Expert Consensus Statement on HIV Criminalization

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Leading HIV Scientists Issue Expert Consensus Statement on HIV Criminalization at IAS2018

At the recently concluded IAS2018 conference in Amsterdam, The Netherlands, twenty of the world’s leading HIV scientists published the Expert Consensus Statement on the science of HIV in the context of criminal law.

The Expert Consensus Statement (ECS), released at IAS2018 and simultaneously published in the Journal of the International AIDS Society, is based upon current scientific evidence regarding HIV transmission, exposure, and non-disclosure. These experts, from various regions of the world, performed a detailed analysis of the best available scientific and medical research data on HIV transmission, treatment effectiveness, and forensic phylogenetic evidence. Emphasizing science over stigma, the ECS advises governments and those in legal and judicial systems to take heed of the significant advances in HIV science since the beginning of the pandemic and to apply current scientific knowledge to the law in cases related to HIV.

Currently, some sixty-eight countries criminalize HIV non-disclosure, exposure, or transmission. Prosecutions have been based upon the perceived risk of HIV transmission associated with sexual activity, but prosecutions have also occurred for acts such as biting and spitting. These laws and prosecutions have ignored the best available scientific and medical evidence regarding HIV and its treatment; instead, these prosecutions have reflected the persistent societal stigma and fear associated with HIV. Prosecutions have occurred even in instances where no harm was intended, where HIV transmission did not occur, where transmission was not possible or was extremely unlikely, and where transmission was neither alleged nor proven (prosecutions based solely on non-disclosure).

The ECS addresses the factors influencing transmission risk associated with particular acts, the importance of proving transmission, and the harmfulness of HIV, noting that “persistent misconceptions exaggerating the harms of HIV infection appear to influence application of the criminal law.” The authors emphasize that their purpose is to assist those providing expert opinion evidence in individual criminal cases, and that the ECS is “not intended as a public health document to inform HIV prevention, treatment and care messaging or programming.”

Ken Pinkela [A&U, Oct. 2016], a fierce advocate for justice for those wrongly criminalized for being HIV-positive, knows too well the absurdity of criminalization, as it destroyed his sterling military career. Erroneously convicted of having had sex with another officer without disclosing his serostatus (no sex act occurred), Ken has fought for six years to get his conviction overturned and his pension and other benefits restored—to no avail, despite the sole witness’s having recanted his story. After attending IAS2018 in Amsterdam, Ken told A&U, “I am very excited about the timing of the release [of the ECS]. The personal and community impact stems from the power of the authors and the medical community standing up to the prejudice and ignorance of HIV criminalization. The language on phylogenetics and the facts on risk of transmission are now laid out and can be used by advocates all around the world fighting HIV criminalization.”

The ECS is significant for its global reach and its recognition of the impact which ignoring current HIV science can have on individuals wrongly prosecuted. It is an important step in the campaign to ensure that people living with HIV are treated fairly in criminal justice systems around the world. The ECS concludes, “Given the evidence presented in this document, we strongly recommend that more caution be exercised when considering criminal prosecution, including careful appraisal of current scientific evidence on HIV-related risks and harms. This is instrumental to reduce stigma and discrimination and to avoid miscarriages of justice.”

In addition to the twenty experts who authored the Expert Consensus Statement, the ECS has been endorsed by International AIDS Society, the International Association of Providers of AIDS Care, and the Joint United Nations Programme on HIV/AIDS.

ADDENDUM: After a six-year battle with the US Army, on August 4, 2018 Ken Pinkela’s veteran’s disability rating from post-Gulf War combat injuries was approved and activated. He had previously lost all of his benefits through HIV criminalization in the US Army. He told A&U, “I’ve never been so grateful for previous service-related injuries that later on in life would aid the approval of my full medical benefits denied after being wrongfully criminalized for living with HIV.”


Further information can be found in NAM AIDSmap’s reporting at http://www.aidsmap.com; you can read the complete Expert Consensus Statement in the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161.

—Reporting by Hank Trout

Hank Trout, Editor at Large, edited Drummer, Malebox, and Folsom magazines in the early 1980s. A long-term survivor of HIV/AIDS (diagnosed in 1989), he is a thirty-eight-year resident of San Francisco, where he lives with his fiancé Rick Greathouse. Follow him on Twitter @HankTroutWriter.