Law is a blunt instrument
Laws criminalising behaviour that may transmit HIV are “the product, not of rational public health choices, but of irrational fears, which provide an inveterately poor basis for rational law-making,” according to South Africa’s Justice Edwin Cameron. Speaking last night at Birkbeck College in central London, at an event co-hosted by NAM and the National AIDS Trust, Mr Justice Cameron argued that the law’s current place in the AIDS epidemic is primarily to create “legislation specially protecting the rights of those with HIV.”
Edwin Cameron, Justice of the South African Supreme Court of Appeal, one of the world’s leading figures on HIV and AIDS and the law, began by noting that “when a mass epidemic of infectious disease causes a public health crisis, the law has an indisputable and important role in helping to deal with it.”
However, he added, “the role of law in a public health crisis should be two-fold: to contain the epidemic and to mitigate its impact.” In other words, “the law’s function should be primarily protective. It should aim to save the uninfected from infection and to protect the infected from the unjust consequences of public panic.”
Nevertheless, he cautioned, “the law is a blunt instrument. The powers that be “can be mistaken in how it seeks to employ the law, and the actual implementation of even well-directed policy can be crude and misjudged. Hence the intrusion of legal instruments and mechanisms in public health can be counter-productive and harmful.”
Perpetrators versus social solidarity
He outlined two competing concepts about how we perceive the HIV and AIDS pandemic.
In what termed the ‘perpetrator paradigm’, the uninfected are “blameless” and those living with diagnosed HIV infection are “the culpable”.
In this paradigm, says Justice Cameron, “HIV represents a menace introduced and propagated into an innocent host through individual blameable acts and improvident behaviours. These it is the task of the law to inhibit and correct... to preserve order and to reinforce the acceptable, and it can best do so by seeking out, hunting down, isolating and punishing those who transgress its norms.”
Consequently, there is “a world of innocent victims – and hence of guilty perpetrators; and its natural corollary is that the law should be employed to identify, chasten, incapacitate and exclude the latter.”
The alternative concept, termed ‘AIDS as a shared calamity – the social solidarity paradigm’ “the epidemic, though transmitted through individual voluntary acts, is a product of the human environment, to which all are subject, and for which those with the social and political power of change should bear principal responsibility.”
It accepts that “even though transmission results from acts of choice, those choices are often constrained and even determined by the actor’s material conditions of life.
They rarely include the choice to become infected, and few deliberately choose to infect others.” This paradigm “recognises that stigma...complicates prevention efforts, inhibits acknowledgement of infection, and often disables recourse to help.”
The role of law in this situation, therefore, “is to instruct and protect and to guide, rather than to condemn.”
Success and failure in South Africa
Although Justice Cameron played a major role in “reject[ing] the perpetrator paradigm relatively early in [South Africa’s], efforts to come to terms with the epidemic,” by persuading the people and the government that HIV-specific legislation criminalising acts that put others ask risk of HIV, the desire to punish remains to this today.
He said that “strong minded” deputy justice minister, Johnny De Lange, who had been a strong-minded chair of the parliamentary committee on justice and constitutional matters had recently proposed “a new, HIV-specific, crime of wilful or even negligent transmission of HIV.”
Again, however, “that proposal was fortunately thwarted,” he said, “despite ardent support. The reason for its defeat was the dual perception that the existing criminal law made ample provision for the prosecution of deliberate transgressors, and that an HIV-specific crime would merely serve further to stigmatise the disease – with appalling effects especially for women, who form the great bulk of those diagnosed with HIV in Southern Africa.”
Nevertheless, he notes, “South Africa has also enacted legislation consonant with the perpetrator paradigm.” Most controversially, the South African Parliament enacted a Sexual Offences Act that came into force in March 2007 “that provides for victim-initiated compulsory testing of rape suspects.”
Mr Justice Cameron admitted, with some obvious embarrassment, during an aside from his written notes, that the germ of the idea came from a conversation between himself and fellow HIV-positive South African activist, Zackie Achmat, whilst they were on a long car journey together.
But he conceded that although “the core of the idea – which was to give rape survivors speedy confidential access to the HIV status of their alleged attackers, so that they could initiate early and effective post-exposure prophylaxis – has been entirely lost in the provisions eventually enacted. These permit compulsory testing up to ninety days after the alleged attack – long after prophylaxis would be of any use at all.” He added that, “the constitutionality of these provisions may at some stage be subject to scrutiny.”
Criminal HIV transmission laws on the rise elsewhere in Africa
Mr Justice Cameron noted, with some sadness, that “legislation has been introduced in Lesotho, Swaziland and Zimbabwe, with calls to criminalise transmission of HIV in Namibia and Zambia. In Lesotho, the Sexual Offences Act of 2003 criminalises wilful HIV transmission, as well as consensual sex where one of the parties fails to disclose his or her HIV status.”
In addition, “legislative initiatives aimed at introducing HIV-specific criminal laws appear to be increasing - including a law in Thailand, and a proposed law in Uganda.”
In fact, last week Uganda’s daily newspaper, The Monitor, quoted Dr Emmanuel Otala, Uganda’s State Health Minister in charge of Primary Health Care, who says that plans to “criminalise HIV/AIDS infected persons who intentionally pass on the disease to others" would be “tabled in Parliament in two months time."
The Monitor also reports that the law comes at the specific request of Uganda’s President, Yoweri Museveni, who apparently believes that hanging should be the appropriate punishment. "People who infect others deliberately are killers - they are murders," he was reported to have said during a Justice and Human Rights Forum in February. "One should first declare that he is infected. I would treat someone who gets involved with another knowing that he has AIDS harshly.”
The paper said that neighbouring East African countries, Tanzania and Kenya, are also seriously considering enacting similar laws.
Does an HIV-specific legal shield also mean an HIV-specific legal sword?
Mr Justice Cameron imagined an ideal world, where there was no HIV exceptionalism, and where the law would not need to single out HIV or AIDS to protect or to punish. “If our aim is to normalise HIV as but another medically manageable chronic infectious disease, we must in principle abjure HIV-specific swords as well as shields,” he said during the closing minutes of his lecture.
However, the time is not yet right to remove the shield, he argued, “because of continuing discrimination and the force of stigma.”
Unfortunately, he noted, stigma and discrimination also “provide the well-spring for creating HIV-specific crimes,” such as ‘reckless’ or intentional HIV transmission. “Given the difficulty with which HIV is transmitted, the fact that the disease is now medically manageable, and the immense continuing stigma surrounding the disease,” he concluded, “it is hard not to see the increasing calls to enact HIV-specific crimes as the product, not of rational public health choices, but of irrational fears – which provide an inveterately poor basis for rational law-making.”