HIV is - still - no crime
1er mai 2001 (Agenda)
MANCHESTER, 1 May 2001 (Agenda)
By Denise McDowell
Ever since 1997, when Home Secretary Jack Straw planned to make a similar kind of prosecution possible in England (through reform of the Offences Against the Person Act) George House Trust has campaigned consistently against criminalising people with HIV. That year we sent thousands of postcards to Jack Straw, lobbied and briefed MPs and highlighted the issue in the media. The Home Office very sensibly dropped its proposals.
We believe that every adult has responsibility for their own consenting sexual behaviour and for protecting ourselves. If you criminalise the transmission of HIV you put all the responsibility on people with HIV. We all must take responsibility for our own actions, including in sex. (Rape and unconsensual sex are, of course, different issues and laws exist to deal with these).
Criminalisation only further adds to the stigma and discrimination faced by all people with HIV- and creates a culture of blame - which can only be detrimental to everyone.
This court case has caused an enormous amount of fear, upset and uncertainty for people with HIV. Prosecution can only take place after someone has been infected with HIV. It may serve to fulfil the anger of an individual person who has been infected ; But it seriously undermines the efforts we are all trying to make to end discrimination and support people with HIV.
The outcome of this case is likely to mean that people may be less likely to take an HIV test (if you "don’t know" you can’t "deliberately infect") so fewer people will benefit from HIV treatments. Educating people about HIV just becomes harder.
We must make sure that a case like this never happens again.
Denise McDowell is Director of George House Trust
On 19 March 2001 the Guardian ran an editorial conceming HIV voluntary organisations like George House Trust who opposed the sentencing of a man in Scotland to five years in prison for transmitting HIV to another person.
It’s an old journalistic trick. Having written a dreadful editorial, the paper refuses to publish responses to it. In the absence of anyone writing in to support its position, the paper waits until it can find the wettest letter possible to publish, a letter at worst of mild amendment, so mild that it adds up to endorsement of the paper’s original stance and by its appearance suggests that no further criticism even existed.
Our reading of events in the last few years goes like this.
Jack Straw has been seeking to criminalise people with HIV since 1997. Seizing on the populist reaction to the - understandable - anguish of a woman who had become positive as a result of a love affair overseas, Straw tried to introduce a new law, to update the legislation on offences against the person so as to make it criminal to infect someone with a disease.
Four years later, there remains no new law. This is because thousands of ordinary people wrote in to the Home Office and said, simply, HIV’s no crime. Regardless of any possible good intent behind the proposed law, it was unworkable. And more seriously, even if it had been workable, to find a definition of deliberately infecting someone that would enable prosecutions to take place, it was not worth it. The damage caused to the health of the public, by deterring people from coming forward for testing and treatment, by driving HIV underground, by stigmatising people with HIV (all people with HIV) with the brush of potential "criminal" ?. such a cost was not worth the effort of tidying up a tiny part of a law that was unlikely to be used.
Four years later it remains the case that the Home Office has been unable to proceed. The Guardian recognised this very recently, noting that no plans to introduce new legislation existed. It remains the case that the peaceful protests won the argument. If someone rapes someone or if someone stabs someone, then these are already crimes and the offenders can be prosecuted. Consenting sex - or even consenting sharing of needles - is not a crime. (Infecting a population with contaminated blood may be a crime of corporate manslaughter, under new legislative proposals - welcome but not these do not threaten to criminalise the individual person living with a terminal illness.)
But, unfortunately, four years later, and not least because of the encouragement created by the English Home Secretary’s raising the idea, the Scottish courts (where the law is different to that of England and Wales) have produced an awful verdict. A man who had consenting adult sex with a woman has been sent to prison for five years for doing so. He didn’t tell her the truth. He had HIV. He acquired it in prison and for this he is being sent - to prison.
He is regarded as reckless in his behaviour. Thus he is to blame. The Guardian agrees - "people with HIV are culpable too" it said on March 19th 2001.
So too, then, are the Home Office, the prison authorities, the Departments of Health - and the media, who have all recklessly misinformed the public about the routes of transmission of HIV, recklessly failed to provide condoms in prison, recklessly abandoned the health care of much of the population, and recklessly encouraged the idea that the law can be changed and whipped up yet more hysteria against people living with HIV. People are already experiencing discrimination (some of it still legal) and stigmatisation because of the illness.
And despite the palpable error of this judgment and its sentence, the Home Office response to the Scottish verdict was that this could now be tried on in England and Wales too.
In the face of this, and despite its own more balanced response to the earlier debates, the Guardian editorial went on to support the criminalisation of people for "reckless sexual behaviour". It meant people with HIV.
But why stop there ? How stop there ? Would this not also be an incentive not to be tested for HIV, as if you do not know you are positive, you cannot "knowingly" infect anyone else ? There was a barrage of criticism for this stupid and irresponsible editorial.
No response was sought by the paper. No response was published. Three days later the paper instead published a rather wet letter from the London based Terrence Higgins Trust’s Chief Executive. The THT had been the focus of criticism by the Guardian, for its (welcome - at last) comments that criminalisation would not make things better. The Chief Executive sought to move away from this. He welcomed the Home Office view that deliberately infecting someone with HIV should be a criminal offence. (Question - the view that has been abandoned by the Home Office ? The law that has been dropped by the Home Office ?) Although making the absolutely correct points that sexual behaviour is not always logical and planned, and that increasing the fear of criminalisation could deter people from testing and treatment, the drift of the THT contribution was to back up the Home Office and the Guardian.
We have to ask a simple question. It is the same one we have been asking all along. How does criminalising help ? What does it say to people with HIV, here and now, and to those who may become positive ? What is the crime ? Consenting sex is not a crime. Having HIV is not a crime. Can someone explain how you deliberately infect someone else, except by an unconsenting act which would therefore already be - rightly - a criminal assault (eg by rape, stabbing, corporate manslaughter) ?
We cannot see what public good is served by promoting the hysteria against people living with HIV, rather than seeking to support people here and now and to provide resources to prevent the spread and alleviate the symptoms of HIV for the future, here and across the world.
Criminalisation doesn’t help. If you follow the line of Straw, the Guardian and all the well-heeled hangers-on, things will only get worse.
John Nicholson is Chief Executive of the UK Public Health Association
If there is one thing I have learned since I joined PHACE West it is that HIV is not something that lends itself easily to the sound-bite culture. It has also become increasingly clear that the media are determined to keep ’stories’ alive at a very personal level which mitigates against the very real need to raise the complex issues relating to HIV and have informed debate at a social, legal and political level. In their push for judgements on the behaviour of individuals rather than the far-reaching impact of a five-year prison sentence for a positive man for ’reckless and culpable behaviour’ in infecting his ex-partner we have yet another example of this.
PHACE West is committed to promoting the rights and meeting the social care needs of all people directly infected and affected by HIV and as such identified a number of concerns resulting from above prosecution :
- It may well lead to fewer people having an HIV test. (Isn’t it better not to know than to face a prison sentence in the future or to live a life of complete isolation and celibacy ?).
- It will lead to the further exclusion of those people who are HIV positive and add to the considerable discrimination and prejudice they already face.
- Confidentiality appears to have been breached on a number of occasions in the gathering of evidence. What are the boundaries to this, will it happen again, is confidentiality still possible ?
- In bringing the legal system to bear on consensual sex between adults an extremely worrying precedent is set - will it be used again with regard to HIV transmission or other BBV’s and STI’s ?
From this conviction, responsibility for managing HIV is shifted seamlessly on to those individuals living with the virus. Here is a clear message that it is now the sole responsibility of people who are HIV positive to manage both their own and others sexual health. Where does personal responsibility sit within this view of the virus ?
In arguing all of this with the media we impressed our support of both the individuals involved. Both are living with HIV, and the impact of this cannot be underestimated. As agencies we must ensure that the services are there to enable them to come to terms with their diagnosis, access the best medical treatment available and empower them to take back their place in society robbed from them by public reactions to HIV.
In the end, I almost envied those individuals who are able to live in a world where right and wrong are so clearly defined and where there is no room for doubts, questioning or compassion. No moral or ethical dilemmas brought to the fore for them ! With HIV, as in so many areas of life, there are ’good’ people and ’bad’ people. In this world the good people are ’innocent victims’ and the bad ’guilty perpetrators’.
It seems it is easier for us as a society to apportion blame and to judge the rights and wrongs of other people’s behaviour rather than to accept a shared responsibility for the difficulties we face both individually and collectively. Furthermore, PHACE West believes that the re-emergence of the blame culture within the HIV world is extremely worrying. We must guard against it at all costs and ensure that we are able to analyse all the relevant information, which allows us then to move forward in a positive and constructive manner.
Our societal hunger for scapegoats has blurred the issues in the relation to this case. Incarceration in prison, where the individual became infected in the first place, is not an acceptable outcome. Rather, we must work towards a society where people are enabled to take responsibility for the choices they make and accept that simplistic solutions to complex human issues will not provide long-term, meaningful change either at an individual or societal level.
Through commenting on this case I have also been reminded that if you dare to speak out on issues relating to HIV criticism is never far behind. Yet comment we must. Silence only serves the (unacceptable) status quo and strengthens the position of those individuals who would have us analyse the issues relating to HIV at a purely individual level.
Charlie McMillan is Director of PHACE West