Evaluating The Impact of Criminal Laws On HIV Risk Behavior
This article reports on the characteristics and prevalence of HIV-specific criminal exposure and transmission laws, and the enforcement of those laws through prosecutions during the period 1986-2001. It also examines the possible mechanisms through which criminal law influences behavior and considers how these might apply to the specific laws described.
E.L. Judgement, Malawi High Court (2016)
On 19 January 2017, the Zomba High Court in Malawi delivered a landmark ruling on the application of criminal law to cases of HIV transmission and exposure through breastfeeding.
The appellant was a woman living with HIV who was convicted of negligently and recklessly doing an act which is “likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code for accidentally breastfeeding another person’s child. She was unrepresented at her trial and sentenced to nine months’ imprisonment.
Before the High Court, she appealed her conviction and sentence and challenged the constitutionality of section 192 of the Penal Code for being vague and overbroad. She raised expert evidence to show the “infinitesimally small risk” of HIV transmission by women on antiretroviral treatment through breastfeeding. The State agreed that the appellant’s conviction and sentence should be overturned and set aside.
At the hearing on 2 December 2016, the Court, per Ntaba J, granted an order that the appellant’s identity be concealed to protect her confidentiality and that of the children concerned.
On 19 January 2017, the High Court acquitted the appellant and ordered her immediate release. It held that the proceedings in the trial court were irregular and “blatantly bias” against the appellant, compromising her right to a fair trial. The Court held that the appellant did not have the requisite knowledge or belief that breastfeeding the complainant’s child was likely to spread HIV and cautioned against the misapplication of criminal law in cases of HIV transmission and exposure. The Court recommended the constitutional challenge be filed for separate determination considering the national interest in the issue.
The appellant was represented by Mr Wesley Mwafulirwa of John Tennyson Associates.
- Alternative links
- HJN feature on the impact of this case, SALC resources on this case
Spit Does Not Transmit: A Fact Sheet for Law Enforcement Personnel, The Center for HIV Law and Policy, the National Organization of Black Law Enforcement Executives and the Association of Prosecuting Attorneys (2013)
This 2013 factsheet produced by the Center for HIV Law and Policy, the National Organization of Black Law Enforcement Executives and the Association of Prosecuting Attorneys provides current factual information about the HIV transmission risks law enforcement professionals may face in the line of duty (aiming to address the frequent overstating of risk). States there is no known case of a law enforcement officer being infected in the line of duty through spitting or biting.
HIV Transmission in Male Serodiscordant Couples in Australia, Thailand and Brazil
Reports an interim analysis of the relationship between undetectable viral load and HIV transmission in the Opposites Attract observational cohort study of homosexual male serodiscordant couples in Australia. Finds no linked HIV transmissions in 150 ‘couple years of follow up’ among homosexual male serodiscordant couples, despite close to six thousand acts of condomless anal sex.