Every now and then, the conversation around the criminalisation of HIV and STI transmission is brought up. It was recently raised in a sitting of the joint select committee reviewing the Sexual Offences Act and other related acts. It was raised by representatives of the Office of the Director of Public Prosecutions (ODPP) who, while not recommending the specific criminalisation of transmission of HIV and STIs, highlighted the case of George Flowers and the complexities that arose from it.
George Flowers, a man living with HIV, knowing himself to be living with HIV, had unprotected sexual intercourse with several women who subsequently contracted the virus from him. This occurred in Canada and he subsequently came to Jamaica. An extradition request by Canadian authorities was challenged on the basis that Jamaica did not have similar laws criminalising endangering the lives of a person through transmission of sexually transmitted infections.
The Supreme Court ruled that Jamaica did have similar laws based on persuasive case law (R v Dica; R v Konzani) from Britain, which identified the reckless or intentional transmission of HIV and other STIs as amounting to assault occasioning bodily harm, which is captured in the Offences Against the Person Act. The ODPP representatives questioned whether the state of the law needed to be codified into legislation which specifically criminalised HIV transmission.
While we understand the need to prevent the transmission of HIV and the importance of holding those who, by their wilful or reckless actions, put others at risk for harm accountable, the question is whether the specific criminalisation of HIV transmission is the route to do this. Specific transmission raises several issues that I will discuss below.
First, as with all criminal offences, the crime of wilful or reckless transmission has a mental element. In this case, a person ought to know they have HIV and knowingly have sexual intercourse with another person whom they have not told about their positive status.
The only way to know that one has HIV is by doing an HIV test. A valid defence is that a person did not know his/her HIV status. Laws that specifically criminalise HIV transmission, therefore, can have the unintended effect of dissuading persons from getting tested and, by extension, knowing and managing their HIV status.
Second, these laws shift the burden of protecting oneself from contracting HIV to the person who is living with HIV. Consistent with the Ministry of Health, we would like to emphasise that it is the responsibility of each consenting adult to protect himself/herself from contracting HIV by engaging in safe sex consistently. Rather than emphasising that point, these laws require persons living with HIV (PLHIV) to disclose their status in the face of societal stigma and discrimination.
Jamaica’s current state of the law is consistent with international human-rights standards that balance the right to life, liberty and security of the person on one hand and the right to privacy and freedom from discrimination on the other.
Wilful and reckless transmission of HIV is covered under general criminal laws related to assault and wounding, i.e., where a person actually infects another with HIV or any other STI, knowing one was so affected and intentionally or recklessly putting the other person at risk, one is criminally liable. This focuses on the fact of transmission, and not the fact of a PLHIV having sex with another person.
My organisation, the Jamaican Network of Seropositives (JN+), strongly feels that any attempt to codify the principles arising out of Dica and Konzani should be cognisant of current realities around HIV transmission and prevention.
Such legal provisions should not criminalise a PLHIV who is virally suppressed for having sex with someone who is HIV negative without sharing his/her status. The legal provisions should specifically relate to wilfully or recklessly having unprotected sex with another person, which leads to transmission. Persons should not be criminalised for condoms ripping and similar occurrences. The legal provisions should not criminalise the transmission of HIV and other sexually transmitted infections.
We reiterate that conversations regarding HIV transmission should be cognisant of the experiences of people living with HIV. They should be mindful of furthering the stigma and discrimination that PLHIV face by inadvertently painting them as vectors of the disease. Rather, they should be mindful of the relevant nuances as they seek to protect and promote the rights of all.
– Ricky Pascoe is president of the Jamaican Network of Seropositives. Email feedback to firstname.lastname@example.org and jnpluscommunications