studies have shown that making potential HIV transmission a crime creates a culture of distrust in both the legal and the medical systems. The possibility of prosecution keeps people from finding out whether or not they have HIV, it creates a sense of shame for those who have and live with HIV – and, most importantly, it does not stop or slow the spread of the disease (IPPF, 2012).
It is certainly true that those who have HIV should not knowingly or maliciously transmit the virus to others. To this end, UNAIDS (the joint UN Programme on HIV/AIDS) has suggested that criminal sanctions in cases involving HIV transmission only appear when the charged person knows that he or she is HIV-positive, carries out the intention of spreading the disease, and actually ends up passing it to his or her partner. Further, UNAIDS suggests the classification of this sort of crime under the same criminal provisions as assault or other forms of bodily harm, not specific sections of the law created specifically for HIV.
In other words, there are ways to protect potential victims if a situation arises where a person is acting with malicious intent, and the legal code should not be written to discriminate against people who have HIV. However, intent can be difficult to prove. In the case of the Swedish woman, she actually had more than one conviction for the same offense over the course of several years. Prosecutors might well be within their rights to conclude that repeated offenses might indicate a malicious intent on the part of the charged.
Also, just because someone does not catch HIV in this situation does not mean that there has been no harm. Indeed, just the fear that one might have caught the disease during sex would lead to emotional trauma – not because of discrimination, but because of the fact that HIV can be a fatal disease.
However, the use of the law and the media to stigmatize those with HIV is a form of discrimination. If the intent really is to keep people from assaulting one another or exposing one another to danger, then that intent is not discriminatory. However, to use the media to broadcast the prosecution of these crimes by those who have HIV is a form of discrimination. After all, not everyone who is booked for assault has the details of the trial aired in the media. A better approach would be to provide education for all adolescents and adults. This should not be as much about the dangers of HIV: the stigma attached to the disease means that people already know about the potential harm that could come from it. Instead, the education should focus on ways to keep from contracting HIV while engaging in sex, as well as encouraging people to self-advocate in sexual situations. If one has the maturity to have sex, then one also has the maturity to inquire after the other person’s HIV status. Being proactive with communication will be much more effective at curbing HIV transmission than placing a scarlet “H” on the infected, and parading them before the media.
Works Cited
IPPF (2012). How does criminalization impact on public health?
http://www.hivandthelaw.com/basic-information/ten-questions/how-does-
criminalization-impact-public-health
New, Dala (2012). HIV-infected woman sentenced to prison. Sverige radio 16 April 2012.
Translated through Google.
http://sverigesradio.se/sida/artikel.aspx?programid=161&artikel=5067476
UNAIDS (2012). Criminalization of HIV transmission.
http://data.unaids.org/pub/basedocument/2008/20080731_jc1513_policy_criminalizati
on_en.pdf
