This blog post was authored by Sean Bland and Javier Saladich, a Summer Research Intern at the O’Neill Institute and a third-year law student at ESADE Business and Law School in Barcelona, Spain.
Earlier this month, a group of organizations and advocates released a “Consensus Statement on HIV ‘Treatment as Prevention’ in Criminal Law Reform”. The consensus statement is intended to serve as a resource in efforts to modernize HIV criminal laws across the United States. Part of the motivation for the consensus statement is to clarify how best to utilize the new science about HIV in advocacy to combat the unjust application of criminal laws to people living with HIV (PLHIV).
New scientific evidence includes numerous studies demonstrating that antiretroviral therapy (ART) not only effectively suppresses HIV in people living with HIV, but can also be a powerful tool for preventing HIV transmission to others. This preventative benefit of treatment is often referred to as Treatment as Prevention. Results from the HIV Prevention Trials Network (HPTN) 052 study found that early versus delayed initiation of ART reduced the risk of HIV transmission from an HIV positive to negative partner by 96%, and a follow-up to HTPN 052 found no transmission from persons with fully suppressed viral loads to their partners. A second study, the Partner Study, followed 1166 serodiscordant couples (one partner was HIV positive and one was HIV negative) for nearly four years and found zero transmissions from the HIV positive partner when that partner was taking ART and virally suppressed. This study was seminal because it included both same-sex and opposite-sex couples. Most recently, results from the Opposites Attract Study, presented at the 2017 International AIDS Society Conference on HIV Science in Paris, found no HIV transmission among more than 350 serodiscordant same-sex couples, even when couples participating in the study reported nearly 17,000 instances of anal sex without a condom over four years.
Concerned that many people living with HIV, medical providers, and those at potential risk of acquiring HIV are not aware that ART treatment is a highly effective HIV prevention strategy and that this information could remain locked in the research community, the U=U campaign (“Undetectable = Untransmittable”) was launched. The campaign works to change the way organizations and people talk about HIV and infectiousness by underscoring that when a person living with HIV is on effective treatment and has an undetectable viral load, they will not transmit HIV to sexual partners. With that in mind, “U=U is a message of freedom and home. It is an unprecedented opportunity to improve lives of people living with HIV, dismantle HIV stigma, and improve treatment uptake and adherence.”
The advances reflected in the U=U campaign also have implications for criminal justice. There is a concern that if HIV criminal reform focuses solely on changing laws so that those who are virally suppressed are protected, that approach would continue to leave people of color, LGBT people, sex workers, and others subject to unjust criminal prosecution. The consensus statement notes a legal defense could include showing that low viral load and related non-infectiousness, but it also warns “we must be careful to avoid giving policy makers the impression that, absent treatment or an undetectable viral load, prosecution of PLHIV is warranted.” At bottom, the consensus statement points out “the two biggest problems with almost all HIV criminal laws and prosecutions are that 1) they focus on HIV disclosure rather than on whether the PLHIV had an intent to do harm; and 2) HIV laws’ felony punishment and severe sentences treat any risk of HIV infection as the equivalent of murder or manslaughter.” To respond to these two problems, the most pressing responsibility in HIV criminal law reform is to advocate for the following legal principles: 1) conviction must require proof that the person intended to do harm; and 2) the degree of punishment must be closely related to the level of injury.
The consensus statement is an important resource to aid advocates in pursuing criminal law reform without creating unintended negative consequences for people living with HIV. It also includes frequently asked questions with answers that further explore issues facing advocates as well as links to additional resources.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.