Why T&T Should not Criminalise HIV/AIDS Transmission

27 Jun Why T&T Should not Criminalise HIV/AIDS Transmission

Should Trinidad and Tobago introduce legislation criminalising the transmission of HIV/AIDS? This concept stirred debate from all sectors of society out of Justice Anthony Carmona’s (San Fernando High Court  Judge) recent statement during an HIV-related, manslaughter case that the time had come for laws to punish people who “recklessly” and “deliberately” infect others with HIV. I marvelled at this, because that’s evidence of progress, right?

But the content of said discussions changed my opinion; most of it was one-sided, misinformed, and filled with emotional bias. Most people in society were in support of having specific laws against the exposure of and transmission of HIV. In fact, I participated in an online poll on Newsday’s website the following Monday, and my one vote against such legislation paled in comparison to the 99 percent who agreed.

It was disheartening, to say the least. And to hear people on the radio who knew better, who I thought would be looking at the bigger picture was beyond shocking. So I went to my first interviewee for Outlish, David Soomarie, Coordinator at Community Action Resource, first to bitch and complain about it then to get some information about the issue. Thankfully, he was able to steer me in the right direction, and give me some literature to help with my research on why we shouldn’t even think about criminalising the transmission of HIV.

You may wanna sit back to take in what I’m about to say; this one is quite a doozie.

The idea of criminalising HIV exposure is based on the assumptions that all cases of transmission are done with intent and people living with HIV who engage in sexual practices are morally wrong or harming other people. What we should realise, however, is most people who transmit HIV either do not know they have HIV, or are afraid to reveal their status out of fear of stigma, violence, rejection by loved ones and all other types of abuse.

There are, of course, those who do go out with the intent to harm people. But existing laws can be used to take care of them. We just need to be careful not to apply these laws too broadly. We can’t justifiably enforce the law on exposure and transmission, where there is no great risk of contracting the disease, or in cases where the person responsible had no idea they were HIV positive, did not understand how HIV is transmitted, did not reveal their status out of fear of abuse, took proper precautions (such as using a condom), revealed their status to the other person at risk (or had evidence the other person was aware), or had mutually agreed with the other person there was a certain degree of risk with sexual contact.

“Even if we were to go the route of negligence or reckless behaviour, we still have to question intent.“

Even if we were to go the route of negligence or reckless behaviour, we still have to question intent – assuming malicious intent makes for bad, public policy, and the reach of any applicable legislation would be so broad, it would be difficult, if not impossible, to prove any adverse situations could arise.

Now there’s the argument legislation could curb the spread of HIV by forcing people to stop having unsafe sex, threatening criminal prosecution for those who do, and rehabilitating those who have been caught. But to get this done, Government will have to ensure all 1.3 million of us cannot have unprotected sex, share syringes, or engage in any other type of unsafe behaviour. And prison ain’t gonna work, because such practices are prevalent there.

Additionally, it has been proven ‘time and time again’ that sending someone off to jail will not stop them from committing a crime again. Human behaviour is one of the most difficult things to change, and using a primitive instrument such as criminal penalties won’t do much.

“Most people living with HIV already believe they have a responsibility to protect others from infection.”

Most people living with HIV already believe they have a responsibility to protect others from infection, especially when they have access to proper counselling, prevention services such as condoms and medication. In any event, the time when there is the greatest risk of infection (during the first months following infection) most people don’t have a clue that they’re HIV positive, which puts a damper on that preventative advantage any criminal offence would have, no?

So yeah, the road to hell is paved with good intentions, as they say. Enforcing any law criminalising the transmission of HIV may seem like a good idea at first, when in fact it will throw the work of advocates and NGOs back into the Stone Age. Criminal laws, especially ones that tackle a sensitive topic such as this, could discourage people from seeking proper help, because lack of knowledge could be the best defence against criminal proceedings.

In territories where there are HIV-specific laws, such as the US and Europe, counsellors are often required to tell people their HIV status could be used against them, if they continue having sex. And in some cases these counsellors are forced to reveal sensitive information concerning people’s HIV statuses in criminal trials, which in turn interferes with any efforts by organisations to encourage people to seek testing and necessary healthcare.

And it doesn’t stop there. These laws give a false sense of security to HIV negative persons, as they place the blame and responsibility solely on the shoulders of HIV positive people. And many would think it is safe to assume their sexual partners are HIV negative, if they have not said anything, and thus not take preventative measures. They will also raise tensions and cause distrust between HIV positive people and health care providers. There will be a fear that one’s HIV status will be used against them, which hinders the provision of proper treatment and care.

HIV and AIDS have been around for about three decades, and the best solution, according to those who have worked in the field, would be actually talking about the epidemic – education, raising awareness and so on. So by applying criminal laws, Government will reinforce the misinformation many receive on a daily basis, and further promote stigma and discrimination.

“Criminal prosecutions are already accompanied by ill-informed media coverage or inflammatory statements by high-profile figures.”

Criminal prosecutions are already accompanied by ill-informed media coverage or inflammatory statements by high-profile figures. And there’s the spread of myths about HIV is transmitted to deal with, which prosecutors and legislators will more than likely take advantage of to garner support from the public. So more of this will only serve to send those seeking counselling and care underground.

But what about women? Because of their specific health needs, such as pregnancy and childbirth, they are more likely to know their HIV status than men. And with certain HIV laws in place, they will be compelled to disclose their status, refuse sex or insist on condom use. This, given our society’s oh-so- wonderful track record on gender relations, could result in women facing violence, eviction, loss of their children, disinheritance, and other severe, gender-based abuse. It will also be easier to pin the blame for the spread on women, as we have seen as recently as last week, and prosecute them with mother-to-child transmission due to the non-specific reach of HIV criminalisation laws. And there will be nothing to protect women and girls from coercion or rape, which are also ways to transmit the virus.

Now let’s take a look at the actual drafting of these laws – most times these laws are drafted as an afterthought, with no attention to detail or application and wrongfully accusing innocent persons. Some laws require HIV positive people to disclose their status to all sexual contacts, which means they could be jailed for kissing or even touching someone in an intimate setting. What’s worse, there’s the possibility that not getting an HIV test and knowing one’s status could be a criminal offence, minus any question into whether or not there was access to HIV testing.

“It’s not a surprise that in Trinbago, we tend to enforce our laws selectively and ineffectively.”

It’s not a surprise that in Trinbago, we tend to enforce our laws selectively and ineffectively. And given the stigma surrounding HIV and AIDS, it’s safe to say criminal proceedings will be more swiftly directed towards those of us who are on the lower end of the social and economic ladder, and the vulnerable groups in society.

When it comes to proving someone was HIV positive at the time of the alleged offence, there may be a bit of a challenge. Recent innovations in biology can detect similarities in two samples of the HIV virus, but not the origin. And the police, prosecutors, media and the general public may not understand the technicality of it all. And let’s not talk about the cost. Therein lies the potential to convict without sufficient evidence.

Let’s also consider invasion of privacy – confidential, medical records kept by health practitioners will have to be disclosed to prove someone’s HIV status, which will result in HIV positive people being more reluctant to talk to health care providers, agree to counselling and testing, and seek treatment.

Focusing on laws to prevent exposure and transmission to HIV and AIDS runs the risk of placing the burden of prevention onto those living with HIV, instead of using realistic methods that empower people to avoid transmission and protect themselves. Comprehensive sex education programmes that address gender-based violence, stigma, discrimination and substance abuse, access to testing, and counselling and protective services have been proven methods that can make a real difference in preventing HIV transmission. Pooling already limited resources into prosecutions and unnecessary legislation is a misuse of said resources.

So what is the solution for all of this? Everything points to one notion; rather than using laws, we could look at the epidemic from a human rights perspective. The minute we see people living with HIV as human beings, everything else falls into place. Removing legal barriers to education, treatment, care, and other tools to reduce the risk of HIV, amending and enforcing laws, especially those that protect women, children and vulnerable groups, and reforming police practices that promote violence and abuse against vulnerable groups go a long way.

Additionally, laws that criminalise or further isolate vulnerable groups – such as men who have sex with men, drug users, and sex workers – should be put under review, and repealed if necessary, so that they can have access to proper treatment and support. And involving the community and stakeholders in the law-making process would ensure legislation is relevant and meets the needs of society.

Human rights underscore the dignity and sexual freedom of all, and foster the environment where people can make healthy, responsible and safe choices, which include the right to full and up-to-date information, access to HIV prevention measures, and the right to make responsible choices about sex and reproduction. They ensure freedom from violence, abuse, stigma and discrimination, unlawful arrest and imprisonment. They protect women and children from being driven into poverty and promote equal access to property and inheritance.

Criminalising HIV exposure or transmission cannot be justified because it does not empower people to avoid HIV infection. Only when we meet conditions such as these can the spread of HIV be reduced.