4 HIV and Criminal LawHIV and Criminal Law 5
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.
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.
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.
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.
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?
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.
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.”