Criminalisation won't prevent HIV infection

By Jaevion Nelson

Many of us seem to think that only people living with HIV (PLHIV) have a responsibility in a sexual relationship where protection from HIV transmission is concerned. Some learned persons are ridiculous enough to posit that the rates of HIV infection could be reduced if there were criminal laws to prosecute persons for 'wilfully' transmitting and exposing someone to HIV. These two erroneous arguments are what ought to be criminalised.

A book titled Verdict on a Virus argues 'Criminalisation' refers to the application of criminal law to prosecute HIV transmission or exposure to another person with the ambition that it can be efficacious in promoting public-health outcomes and improve HIV prevention outcomes. HIV criminalisation laws exist in Canada, Australia, and parts of the United States, sub-Saharan Africa and Asia.

I note with great concern Jamaicans are again suggesting such a law is needed because the law is virtually silent on the matter, and the definition of 'communicable disease' in the Public Health Act is woefully insufficient. The national HIV programme and its partners, including civil society organisations such as the Jamaica AIDS Support for Life, J-FLAG, Jamaica Youth Advocacy Network and Jamaica Network of Seropositives have been doing excellent work over the years. Criminalisation of HIV transmission is by no means what we need. More money? Yes. More actors? Yes.

As Matthew Weait (2011) in 'The Criminalisation of HIV Exposure and Transmission: A Global Review' argues, the assumption and/or justification people use to advocate for criminalisation is that incarceration will incapacitate PLHIV and protect the community, and it can discourage them from engaging in risky behaviours. However, we must be mindful that while this may possibly be an effective 'blunt instrument in preventing new HIV infections, experts have found that 'it may also deter people from accessing voluntary counselling and testing services, discourage them from knowing their HIV status, and impede people from seeking appropriate care and support.'

The Ministry of Health (2013) notes "The HIV epidemic is closely tied to poverty, developmental and socio-cultural issues including the slow rate of economic growth, high levels of unemployment, early sexual debut, culture of multiple partnerships, and informal drug and commercial sex sectors." Currently, an estimated 32,000 people (1.7% of the population) are living with HIV in Jamaica. Half of these persons do not know that they are living with HIV. In 2012, according to the Country Progress Report on AIDS (submitted to UNAIDS on March 30, 2013) a little less than 60 per cent of Jamaicans have done HIV tests in the last 12 months.

I advise persons that, before they hasten to yap and expose their ignorance, they consult some experts and relevant publications to relieve themselves of the senselessness that causes them such discomfort. Ask yourself these two pertinent questions: Have we employed the necessary evidence and rights-based public-health strategies to reduce HIV infections? Is there any evidence to suggest that this approach, criminalising transmission, can and has had a positive impact on HIV prevention?

Educate people about risks

What should be encouraged are programmes that educate people about the risks of transmission and how to prevent these risks. People should be directed to appropriate services in their communities and parishes, to protect themselves and access treatment and information.

Reducing the risks of HIV transmission is a shared responsibility, not solely the PLHIV's, whether or not they know their status. I am assuming that those who advocate such fallacious reasoning are actually concerned about the rates of infection. People who are living with HIV can enjoy a fun, happy and healthy sexual life. They don't go around trying to 'infect' people. While there might be some who are aware of their status and deliberately expose one or more persons to HIV transmission, this is far from prevalent. They do not have an obligation to disclose their HIV status to anyone. You have an obligation to yourself to have safe sex, whether you think your sexual partner is HIV-positive or not. By now, all of us - well most of us - should know you can't tell by looking.

Jaevion Nelson is a youth development, HIV and human rights advocate. Email feedback to columns@gleanerjm.com and jaevion@gmail.com.