Expert consensus statement on the science of HIV in the context of criminal law

Abstract

IntroductionGlobally, prosecutions for non‐disclosure, exposure or transmission of HIV frequently relate to sexual activity, biting, or spitting. This includes instances in which no harm was intended, HIV transmission did not occur, and HIV transmission was extremely unlikely or not possible. This suggests prosecutions are not always guided by the best available scientific and medical evidence.DiscussionTwenty scientists from regions across the world developed this Expert Consensus Statement to address the use of HIV science by the criminal justice system. A detailed analysis of the best available scientific and medical research data on HIV transmission, treatment effectiveness and forensic phylogenetic evidence was performed and described so it may be better understood in criminal law contexts. Description of the possibility of HIV transmission was limited to acts most often at issue in criminal cases. The possibility of HIV transmission during a single, specific act was positioned along a continuum of risk, noting that the possibility of HIV transmission varies according to a range of intersecting factors including viral load, condom use, and other risk reduction practices. Current evidence suggests the possibility of HIV transmission during a single episode of sex, biting or spitting ranges from no possibility to low possibility. Further research considered the positive health impact of modern antiretroviral therapies that have improved the life expectancy of most people living with HIV to a point similar to their HIV‐negative counterparts, transforming HIV infection into a chronic, manageable health condition. Lastly, consideration of the use of scientific evidence in court found that phylogenetic analysis alone cannot prove beyond reasonable doubt that one person infected another although it can be used to exonerate a defendant.ConclusionsThe application of up‐to‐date scientific evidence in criminal cases has the potential to limit unjust prosecutions and convictions. The authors recommend that caution be exercised when considering prosecution, and encourage governments and those working in legal and judicial systems to pay close attention to the significant advances in HIV science that have occurred over the last three decades to ensure current scientific knowledge informs application of the law in cases related to HIV.

Risk of sexual transmission of human immunodeficiency virus with antiretroviral therapy, suppressed viral load and condom use: a systematic review

“…A recent expert consensus has, in any case, cautioned against overreliance on theoretical risks in this context. 72 Finally, the risk of HIV transmission in study populations may not reflect the risks and circumstances in individual relationships.…”

Similar, but different: drivers of the disproportionate HIV and sexually transmitted infection burden of key populations

“…Attention to human rights should be integrated into any intervention focusing on KP, including the promotion of the rights of all individuals to be entitled to access life-saving care, without fear of stigma, criminalization, or punitive practices by authorities, peers or others [50][51][52]. Punitive laws that criminalize specific sexual practices, sex work, injection drug use and other socially marginalized behaviours, need to be removed so that individuals do not avoid seeking healthcare services that may improve their health, and that of their partners and the general community [55]. Providers need to be educated to provide culturally competent care [53,54].…”

“…An increasing array of resources is available to facilitate this, for example, www.lgb thealtheducation.org. Punitive laws that criminalize specific sexual practices, sex work, injection drug use and other socially marginalized behaviours, need to be removed so that individuals do not avoid seeking healthcare services that may improve their health, and that of their partners and the general community [55]. To effectively address the increasing rise of STIs in the era of TasP and PrEP, sexual health education needs to discuss anal and oral sex among KP in nonstigmatizing ways.…”

The HIV epidemic in Latin America: a time to reflect on the history of success and the challenges ahead

“…During the 38 years of the HIV/AIDS epidemic, we have learned that it can be fuelled in environments where human rights for vulnerable populations are limited. We have also learned that coercive laws and misguided policies aiming to ban sex work and drug use may actually promote HIV transmission .…”