Inside SRSP, Reckless Vectors 

Heather Worth, Ph.D., is the deputy director of the National Centre in HIV Social Research, University of New South Wales. With a research focus on gender, sexuality, HIV and global politics, she has co-edited three books on continental social theory. Ine June 2005, she acted as guest editor for a special issue of Sexuality Research and Social Policy: Journal of NSRC, entitled Reckless Vectors: The Infecting "Other" in HIV/AIDS Law.

American Sexuality magazine: Why shouldn't people who are knowingly transmitting HIV be criminalized?

Heather Worth: There are very few cases, the numbers are miniscule, of people who have knowingly transmitted HIV. Most of the criminal cases involve people who are not knowingly transmitting HIV or doing it purposefully. In the course of their everyday lives, what normally happens is that people find it very hard to disclose their HIV status. They may be in a position where they find it difficult to negotiate condom use. That's the normal scenario under which HIV generally gets transmitted, and the normal case under which people get charged with crimes.

AS: Do you know how many criminal cases of HIV transmission there are?

HW: No, I don't know how many. It tends to go in waves. I estimate cases to be in the thousands worldwide. It probably isn't on the rise in the United States, but there are certainly other countries that are starting to use the criminal law in this regard, which we think of as a sad move. For example in New Zealand there has been a half dozen cases over the last few years.

AS: Why is that happening?

HW: Why? It's a move to a more conservative government, a more draconian approach to HIV. In the early years of HIV, there was a huge debate on which way to go: Should you quarantine people, should you use the law to regulate sexual behavior or drug use? There was a very big response from activists against that kind of draconian model and a push for a human rights approach. And I think the human rights approach has worked extremely well. We are now seeing a move back to conservatism and a moral stance and a more litigious stance toward HIV transmission.

AS: How has the human rights approach been successful in dealing with HIV transmission?

HW: The late Jonathan Mann, who started the Global Program on AIDS, which then became UNAIDS, had very strong beliefs. He was very strongly in favor of a human rights approach. Because HIV is spread through practices that are prescribed in some way or other - sex and drug use - the early proponents to the response to HIV believed the more you marginalize marginalized groups, the more draconian the attitudes in the actions taken against them, the more you will drive HIV underground. He believed in mounting a positive public health component to it.

AS: Can you explain the connection between the criminalization of transmission of HIV and xenophobia?

HW: In New Zealand, where I came from, the very first case of criminalization was toward a Kenyan man, Peter Mwai. What happened was he had come to New Zealand and he had infected quite a number of people, a number of women. There's nothing xenophobic particularly about that. He wasn't even charged with knowingly transmitting the virus. But the response absolutely centered on his Africanness. In both this case and the Charles Ssenyonga case in Canada, Africa was portrayed as being a viral continent, which was more primitive. Africanness was portrayed as being central to the virus.

AS: What social institutions would do a better job at reducing HIV transmission than the criminal justice system?

HW: In terms of the response to HIV from Australia and New Zealand, and in Europe, the response was absolutely driven from bottom up. It was a partnership approach between governments and NGOs. There were laws that protected those with HIV from discrimination and stigma. There was funding provided that was sex positive rather than all about abstinence or closing down bath houses or acting in a draconian way toward gay men, the community most affected in Western countries at the beginning. A real belief in empowerment and a real funding of projects from the bottom up, a real ownership of the response by the gay community, a partnership approach between governments and communities - that's what turned the epidemic around in our part of the world.

AS: Why should those who are untouched by the AIDS epidemic care about what's happening in the criminal justice system?

HW: Why would they not care? Why would they care about people with HIV being criminalized? Because it's a human rights issue; it's an issue of trying to solve really difficult problems of relationships, sexual practice, and drug use. This is an extraordinary silly thought for something as complicated as people's personal lives.  Sexual practice and drug use are extremely complicated issues. They have all kinds of issues around power, ability to be able to disclose the HIV status, the power to negotiate condom use, the very very difficult things that are part of everyday life in terms of love and intimacy. Criminalization is a very poor tool to deal with those kinds of issues of power.

AS: So, you wouldn't be against arresting an individual who knowingly transmits HIV?

HW: I would want you to tell me the details; I would want to see the real case. I'm not prepared to make a blanket statement about that. I don't want to get into that debate of 'where are you going to draw the line.' We know the cases where people who have knowingly infected other people are also extraordinarily complicated cases. These are not just some bastards deciding to kill some victim.

AS: How do you see the future on this issue?

HW: I see the future very differently from my country to your country. I certainly view the U.S. future in terms of its policies around sexuality and the war on drugs as being extraordinarily problematic and likely to remain so for a long time. I think you are likely to see an increase in criminalization cases and a move against sex. We see this in terms of the Bush policies. It's a very frightening move. In terms of our country, I think we have to work hard with these cases that come up. But we don't have a government that has a sexual moral agenda of the Bush administration.

Click Reckless Vectors for Sexuality Research and Social Policy: Journal of NSRC, Volume 2, No. 2.