CRIMINAL TRANSMISSION OF HIV

Criminal Transmission of HIV



Criminal Transmission of HIV

Facts of the Case

A number of people living with HIV / AIDS have been for- criminal proceedings on the grounds that they had committed acts involving the transmission or risk of HIV transmission. Criminal transmission of HIV is the intentional or reckless infection of another person with HIV. In many states, people with HIV may face legal action if they have unprotected sex with a partner without disclosing their HIV status, even if the couple does not contract HIV, if the partner is infected, the person with HIV can be charged with criminal transmission (Chalmers, 2004).

The Issues or Questions before the Court

In several countries, the act of passing HIV on to someone or it by exposing unprotected sex is a criminal offense. Legislators and courts have ruled that criminal law requires that people living with HIV disclose their HIV status before engaging in activities that carry a risk of HIV transmission. As a result, people living with HIV have been convicted of serious criminal offenses such as aggravated sexual assault or assault with grievous bodily harm, and sentenced to substantial terms of imprisonment for not disclosed their HIV status.

There are no data based that is proof of the effectiveness of the criminal law to prevent transmission of HIV. In fact, the criminalization of HIV risk of pushing people to avoid public health initiatives whose effectiveness is demonstrated, as HIV testing, counseling, support and partner notification. Public attention directed criminal prosecutions may create a false sense of security, making people believe that the law can protect against HIV. This may also interfere with the message to the effect that person is responsible for their own sexual health, and cause human rights violations by increasing stigma and discrimination against people living with HIV / AIDS (Warburton, 2004).

We argue the need for defensible answers in public policy, as to conduct which involves a risk of HIV transmission. The best data, prevention of HIV transmission and respect for human rights must be the pillars of policy. A graduated response is necessary, in situations where a person does not disclose his HIV status when it should start with interventions under the laws on public health rather than criminal law. After evaluating such issue some possible questions to be put before the court could be:

Whether the defendant knew of the presence of his HIV infection and ways of its transmission at the time of the alleged against him of a crime;

Whether the defendant was the actual source of infection of the victim;

Whether the defendant concealed the presence of a HIV infection from the victim.

Court's Decision and Rationale

In the first decision, by a court of appeal in the criminal law and HIV / AIDS, the Court of Appeal has rejected an appeal and concluded that the offense of assault is not applicable to cases of consensual sex that carry a risk of HIV transmission. It approved the reasons for the decision of a Court of Appeal to declare ...