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Why criminalizing the transmission of HIV doesn’t help fight the virus

Why criminalizing the transmission of HIV doesn’t help fight the virus

Criminalizing people for not wearing condoms is mis-guided, argues Matthew Hodson

There are many discussions that could be had about prosecutions of people living with HIV for having unprotected sex but all such discussions need to be informed by that fact.

If the goal is to bring down new infections, it doesn’t work.

Earlier this year 30 gay men living with HIV were charged in Prague as a result of visiting an STI clinic.

Each of these men had been diagnosed with an STI, which the authorities took to indicate that they had unprotected sex. Under the Czech Criminal Code any condomless sex act, including oral sex, by a person with HIV can be prosecuted, due to the potential to spread infectious disease.

The problems with this are clear. For one, no action should be taken which discourages people who may have an STI from seeking treatment. This will only result in STIs becoming more prevalent.

It also fails to take account of what we now know about HIV transmission risk. According to the Czech AIDS Society, most of the men have an undetectable viral load so that there was no real risk that they could transmit the virus. All of the evidence suggests that undetectable means uninfectious.

Further, some of these men had only engaged in unprotected sex with other men already living with diagnosed HIV infection. Blunt criminalisation laws aren’t helpful considering the complexities of many people’s risk reduction strategies.

So, alongside others working in HIV prevention and HIV information, I welcome the fact that these charges have now been dropped.

Dumb and ineffective laws around HIV transmission aren’t confined to the Czech Republic.

A recent US study compared rates of unprotected sex among gay men and found little variation between those states that criminalize HIV transmission and those that don’t.

In fact, the study found that those men who lived in a state which criminalized transmission were slightly more likely to have sex without a condom than those who didn’t.

As a means of changing behaviour, criminalization just doesn’t work.

Criminalization of HIV transmission usually only applies to those who are aware that they are living with the virus, which in itself does nothing to encourage testing.

Furthermore, it may lead individuals who are uninfected or undiagnosed to believe that the law will somehow protect them from infection and, as a result, take fewer precautions.

It isn’t helpful to place all of the responsibility for preventing transmission on the shoulders of the partner living with HIV, even if they have been diagnosed.

Such a strategy also doesn’t reflect the way that the virus is usually passed on. The majority of infections among gay men are as a result of sex with men who have not been diagnosed and are unaware that they are living with HIV.

The preventative impact of successful HIV treatment is greater than the efficacy of condom use as a strategy for stopping HIV transmission. But all too often whether something is actually risky bears little relationship to the way that laws are framed.

HIV can’t practically be transmitted through saliva but still in some US states spitting, if you are living with HIV, is criminalized. This is just daft.

HIV is now very treatable and someone who is diagnosed promptly, with access to treatment, has every prospect of living a long and healthy life.

Many of the greatest challenges that those of us who live with HIV face relate to the stigmatization of the virus, attitudes that bad laws, such as those that criminalize HIV transmission, only serve to compound.

We need to have an effective response to prevent new HIV infections. We will only achieve that by encouraging people to access testing and, if diagnosed, HIV treatment.

We will make progress when people are educated about the actual risks of transmission, rather than distortions and disinformation that only serve to isolate people with HIV.

Criminalization of HIV transmission doesn’t prevent new infections. On a global level, we need to agitate for a rational and efficient response to this epidemic and leave these outdated, prejudicial and ineffective laws behind.

Matthew Hodson is Executive Director of NAM. This article is Matthew’s personal view and should not be taken as representative of NAM as an organisation.


Matthew Hodson
Matthew Hodson