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HIV is not a crime: Reflecting on ten years of working on HIV criminalisation

Kat Smithson

By Kat Smithson

As I enter my last week working at National AIDS Trust, and with today marking international HIV is Not a Crime Awareness Day (HINAC Day), I’ve been reflecting on the many examples of the criminalisation of HIV that I’ve seen here in the UK over the past decade, and the damage that this broken approach continues to do. Because, while there’s been phenomenal progress in HIV, our criminal justice approach has yet to catch up. As we get ever closer to our 2030 target to end HIV transmissions, this must be reckoned with to truly shift the dial on stigma.

There are powerful public health and legal challenges to the law, yet despite this, prosecutions for reckless transmission of HIV continue to happen in England, Wales and Northern Ireland. And in Scotland there is an additional possible charge of exposure to HIV. Further HIV continues to be raised in courts and plastered over headlines for criminal cases where it’s totally irrelevant.

This continued framing of HIV as a criminal issue has very real negative impact on people’s lives and on wider efforts to end stigma and HIV transmissions for good.

Starting from a blank page, no sensible public health approach to HIV would engage the criminal law apart from in cases where there is a malicious intent to cause harm (a separate charge for intentional transmission exists). It’s widely understood globally, and recognised by UNAIDS, that the criminalisation of HIV transmission works against good sexual health promotion. The law has no useful effect in deterring HIV transmission, yet it does deter testing, with massive implications for individuals and the public as people go undiagnosed. It also deters people from talking openly about HIV.

Application of criminal law to HIV was not decided by political and public debate. Rather, the courts have determined that HIV transmission can amount to grievous bodily harm under the Offences Against the Persons Act (1861) – a law that was never designed for this purpose. They did so before a lot of the best treatments used today were around, and before we knew that treatment stops transmission.

The stark reality is that these prosecutions in the UK reflect and deepen other social justice and health inequalities. They disproportionately affect people from Black communities and time and time again people who are otherwise vulnerable are investigated. All of this undermines trust in the system from people living with HIV. In some of the most egregious cases, I have seen people living with HIV become the ones under investigation after reporting a crime themselves. This includes people experiencing intimate partner violence. Anecdotally, we know that threats of complaints to the police have been a feature of coercive abuse and blackmail. Yet conversely, harassment related to HIV status is rarely taken seriously. Further, cases are very difficult to prove and involve deeply invasive investigation with lasting effect on both parties.

In 2023 National AIDS Trust secured changes to prosecutor guidelines issued by the Crown Prosecution Service for England and Wales. Amongst other updates, the guidelines now reflect that it is not possible to transmit HIV when on effective treatment. In my experience, many investigations can and should be stopped early on and the hope is that this guidance hurries this along on a case-by-case basis. But guidance alone cannot mitigate the harms of criminalisation.

A prevailing theme is that police and prosecutors are often reluctant to rule out wrongdoing, particularly when they are aware someone is living with HIV. Misplaced concerns about duty of care can often lead to inappropriate sharing of confidential medical information and invasions of privacy such as reviewing someone’s phone, communication, and app use. We need to shift the immediate psychological response of the police to HIV. But many officers are starting on the back foot with this. Their only known experience and training on HIV is in the context of misrepresentation of risk.

We need to properly consider and acknowledge the complex impact of criminalisation beyond the usual confines of the public interest test used by prosecutors. The trauma of these cases, affect all involved, is ongoing, and permeates through the community. While we know the public health implications, we now need to effectively evidence them further if there is to be an effective challenge to the current legal position.

Our team is embarking on new research to do just that by building a picture of how the law affects both people living with HIV and efforts to end transmissions.

My hope is that in the not-too-distant future, all people living with HIV who come into contact with the criminal justice system are seen first and foremost as people with rights and needs, not as a potential threat to be investigated. HIV is not a crime.

Feb 28, 2024 By santi.agra