Published January, 2009
Criminalization of HIV Transmission: Poor Public Health Policy, Edwin Cameron, HIV/AIDS Policy and Law Review (2009)
This article, taken from a speech by Justice Edwin Cameron of the Constitutional Court of South Africa, discusses the ineffective nature of HIV criminalization laws and analyzes some of the negative effects that they cause.
Justice Cameron breaks down his case against criminalization laws into several arguments. First, he argues that the laws are misconceived and an ineffective tool for preventing transmission since the majority of transmissions occur during consensual sex when neither partner is aware of their HIV status. Second, he argues that criminalization laws are a misguided substitute for measures that are effective in preventing the spread of HIV, such as reduced stigma and greater access to testing. Additionally, criminalization prosecutions take resources and attention that should be given to treat those with HIV or AIDS.
Third, contrary to many popular arguments that criminalization laws help women, they often impose harsh burdens on them. Since more women are aware of their HIV status because of prenatal healthcare sites, they are the first to be vulnerable to laws that punish individuals only after they are aware of their status. Fourth, it shifts the burden of preventing transmission onto the HIV-positive sexual partner instead of recognizing that both sexual partners should be responsible for their own sexual health. Fifth, many of the laws are vaguely written and difficult and degrading to apply. Sixth, criminalization fuels the already rampant stigma against individuals with HIV/AIDS. Finally, criminalization laws may discourage individuals from seeking HIV testing. Since knowledge of one's HIV status can expose them to prosecution, many individuals—particularly ones who engage in risky behavior—may be deterred from getting tested for HIV.
Overall, Justice Cameron recommends a "normalization" approach- an application of normal criminal law to egregious conduct that intentionally seeks to spread HIV, while rejecting prosecutions and laws that target HIV status for exceptional treatment.
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