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AIDS Hysteria: Outbreaks of Bad Law and the Bagging of Bodies

July 09, 1989|Michael Kirby | Michael Kirby, a member of the World Health Organization's Global Commission on AIDS, is president of the Court of Appeal of the Supreme Court of New South Wales, Australia. His article is adapted from the July issue of Daedalus magazine

SYDNEY, AUSTRALIA — There are limits on what the law can and should do in response to AIDS. It never ceases to surprise me how otherwise intelligent people (including some lawyers) assume that when society has a problem, all it need do is make new law and the problem will be solved.

But obedience to a law, even if everyone is familiar with it, cannot be assumed. The law may entirely miss its mark because of ambiguity or sanctions that cannot be enforced. Want of resources, discriminatory prosecution or ineffective design of enforcement mechanisms frequently torpedo a law that looked fine when first passed but just did not work on the streets.

Our objective in proposing new laws on AIDS must be to contain the epidemic. Australian Health Minister Dr. Neal Blewett has a clear criterion for AIDS-related measures. I take it as my text: "Whether it will or will not impede the spread of the disease, whether it will be productive or counterproductive in containing the dissemination of the virus; any action, however well intentioned, which impedes efforts to monitor, contain and assess the spread of the disease should be rejected."

The policies adopted to cope with earlier epidemics lie in the history books as warnings about human pain and cruelty but, above all, about general ineffectiveness. The best-known administrative measure of earlier times, quarantine, is said to have been developed in 14th-Century Italy. Such isolation was followed by the temporary removal of suspects, the creation of plague barriers, the use of purifying fires in public places and vicious actions against minorities who were already stigmatized by factors other than disease.

King Philip of France ordered the extraction of the tongues of all blasphemers. He believed, ever so sincerely, that blasphemy had brought the bubonic plague on his country.

Reporting, incarcerating, disenfranchisement, privation and deprivation of civil rights have been the usual legal companions of infections over the centuries. As late as 1832 in Paris, numberless innocent people stricken with cholera were lynched by fearful mobs.

In this age of computer science and biotechnology, can we do better? Only if we acknowledge the limited function of law as a response to AIDS and realize that laws will not be effective until they are based on good data concerning the nature of AIDS and the precise conduct that encourages or diminishes transmission. We must recognize the counterproductive effects of laws that limit the supply of condoms or the availability of sterile needles.

We may decide that we prefer a society that clings to the ideals of sexual chastity to a society that teaches young school children explicitly about the dangers of AIDS and facilitates the provision of condoms to all who want them. We may prefer prosecuting the "war on drugs" rather than legalizing the provision of sterile needles or bleach to users at risk. But we should do so with our eyes open.

A frightened community concerned about the spread of a dangerous virus may be impatient indeed with the human-rights context. But any review of law on this subject which ignores human rights will be empty of principle.

There is no human right to spread a deadly virus, whether knowingly or recklessly. The right to the protection of life is primary. But it must be achieved with the protection of other relevant human rights, such as the right to privacy, the right to marry and found a family, the right to work and the right to freedom from inhuman or degrading treatment. We must harmonize legal reponses with fundamental values that will endure even after the AIDS peril has been overcome.

It is possible that in some places knowingly spreading HIV to another person--or being recklessly indifferent to the consequences of sexual or other conduct--already violates general provisions of criminal law. Such conduct might amount to murder, manslaughter or assault occasioning grievous bodily harm. Calls are now being made for the provision of specific criminal offenses permitting courts to penalize the deliberate or reckless spread of this lethal virus.

Responding to such calls, a number of states in Australia and the United States have enacted laws to provide a specific penalty in the case of unprotected sexual intercourse by an infected person. Such law does not prohibit an infected person from having sexual intercourse. It applies the law's sanction for failing to inform and secure the consent of the other person.

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