Criminalization of HIV Transmission May Hinder Testing Efforts, Increase Spread of HIV, Researchers Say
The criminalization of HIV transmission could prevent people from getting tested for HIV, causing transmission rates to rise by a third or more, according to an article in the Nov. 17 issue of the British Medical Journal. Sheila Bird and J. Leigh Brown of the University of California-San Diego examine the case of Stephen Kelly, a Scottish man serving five years in prison for "culpably and recklessly" transmitting HIV to his girlfriend. Kelly, who knew he was HIV-positive but did not inform his partner of his status, was the first person convicted under a Scottish law that makes knowingly placing a partner at risk for HIV a crime. Kelly was one of at least 14 injection drug users who became infected with HIV in Scotland's Glenochil Prison in early 1993. He accepted voluntary testing as part of an infection control study at the prison and received counseling about his test results from an outside source. The authors theorize that people at risk for HIV will forego testing out of fear of facing criminal charges if they transmit the virus, because if they are unaware of their HIV status, they can plead ignorance to the charges. According to the authors' estimates, a 25% decrease in HIV testing by those who are infected with HIV at the prison could result in an increase in new HIV infections of more than 33%. A 50% reduction in the testing level could double the number of new infections.
The researchers also question whether molecular epidemiology studies that collect information on inmates' HIV status can continue at Glenochil. They say that because the police were able to obtain information from these ongoing studies, the data gained is now considered to be forensic evidence. "Informed consent notwithstanding, can doctors and scientists continue to appeal to patients, especially prisoners, to contribute samples for molecular studies when there is a risk that incriminating evidence will be discovered?" they ask. The researchers note that three follow-up studies at the prison were abandoned, as the information gained "had the potential to give incriminating evidence about secondary transmission" of the Glenochil strain of HIV to people outside the prison.
"Far from protecting the public, the Glenochil judgment has endorsed abrogation of individual responsibility in sexual partnerships by asserting a legal duty of disclosure on the infected partner," the researchers state. The judgment points to other flaws in the Scottish public health monitoring system. For example, counseling must be updated to include information about the legal penalties a person can face for transmitting the virus, to protect the person and the counselor from legal action, they note. The researchers write, however, that questions remain about which behaviors are criminal. Would it be considered criminal for a person who does not reveal his or her HIV status to have unprotected sex if no transmission occurs? Could a person still be prosecuted if they had protected sex and the condom broke, leading to HIV transmission? What about penalties for the transmission of other STDs? In light of these observations, "urgent review by the Scottish Executive is required to minimize the negative effects on public health and molecular science," the authors conclude (Bird/Brown, British Medical Journal, 11/17).