Behind Bars: Why Turn a Proportion of our Population into Potential Criminals Every Time They Have Sex?

This interview with Jan Albert, a Professor of Infectious Diseases who has worked at the Swedish Institute for Infectious Disease Control (SMI), is part of the Behind Bars series by Kevin Osborne and the International Planned Parenthood Federation.

“As researchers our main purpose is to work for disease control, not to contribute to criminal investigations…the legal situation makes our work harder.”

HIV is interesting from a scientific point of view, the organism itself, but it’s also important and meaningful work. I’m interested in the areas where research, patient care and public health overlap.

We have had quite a few convictions for wilful or reckless HIV transmission in Sweden. We have also had a few convictions for exposure without transmission. There are no specific HIV laws, instead HIV transmission is dealt with under the regular criminal law. The problem is that it has not been handled in a uniform way by Swedish courts, and the length of imprisonment varies substantially.

We also have a Communicable Diseases Act that involves a number of contagious diseases, including HIV, chlamydia and gonorrhoea, but not only STIs.

The main principle of the act is that people who have these contagious diseases, and their doctors, have several obligations. As a doctor, you’re obliged to trace the people the infected person has had contact with, and, as a patient, you should avoid spreading the disease by informing your sex partners and using a condom.

I think a general discussion is needed regarding the way we deal with HIV transmission – but no other infectious disease – under the criminal law.

In my opinion the lengths of penalties are way too long. I don’t think we should remove all legislation around HIV, but I believe that it would work better if it were handled under the Communicable Diseases Act.

I see HIV transmission from three different perspectives, as a member of a public authority, as researcher and as human being. Of course, it’s impossible to not be affected as a human being and sometimes it has been problematic to juggle these different roles. 

Since I’ve been an expert witness in court trials, my personal opinion regarding people living with HIV (PLHIV) has changed.

In my experience the accused persons are seldom ‘raw criminals’. Instead, they are people who have been careless or even reckless. There are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV, which is how these acts often are described by the media.

Instead, my impression is that they hope that transmission will not happen, or sometimes they do not care, but even then there is no intent to transmit. You can relate this to drink driving, the drunk driver acts carelessly but the intent isn’t to kill someone. I think you have to make this reasoning a part of the debate, especially in the media and also in relation to the penalties. 

I’ve seen prejudice in the media reporting of these cases, but that’s how the media works and I have learnt how to deal with it. They often want the sensational and spectacular news, especially tabloids. I wished there was place in the media for a more nuanced view; sometimes we see it, but not very often.

I know about the genetic evolution of HIV from my research and public health work. I use genetic methods to study the principles of HIV transmission, but the same methods can be used to investigate whether it is likely that a person has transmitted HIV to another.

Thus, genetic research to improve our understanding of how the infection is spread can also be used as evidence to convict.

Because of the practise of applying criminal law to cases of HIV transmission it is hard for public health authorities to collect information about the spread of HIV in Sweden.

Research ethics are really brought to a head in these issues. As researchers our main purpose is to work for disease control, not to contribute to criminal investigations. So the legal situation makes our work harder. Aside from that, criminalisation maintains stigma around HIV. If you’re trying to normalise HIV as a disease, it’s counterproductive to put people in jail and have big headlines in the media about ‘HIV criminals’.

Of course, it’s important that people living with HIV have rights and the same rights as everybody else. But the critical question is whether this means that they have the same rights as everybody else to have unprotected sex whenever they want to.

I don’t think that’s straightforward. We need a balanced discussion and legislation, which protects the rights of both infected and uninfected persons.

I don’t think we will see a dramatic change in Sweden in the next few years. But I hope that we will get a more nuanced and moderate view on HIV.  There will be more and more HIV infected people living in Sweden, and the rest of the world.

Do we want to turn a proportion of our population into potential criminals every time they have sex?”

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