Resh­ma Ra­goonath

Trinidad and To­ba­go could be on the brink of an HIV/Aids cri­sis if se­ri­ous steps are not tak­en im­me­di­ate­ly to ad­dress this wor­ry­ing sit­u­a­tion, in­clud­ing crim­i­nal­i­sa­tion of trans­mis­sion of the dis­ease.

Sta­tis­tics re­leased last week in­di­cate that dai­ly, an alarm­ing four peo­ple are in­fect­ed with dis­ease. This is in­dica­tive of a se­ri­ous so­ci­etal prob­lem where, de­spite mass ed­u­ca­tion cam­paigns, trans­mis­sion of HIV con­tin­ues to be on the rise. The in­creas­ing rate of new in­fec­tions rais­es the ques­tion of whether some in­fect­ed pa­tients are de­lib­er­ate­ly pass­ing on the dis­ease to oth­ers. If that is the case, what can be done to stop this dis­turb­ing prac­tice?

At present in T&T, if an HIV-pos­i­tive per­son in­ten­tion­al­ly trans­mits the dis­ease to an un­sus­pect­ing part­ner, there is no le­gal re­course for that vic­tim. In the Unit­ed States and Eu­rope, laws have been en­act­ed to pun­ish peo­ple who com­mit acts of de­lib­er­ate HIV/AIDS trans­mis­sion. HIV-pos­i­tive peo­ple who fail to warn their part­ners of their con­di­tion have been charged in the US. Sim­i­lar­ly, an in­fect­ed per­son who en­gages in un­pro­tect­ed sex faces of­fences, in­clud­ing crim­i­nal ex­po­sure to HIV, reck­less ex­po­sure to HIV and first de­gree reck­less en­dan­ger­ment. The need for such laws lo­cal­ly were brought to the fore re­cent­ly when San Fer­nan­do High Court Judge An­tho­ny Car­mona said the time had come for laws to pun­ish peo­ple who "reck­less­ly" and "de­lib­er­ate­ly" in­fect oth­ers with HIV.

He made the state­ment dur­ing a sen­tenc­ing hear­ing for Point Fortin res­i­dent An­tho­ny Atwell, 44, who was con­vict­ed of un­law­ful­ly killing his wife Gail Au­guste on Au­gust 27, 2003. Atwell, who was ini­tial­ly charged with his wife's mur­der, was found guilty on the less­er charge of manslaugh­ter af­ter a ju­ry found that he was pro­voked in­to killing Au­guste. He has since been sen­tenced to 25 years in jail. In his de­fence, Atwell, led by at­tor­ney Wilston Camp­bell, said he killed Au­guste af­ter he found out she had in­fect­ed him with HIV. He said he was pro­voked in­to killing her since the re­al­i­ty of the dis­ease was a death sen­tence for him so he took her life. She had al­so left him for an­oth­er man. Atwell, how­ev­er, ad­mit­ted that he had sex with two oth­er women af­ter he was in­fect­ed, and while he was still com­mit­ted to Au­guste.

Car­mona said T&T had lagged be­hind many coun­tries in tack­ling the dis­ease. "Giv­en these alarm­ing sta­tis­tics, the im­por­tant thing is whether we have leg­is­la­tion to deal specif­i­cal­ly with HIV in­fec­tion," he said. "Is it that most of the cas­es are spread by per­sons who through their reck­less lifestyles, de­lib­er­ate­ly in­fect oth­er per­sons?" Car­mona added that it was iron­ic that when T&T cel­e­brat­ed AIDS Week ear­li­er this month, it was re­port­ed that 25,000 peo­ple here are liv­ing with dis­ease, "but (we) have no law to deal with such per­sons who in­ten­tion­al­ly trans­mit the dis­ease by not in­form­ing their part­ner that they are in­fect­ed with the virus." Diego Mar­tin Cen­tral MP and for­mer Min­is­ter of So­cial De­vel­op­ment Dr Amery Browne joined with Car­mona in ex­press­ing con­cern over the lack of leg­isla­tive safe­guards to pro­tect cit­i­zens from the dis­ease.

In fact, Browne con­demned the Gov­ern­ment for its dis­man­tling of the Na­tion­al Aids Co-or­di­nat­ing Com­mit­tee (NACC), which he said threw the "Na­tion­al HIV Re­sponse in­to dis­ar­ray and chaos." "Up to this date, no leg­is­la­tion on HIV co-or­di­na­tion has been laid on the Or­der Pa­per in Par­lia­ment, and it is clear that on the is­sue of HIV, this Gov­ern­ment has pushed our na­tion back to the 1990s when the Min­istry of Health strug­gled vir­tu­al­ly on its own to deal with the man­age­ment of what is now wide­ly ac­knowl­edged to be more of a so­ci­etal is­sue that a mere health is­sue," Browne con­tend­ed. How­ev­er, At­tor­ney Gen­er­al Anand Ram­lo­gan, who is­sued a state­ment on the mat­ter, said the Of­fences Against the Per­son (Amend­ment) Bill, which dealt with the in­ten­tion­al trans­mis­sion of HIV, was passed in the House of Rep­re­sen­ta­tives six years ago. It im­posed a sen­tence of life im­pris­on­ment on any­one who will­ful­ly spread HIV/AIDS re­sult­ing in the death of the per­son.

Ram­lo­gan said the bill was in­tro­duced in the Sen­ate, but was al­lowed to lapse un­der the Peo­ple's Na­tion­al Move­ment (PNM) regime and nev­er be­came law. He said the Law Re­form Com­mis­sion, to­geth­er with the Na­tion­al AIDS Co-or­di­nat­ing Com­mit­tee, will re­view the Bill. The Peo­ple's Part­ner­ship, in its elec­tion man­i­festo, vowed to cre­ate a statu­to­ry body to ad­dress the is­sue of AIDS. In March, Cab­i­net agreed to in­sti­tu­tion­alise the NACC as a statu­to­ry body. Leg­is­la­tion is be­ing draft­ed to give ef­fect to this de­ci­sion. Browne said: "The ac­tions of the cur­rent Gov­ern­ment on the is­sue of HIV co-or­di­na­tion can on­ly be re­gard­ed as reck­less, ir­re­spon­si­ble and lack­ing in in­tel­li­gence. "They have yet to ex­plain why they chose to dis­band the NACC pri­or to de­sign­ing any new sys­tem and pri­or to fi­nal­is­ing any new leg­is­la­tion," he added. Pres­i­dent of the South­ern As­sem­bly of Lawyers, Frank Seep­er­sad, agreed that there was need for leg­is­la­tion "be­cause some­one who is in­fect­ed with HIV can use his or her in­fec­tion as a bi­o­log­i­cal weapon to cause oth­er un­sus­pect­ing part­ners to be­come in­fect­ed."

He said: "Any such cal­cu­lat­ed and de­lib­er­ate act by a per­son is clear­ly crim­i­nal in na­ture as that in­di­vid­ual would have the mens rea (men­tal knowl­edge/in­ten­tion) as well as ac­tus rea (ac­tu­al ac­tion in­flict­ing harm) which are the two nec­es­sary in­gre­di­ents in es­tab­lish­ing crim­i­nal li­a­bil­i­ty." The ac­tions of such a per­son, Seep­er­sad added, "is tan­ta­mount to them play­ing Russ­ian roulette, since the risk of in­fect­ing an­oth­er per­son is very high and there­fore can­not be ac­cept­able in a civilised so­ci­ety.

"If, how­ev­er, an in­fect­ed per­son in­forms an­oth­er con­sent­ing adult of his or her con­di­tion and the oth­er per­son en­gages in a con­sen­su­al re­la­tion­ship, then no crim­i­nal li­a­bil­i­ty can be es­tab­lished," he added.

The at­tor­ney said cit­i­zens must ap­pre­ci­ate and un­der­stand that "many in our pop­u­la­tion are in­fect­ed with HIV and there is need to en­act leg­is­la­tion so as to pro­tect our cit­i­zens."

Is­lam­ic schol­ar, Dr Waffie Mo­hammed, shared Seep­er­sad's view.

"This is a se­ri­ous is­sue...We re­al­ly have to cam­paign against this thing in full force," he said. "You don't have to go out and have a time and get in­fect­ed, you could get it in­no­cent­ly. "It is a very se­ri­ous is­sue and we all should work to­geth­er to solve this prob­lem...One per­son can­not do it alone. "I agree that it should be made a crim­i­nal of­fence to de­lib­er­ate­ly in­fect, but what we have is pre­ven­tion which is bet­ter than the cure. "If we bat with­in our crease, the spread of HIV does not arise." Mak­ing a case for HIV/AIDS-re­lat­ed leg­is­la­tion in­volves many con­sid­er­a­tions, since it in­cludes is­sues of hu­man rights, med­ical con­fi­den­tial­ly and fear of stig­ma­ti­sion or dis­crim­i­na­tion. Richard El­liott, of the Cana­di­an HIV/AIDS Le­gal Net­work, Mon­tre­al, Cana­da, in his pol­i­cy pa­per pre­pared for UN­Aids in 2002-Crim­i­nal Law, Pub­lic Health and HIV Trans­mis­sion-is­sued a cau­tion to pol­i­cy-mak­ers con­sid­er­ing HIV/AIDS spe­cif­ic laws.

"If states are to in­voke the harsh­ness of crim­i­nal sanc­tions in re­sponse to con­duct that risks trans­mit­ting HIV, they must en­sure that those ac­cused are not be­ing pun­ished sim­ply for be­ing HIV-pos­i­tive, or be­cause of their sex­u­al ori­en­ta­tion, their work as pros­ti­tutes, their use of il­le­gal drugs, or oth­er dis­favoured sta­tus such as be­ing a pris­on­er (or ex-pris­on­er) or im­mi­grant," El­liot wrote. Dr Ri­car­do Mo­hammed, for­mer head of the San Fer­nan­do Gen­er­al Hos­pi­tal HIV/AIDS ward, said prov­ing cul­pa­bil­i­ty is one thing, but "HIV is such a dev­as­ta­tive dis­ease to give it to some­one with­out cure it should re­al­ly be a crim­i­nal act be­cause of the enor­mi­ty of the dis­ease." He said HIV/AIDS has been around for 30 years and yet the num­bers are not "di­min­ish­ing as much as we should see it. "Peo­ple are not ad­her­ing to the laws of pre­ven­tion and that may be be­cause it is a deep­er is­sue...This is about hu­man sex­u­al­i­ty and it is dif­fi­cult to con­trol," he said.

"The Gov­ern­ment has done every­thing pos­si­ble to lessen the spread of the dis­ease." Unit­ed Na­tions Sec­re­tary Gen­er­al Ban Ki Moon, speak­ing at the Gen­er­al As­sem­bly's High-Lev­el Meet­ing on HIV/AIDS, at Unit­ed Na­tions Head­quar­ters in New York last week, is­sued a call for ac­tion to lead­ers to work to­wards an AIDS-free world. To achieve this he out­lined five steps, the first of which is for "all part­ners to come to­geth­er in glob­al sol­i­dar­i­ty as nev­er be­fore. "That is the on­ly way to tru­ly pro­vide uni­ver­sal ac­cess to HIV pre­ven­tion, treat­ment and care by 2015," he said. The sec­ond step, he out­lined, was "to low­er costs and de­liv­er bet­ter pro­grammes. "Third, we must com­mit to ac­count­abil­i­ty...Fourth, we must en­sure that our HIV re­spons­es pro­mote the health, hu­man rights, se­cu­ri­ty and dig­ni­ty of women and girls," he said. Ban said the fifth step was to "trig­ger a pre­ven­tion rev­o­lu­tion, har­ness­ing the pow­er of youth and new com­mu­ni­ca­tions tech­nol­o­gy to reach the en­tire world. He said: "If we take these five steps, we can stop AIDS. We can end the fear. We can stop the suf­fer­ing and death it brings. We can get to an AIDS-free world."

What is aids?

AIDS stands for: Ac­quired Im­mune De­fi­cien­cy Syn­drome

AIDS is a med­ical con­di­tion. A per­son is di­ag­nosed with AIDS when their im­mune sys­tem is too weak to fight off in­fec­tions. Since AIDS was first iden­ti­fied in the ear­ly 1980s, an un­prece­dent­ed num­ber of peo­ple have been af­fect­ed by the glob­al AIDS epi­dem­ic. To­day, there are an es­ti­mat­ed 33.3 mil­lion peo­ple liv­ing with HIV and AIDS world­wide. (Source: Avert.org)

What is HIV?

HIV stands for: Hu­man Im­mun­od­e­fi­cien­cy Virus

HIV is a virus. Virus­es such as HIV can­not grow or re­pro­duce on their own, they need to in­fect the cells of a liv­ing or­gan­ism in or­der to repli­cate (make new copies of them­selves). The hu­man im­mune sys­tem usu­al­ly finds and kills virus­es fair­ly quick­ly, but HIV at­tacks the im­mune sys­tem it­self- the very thing that would nor­mal­ly get rid of a virus. An es­ti­mat­ed 33.3 mil­lion peo­ple around the world are liv­ing with HIV, in­clud­ing mil­lions who have de­vel­oped AIDS.