Sobesednik presents an overview on the possible introduction of liability for the active promotion of HIV denial.
According to official statistics for 2017, there are more than 1,100,000 persons with HIV, at least 240,000 persons died. These figures include only those who had openly passed the test. At the same time, the Federal Law “On Preventing the Spread of HIV in the Russian Federation” allows anonymous screening. Thus, the number of persons with HIV infection can be even greater. The highest prevalence is observed in Kemerovo region (incidence rate – 144.9 per 100,000 of population), Irkutsk (110.7 per 100,000), as well as the Samara region. Every hundredth inhabitant of the latter region is infected.
The so-called “HIV dissidents” (also HIV denialists), people who deny the very existence of this disease and persuade others, including the carriers of the disease, to share their opinion, contributed to some extent to the situation with HIV/AIDS in Russia. Nowadays this problem is particularly acute in the Russian Federation: sad stories about the victims of such misconceptions regularly emerge in the media from time to time.
We have listed below the following key positions of HIV-dissidents and the arguments used to back them up:
1) HIV dissidents claim that “the existence of the virus is not unquestionably proven”.
According to an activist E. Papadopulos-Eleopulos, the disease was not captured according to the international standards of the 1980s (when HIV discovery was announced). Meanwhile, studies have been and are still being carried out by various groups of scientists independently and in accordance with modern international standards, so that to date the existence of the disease is considered proven.
Isolation in the cell culture is the standard for isolation of any viruses. The pioneers of HIV research have done this long ago: the virus was isolated from infected people in the lymphocyte culture.
2) “HIV has spread beyond risk groups, which is not characteristic for infections”.
Indeed, HIV is nowadays expanding to other groups than the high risk ones (certain segments of the population among whom the disease is more prevalent). HIV is transmitted sexually, as well as through blood or its products; thus, the disease is common among people who practice frequent unsafe homosexual and/or unprotected intercourses, as well as among injecting drug users. Nevertheless, it is necessary to understand that the concept of risk groups is relatively conditional and is not a criterion for classifying the disease as infectious.
3) “HIV drugs are purposely expensive, their use causes side effects and also prompts the development of serious diseases”.
The cost of drugs is high, but there are so-called “generics” (substances with expired patent protection) that are much cheaper and are procured by the developing countries to minimize costs. As for side effects, no one conceals that they do exist, but if they are too severe, the patients can have their treatment regimen changed for more appropriate ones to mitigate adverse consequences. Quite to the contrary, serious diseases will manifest themselves if therapy is discontinued, since the suppressed virus activates if it is not suppressed by regular intake of medications.
The scale of HIV-dissidence in Russia is actually more modest than, for example, in South Africa in the early 2000s, where even the President of the Republic Thabo Mbeki denied the disease under the influence of certain groups, as a result of which more than 300,000 people died in the republic, according to the Harvard University assessments. Nevertheless, HIV dissidents in Russia are still popular, and some of them are actively disseminating their views in social networks, the media and books, the work by A. Dmitrievsky and I. Sazonova “AIDS: sentence is canceled” being the most famous of them, published in five thousand copies.
According to Natalya Ladnaya, a senior researcher at the Federal Scientific and Methodological Center for the AIDS Prevention and Control of the Central Research Institute of Epidemiology of Rospotrebnadzor (the Russian Customer Protection Service) Natalia Ladnaya, there is a special problem with HIV dissidence in the Urals Federal District, where an active HIV denialist core exists: “Every year we register deaths associated with AIDS dissidence, and they are numerous! Lethal cases happen both in adults and in children”.
The main consequences of widespread dissemination of HIV denialism ideas are the rejection of antiretroviral therapy among infected people, which causes their death, as well as the increasing number of infected people, because a person with HIV can transmit virus to others, for example, through sexual contacts, without disclosing their disease to partners, as these people themselves do not believe that they have a disease. Also, an HIV-positive mother can start breastfeeding her newborn baby, thereby transmitting the disease to them.
HIV dissidents often convince parents not to treat children infected with the virus. In many cases, the negligence of fathers and mothers is punishable by law (the law enforcement agencies classify the majority of such deaths as constituting an offense under Art. 109 of the Criminal Code of Russian Federation – “Causing death through negligence”), but often the punishment is either formal, incommensurable with the consequences, or is avoided at all. For example, in summer of 2017 the Tyumen court closed the criminal case against a mother who refused to treat her daughter, which caused the child’s death. This decision was taken in connection with reconciliation with the victim, who was the father of the girl as her legal representative.
It should be noted that the law already has a mechanism for protecting children with the disease: for example, Article 73 of the Family Code of the Russian Federation provides for a temporary restriction of parental rights in the event that “letting a child stay with parents (a parent) is dangerous for the child because of the parent(s)’ behavior”. This issue is adjudicated in court, and paragraph 3 of the above-mentioned provision contains a list of individuals and organizations eligible to act as claimants.
According to the calculations in Vkontakte social media group “HIV/AIDS dissidents and their children”, 75 HIV-positive people actively participating in the activities of the Internet communities which promote denial of the diagnosis and, as a consequence, rejection of therapy, have died since 2015. This number includes the children of the participants in these communities whose fate was decided by their parents’ deathly choice.
Nevertheless, there is no liability for active promoters of HIV denialism ideas. In “VKontakte” there are several groups with thousands of subscribers, claiming the infection to be “the biggest hoax and scam of the 20th century”; such communities do not get blocked, they operate quite actively, involve new people and successfully implant their ideas through personal messaging with patients.
Based on the above, there is a causal relationship between the promotion of HIV dissidents’ ideas, the refusal of patients to take therapy and their subsequent death. In the case of the proposed legal provision, law enforcement agencies will have to prove that the activity of a HIV dissident has resulted in the death of the patient, that is, constituent elements of crime are substantial in their nature. This condition should minimize the risks of unjustified prosecution.
Of course, the law should never envisage punishment simply for expressing one’s position on the issue of HIV/AIDS. Everyone has the right to their own opinion, even if it is scientifically erroneous. There should be liability for active pushing this belief onto people with the disease and for the death of people as a consequence of imposing such ideas; this reservation in law is of a fundamental nature.
As for the type of fault, the activity of HIV denial promoters can be considered as a crime committed by negligence, but legislators will have to decide whether it should be classified as a negligence or a reckless misconduct. It seems that these offenses are committed by negligence, since HIV dissidents sincerely consider themselves to be right, but if they had studied all the scientific materials, they would have understood their mistake. This example is similar to the definition of negligence contained in part 3 of Article 26 of the Criminal Code of the Russian Federation.
Apart from discussion of possible sanctions against HIV denial promoters, it must be acknowledged that the main cause of the problem is the low level of society’s awareness about the nature of the disease, the transmission routes and treatment methods. Yes, there are many sources where you can find the information you need, but HIV/AIDS awareness should be raised in form of social advertising, which is an integral part of disease prevention.
It is impossible to ignore the discussion of the virus for alleged ethical reasons, because this creates an information gap which the HIV dissidents will gladly fill. They, not being virology experts in the vast majority of cases, can skillfully deliver their views, to people who are infected with HIV and being in acute phase of denying their diagnosis. Whatever sanctions are imposed for the propaganda of HIV dissidence; all this will be futile without proper awareness raising.
In addition, the provision is likely to be “dead” without proper case law, which is a frequent situation of domestic criminal law.
Yulia Nasibulina, a lawyer providing legal advice to HIV-positive people, does not support the idea of banning HIV denial propaganda and does not think that establishing legal responsibility for an opinion is possible: according to the expert, “treatment is a right, so people have lawful discretion to decide whether to use it or not. It will be more feasible to implement liability for the lack of prevention, for refusing to treat children, to create a system of compulsory control of children’s treatment”.
“The activities of HIV dissidents should be punishable within the framework of existing mechanisms – for example, it might be possible to block groups [in social networks] for calls to commit crimes upon a prosecutor’s motion: in particular, such groups often persuade infected mothers to breastfeed newborns, placing them at risk of infection (offense under part 1 of Art. 122 of the Criminal Code), Nasibulina says. – It is possible to create the practice of holding mothers responsible for refusing from PMTCT during pregnancy and delivery, to extensively apply part 1 of Article 122 to adults (spouses, sexual partners). Each HIV dissident must understand that they personally can have whatever opinion about the disease and decide whether to treat it or not, as long as it is a personal choice, but their close circle – children, partners – also have the right to health, to treatment and the right to share a scientific view of HIV”.
In September 2017 it was reported that introduction of liability for HIV denialism is expected by the end of the year. However, so far there has been no progress on this issue. I hope that lawmakers will actively begin to address the problem as early as 2018.