Statement Against the Criminalization of HIV Transmission

The Society Against Sexual Orientation Discrimination opposes the Criminalisation of HIV Transmission which is under consideration by the Parliament of Guyana. SASOD's presentation to the Special Select Committee considering the Resolution 129 of 2010 has noted several reasons why such a law would reverse the progress being made in Guyana to combat the HIV/AIDS epidemic.
 
CRIMINALIZATION OF HIV TRANSMISSION IS COUNTER TO THE OFFICIAL UNAIDS POSITION AND INCONSISTENT WITH INTERNATIONAL GUIDANCE ON HUMAN RIGHTS:
  • According to UNAIDS and other international agencies, there is no evidence to suggest that criminalizing HIV transmission is an effective means to prevent the further spread of the virus or achieve criminal justice.
  • Several countries that have such laws e.g. Guinea, Togo, Denmark and Senegal, are reviewing and suspending them in the face of increasing awareness of their inefficacy as well as concerns of violating individual human rights.
  • SASOD supports international consensus that criminal and/or public health legislation should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases.
  • A legal review by the Belizean National AIDS Committee found that the criminalizing of deliberate transmission deterred persons from getting tested for fear of criminal sanctions. The review indicated that there have been no prosecutions under the section because of the evidential difficulty in proving these cases under law and as a result, the recommendation is to repeal the law.
 
CRIMINALIZATION FURTHER VICTIMIZES WOMEN:
  • We share Mr. Franklin’s (MP who proposed the legislation) desire to better protect women from dishonest and malicious sexual partners, but the fact is that criminalization does not protect women- it increases the likelihood of them being victimized. The reason for this is that women access healthcare services more often than men (for reproductive services especially), so in many places, women who know their HIV status more often than men. As such, they can be accused of transmitting the virus to their male partners, even if those partners are the ones who infected them in the first place. Therefore, these laws can be described as harmful instead of helpful to women.
  • More helpful to women would be to address gender-related violence, inequality and sexual coercion, as well as stigma and discrimination.
  • Some women might be prosecuted for mother-to-child transmission. This occurs where laws criminalizing HIV transmission or exposure are drafted broadly enough to include transmission to a child during pregnancy or breastfeeding.
 
CRIMINALIZATION INCREASES STIGMA AND DISCRIMINATION AGAINST HIV+ INDIVIDUALS AND DRIVES TRANSMISSION:
  • HIV is no longer a death sentence; it is now a medically manageable disease. Legislation such as the proposed one continues to spread fear and misinformation about HIV, however. There are other infections that can be transmitted via unprotected sex- some of which are also lifelong conditions- such as Herpes- but the same level of attention is not paid to those.
  • The focus on criminalization of HIV transmission increases stigma and discrimination against HIV positive people by making potential criminals of all of them and has a deterrent effect on testing. Testing is a critical tool in reducing HIV transmission and anything that interferes with its efficacy- such as legislation like this- is very dangerous and counterproductive in the fight against this disease.
 
CRIMINALIZATION UNDERMINES PUBLIC HEALTH:
  • Criminalization of HIV transmission also makes it even more difficult to work with ‘hard to reach’ communities such as men who have sex with men, sex workers, drug users, etc who are already fearful of the authorities and being criminalized for their lifestyle or sexual behaviors.
  • Confidentiality between people and their healthcare provider is extremely important- especially in cases of HIV+ individuals who require long-term treatment. As such, anything that forces doctors and health care providers to reveal patients’ private health information, or even testify about it, has a negative impact on patient trust of the health care system and willingness to remain engaged in HIV care- which has a negative long term impact on society as a whole. Far more effective HIV prevention programmes exist such as testing, counseling and general awareness campaigns.
 
THERE ARE ALREADY LAWS IN PLACE TO DEAL WITH THIS:
  • We already have legislation in place- The Sexual Offences Act- which would deal with cases of non-consensual sex. In cases of such offenses, the accused is compelled to obtain a HIV test, the results shared with the victim, and taken into account when determining the sentence.
  • Strengthening this existing legislation, educating citizens, law enforcement, and judicial officers about their rights and responsibilities under the Sexual Offences law and putting policies into place that make it really work effectively on the ground is a better use of time and resources, in our opinion, instead of putting yet another misguided, ill-informed, and un-enforceable law on the books.
 
IN CONCLUSION:
The job of preventing HIV falls to society as a whole, not just those who are HIV positive. Focusing solely on HIV positive persons does us all a disservice. We need to focus instead on proven prevention strategies such as testing and counseling, education, and reducing stigma and discrimination, and protecting peoples’ human rights and dignity.
 
NINTH PARLIAMENT OF GUYANA
FIRST SESSION (2006-2010)
NATIONAL ASSEMBLY
RESOLUTION NO. 129
WHEREAS the fight against HIV and AIDS has been relentless especially during the past 15 years;
AND WHEREAS some success has been recorded throughout the country in reducing the instances of infection and transmission of HIV and AIDS;
AND WHEREAS educating the population is of utmost importance in the arsenal of weapons and/or measures required to combat this dreaded disease;
AND WHEREAS despite the best efforts of health care officials, religious organizations and NGOs in educating the population with respect to AIDS and HIV, infection rates are still disappointingly high;
AND WHEREAS persons, some knowingly, still infect others with the Human Immune Deficiency Virus, causing immense suffering and pain to the infected persons, their families, community at large along with increased cost to the health care system;
AND WHEREAS persons are not held responsible by law for knowingly transmitting this deadly virus to innocent victims;
AND WHEREAS the confidentiality and non-discriminatory laws in place which protect persons affected with HIV and AIDS prevent disclosure of their identity, these persons are free to have unprotected sex with unsuspecting partners, thus further spreading the disease,

NOW THEREFORE, RESOLVED,
That the criminal laws of Guyana under all relevant sections be amended, to make it an indictable offence for any person to transmit the virus to any other person, when they would have had prior knowledge of their infected status;
FURTHER RESOLVED,
That non disclosure laws or guidelines be so amended to allow information to be used by the prosecution if so required;
FURTHER RESOLVED,
That all agencies, clinics, hospitals which have the results of tests and other vital information be bound by law to release such information to any court engaged in a matter; and
FURTHER RESOLVED,
That the manner in which society and law treat with persons who willfully transmit HIV be taken to a Special Select Committee to examine this issue comprehensively, drawing from other countries’ experiences which have criminalized this offence and those which have not, taking into consideration experts’ and the public’s views, as well as examining the present laws of Guyana and return to the National Assembly with considered opinions and recommendations on this issue.
Passed by the National Assembly on Thursday, 29th July, 2010.
Tags: StatementDiscriminatory LawsHIV/AIDSStigma