Sunday, September 04, 2005 HIV case presents conflicting goals

Useful if you ever need to run a case on compelling HIV/AIDS sufferers to tell their sexual partners of their condition. It's a very good article that sets out the nature of criminal law and its implications on such cases, in addition to the status of the law as it stands.

The Singapore position is set out in our statute Infectious Diseases Act, (Sing Rev. Ed. 2003, Cap. 137) which is as follows.

Sexual intercourse by person with AIDS or HIV Infection
23. —(1) A person who knows that he has AIDS or HIV Infection shall not have sexual intercourse with another person unless, before the sexual intercourse takes place, the other person —

(a) has been informed of the risk of contracting AIDS or HIV Infection from him; and

(b) has voluntarily agreed to accept that risk.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both.

(3) For the purposes of this section, a person shall not, only by reason of age, be presumed incapable of having sexual intercourse.

(4) For the purposes of this section and section 24, a person shall be deemed to know that he has AIDS or HIV Infection if a serological test or any other prescribed test for the purpose of ascertaining the presence of HIV Infection carried out on him has given a positive result and the result was communicated to him.

(5) In this section, “sexual intercourse” means —

(a) sexual connection occasioned by the introduction into the vagina, anus or mouth of any person of any part of the penis of another person; or

(b) cunnilingus.

As should be readily obvious, it is a criminal act which goes quite some way in remedying some of the problems of the Common Law i.e. suing the guy. This is because, unless sexual intercourse was obtained either by a mistake of identity (you thought he was a particular person but he's actually someone else) or a mistake of act (you didn't know he was performing sexual intercourse on you...don't laugh, it happens particular with the devotees of some mediums who believe that he's curing them), you really don't have a cause of action against him/her. Not even fraud amazingly enough. It seems that claiming that you would not otherwise have sex with the other person if you had known of his/her condition is insufficient.

If I'm not mistaken, there was a recent amendment to the act which sought to broaden what is meant by 'knowledge of condition' i.e. you don't need to be tested and have the positive result given to you in order for criminal liability to accrue. Instead, all that is needed is knowledge that you have a high propensity of having such a disease for the law to clamp down on you. While this is theoratically admirable, the practical implications, especially with regards to burden and standard of proof would be a nightmare for the prosecutor to establish. I mean, what makes a highrisk group? What if you had multiple sex partners but were very cautious?

The upside to this is perhaps to allow for victims of such situations to sue the other person, thereby bypassing the limitations of the Common Law as stated above.

I think the law is fine only insofar as it is complementary to other forms of education. At the end of the day, you need to be concerned and look after your own body and sexual health. It is fultile and stupid really to attempt to make that part of the other person's duty of care. Lest we forget, there are a lot of very nasty STDs out there, not all of which can be cured and while not fatal could be very detrimental to your health. And the law isn't going to protect you from them.

I think I've gone on long enough about sexuality and sexual education but the message needs to get through. Till now, I'm not entirely convinced that the national sexual education cirriculum (much less those pushed by abstinence only organisations like Focus on the Family) really gives a good overview of STDs, not least because of their focus on one form and only one form of sex. As long as we pretend that teenagers don't have sex or continue to be arrogant enough to ignore what the consensus of science is saying (teens will or will not have sex whether or not you teach absitinence, it doesn't even seem to have a marginal effect) we're going to have problems.

All I have to say is this, peddle your fiction (or whatever sort) elsewhere, we have reality to tackle here.



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