Criminalizing HIV

JOHANNESBURG – “If the law supposes that,” Mr. Bumble says in Charles Dickens’ novel Oliver Twist, “the law is an ass.”  A criminal law that makes it preferable for carriers of HIV not to know that they are infected and capable of spreading it to others, including their loved ones, seems particularly suited to Mr. Bumble’s condemnation.

Yet tragically, in a misguided attempt to thwart the spread of HIV and AIDS, lawmakers in many parts of the world have passed criminal statues that promote ignorance about the disease, punish its victims, and enhance the chances that the virus will infect new victims. Some countries in Western and Central Africa are enacting poorly drafted policies based on the African Model Law, which makes it a criminal offense for any person infected by the virus to transmit it to someone else or to expose another person to it. In some jurisdictions, prosecutors can bring charges against pregnant women who are HIV-positive for potentially exposing the virus to their unborn children.

There are, to be sure, rare and dramatic cases in which a person with HIV infects another with the specific intention of inflicting harm. It is a reality that men infected with HIV or AIDS in some parts of Africa have even raped girls believing that sex with virgins is a cure. And some women’s rights advocates have supported laws that criminalize transmitting HIV, arguing that these laws would punish men who concealed their HIV-positive status from their sexual partners, including their wives and girlfriends. But existing criminal laws are more than adequate to allow willing justice systems to mete out appropriate sanctions against people who intend harm.

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