A more ethical form of HIV criminalization

HIV has been criminalized throughout the history of the epidemic, or to be more exact, people living with HIV and their behaviors have been a persistent focus of criminal law. This was undoubtedly due in part to the fact that HIV initially was untreatable and infection (for the vast majority) spelt death. It was terrifying. But it wasn't just an understandable public health reaction. Criminalization is not necessarily a wise way of controlling an epidemic, as it can be counterproductive, driving underground persons potentially subject to the laws. And there is no way of getting around that those disproportionately affected by HIV (especially in the USA), were considered 'undesirables' by many in the public and those leaders they voted for. Criminalization also reflected a moral panic against homosexuals and injection drug users. So, because it was not really based on solid public health principles or scientific evidence in the first place, it is unsurprising that states made laws covering actions highly unlikely to lead to transmission (like spitting or oral sex), fail to take the use of new prevention technologies (PreP, use of antiretrovirals) into account, and often don't take into consideration the intention to cause harm. What is perhaps more surprising (and depressing) is that many of these laws are still on the books.

I am thinking that HIV criminalization should not be abolished, but pointed in a better direction. Let me back up. For a few years now, I have been working on a NIH-funded project on the social and ethical dimensions of HIV cure research. In the context of that project, we have been confronted with numerous cases of people claiming they have found a cure for HIV. Such claims originate from all over the world, but Africa would likely be leading the pack, if anyone was counting. (Just set up a google alert with "HIV cure" and you will see what I mean) The President of the Gambia, Yahya Jammeh, claimed his home-brewed concoctions cured HIV, but his ex-patients (of those still living) aren't doing so well. But that is just one example. It is hard to keep up. This month, a Kenya politician, Harry Kombe, claimed that he can cure early-stage HIV with reflexology. And a whole bunch of other things, including helping a 60-year old woman give birth.

So here is where criminalization could come in. Anyone who, without any verifiable evidence, makes a claim of curing HIV, should be subject to prosecution, if serious harms can be reasonably shown to result from that claim being made. If, for instance, the claims of a cure involve or result in people going off their antiretroviral treatment, and the health of such people is seriously compromised, then the behavior of the 'cure claimer' should be criminalized. This could be expanded to cover the case of former South African President Thabo Mbeki and his HIV denialism, where a Harvard study indicated that his unfounded claims led to 300,000 deaths. An evidence-based criminalization of baseless HIV cure claims would vast improvement, in terms of justice, over the forms of HIV criminalization we have now. For one thing, Mbeki would be in a cell, rather than being the new chancellor of the University of South Africa.