Prosecutions for the nondisclosure of HIV status need to take into account updates in the understanding of transmission risk, according to a consensus statement released here at the International AIDS Conference 2018 (J Int AIDS Soc.2018;21:e25161).
At the news conference to announce the release of the statement, one seat on the platform — for Kerry Thomas — was empty.
Thomas did join the event, but from an Idaho prison. He has served 10 years of a 30-year-maxiumum sentence for not disclosing his HIV status to a partner. He had an undetectable HIV viral load, used a condom, and his partner was not infected.
Thomas said that although he regrets not disclosing his status to her, the penalty does not reflect the risk to his partner.
“In terms of the law, all that mattered was whether I disclosed,” he said. “Had the science of HIV transmission been taken into account at that time, it’s reasonable to conclude I wouldn’t be serving a 30-year sentence.”
A conviction should only be secured when a person actually transmits the virus and the new infection is phylogenetically linked to the person on trial, said Peter Godfrey-Faussett, MD, senior science advisor at UNAIDS, who helped write the consensus statement.
New rules are sorely needed, said Wendy Armstrong, MD, from Emory University in Atlanta. Several years ago, she was subpoenaed to testify against a patient who was accused of not telling his partner that he was infected with HIV.
The consensus statement was aimed at physicians who might be called to be expert witnesses, for whatever reason.
The partner did not acquire HIV during the relationship and the patient swore he had shared his status, Armstrong explained in an opinion piece published in the Atlanta Journal–Constitution.
After her patient’s conviction, Armstrong was left with the feeling that she had betrayed him and that the prosecution had robbed her of the ability to maintain his privacy. She also began to realize that the criminal justice system was operating on very old information.
“The medical facts have changed,” she told Medscape Medical News. “Physicians can play a central role” in communicating that.
“The consensus statement was aimed at physicians who might be called to be expert witnesses, for whatever reason,” said Godfrey-Faussett. “We all appreciate that courts view cases very differently, according to potential risk.”
Laws that criminalize HIV — which cover actual transmission, exposure to HIV without transmission, and nondisclosure of HIV status, regardless of risk-reduction actions taken, engagement in care, or other approaches that could lower risk — exist in 73 countries.
But the United States leads the world in enforcement — surpassing even Belarus and Russia — with 143 cases prosecuted from 2015 to June 2018, Edwin Bernard, from the HIV Justice Network, reported during his presentation of a poster on HIV criminalization (poster TUPED512). And Florida, Ohio, and Tennessee prosecuted more cases than Canada and Zimbabwe combined.
US Leads the World in Enforcing Laws That Criminalize HIV
One of the early rationales for these laws was to try to improve public health by forcing a conversation about sexual health status and safer sex, according to a review of empirical studies of HIV exposure laws (AIDS Behav. 2017;21:27-50).
But the ability of laws to influence behavior was mixed, that review showed.
One study showed that people living in states with a rate of HIV prosecutions above the median had fewer sexual partners. Another showed that people living in states that criminalize HIV were more likely to use condoms. Still others showed that criminalization did not affect condom use, or increased condomless sex after HIV disclosure, and that criminalization deterred people from undergoing HIV testing.
Statements opposing criminalization have been issued by other organizations, such as the HIV Medical Association in the United States, and expert groups in Australia, Canada, Sweden, and Switzerland.
What makes the new consensus statement unique is its bid to change the language around HIV risk. It recommends that the criminal justice system stop using population-level data to describe risk for transmission (ranging from low to high) and instead use individual-level data (with the possibility of transmission during a specific act being none, negligible, or low), Godfrey-Faussett explained.
With the current science on HIV viral load and its association with negligible transmission risks, and with the availability of pre- and postexposure prophylaxis, language related to population-level data poses “real problems” for people developing public health messages that describe the risk for transmission and outcomes for people on treatment, according to the consensus statement.
“In some instances, understanding of the riskiness of certain sexual acts communicated by public health characterizations has also been misapplied in the context of criminal proceedings,” it adds. “Consequently, although sexual transmission is a common form of HIV transmission at the global population level, this Consensus Statement recognizes that the possibility of HIV transmission during a single sexual encounter ranges from no possibility to low possibility.”
For example, in the population as a whole, condoms are about 80% effective when used consistently and correctly. But on a one-time basis, if someone uses a condom correctly, the risk for HIV transmission drops to zero.
The Condom Test
“Importantly, when other risk-reduction factors are present (e.g., low viral load or withdrawal before ejaculation), the possibility of HIV transmission, even in the event of incorrect condom use, is further reduced,” the statement reads.
Or consider the science of viral load and transmission. At a global public health level, there is an association between detectable viral load and risk for onward sexual transmission.
Studies like PARTNER2 showed that when viral load is suppressed, HIV transmission does not occur, as reported by Medscape Medical News.
But the consensus statement is much broader than an “undetectable equals untransmittable” statement, said Godfrey-Faussett.
“Even if you do have a viral load, you have to look at what the likelihood of transmission is, such as whether a condom was used,” he told Medscape Medical News.
In fact, the statement cites studies that showed no transmissions from people whose viral loads — often used as a marker of transmission risk — were detectable but below 400 copies/mL, below 1000 copies/mL, and below 1500 copies/mL.
“We hope the better understanding of the transmission of HIV, better understanding of the harms of HIV, and better understanding of how to use phylogenetic evidence will lead courts to make the right judgments about cases involving HIV,” Godfrey-Faussett said. “We think it would lead to many fewer convictions on the basis of anything related to HIV transmission or disclosure.”
Physicians like Armstrong and groups like the International Association of Providers in AIDS Care (IAPAC) are ready to spread the word about the real risk — and the real impact — of HIV on the lives of those living with it.
IAPAC endorsed the consensus statement and plans to disperse it to its global members and to follow-up with “educational programming about how to communicate this message,” said José Zuniga, PhD, who is president of the association.
“Action is required to ensure that the criminal justice system understands the science of HIV in 2018,” Zuniga said. And for that, we’ll need “a bigger army of clinicians who can play that role.”
The consensus statement was funded by the International AIDS Society, the International Association of Providers in AIDS Care, the Robert Carr Fund for Civil Society Networks, and UNAIDS. Armstrong, Godfrey-Faussett, and Zuniga have disclosed no relevant financial relationships.