PANOS London - May 15, 1997

Are HIV positive people who engage in unsafe sex without informing their partners committing a crime? If so, what crime? This question is now the subject of intense debate not only in Zimbabwe but in courtrooms and Justice Departments around the world.

Research suggests that very few HIV positive people deliberately put others at risk of contracting HIV and since HIV emerged in the early 1980s, only a very small number of court cases have been brought against HIV positive people accused of knowingly infecting others. Despite their rarity, these cases received enormous publicity. Most have involved some form of violence such as rape, forced or threatened exposure to infected bodily fluids or in one case, biting. Existing laws against rape or assault have been adequate to deal with most of these cases.

Now, however, a number of cases have arisen where both partners agreed to sex but one partner did not know that the other was HIV positive. Should these cases now be brought under criminal jurisdiction?

The issues are complex. Not every act of unprotected sex between one person who is HIV positive and one who is not results in HIV transmission. The risks vary, but are increased if either partner has another sexually transmitted disease such as syphilis or gonorrhoea or any other illness that weakens or damages the reproductive tract. Should the penalties for HIV positive people who practise unsafe sex differ depending upon whether transmission ultimately took place?

It is also unclear how criminal laws could be fairly applied to unsafe sexual acts. In cases where it is alleged that HIV transmission has occurred, it is notoriously difficult to prove that one person definitely infected another with HIV. Ordinary HIV antibody testing is straightforward, but cannot detect infection for approximately three months after transmission has occurred, nor does it give any information about where an infection came from. More sophisticated tests, can be used to obtain evidence of similarity between viruses carried by the accused and the plaintiff, but these tests are expensive, technically complicated and the results are never certain.

There are profound ethical problems involved too. By contributing to the perception that HIV positive people are potential criminals, laws also could increase the burden of stigma HIV positive people often already bear from society and may even encourage human rights violations against people living with the virus.

Major policy decisions on these issues are expected during 1997 in several countries including Finland, Zimbabwe and Canada and illustrate the controversies arising in different cultural and legal settings.

The Zimbabwe Criminal Law Amendment Bill, currently under review by the Ministry of Law, has two main provisions. Firstly, anyone who knows they are HIV positive is liable to 15 years in prison for putting others at risk of infection through unprotected sexual intercourse or other means. Exceptions are granted to individuals who inform their partners of their status and whose partners still agree to sex. In addition, HIV positive married people are not liable for putting their partners at risk under any circumstances.

Under the second provision of the Criminal Law Amendment Bill, accused rapists would be subjected to mandatory HIV testing. HIV positive defendants would receive stiffer sentences if found guilty of rape.

Human rights groups and AIDS NGOs have criticised the Zimbabwe Bill on several grounds. Some of the fiercest criticism has centred on the exclusion of protection for married women. Under Zimbabwean law married women have no right to deny their husbands sex, even if both of them know he is HIV positive and even if he refuses to wear a condom. "The highest risk occupation for HIV transmission in this country today is to be a married woman," says Lynde Francis from The Centre, a counselling centre in Harare for people living with HIV "A married woman has no power to protect herself. There is no acceptance of the concept of rape within marriage in this country. This Bill was the perfect vehicle for bringing that concept in and it's been side-stepped," she argues.

The Bill also calls for mandatory testing of accused rapists, but does not explain how the HIV status of the defendant, who may not be proved guilty, will be kept from his employers, neighbours and the media. Confidentiality has been a cardinal principle for AIDS workers when people are tested for HIV.

The Zimbabwe Law Ministry is expected to complete its deliberations this year after which the bill will go before the Parliament for further debate.

Meanwhile, in Finland, 35 year-old Steven Thomas, an HIV positive American, resident in Helsinki is charged with attempted manslaughter for allegedly having had sex with over 100 women. Thomas was aware of his HIV status, but the women, all of whom had sex with Thomas willingly, were not. Under Finnish law, Thomas is definitely guilty but not everyone agrees about what crime he has committed.

In 1995, the Finnish Parliament modified the penal code related to crimes against health. Since then, anyone convicted of endangering the health of others, even without violence, is guilty of "aggravated assault", which usually incurs a lighter sentence than "manslaughter" with which Thomas is currently charged.

Markuu Fredman, the lawyer representing six of the women who had unprotected sex with Thomas argues that Thomas is guilty of manslaughter. He claims that, because Finland has such low rates of HIV infection, Parliament was not thinking about HIV when it modified the penal code in 1995. Had members of Parliament dealt specifically with HIV exposure, they would have considered it attempted manslaughter, says Fredman, whether they were associated with rape or with consensual sex.

Arno Arvela, Thomas' lawyer admits that his client is guilty, but not of attempted manslaughter, an act which necessarily implies intention to kill. Arvela could not comment specifically on Thomas' case, but he says people with HIV very rarely intend to harm others. "Mainly, it is just a case of someone neglecting his responsibilities", he argues. "In many situations, HIV positive people try to go on living as they were before, and it is very human to just keep it out of your mind", he claims. According to Arvela, there are few resources for HIV positive people in Finland. He thinks counselling and support services, along with comprehensive AIDS education for the general public would constitute a much more practical and humane way to prevent future cases like Thomas'.

The debates in Finland, Zimbabwe and elsewhere raise important questions about how the responsibility for controlling the spread of HIV should be apportioned between the state and the individual.

Those in favour of criminalising unprotected sex believe such legislation sends a clear message to people living with HIV to think twice before putting others at risk. In addition new laws would give legal redress to people who are infected or exposed to HIV through sex.

However many AIDS support organisations, including the Terrence Higgins Trust in Britain, the Canadian HIV/AIDS Legal Network and The Centre in Zimbabwe, believe that bringing HIV exposure through consensual sex under the umbrella of criminal law undermines current public health policy. They argue it could also divert resources and media attention from far more vital AIDS prevention activities including counselling and support for those living with the virus and education for all about the risks of infection.

Criminalising unprotected sex risks placing all responsibility for AIDS prevention on those who are already HIV infected. This clearly contradicts public health advice that everyone, HIV negative and positive alike, should be aware of the risks and endeavour to protect themselves and others by practising safer sex, sticking to one partner and using condoms.

There is a further drawback to such laws. Under the law in Finland and also under the proposed Criminal Law Amendment Bill in Zimbabwe, HIV positive people are only liable if they know they are infected. If prosecutions under these laws became widespread, there would be clear advantage in remaining ignorant of one's HIV status. AIDS prevention campaigns that have stressed the importance of voluntary testing and counselling could be undermined by such laws.

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