Criminalise spread of HIV/AIDS

Should it be a crime to transmit the AIDS virus? Medical Research Foundation director, Prof Courtenay Bartholomew, thinks so, in certain situations. He yesterday urged the Law Reform Commission to criminalise situations where persons knowingly infect others with HIV/AIDS. Speaking at the launch of the HIV/AIDS health sector plan at Hilton Trinidad, Bartholomew  said persons who knew they had the virus were continuing to have unprotected sex, and in some instances, the affected partners have died. He said as a result, “the Law Reform Commission must criminalise HIV/AIDS in certain situations.” In an immediate reaction, Health Minister John Rahael said he would discuss the matter with the Attorney General. Reports are that in several countries, persons have already been jailed for transmitting the HIV virus to other persons. In the UK in 2004, Mohammed Dica was jailed for eight years.

In 2001, Stephen Kelly was convicted under Scottish common law of culpable and reckless behaviour in having unprotected sex when knowing he was infected with HIV. In 1997, A Cyprus court jailed Paul Georgiou for 15 months for having sex with a British woman, Janette Pink, while he knew he was HIV positive. In 1995, a New Zealand court of appeal upheld the conviction of a man who had injected two women with HIV. In the Dica case, the British Court of Appeal sentenced Mohammed Dica to eight years for two counts  of inflicting grievous bodily harm, applying the British Offences Against the Person Act 1861, Section 20. The court ruled that while knowing he was HIV positive, Dica had unprotected sexual intercourse with two women, thereby infecting them with the HIV virus. Referring to “R v Dica” (2004), Bartholomew told Newsday that in recent times a Kenyan living in the UK was sentenced to imprisonment for the offence. The victim was still alive and was being treated for the virus. In “R v Dica” 2004 the court had ruled:

1. Where a person who knows he has a  serious sexual disease, unintentionally infects another as a result of consensual sexual activity, he is  guilty of unlawfully inflicting grievous bodily harm under the Offences against the Person Act 1861. But if the victim knew of the other person’s infection, she may be said to have consented to the risk.

2. But the court also ruled that in the case  of intentional spreading of serious disease, the consent of the victim will provide no defence to the offender.

In an immediate reaction to Prof Bartholomew’s call, Health Minister John Rahael said, “It can be considered a criminal act if someone has the disease and knowingly passes it on.” He told reporters, “I will most definitely raise the matter with the Attorney General to see if it is required, and if a special majority is needed for it to be passed.” Bartholomew wondered what it was about sex that made people want to die for it, saying “People are knowingly having intercourse with HIV positive persons.”

Bartholomew said the incubation period for the virus was “quite long” and “patients being treated now for the disease could have been infected as long as ten years ago. The eye of the hurricane of AIDS is yet to hit us,” he warned. Prof Bartholomew, who first found the virus in TT in 1983, said while money was a problem years ago, the challenges now facing us included bureaucracy and finding dedicated staff for HIV/AIDS programmes. Bartholomew also revealed that some persons with no post-graduate training were specialising in the treatment of the virus, and there have been cases of mis-diagnosis, where persons who were actually HIV negative were being treated for the virus.