How will the law work?

The HIV Bill makes it a criminal offence for anyone who is HIV-positive to have "intimate contact" with another person without informing that person that they have the disease. The one known case involved a foreigner, Simona Fricker, who claimed to be HIV-positive and had unprotected sex with an unknown number of Tobagonian men. There was also one widespread rumour, never confirmed, of a maxi-taxi driver on the East-West corridor who had infected a number of young women before dying of the feared disease.

Now, from the purely jurisprudential viewpoint, this proposed law cannot be faulted. If a person knows that they are HIV-positive, and if they engage in unprotected sex with another person, then they are surely putting that person’s life in danger. It is akin to someone driving recklessly with a passenger in the car — there may or may not be an accident, but the driver can still be charged with reckless endangerment. In similar fashion, this law does not require that the second party contract HIV in order to charge the person who already has HIV and knows it.

Just the fact of intimate — which, in the Bill’s rather odd wording, means the exchange of tissues,

blood and organs — is enough for a charge to be laid.

But laws cannot merely be theoretical — they must be practical as well. And this is obviously going to be a difficult law to enforce. In the first place, if a charge is brought against another person, the first thing that will have to be established is that the accused person is, in fact, HIV-positive. This means that the courts will have to order that a test be done - and, as far as we are aware, the State has no power to coerce anyone into taking such a test. Yet, even if the law is amended to make this possible, the prosecution would still have to prove that the accused person knew that he or she was HIV-positive. The only possible evidence that could be presented in such a scenario is a valid test from a laboratory which was actually in the possession of the accused before the intimate contact happened. Given the performance of police and courts in far less complex matters, we do not hold out much hope that this law will net many, or any, persons.

The argument is sometimes offered, however, that just the existence of a law is useful for showing societal disapproval of a particular act. While this may be so, the existence of laws which are not — or cannot be — enforced may lower respect for the law in general. But this particular law may have a more negative effect, in that it may persuade persons who have high-risk lifestyles — drug users, prostitutes, the promiscuous — to avoid taking an HIV-test. After all, if an HIV-person doesn’t know they have HIV, they can’t be convicted under this law. And, given the HIV-rates in this country, the Government should really be concentrating on educating people about prevention and the need to be tested for HIV, rather than trying to criminalise persons who have it.