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The harms of HIV criminalization: responding to the ‘association of HIV diagnosis rates and laws criminalizing HIV exposure in the United States’

McClelland, Alexandera; French, Martina; Mykhalovskiy, Ericb; Gagnon, Marilouc; Manning, Elid; Peck, Ryane; Clarke, Chadf; McCaskell, Timg

doi: 10.1097/QAD.0000000000001570
Correspondence

aConcordia University, Montreal, Québec

bYork University, Toronto

cUniversity of Ottawa, Ottawa, Ontario

dSimon Fraser University, Burnaby, British Columbia

eHIV & AIDS Legal Clinic Ontario (HALCO)

fCanadian Coalition to Reform HIV Criminalization

gAIDS ACTION NOW, Toronto, Ontario, Canada.

Correspondence to Alexander McClelland, Concordia University, Montreal, QC, Canada. E-mail: mcclelland.alex@gmail.com

Received 23 May, 2017

Accepted 9 June, 2017

As academics, advocates, including people living with HIV, we are writing to welcome the findings, recently published in this journal, suggesting the ineffectiveness of invoking the criminal law as a tool of HIV prevention [1]. Using the American Centers for Disease Control and Prevention data, Sweeney et al. [1] searched for correlations between rates of diagnosis of HIV (2001–2010) and AIDS (1994–2010) and the presence of state laws that criminalize so-called ‘HIV exposure’. In 30 states that had such laws, Sweeney et al. [1] found ‘no association between HIV or AIDS diagnosis rates and criminal exposure laws across states over time’.

We strongly encourage developing new knowledge about the implications of criminal laws for HIV prevention. We also recognize that Sweeney et al. [1] published a ‘concise communication’ format article, which undoubtedly limited what could be said. Despite this, we feel it imperative to highlight some omissions and assumptions in the work that precluded this article from making a stronger statement about the harms of HIV criminalization.

First, this research does not sufficiently address the myriad negative impacts that HIV laws have had on the lives of people living with HIV. Sweeney et al. [1] seem unaware of the growing body of social science work that has theorized and documented, in empirical terms, these harmful effects [2]. If this evidence of harmful effects had been considered, we think Sweeney et al. [1] might have actually come to a less qualified conclusion. They are careful to note the limitations of their ecological analysis, but they could go further to underscore that, although they detected no association, there is research that has documented how such laws interfere with the work of HIV prevention [3].

Second, the quantitative approach employed relies on a form of logic that reinforces assumptions about the criminal law's rationality and neutrality in a way that is potentially troubling, as it fails to recognize two important factors that have been explored by social science researchers: the ways in which criminal laws and courts can be highly irrational and contingent; [4] and historically how criminal laws have been organized around the regulation, control, and incapacitation of populations (e.g., people of color, people with disabilities, people who live in poverty, gay, lesbian, and trans people, and people who live with forms of communicable disease, among others) [5]. Research organized with the underpinning assumptions that HIV criminal laws are rationally intended to prevent transmission of the virus, and that legislators will simply uptake scientific or public health knowledge to promote the goals of science and public health may be unintentionally misguided.

Third, Sweeney et al. [1] noted that ‘state governments have been encouraged to review criminal laws to ensure they reflect current science on transmission risk as well as further public interest and public health’ (p. 11). To strengthen this observation, they might have also acknowledged law reform efforts, now underway in many jurisdictions, led by those living with, and most affected by, HIV (see, among others, HIV Justice Network, and the Global Commission on HIV and the Law). A lack of engagement with these efforts seems disconnected from the growing expectation that social science research be made meaningful in the real world.

Although the study by Sweeny et al. [1] may have productive possibilities for advocacy, it was unfortunately too silent on the harms of exposure laws.

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Acknowledgements

Conflicts of interest

There are no conflicts of interest.

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References

1. Sweeney P, Gray S, Purcell D, Sewell J, Babu SA, Tarver B, et al. Association of HIV diagnosis rates and laws criminalizing HIV exposure in the United States. AIDS 2017; 31:1483–1488.
2. Adam BD, Elliott R, Corriveau P, English K. Impacts of criminalization on the everyday lives of people living with HIV in Canada. Sex Res Social Policy 2014; 11:39–49.
3. For overviews of this work, see: Bernard, E., Cameron, S. 2016. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf; Mykhalovskiy, E. (2015). The public health implications of HIV criminalization: past, current, and future research directions. Critical Public Health, 25:4, 373–385; Harason, D. Galletly, C., O’Keefe, E., Lazzarini, Z. 2017. Criminalization of HIV Exposure: A Review of Empirical Studies in the United States, AIDS and Behaviour, 21:27, 27–50.
4. Jasanoff S. Just evidence: the limits of science in the legal process. J Law Med Ethics 2006; 34:328–341.
5. See, among many: Alexander, M. (2012). The New Jim Crow: Mass Incarceration in Age of Colorblindness. The New Press: New York; Simon, J. (2007). Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. Oxford University Press: London; Razack, S. (2015). Dying from improvement: Inquests and inquiries into Indigenous deaths in custody. Toronto: University of Toronto Press.
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