HIV Criminalization: A Thorn in the Side of Public Health Prevention by Lydia Karch

Full disclosure: my first White paper looked at criminalization of HIV in the U.S. Given that I work and study in the field of public health, I am going to use this blog post to focus on some of the public health implications of criminalization, rather than the ethics or morality of criminalization itself, topics that I think other people may be better equipped to handle.

The Positive Justice Project (PJP) at the Center for HIV Law & Policy has compiled a (non-exhaustive) list of 134 prosecutions and arrests for HIV exposure in the U.S. from 2008 to the present. [1] The most recent case is from Florida, where a prostitute under arrest admitted to testing HIV positive; notably, the coverage of her arrest does not mention whether she was receiving anti-retroviral therapy (ART) or using condoms in her line of work. [2] The woman is currently facing a felony charge for failing to inform her partners of her HIV status, although one assumes since both her name and picture were published with the story, past and present johns have had ample opportunity to inform themselves.

The majority of United States HIV criminal cases involving sex also neglect to report or consider condom use and ARVs (both of which significantly reduce the risk of transmission), and spitting or biting continue to be “hazardous” behaviors worthy of arrest and felony prosecution. The Kaiser Family Foundation’s 2011 Survey of Americans on HIV/AIDS further underscores a seemingly entrenched ignorance about HIV transmission: 1 in 4 Americans believe (or do not sufficiently doubt) HIV can be transmitted via a shared drinking glass, 1 in 6 believe the same for toilet seats, and a little more than 1 in 10 view swimming pools as a potential source of infection. [3] In contrast, the Centers for Disease Control and Prevention (CDC) website on HIV Transmission dismisses saliva alone as a potential means of transmission, and reports that all known cases of HIV transmission via biting involved severe trauma, extensive tissue damage, and blood; bites that do not break the skin have no chance of transmitting HIV. [4]

A major public health concern with criminalization is that it perpetuates and reinforces myths or misperceptions of HIV risk and transmission. When an HIV-positive man or woman is charged with a felony for spitting on a police officer, despite the CDC’s official position against spitting as a feasible transmission route, it sends mixed messages about what “risky” behavior truly is, and forces the public to choose which authority they will listen to. Additionally, high profile cases fuel stigma and fear of HIV-positive people, which in turn may (although there have not yet been any studies to support this theory) inhibit testing and disclosure. Patients who fear being judged, shamed, or accused of a crime may be less willing to engage in counseling, or truthfully report sexual practices to health practitioners. [5]

Criminalization also shifts the responsibility for safe sex onto just one partner, a dangerous assumption given that unsafe sex can lead to any number of STIs or an unintended pregnancy, not just HIV [6]. In other words, sex carries risks under any circumstances, not just in situations where one partner is HIV-positive. Placing the burden for safe sex entirely on the HIV-positive person’s shoulders is unjust, and can not only reinforce stigma but also cultivate complacency among HIV-negative persons. Safe sex is every person’s responsibility. Unfortunately, having just asserted the importance of equal responsibility for safe sex, it is impossible to ignore the harsh reality of gender inequality. Women are more at risk for coerced, unprotected sex in societies where they also suffer from social, economic, and political disempowerment. Women who are HIV-positive but unable to refuse sex do not deserve to be criminally prosecuted; nor do mothers who are uninformed or unsupported in attempting to prevent mother-to-child transmission. [5] Assuming autonomous, let alone intentional, sexual decision-making runs the risk of further victimizing already vulnerable populations.

As Judge Cameron notes, “In the majority of cases, the virus spreads when two people have consensual sex, neither of them knowing that one has HIV. That will continue to happen, no matter which criminal laws are enacted and which criminal remedies are enforced.” [6] The real crime in evidence here is ignorance (of status, prevention techniques, and transmission routes), which is best addressed through evidence-based public health outreach, education, and support for testing, counseling, and treatment.




[1] Positive Justice Project (PJP). Prosecutions and Arrests for HIV Exposure in the United States, 2008-2012. 14 Feb. 2012:

[2] Ritchie, R. Michelle Weissman busted in prostitution sting, tells deputies she’s HIV positive, police say., 8 Feb. 2012:

[3] Kaiser Family Foundation (KFF). HIV/AIDS at 30: A Public Opinion Perspective. June 2011:

[4] Centers for Disease Control and Prevention (CDC). HIV/AIDS, Questions and  Answers: HIV Transmission. 25 Mar. 2010:

[5] Jürgens R, Cohen J, Cameron E, Burris S, Clayton M, Elliott R, Pearshouse R,

Gathumbi A, Cupido D. Ten reasons to oppose the criminalization of HIV exposure or transmission. Reproductive Health Matters, 2009; 17(34):163-172.

[6] Cameron E. Criminalization of HIV transmission: poor public health policy. HIV/AIDS Policy & Law Review, 2009; 14(2):62-75.

Emerging Challenges in Increasing Access to HIV/AIDS Medicines by Daniel Hougendobler

I had the opportunity to work at the Medicines Patent Pool last summer.  From my work at the Pool, meetings and conferences I was able to attend, and conversations with various individuals, I was able to learn about some trends and challenges facing the Pool and access to medicines in general.  I wanted to share a few of these.

Access to medicines in middle-income countries

When the Medicine Patent Pool’s first license with a pharmaceutical company, Gilead Sciences, was signed, it sparked a deluge of comments from NGO’s and civil society groups.  The reactions generally fell into two categories.  First, many expressed gratification at what the license represented and the promise of increasing access to Gilead’s products. 

However a sizeable number expressed displeasure at some of the specific terms in the license.  The problem for many was that the license excluded those in middle-income countries, where most of the world’s poor currently live.   This is likely to represent a source of considerable tension moving into the future.  While it is relatively easy for a pharmaceutical manufacturer to write off the market in Gabon or Burundi, it is far less likely that they will do so in Brazil, India, China or South Africa, which they see as huge sources of future revenues.  Unfortunately, a large proportion of people in these middle-income countries still live in dire poverty, little better than those in most developing countries.  The debate over access licensing in middle-income countries is unlikely to be resolved easily or soon.

“TRIPS-plus” FTA’s

Another important issue that has been present since TRIPS was passed, but has become increasingly in the spotlight in the past few years, are “TRIPS-plus” agreements, which are generally free-trade agreements.  Two prominent current examples are the Anti-Counterfeiting Trade Agreement (ACTA) and the India-E.U. FTA, which have been criticized for attempting to introduce provisions imposing onerous data-exclusivity requirements, civil trademark enforcement mechanisms without a requirement of intent, cross-border seizure, and extreme punishments for IP violations. 

With political consensus for stricter IP rights having largely evaporated from international organizations such as WTO and WIPO, access battles are increasingly being fought bilaterally.  This imposes special challenges to those who want to insure access is being protected since even the existence of these negotiations is often kept secret.

Treatment 2.0 

We’ve touched on this in class, but the concept of Treatment 2.0, or Treatment-as-Prevention, is having a profound effect on the access to medicines community.  This has muted an often-contentious debate between those advocating for treatment vs. prevention and has increased the demand for treatment.  It means that access to ART is an increasingly important tool in the fight against HIV/AIDS.

Confronting budget constraints

With vital programs such as PEPFAR and the Global Fund facing increasingly severe budget cuts or instability—and with the probability of this trend continuing into the foreseeable future—the access to medicines community has to find creative ways to provide more treatment with fewer funds.  The shift from a single focus on HIV has become (rightly, I believe) a more diffuse effort to address diseases and conditions that effect resource-limited settings (e.g. the shift in U.S. emphasis from PEPFAR to the Global Health Initiative).  However, this means that achieving the level of access to ART necessary to end the pandemic will require creative strategies, more funding, and lower prices, particularly for second- and third-line ART, which will become increasingly important as people in resource-limited settings live longer. 

Are AIDS Medicines Public Goods? by Zhibin Dai

In basic terms, a public good is defined by two characteristics: 1) non-rivalrous, meaning that the use of a good by one person doesn’t decrease the availability of the good for other people, and 2) non-exclusive, meaning that no one can exclude another person from using the good. A very basic example is air. One person breathing in air doesn’t make air any less available for other people, and an individual cannot effectively exclude other people from breathing air. Other examples could be national defense and public roads (public goods are generally provided by the government).

Pharmaceutical drugs are typically not public goods; drug manufacturers can exclude people who cannot afford the cost of the drug from having access to them. But in the context of the global AIDS epidemic, the moral quandary of denying people access to life-saving drugs because they cannot afford them throws this traditional framework into question (although it’s only a moral quandary because the aggregate wealth in the world is enough to afford life-saving drugs for anyone who needs them). Hoen et al discuss this issue in “Driving a Decade of Change.” The paper addresses the tension between enforcing pharmaceutical patents globally while also making life-saving ARVs available to patients in developing countries.

Hoen et al outline the efforts that governments, international organizations and NGOs have taken to increase access to drugs. These include applying public pressure on pharmaceutical companies to sell licenses to generic manufacturers in countries such as India, as well as delaying the implementation of patent protection in developing countries. The authors also advocate for a global Medicines Patent Pool that would coordinate and streamline the selling of patent licenses for developing nations.

The efforts outlined by Hoen et all clearly suggest that globally, AIDS treatments are increasingly viewed as public goods that should be available to anyone who needs them, regardless of whether they can afford them. Going forward, the question is: what is the best framework for providing life-saving AIDS treatments to those who need them?

Ideally, pharmaceutical companies would just give these drugs away to patients who need them to survive but can’t afford to pay for them. In theory, this wouldn’t really hurt drug companies that much because the costs of actually manufacturing the physical drugs is low – most of the costs are front-loaded into development and regulatory approval –  and since the patients can’t afford them anyway, the drug companies, in theory, were never going to make revenues selling the drugs to them.

However, giving drugs away in poor countries could be used by drug companies as an excuse to charge higher prices in developed countries, which would essentially turn the increased prices into a form of foreign aid. Another incentive for drug companies to raise prices in developed countries while giving drugs away in poor countries is that, in giving drugs away, companies are closing themselves out of major markets because the vast majority of AIDS patients are in poor countries, particularly Africa. I’m ambivalent about whether this would or does happen, but given that drug companies can charge monopoly prices in the United States and Western Europe, they certainly could.

In terms of patent protections in developing countries, it seems that the ideal solution would be to grant strong patent rights as a baseline and then work with them to create exceptions in situations where it’s socially necessary. This seems to be the approach of the patent pools. This protects drug companies’ investments because a significant number of the drugs they develop are not lifesaving, and as such, should not be treated as public goods. If Pfizer wants to charge super-high prices for Viagra in the developing world, they should be able to. Another issue is which countries loosened patent protections should apply in; there are major wealth discrepancies between developing countries. China and Zimbabwe are both “developing”, but the former is flush with cash while the latter is in pretty dire straits.

Week 12: Vertinsky & Kocher

Week 12 focused on  HIV/AIDS and the law.

Liza Vertinsky from the Law School talked about patent pools that have been developed in an effort to bring down prices and increase accessibility to HIV/AIDS drugs in developing countries. A student in the class, Catherine Perez, posted this great video that helps simplify the rather complex process. Paula Kocher from the CDC talked about the ins and outs of partner notification programs (also called “contact tracing”). She also discussed the criminalization of people with HIV/AIDS who infect others and the treatment of HIV+ prisoners.


  • Butler, Declan & Natasha Gilbert. “Drug Patent Plan Gets Mixed Reviews.” Nature. Vol. 457, No. 26. February 2009. 1064-1065.
  • Zimmeren, Esther van. “Patent Pools and Clearinghouses in the Life Sciences.” Trends in Biotechnology.  Vol. 29, No. 11, November 2011. 570-576.
  • Hoen, Ellen T. “Driving a Decade of Change: HIV/AIDS, Patents, and Access to All Medicines for All.” Journal of the International AIDS Society.  14:15, 2011. 1-12.
  • Gostin, Lawrence O. “Piercing the Veil of Secrecy: Partner Notification, the Right to Know, and the Duty to Warn.” AIDS Pandemic: Complacency, Injustice, and Unfulfilled Expectations. Chapel Hill: University of North Carolina Press, 2004. 167-178.
  • Gostin, Lawrence O. “The Criminal Law: Knowing or Willful Exposure to Infection.” AIDS Pandemic: Complacency, Injustice, and Unfulfilled Expectations. Chapel Hill: University of North Carolina Press, 2004. 185-198.


Narratives and Youth by Catherine Perez

“Making Sense of Condoms”

            This article was about studying the views on condom use by African youths. And I do consider that an important inquiry, since condoms are a great way to help prevent HIV transmittance. With the way HIV is being spread rapidly and among youths (stated in the article was 45% which is almost half!), assessing condom use attitudes can be a way to figure out how to get youths to use them. Since sure we can say that condoms are one of the best ways to prevent HIV transmittance, but the fact remains people need to use them. They need to use them right, consistently, and every time in order to be really effective.

I thought it was interesting to use a script writing contest to gauge youth’s perspective on the use of condoms. I feel like just asking youths would be more direct, and less bias to people who actually entered a contest to win a prize. To me the data would be skewed (but hey what data isn’t anyway?), but in the article the authors mention how the skits show youth’s perspectives in a free imaginative way. It allows youths to use their knowledge of firsthand experiences and to interpret their personal culture into skits for their community. So these narratives are great, but since to me it’s a contest, I don’t think they can be that accurate of a representation. I believe the ideals in these narratives are held by youths, maybe even commonly, but I thought this research wanted to access a more quantitative approach, as this would be useful in knowing what the majority of teens thought about condom use, but the research was more focused on the qualitative aspect.

According to the article 63,000 people participated in this contest and I was surprised that that many people entered. It was also interesting to hear some of the differences in the skits, for example between genders and ages. In the article they said condoms were only mentioned in around 37% of the samples they had, which to me seem pretty low.

So reading the 1st article second, I thought it was cool that these skits brought a difference to a select few’s lives. It allowed one to live their dream of directing films and it gives a way for people to relate.

They also mention that they saw misconceptions and themes in the entries, which sparked the (above) other article. So its troubling that misconceptions exist, but if people know the problem, they can better fix it.

So overall between the two articles, I’m glad that these narrative contests work in many ways. It allows youth to express themselves and win a prize, plus it gives data to researches about what youths think about HIV.

—Catherine Perez


Scenarios Program by Amy Stein

Both articles have made it extremely clear that condom use is imperative for the prevention of HIV.  Since young people are the majority of the population who has newly contracted HIV, they are the generation that needs to be targeted when it comes to condom use. The Scenarios program is brilliant and evidently effective because this program specifically targets young people. Since teenagers and those in their 20’s are so immersed in media, Scenarios is the perfect way to target the intended audience. I find the wide range of participants involved in the Scenarios program particularly compelling. The idea generated by a single participant flows through so many different people that even if an entry is not chosen, it is still read, analyzed and interpreted by others involved in the process, which can still leave an everlasting effect. It is the collaboration between the creators, the organizers, the PLWA etc. that make this program unique. Also, I enjoy the fact that young adults create the films because it creates a stronger connection. For instance, if an adult created a film aimed at teens regarding AIDS prevention, they can attempt to incorporate mainstream ideas associated with youth culture, but it’s completely different than an attempt made by an actual youth. When a teenager or young adult creates an idea for a film about AIDS, there will be a certain aura about it, and they know how to attract and reach the audience because THEY are the audience. Sex could be an awkward topic to discuss sometimes, when it is presented in a humorous way, while also relaying extremely important knowledge, of course teenagers will listen. A fun project for this class (if it continues next year) would to create a video or film, similar to “The Shop,” that incorporates vital information about AIDS in a modern, yet informative way. I feel that if high school students watched a video on AIDS prevention, but it was funny, and incorporated pop culture aspects such as Face Book or Bono, they would listen and definitely learn.