A New Global Crisis
I was therefore disturbed to realize recently that Norway has one of the world’s harshest laws criminalizing HIV—Penal Code 155. This provision makes criminal anyone with a communicable disease that is hazardous to public health who wilfully or negligently infects or exposes another to the risk of infection.
What is notable about the Norwegian law is that it includes negligent conduct (which means that a person may be guilty without intentional conduct) as well as mere exposure—which means that a person may be guilty even though there is no actual transmission.
The penalty is severe—up to six years of imprisonment. The law covers people living with HIV—a vulnerable group that experiences much discrimination.
At the global conference on HIV/AIDS in Mexico City last year, harsh laws of this kind were put under intense focus. Such laws and prosecutions are creating a crisis in HIV management and prevention efforts globally.
In this article I try to explain why, and also to point to how, Norway can reassert its global human rights leadership in this field.
Norway’s International Responsibilities
Norway is among the world’s most generous supporters of UNAIDS, the U.N. agency working to mitigate the impact of this mass worldwide epidemic. In addition, Norway has signed the United Nations General Assembly Special Session (UNGASS) declaration. This binds it to a common global strategy in the HIV/AIDS epidemic—and it urges nondiscrimination and opposes stigma.
But Norway’s criminal law is in conflict with both UNAIDS and UNGASS positions.
UNAIDS has urged governments to limit criminalization to cases “where a person knows his or her HIV-positive status, acts with the intention to transmit HIV and does in fact transmit HIV.” In contrast to this, Norway’s criminal code is precisely the kind of law that UNAIDS clearly warns against.
A Dangerous Signal
We know that several developing countries look to the laws of more developed countries in drafting their own. In Africa, my own continent, a growing number of countries are implementing laws criminalizing HIV, with devastating consequences—mostly against women.
By applying its own discriminatory legislation, Norway in effect exports stigma.
I am a judge in South Africa’s highest court. As someone living with HIV myself, who has been on successful antiretroviral treatment for 11 years, I have intense personal knowledge of discrimination and stigma—and its intensely damaging effects on human dignity, on prevention and on access to testing and treatment.
It seems to me that there are powerful reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.
Criminalization Is Counterproductive
ONE: Criminalization is ineffective. These laws and prosecutions have proved ineffective in limiting the spread of HIV. In the majority of cases, the virus spreads when two people have consensual sex, neither of them knowing that one has HIV. The fact that a criminal law is of no use is always a good reason for doubting whether it should be on the statute book.
TWO: Criminal laws and criminal prosecutions are a bad substitute for measures that really work in controlling the epidemic. Experience shows us that well-considered public health programs offering counseling and testing and treatment are far more effective in containing the spread of HIV. Therefore effective prevention, protection against discrimination, reduced stigma, strong leadership and role models, greater access to testing and, most important, treatment offer better options than criminal prosecutions.
THREE: Far from protecting women, criminalization victimizes, oppresses and endangers them. In Africa, most people who know their HIV status are female because most testing occurs at antenatal health care sites. These laws have rightly been described as part of a “war on women.” They are not just a war on women. They are a war on all people with HIV.
FOUR: Many of the new laws in Africa, which are being adopted partly on the strength of Western European precedents, are extremely poorly drafted. For instance, under the “model law” that many countries in east and west Africa have adopted, a person who is aware of being infected with HIV must inform “any sexual contact in advance” of this fact. But the law does not define “any sexual contact.” Is it holding hands? Kissing? Nor does the law say what “in advance” means. The rule of law requires clarity in advance on the meaning of criminal provisions and the boundaries of criminal liability. In cases of agreed sexual intimacy, this will always be difficult to attain.
FIVE: Criminalization increases stigma. From the first diagnosis of AIDS 28 years ago, HIV has carried a mountainous burden of stigma. This has been for one overriding reason: the fact that it is sexually transmitted. No other infectious disease is viewed with as much fear and repugnance as HIV. Tragically, it is stigma that lies primarily behind the drive to criminalization. It is stigma, rooted in the moralism that arises from the sexual transmission of HIV, that too often provides the main impulse behind the enactment of these laws.
SIX: Criminalization is a strong deterrent to testing. It is radically incompatible with a public health strategy that seeks to encourage people to come forward to find out their HIV status. AIDS is now a medically manageable disease. But why should any woman want to find out her HIV status, when her knowledge can only expose her to risk of prosecution?
Punishment or Support?
Criminalization assumes the worst about people with HIV and punishes vulnerability. The human rights approach assumes the best about people and supports empowerment. HIV is a virus, not a crime, and we must reject interventions that suggest otherwise.
Norway’s legislation also makes it difficult for a country that should be leading the world in nondiscrimination to confront other countries’ laws. For instance, Norway has contributed constructively to the international move to abolish travel restictions on people with HIV.
United Nations’ Importance
An important Norwegian initiative is the HIV Manifesto, recently launched. There, Norway’s secretary of foreign affairs, Jonas Gahr Støre, is quoted as telling students at the University of Oslo in September 2008 that “We need U.N., and the world needs U.N. U.N. is our most important tool to create a better world. Such an organization we should take great care of!” A practical endorsement of this laudable internationalist approach would be to radically reconsider whether Penal Code 155 should exist at all.
A Cosmetic Revision
Yet it continues to exist in Norway. The recent revision, suggested by the government, seems to present, as professor Stig Frøland has suggested, merely a cosmetic change. This is because under the proposed changes, both negligent and willful exposures (and not only infections) remain punishable.
I hope that a South African jurist living with HIV can respectfully call on Norwegian lawmakers, prosecuting authorities, politicians and the medical professionals to come together to find ways of embodying the UNAIDS position that opposes criminalization.
A Better Solution
The penal code on transmission and exposure is not just about HIV. It offers an answer to the puzzle of how a country treats its citizens.
Let us fight against stigma, discrimination and criminalization—and fight for justice, good sense, effective prevention measures and access to treatment. Only by these means can we combat this epidemic globally and continue to limit its effects in Norway.