Every year, in dozens of countries in every region of the world, people living with HIV are prosecuted for HIV non-disclosure, perceived HIV exposure or, in rare cases, allegedly knowing transmission of the virus. Some of these prosecutions are based on HIV-specific laws while others use general laws, such as assault and battery. Civil society advocates and public health experts have long decried these laws and prosecutions as a human rights violation: they stigmatize people living with HIV and discourage people from learning their HIV status.
But there is a separate, equally important reason to reject this approach: these laws and prosecutions are contrary to current scientific evidence.
In July, during the 22nd International AIDS Conference, researchers from around the world came together to publish the Expert Consensus Statement on the Science of HIV in the Context of the Criminal Law, which is now available through the Journal of the International AIDS Society (JIAS). The document outlines the scientific evidence that proves that criminalization is a direct threat to the HIV response. It is the first of its kind, and it has taken us years to get to this point.
The contradictions between scientific evidence and HIV criminalization have led a growing body of scientific leaders to demand an end to overly broad use of the criminal law to scapegoat people living with HIV. In 2014, the Association of Nurses in AIDS Care cited growing evidence of the negligible risks of HIV transmission in the presence of viral suppression to call for elimination of HIV criminalization. Two years later, leading scientific experts in Australia advised courts to avoid such prosecutions and to heed the latest scientific evidence. In 2017, leading scientists in Canada called for an end to “the overly broad use of the criminal law in HIV non-disclosure cases”, specifically referencing the strong scientific evidence on the protective effects of antiretroviral therapy (ART) and condom use.
Prosecutions for HIV non-disclosure, exposure or transmission began to emerge in the early years of the epidemic when the appearance of HIV provoked fear and panic in many places. Yet the working assumption of these laws – that HIV is easy to transmit or that it can be transmitted through spitting, as just one example – have proven unfounded. According to scientists at the United States Centers for Disease Control and Prevention (CDC), condomless, receptive penile-vaginal intercourse with an HIV-infected partner results in HIV transmission in less than 0.001% of cases. Wearing condoms has been shown to reduce this extremely small risk by at least 80%.
Over time, these laws and prosecutions, which were always dubious, have been rendered utterly baseless by further scientific developments. As early as 1997, research published in the American Journal of Epidemiology indicated that the risk of HIV transmission was directly correlated with the amount of virus in the body. In subsequent years, multiple additional studies have confirmed this finding.
The first evidence of the prevention benefits of antiretroviral medicines actually occurred before the emergence of the modern era of combination ART in 1995-1996 and outside the realm of sexual transmission. In 1994, investigators in the ACTG 076 trial found that the single antiretroviral drug, zidovudine, reduced the odds of mother-to-child HIV transmission by 67.5%.
The extraordinary effectiveness of ART in reducing HIV-related illness and mortality stemmed in large measure from the profound reductions in HIV viral load in people receiving HIV treatment. For most people receiving ART, HIV viral load becomes too low for sophisticated tests to measure. Given the direct link between HIV transmission risk and viral load – and in light of the powerful prevention benefits with respect to vertical HIV transmission – a scientific consensus began to emerge that people living with HIV who received ART and achieved an undetectable viral load were highly unlikely to transmit the virus to a sexual partner.
In January 2008, Swiss health authorities, drawing from this growing body of evidence on the prevention effectiveness of ART, formally advised that a person living with HIV who has viral suppression and no sexually transmitted infection is biologically incapable of transmitting HIV. Although initially controversial to some, the deductive reasoning of Swiss health authorities was soon confirmed by ample evidence.
In 2011, a nine-country trial that enrolled 1,750 serodiscordant couples found that ART reduces the risk of HIV transmission by at least 96%. Epidemiological studies in such diverse settings as British Columbia in Canada and the KwaZulu-Natal province in South Africa have validated the powerful prevention benefits of HIV treatment.
More recently, two cohort studies have found no cases of HIV transmission among serodiscordant couples when the HIV-positive partner had an undetectable viral load. The PARTNER study, conducted in 75 clinics in 14 countries in Europe, detected no cases of HIV transmission among 888 serodiscordant couples after more than 58,000 instances of condomless sex. These findings led study investigators to conclude that the risk of HIV transmission from an HIV-positive individual with an undetectable viral load was negligible.
In 2017, the Opposites Attract study, which enrolled 343 serodiscordant gay male couples in Australia, Brazil and Thailand, likewise found no cases of HIV transmission after nearly 17,000 episodes of unprotected anal intercourse. These study results led Dr Anthony Fauci, Director of the US National Institute of Allergy and Infectious Diseases, to conclude, “We can say that the risk of transmission from an HIV-positive person who takes treatment and has an undetectable viral load may be so low as to be unmeasurable, and that’s equivalent to saying they are uninfectious.” These research findings prompted the CDC to conclude that people who take ART as prescribed and have an undetectable viral load “have effectively no risk of sexually transmitting the virus to an HIV-negative partner”.
Getting successfully treated and getting your viral load undetectable starts with HIV testing. This means that interventions that increase willingness to seek HIV testing are vital to public health. Those that discourage testing, like punitive and outdated laws criminalizing transmission, go in the wrong direction. Today, HIV testing and HIV treatment are increasingly standard practice across the world. In November 2017, UNAIDS reported that 20.9 million people – or the large majority of people living with HIV globally – were accessing HIV treatment in mid-2017.
After more than two decades of scientific investigation, it is now crystal clear that laws criminalizing HIV non-disclosure, exposure or transmission lack any scientific basis. If a person living with HIV is successfully taking HIV treatment, they simply cannot transmit the virus to another person. And even if the person living with HIV is not taking treatment or has yet to achieve viral suppression, the risk of transmission is far too low to bring the coercive arm of the criminal law into play.
Now we need policy makers, police, prosecutors and judges to wake up to the clear scientific evidence. Not only is HIV criminalization abusive, discriminatory and counterproductive, but it also has no scientific basis. And to the extent that these laws inhibit people from seeking testing and care, they aid and abet the virus, not the communities we all seek to protect.