Criminalising HIV won’t work
Guyana’s Special Select Committee of Parliament on the Criminal Responsibility of HIV Infected Individuals has chosen not to make the transmission of HIV a criminal act. The Joint United Nations Team on AIDS, coordinated by the United Nations Joint Programme on HIV/AIDS (UNAIDS) congratulates the Parliamentary Committee for its mature and measured decision. Such a law would have deepened the climate of denial, secrecy and fear surrounding the virus in Guyana and in so doing reduce people’s willingness to learn their status and access treatment and support. Ironically, a measure meant to reduce the spread of HIV could have led to its increase.
Many of the countries that have enacted laws related to the criminalisation of HIV are now reviewing their stance because of the negative implications for public health and human rights. In February Denmark’s Minister of Justice announced the suspension of an HIV-specific criminal law. Last year the United States’ National AIDS Strategy raised concerns about such state laws while an official committee was set up in Norway to inform revision of their equivalent Penal Code provision. Just a few days ago, world leading scientists and medical practitioners joined legal experts and civil society representatives to discuss the scientific, medical, legal and human rights aspects of the criminalization of HIV non-disclosure, exposure and transmission. The meeting, organized by UNAIDS, took place in Geneva from 31 August to 2 September.
Participants reviewed key scientific, medical, public health and legal principles that should inform the application of the criminal law to HIV. They also discussed the recent developments in a number of countries where the criminalization of HIV is being reconsidered.
Rejecting the approach of broad criminalization does not mean that people who maliciously infect others should go unpunished. Existing laws relating to assault and criminal negligence under the Criminal Law (Offences) Act can be used in such cases.
Guyana’s judicial system must then ensure that any application of these general criminal laws to HIV transmission is in keeping with the country’s international human rights commitments. Prior knowledge, deceit or coercion, willfulness and intent must be proven in such cases. This means that convictions should meet the golden legal standard for determination of guilt and not have the dangerous effect of casting all HIV positive people as potential criminals.
Strides in the HIV response are hard-won but possible. According to Guyana’s 2010 United Nations General Assembly Special Session (UNGASS) Country Progress Report between 2001 and 2009 Guyana experienced a 14 percent reduction in its adult HIV prevalence from 1.4 percent to 1.2 percent. This demonstrates that there has been payoff for gains made in blood safety, antiretroviral treatment and prevention of parents to child transmission.
While criminalisation won’t accomplish a reduction in new HIV infections effective activities and strategies towards HIV prevention can.
This year, scientists revealed that early treatment has been proven to be 96 percent effective in preventing transmission between couples. Expanding access to such treatment, supporting increased condom-use and boosting the uptake of testing and counseling services are effective ways of reducing the transmission of HIV and protecting the most vulnerable.
The other key aspect of this comprehensive response is personal responsibility. Exposure to the virus is a risk that every sexually active individual has a duty to manage. Not knowing a partner’s status or assuming that he or she does not have a disease are not sufficient reasons for not using protection, discussing each other’s status and getting tested. Ultimately those are the actions that will lead to a decline in HIV.
This latest parliamentary decision clears the way for Guyana’s HIV response to continue proceeding in a rational and productive direction. The full Report of the Special Select Committee to the Guyana Parliament and the Speech of Honourable Dr. Leslie Ramsammy, Minister of Health of Guyana are available on line.
Photo Caption: Credit: UNAIDS Caribbean