Patricia Watson, Contributor
LEGISLATION seeking to criminalise the deliberate and/or reckless transmission of the Human Immunodeficiency Virus (HIV) is now before the Ministry of Health.
The Sunday Gleaner understands that following a comprehensive review of the Offences Against the Persons Act between July and September, recommendations to amend the Act were sent to Health Minister, John Junor, last week and discussions with the different stakeholders are set to start soon.
Among the recommendations made is that the willful transmission of HIV be made an offence, "but with safeguards put in place to address such issues as confidentiality, victim health care and to minimize discrimination".
And that "in the absence of willful transmission there be an ammendment to allow for reckless disregard for life and safety of others, or some form of criminal negligence to allow for persons with HIV/AIDS who behave indiscriminately knowing of their health status, to be brought before the courts for their indulgence in unsafe and unethical sexual practices, given the deadly nature of the disease."
In addition, it is recommended that provisions be made "requiring testing whether mandatory or voluntary of both victim and offenders in respect of sexual assault cases in particular as it relates to young persons, imbeciles or idiots or others who cannot consent... and that the HIV test results of all sexual offenders be made public to their sex victims or their next of kin."
Concern
Although the majority of HIV infection in Jamaica is through consensual sex, there is cause for concern based on the number of rape cases reported to the police each year.
In 1999, there were 730 cases, in 2000, 870 and up to October 15 this year, 757 cases.
Though unrelated, Health Ministry data shows an increasing number of women contracting the virus with 195 new cases reported up to June.
"The chance of getting HIV or other infections is higher during rape than in consensual sex," Director of the National HIV/AIDS Prevention and Control Programme, Dr. Yitades Gebre, said last week. "When it (sex) is forced, there could be tears, lacerations which facilitate the passing on of the virus."
In addition, Dr. Gebre pointed to a survey among 243 adolescents (15-19 years old) which found that four per cent of those (11 per cent) which tested positive for HIV were raped.
Another survey of women 20-49 years old also found that six to 11 per cent of women have been physically abused because they did not want to have sex.
"We presently have no legislation dealing with HIV/AIDS," Dr. Gebre explained.
"As the law stands now, the offender has the right not to be tested, or his HIV status made known to his victim."
He noted that the process towards a final resolution may be long as it will entail such issues as the right to disclosure.
That is, should partners be told of the HIV status of the other? Or should a man who raped a woman be forced to undergo mandatory testing and should this be disclosed to the victim?
It would also entail debating the rights of the offender, who by law is innocent until proven guilty.
Most states in the United States and many countries in Europe have enacted laws concerning the testing of criminal offenders and their victims for infection and transmission of the HIV.
Legal voices
Many were passed based on the recognised possibility of the transmission of HIV during sexual assault or abuse.
In a study conducted by the National Center for Victims of Crime and the National Crime Victims Research and Treatment Center in the United States, 40 per cent of sexual assault victims said what they feared most was contracting HIV.
However, many in the legal fraternity are against such testing. David Buchanan, a lawyer from Australia, in an article entitled HIV Transmission Offences noted that special anti-HIV criminal laws can be dangerous.
"It is generally considered that, against the background of a comprehensive criminal code, creating special HIV transmission offences risks reducing the impact of broader prevention education campaigns. Of necessity, such laws are addressed to people who already have the virus. The laws are seen to be directed against people with HIV," he noted.
He explained that enacting such laws may send the wrong message that "for the ordinary citizen, the main risk is of deliberate or reckless infection by people with HIV. Plainly, this is epidemiologically wrong and dangerous. Criminal laws directed at preventing HIV transmission (whether general or specific) risk placing the burden of preventing the spread of disease on those with the disease."
Mr. Buchanan noted that HIV laws tend to incite ill-feeling towards people with or perceived to be at risk of infection.
"It would be irresponsible for law makers to ignore the hysteria, which HIV/AIDS has already created in the community. Such laws not only feed such hysteria but also lower the self-esteem of people with or at risk of infection, and give them less reason to want to care for others or themselves."
