[legal-professionals] Avoid using criminal law for HIV, says new UNAIDS report

Barcelona, 10 July 2002 - Countries should generally refrain from
using criminal law to deal with conduct that carries the risk of HIV
transmission, according to a new report released today by the Joint
United Nations Programme on HIV/AIDS (UNAIDS). Instead, they should
use public health laws accompanied by appropriate safeguards for
human and civil rights.

The Criminal Law, Public Health and HIV Transmission report calls for
considered, reasoned approaches by law-makers in using criminal law
to prevent HIV transmission. It also stresses that any legal response
to HIV must be informed by, and consistent with, international human
rights principles.

"There have been numerous cases in which people living with HIV have
been criminally charged for conduct risking the transmission of the
virus," said Marika Fahlen, Director of Social Mobilization and
Information at UNAIDS, launching the report. "But we must be careful
to avoid over-reacting based on misinformation and prejudice, and
must not resort too quickly to criminal prosecutions. Such situations
can lead to a miscarriage of justice and promote stigma and
discrimination.

The report urges policy makers to consider the potential negative
impact of criminalization on HIV/AIDS interventions. For example,
branding a behaviour criminal can contribute to the belief that
people living with HIV/AIDS are "potential criminals" and are a
threat to the "general public". This, in turn, can deter people from
getting tested, thereby hindering prevention and care efforts.

According to the report, criminalization could be counter-productive
and could undermine public health messages to reduce or avoid
activities and behaviour that increase the risk of infection.
"Criminalization may also create a false sense of security among
people who are not infected," said Ms Fahlen. "If there is a criminal
prohibition against HIV-positive people, people who are not infected
may mistakenly think that this reduces the risk, and that they are
protected, if not by behaviour, then by a legal framework." Since HIV
transmission in many cases happens when people do not know they are
infected, a criminal prohibition will be irrelevant in most cases,
Fahlen added.

Criminalizing the conduct of people living with AIDS could undermine
people's confidence in counsellors and the health system if the
information discussed with counsellors is not protected from search
and seizure by police, or is used as evidence in court.

The report suggests that using properly-crafted public health laws as
an alternative to criminal law can often better achieve public health
goals. Public health laws can be more flexible, allowing health
officials to intervene privately on a case-by-case basis. Factors
underlying risky behaviour such as addiction, lack of information,
poverty, or violence can often be addressed more effectively than
would be the case when there is a criminal prosecution. Public health
laws may also allow for a better balance between individual liberty
and protecting the health of the general population, for example
through ensuring that individuals who are HIV-positive receive
adequate counselling and access to health care services.

By providing a range of recommendations - from protection of privacy,
to repealing laws that impede HIV prevention, to ensuring the right
to counsel - the authors of the report hope to make legislators aware
of the need for sound public policy in this area, rather than
legislating ill-considered laws that will be of little use in
stemming the epidemic and could make matters worse.

The report, the first containing policy options on criminalization of
this type of behaviour, was launched at the XIV International AIDS
Conference, being held here from 7-12 July. Also present at the
launch were Richard Elliott, Director of Policy and Research for the
Canadian HIV/AIDS Legal Network, and Justice Edwin Cameron, Judge of
the Supreme Court of Appeal, South Africa.

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For more information, please contact Anne Winter, UNAIDS, Barcelona,
(+41 79) 213 4312 (mobile), Dominique De Santis, UNAIDS, Geneva, (+41
22) 791 4509 or Andrew Shih, UNAIDS, Barcelona, (+34) 639 812 332
(mobile).