A man is serving a 30-year sentence for having sex without disclosing his HIV status – although he used condoms, and didn't infect his partner.
Kerry Thomas is in prison in the USA, serving a 30-year sentence for having sex twice without disclosing to his partner that he was HIV positive.
Although Thomas used condoms, had an undetectable viral load and did not infect his partner, he was given two 15-year sentences to run consecutively. He has already served 10 years of his sentence.
CRIMINALISING THE TRANSMISSION OF HIV
Joining delegates to the International AIDS Conference by phone from his Idaho prison, Thomas said that while he regretted not disclosing his HIV status, “I worked with my doctor to protect my partner.”
“It is high time to look at the growing move to criminalise the transmission of HIV, which is often based on a misunderstanding of how HIV is and isn’t transmitted,” said Professor Linda-Gail Bekker, president of the International AIDS Society.
Twenty top scientists, including Nobel Laureate Francoise Barre-Sinoussi, released a consensus statement at the conference yesterday after reviewing the best available scientific evidence relating to HIV transmission and concluded:
It is not possible for an HIV positive person to transmit the virus in their saliva while kissing, biting or spitting.
The risk of HIV transmission from a single act of unprotected sex is very low, and there is no possibility of transmission during either vaginal or anal sex if the HIV-positive partner has an undetectable viral load.
It is not possible to establish proof beyond reasonable doubt that one person has infected another, even with the most advanced phylogenetic scientific tools.
Some 68 countries have laws that criminalise HIV non-disclosure, exposure or transmission, while 33 others have applied similar laws in specific cases.
CONVICTED FOR BREASTFEEDING
Thousands of people living with HIV have been prosecuted, most of who did not actually pass on the virus. Most prosecutions have taken place in the USA, Belarus, Ukraine, Russia and Zimbabwe.
Sarai-Chisala Tempelhoff of the Women’s Lawyers Association of Malawi said that an HIV positive woman in her country had been convicted for breastfeeding her baby.
“This prosecution for breastfeeding was not informed by science, and the magistrate demonstrated stigma not science,” said Templehoff.
Edwin Bernard, global co-ordinator of the Global HIV Justice Network, said there was an urgent need to train and educate judges and magistrates, many of whom operated on the basis of prejudice not fact.
IMPACT OF PROSECUTION
South Africa has not adopted an HIV-specific criminal law, although there was a push to do so in 1999.
“I think we can give credit to our Members of Parliament for that,” said Judge Edwin Cameron, who is attending the Aids conference.
“There was a move in 1999 to make HIV transmission a specific crime, but this was ultimately rejected by our politicians, although HIV status can be considered an aggravation of sentence in rape,” said Cameron.
“The scientific community has spoken and now the criminal justice system, law and policymakers must also consider the impact of prosecutions on the human rights of people living with HIV,” said Michaela Clayton of AIDS and Rights Alliance for Southern Africa (ARASA).