The trial of No Angels singer, Nadja Benaissa, began this week and has already received worldwide media attention. It highlights what experts working in HIV prevention, treatment and care have long argued: that laws and prosecutions as a result of non-disclosure of HIV-positive status are ineffectual, counterproductive and unjust.
People with HIV around the world – including Benaissa – are being scapegoated for our collective failure in preventing new HIV infections. Moreover, it is the stigma surrounding HIV – exacerbated by the media circus that accompanies such trials – that results in far more new infections than the exceedingly rare case of an individual facing the attention of the criminal justice system.
Around the world, more than 40 countries have convicted at least 600 people living with HIV. In the vast majority of cases, there was no intention and no transmission. In the past decade, more than 25 countries in Africa have enacted new HIV-specific criminal provisions in a desperate and misguided attempt to be seen as doing something to slow down the epidemic.
According to Festus Mogae, former president of Botswana, the policy is futile. He told the recent International Aids Conference in Vienna that he'd begged his former colleagues in east, central and western Africa not to pass such laws, as they have created fear and confusion, and harm women far more than protecting them.
The provenance of many of these laws is the US – where more than half of the world's prosecutions have taken place. Most prosecutions are the result of poorly drafted, outdated relics of the Ronald Reagan era and some are the result of case law that may appear to follow some kind of logic, but result in Kafkaesque scenarios such as terrorism charges for a man who allegedly bit his neighbour while he was being beaten up, and a 35-year prison sentence for a homeless man who spat at a police officer during his arrest because the jury judged his saliva to be a "deadly weapon" (spitting cannot transmit HIV).
Barack Obama's new national HIV/Aids strategy released last month finally admits there's a problem: "In many instances, the continued existence and enforcement of these laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment."
Unaids recommends the removal of punitive laws, policies and practices that block effective Aids responses, and argues for greater access to justice that protects the human rights both of people living with HIV and those who are HIV negative, while supporting access to programmes that are proven to reduce the risk of HIV transmission. There is, in fact, absolutely no evidence that punitive laws and prosecutions have a positive impact on public health by deterring HIV-related risk behaviour or increasing disclosure of known HIV-positive status to sexual partners. Most people living with HIV aren't even aware of these laws and they certainly don't need them.
The vast majority people living with HIV want to, and in most cases actually do, protect their partners and eventually – when they feel safe that no harm will come to them – will disclose their status. They don't need laws to make them do this, they need skills to be able to negotiate safer sex and support to cope with the fear or rejection, loss of control over private information, or even violence when disclosing their status to intimate partners.
The biggest issue facing HIV today is the stigma associated with it. Most new HIV infections around the world emanate from those unaware of their status. HIV is treatable to the point that someone diagnosed today is likely to live a completely normal lifespan, but those who don't test can't be treated. And since antiretroviral therapy has a profound effect in reducing infectiousness to a level comparable to condoms, they are losing out not only in terms of benefitting their own health, but the public health as well. But widespread propagation of misinformation about HIV's risks and its harm, which is perpetuated by the media, makes people less likely to talk about, and test for, HIV.
We need to look beyond the victim-perpetrator paradigm. Casting Benaissa's non-disclosure in purely moral and ethical terms is an oversimplification of responsibility for HIV prevention. As a woman – and a recently diagnosed young woman at the time of the alleged acts – Benaissa should not have had to carry the burden of HIV prevention solely on her shoulders.
It may also be appropriate to consider both parties' responsibility to protect themselves during mutually consensual sex. Since both partners may make the identical mistake of assuming that a lack of disclosure means the other person has the same serostatus, fairness has to be questioned if only the diagnosed HIV-positive partner is criminally liable.
But Benaissa's case is a distracting sideshow. Given her high profile, it is likely that the authorities will want to make an example out of her and to warn other people living with HIV that non-disclosure before unprotected sex is unacceptable. They may think they are doing HIV prevention a favour, but when the vast majority of people with HIV in the world are undiagnosed (27% in the UK) this can lead to a false sense of security resulting in erroneous assumptions that no disclosure means no HIV risk.
