Guyana gets it right, criminalising HIV won’t work! – UNAIDS
Whatever else Guyana gets wrong, our position in the fight against HIV/AIDS is not one of them.
Last Thursday, Minister of Health, Dr. Leslie Ramsammy laid before the National Assembly a report on the deliberations of the Special Committee tasked with facilitating public discussion on the Criminal Responsibility of Persons living with HIV.
In his remarks, the Minister said “We all agreed that the willful transmission of HIV is unacceptable and is criminal. But we believe that there are general criminal laws that are adequate to address the willful transmission of HIV. While we accepted that the willful transmission of HIV is a problem, we do not believe that the problem can be resolved by the criminalization of HIV transmission.”
He went on to say, “The Special Select Committee after deliberations and after hearing the views of individuals and organizations concluded that criminalization of HIV transmission has not been proven to prevent the spread of HIV; it merely encourages individuals not to get tested and increases the stigma and discrimination against those who are positive.
This in turn can lead to increased spread of HIV from those who do not know their status. The Committee and those citizens and organizations that came forward to make presentations to the Special Select Committee agreed that stigma and discrimination have proven to be the most powerful drivers of the HIV epidemic.”
The issue of criminalization of the transmission of HIV/AIDS has not just troubled Guyanese minds either. Recently, world leading scientists and medical practitioners joined legal experts and civil society representatives to discuss the scientific, medical, legal and human rights aspects of the criminalization of HIV non-disclosure, exposure and transmission.
The meeting which was organized by UNAIDS, took place in Geneva from 31 August to 2 September. Participants at the conference reviewed key scientific, medical, public health and legal principles that should inform the application of the criminal law to HIV. They also discussed recent developments in a number of countries where the criminalization of HIV is being reconsidered.
Minister Ramsammy noted that over the past two years, an increasing number of countries, all over the world have been questioning or re-considering their laws and practices relating to the criminalization of HIV transmission and exposure: On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This text is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute several individuals.
He went on to point out that in 2010, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalizes the willful or negligent HIV infection. In the United States, the National AIDS Strategy adopted in July 2010 raised concerns about HIV-specific laws that criminalize HIV transmission or exposure.
Law makers in Switzerland are currently re-considering a draft provision relating to the criminalization of HIV transmission. In the United Kingdom, the Crown Prosecution Services (CPS) issued legal guidance on “Intentional or reckless sexual transmission of infection” which sets out how prosecutors should handle allegations of HIV transmission.
At least three African countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV. In November 2008, the Southern African Development Community (SADC) Parliamentary Forum, an organization that brings together parliamentarians from all SADC Members States adopted a Model Law on HIV that did not recommend the criminalization of HIV transmission.
Ramsammy said, “These positive developments indicate that parliamentarians, prosecutors, judges, health experts, people living with HIV and other key stakeholders across the world are increasingly aware of, and concerned about, the negative public health and human rights impact of the overly broad criminalization of HIV transmission and exposure.”
Guyana’s actions were apparently being keenly watched by the International Committee. On the very same evening that Dr. Ramsammy laid the Committee’s report, the Joint United Nations team on AIDS in Guyana issued a statement.
Headlined, “Guyana gets it right criminalising HIV won’t work!” the statement congratulated the Parliamentary Committee “for its mature and measured decision.” It was pointed out that “Such a law would have deepened the climate of denial, secrecy and fear surrounding the virus in Guyana and in so doing reduce people’s willingness to learn their status and access treatment and support. Ironically, a measure meant to reduce the spread of HIV could have led to its increase.”
The statement went on to say that “This latest parliamentary decision clears the way for Guyana’s HIV response to continue proceeding in a rational and productive direction.”
The Minister in his speech pointed out that Criminal law should only be used in certain kinds of cases and only as a last resort, after public health laws and policies have failed to achieve the desired goals. If the criminal law is used, it should not be HIV specific and should not be applied to acts that pose no substantial risk of transmission of HIV. Several other issues have to be addressed, as well, such as prior knowledge and consent, and whether or not there was deceit or coercion. Willfulness and intent also have to be proven. And if proven, the existing laws of Guyana are sufficient to take such cases to justice. Overall, the complexities of criminalizing HIV exposure and transmission far outweigh the benefits.
He went on to say that “the Government of Guyana must abide by international human rights conventions on equal and inalienable rights, including those related to health, education and social protection of all people, including people living with HIV. The Parliament of Guyana must prevent the establishment of HIV-specific criminal laws, laws directly mandating disclosure of HIV status, and other laws which are counterproductive to HIV prevention, treatment, care and support efforts, or which violate the human rights of people living with HIV and other vulnerable groups.”
He further asserts “General criminal laws should only apply to the intentional transmission of HIV, and Parliament must audit the application of general criminal law to ensure it is not used inappropriately in the context of HIV. The National Assembly of Guyana must redirect legislative reform, and law enforcement, towards addressing sexual and other forms of violence against women, and discrimination and other human rights violations against people living with HIV and people most at risk of exposure to HIV.
The Government of Guyana must expand its proven programs to achieve HIV prevention, including programs with people living with HIV, and support voluntary counseling and testing for couples, voluntary disclosure, and ethical partner notification. The adoption of overly broad legislation criminalizing HIV transmission or exposure will be a major set- back in the countries existing national HIV response, and would misrepresent – to national and international opinions – the excellent work that is currently being done in Guyana to address HIV.
As experts on HIV scientists and legal minds meet at the global level, and as countries revoke their earlier broad criminalization of HIV exposure and transmission, we cannot in Guyana go in the opposite direction, and act backwardly as a nation that is proud to be forward looking, progressive and basing its policies and practices on evidence.”
He also said that “additionally, criminalisation may create a false expectation that the law has eliminated any danger from engaging in unprotected sex. Not knowing a partner’s status or assuming that he or she does not have a disease are not sufficient reasons for neglecting to use protection; discussing each other’s status and getting tested are behaviours that will lead to a decline in HIV. Guyana needs to continue to combat stigma and its often resulting discrimination, so that people can make healthy, responsible and safe choices about their sexual and reproductive lives.”
The Committee after their deliberations made several recommendations on the future of the fight. Some of these are that the state only support the passage of laws that fall within the ambit of human rights regulations, as well as the passage of legislation to fight stigma and discrimination. The committee also called for the support of the National Assembly for the expansion of programmes to achieve HIV prevention, including programmes with people living with HIV, and also support voluntary counseling and testing for couples, voluntary disclosure, and ethical partner notification.
The Minister shared the position that the country has improved the efficacy of the criminal justice system in investigating and prosecuting sexual offences against women and children. He said, “We are supporting women’s equality and economic independence, including through concrete legislation, programs and services. The legal actions we do need are to strengthen and enforce laws against rape (inside and outside marriage) and to recognize and punish other forms of violence against women and children and these are the kinds of laws that should be what we put on the legislative agenda. We as a government have done just that with the recent enactment of the Sexual Offences Act.”
He closed by saying that “we have made some recommendations for the way forward. I would hope that these recommendations are followed up on by the 10th Parliament. We have much to be proud of. The results of the deliberations of the Special Select Committee and the recommendations coming out of this committee are reasons to make Guyana stand tall and proud.”