Author Archive for scott-burris
Against Criminalization of Sexual Behavior
posted by Scott Burris
The first salvo against criminalization has been fired at the XVII International AIDS Conference in Mexico City. In this week’s issue of JAMA, Edwin Cameron and I have called for the international community to take a clear stand against criminalization. Cameron, an openly gay and openly HIV+ South African judge, has been called by no less than Nelson Mandela “one of South Africa’s new heroies.” We argue that criminal law cannot draw reasonable, enforceable lines between criminal and non-criminal behavior, nor protect individuals or society from HIV transmission. In the protection of women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so.
The paper is available on the JAMA website, but not for free. A longer version, written with human rights lawyer Michaela Clayton, is availalable on SSRN.
August 3, 2008 at 9:31 pm
Posted in: Civil Rights, Criminal Law, Health Law
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Criminalizing Risky Sexual Behavior: Some More Evidence
posted by Scott Burris
The cornerstone of the argument against treating unprotected sex as a crime is that the frame is simply inapposite. Yes, it’s logical; one can easily fit sexual behavior with an HIV risk into the same syllogisms as brawling with a knife, but as I’m sure old OWH would say at just this point, the sex life of law has not been logic but experience. At the same time, the argument that criminal law just doesn’t fit is hard to frame, or prove, empirically. In this post, I thought I would briefly summarize the empirical evidence on two narrower points: that criminalization of risky sexual behavior does not protect public health, and may hurt it.
July 30, 2008 at 5:20 pm
Posted in: Criminal Law, Health Law
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Criminalization Evidence
posted by Scott Burris
Catherine Dodds, who has been doing research on the psychosocial impact of HIV prosecutions in the UK on people with and at risk of infection, sent these comments:
We are finding that some men with a positive diagnosis are less likely to disclose their HIV status (socially or sexually) for fear that they will be made vulnerable to a real or false accusation of transmission (this is from ongoing research with homosexually active men who have unprotected intercourse).
Men who are negative or untested for HIV are likely to prop up their expectations of HIV status disclosure from sexual partners with criminalisation discourses (this is from the Gay Men’s Sex Survey data from 2006 – being written up now as a report, and also published recently — Dodds et al. Homosexually active men’s views on criminal prosecutions for HIV transmission are related to HIV prevention need. AIDS Care: Psychological and Socio-medical Aspects of AIDS/HIV, Volume 20, Issue 5, 2008, Pages 509- 514 .
These two outcomes are at odds with each other and with public health goals.
July 24, 2008 at 9:08 am
Posted in: Criminal Law, Health Law
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More Comments on HIV Criminalization
posted by Scott Burris
The video posted by Kaimi is pretty funny, but it makes the point negatively as well as positively. The negotiation is extensive, involving everything from sexual positions to meeting the parents, but there is still no mention of STDs or protection.
Matthew Weait, who has written brilliantly on the subject, made the most important point to me off line: opposition to criminalization must fundamentally reject criminal law as the appropriate lens for judging sexual behavior. He criticizes a couple of aspects of my discussion of the Swiss case:
•Continental Europe of course draws heavily (directly and indirectly) from Roman law principles, and so sees nothing strange about imposing general / positive legal obligations on people – in contrast to common law jurisdictions, where the duty relationship is (relatively) narrowly circumscribed.
•You say that “smart” sex is not a fair standard to apply to A or X … I agree, but a difficult one to argue in the courts perhaps. When it comes to the criminal use of negligence in English law (as in gross negligence manslaughter) the newly qualified driver is held to the standard of the competent and experienced one, the rooky surgeon to the surgeon who’s been doing it for twenty years. And I don’t see in principle, even though we are talking in a criminal context here, why the person upon whom the duty is seen to fall (i.e. the person with conscious knowledge that there is a higher risk of being positive, albeit no certain knowledge because no testing has happened) wouldn’t be seen as being in just the same position. It all comes down to developing strong policy argument against legal liability, I think, since the law has a habit of laying these little logical traps – once you start framing the argument within a legal framework the law has a habit of winning …
I agree, and that’s why the quest for the “right” rule suggested by Shane Hartman is legally logical but socially hopeless. When law wins, it means lawyers in the bedroom. Where’s Gunther Teubner when you need him?
July 24, 2008 at 8:54 am
Posted in: Civil Rights, Criminal Law, Health Law, Privacy (Law Enforcement), Privacy (Medical)
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More Law in the Bedroom
posted by Scott Burris
In a recent post, I described a Swiss case of “negligent HIV transmission” in which the victim’s failure to insist upon protected sex was deemed irrelevant to the defendant’s guilt. Justice Edwin Cameron of South Africa wrote me: “I know this is a very ‘African’ point that … I have been harping on, but I would have added a short observation to the first part of your discussion of the Swiss case that, it is signal that unlike in Africa, no one has suggested that the woman in the sexual encounter was less empowered than the man to take a full part in equal sexual decision-making.”
Point taken. In the Swiss case, there seems to be no question that the complainant was perfectly free to insist upon condom use, and was not (as we sometimes see in these cases) convinced to forego protection by a false assurance from the partner that he was negative. There is, indeed, evidence that she normally insisted upon protection and no evidence that it was even considered by either partner in this relationship. Both clearly knew the risks of HIV and both, being conservative, could not rule out that one of them was infected. But the court just decides that doesn’t matter: the defendant was legally responsible since he knew more about his past exposures than she did. Quite a fine legal balance there, which would seem to require the law (and sex partners) to draw some complicated, fact-senstive legal lines in addressing their potential “sexual liability.” Advice: always bring a lawyer to bed.
July 23, 2008 at 5:32 am
Posted in: Criminal Law, Health Law, Privacy (Law Enforcement)
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The Latest on HIV Transmission from the Swiss Federal Court
posted by Scott Burris
This is my translation of the most relevant sections of a recent Swiss case of criminal negligence in the transmission of HIV, which I discuss in another post. The case breaks new ground in holding that an individual without actual knowledge of his HIV status can be convicted of negligently transmitting the virus. See Edwin Bernard’s blog for more coverage of the case.
Caveat emptor: I was quite fluent in German in 1979, before law school.
July 22, 2008 at 3:35 pm
Posted in: Criminal Law, Health Law
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Who is Responsible? The Criminalization of HIV Transmission
posted by Scott Burris
You may have thought that HIV is a disease, but we are seeing a serious resurgence of the idea that HIV transmission is a crime. Sure it is important to promote basic knowledge, safe sex, testing and care, but when people actually infect other people – so goes the argument – it’s time to call in the police. Criminalization has been an off-and=on issue in the US for twenty years, but the rest of the world seems to be seeing a new surge. Close on a dozen countries in West Africa have added new statutes on HIV exposure in the past two years, and there have been high-profile prosecutions in countries as different as Britain and Singapore. (For an excellent analysis of the British cases, see the book by Professor Mathew Weait; for for good coverage and analysis of the cases, see Edwin J. Bernard’s blog).
Over the next few weeks, I’ll be blogging on this issue as part of my participation in the international AIDS conference in Mexico City, August 2-7. I’ll be going over the arguments against criminalization and describing the activities around the issue at the conference. For now, though, I am going to show how criminalization plays out by telling you about a very interesting decision handed down last month by the Swiss Federal Court. It is, as far as I know, the first case in which a person who did not have actual knowledge of his HIV status has been found guilty of a transmission crime. Read on…
July 22, 2008 at 3:07 pm
Posted in: Criminal Law, Health Law, Privacy (Law Enforcement), Privacy (Medical), Tort Law
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Whatever
posted by Scott Burris
I’ve been working on a business for when I get tired of being a law professor. False memories. There’s a huge potential market. Everyone has missing pages in the scrapbook, things we’ve always wanted to do but never managed — that grand April affair in Paris, climbing K-2, or perhaps just nobly and diligently overcoming some childhood adversity. False memories have a bad name in law: we don’t like it when a victim remembers abuse that never happened, or an eye-witness realizes that the short Black defendant is the tall White gunman he saw pull the trigger. But why not harness that power for good? My idea is to help people recover detailed memories of things that, if you want to be technical about it, never actually happened. From the point of view of present emotional value, a false memory is just as good as a real one, so why confine your remembrance of things past to that poor parade of things that actually passed you?
Well I thought this was a pretty good idea, until last week, when a New York Times editorial reminded me that this sort of fantasy is already a mainstream business. Working in public health law, I should have realized a long time ago that most of what passes for the facts beneath our health policy are, in fact, things we know for sure that just ain’t so. (Wait, I just recovered a memory of having this precise insight fifteen years ago, during a magical week in Paris). Anyway, in this editorial, the Times catalogued the myths that shape health care politics in America today. Here’s a bit:
Seven years ago, the World Health Organization made the first major effort to rank the health systems of 191 nations. France and Italy took the top two spots; the United States was a dismal 37th. More recently, the highly regarded Commonwealth Fund has pioneered in comparing the United States with other advanced nations through surveys of patients and doctors and analysis of other data. Its latest report … ranked the United States last or next-to-last compared with five other nations — Australia, Canada, Germany, New Zealand and the United Kingdom — on most measures of performance, including quality of care and access to it.
August 21, 2007 at 8:11 am
Posted in: Empirical Analysis of Law, Health Law
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So, Judge, When Did You Stop Beating Your Clerks?
posted by Scott Burris
This Spring, Saira Rao, a young New York lawyer and former law clerk to Dolores Sloviter, published a novel called “The Chambermaid.” The novel describes how Sheila Raj, a young New York lawyer, gets through her year as law clerk to “Helga Friedman.” The novel has some fans, but most of the reviews I’ve seen were, shall we say, negative. (How often have you seen a book reviewed as “an abomination”?) Having read it myself, I’m leaning towards the abomination side. Rao writes with a trowel, and most of what she slathers on the page has a provenance in the alimentary process. But each to his own taste… What I really object to in the whole affair is the way Rao and some of her blogging readers have negotiated the delicate question of Judge Friedman’s correspondence with Judge Sloviter, and the rationale offered in several quarters for “outing” mean judicial bosses.
The book purports to be fiction, carrying the standard disclaimer that any resemblance to real people is coincidental. In a Wall Street Journal interview and elsewhere, though, Rao has implied that she might not be as imaginative a novelist as, say Clifford Irving: “I clerked in the Third Circuit and the novel is based in the Third Circuit. People can draw their own conclusions.” And a lot of people, including former Sloviter clerk Mike Rappaport, have drawn the conclusion that Rao has blown the lid off a dirty judicial secret. Before he even read the book, Rappaport took its publication as license to unburden himself of the opinion that it was all too, too true — Sloviter was a witch and he ought really have dumped a bucket of water on her twenty years ago. David Lat, on Above the Law, and Ilya Somin of the Volokh Conspiracy also seemed to take it as given that the book smears Judge Sloviter with the blot juste.
A former Sloviter clerk myself, I had an early order in for the novel and took it with me on vacation. There had been fodder for humor (some of it black) in my clerking year, so I was looking forward to a little wicked fun. I was disappointed. Aside from a couple of tics, Helga Friendman is not a portrait, nor even a recognizable caricature, of Dolores Sloviter. Hell, I didn’t even recognize Rao’s Center City Philadelphia.
August 7, 2007 at 8:56 pm
Posted in: Articles and Books
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HIV/AIDS and Human Rights in China – Law Professors to the Rescue?
posted by Scott Burris
I was supposed to be in China this week. A New York-based NGO called Asia Catalyst had organized a meeting on HIV and human rights. It was meant to bring together an emerging network of grassroots Chinese HIV advocates with experienced AIDS lawyers from around the world. Late last week, as Reuters reports, the Chinese government stepped in. The meeting was cancelled, the organizers told that “the combination of AIDS, law and foreigners was too sensitive.”
God knows it is flattering for any law professor to be thought of as a threat to social order, but the truth is, our meeting would have been good, not bad, for China. Virtually every country that has mounted a successful drive against HIV has depended in significant part on NGOs to provide services to gay people, drug users and sex workers -– people who are often inclined to duck and cover when government health officials come around with offers of help. Defending the rights of people with HIV is a crucial step towards creating the sort of social environment in which prevention and care reach those who need it. Independent legal advocacy organizations can productively push debate around politically sensitive policies (like de facto discrimination against homosexuals, or the criminalization of sex work), and challenge stigmatizing attitudes. They can monitor the public and private agencies funded to deliver health care and other services to people with HIV. NGOs also provide independent avenues of cooperation and communication with foreigners. And, just for the record, China is far from a disaster on the AIDS control front. More than most countries, its government has paid attention to the evidence and invested substantially in proven interventions like needle exchange. China’s response is not perfect, but it compares well with that of other countries similar stages of their epidemic development. (China’s HIV program is described in a Lancet article; there’s also a comment arguing that China is devoting too many resources to HIV in comparison with other, more prevalent health threats like smoking.)
Unfortunately, the Chinese government is not well-disposed to independent social action, particularly when it might be amplified through contact with foreigners. Some say it’s the Olympics – only nice news from China in the next 12 months, please. Others point to the report that there were something like 87,000 public protests in China in 2005 – enough to make any leadership cadre appreciate a little civil obedience. There’s the pessimistic view that the current leadership is Putinizing the nation, building up China’s military and getting tough on dissent on the home front. Whatever the causes, Chinese leaders are, as a group, ambivalent about civil society. Both NGOs and an independent legal system have the potential to help the Beijing regime deal with its terrible problems of corruption and social injustice – within the law. Many Chinese leaders recognize this, and there is support within the state for these developments. But in the case of our meeting, someone in the Public Security Bureau looked at the prospect of independent human rights lawyers networking with obstreperous global advocates – and blinked.
August 3, 2007 at 10:30 am
Posted in: Civil Rights, Health Law, Politics
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