PAPER HIV transmission law in the age of treatment-as-prevention Bridget Haire, John Kaldor The Kirby Institute for infection and immunity in society, UNSW Australia, Sydney, New South Wales, Australia Correspondence to Dr Bridget Haire, The Kirkby Institute for infection and immunity in society, UNSW Australia, Wallace Wurth Building, Sydney, NSW 2052, Australia; b.haire@unsw.edu.au Received 3 March 2014 Revised 14 June 2015 Accepted 29 July 2015 To cite: Haire B, Kaldor J. J Med Ethics Published Online First: [ please include Day Month Year] doi:10.1136/ medethics-2014-102122 ABSTRACT Evidence that treating people with HIV early in infection prevents transmission to sexual partners has reframed HIV prevention paradigms. The resulting emphasis on HIV testing as part of prevention strategies has rekindled the debate as to whether laws that criminalise HIV transmission are counterproductive to the human rights- based public health response. It also raises normative questions about what constitutes ‘safe(r) sex’ if a person with HIV has undetectable viral load, which has significant implications for sexual practice and health promotion. This paper discusses a recent high-profile Australian case where HIV transmission or exposure has been prosecuted, and considers how the interpretation of law in these instances impacts on HIV prevention paradigms. In addition, we consider the implications of an evolving medical understanding of HIV transmission, and particularly the ability to determine infectiousness through viral load tests, for laws that relate to HIV exposure (as distinct from transmission) offences. We conclude that defensible laws must relate to appreciable risk. Given the evidence that the transmissibility of HIV is reduced to negligible level where viral load is suppressed, this needs to be recognised in the framing, implementation and enforcement of the law. In addition, normative concepts of ‘safe(r) sex’ need to be expanded to include sex that is ‘protected’ by means of the positive person being virally suppressed. In jurisdictions where use of a condom has previously mitigated the duty of the person with HIV to disclose to a partner, this might logically also apply to sex that is ‘protected’ by undetectable viral load. INTRODUCTION The overwhelming evidence that treating people with HIV early in infection prevents onward transmission to sexual partners 1–4 has reframed HIV prevention paradigms. 5 Widely accessible testing to reveal undiagnosed HIV infection and the encouragement of early treatment uptake are increasingly acknowledged as central to HIV prevention, forming what are now known as ‘treatment-as-prevention’ strategies. 5 Policy on testing has, thus, come full circle over the past two decades: In the early days of the global epidemic, with no effective treatment, testing was discouraged until people developed illnesses that required medical attention. 6 Public health messages were about safe sex, and were aimed equally at those with and without infection. Then, as treatments improved, testing was encouraged so that people could manage their own treatment and health if they had HIV, but it was still left as a personal choice as to when testing was undertaken. 6 The renewed focus on uptake of testing as part of prevention strategies has rekindled the debate as to whether laws that criminalise HIV transmission are counterproductive to the human rights-based public health response that is now recognised glo- bally as the overall framework for HIV control. 7 This paper will discuss recent cases where people have been prosecuted for HIV transmission or exposure and consider how the interpretation of law in these instances impacts on HIV prevention paradigms. The focus will be on Australia, which has embraced ‘treatment-as-prevention’ in its Seventh National HIV Strategy, yet has retained laws at a state (subnational) level that can be used to criminalise people with HIV who have unpro- tected sex, regardless of whether infection occurs. i 8 Accordingly, the specific focus of this paper will be the implications of an evolving medical understand- ing of HIV transmission, and particularly, the ability to determine infectiousness through viral load tests for laws that relate to HIV exposure (as distinct from transmission) offences in the Australian context. CRIMINALISATION OF HIV TRANSMISSION The ‘criminalisation of HIV transmission’ refers to laws that target a person with HIV infection who engages in unprotected sex with a person of HIV-negative status. These laws appear in a variety of guises. Some are HIV specific, whereas others predate HIV and proscribe deliberate or reckless conduct that harms others or places them at risk. Whereas some laws only criminalise when transmis- sion of infection actually occurs, others criminalise exposure itself. Under reckless conduct-type laws, any activity that results in another person being exposed to the risk of HIV acquisition without being warned of the risk represents a crime, whether or not transmission occurred. The precise elements of these laws vary from state to state and country to country, and may include the obligation to disclose HIV status, the obligation to use a condom for penetrative sex or both. In this paper, we will argue that laws against ‘exposing’ a sexual partner to a potentially pathogenic virus are only logical if this exposure involves appreciable risk of actual infection, and hence, may require revision in i While the state of Victoria has recently abolished Section 19a of the Crimes Act that contained a specific provision criminalising HIV transmission, other more general laws remain that can be used for this purpose. Haire B, Kaldor J. J Med Ethics 2015;0:1–5. doi:10.1136/medethics-2014-102122 1 Law, ethics and medicine JME Online First, published on September 29, 2015 as 10.1136/medethics-2014-102122 Copyright Article author (or their employer) 2015. Produced by BMJ Publishing Group Ltd under licence. group.bmj.com on October 6, 2015 - Published by http://jme.bmj.com/ Downloaded from