GUYANA GETS IT RIGHT: THE CRIMINALISATION OF HIV WON'T WORK
By THE UNAIDS CARIBBEAN REGIONAL SUPPORT TEAM (RST)
SHOULD there be laws targeting people who deliberately infect others with HIV? On Thursday Guyana's National Assembly answered that question in a rational and progressive way. They said "no."
The move may be counterintuitive for many in our region. Concern about having the world's second highest HIV prevalence has motivated people to call for tougher strategies in the HIV response. With an adult HIV prevalence of 3.1 per cent support for criminalisation in The Bahamas reflects a desire to reduce the spread of the virus while exacting justice for those who were intentionally infected.
In investigating that option Guyana set up a Special Select Committee of Parliament on the Criminal Responsibility of HIV Infected Individuals which considered written and oral submissions from various stakeholders for more than a year. At last week's parliamentary sitting Minister of Health, Dr Leslie Ramsammy, explained that not only was there no proof that criminalisation reduced the spread of HIV, but it could also be dangerous.
"It merely encourages individuals not to get tested and increases the stigma and discrimination against those who are positive," Dr Ramsammy said. UNAIDS supports this view. Such laws would deepen the climate of denial, secrecy and fear surrounding the virus 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 lead to its increase.
There is a minority of persons who deliberately transmit HIV with intent to harm others and they should face appropriate criminal prosecution. For these cases there is no need to create HIV-specific legislation. The alternative is to use existing laws relating to assault and criminal negligence under the Offences against the Person Act. In determining whether an act of transmission should attract criminal penalties the complexities of human sexual behaviour must be carefully and fairly discerned. What are the reasonable and enforceable lines between criminal and non-criminal behaviour when it comes to HIV transmission?
There are several circumstances in which an HIV positive person either does not present a significant risk of transmission or does not have criminal intent. Does the individual know that he is HIV positive? Does she understand how HIV is transmitted? Did he tell his partner that he was HIV positive or believe that his partner knew his status? Did she practice safe sex and regularly take medications? Was there an understanding that intimacy involved a certain degree of risk? A criminal law specifically related to HIV would cast all persons living with the virus as potential criminals and intensify the hysteria surrounding the virus.
Many in the Caribbean have pointed to the fact that other territories, including some American states and European nations have adopted the approach. But 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.
The Bahamas must within the next two years reduce its number of new infections significantly. Criminalisation won't accomplish this, but more effective prevention programmes can. There is need for improved access to sound information, services and support for all individuals including young people, men who have sex with men, sex workers and prisoners. There should be greater access to voluntary counseling and testing and age-appropriate sexuality education. Sexually active people should be able to obtain condoms and personal lubricants. In addition, interventions are needed to support HIV positive people in disclosing and practicing safer sex. We must all continue combating stigma and discrimination so that people can make healthy, responsible and safe choices about their lives, including decisions relating to sex and reproduction.
Strides in the HIV response are hard-won but possible. This year, scientists revealed that early treatment has been proven to be 96 percent effective in preventing transmission between couples. There is hope. But it lies in a combination of comprehensive legal reforms to address discrimination and vulnerability and policy directives to improve the reach and quality of prevention and treatment programmes. The criminalisation of HIV transmission won't help.
September 12, 2011
tribune242
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