Experts in this week's BMJ express serious concerns about the public health impact of criminalising HIV transmission.
The Crown Prosecution Service for England and Wales has issued, for public consultation, new guidance on criminal prosecution for the "sexual transmission of infections which cause grievous bodily harm." It is likely to be used mostly in relation to HIV.
"Although this attempt to introduce standardised criteria for prosecutions is welcome, we have serious concerns about the public health impact of using the law to criminalise disease transmission," say Ruth Lowbury of the Medical Foundation for AIDS and Sexual Health and George Kinghorn of the Royal Hallamshire Hospital.
The government has made it a policy priority to increase uptake of HIV testing and is funding prevention programmes in England for the population groups most at risk. Services around the country offer voluntary testing, confidential partner notification, and education and support for affected individuals and their partners.
Crucially, these measures rely on a relationship of trust and confidence between patients and healthcare professionals, but the sustainability and success of this approach are hugely threatened by the policy of criminal prosecution, they argue.
Already there are indications that this use of the criminal law is having unintended negative consequences. Awareness is spreading among those infected with HIV that they face the threat of criminal prosecution, while media coverage has vilified those convicted as "AIDS assassins," exacerbating the stigma already associated with infection.
No wonder those unlucky enough to become infected often choose to keep their status a secret, they write.
Individuals in this situation need help and support to plan how and to whom they will disclose their status, and to find strategies for protecting others from infection.
An estimated 20,000 people in the UK have HIV which is still undiagnosed, they add. There is a clear disincentive to testing when prosecution relies on defendants knowing they are infected. Meanwhile, those who do take the test may not agree to their partners being notified for fear of legal repercussions, thereby jeopardising essential public health control efforts.
Doctors need guidance on whether the potential for criminal prosecutions changes their legal and ethical duty of confidentiality, and how to advise their HIV positive patients, who may become "victims" or "defendants" if a prosecution occurs. There is also an urgent need for further research, to see whether criminalisation may be leading to reductions in uptake of HIV tests.
Putting aside the difficulties in attributing who infected whom, they conclude that, in the case of criminal prosecution for reckless transmission of HIV, the public interest is not best served by pursuing justice against the few at the expense of the health of the many.