More than three decades since the human immunodeficiency virus (HIV) was first discovered, scientists have made significant medical breakthroughs that have allowed people living with HIV (PLHIV) to live normal and healthy lives. The same perhaps cannot be said about the impact of lawmakers in many countries, whose policies continue to perpetuate stigma and discrimination against PLHIV. In particular, the criminalisation of HIV non-disclosure has been criticised by public health experts as counterproductive to ending the spread of HIV.
From an ethical perspective, it is generally uncontroversial that a responsible person should disclose their HIV-positive status to sexual partners before having sex. However, whether this moral duty of disclosure should be transformed into a legal obligation that may attract criminal penalties is not as straightforward as it might seem. In Singapore, section 23(3) of the Infectious Diseases Act (IDA) criminalises the failure of PLHIV to disclose the risk of HIV transmission to their sexual partners before engaging in sexual activity, which attracts up to 10 years’ imprisonment and a maximum fine of SGD$50,000. Though the use of the criminal law as a HIV prevention policy is not unique to Singapore, most other jurisdictions do not go so far as to punish the mere non-disclosure of one’s HIV-positive status; instead, what is usually criminalised is the reckless or malicious exposure to, or the actual transmission of, HIV.
Concerns as to the efficacy and fairness of such a law became apparent in a recent decision by the High Court of Singapore. In GCP v Public Prosecutor, the High Court dismissed an appeal brought by an accused charged with an offence under Section 23(1) of the IDA. This was the first time that a prosecution under this law has reached the High Court. On the facts, the High Court found that the accused did not in fact communicate his HIV-positive status to his sexual partner. It further observed that even if he did, it may not be enough to discharge his legal obligation under Section 23(1). Instead, PLHIV must go further by communicating the risk of HIV transmission. This is prescribed by Section 23(1), which requires the PLHIV to inform their sexual partner of “the risk of contracting HIV” from them.
From an ethical perspective, it is generally uncontroversial that a responsible person should disclose their HIV-positive status to sexual partners before having sex.
On this issue, the court observed that though disclosing one’s HIV-positive status may “ordinarily be sufficient,” some victims may be “ignorant, poorly informed or misinformed”. In addition, it would be “undesirable” for PLHIV to assume or take for granted their sexual partners’ appreciation or knowledge of the risk of HIV transmission. Referring to the parliamentary debates on this law, the High Court noted that Parliament’s intention behind requiring the communication of the risk of HIV transmission is “for the sexual partner to be placed in a position to assess the risks and then to make an informed decision as to whether to accept them”. While this concern seems prudent at first brush, it may be problematic for several reasons.
First, this is inconsistent with the existing standard that is set by the Ministry of Health and communicated to PLHIV when they are first diagnosed. The Ministry’s website merely states that PLHIV must inform their sexual partner if they have been diagnosed with HIV before engaging in sexual intercourse. Indeed, an expert witness from the Singapore’s National Public Health Unit had explained to the court during the trial that after they are diagnosed, PLHIV are usually informed by a public health officer that they must tell their sexual partners that they are HIV-positive before having sex. The High Court however dismissed this on the basis that the witness’ opinion of the law “cannot be conclusive” and that “ignorance or misapprehension of the law” could not excuse someone who commits an offence.
Though the use of the criminal law as a HIV prevention policy is not unique to Singapore, most other jurisdictions do not go so far as to punish the mere non-disclosure of one’s HIV-positive status; instead, what is usually criminalised is the reckless or malicious exposure to, or the actual transmission of, HIV.
Furthermore, it is not clear how PLHIV are to communicate the risk of HIV transmission to their sexual partner. This introduces serious uncertainty for PLHIV as to whether their sexual partners might be sufficiently informed. To err on the side of extreme caution, should PLHIV then conduct a crash course with the relevant medical charts and graphs to ensure that their potential sexual partners are sufficiently informed of the risk of HIV transmission?
Certainty has been recognised as a fundamental tenet of the rule of law; it is well established that individuals should be able to live their lives without having to constantly worry whether they may unknowingly be breaking the law. The ambiguity over how one is expected to communicate the risk of HIV transmission arguably runs contrary to the rule of law: How much information is necessary for a person to sufficiently communicate their risk of HIV transmission? How does the scope of this duty change, depending on the level of the knowledge of the putative victim? While the court was right to think that it was “undesirable” for PLHIV to take for granted their sexual partners’ knowledge or appreciation of the risk of HIV transmission, it is perhaps no less undesirable that PLHIV should be confronted with this dread of uncertainty either.
Ultimately, while the High Court was right to concern itself with whether individuals may fully appreciate the risk of HIV transmission when informed of their sexual partners’ HIV-positive status, it is doubtful that such a concern justifies the heavy and ambiguous burden of not only disclosure but also education that now weighs on PLHIV.
It is also questionable whether it is fair for the court to impose the burden of education on PLHIV, who already find themselves in a particularly vulnerable position for having to disclose their HIV-positive status to their sexual partners. Doing so seems to disregard the underlying reasons for why their sexual partners may be ignorant about HIV in the first place, especially if they are from marginalised communities. For instance, because male same-sex intimacy remains criminalised in Singapore, young LGBTQ people are often denied comprehensive sexuality education that explicitly addresses their experiences. Indeed, this was a concern raised recently by the UN Committee on the Rights of the Child, which urged the Singapore Government to “ensure that [sex] education is… not discriminatory against LGBTI children [and] includes… care and treatment of sexually transmitted infections”. Instead, the state’s failure to provide such information to the public is foisted on PLHIV, who become personally responsible for their sexual partners’ lack of knowledge about HIV/AIDS.
That such a burden is imposed on PLHIV can perhaps be attributed to the notion often perpetuated by the criminal justice system that there must always be a villain and a victim when a crime is committed; the latter is often associated with ideas of innocence, ignorance and vulnerability. However, in the context of PLHIV, this dichotomy may not only be inappropriate but detrimental to the larger campaign of HIV prevention. On the one hand, it essentially absolves sexual partners of PLHIV from any personal responsibility for their own sexual health. On the other hand, it reinforces the harmful stereotype that PLHIV are irresponsible deplorables who would deliberately spread HIV to other people if not for the deterrent force of the criminal law. Indeed, it is probably this stereotype about PLHIV that motivated the criminalisation of HIV non-disclosure in the first place despite the forceful disavowal of public health experts.
Ultimately, while the High Court was right to concern itself with whether individuals may fully appreciate the risk of HIV transmission when informed of their sexual partners’ HIV-positive status, it is doubtful that such a concern justifies the heavy and ambiguous burden of not only disclosure but also education that now weighs on PLHIV. This legal obligation may be unduly onerous on PLHIV, who already have to contend with widespread stigma and discrimination. Never knowing if or when they may have failed to discharge their legal duty to inform their sexual partners about the risk of HIV transmission, PLHIV must live their lives at their own risk.