HIV non-disclosure laws don’t work in fighting AIDSPublished on Wednesday, 27 November 2013 15:43
The former Australian High Court judge Michael Kirby, has questioned the application of criminal law to HIV non-disclosure and criticised the criminalisation of sex work in many Asia Pacific countries.
Mr Kirby says laws on non-disclosure are counter-productive, and detrimental to the lowering of HIV transmissions.
Sen Lam caught up with Michael Kirby in Bangkok.
Presenter: Sen Lam
Speaker: Michael Kirby, former Australian High Court judge and a commissioner of the UNAIDS Lancet Global Commission on the Future of Public Health
KIRBY: In Australia, as in many developed countries, we have laws specifically obliging people who are HIV positive to disclose their zero status to the person with whom they have sex. But in fact, the prosecutions for breach of such laws do tend to be taken in cases where the person who infects another is a foreigner, and in particular, if they’re a foreigner who looks different and appears to be outside the Australian community. An African-Australian or a person from Africa who affects a white Australian woman is more likely to be prosecuted than anyone else and that’s also so in New Zealand, where there have been a number of such cases.
LAM: But are there laws specifically about non-disclosure in Australia?
KIRBY: Yes, there are, there are laws that oblige people to disclose their zero-status. Of course, in the nature of the private character of sexual activity, they don’t tend to come to public notice and they don’t tend to be prosecuted. Many people who become infected don’t know they’re infected and getting people to take the test is often the first step in ensuring their future health. Getting them onto anti-retroviral treatment is a very important step and I think that’s one of the things to come out to come out of this Bangkok conference, that in Asia, the number of people who are infected is about 5 million throughout the region, and of them, only 1.25 million are on anti-retrovirals and that’s low by global standards. And it’s a very important message – we’ve got to get people, not be punishing people and bringing in the criminal law, which is a very inefficient way to deal with the issue of HIV, but getting people onto anti-retroviral drugs as quickly as possible.
LAM: So do you think these laws, these retribution laws, do you think they’re counterproductive to the cause of fighting HIV?
KIRBY: Well, they’re not a priority. I can understand that society takes a view that another person who infects a person with HIV is doing a very wrong thing, if they know they’re HIV status. But one of the problems with criminalising that step is that you then give a discouragement to people to find their HIV status.
The best defence against the law, which imposes a criminal sanction on infecting another is not to know your HIV status and yet the whole thrust of HIV strategy, in terms of containing the epidemic is to encourage people to take the test, to take it regularly, if they’re having many sexual activities and they should find their status, but if you criminalise it, well, it’s better not to know.
LAM: At the Lancet Commission session, you mentioned – and I’m paraphrasing here – that we have to recapture the human imagination of HIV AIDS or to put it back in the human consciousness of human beings. What did you mean by that?
KIRBY: There’s a lot of talk in HIV circles about getting to zero and I think that’s good and positive talk, because there’s no doubt that with the anti-retroviral drugs, you reduce the pool of the virus in a community and you thereby reduce the capacity of people, even if they’ve been themselves infected with HIV, to pass the virus on.
So we’ve had a very important and very beneficial developments of prevention from people getting onto treatment. But all the talk of zero has a bit of a tendency to take it out of people’s minds and to say oh well, that’s over now, we can turn to something else, we can turn to Malaria or we can turn to diabetes or some of the other problems in the world. I think in talking about getting to zero, you’ve got to put the emphasis on getting to, not on the zero, otherwise, especially in the age of modern media, media turns to some new flavour and HIV is by no means over and certainly in the Asia-Pacific region, as this conference in Bangkok has demonstrated.
LAM: But in terms of human needs, there are so many competing issues in this world, aren’t there – So how do we put that argument forward that HIV AIDS is just as important, if not the most important (health) issue?
KIRBY: Well, we put back on the agenda, because an awful lot of people are infected. Still very large numbers of people are being infected, 350,000 new infections in the Asia-Pacific region alone last year. So it’s a continuous flow of new infections.
There has been fall off in the donations from rich countries, because of the global financial crisis and as well as that, we’re now seeing a push for stronger patented laws which take away from the poorer countries in the region, the capacity to invoke a national health crisis in order to get around the patten laws and use generic drugs.
So a whole series of things are happening at the one time. But the worst of them is taking the eye off the ball and having politicians and public health officials think “well, we’ve got to zero and therefore we can turn to something else.” Well, that would be a big mistake. It’s important to keep up the pressure.
If we keep having foolish laws, which criminalise gays and sex workers and don’t act realistically in the face of this epidemic and its challenges, well, we will slide backwards, and that would be a terrible thing and we’ve got to make sure that doesn’t happen.
Sen Lam was at ICAAP11 as a guest of UNAIDS and as a member of its Asia-Pacific media network.
Source: Radio Australia (with audio)