The Human Immunodeficiency Virus may be transmitted during sexual intercourse, and persons may be held criminally responsible for transmission of the virus, or for exposing others to the risk of transmission of the virus, in this context.
From the perspective of human rights law explore the implications of the criminalisation process for those living with HIV.
Nations in many parts of the world are making laws that criminalise people living with HIV/AIDS. Criminalising People Living with HIV/AIDS is a matter of concern. Some of the affected parties to the criminalisation process are those who fail to disclose their status and those who deliberately transmit the virus to other people. In the United Kingdom and Ireland, there have been a number of legislations meant to criminalize these people. Consequently, there is growing concern among key groups like human rights advocates, people living with HIV/AIDS, lawyers and researchers over the reliance on criminal law to addressing the perceived transmission risks.
There are a number of reasons why the legislators are coming up with these laws. One of the reasons given is that the laws will serve as deterrent so as to check the HIV transmission rates in the country (Lehman et al., 2014).The lawmakers argue that these people must be stopped 67from infecting others. But from a human rights perspective, are these laws justified? We have witnessed cases of long jail sentences for those convicted using these laws. In some of these cases, the victims have been made to declare that they are sexual offenders before their release (HPA, 2010). The implication of this approach can only be evaluated and ascertained by looking at how positive or negative this approach has on people living with HIV/AIDS.
It is possible that rather than preventing transmission through the threat and reality of criminal prosecution, these laws may hinder public health efforts towards HIV/AIDS awareness and therefore cause more harm than good. People may decline to go for testing due to fear of prosecution. The use of criminal law to address complex public health problems like HIV/AIDS may not be effective as proved by many research studies. Proponents must understand that people living with HIV/AIDS need to be free to enjoy their lives. Focus should be placed on creating awareness and not criminal laws in addressing this health problem.
These laws are meant to deter HIV-positive individuals from intentionally or unintentionally spreading the disease to a person who is unaware of the risky they are being exposed to. The implication here is that deterrence will made these people lose confidence as many may be skeptical people living with HIV/AIDS make advances. It will make them shy away from active participation in health efforts like mobilizing people to donate blood. Again, the laws miss the point. For instance, biting cannot cause transmission of HIV. It means that these people will fear that a simple accident will lead to prosecution.
When we criminalise people living with HIV/AIDS, we are essentially locking out a huge young adult’s population who need transition yet they are positive. This denies them the opportunity to actualize their dreams in life. Most of the young people living with HIV/AIDS in United Kingdom and Ireland benefit from ART treatment and need to continue so as to avoid and prevent transmission.
A number of studies in the UK, caution strongly about the use of criminal law in the fight against HIV/AIDS as criminal law cannot be used to address a health problem even if the intent is good. They indicate that there is negative relationship between the laws and behavior change. In fact they show that both HIV/AIDS positive and those who are not positive or who do not know their status will not be willing to go for testing under such legal regimes. Consider the case of a HIV/AIDS positive man in Michigan who was charged using the state’s anti-terrorism law for being in possession of “a biological weapon” after biting his neighbor (Galletly et al., 2010. Medical evidence has proved beyond reasonable doubt that there can be no transmission of the HIV through biting, therefore it is a human rights violation and governments and human rights advocates cannot allow such kind of prosecutions that are targeted at an already stigmatized group.
Many state lawmakers consider this transmission a public health risk that needs deterrent measures. They argue that that the number of new infections is growing and efforts to reverse the situation are inevitable. There is a concern from the proponents of these laws who say that the cost of HIV is putting a strain to the public health budget. The lifetime cost of one HIV infection is estimated at $379,668) (CDC, 2010). It is the government through health care system that absorbs this cost. Thirdly, public opinion has been overwhelming in the support of these laws. The good public support for the laws has been seen in the 33 states and 2 territories in the US (Galletly et al., 2012).
Fourthly, the laws have been hailed as good deterrent to sexual violence, not only in United Kingdom context but also in other parts of the world, for instance in Africa. It is a good deterrent measure in some parts of the world where there is widespread violence due to armed conflicts. In these countries vulnerable women and young girls are victims of gory sexual acts (Croucher, 2011). One striking observation about these laws and statutes is that they do not consider that People living HIV/AIDS need protection through the same law. Criminalizing laws have overtaken the need to fight these new infections and the measures that can be put in place to address this situation.
HIV/AIDS criminalization laws have the potential to increase jail term for most offenders who, for instance, commit rape. Perhaps the most ironical part of the criminalizing laws is that they may cause greater rate of transmission as opposed to reducing and deterring it (HPA, 2010).
These laws have driven HIV transmission underground as few people are ready to be tested and be put on treatment. This has the potential to cause even higher risk than what it is now. It will be prudent for the UK and Ireland governments, to have more on education, testing and treatment expansion program as a way of reducing the rate of transmission rather than pushing people living with HIV/AIDS to the periphery and ignoring their situation, a move that has the potential to further stigmatise them (HPA, 2010).
Many people find it difficult to know their status because of the stigma that comes with the disclosure (Mykhalovskiy, 2014). They shy away simply because their world will come crumbling on them the moment they know that their status as they have to deal with the justice criminal system. The fact that people do not want to be tested exposes them to legal prosecution. There should be concerted efforts to educate people on the legal importance of testing as this also reduces transmission. It will be prudent to prosecute those who know their status and have failed to take deterrent measures or deliberately decline to disclose this to the public where necessary.
However, these laws make it so difficult for people living with HIV/AIDS to live fully their lives. Consider convictions under similar kind of laws in Norway where 5 in every 1000 people living with HIV/AIDS have been convicted, Sweden where 6 in every 1000 people living with HIV/AIDS faced convictions and New Zealand that indicates 5 in every 1000 faced convictions in the period under investigation. In other words, these laws are legalizing stigmatization and at the same time offering no solace for those infected and ultimately living with HIV/AIDS (Gagnon et al., 2014). Under the current medical regime in HIV drug development, new drugs have significantly reduced a HIV-negative person’s risk of getting transmission. These laws are slowly condemning people living with HIV/AIDS with no options to enjoy equal opportunities. Clinical researches conducted by international HIV prevention trials have shown that Antiretroviral (ART) drugs’ treatment reduces transmission risk of a HIV –positive person to a sexual partner by a staggering 96% (CDC, 2010).
Another school of thought is about the effectiveness of these numerous criminalizing laws in the fight against new transmissions. The threat to prosecution has no effect on encouraging HIV/AIDS positive status disclosure or as deterrent to risky sexual behavior. In this regard, it simply implies that HIV/AIDS. A case in point is a study in England that made its finding to the effect that there are possible negative effects of criminalization laws associated with stigmatization and unwillingness to cooperate with health officials. From this perspective, the study notes that deploying laws as a behavior change deterrent measure may be ineffective. These laws are a real risk as they give a false sense of security to those infected that the person they may have sexual relations may disclose their status. From this, it risks those with negative status or who do not know their status as they fear the legal implication of disclosure.
People living with HIV/AIDS are increasingly being stigmatised leading to the erosion of gains made over the years in the fight against HIV/AIDS. Many of these people both young and old are on lifelong ART treatment (Galletly et al., 2014). People living with HIV/AIDS are increasingly feeling shunned, being avoided and more hurting they are branded as terrorists. The lengthy jail terms for the offenders are meant to curtail their freedom for no reason. These people have simply been turned into a viral underclass that seems to be the most risky group around.
This is unacceptable in a world that has fought so hard and resources channeled in the war against HIV/AIDS (CDC, 2010). These people need to be embraced and educated on the need to minimize transmission rates and achieve a HIV free society. Consistent stigmatisation, through these criminalizing laws, will lead to greater transmission rates and pose serious public health risk. This risk is bound to create a restless population that views these people as unwanted in the world.
However, people living with HIV/AIDS have families, partners, workmates and therefore cannot be wished away. According to a report, “Give stigma the Index Finger”, many participants who are HIV/AIDS positive, say that they have encountered an incident of stigmatisation when seeking treatment (Frize, 2010). A majority, around 60%, say that they are not sure about the confidentiality of their medical records and information. Most of them strongly acknowledge that there is support among them as they interact freely with other HIV/AIDS positive persons.
People living with HIV/AIDS feel like they are not wanted in the society and their ultimate place is jail. Criminal laws should be used where there is deliberate and real HIV transmission. There should be overboard consultative forums before the lawmakers make such laws. Public health professionals, legal academics and HIV/AIDS advocates should be consulted so as to come up with laws (Gagnon et al., 2014). These laws may serve as deterrent to transmission but are they enough to eliminate new infections and fair to those living with HIV/AIDS? There is absolutely a need to relook at these laws and their implications on HIV/AIDS measure in general and people living with HIV/AIDS in specific. The best way will be to have educational, testing and treatment programs so as to create awareness and change behavior as the most effective way of eliminating HIV/AIDS infections.
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