Frequently Asked Questions about The Expert Consensus Statement on the Science of HIV in the Context of Criminal Law

The Expert Consensus Statement on the Science of HIV in the Context of Criminal Law (the Expert Consensus Statement) was co-authored by 20 of the world’s leading HIV scientists to describe current evidence on HIV transmission, treatment effectiveness and forensics so that HIV-related science may be better understood in criminal law contexts. It was originally published on 25 July 2018 in the Journal of the International AIDS Society (JIAS), a peer-reviewed scientific journal.

The Expert Consensus Statement was authored by 20 eminent HIV scientists from around the world: Françoise Barré-Sinoussi (France), Salim S. Abdool Karim (South Africa), Jan Albert (Sweden), Linda-Gail Bekker (South Africa), Chris Beyrer (USA), Pedro Cahn (Argentina), Alexandra Calmy (Switzerland), Beatriz Grinsztejn (Brazil), Peter Godfrey-Faussett (United Kingdom), Andrew Grulich (Australia), Adeeba Kamarulzaman (Malaysia), Nagalingeswaran Kumarasamy (India), Mona Rafik Loutfy (Canada), Kamal Marhoum El Filali (Morocco), Souleymane Mboup (Senegal), Julio S.G Montaner (Canada), Paula Munderi (Uganda), Vadim Pokrovsky (Russian Federation), Anne-Mieke Vandamme (Belgium), and Benjamin Young (USA). More than 70 leading scientists from 46 countries also formally endorsed the Expert Consensus Statement prior to its public release.

The Expert Consensus Statement was written to assist scientific experts considering individual criminal cases, and to encourage governments and those working in the criminal justice system to make all efforts to ensure a correct and complete understanding of current scientific knowledge informs any application of the criminal law in cases related to HIV.

The authors were prompted by concerns raised by civil society that the criminal law is often applied in a manner that is inconsistent with contemporary scientific evidence, including overstating both the risk of HIV transmission and the potential for harm to a person’s health and well-being.  People living with HIV continue to be prosecuted where no harm was intended; where HIV transmission did not occur, was extremely unlikely or was not possible; and where transmission was neither alleged nor proven. This phenomenon is generally known as HIV criminalisation (see What is HIV criminalisation?, below)

The scientists undertook detailed analysis of all available scientific data on HIV transmission, treatment effectiveness and forensic evidence, prioritising the highest quality research data from their systematic review of randomised clinical trials and comparative studies (i.e., cohort studies, case-control studies and historical control studies). They then engaged in numerous rounds of discussion to reach agreement on how that evidence is best summarised and described.

Importantly, the Expert Consensus Statement is formally endorsed by the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC) and the Joint United Nations Programme on HIV/AIDS (UNAIDS), who also supported the development of the Expert Consensus Statement.  As representatives of civil society, the Steering Committee of HIV JUSTICE WORLDWIDE was also consulted during the development process and they welcome and endorse the Expert Consensus Statement.

The Expert Consensus Statement focuses on the possibility of HIV transmission during specific acts that are commonly considered in criminal prosecutions, namely sexual activity, biting and spitting. It does not address other ways HIV may be transmitted including, for example, through blood transfusion, needle-stick injury, injecting drugs or breastfeeding. With a few very rare exceptions, these activities have not been the basis of criminal prosecutions against people living with HIV.

The Expert Consensus Statement is best read in full so that its findings may be understood in context. However, based on their comprehensive review of the available scientific evidence, the authors’ key conclusions include the following:

• The possibility of HIV transmission during a single act of vaginal or anal sex ranges from low to none (see below for important factors affecting the possibility of transmission).
• The possibility of HIV transmission during a single act of oral sex ranges from negligible (in very unusual and extreme circumstances) to none (see below for important factors affecting the possibility of transmission).
• There is no possibility of HIV transmission during a single act of vaginal, anal or oral sex where an intact condom has been used correctly.
• There is no possibility of HIV transmission during a single act of vaginal, anal or oral sex when the HIV-positive partner has an undetectable viral load.
• The possibility of HIV transmission during a single act of vaginal or anal sex when the HIV-positive partner has a low viral load ranges from negligible to none.
• There is no possibility of HIV transmission through saliva, even when it contains small quantities of blood.
• The possibility of HIV transmission from biting ranges from negligible (in very unusual and extreme circumstances) to none.
• Modern antiretroviral therapies have improved the life expectancy of most people living with HIV who have regular access to them, to the point that their life expectancy is similar to that of HIV-negative people, thereby transforming HIV infection into a chronic manageable health condition.
• Phylogenetic analysis can be compatible with, but cannot conclusively prove, the claim that a defendant has infected a complainant with HIV. Importantly, phylogenetic results can exonerate a defendant when the results rule out the defendant as the source of a complainant’s HIV infection.

No, the Expert Consensus Statement is not intended as a public health document to inform HIV prevention or treatment messaging or programming. Its approach is based on assessment of individual-level risk during a single, specific act, so that it may be usefully applied in criminal justice settings where this is at issue. In contrast, public health educational materials and messaging usually rely on descriptions of population-level risks, often describing sexual acts as ranging from ‘no risk’ to ‘low risk’ to ‘high risk’. Such categories describe the relative riskiness of different acts (i.e., not the absolute risk of transmission), and may be useful for communicating simple, key messages that certain sexual acts pose a higher risk of transmission compared to other, lower-risk acts. (For example, vaginal or anal sex without a condom poses a higher risk of transmission than sex using a condom or than oral sex.) Presenting information in this way assists people in making choices to reduce their risks of transmitting or acquiring HIV (e.g., through safer sex practices). However, such public health categories have often been misapplied in the criminal justice context, even though they are not intended or suited for this purpose. The Expert Consensus Statement aims to assist scientific experts considering individual criminal cases and to assist lawmakers in avoiding the misuse of the criminal law. Consequently, it considers the possibility of HIV transmission during a single, specific act positioned along a continuum of risk, noting that this possibility varies according to a range of intersecting factors, including viral load, condom use, and other risk reduction practices. Given its purpose of assessing the per-act possibility of transmission to inform specifically the criminal justice system, the Expert Consensus Statement does not use public health education terminology, which serves a different purpose and should not be used in the context of the criminal law.

The Expert Consensus Statement was written to help those working in, and with, the criminal justice system understand current science on HIV transmission, treatment effectiveness and forensic evidence. The statement arose from a concern by the authors that prosecutions against people living with HIV are, in part, driven by a poor appreciation of the science related to HIV. The Expert Consensus Statement confirms that an up-to-date understanding of the science of HIV does not support singling out people living with HIV through criminal prosecutions and harsh penalties. This is consistent with other good reasons for ending HIV criminalisation, including public health rationales and a concern for human rights and other legal principles that should inform the criminal law. As an authoritative consensus statement, based on a comprehensive review of the science and endorsed by IAS, IAPAC and UNAIDS, advocates will find the Expert Consensus Statement a useful tool to educate community, lawmakers and those involved in the legal system (e.g., judges, prosecutors, defence lawyers and others) on the science related to HIV.

HIV criminalisation describes the unjust application of criminal law to people living with HIV based solely on their HIV status. This includes the use of HIV-specific criminal statutes or general criminal laws to prosecute people living with HIV for unintentional HIV transmission, possible or perceived HIV exposure, and/or non-disclosure of known HIV-positive status. HIV criminalisation is a growing, global phenomenon that undermines both human rights and public health, thereby weakening the HIV response.

There are 73 countries known to have HIV-specific criminal laws, and another 39 countries are known to have used general criminal laws to prosecute people living with HIV for alleged HIV non-disclosure, perceived or possible HIV exposure, and/or non-intentional transmission.  In the past two-and-a-half years alone, hundreds of cases have been reported in at least 51 countries. In the five countries with the highest known number of reported cases (i.e., United States, Belarus, Russia, Ukraine and Canada) at least 600 people have been arrested, prosecuted and/or incarcerated since October 2015.  Unknown thousands have been prosecuted since the mid-1980s, with many people still languishing in prison and/or registered as sex offenders—including in cases where transmission did not occur and/or was not even possible.

HIV criminalisation undermines public health objectives in myriad ways. Prosecutions, and the media they attract, single out and sensationalise HIV in a way that is highly stigmatising, framing HIV diagnosis as a catastrophe. They resort to criminal charges as the primary, appropriate response to any perceived potential exposure. Such stigma makes HIV disclosure to intimate partners even more difficult. Evidence suggests this could deter people from getting tested, particularly those from communities highly vulnerable to HIV infection. But encouraging HIV testing is an essential part of an effective response: an HIV-positive diagnosis is the first step to accessing health-enhancing antiretroviral treatment, and an HIV-negative result the first step to accessing pre-exposure prophylaxis (PrEP), both of which are key HIV prevention tools. HIV criminalisation can also undermine the therapeutic relationship between people living with HIV and healthcare professionals, reducing their capacity to provide support, including providing frank advice about risk reduction strategies. In fact, healthcare providers have been forced to testify in court about communications with their patients, which evidence is used to pursue convictions against their patients. HIV criminalisation is also affecting research into HIV prevention, treatment and care, because of concerns that otherwise confidential data may be legally obtained by law enforcement in the context of a criminal case.

HIV criminalisation undermines the human rights of people living with HIV, many of whom are also members of marginalised or additionally criminalised communities. Threatening to go to police with accusations of HIV non-disclosure has been used as a form of abuse or retaliation against current and former HIV-positive partners. HIV criminalisation places people living with HIV—particularly but not only women—at heightened risk of violence and abuse and ignores the reality that some may not be able to safely disclose their status or in a position to ask their partner to use a condom. Stigmatising statements from law enforcement or public health agencies, and media coverage, including full names and photographs—even of those merely subject to allegations—can result in public disclosure of a person’s HIV status and accusations of serious criminal conduct, leading to loss of employment and housing, social ostracism or even physical violence. Investigations and prosecutions often have a disproportionate impact on racial and sexual minorities, migrants, and women. Poorly-resourced accused may be without access to adequate legal representation. In certain cases, some of the most serious offences in a country’s criminal law (e.g., aggravated assault, sexual assault and attempted murder) have been used to prosecute alleged non-disclosure in the context of consensual sexual encounters. Penalties are often vastly disproportionate to any harm caused, including lengthy jail terms and/or designation as a sex offender. People without citizenship in their country of residence may also be deported upon conviction, which can result in loss of medical care.