Don’t follow the United States’ lock-’em-up lead: That was UNAIDS’ message in July with its 52-page report “Criminal Law, Public Health and HIV Transmission” (www.unaids.org). The U.S. and Australia -- not Afghanistan -- lead the world in most vindictive: Here, 31 states prosecute HIVers for spitting, biting or having consensual sex -- in some cases even safer sex -- while positive [see "America’s Most Unwanted," POZ, August 2000].
The UNAIDS paper politely smacks down such laws, promoting prevention over punishment with such lines as: “Appealing to a desire for retribution runs the risk of appealing to prejudice and reinforcing discrimination.” The report, penned by Richard Elliott of the Canadian HIV/AIDS Legal Network, warns that HIV transmission involves “complex behaviors highly resistant to blunt tools such as imprisonment,” and recommends that only those who maliciously spread HIV be cuffed. In addition, the report suggests, laws should target only behavior that’s truly risky -- a subtle dig at U.S. spitting laws?
“The report is compelling,” said James Koch, the lawyer for Nikko Briteramos, a South Dakota teen who faces 15 years after pleading guilty to having sex while HIV positive [see "Sex Crimes," POZ, July/August 2002]. “These laws undermine prevention. They require public health departments to report to police, so people avoid getting tested.”
Lambda Legal Defense’s Catherine Hanssens, who has argued the issue before the U.S. Supreme Court, put it this way: “Criminal law should address public safety. Only a fool thinks intentional transmission is what’s feeding the epidemic.” But HIV prosecutions in the U.S. -- already well into the hundreds -- are likely to continue, she said, since “similar past recommendations have had no impact on the politicians who pass these laws.”