This article was written by Augustin Martin who is student at Sciences Po.
Taking into consideration the advent of preventive treatments (PrEP and TasP) in the criminal law of HIV transmission, exploring the limits of criminal law to handle a public health issue
In her 1987 essay called “AIDS, Homophobia and Biomedical Discourse”, Paula Treichler analyzed how, after HIV discovery, the subjective neo-constructed medical language on AIDS helped to establish prejudice, making AIDS an “epidemic of signification” (Treichler, 1987). Similarly, the law around HIV transmission also creates a subjective legal language, instrument of Foucault’s biopower, affecting the perception of the issue and the stigmas gravitating around it.
Since its discovery in 1983, HIV has been treated as a public health issue. However, HIV has also been used as a weapon, like in the Rwanda genocide, and continues to be in Darfur and West Sudan, according to the UN. At another level, in the 1980s emerged before national courts the first cases of criminally intended HIV transmission from individuals, which triggered some courts to set up criminal laws specific to HIV transmission (Lehman et al., 2014). These laws vary in two ways: what they view as the criminal offense and how they treat the question of consent. Here we study American states having a hard criminal law on HIV transmission, considering non-disclosure as sufficient to request a criminal sentence, and we will especially discuss the case of Rhoades v. State of Iowa (2009). Although Iowa law changed in 2014, we must keep in mind that a lot of American states still have these hard laws, like Arkansas (Center for HIV and Law Policy, 2017).
The example of Rhoades v. Iowa shows how these laws are still based on the 1980s conceptions of the virus, shaped by the original notions created around this “epidemic of significations”.
Nick Rhoades, a seropositive man who has been taking constant medical antiretroviral treatment since 2005, had intercourse with another man in 2008 without disclosing his status. He was put on trial a few days later, upon disclosure. He had been told by his doctor in 2008 that, thanks to his treatment, his viral load was undetectable, shrinking the risk of transmission to almost 0. His partner did not contract HIV during this intercourse. In 2009, he pleaded guilty for the crime he was accused of, sentenced to “a term of imprisonment not to exceed twenty-five years with life parole” and required to “be placed on the sex offender registry” (Supreme Court of Iowa, 2014, p. 4); similar to what could have been pronounced for a homicide. The verdict was later changed to 5 years with probation because the court agreed that at the time there was no legal basis for the guilty plea.
The judgment was based on Iowa Code section 709C.1 which requires, for a person to be considered as “committing criminal transmission of the human immunodeficiency virus”, that: (1) “the defendant engaged in intimate contact with [the victim]”, (2) while being HIV positive, (3) while knowing his positive HIV status, and (4) “[a]t the time of the intimate contact, [the victim] did not know that the defendant had a positive HIV status.” State v. Stevens, 719 N.W.2d 547, 549 (Iowa 2006). The broad notion of “intimate contact” has later been clarified as “(1) intentional exposure of the body of one person to a bodily fluid of another person”, (2) which “occurred in a manner that could result in the transmission of . . . HIV.” (ibid.). In this legislation, the criminal act is the non-disclosure rather than the criminal intention itself and little attention is given to the argument of immunosuppression.
What’s more, the law does not consider the probability of exposure or the actual transmission, thus still considering HIV in the “infectious diseases model” (Halkitis et al., 2017), that is, as a death sentence to the victim. This conception has been challenged recently by Canadian scholars stating that such outdated model should be replaced today by a “chronic manageable diseases model” (Loutfy et al., 2014). Indeed, thanks to improvements in treatments, the life expectancy of someone infected by HIV at 20 years of age is now 50 to 60 years longer than originally, and “the causes of death are shifting away from AIDS-defining illnesses […] toward non-HIV-related causes.” (ibid., p. 4). The role of this statement is not to undermine the danger of HIV, but rather to underline that in countries like the U.S.A., with the progress of biomedical treatments, HIV transmission should no longer be considered in criminal law as a death sentence.
These heavy sentences combined with the criminalization of non-disclosure can indeed be counterproductive in the fight towards HIV transmission. These laws are based on the principle that fear of prosecution will lead to more disclosure of abstinence (Galletly & Pinkerton, 2012; Cockerill & Wahlert, 2014). However, many works have found no evidence of a link between criminal HIV transmission law and the practice of safer sex practices (Galletly & Pinkerton, 2006). It has been shown that these laws strengthen stigma on people living with HIV and AIDS, undermining both HIV status disclosure and HIV testing (Harsono et al., 2016). The rationale is that knowing your status makes you liable for a crime considered almost equal to a homicide attempt, deterring people from getting tested. Thus, public health care paradigms and HIV criminalization are “fundamentally opposed to one another”(Halkitis et al. 2017).
Criminal law, like the one that has been used in Rhoades v. Iowa, also fails to take into account progress in treatments and how this changes our perception of HIV transmission.
What is surprising in the Rhoades v. Iowa case is that Rhoades was convicted although being assured that his treatment reduced his viral load to an undetectable point. If medical treatments for HIV in the 2000s could have been not trustworthy enough to be considered in court, in 2009, when Rhoades was judged, treatment as prevention (TasP) could ensure a negligible risk of transmission. In 2014, when Rhoades asked for a postconviction relief before the Iowa court of appeal, the court considered the argument a posteriori, stating that “with the advancements in medicine regarding HIV between 2003 and 2008, we [the judges] are unable to take judicial notice of the fact that HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus to fill in the gaps to find a factual basis for Rhoades’ guilty plea.” (Iowa, 2014, p. 18). The 2009 jury did not go behind the words, only asking Rhoades if he had “intimate contact” with his partner (while knowing he was HIV positive). The 2014 jury showed an effort in the definition of the notion of “possibility” implied by the phrasing: “intimate contact […] that could result in the transmission of HIV” (ibid.). While some court “recognized the word “possible” may mean allowing any likelihood of occurrence, no matter how remote” (ibid., p. 8), the jury based his thinking on State v. Keene (Iowa, 2001) to recognize that “the word carried a notion of reasonableness” (ibid, p.8), which renders such criminal laws outdated in the face of new biomedical means of protection. The two main treatments available today are Treatment as Prevention (TasP) and Pre-exposure prophylaxis (PrEP).
TasP is a strategy of antiretroviral treatment, which follows a logic of “positive” prevention, blocking the virus’s process of replication and infection. The idea of using antiretroviral therapy to prevent HIV transmission is rather old since this very principle is the one at the heart of the Mother to Child Transmission Prevention (MCTP) paradigm. The 2008 “Bulletin des Médecins suisses” (Vernazza, Hirshel et al., 2008) stated that antiretroviral treatments are effective in making patients incapable of transmitting HIV. Breakthrough advances in preventive sciences have led to the state-of-the-art Prevention Access Campaign “Undetectable=Untransmittable” in the USA, which won large support from scientists and health policy officials. The American Prevention Access Campaign (2016) stated that “having an undetectable viral load for at least six months […] means you are not putting your partner at any level of risk. There is no moral imperative to disclose when you are not putting your partner at risk.” (American Prevention Access, FAQ, 2016).
On the other hand, PrEP is a treatment for seronegative people, preventing them from getting infected. It is composed of two antiretrovirals against HIV. Halkitis and Griffin-Tomas have highlighted the role of PrEP, “empowering HIV-negative individuals to protect themselves from HIV even in situations where condomless sex occurs.” (Halkitis et al., 2017), helping to distribute more evenly the burden for protection, until then solely resting on the seropositive individual. According to scholars like Matthew Weait (2001), most of the time, law pictures HIV transmission as “purposively deployed as a weapon” in which X is held accountable for transmitting the virus to Y (Weait, 2001, p. 450). However, this model collapses when we are talking about “sexual conduct in which neither party is concerned purposively to harm the other” (ibid., p. 450), where transmission rather occurs between people. Matthew Weait argues, in this case, for a model in which responsibility has to do with “the conduct of those between whom transmission takes place” (ibid., p. 450). He sums up his argument this way: “To put it bluntly, I have a choice. I can assume that I and my partner or partners may be HIV+ (whatever they say) and only engage in safer sex. Here, actual knowledge of HIV status is irrelevant, but the consequence is an elimination or minimization of the risk of transmission.” (ibid., p. 452). While this argument can seem a bit extreme, it sheds light on the absence of legal recognition of the risk taken by seronegative partners engaging in unprotected sex. This notion of shared responsibility has, since the 90s, been at the center of the prevention policy of the National HIV Council (in France), following the principle that “both partners share the risks and their consequences” (Étude n°151, Sénat, 2005).
However, we have to consider the fact that PrEP, as a preventive treatment, is not financially available to everyone, everywhere. It follows that one cannot integrate consideration on biomedical protection, not available to all, in a law supposed to apply similarly to all; such a decision would be a source of socio-economic discrimination. In the USA, things are changing, with the Department of Health and Human Services launching as of early December 2019 a program called “Ready, Set, PrEP”, making PrEP available at no cost to those who don’t have prescription drug insurance coverage. However, the stigma associated with taking PrEP is likely to still represent a barrier to access. We can here quote the Consensus Statement on HIV « Treatment as Prevention » in Criminal Law Reform (2017), which reminds us that “LGBTQ people, people living in poverty, undocumented immigrants, and those relying on sex work to survive also face regular targeting by the criminal legal system. The same factors that create this unfairness also make members of these communities less likely to achieve long-term viral suppression” (ibid, p. 1).
In conclusion, HIV criminalization law needs to consider the breakthrough in preventive science and to think further about the responsibility in HIV transmission to alleviate the stigma that it lays on HIV positive people, deterring them from getting tested or disclosing their status. The protection allowed by such treatments as TasP and PrEp pushes us to wonder if the issue should not be, as it was initially done, treated as a public health crisis rather than by criminal law. The permanence of criminal intentions and the unavailability of TasP and PreP for all should nevertheless temper our judgment. Thus, it seems that, without putting criminal law and public health in conflict, the best solution would be to promote laws considering biomedical innovations, which would see criminal intentions rather than non-disclosure as a crime, while promoting universal access to preventive treatments. These thoughts meet UNAIDS guidelines and highlight the importance of encouraging change in policies to “educate a new generation on the ‘truth’ about HIV in the 21st century” (Halkitis et al., 2017).
Augustin Martin is a double bachelor student at Sciences Po and Sorbonne University in political sciences and biology, interested in the questions of bioethics and public health.
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– Consensus Statement on HIV “Treatment as prevention” in Criminal Law Reform, Endorsed by 10 major institutions, 2017
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– Senate (France), Étude de législation comparée n° 151 – octobre 2005 – Le traitement pénal de la transmission du sida par voie sexuelle, Office of Legal Studies
– Supreme Court of Iowa, Official decision for Keene V. Iowa case, 2001
– Supreme Court of Iowa, Official decision for Rhoades V. Iowa case, 2014
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