Yesterday, we posted an article about RITA, which is a test to assess whether someone diagnosed with HIV has been recently infected. Currently, individuals who are diagnosed as HIV positive are also being told of their RITA (Recent Infection Testing Algorithm) test result and these results can potentially be misused in criminal proceedings. Read it here.
While most HIV positive people practice very safe sex, and would never have cause to be taken to court, many say that the issue of criminalisation still affects them. A recent survey by researchers from the Sigma research team at Portsmouth University, found that 90% of the HIV positive people they interviewed were critical of the growing trend for criminalisation of reckless HIV transmission. Most said this was because they believed that the responsibility for protected sex should be shared, or because they thought criminalisation increased the stigma they faced. A number also said they believed that criminalisation was a step back towards the culture of ‘blame’ that surrounded the early years of the epidemic.
Criminalisation means there is now an extra concern for any HIV positive person who decides to have a sexual relationship. LASS, along with many other HIV organisations are finding that we have to take the issue into consideration when giving out advice.
For the vast majority of people living with HIV, preventing others from becoming infected with the virus is a primary concern. HIV positive individuals are, after all, only too aware of just how difficult it can be to live with the illness, and few would wish it on anybody else.
Unfortunately deciding if someone has intentionally, recklessly or accidentally transmitted HIV is not a simple process. The divisions between each of the three categories can be very blurred, and depend largely on individual interpretation. Even after a decision has been made on what grounds to prosecute, a court may still have a hard time deciding whether to find someone guilty or not
It might appear that proof is a straightforward issue, but proving that an individual has transmitted HIV can be exceedingly difficult.
Firstly it needs to be proven that the accused (let’s call them A) was definitely the source of the accuser’s (B) HIV. This would involve a range of evidence including sexual history, testing history and scientific evidence in the form of phylogenetics. This compares the DNA of the virus that A and B are infected with. If they are completely different then it means B almost certainly did not acquire HIV from A, and the case would probably be thrown out. If the strains are very similar, however, it is possible, though not conclusive, that A infected B. Phylogenetics cannot reliably estimate the direction of transmission and therefore it is possible that B infected A. Furthermore, both could have been infected by the same third party, or different third parties who shared similar strains of HIV. Due to its shortcomings, advocates recommend phylogenetic evidence should only be considered in the context of all other evidence.
- Fact and Fiction About HIV Transmission (everydayhealth.com)