The problem with criminalising HIV transmission

Nathan Geffen argues against a new statute, says compulsory testing unconstitutional (Nov. 22)

Premier's views not supported by science

Premier Helen Zille has called for the criminalisation of HIV transmission and compulsory HIV testing. Ms Zille is understandably concerned by South Africa's large number of HIV infections. But her policy prescriptions, well-intentioned though they may be, would likely cause harm if implemented.

The most important question for responding to the HIV epidemic is how do we save lives? Science provides some answers. We know that condoms work if people use them. We also know that HIV-positive people on antiretroviral treatment can have almost normal life-expectancy and they are much less likely to pass on the virus. On the other hand there is not a shred of evidence from anywhere in the world that having special laws that criminalise HIV transmission will help.

Ms Zille believes that criminalisation helps beat HIV epidemics. She asks "Why does South Africa have the largest HIV-positive population in the world?  Why have most other countries, including extremely poor ones, succeeded in containing or beating this disease?" I know of no published scientific papers that support her view. There is no relationship between criminalisation and the size of a country's HIV epidemic.

Most countries have never had a large epidemic whether or not they criminalised transmission. But for reasons irrelevant to criminalisation, Southern and Eastern Africa do have large epidemics and will have them for generations to come or until a cure is found. Criminalisation will not remedy this. On the contrary, it might undo efforts to destigmatise the disease and deter people from finding out their status. This would hamper treatment and prevention efforts.

In 2001 a committee of the South African Law Reform Commission published a report that considered criminalising HIV. The committee, chaired by Justice Edwin Cameron, considered a range of expert submissions. It concluded "that statutory intervention is neither necessary nor desirable." It wrote "arguments against intervention override arguments supporting such [a] step."

Here are a few of the reasons it gave:


  • Intentional HIV transmission can be prosecuted under existing common law. The Commission doubted that the creation of an HIV-specific offence would minimise the difficulties with the application of the common law crimes. It wrote, "There are few or no prosecutions under existing criminal measures.  Will complainants come forward to utilise an HIV-specific statutory offence? This seems doubtful. The enactment of such offences might thus be largely of symbolic value."
  • There is little evidence that intentional transmission is happening on a large scale.
  • An HIV-specific statutory offence would unjustifiably infringe the right to privacy.


There are several other reasons to add to this:


  • We do not have specific laws criminalising the transmission of other sexually transmitted diseases such as human papillomavirus, which causes cervical cancer, or some forms of hepatitis, which are debilitating and often fatal. It is not clear why HIV should be singled out.
  • One of the difficulties in figuring out how to prevent HIV from spreading is that in the first month or two after people becomes infected, the amount of virus in them is extremely high and they are consequently very infectious. They are also often healthy and sexually active, but unaware they have become infected. This appears to be a major source of new HIV infections. Neither criminalisation nor any conceivable implementation of compulsory testing will make an iota of difference to this problem.


Ms Zille's call for compulsory testing is a non-starter: our courts have stopped coercive testing, such as pre-employment testing. Compulsory testing, except in pathological circumstances, is unconstitutional. But even if it were not, people rebel against things they are forced to do and find ways to circumvent the system. On the other hand millions of people have got tested since the state's campaign last year to encourage large-scale voluntary testing. Why risk breaking something that is working?

South Africa has started to make progress against the epidemic. The balance of evidence shows that the number of new HIV infections is declining, though it is still too high. Statistics South Africa's death statistics also show that mortality is finally stabilising, albeit that there are still far too many deaths. Over the past 15 months, millions of people have learned their HIV status as part of a massive rollout of voluntary testing.

About 1.5 million people are on life-saving antiretroviral treatment. New scientifically proven prevention technologies are being implemented or are on the verge of becoming a reality. Make no mistake: our HIV programmes need to improve enormously, but we are finally on the right track. And thankfully the state-supported AIDS denialism that blocked all these interventions throughout much of the last decade is gone. But there are no easy solutions.

As pointed out by Marlise Richter on Politicsweb, at the same time that Ms Zille has been making her proposals, the second national strategic plan for responding to HIV and TB was finalised. Unlike the previous 2007 plan, this one was developed with a willing Minister of Health and a co-operative Health Department in consultation with numerous organisations.

Albeit imperfect, it sets out a scientifically based response to the HIV epidemic and respects human rights. Ms Zille and the Democratic Alliance should have participated more in the process to develop it. Instead of proposing quick fixes to HIV, the Premier would do better to commit her government to implementing the national strategic plan's life-saving interventions.

Nathan Geffen is the Treasurer of the Treatment Action Campaign. This article first appeared in the Cape Times November 22 2011

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