Making HIV transmission a crime

There was a time when persons living with HIV were treated in somewhat peculiar ways, considering that they had a transmissible, incurable and (before the advent of antiretroviral treatment) invariably fatal disease. Some of the virus' chief modes of transmission -- injection drug use and anal sex -- led swiftly to stigmatization and discrimination towards carrying HIV, and therefore public health agencies, governmental organizations, and advocacy groups stressed the need to protect HIV-positive persons. Initially, when there was no effective treatment, there was no great push to have members of 'at-risk' populations tested: testing (it was argued) would increase stigmatization without real compensating benefits. Whenever testing was done, there was elaborate concern about preserving the confidentiality of the tested person, given the possible social consequences of being outed as HIV-positive. The ethical hand-wringing around HIV testing only started to decline, after two significant biomedical innovations: the development of means to prevent mother-to-child transmission of HIV, and the discovery of effective anti-retroviral treatment. It is only recently that public health agencies have used somewhat more aggressive means to get people HIV tested, such as 'opt-out' testing of pregnant women in hospitals. What makes all this peculiar is that transmissible, incurable and fatal diseases generally have not been handled with such delicacy and restraint in the past. Even epidemics of transmissible and curable diseases -- like tuberculosis and syphilis -- led past governments to invoke laws and ordinances strongly limiting personal autonomy for the good of society. From a public health perspective, HIV/AIDS has been treated exceptionally, i.e. there has been a greater stress on personal autonomy and human rights when tackling it than has been typical for diseases of this type and magnitude.

Against this background, an opinion piece and a recent news item caught my eye this week. In the Bioethics Forum, Udo Schuklenk argues that some HIV transmissions ought to be criminalized. The kinds of transmissions he is thinking of are clear-cut cases where a person, who knows he or she is HIV-positive, engages in unsafe sex with his or her partner, and the latter becomes HIV-infected as a direct result. Schuklenk is not worried (rightly) that criminalizing this sort of HIV transmission is stigmatizing or discriminatory to the perpetrator: knowingly exposing another person to HIV infection is just plain wrong, and the general concern about the human rights of HIV-positive persons shouldn't obscure the fact. HIV-positive persons need certain kinds of protection as well as access to prevention, care and treatment -- but they are not above the law.

Compare with this: in the small province of Papua in Indonesia, a bylaw has been proposed to involuntarily implant microchips under the skin of certain HIV-positive persons. Which HIV-positive persons? Those which are deemed 'sexually aggressive', i.e. those who are suspected of knowingly having the disease and actively spreading it intentionally to others. The microchip -- in some science fiction twist -- is supposed to track and identify the suspected person's sexual behavior. The proposed legislation stipulates that those found guilty of infecting others would be liable to a $5000 fine or six months in prison. This approach, of course, is a radical departure from 'AIDS exceptionalism'. The kid gloves are off: Indonesia has a growing HIV/AIDS epidemic, so let privacy be damned.

In some way, these two stories are related. One could say that the Indonesian proposal is merely a matter of being proactive: if intentionally infecting people with HIV is wrong, then we should have accurate tracking systems for 'suspect individuals' in order to control their behavior and prevent infections, as well as faciliate evidence-based judgments of criminal guilt when an infection occurs. But it seems ethically desireable to distinguish (a) criminal punishment of those who knowingly infect others with HIV from (b) invasive surveillance of individuals who allegedly might knowingly infect others with HIV. (a) is an expression of common sense and basic justice, whereas (b) has no clear public health or legal justification, and seems a step towards an Orwellian nightmare.