All around the world, people with HIV are being charged for endangering the lives of others. But this doesn’t stop the spread of HIV because most of those infected don’t know they have the virus, Judge Edwin Cameron has argued.

A homeless man in Texas has been sentenced to 35 years in prison for harassing a public servant with a deadly weapon.

His weapon? His own saliva, which he spat at the police officer who was trying to arrest him for drunken behaviour. It was deemed “deadly” because the man has HIV.

In Zimbabwe, an HIV positive 26-year-old woman was sentenced to a suspended term of five years’ imprisonment for having unprotected sex with her lover.

She was convicted of “deliberately infecting another person” – but her lover tested HIV negative and didn’t want to proceed with the charges.

These cases were part of a world-wide “rash phenomenon” where law-makers were enacting new laws “that create special crimes of HIV transmission or exposure”, Judge Edwin Cameron told the plenary of the 17th International AIDS Conference in Mexico City on Friday.

“At least a dozen” African countries have adopted laws that criminalise HIV transmission, he said.

“AIDS is now a medically manageable condition. It is a virus, not a crime, and we must reject interventions that suggest otherwise.

“Criminalisation is warranted only in cases where someone sets out, well knowing he has HIV, to infect another person, and achieves this aim,” argued Cameron.

In general, the laws would not protect people from HIV: “In the majority of cases, the virus spreads when two people have consensual sex, neither of them knowing that one has HIV. That will continue to happen, no matter what criminal laws are enacted,” said Cameron.

“Criminalisation places blame on one person instead of responsibility on two,” said Cameron.

But the vast majority of people knew how HIV was transmitted and everyone in the position to choose their sexual partners needed to take responsibility for safe sex.

“No one suggests that a person knowing he has HIV, who sets out intending to infect another, and achieves his aim, ought to escape prosecution (such deliberately stabbing someone with an injecting needle containing blood with HIV). He has set out deliberately to harm another and he has achieved his purpose as surely as if he had wounded his victim with a firearm or a knife.

“But in cases where there is no deliberate intention, the categories and distinctions of the criminal law become fuzzy and incapable of offering clear guidance,” said Cameron.

He said that the most painful thing for people like him, who were living with HIV, was that criminalisation increased the stigma of AIDS.

“No other infectious disease is viewed with as much fear and repugnance as HIV is. Because of this, stigma lies at the heart of the experience of every person living with or at risk HIV.”

Cameron appealed to the conference to condemn the criminalisation of HIV transmission as there was “no public health rationale for invoking criminal law sanctions against those who unintentionally transmit HIV or expose others to it”.

Kerry Cullinan

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