AIDS Update 2012 21th Edition by Gerald Stine

Exercise 3

What is your response to these issues?
Now read Point to Ponder 8.3, page 218.
POINT TO PONDER 8.3
CRIMINALIZATION OF HIV TRANSMISSION
Criminalization herein refers to the application of criminal law to prosecute those who knowingly transmit HIV and/or expose others to HIV. What is criminal is the act of reckless endangerment, not the disease. Criminalization laws appear to be spreading and include much of the world, spanning Australia, Canada, Europe, and the United States (see Box 8.4, pages 215-216) into sub-Saharan Africa and Asia. Little research has been done on why policy makers pass such laws, or their effect, but they seem to go hand in hand with the frustration that, despite increasing access to treatment and nearly three decades of HIV prevention efforts, HIV continues to spread unchecked. While some people believe that criminalization can promote public health outcomes and improve HIV prevention efforts, it may also deter people from accessing voluntary counseling and testing services, discourage them from knowing their HIV status, and impede people from seeking appropriate care and support, which undermines prevention, treatment, and testing efforts. According to U.S. law, if you don't know you have HIV, you are less culpable should you pass it along to a partner. This provides a disincentive for people to know their HIV status. But, if people are unaware of their HIV status, they can't seek care for their disease. When people are aware that they have HIV and seek treatment, their viral load can be reduced, rendering them less infectious. Therefore, criminalization of HIV may lead to the spread of HIV.
Recently there has been an increased use of the law in relation to HIV, and new laws are also being introduced as part of national responses to HIV. Yet there is little evidence to suggest that the application of criminal law is effective in responding to HIV. In countries with a low or concentrated HIV epidemic, some governments see legislation as a method to stop it from becoming generalized. It may also be viewed as a vehicle to control the unacceptable behavior of some people. In countries with a high HIV prevalence, governments may need to show that they are now doing something proactive to address prevention fatigue.
Edwin Cameron, South Africa Supreme Court of Appeals Justice, wrote in an opinion piece in the Korea Herald that "In a misguided attempt to thwart the spread of HIV and AIDS, lawmakers in many parts of the world have passed criminal statutes that promote ignorance about the disease, punish its victims, and enhance the chances that the virus will infect new victims." He cites poorly drafted policies in Western and Central Africa that make HIV transmission a criminal offense, including mother-to-child transmission. Cameron continues that although there are rare and dramatic cases in which an HIV-positive person transmits the disease to another person with the intent to harm, there are existing laws criminalizing these actions that are more than adequate. Criminal laws targeting all HIV carriers, however, are counterproductive and inherently unjust because they make HIV-positive people, especially women, criminals.
A Major Issue Raising Doubt about Broad-Scale Criminalization of HIV Transmission
With improvement in ART, the infected may now almost reach expected life spans. Drug suppression of HIV to undetectable levels greatly lowers the risk of HIV transmission. Also, the results of the Swiss study (see Point to Ponder 8.1) state that under certain conditions the HIV infected will not transmit HIV. The question should be asked, should such people with greatly reduced, that is, undetectable, viral loads be held accountable if they transmit the virus? And what of those who carry the virus but do not know? These people may, at the very least, expose their sex partners to possible HIV infection.
Global Criminalization Scan
The Global Network of People Living with HIV (GNP+) Global Criminalization Scan Web site, launched on December 1, 2008, is a living, growing document of laws, judicial practices, and case studies of criminalization worldwide. Data from over 150 jurisdictions in North America, Latin America, Europe and Central Asia, and the Asia Pacific region are currently available, with more to come from Africa and the Caribbean sometime in 2011. Globally, 58 countries have laws to prosecute HIV transmission with 33 countries about to pass such laws.
According to data presented on the site, the ten countries which have seen the greatest number of prosecutions so far are (highest to lowest): Canada, United States, Sweden, Switzerland, Austria, Denmark, Australia, United Kingdom, Germany, and France.
CLASS DISCUSSION: What are your thoughts about the criminalization/prosecution of persons infected with HIV? Give examples to support your opinions, either pro or con.
BOX 8.4
ASSAULT WITH HIV
Every state and territory has generic criminal statutes that could apply to conduct that exposed others to HIV. However, there is a growing frustration and fear about persons not revealing their HIV-positive status when they should (see the examples that follow).
Legislators around the country are passing an increasing number of laws intended to protect the public. This latest wave of legislation shifts the focus from earlier laws that protected the civil liberties of HIV-infected people to laws that seek to identify, notify, and in some cases punish people who intentionally place others at risk of contracting the virus. At least 36 states and two territories now make it a crime to knowingly transmit or expose others to HIV, with a third of those states enacting laws within the last five years.
In 2006, the California State Supreme Court ruled that constructive knowledge-when it is reasonably foreseen by a reasonably intelligent person that their actions could lead to harm-of the possibility that HIV transmission may occur is enough to allow for civil liability. However, this is the first ruling anywhere in the world to find that an undiagnosed individual may be criminally liable for HIV transmission. Then in July 2008 Switzerland's highest court-the Federal Court in Lausanne-ruled that a man who was unaware of his infection when he had unprotected sex that transmitted HIV is still criminally liable. The ruling suggests that unprotected sex in Switzerland without first disclosing a sexual history may result in prosecution should HIV be transmitted. In effect, Switzerland's highest court ruled that anyone who has had unprotected sex previously and does not disclose it to their sexual partner before having unprotected sex with them may be criminally liable, should HIV transmission take place.
According to a Missouri public health report in February 1998, Darnell McGee had sex with at least 101 females, including four whose ages were 13 or 14. It is reported that McGee infected 18 women but Missouri officials believe he infected 30 women.
Darnell "Bossman" McGee is just one of a number of men who recklessly and, in some cases, even willfully transmit HIV to their sex partners. Twenty-seven years ago it was Gaetan Dugas, or Patient Zero, a gay male who over three years knowingly infected an untold number (probably 50) of gay men across the United States.
Selected Cases of HIV and Punishment
In 1997 , there was Nushawn Williams, age 21, who in mid-1997 admitted to having unprotected sex with 50 to 75 women after he was told he was HIV positive. Most of them were teenagers ages 13 and up living in New York's Chautauqua County and in New York City. To date, 16 in Chautauqua are infected. The youngest was age 13; others were ages 15, 16, 18, and 21. In April 1999, Williams was sentenced to 14 years in prison. Only two women agreed to testify against him.
In February 2002 , the San Francisco Superior Court Commissioner ordered a former San Francisco health commissioner to pay his ex-lover $5 million in damages for knowingly exposing him to HIV and lying about his HIV status. Also, in May 2002, a child molester with HIV in Kansas City, Mo., was sentenced to three consecutive life terms, plus 52 years. He pleaded guilty in December to 13 counts, including statutory rape, sodomy, child molestation, and exposing others to HIV.
In January 2003 , a 39-year-old Bronx, N.Y., second-grade teacher accused of sexually abusing students while HIV positive was sentenced to 10 years in prison.
In March 2004 , in what may be the first verdict of its kind, a Cook County, III., jury awarded $2 million to a woman who sued her fiancé's parents for allegedly covering up that he was dying of AIDS. The woman's lawsuit alleged his parents knew of his infection and lied to her when she asked about his deteriorating health.
In June 2005 , a Massachusetts woman was charged with armed robbery and assault for allegedly stabbing a security guard with a syringe after he accused her of shoplifting. Witnesses say the 21-year-old then taunted customers asking, "Does anyone else want AIDS!?!" And in November, a former D.C. government worker who had known since 1996 that he was HIV positive was sentenced to a 21-year prison term for luring women and teenage girls into sexual relationships without telling them he was HIV positive.
In June 2007 , a Kansas City, MO., man, who spent five years in jail for exposing his sexual partners to HIV, received a life sentence in prison for knowingly exposing at least 8 women to HIV, with three of them testing HIV positive.
In 2008 , the Ontario Superior Court sentenced a 32-year-old male to 18 years in prison for 15 counts of knowingly and secretly spreading HIV to his female sexual partners. Also in 2008, in Australia, a 36-year-old male received nine years in jail for knowingly and secretly endangering three female sexual partners. In May 2008, a Dallas, Texas, court sentenced a 42-year-old HIV-positive male to 35 years in prison because he spit into the mouth and eye of a police officer during his arrest. The jury determined his saliva was a deadly weapon. In July 2008, a 43-year-old HIV-positive woman from Columbus, Georgia, was sentenced to three years in jail for spitting onto another woman's face. She said, "I hope you get AIDS, bitch."
In April 2009 , a Canadian man who is thought to have recklessly transmitted HIV to seven women, two of whom subsequently died, has made legal history by becoming the first person to be convicted of first-degree murder for sexual HIV transmission. The case has reignited the criminalization debate in Canada, which has prosecuted more HIV-positive individuals per capita for sexual HIV exposure or transmission than any other country in the world. (See Point to Ponder 8.3 on the criminalization of HIV transmission.) Also, in May 2009, a 34-year-old HIV-positive man in Iowa was sentenced to 25 years in prison for not disclosing that he was HIV-positive to his sexual partner before having sex with him. In June 2009 a 53-year-old HIV-positive male in Texas was sentenced to 45 years in prison for "six counts of aggravated assault with a deadly weapon- his body fluids."
The Inspector for the U.S. Postal Service said there are at least two known cases in which people mailed HIV-tainted blood through the mail for malicious reasons. The most recent was an HIV-blood tainted letter sent to President Obama (2009).
2011-Canadian Judge Rules That HIV Is Not A Death Sentence in HIV Criminalization Case An Ottawa judge did the unexpected when he rejected attempted murder charges against a man accused of knowingly transmitting HIV, stating that HIV is no longer an automatic death sentence. He said, "In a country like Canada, where antiretroviral drugs of the highest quality are available to everyone free of charge, the likelihood anyone is going to die over the next 25 years from HIV is extremely remote. So the very notion that anyone could be charged with attempted murder today seems strange."
Between 1987 and 2012 , at least 18 HIV-infected men and 3 HIV-infected women were incarcerated in 10 states because they bit another person. Two of the 18 bitten people became HIV positive. The charges in these cases varied from assault with a dangerous weapon, assault with a deadly weapon, attempted murder, aggravated assault with intent to murder, felony, reckless endangerment, and assault and reckless endangerment. Prison terms varied from 18 months for reckless endangerment to 27 years for attempted murder. In nine cases within seven states, one HIV-infected woman and seven HIV-infected men went to jail for periods of one to five years for spitting on other people. At trial in the seventh of these cases in Texas, a court-recognized AIDS expert testified that HIV could be transmitted through the air! The man got a life sentence and an appeals court upheld the sentence. This man died in prison.
Sex and HIV: If you have the first without disclosing the second, you can go to prison. In some states sex crimes and sex work can be elevated to attempted murder if the perpetrator (criminal) is HIV infected. Disclosing one's HIV status to a sexual partner may exempt one from prosecution. But not telling-even if you do protect and don't infect-is still a crime in most states in America.
These cases represent just a few of the over 700 recorded cases through 2011.
DISCUSSION QUESTION: What is your response to these issues?
1. Is knowingly transmitting HIV an act of violence?
2. Should the reckless or intentional transmission of HIV be a crime? If yes, how severe the penalty?
3. Do the cases bolster arguments for more aggressive partner notification and contact tracing (see Chapter 9, pages 263-267)? Why?
4. Do HIV confidentiality protections help or hinder efforts to alter the course of the epidemic? Why?
5. Would more ready access to condoms have helped avert these tragedies? How?
6. Who is responsible when an HIV-infected person knowingly continues to have unprotected sexual relations with others? Should the infected person be warned another time, assuming that the educational message was not heard? If so, how many times should warnings go forth? Are public health officials responsible for protecting susceptible spouses or long-term lovers of those who are infected and knowingly refuse to use condoms? Should the police become involved if protective advice is not followed, or should confidentiality remain in effect while educational messages go out that untold persons in the community are infected and all should use condoms?
7. Do such incidents support calls for more sex education, or less? Or perhaps different approaches to sexuality education? What approach might work? Why?
8. Now read Point to Ponder 8.3, page 218.
POINT TO PONDER 8.1
SWISS EXPERTS SAY INDIVIDUALS WITH AN UNDETECTABLE VIRAL LOAD AND NO SEXUALLY
TRANSMITTABLE DISEASES (STDS) WILL NOT TRANSMIT HIV DURING SEX
DOES UNDETECTABLE EQUAL UNINFECTIOUS?
Swiss HIV experts have produced the first-ever consensus statement to say that HIV-positive individuals on effective antiretroviral therapy-i.e., those with undetectable plasma RNA at less than 40 copies per milliliter of blood plasma-and without sexually transmitted infections are sexually noninfectious (Vernazza et al., 2008).
The statement says that "after review of the medical literature and extensive discussion," the Swiss Federal Commission for HIV/AIDS resolves that "an HIV infected person on antiretroviral therapy with completely suppressed viraemia (effective ART) is not sexually infectious, i.e., cannot transmit HIV through sexual contact." However, the Commission said, "it realizes that medical and biologic data available today do not permit proof that HIV infection during effective antiretroviral therapy is impossible, because the non-occurrence of an improbable event cannot be proven." The statement also discusses the implications of the consensus findings for doctors, for HIV-positive people, for HIV prevention, and for the legal system.
Bottom Line
The Swiss study implies that undetectable means uninfectious !
U.S. Investigators Disagree with Swiss Findings
The above Swiss findings that ART renders HIV infected people as "sexually non-infectious" immediately became a hotly debated topic that continues to be debated.
Seth Kalichman and colleagues (2008) reviewed 19 studies examining the relationship between the viral load found in blood versus that in semen. The bottom line of their review as it relates to the Swiss study is that semen that has an undetectable viral load is still potentially infectious and that cells in semen can contain HIV proviral DNA (HIV DNA embedded in the host-cell DNA) and can act as vehicles for the sexual transmission of HIV. Perhaps the real question is, has anyone shown a threshold below which people cannot transmit HIV?
Also, in 2009, at the 16th Conference on Retroviruses and Opportunistic Infections, several studies were presented that showed that HIV-infected males satisfying the Swiss criteria for becoming "sexually non-infectious" with undetectable viral loads in their blood plasma had measurable HIV RNA in their semen (Sheth et al., 2009; Marcelin et al., 2009; Butler et al., 2009). Earlier studies have shown that HIV is found in blood plasma cells of individuals even when they demonstrated undetectable blood plasma levels for HIV (Ibanez et al., 1999 and Furtado et al., 1999). Further, current ART that suppresses the level of HIV in the blood does not stop HIV replication in the male or female genital tract. In short, the protection provided by ART is NOT absolute and ART is NOT absolutely predictable. And the disagreement continues.
Swiss Court Suspends Prison Sentence in Light of Findings to Set Aside 18-Month Prison Sentence for Exposing His Female Sex Partner to HIV in February 2009
In the first ruling of its kind in the world, the Geneva Court of Justice has quashed an 18-month prison sentence given to a 34-year-old HIV-positive African migrant who was convicted of HIV exposure by a lower court in December 2008, after accepting expert testimony from Professor Bernard Hirschel-one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission-that the risk of sexual HIV transmission during unprotected sex on successful treatment is one in 100,000. The prosecutor in the case asked that the charges be dropped because he was persuaded by the Swiss Federal Commission's findings of a risk of one in 100,000. The prosecutor said, "one shouldn't convict people for hypothetical risks."
Comments from the American Centers for Disease Control and Prevention
With the publication of the Swiss study, the CDC immediately released the following statement:
An article recently published by Switzerland's Federal Commission for HIV/AIDS states that HIV positive individuals on effective antiretroviral therapy are not at risk for transmitting HIV to their sexual partners under certain circumstances. The Commission acknowledges that there are no scientific data that the risk of transmission in these circumstances is zero. The Centers for Disease Control and Prevention (CDC) underscores its recommendation that people living with HIV, who are sexually active, use condoms consistently and correctly with all sex partners (February 2008).
The CDC statement was followed by similar statements from the WHO and UNAIDS.
UPDATE - In mid-2010, Deborah Donnell and colleagues reported that HIV transmission drops dramatically in couples after the infected partner starts antiretroviral therapy (ART). Researchers studied 3400 heterosexual couples; one partner of each was HIV infected and none had begun ART. During follow-up of up to two years, 340 of the infected partners began ART. Overall there were 103 proven transmissions of HIV between the 3400 partners, but only one transmission occurred in a couple whose HIV-infected partner had started ART. The authors speculate that this 92% risk reduction was due to the drop in plasma viral load after ART. These data tend to support the Swiss study conclusions. However, in December 2010, data from Ledergerber and colleagues showed that the Swiss study had contributed to a behavioral change, in that people aware of the Swiss study were less likely to practice safer sex.