The Society Against Sexual Orientation Discrimination says it opposes the criminalization of HIV transmission and notes a number of reasons why, in its view, such a law would reverse the progress being made in Guyana to combat the HIV/AIDS epidemic.
According to SASOD in a press release, criminalization of HIV transmission, which is under consideration by the Guyana Parliament, runs counter to the official UNAIDS position and is inconsistent with international guidance on human rights.
The release noted that 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.
SASOD pointed out that several countries that have such laws, eg 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, however, 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 sanction, SASOD noted.
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.
Moreover, SASOD maintained that criminalization further victimizes women.
SASOD contended that while it shares the desire of the Member of Parliament who proposed the legislation, Everall Franklin, to better protect women from dishonest and malicious sexual partners, the fact is that criminalization does not protect women – it increases the likelihood of them being victimized.
The reason for this, SASOD said, is that women access health care services more often than men, so in many places women 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, SASOD added, these laws can be described as harmful instead of helpful to women.
According to SASOD, 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 and this occurs where laws criminalizing HIV transmission are drafted broadly enough to include transmission to a child during pregnancy or breastfeeding.
SASOD declared further that 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 but legislation such as the proposed one continues to spread fear and misinformation about HIV.
There are other infections that can be transmitted via unprotected sex, some of which are also lifelong conditions, such as herpes, but they don’t get the same level of attention. In addition, 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.
SASOD noted that 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.
SASOD maintained too that criminalization undermines public health by making it 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 behaviours.
Confidentiality between people and their healthcare provider is extremely important, especially in cases of HIV+ individuals who require long-term treatment. On that basis, SASOD contended that anything that forces doctors and healthcare providers to reveal a patient’s private health information or even testify about it has a negative impact on patient trust of the healthcare system and willingness to remain engaged in HIV care.
And such a situation would have a negative long-term impact on society as a whole.
SASOD pointed out also that legislation is already in place to deal with cases of non-consensual sex, citing the Sexual Offences Act. In cases of such offences, the accused is compelled to obtain an HIV test, and the results are shared with the victim, and taken into account when determining sentence.
In the meantime, SASOD urged that a better use of time and resources could be secured by strengthening this existing legislation, educating citizens, law enforcement and judicial officers about their rights and responsibilities under the Sexual Offence law while putting policies in place that make it work more effectively on the ground.
SASOD concluded that this is by far a better approach than “putting yet another misguided, ill-informed, and unenforceable law on the books.”
Instead, “we need to focus on proven prevention strategies such as testing and counselling, education and reducing stigma and discrimination, and protecting people’s human rights and dignity,” SASOD added.