New law for control of HIV AIDS 1

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E-Pao! Education :: New Law for control and prevention of HIV/AIDS

Shall we introduce a new Law
For effective prevention and control of HIV/AIDS in Manipur?
- Part 1 -

Dr. Khomdon Singh Lisam *

At present three epidemics are sweeping right across the world - epidemic of HIV infection, epidemic of AIDS and epidemic of stigma and discrimination. HIV/ AIDS is associated with drug addiction, prostitution, homosexuality, which are all illegal activities.

It has a great impact on innocent housewives, spouses of IDUs (Injecting Drug Users), women and children. No sector of economy can escape the demographic, medical, social , economic and developmental consequences of AIDS.

Our 150 years of experience with the criminal laws have failed to eradicate prostitution or homosexuality or drug abuse in any part of the world. The functions of criminal law are four fold:-

1. Incapacitation: Incapacitation means imprisoning those convicted of crimes in order to prevent them from harming others. But in case of HIV/AIDS, it has the opposite effect.

There is mounting evidence that risky behaviors are very common in the prison environment although the prison authorities tend to deny this fact.

Homosexuality and continued drug use is still very common in the prison set-up. Risky activities within prisons may contribute to further HIV transmission both inside and outside prisons.

2. Rehabilitation: The objective is to enable the individuals to gradually change their risk behaviour so as to reduce the risk of HIV transmission.

But criminal prosecutions and penalties does not serve any rehabilitation function for majority of offenders in case of HIV/AIDS. Human behaviours such as sexual activity or drug taking behavior are complex and very difficult to change through blunt tools such as criminal punishments.

3. Retribution: This is punishment for punishment's sake after an offence is committed. Retribution has nothing to do with protecting public health by preventing HIV transmission or reducing risky behaviour.

4. Deterrence: The most important goal of the criminal law in the context of a disease epidemic is deterrence. It is believed that the threat of criminal sanction will prevent people from taking unreasonable risks that could transmit the HIV virus.

But lessons from history tell us that criminalizing sexual practices outside marriage or needle sharing practices do not have any significant general deterrent effect in preventing HIV transmission.

Guiding Principles:

Therefore the guiding principles for use of laws must be based on the following:-

Best available scientific evidence should be the basis for determining the type of legal response to HIV/AIDS epidemic.
Prevention of HIV must be the primary objective of the legal response. Criminal law policy must not sacrifice HIV prevention in pursuit of other goals.
Legal policy must respect privacy, confidentiality, human dignity and human rights of people with HIV/AIDS.
The principle of non-discrimination and equality and principles of process of laws should be respected.
Infringements of human rights must be adequately justified.

Traditional legal response to an epidemic:

The traditional response to any epidemic is based upon the ethic that the rights of the infected or at risk individual must be sacrificed to the rights of the wider community.

People used to say -"A virus has no rights".

However, the lessons from two decades of HIV/AIDS is that the interest of the wider community depends upon respect for the rights of the infected and affected individual.

There is no society in which sex workers, injecting drug users, male homosexuals are not marginalized, stigmatized and generally disempowered.

Empowerment means giving them the same ability to control life, social and economic conditions as is possessed by the dominant groups in society. The negative image of the drug users is that their only motivation is the source of their next "fix".

But my ten years experience with drug abusers has demonstrated that they are also resourceful and smart people who can organize outreach programmes, which have demonstrated their ability to take control of their life and caring for their peers as any other group in the society. HIV is not an easy virus to contract and is not spread casually. Indeed transmission of the virus is very much a personal act.

We must therefore examine whether the existing legal mechanisms are facilitating or hindering smooth and proper implementation of the AIDS Control programme.

What recommendations can be drawn up to make the law more responsive and conducive in the effective implementation of the AIDS Control programme?

How can we use law to overcome the existing discrimination of people living with HIV/AIDS? How can we use law to empower women to protect themselves from HIV/AIDS?

Can legislation assist in strategies for effective implementation of the HIV/AIDS Control programme?

The law must promote an environment that enables, encourages and sustains voluntary behavioral change and care and support of those affected.

To be continued ..

(Comments and suggestions to this article may be sent to: [email protected])

* Dr. Khomdon Singh Lisam has the following credentials :
MBBS, M.H.A (AIIMS), HSMC (IHF/London), M.A (HMPP/UK), CCEA (Chula/Bangkok), PDCE (UCLA/USA)
He is also the Chairman and Executive Director AIDS Consortium. He can be contacted at aidsconsortiumindia(at)yahoo(dot)co(dot)in . This article was webcasted on 11th January 2008.

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