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HIV and Criminal Law

HIV and Criminal Law

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HIV-Sweden’s conference on
HIV and Criminal Law 
 June 9th 2009 World Trade Center, Stockholm
 
2 HIV and Criminal LawHIV and Criminal Law 3
Lars Lindberg, HIV-Sweden:
 At the core of prevention
H
IV-Sweden’s involvement in the criminalisation of HIV-transmission and exposure has been strong for many  years. We have followed several cases that have come to our knowledge at a more or less close range. We havealso been involved in supporting and counseling both accused and defendants.
Our commitment is very much founded in how disproportionate we think the sentences and damages arein relation to the injury. Also, and as important, we want to oppose the image created by mainly tabloids of “HIV-men” and “HIV-women”. An image that describes HIV-positive people as monsters and potential mur-derers.We held a conference on the topic “HIV-men – Crime and Punishment” in 2003, with focus on the role of the media. Now we feel that it is high time to raise the issue again. Especially after the international AIDS Confer-ence in Mexico last year when Sweden was presented as one of the countries with most cases, longest sen-tences and highest damages in the world, when it comes to cases on HIV-transmission and exposure.This kind of criminalisation of HIV and its impact on HIV-prevention is fre-quently debated internationally. In Sweden it´s a “non-issue”. Neither media, nor  politicians or the legal system seems to see that there is something problematic inwhat we feel is a very complex question. That also became clear during the prepa-rations for this conference, when we despite hard efforts couldn’t get lawmakers or representatives from the legal system to attend. Media showed a somewhat higher interest, but far from satisfactory.Even so, HIV-Sweden will continue to work with the topic. And this report can be seen as a tool in the work of raising this question and as a resource of knowl-edge in a subject that is an important part of HIV-prevention but also a questionabout Human Rights and solidarity with people infected and affected by HIV.
HIV-Sweden 
is an umbrella organisation that works on HIV-issues at the national level to protectthe interests of HIV-positive persons. HIV-Sweden is an ideologically, party politically and religiouslyindependent organisation.HIV–Sweden’s objectives are to:

Telephone: +46 8 714 54 10, info@hiv-sverige.se, www.hiv-sverige.se
 This report
is a summary of the speeches and debates at the conference “HIV and criminal law”,arranged by HIV-Sweden and held at World Trade Center in Stockholm, June 9 2009. For furtherdocumentation go to www.hiv-sverige.se.Editor: Gudrun Renberg, gudrun@context.nuLayout and cover: Martin Nilsson, martingrafx@gmail.comPhotography: Melker Dahlstrand, melker@dahlstrand.sePrinted by: Haninge tryckeri, Haninge, August 2009© HIV-Sweden.
HIV-Sweden considers goodprevention as a basic tool in thestruggle against HIV. Meaning that asfew people as possible get infectedwith HIV.HIV-Sweden’s point of view is that the best way to achieve this is tosupply good support and counseling  to people that know that they livewith HIV, so that they can avoidinfecting somebody else. Anotherway is through increased knowledgeamong the general public so thateverybody can take responsibilityfor their own sexual health, anduse protection when having sexualcontacts and thereby avoid getting infected.Criminalisation works against goodprevention since it leads to increasedstigma and rejection of persons living with HIV.The stigmatization of people that carry the HIV virus implicatesnegative consequences. Some of  these can be that the person wholives with HIV chooses not to informabout it and that fewer personschoose not to be tested. That mayin the long run lead to that peoplenot realize the importance of protecting themselves. This kindof cover-up and secrecy lead to that people don’t realize that HIVexists in all parts of the community,regardless of age, ethnic origin andsex.
It is therefore the position of HIV-Sweden that the only acts wherethe intention or the direct intentionto transmit the HIV virus, and wherethe transmission actually occurred,should be considered a criminalact.
Knowledge about HIV, a jointresponsibility and respect is thefoundation of good prevention – notpunishment.
 The policy on HIV and criminalisation by HIV-Sweden:
Index of 
contents
Andreas Berglöf, HIV–Sweden: “It is time for positive prevention”Viveca Urwitz, National Unit for HIV/STI prevention: “New demands on counselling”Lena Holmqvist, Faculty of Law, Uppsala University: “Punishment does not work”Edwin Cameron, The Constitutional Court, South Africa: “We have the arguments”Summary of the debate: “This is the end of the beginning”Voices at the conference
469121620page
Lennart Ekdalmoderated theconference. Herewith Lena Holmqvist,Uppsala University.
   P   h   o   t   o  :   H   I   V  –   S  w   e   d   e   n
 
4 HIV and Criminal LawHIV and Criminal Law 5
T
his conference is about responsibility. It is aboutknowledge, the role of the media, human beings –and it’s about human rights. At the centre lies crimi-nal law and the impact of it.
But ultimately it’s about prevention. The criminalisa-tion of HIV-transmission or exposure through sex is oneof the most important issues to deal with in the name of HIV. It has many layers.
 T 
HE
 
MONSTROUS
“HIV-
MAN
The media headlines create an image of HIV-positive people as being irresponsible and monstrous. This issimply not true. One reason why Sweden has such a low prevalence is likely because people living with HIV haveacted in a responsible way.But Sweden is one of the countries in Europe with themost convictions in this area. This is worrying and needsanalysis.By 2008 a total of 8,455 cases of HIV have been reg-istered in Sweden. We have registered 38 cases whereHIV-positive people have been convicted. This makes 0.4 percent of all infected people. So they are rare, but getdisproportional attention. And this has a highly negativeimpact on HIV-prevention.I started working with this issue in 2001 when I wascontacted by a man who was sentenced to a long im- prisonment for transmitting the virus. He was also later deported. We looked into the case and saw no proportion between the act he had committed and the punishment.This is one example of many.
 A
SENSE
 
OF 
 
FALSE
 
SECURITY 
According to the Swedish Communicable Disease Act anHIV-infected person has to tell about his/her HIV-status before having sex. This we argue is counterproductive. Not only does it place all the responsibility on one indi-vidual. It also creates a false sense of security since noteveryone is aware of his/her HIV-status.According to the Swedish Institute for Infectious Dis-ease Control there could be up to 1,000 persons here whoare not aware of their HIV-status. In the rest of Europethere are many more. It would be much safer to teacheveryone to take responsibility for their own body andtheir own actions.Last year we had 42,000 new cases of Chlamydia inSweden. Chlamydia also serves under the Swedish Com-municable Disease Act where one is obligated to tellabout one’s STI. Maybe we should put these people in prison too? After all, Chlamydia can lead to sterility and alife without children and is highly infectious.
 T 
O
 
 TELL
 
OR
 
NOT 
 
 TO
 
 TELL
Why is it so hard to tell? One of our members stoppedtelling after being rejected over and over again. Another member lost his job. Another one said he was actuallytold by his treating doctor not to tell, because of the risk of being discriminated.Receiving an HIV-positive test result can be very dif-

that can last for up to two years. So you may have signeda paper with the rules for behavior according to the Com-municable Disease Act while still in the above described blur.Some members have even been blackmailed. If theydon’t pay a large sum of money, they will be reportedto the police for trying to transmit the virus. Damagesaround 700,000 crowns – approximately 70,000 Euros – is not unusual in court cases when an HIV-positive personis convicted for transmitting the virus.So for many it is rather a self-protective instinct to nottell, and the law can’t change that.
I
NFECTIOUSNESS
 
 AND
 
EVIDENCE
In these cases where no one have been infected it’s debat-able if the accusedhas been able totransmit the virusat all. Last year the Swiss NationalAIDS Commis-sion resolved thatan HIV-infectedindividual withoutan additional STI,on antiretroviraltherapy and withundetectable viralload is sexuallynon-infectious.Another partof the evidence is phylogenetic anal-ysis. The virusesof the accused andthe plaintiff iscompared. If thevirus is similar itshows that HIV-transmission fromthe accused to the plaintiff could have taken place – but itdoesn’t prove it. The test provides an estimate of related-ness but it can’t answer the critical questions: Who in-fected who and when?
 T 
HE
 
ROLE
 
OF 
 
 THE
 
MEDIA
Media headlines in Sweden can read as follows: “TheHIV-woman hunted her victims here”, or “New HIV-mandiscovered”.In her thesis
Beyond the age of innocence” AnnaLjung followed closely the reporting of a well-known

 picture of this man becomes more and more promiscu-ous. The portraying starts when he is suspected for rap-ing women or deliberately putting them at risk of HIV-transmission, to alleged oversexuality. The descriptiongoes on to claiming that he was going to open a brothel inStockholm and make productions of child pornography.Finally it is pointed out that he is bisexual and has hadunprotected sex with men.Anna Ljung also notes that the women who are inter-viewed by the press stress that they were fooled by thecharms of the “HIV-man”. They fell in love. The man’sactions are on the contrary described as being motivated by lust. Ljung writes: “The fact that females are depictedas victims of romantic sensations, incapable of actingindependently from sexual lust, is dangerous.” This is

The media demonisation of HIV discourages people toget tested. It fuels stigma against HIV-positive people andthe identity of them as a group. It damages prevention because it doesn’t make it easier to be open.
P
OSITIVE
 
PREVENTION
Historically we have in Sweden focused mostly on prima-ry prevention, towards people who are not yet infected.It is time we focus more on positive prevention and

 people living with HIV. Strategies that include the reali-ties and perspectives of them, information about HIV andhow to live with the virus. The participation of HIV-pos-itive people, access to harm reduction measures and the promotion of human rights must be part of this.Positive prevention aims to increase the self esteem,

their own health and to avoid passing on the infection.And positive prevention needs to be implemented withinan ethical framework that respects the rights and needs of  people living with HIV to enjoy sexual relationships, andlive a full and healthy life.Positive prevention needs a supportive legal and policyenvironment.
Andreas Berglöf, HIV–Sweden:
It is time for positive prevention
“The media demonisationdamages prevention.”

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