The first sentencing of a gay man for "recklessly" transmitting HIV to a sexual partner is expected to happen tomorrow. All seven previous convictions - which in England and Wales go back to 2003 - involved heterosexuals, each of whom received a substantial sentence. If you have transmit HIV during unprotected sex, having failed to tell your sexual partner you are HIV positive, this is now seen by the courts as grievous bodily harm.
Was this how we were meant to respond to HIV? Was this the shared responsibility for sexual health some of us remember hearing about in the 1980s and 90s? As recently as 1998 the government ruled out the prospect of punishing people for "recklessly" transmitting HIV. Now the courts have turned to 19th-century law to put people behind bars, and the government has let it happen without demur.
What is surprising in all this is the lack of surprise, the failure of society to reflect and comment on such a fundamental shift in how we respond to HIV. Sections of the press have been predictably fascinated with specific cases, especially when the accused were African migrants (the first three cases) or women (two cases) - cue headlines such as "Aids assassin", "Pure evil" or "HIV migrant". But no one paused to ask why, 25 years into the epidemic and with more than 60,000 people living with HIV in the UK, it is only now that we are throwing people into prison for HIV transmission - or if such prosecutions make the sex we are all having any safer.
Of course, if someone intends to harm a sexual partner by transmitting HIV, that is a malicious assault and should be punished. The prosecuted cases, however, have been different - people in denial, scared, ill-equipped to discuss their infection. We may not condone their failure to disclose their HIV-positive status, but can we understand it? There is no confidentiality agreement in the bedroom, no guarantee that your status won't be broadcast among friends, neighbours, church or community. There may be a real fear of domestic violence, assault, eviction, separation from children. With high levels of stigma and discrimination, telling someone your HIV status takes time and care. Given this context, it is impressive that most people living with HIV do practise safer sex and disclose their status appropriately. But sometimes people fail.
These are the facts. With a third of people living with HIV in the UK unaware of their infection, and some of those who are diagnosed finding it difficult to discuss their status immediately, we are wrong to rely on silence as a guarantee of our partners' sexual health. Prosecutions, however, are encouraging those at risk of infection to misinterpret a partner's silence optimistically. At the same time, the character assassinations and scaremongering about HIV in the media are making it even more difficult for those with HIV to talk about it. It is a disaster for public health.
We do not as a society have to punish every action we deplore. Particularly if the likely impact will be to make those actions more likely to occur. There is a better way: end the stigma that makes some people tongue-tied or in denial about their HIV status; provide properly resourced care to help people come to terms with their diagnosis, negotiate condom use and talk about HIV to partners; encourage everyone to use condoms and not make assumptions about the sexual health of others.
The language around HIV seems to be regressing to the early 1980s, with talk of blame and guilt, the separation of those infected into the innocent and the evil. People living with HIV are neither victims nor criminals, and we must stop thinking of HIV as a series of assaults.
· Deborah Jack is chief executive of the National Aids Trust www.nat.org.uk
