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What the world can learn from criminalisation in the UK

Sarah Radcliffe
22nd July 2014

At the International AIDS Conference in Melbourne there has been lots of talk about the criminal law can impede the global fight against HIV.

In his address to the opening session of the conference, former High Court Justice Michael Kirby told delegates that "the best way in current circumstances to get people to testing and to reduce the toll of death and suffering is not by punishing and isolating those infected with HIV. It is actually by protecting them. .. Law and policy must be made part of the solution, not part of the problem..."

On Sunday I attended the excellent pre-conference Beyond Blame, a meeting for organisations and individuals working to end the overly broad criminalisation of HIV. 

 'Overly broad criminalisation' is a term used by UNAIDS and others to talk about jurisdictions where you can be criminally prosecuted for not disclosing your HIV positive status to sexual partners, for being accused of exposing someone to HIV infection without actually transmitting it, or for unintentionally passing on HIV.

In the UK it is possible to prosecute both ‘intentional HIV transmission’ and ‘reckless HIV transmission’, though no international transmission cases have ever come to court. 

NAT, like UNAIDS and the vast majority of the international HIV community, oppose prosecutions for reckless transmission as an example of 'overly broad criminalisation’.

However, there are a number of positive aspects of the process in the UK which have lessons for international practice and which are providing inspiration for colleagues trying to improve the situation in their own countries.

One positive is the good relationship between the HIV community and prosecution authorities. We have worked together to create clear and accurate guidance to support the process and ensure great care is taken to assess evidence fairly and accurately.   

For England and Wales there is additionally important advice for police when investigating allegations to make sure that their practice is in line with the law.

 NAT opposes prosecutions for reckless transmission, for three main reasons:

Prosecutions for reckless HIV transmission unjustly target diagnosed HIV positive people for punishment, and fail to reflect the broader shared responsibilities for sexual health and HIV infection.
Prosecutions for reckless HIV transmission do not result in reductions in HIV transmission or any benefit to public health – in fact they harm and undermine effective public health activity.
Prosecutions for reckless HIV transmission in practice result in miscarriages of justice, victimisation and discrimination.

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