"What role can the law play?"
14 November 2008
During his recent trip to Beijing as a guest of UNAIDS, Justice Edwin Cameron of South Africa’s Supreme Court of Appeals used every opportunity to raise the question, “What role can the law play in China in response to HIV?”
As Justice Cameron explained at a lecture at Peking University Law School, from his perspective, the law serves two important functions. First, it is an embodiment of public morality. Second, the law constrains the exercise of government power. In both these capacities, the law can have a profound impact on the lives of people living with HIV.
For example, in South Africa, the 1995 Labor Relations Act prohibits pre-employment testing for HIV. Justice Cameron applauds the law because it guides social conduct to be consistent with the moral stance underlying the law. “There are very few legitimate reasons to deny someone work because of HIV status,” said Justice Cameron.
The most important Chinese law embodying public morality about HIV is State Council Decree 457 of 2006, which prohibits discrimination against people living with HIV. Although this law sets a vital standard for Chinese society, public awareness of the law is low. As former Minister of Health Wang Longde explained at a joint press conference with Justice Cameron, even medical professionals often don’t know that they are not permitted to discriminate against HIV positive individuals. Professor Wang called for an educational campaign for medical professionals.
While Decree 457 is a good law that faces some implementation challenges, other laws are less positive. At a round table discussion held at UNAIDS China offices during Justice Cameron’s visit, he described the disturbing trend in African countries of laws criminalizing HIV transmission. Some of these laws require HIV positive individuals to disclose their status prior to engaging in sexual contact, but without clarifying when a person must disclose, or what constitutes “sexual contact.”
In Justice Cameron’s analysis, while these laws are intended to protect people — a laudable motivation — they can have devastating public health consequences. First, the laws are not effective as a means of stopping transmission; no law can accomplish that. As Justice Cameron explained, most acts of transmission occur between individuals who do not know they are HIV positive.
Second, the laws increase stigma and discourage people, especially women, from getting tested. Under some of these laws, women can incur legal liability for exposing their unborn child to HIV, even if transmission doesn’t occur. Many women and men find remaining ignorant about their HIV status preferable to risking criminal prosecution. Ultimately, by discouraging people from getting tested and seeking treatment for HIV, these laws lead to more people dying needlessly.
Justice Cameron pointed out that, ironically, these laws are unnecessary. In the event that anyone deliberately transmits HIV to another person, existing laws of assault or murder would apply.
China doesn’t have any laws that specifically criminalize transmission of HIV. But one article of the Chinese law does criminalize the intentional transmission of a sexually-transmitted disease (STD) by sex workers, and another law criminalizes intentionally causing harm to another person. Some critics have pointed out that the STD law has caused some sex workers to stop getting health check-ups. Justice Cameron commented that, although China’s criminal laws appear to have some negative ramifications for public health, the laws were general, and were not targeted to HIV specifically.