Research Paper On
IS TRANSMITTING HIV- AIDS TO SOMEONE
A CRIMINAL OFFENSE?
Author:- G Deepika , Semester 3, Second Year LLB, Student of NMIMS Navi Mumbai
ABSTRACT
HIV has become a social stigma including the lack of information and outdated beliefs that prevents a person having HIV to reveal to the other person. Transmitting HIV to someone with or without intent has not only moral but also legal damage. Criminalization of HIV is a common practice in several countries in which HIV transmission, prospective or perceived HIV exposure, and failing to disclose one's HIV status are all punishable under criminal laws that have been passed. In several other countries, although HIV-AIDS is not directly criminalized, specific legislations are being brought in. This paper aims to analyse criminalization of HIV worldwide and in India. Further, this paper talks about the effect of criminalizing HIV.
INTRODUCTION
37 years ago, the first AIDS cases were documented in the US. Over 35 million individuals have died as a result of the infection, which has since infected over 77 million people globally. The human immunodeficiency virus (HIV) is the primary cause of the chronic, potentially fatal illness known as acquired immunodeficiency syndrome (AIDS) (HIV). HIV interferes with your body's capacity to fight infection and disease by weakening your immune system. Over 38.4 million people globally were living with HIV in 2021. With such a large part of society living with HIV, it has become necessary for people to be aware if the other person has the disease.
Unlike the common cold, flu, or COVID-19. HIV is not transmitted by air. So, it is unlikely for a person to have aids without direct contact with the patient. For AIDS to be transmitted, HIV in fluids (like Blood, Semen, Rectal Fluids, Vaginal Fluids, and breast milk) should be in contact with an HIV-negative person through a mucous membrane.
HIV infection has become a manageable chronic health condition growing access to comprehensive HIV prevention, diagnosis, treatment, and care—including for opportunistic infections—has allowed people living with HIV to lead long and healthy lives.
The majority of HIV criminalization cases around the world feature harsh penalties for careless or inadvertent HIV exposure or transmission. People with HIV may face criminal charges for exposure, transmission, or failing to disclose their status. Some nations classify all three as crimes. One of the nations in the world which only criminalizes purposeful HIV exposure or transmission is Netherlands.
In India, there is no law which is specific to HIV but the IPC (Indian Penal Code) has provisions that apply to the transmission of AIDS.
STATEMENT OF PROBLEM
According to a recent estimate, over 270 persons have been detained for HIV transmission since 2019. Although the author agrees with the criminalization of HIV of a person who has transmitted it deliberately, people who have no prior knowledge about their status need not be criminalized. A lady in Canada was arrested in 2005 and charged with criminal negligence and aggravated assault after she was found to have transmitted HIV to her unborn child while she was pregnant with the child. It sets a bad precedent since other nations could take this as an acceptable or desirable approach to combating HIV.
RESEARCH QUESTIONS
Does the criminalization of AIDS help?
What is the extent of criminalizing AIDS worldwide and in India?
Are there any laws protecting the rights of person affected with HIV-AIDS?
OBJECTIVES
Analyse the Criminalization of AIDS worldwide
To be aware of how the Constitution views the criminalization of AIDS in India.
To be familiar with the impact of the criminalization of AIDS
RESEARCH METHODOLOGY
The study focuses on a study of secondary data collected from various books, journals, and government reports published on various websites which focused on HIV-AIDS.
CRIMINALIZATION OF AIDS WORLDWIDE
The most recent global audit published by the HIV Justice Network found a total of 75 countries with criminal laws that specifically mention HIV.
This paper has limited its scope to the United States, England, Denmark, Poland, and Belarus.
THE UNITED STATES
The United States was the first country to introduce jurisdiction for HIV-related criminal laws. In the US, different jurisdictions have different policies regarding HIV transmission. The criminalization is more complex than in any other country. As of 2022, 35 states have laws that criminalize AIDS exposure. More than 20 states have laws that are HIV-specific. Other states use general laws to prosecute AIDS transmission.
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
In the UK, there have been charges for the careless spread of HIV since 2001. However, this hasn't stopped the spread of HIV. Instead, it has harmed public health by escalating HIV-positive people's stigma, victimization, and discrimination. The Offences Against the Person Act 1861 (OAPA 1861) is the law used to prosecute a person. And, there are two possible offenses- Reckless transmission (Section 20) and Intentional Transmission (Section 18). For each individual that a person is found guilty of infecting in England and Wales, the punishment is a maximum jail sentence of five years.
DENMARK
Denmark enacted the sole HIV-specific criminal law in western Europe in 2001. However, 10 years later, it was suspended. Article 252 of the Danish Criminal code, had apparently been used to punish about 18 people and is the only HIV-specific criminal law provision in Western Europe.
REPUBLIC OF POLAND
In march 2020, Poland increased the penalty sentence for exposure to HIV from a maximum of 3 years to a maximum of 8 years. Criminal Code Art. 161. Exposure to infection enacted in 2020 is an HIV-specific law.
REPUBLIC OF BELARUS
Belarus exempted people from criminal responsibility if they told their partner they were HIV positive and the partner gave their consent to any actions that may have caused HIV transmission. However, Article 157 of the criminal code, “Infection with human immunodeficiency virus” is an HIV-specific criminal law that is still in active status.
CRIMINALIZATION OF AIDS IN INDIA
Although India has no specific law for criminalization of HIV, the IPC has provisions that can be used for the prosecution of diseases that are used to address the same.
Section 269 of the IPC- Negligent act likely to spread infection of disease dangerous to life
Mentions about any careless act that puts human life at peril by spreading an illness or disease. Anyone who knowingly or recklessly commits any conduct that is likely to transmit the infection of any illness that poses a threat to human life may be punished with either general or specific imprisonment for a time that may not exceed six months, or with a fine, or with both.
Similarly, section 270 of the IPC- Malignant act likely to spread infection of disease dangerous to life
Anyone who intentionally commits any act that is likely to transmit the infection of any illness that is life-threatening may be punished with either type of imprisonment for a time that may not exceed two years, with a fine, or with both.
Other than that, we can also criminalize by prosecuting using general laws. Such as section 319-Hurt, Section 323- Voluntarily causing hurt, Section 406- Criminal Breach of trust, etc.
IMPACT OF CRIMINALIZATION OF AIDS
With the intent of preventing the spread of HIV, it is criminalized either through direct HIV-related law or it is prosecuted using general laws. But it is creating a stigma among people. The person is hesitant to reveal it to the other person for fear of being criminalized. Criminalizing a medical issue over which the person has no control, not only further stigmatizes society but also provides a pathway for people to discriminate against a person with HIV. This author does not support intentional exposure to HIV or concealing the HIV status but does not agree with such a penalty. It's critical to realize that a person's HIV status does not automatically qualify him as a criminal or render the behaviour in question unlawful. These rules were initially put in place as a result of the disease's lack of treatment and widespread ignorance. However, several advocacy organizations, communities, and human rights advocates have helped to advance HIV awareness in significant ways. HIV-positive persons must be empowered when they are accepted into the broader society and are not supposed to be treated differently. This is done by respecting their integrity and dignity.
Although in India, there has been introduction of Acts, Bills and, policies that protect the integrity and helps avoid discrimination of the HIV positive patient such as; The HIV & AIDS (P & C) Act, 2017, the HIV/AIDS Bill, 2007, the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill, 2010, National Policy on HIV/AIDS and the World of Work Policy.
LAWS PUT IN PLACE TO PROTECT THE RIGHTS OF PEOPLE AFFECTED WITH HIV-AIDS
This paper has limited its scope to Australia, Europe, and South Korea.
Australia
Australia has a variety of laws in place to safeguard the rights of those living with HIV/AIDS. Numerous topics are covered by these regulations, such as work, housing, healthcare, and education.
The Disability Discrimination Act of 1992 is among the most significant statutes. Discrimination against individuals with disabilities, including HIV/AIDS, is prohibited under this law. Therefore, there can be no prejudice against those who have HIV/AIDS in the workplace, housing market, educational system, or elsewhere.
The Human Rights Commission Act of 1986 is another significant legal document. The Australian Human Rights Commission, an independent organization tasked with defending and advancing human rights in Australia, is created by this legislation. The Commission has the authority to investigate accusations of bias against persons with HIV/AIDS.
Europe
In Europe, there are several laws in place to safeguard the rights of those living with HIV/AIDS.
The European Convention on Human Rights (ECHR) is among the most significant pieces of legislation. The European Convention on Human Rights (ECHR) is a convention that defends peoples' basic liberties and rights throughout Europe. All 47 of the Council of Europe's member nations have approved it.
Discrimination is prohibited under the ECHR on a number of grounds, including disability. As a result, there can be no discrimination against those who have HIV/AIDS in the workplace, housing market, educational system, or elsewhere.
There are other European Union (EU) legislation that safeguard individuals with HIV-AIDS' rights in addition to the ECHR. The Employment Equality Directive, for instance, outlaws discrimination in the workplace based on a number of factors, including disability.
South Korea
Korea has a variety of legislation in place to safeguard the rights of those living with HIV/AIDS.
The AIDS Prevention and Control Act is one of the most significant legislation. This law forbids discrimination against those who have HIV/AIDS in the workplace, in housing, in the classroom, and in other settings. Additionally, it mandates that all residents get free HIV testing and treatment from the government.
Disability Discrimination Act is another crucial piece of legislation. Discrimination against individuals with disabilities, including HIV/AIDS, is prohibited under this law. As a result, there can be no discrimination against those who have HIV/AIDS in the workplace, housing market, educational system, or elsewhere.
There are other state and provincial legislation that safeguard the rights of persons with HIV/AIDS in addition to these federal regulations. For instance, discrimination against those with HIV/AIDS is prohibited under the Seoul Metropolitan Government Ordinance on the Protection of the Rights of People with Disabilities and People Affected by HIV/AIDS.
CASE LAW
G VS. NEW INDIA ASSURANCE
FACTS- G, the petitioner, was the spouse of a worker who passed away while he was working at the respondent’s company, New India Assurance Company. Based on compassion, the petitioner applied for a job at the respondent company but was turned down. The Petitioner's doctor had notified the Respondent Company that she was unsuitable to work because she had tested positive for HIV. The Bombay High Court had already ordered the Respondent Company to hire her and granted them the right to get a second opinion. A medical committee assembled for this purpose advised hiring the Petitioner since her immunity remained unharmed. Under Article 226 of the Constitution, a petition was filed in the Bombay High Court asking the court to issue a directive to the Respondent Company not to refuse the Petitioner employment solely because of her HIV condition.
JUDGMENT- According to the Bombay High Court, an otherwise healthy person cannot be fired just because they test positive for HIV. The Court further ruled that a person's HIV status cannot be used as a reason to deny them employment because doing so would be discriminatory and go against the principles outlined in Articles 14 of the Constitution (which guarantees equality), Article 16 (which prohibits discrimination in public employment), and Article 21 (which guarantees the right to life).
GATAN DUGAS' CASE, often known as "Patient Zero" in the early years of the HIV/AIDS pandemic in the United States, is one of the most well-known and frequently debated examples regarding the criminalization of AIDS.
Case Summary
Gatan Dugas, a Canadian flight attendant, rose to fame in the early 1980s after being recognized as one of the first cases of AIDS to be officially reported in North America. In "And the Band Played On," a book by Randy Shilts that detailed the early years of the AIDS pandemic, Dugas was demonized. According to the book, Dugas was a promiscuous person who intentionally infected multiple sexual partners. In the early epidemiological examinations, he was even given the name "Patient O" (the letter "O," not zero) to identify him as the cause of the illness cluster. The depiction of Gatan Dugas as a purposeful and careless spreader of HIV/AIDS sparked controversy and harsh criticism. It soon became clear that Dugas was neither the cause of the epidemic's start nor its spread. The phrase "Patient Zero" was an incorrect interpretation of the epidemiological notation, which was meant to denote Dugas as a "patient outside California" as opposed to a source of the virus. In 1984, Dugas passed away from problems connected to AIDS.
Legacy and influence: Gatan Dugas' inaccurate portrayal had a big influence on how people thought about HIV/AIDS, which led to stigmatization and prejudice against those who had the infection. It emphasized the value of truthful information, lowering stigma, and keeping people from being criminalized because of their HIV status.
Despite not being a court case in the conventional sense, the Gatan Dugas case nonetheless had a significant impact on public debate and understanding of the HIV/AIDS epidemic. It emphasizes the damage that inaccurate information and sensationalism about HIV/AIDS can do as well as the significance of thoughtful and caring responses to the epidemic.
POSSIBLE FUTURE DEVELOPMENT ON THE CRIMINALIZATION OF HIV-AIDS
There are several factors that decide the future development of HIV-AIDS. Such as;
Development in medicine
Currently, the conventional HIV treatment is antiretroviral therapy (ART). In order to prevent the virus from multiplying and spreading throughout the body, a combination of HIV medications is used. HIV cannot be cured, but ART can keep the virus under control and enable HIV-positive individuals to lead long, healthy lives. No matter their age, state of health, or CD4 level, ART is advised for everyone with HIV. To stop the HIV virus from weakening the immune system and causing AIDS, it's critical to begin ART as soon as possible following HIV diagnosis. HIV suppression and transmission are effectively stopped by ART. A person with HIV can achieve undetectable viral loads by following the instructions for taking ART.
However, there is no definite cure for HIV-AIDS. If there is an medicinal development that can help in curing HIV-AIDS the entire scenario on criminalisation of HIV will no longer be an issue. As, the main reason to criminalize HIV is to prevent the spread of the disease as it is an uncurable disease.
Change in public attitude
Many people once thought that HIV might be spread via inadvertent contact, such as touching or exchanging utensils. It is now widely accepted that just a few biological fluids, including blood, semen, vaginal secretions, and breast milk, may transmit HIV.
People with HIV used to be frequently viewed as immoral or careless. HIV is now recognized as a medical illness that may affect anyone.
People with HIV used to frequently be refused access to employment, housing, and other services. Laws are in place now to shield those who with HIV from prejudice.
RECOMMENDATIONS
The author believes that only in situations in which persons intentionally or deliberately transmit HIV with the aim to cause harm to others is there a case for criminalizing HIV transmission. Existing criminal rules may and should be applied in these unusual circumstances rather than adopting new laws that are particular to HIV. Although the criminalization in India is fair, it is lacking in a lot of countries worldwide. Without addressing the root of the problem, criminalizing AIDS has no effect. Too liberally worded and enforced, laws criminalising HIV exposure and transmission end up punishing behaviour that is not to fault.
Criminal penalties are not the answer to stopping the spread of HIV; instead, governments should invest more in programmes that have been shown to effectively curb HIV transmission while also safeguarding the rights of persons living with the virus and those who are HIV-negative.
CONCLUSION
Although the county's principal goal is the public good. Empirical research on the effects of these legislation indicates that neither they nor any other favorable public health effects are shown, such as a decline in HIV infections. Significant worries about the application of these laws to penalize conduct with little to no risk of HIV transmission, the possibility of biased enforcement, and potentially detrimental effects on public health practices and HIV prevention efforts still exist. A country like India does not directly criminalize AIDS, unlike other countries which have a very serious penalty for transmission of AIDS. For example, in Tanzania, if you intentionally spread the infection to another person, you face a maximum sentence of life in jail.
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