This talk is based on data from a qualitative project funded by CHAPS and undertaken by Sigma Research in the past year, called Relative Safety II,

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2 This talk is based on data from a qualitative project funded by CHAPS and undertaken by Sigma Research in the past year, called Relative Safety II, in investigation of experience of unprotected anal intercourse among gay men with diagnosed HIV. My colleague, Adam Bourne, gave a talk this morning giving an overview of the findings in the RSII report, and you can collect copies of the report at the Sigma conference stall. Over the last few weeks, Adam, myself, and Matthew Weait, from Birkbeck College worked together to draw out more detailed information from the interview transcripts looking particularly at participants thoughts and responses to criminal prosecutions within the interview data. This was a topic which simply could not gain full attention in the research report. As a result, the talk you are hearing today is based on a journal article that the three of us have recently prepared and submitted for consideration. 2

3 I also want to acknowledge here the other authors on the full report of the study, as well as give thanks to all the agencies that helped us to recruit participants and who helped by providing space for interviews. 3

4 The project consisted of in-depth interviews about men s experience of sex and risk 42 respondents were recruited with the help of CHAPS partner agencies, and they came from a mix of geographical areas with a lot of HIV, and those with lower prevalence All had diagnosed HIV All had unprotected anal intercourse (or UAI) in the past year So, what I want to do this afternoon is to zero straight in on one topic area in the interview data. I will talk about participants understandings of and responses to criminal prosecutions for the reckless sexual transmission of HIV in England and Wales in light of their own experience as men with diagnosed HIV who have unprotected anal intercourse. 4

5 Before I get going, though, I want to hear from you. Can you all tell me what you jotted down at the start when I asked you to think of the top 3 things that diagnosed men should know about prosecutions? [Talk them over] I want us to bear this list in mind as I go through the rest of the talk, and I want us to talk about it further in our discussion afterwards. Ensure the following points are covered: NOT a new law (OAPA 1861) just a new use of the law Recklessness / Intention Consent to the specific risk is a defence HIV transmission must have occurred Limits of phylogenetic evidence Diverse prosecution groups (not just gays or just Africans) 5

6 In a journal article about criminalization recently published by colleagues in Canada, they said that the actions of the judiciary, in effect: make the court system one of the actors in a larger field composed of community groups, AIDS service organizations, public health, medicine, research, and government, all working toward reducing rates of HIV transmission. This statement made me take particular notice. 6

7 We are all here at this conference because we collaborate in the support and implementation of a broad array of interventions that are feasible, ethical, and if not always evidence-based, at least theoretically-informed. This collage represents just a small selection of those types of activity. 7

8 I am not sure that use of the criminal courts to address the HIV epidemic sits comfortably alongside these interventions. I would argue instead that the increase in criminal prosecutions is an extensive, global HIV intervention that is unproven, untested, costly, ill-informed and ultimately one which may pose a direct threat to the aims of health promotion. Little is known about how prosecutions impact on sexual behaviour, but the Relative Safety II study allowed us to start exploring this. It is worth saying that the findings I am reporting on are essentially exploratory. We didn t give men a list of specific facts about criminalization and then ask them to complete a multiple choice test against it. Instead, in the interview, we waited to see what they brought up, and what they didn t. At the end of the interview we asked them what they did know about prosecutions, and if that influenced them in any way. So these findings are much more able to indicate men s gaps in knowledge, rather than being able to cover all the aspects of what they do know. 8

9 Firstly, among those who gave responses about criminalization, roughly a third had awareness of what we might call the group of core elements of the existing prosecutions. They knew that cases were about recklessness, that GBH laws were used, that it was serious, and that prosecutions happen where the partner who becomes infected with HIV didn t have prior knowledge of the defendant s status. But even among this group of men who we describe as having pretty good levels of knowledge, their understanding was imperfect. Despite knowing the stuff listed here, some of these same men had a few other understandings that were way off. For instance, one guy believed that medical records can never be used as evidence in court, and another felt that participation in group sex would mean that transmission would be too difficult to prove, so there could be no charge. 9

10 And among those with what we might call medium or low understanding of prosecutions, the problems were more diffuse scattered across a whole range of issues: don t see it as serious (suspended sentences, fines) thought that it was the same as rape, murder, attempted murder figured that prosecutions were only taken against those with an intention to transmit HIV Very few men in the entire sample had any awareness about the decline of cases due to the weakness of virological evidence. What is of particular interest to us when we think about the extent of misunderstanding amongst the men in this sample, is that these are men who, on the whole, are relatively attached to the scene, who were in close enough contact with gay and HIV support agencies to be recruited by agencies to take part in the Relative Safety II study. These are men who generally said they read the gay and positive press, and who are all receiving clinical care for their diagnosed HIV. A few even talked about attending sessions in their local groups on the topic of criminal prosecutions. These are men who are IN TOUCH with SERVICES. All of this tells us that there is much more work to be undertaken to better inform men with diagnosed HIV about how the law is applied to the transmission of HIV REGARDLESS of our own agencies views on the topic. Concern about the possibility of being prosecuted for transmission of HIV to a sexual partner was evident among a large proportion of men in the study, and was sufficient to encourage some (but definitely not all) to change their behaviour. 10

11 The concern men had at the prospect of police intrusion into their sex lives had caused many respondents to adapt (or at least plan to adapt) their sexual behaviour. Although some of these changes were likely to bring about a reduction in the likelihood of HIV transmission, this was not universally the case. *Some did report that they had increased how explicit they were about disclosing their HIV status to sexual partners, as a direct result of prosecutions. One respondent went as far as to comment that he now relied on the written back-up afforded by logged online chats, so that if he were ever questioned about disclosure, he would be able to provide hard evidence to support his claims. The reason that I like to meet people on line is you hear all these court cases with people not telling people they are HIV positive, because some people on MSM have got written confirmation [ ] I keep all my chat logs yeah. [Mid 20s, diagnosed 4 years] *There were also those who said that the prosecutions had caused them to think more about the prospect that the sex they had could potentially infect a partner, so they had started to not only disclose their status more, but also to ensure condom use, *or to avoid sex with men who might be uninfected. One respondent said that he would now consider recommending PEP to a partner following a potential exposure incident, as he felt this might ameliorate the chance of infection, and therefore, the chance of being charged. 11

12 However, behaviour change attributed to criminal prosecutions was not always directed toward reductions in the likelihood of HIV transmission. *Instead, more than one third of those reporting behaviour change as a result of criminal prosecutions said that they had taken steps to maximize their privacy, and had drawn back in terms being open about their HIV status. Such men felt that being publicly identifiable as a man with diagnosed HIV placed them at too much risk of prosecution, causing some to modify their online profiles, on gaydar and similar sites. And also on gaydar I will tell you that I have safe sex as always. Though that isn t necessarily the case. But that is due to laws currently in place by this wonderful country that we live in that will gain access to all your personal information. And if somebody came up and said, Well he transmitted HIV to me, they will look at gaydar and see what status you put and what type of sex you put and so on and so forth. And that can be used against you in a court of law. So for that reason I protect myself to the hilt. But I will discuss safe sex with people as and when I see them and as and when I feel that that is necessary. [Mid 30s, diagnosed < 1 year] Others described concern that they had once been quite open about their HIV status among acquaintances out on the scene. But now, their awareness about criminal prosecutions had increased their concern about the lack of control they exercised over that personal information, now that it was out there. Such men said they were now rarely open about their HIV status among friends and acquaintances. When one respondent was asked why he did not want others to find out that he was diagnosed with HIV, he said: I think the biggest single concern is the criminalisation. [Late 50s, diagnosed < 1 year] *It was also not uncommon for men to consider public sex venues as places where risky sexual behaviour (such as unprotected anal intercourse) would result in fewer personal risks for them, mainly because the very transitory nature of such contacts meant it would be pretty impossible for any infection to ever be traced back to them. R: The two incidents where this [having unprotected anal intercourse] happened have been in the sauna and on holiday. I m more conscious around the [local] scene because I don t want any backlash if you know what I mean. 12

13 Not all men taking part in this study were concerned about the possibility of criminal prosecution for HIV transmission and, nearly half of those who explored the potential impact in their interview responses said they didn t change how they went about having sex because of the cases. Men s reasons for this were diverse but often this was because they felt that they were already insured against the risk of prosecution. Some felt they didn t do anything that was likely to pass on HIV. I have safe sex unless I know somebody is HIV positive. You know, I try and lessen the risk. But I don t know. Maybe, I think I ve altered, altered the way I behave myself. But I don t think it s anything to do with prosecutions. [Late 50s, diagnosed 10 years] Others always made sure to disclose, and felt that sharing such information with partners would protect them from being held responsible for any resulting infection. I d still tell somebody, whether or not I needed to legally. [Mid 20s, diagnosed < 1 year] *However, as we found in Relative Safety II, and as numerous studies before this have found what men might consider to be disclosure is not always clear and explicit. Due largely to the fear of rejection or other negative reaction, many respondents made what they felt to be a disclosure of their status, but which had the potential to be interpreted differently by sexual partners. The following respondent felt he was making his sexual partner aware of his status by drawing attention to the importance of sexual safety, despite the fact that unprotected anal intercourse subsequently occurred. "I remember saying 'You know we should use a condom' especially after, you know. 'We should use a condom'. But I never said to him that I was HIV". [Late 30s, diagnosed 10 years] 13

14 *The same ambiguity was true of men who felt that their serosorting meant that prosecutions didn t represent a risk to them. Gaining a categorical and unequivocal understanding of a new sexual partners HIV status was rare. What was more common was for men to rely on subtle cues or inferences from partners as to whether they were also diagnosed with HIV. Many others made assumptions of partner sero-status based on the type of sex that was requested or observed. When one respondent was asked how he knew that lots of the guys he had sex with were positive, he said: Because they wouldn't fuck without a condom otherwise would they? If I say, Can you use a condom?, and I have told them, you know, that I am positive... I have had guys saying, Do you bareback?, and I think well bareback, you know, he must be positive. If he wants to bareback me then fine. Its no skin off my nose. So what we have here, is a group of men who feel that they don t need to change their current sexual and harm reduction behavior in light of criminal prosecutions, despite the fact that these very actions may be unwittingly resulting in HIV exposure and infection. In turn, such men don t recognize their own vulnerability to having a criminal complaint leveled against them. *Finally, were a few men who lacked either the motivation or the capacity to respond to the possibility that they could be held legally liable for their actions. Some lacked the essential skills required to take control over sexual settings, and so most of their sexual encounters were dictated by the desires of their partners. One felt that consistent disclosure was unsustainable, so he decided that such cases were unlikely to have any impact on him. R: And I don t think I really thought a great deal about it in terms of my own behaviour since then. Largely because nobody I ve met it s not an issue for them. You know they re not saying to me Fill in a form, I need to know all the statistics, your viral load, do a risk assessment, get you to sign things. Nobody s doing that[ ] We re just having sex. [Mid 30s, diagnosed 3 years] Where consistent disclosure was seen as unrealistic, there was a pretty strong feeling that prosecutions were unlikely to occur. They felt such actions were not expected by sexual partners and therefore, there was no reason why police action would ever be pursued. 14

15 This paper is intended to give you a snapshot of the different ways that men with diagnosed HIV respond to criminal prosecutions in terms of their own sex lives. These findings remind us of the key challenges in seeking to influence human behaviour. Where some men understand and have concern about the impact of criminal prosecution in their own lives, they aim to avoid sexual risk. Others who feel that their actions are already safe, believe the law has little bearing on their own behavior, and some of those men will be right. However, the mis-judgements and flawed risk assessments made by some men in each of these categories persist, uninfluenced by the existence of criminal prosecution. Alternatively, there are others who lack the capacity or motivation to change, despite the threat of prosecution, whose HIV prevention needs are pervasive and diffuse. Finally, there are those whose response to the risk of prosecution takes a turn away from the traditional aims of HIV prevention. Their moves toward increased anonymity during sex, and decreased disclosure of their HIV status in social and sexual networks, demonstrates the capacity for criminalisation to reinforce the stigma that is so often associated with HIV. 15

16 There is no evidence to suggest that those deploying the criminal law as a response against HIV positive people who have allegedly transmitted the virus to their sexual partners have done so with anything other than the best intentions. The law exists, and if there is sufficient evidence to bring a case then bringing one is to be expected. However, to the extent that using the criminal law is intended as one if not the only means of achieving behavioural change, these respondents demonstrate that such change is not always of the kind that law enforcers might hope for. The law clearly affirms the need to disclose and to gain consent. The problem is that in the absence of a clear understanding of what this means, or where other, competing priorities such as being free of the stigma associated with HIV take precedence, some diagnosed people will place themselves at risk of prosecution. Others will be so overly-cautious in their interactions with others as to limit unnecessarily the expression of their sexuality. The law in this area certainly has consequences, but in this context, and in a number of potentially damaging ways these are of an unintended kind. I gave this talk about the findings from Relative Safety, but I am also extremely mindful of the findings from Sexually Charged, a report that we released only a few weeks ago, arising from data offered by men completing GMSS 2006 men with and without HIV diagnoses. The findings in that report indicate that criminal prosecutions prop up the compulsion towards BLAME and OTHERING in this epidemic. In that study, the majority of respondents supported prosecutions, and that support was largely premised on their disproportionate fear of HIV infection as a calamity, and their belief that all diagnosed men should (and would) disclose their infection prior to any sex. Men therefore use prosecutions to prop up their view of the world as they would like it to be, not as it actually is. Again, just as the evidence from the Relative Safety II sample demonstrates, prosecutions often operate to prop up the fears, divisions and misunderstandings that lie at the base of HIV stigma. 16

17 If you came to this talk today, thinking that criminal prosecutions are not a great idea, then you will leave with some idea of the complex evidence gathering that will be necessary to further support your views. What we have here represents a start, and offers strong indications for further exploration. If instead, you support criminal prosecutions, (and, like many of the men reported in the Sexually Charged report) you base that support on the fact that people who pass on HIV recklessly should face punishment for their actions, I figure that there is not a lot I have said here that will challenge your views. However, if your support of criminal prosecutions is based on the belief that the threat of arrest will deter risky behavior and will help to reduce HIV transmission, I would expect that much of what I have said poses a direct challenge to your view. And mounting that challenge is my aim. **QUOTE The criminalization of HIV has been a strange, pointless exercise in the long fight to control HIV. It has done no good; if it has done even a little harm the price has been too high. Until the day comes when the stigma of HIV, unconventional sexuality and drug use are gone, the best course for criminal law is to follow the old Hippocratic maxim, first, do no harm. (10) 17

18 And my question to you is, in light of the evidence of the behavioural impact of prosecutions that I have presented, what are each of us doing to counteract these consequences in our own work? If we have any responsibility whatsoever for meeting the needs of men with diagnosed HIV, how are we helping them to best understand the threat that the law poses to them? How are these needs similar or different to the needs of undiagnosed men in respect of the law? And finally, do you think that your list of the top three things that positive men need to know about the law has changed at all in the last half hour? 18

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