In 2015, there were 435,000 diagnoses of Sexually Transmitted Infections (STIs) in England . According to epidemiological modelling, between 100,000 and 110,000 people live with HIV in the UK, 13% of them are undiagnosed and prevalence is around 1% among the adult population . Since 2005, the number of new diagnoses slowly decreased to a low of 5,164 people in 2016 [3-5].
Since 2001, there were thirty (30) convictions for STIs and HIV transmission in the UK; twenty-six (26) convictions under the Offences Against the Person Act (OAPA, 1861) in England and Wales; four (4) convictions under the Scottish Criminal Law in Scotland.The prosecution and the conviction of STI/HIV transmission adhere to specific rules and determined conditions (Law Commission, 2014; COPFS; 2014).
Pro-criminalisation arguments consider legal enforcement as a structural intervention likely to reduce the number of transmissions and as an individual punishment for harming another [7-10]. By contrast, the anti-criminalisation rationale has been based on the protection of human rights [11,12]. More recently, studies highlighted the deleterious impact of criminalisation laws (i.e., transmission of and exposure to HIV, non-disclosure of one’s HIV status laws) on public health goals (lack of preventive effect or deleterious effect, [13-16]) the perception of the health and well-being of people living with HIV and relationship with service providers [17-22]. Globally, it is argued that the people most vulnerable to acquiring HIV are already subject to legal and social oppression and criminalisation of HIV increases marginalization . These include undocumented people, sex workers, substance misusers, ethnic minorities and sexual and gender minorities [24-32].
Since the first conviction in the UK, a number of studies investigated peoples’ opinions about the criminalisation of STIs/HIV and related themes (e.g., knowledge of criminal liability; disclosure of one’s status to sexual partner(s), concerns among people living with HIV, the impact of changes in community settings and/or professional practices). This is the first systematic review of empirical studies exploring views on the criminalisation of STIs/HIV in the UK. It aims to identify current trends in research and synthesise findings regarding the British population and context.
Given the variability of studies to be included regarding methodology, design and sample size and to ensure the robustness of the systematic review, two sets of guidelines were used: the PRISMA guidelines for systematic review and meta-analysis and the meta-synthesis method for qualitative and health studies [33-37].
Sources and search strategy
Publications were retrieved from the following electronic databases: PubMed, Scopus, Science Direct and Ethos. Keywords used were a combination of “HIV”, “STI” “STIs/HIV”, “law”, “crim*”, “expos*”, “transmi*” and “UK”, “Britain”, “Scotland”, “England”, “Northern Ireland”. Keywords were searched in the full-text to be as inclusive as possible. Other sources (e.g. Google Scholar, community survey reports) provided possible sources of grey literature, applying the same criteria. The reference lists of included articles were checked for additional papers or sources otherwise not identified.
Publications were included if their focus or their outcomes related to the criminalisation of HIV transmission. Studies were excluded when another topic was investigated (i.e., disclosure), unless the outcomes or findings provided empirical data regarding the criminalisation of HIV transmission. Studies providing secondary outcomes, such as criminalisation as a main theme in a qualitative study, were deemed relevant, while only mentioning the criminalisation of HIV as a factor was deemed insufficient. All articles were empirical studies (qualitative, quantitative and mixed methods). Systematic reviews, position papers, editorials, legal analyses, commentaries or forensic sciences studies (e.g., phylogenetic studies of the virus as evidence) were excluded. Studies must have been carried out in the UK and published before December 2017.
For each study, data was extracted and compiled in a database that included the following clustered information: description of the study (author, year of publication, reference, main topic as transmission, exposure or other, criminalisation as a primary or secondary theme); method and design (theoretical background framing the study, recruitment, sampling, primary and secondary objectives, methods, data analysis, and standardized scales used); sample (number of participants, sub sample, age, gender, ethnicity, professional background, location and any other information available); limitations and biases (sampling bias, sample size, inter-reliability rating, coding and other); results (descriptive statistics, parametric and significant results and/or key findings).
The studies retrieved presented several sampling biases (i.e., self-selection and recruitment biases), with the diverse methods and designs (analyses and follow-up) used leading to a low level of comparability between studies. Likewise, studies exploring the same topics used different methods and tools making comparisons between studies problematic. Qualitative studies (n = 9) were subject to the quality of the researcher and the skills of the interviewer; there are no means to assess or compare researchers’ potential impact on the findings. The small number of empirical studies and the high number of opinion pieces, theoretical and review papers could be explained by the fact that criminalisation in the UK is an epiphenomenon. It can be hypothesised that the sensitivity of the topic might lead to research difficulties in obtaining ethical approval, to recruit participants, and to lead the research, due to the use of information that may fall out of the research confidentiality agreement [38-40].
An initial search, after eliminating duplicates (n = 27), retrieved 239 articles. Abstracts were reviewed and 127 articles were excluded for not meeting the inclusion criteria. The excluded publications were legal articles and position papers, or studies held in another country. In total, 112 full-text publications were read and 30 additional studies were identified from reference lists. Among these 142 publications, 116 were excluded for being from North America and only mentioning UK and a further twelve publications were excluded as they did not provide a comprehensive investigation, detailed results or outcomes. This resulted in the inclusion of fourteen publications, twelve research papers or reports and two doctoral dissertations (Figure 1).
Characteristics of the studies included
The general characteristics of studies are summarised in table 1. Given the small number of studies and the absence of standardized and comparable data, a meta-analysis was not possible. A critical narrative review is therefore provided.
Number of studies retrieved
The fourteen studies retrieved were published between 2005 and 2017. Two of them were based on the same data and, therefore, are presented jointly. One doctoral dissertation, presented two studies .
Aim of the studies was heterogeneous. Mixed-methods studies among people living with HIV and MSM identified opinions on criminalisation of HIV, while qualitative studies investigated the rationales underlying participants’ explicit views or the impact of criminalisation on people’s lived experiences. Studies among professionals investigated their views and the effect of criminalisation on their professional practice.
Not all studies provided a theoretical framework. Backgrounds mentioned were critical theory (2), sociology of deviance (1) and needs assessments practices (2).
Sample, method and design
Nine out of fourteen studies were qualitative studies, five used in-depth interviews and four used focus groups. Thematic Analysis (TA) was used in nine studies; one study used Interpretative Phenomenological Analysis (IPA). Five studies were mixed method surveys that included Multiple Choice Questions (MCQ), open-ended questions and self-reported items. Five publications were published by the Sigma Research project. Surveys were administered using both paper and online questionnaires.
After verifying sources and duplicates, this systematic review compiled data from 10,597 participants. The socio-demographic information of participants was not systematically reported; therefore, it is described based on the available data (Table 2). Participants were professionals in four studies, MSM not living with HIV in two studies and people living with HIV in nine studies of which four studies focused on MSM. Participants were mostly recruited through community settings. Professionals were used to recruiting participants using local and/or professional networks. Online surveys were advertised through community, professional and personal (referral) channels.
The majority of participants were MSM (n = 7567, 71%). People living with HIV represented 26% (n = 2731) of the sample. Professionals working with people living with HIV (n = 221, 2%) were from health or community organizations. The category ‘other’ (n = 68) described people living with HIV where not all socio-demographic information was reported . In terms of gender, 91% of participants were male. Regarding sexual orientation, 71% identified as a sexual minority (MSM, lesbian, gay or bisexual). Compared to the British population living with HIV, MSM were over-represented; women and heterosexual people were under-represented. Compared to the demographics for the conviction rates in UK the only similarities were demographics of gender and the high proportion of male participants.
Despite the different aims and sample characteristics, four key themes were identified across studies: ‘knowledge of the law’, ‘explicit opinions on criminalisation’, ‘explicit opinions on disclosure’ and ‘morality’ (e.g., moral agency, moral dilemma). The synthesis of this review is presented for each population identified in the reviewed studies.
People Living with HIV
The majority of people living with HIV were worried about transmitting the virus [41,45,47]. Reasons for their worries related to a genuine desire to prevent someone else experiencing what they experienced [50,52]. The criminalisation of HIV transmission was experienced as a stigmatising social feature since an HIV-positive status could be associated with a presumption of potential harm or noxiousness [41,45,50]. While the majority of people living the HIV understood or even agreed with the criminalisation of deliberate (intentional) transmission, the criminalisation of reckless transmission and exposure was feared due to the potential negative impact on the whole community .
The daily management of HIV as a long-term condition weighed towards the daily management of risks. People living with HIV used different strategies to either handle situations where there was a risk of transmission or prevent possible prosecutions . For instance, the disclosure of one’s serostatus online was frequently used as previous evidence of disclosure. However, such a strategy was only relevant for people who had a clear and comprehensive understanding of the prosecution criteria. Importantly, most of the people living with HIV in this review did not have a full understanding of the legal aspects of transmission [46,52]. While concepts such as intention, harm and recklessness were clearly defined from a legal point of view, people living with HIV largely defined this concept from an individual or psychological point of view.
Stances on disclosure and individual responsibility showed the dual burden criminalisation leads to. Disclosure was a feared moment (e.g., rejection) and fear of criminalisation was seen as a barrier to the disclosure of HIV status to potential sexual partners [47,51]. By contrast, disclosure was sometimes viewed as the responsibility of the person living with HIV (the onus of not transmitting HIV to a partner) rather than for the partner to take action to protect themselves [43,44]. The shared responsibility was mentioned by participants across studies [42,43,46]. Such a stance illustrates a social shift in how sexual and intimate relationships were constructed, in the sense that the assumption that the other person is HIV-negative is too uncertain and might not be valid anymore. Finally, four studies reported views that criminalisation increased stigma and harmed social identity [41,42,45,46].
Men who have Sex with Men (MSM)
The MSM population sampled varied in terms of knowledge, views and moral stances [43,46]. Older MSM who were young at the onset of the HIV pandemic in the gay community tended to hold less pro-criminalisation views . Older MSM largely focussed on HIV as a long-term but manageable condition. Older MSM tended to have greater concerns about disclosure and related the fear of disclosure to the concealment of one’s status and/or sexual orientation (e.g., non-gay-identified MSM). In contrast, younger MSM, who did not experience the early years of the pandemic, held greater pro-criminalisation views and were more likely to hold stigmatising views towards people living with HIV. HIV stigma within the gay community manifested as a secondary feature. Moreover, this sub-group tended to expect disclosure from their potential partners . Both older and younger MSM demonstrated a limited understanding of the law (e.g., difference between reckless and deliberate transmission) and a lack of understanding of prevention strategies (for instance about PrEP).
Professionals working with people living with HIV
The four studies among community and health staff highlighted the lack of legal guidance and discussion about the criminalisation of HIV transmission [49,53,54]. Professionals experienced difficulty as a result of regulations relating to internal policies, an emphasis on informing the patients and insisting patients disclosed to potential partners. Experienced professionals worried less about their professional liability and litigation than less experienced professionals did. Professionals’ knowledge of the law was mostly understood in the context of their legal duties and how this reshaped their role and relationships with patients. Encouraging or discouraging a patient to pursue legal action was a sensitive topic and tended to be perceived as a personal or moral stance rather than a professional one.
Number of studies
As detailed above, the population sampled among the studies retrieved was neither representative of the British population, nor fully representative of people living long-term with HIV, people recently diagnosed with HIV or those who have undergone a legal proceeding related to their HIV status. Sampling biases and the scarcity of research in this area may also be related to the high sensitivity of the topic and the difficulty of investigating it, whether personal or socio-political .
Population and representativity
As shown in table 2, the discrepancies between the available data regarding the demographics of the people living with HIV, the population of the systematic review and the population of those involved in the criminal cases stress the gaps in the current understanding of the social treatment of HIV in relation to gender, ethnicity and sexual orientation. Compared to the population of people living with HIV, the overrepresentation of females in the conviction cases may be explained in the light of gender biases in the judicial system and the identified phenomenon of underreported male victims in the case of other offences against the person [56-58]. It also questions a possible structural heteronormativity whereby heterosexual females may undergo a greater prejudice, or be the innocent victims of the pandemic [59,60]. The underrepresentation of females in the population of the systematic review highlights the need for further research.
Secondly, the overrepresentation of (male) defendants coming from ethnic minorities suggests the possible intersection of cumulative attributes. At the intersection of crime, ethnicity or citizenship background and HIV, legal decisions and media portrayals seemed to have led to the construction of a stereotype: The Black man living with HIV infecting the British woman . Though, this population was under-represented in the population of the systematic review.
Thirdly, the overrepresentation of MSM in the population studied and the underrepresentation of the MSM population in conviction cases compared to the MSM living with HIV must be noted. Two aspects should be considered. On the one hand, specific research and information related to the legal proceedings engaged by MSM living with HIV as it remains unknown if same-sex transmission of HIV is less filed against, less prosecuted, or less convicted. On the other hand, given the early mobilisation of the community in the fight against AIDS, the perception of risk and HIV may differ from other communities or even divide the community explaining potential different attitudes [62-66].
Population biases and the sociodemographic mismatch highlighted the need for different sampling and recruitment. Furthermore, the views on criminalisation sometimes appeared framed on the basis of a lack of legal and/or health-related knowledge. This questions the stability and course of participants’ views once information is provided; other methodological design might be helpful to elicit participants’ views and how information can contribute to changing or informed views.
Studies reporting stigma as a major concern were mostly based on people living with HIV. Furthermore, while the majority of the studies emphasize that criminalisation feeds HIV-stigma, whether invoked (argument) or reported (lived experiences), no studies provided comparable empirical measures. While this construct appears to be a valid theoretical and logical statement, it may require further investigation and a context-sensitive approach. Future studies may shed greater light on the relationship between views of the criminalization of HIV and HIV-related stigma. Despite the structural and legal differences, examining other national contexts with a high number of convictions (e.g. Sweden, Canada, and USA) is likely to inform on the impact of criminal policies and to provide further insights into connected areas such as the criminalisation of exposure to and non-disclosure of HIV .
Globally, the population sampled was sympathetic to the criminalisation of intentional transmission but remain undecided on other circumstances. The popular and legal concepts of intention differ. The popular understanding of intentional transmission relies on the deliberate intention to transmit the virus, not on the absence of protective measures and/or disclosure. The ambiguity of the concept of intention in laymen terms and in specific fields should, therefore, be elicited. Contingent themes, such as disclosure and responsibility, summarise the emotional, relational and professional challenges, faced by the populations sampled. Main information needs identified were legal guidance and support for people living with HIV and professionals, and legal and sexual health-related information for MSM.