Criminalizing HIV Spread Could Hurt Public Health

NEW YORK (Reuters Health) - In Scotland, individuals who knowingly infect another person with HIV can be prosecuted. In the November 17th issue of the British Medical Journal, editorialists warn that this recent legal ruling could lead to a decline in HIV screening and subsequent spread of the epidemic.

``This article arose following the successful prosecution of a man in Scotland for culpable and reckless conduct for transmitting HIV to a sexual partner and having lied about his HIV status,'' Dr. Andrew J. Leigh-Brown from the University of California, San Diego, told Reuters Health. The man, Stephen Kelly, received a 5-year jail sentence.

Leigh-Brown and his colleague Dr. Sheila M. Bird from the MRC Biostatistics Unit in Cambridge, UK, explore the possible implications of this case for the HIV epidemic in Scotland. Kelly, an injection drug user and former prisoner, had participated in an HIV infection control program after he was diagnosed with the infection. However, he did not disclose his HIV status to a woman with whom he later had unprotected vaginal and anal intercourse.

It is now possible to be convicted of a criminal offense if one lies about one's HIV status and infects another person, Leigh-Brown said. ``The inevitable consequence is that if one does not know one's HIV status but transmits the disease, one cannot be prosecuted.''

The likely result, he warned, is that fewer people will get tested for HIV. ``This is our primary public health concern,'' he explained.

Leigh-Brown and Bird predict an increase in the number of HIV transmissions in Scotland over the next few years. As testing is reduced, fewer people will be counseled to change their behavior and to consider treatment, Leigh-Brown warned.

Research may also suffer as fewer people volunteer to participate in trials and fewer researchers conduct studies for fear of legal consequences, he added. In the Kelly case, all the study records were seized as part of the court case, Leigh-Brown said.

There have already been inquiries from other police agencies in the UK, he added, and there is a fear that the results of this judgment will become part of common law throughout the UK.

``We call for the Scottish Executive to look at this case and the circumstances surrounding (it),'' Leigh-Brown told Reuters Health, ``and consider what will be most beneficial from the point of view of the public health.''

SOURCE: British Medical Journal 2001;323:1174-1177.