ST: AIDS in Singapore (Jul 25)

Wednesday, July 25, 2007

July 25, 2007
'Bug chasing' should be a crime
By Andy Ho

IT WAS recently revealed in Parliament that there is a man with
HIV who is intentionally trying to infect other gay men. The authorities said nothing more about him apart from reiterating that knowingly transmitting HIV is a criminal offence in Singapore. In gay parlance, that person would be a 'gift giver'. If you thought that was tongue-in-cheek, you might be as taken aback as I was to learn that there are some gay men who actually revel in unprotected sex with other men, in search of the ultimate thrill - that of dicing with death.

Called 'bug chasers', these men are suicidal in every sense of the word except that the death that could result may come years later - if it does. Come to think of it, my favourite modern philosopher, Michel Foucault, was a bug chaser too. He moved from France to California where he explored the public bathhouses, contracted HIV and eventually succumbed to Aids at the age of 57 in 1984.

Today, 'bug chasers' and 'gift givers' use the Internet to hook up.

In Singapore, the HIV-positive person who infects another has only one legal defence: informed consent.

Thus, not only is it true that HIV-positive individuals cannot be prosecuted for informed consensual exposure, but it would also appear that bug chasing is not a crime either.

But it should be.

Reason 1: Such thrill-seeking behaviour serves to fuel the HIV/Aids epidemic. Criminalising it is justifiable as a matter of public policy. The fact that it is likely to endanger public health is a consideration which should trump the general right to be free of government regulation in one's
private sexual relations.

Reason 2: While sexual behaviour is the most private of human conduct, the right to privacy (even if we acknowledged an implied one in Singapore, where there is no such explicit right) does not shield all private sexual acts from state regulation.

For instance, incest - of which several local cases have been reported and prosecuted lately - and paedophilia are not exempt from being criminalised just because they are sexual activities per se.

Those who disagree with me may say that it is difficult to tailor HIV transmission statutes narrowly enough to criminalise 'bug chasing' without infringing upon the legitimate right to privacy in consensual sexual relations.

They may also say that while there are good public-policy reasons to criminalise bug chasing, there are no legal grounds to do so.

Lawyers will, however, tell you that there are. One way is to analogise bug chasing to suicide, which is itself a crime because the Government has an overriding interest in preserving life.

If 'bug chasing' is like suicide, then 'gift giving' is like assisting suicide.

The difference is that, in assisted suicide, only one life is taken, whereas the 'bug chaser' can endanger third parties like future sex partners or recipients of his blood, if donated, especially when he is still in the HIV-negative window period that may last as long as six months after

This means that the case to criminalise gift giving/bug chasing is even stronger than that for criminalising (assisted) suicide.

But just as it is not easy to prosecute attempted or assisted suicide, it would be equally difficult to do so with gift giving/bug chasing.

A more promising avenue might be to resort to the notion of rashness, a term deployed in the Penal Code but not defined anywhere in the law.

However, the courts have opined on the issue recently. In the infamous dunking case of 2003, one commando nearly drowned while another actually died by drowning during a commando training course on Pulau Tekong. The training involved dunking their heads in water to simulate the torture of prisoners of war.

Captain Pandiaraj, the supervising officer, did not do the actual dunking but was convicted of abetting those who did. On appeal, he claimed that he had given proper instructions to the dunkers.

Though he was near the site for all three hours of the exercise, 'he did not once monitor the instructors to ensure compliance with these rules' that trainees be dunked only three times for five to 10 seconds each per dunk, as the High Court had put it. In the event, some trainees were dunked for up to 20 seconds each time.

The then chief justice Yong Pung How ruled that Pandiaraj knew there was a risk of drowning and that, even if he believed he had managed to avoid that risk by instructing the dunkers accordingly, his crime 'lay in his running the risk of doing the act'.

His failure to stop the dunkers 'exhibited a recklessness or indifference to the consequences of the dunking', CJ Yong added.

In other words, rashness is recklessness plus indifference. A 'couldn't care less' attitude when doing the deed, coupled with the clear knowledge that risks incurred cannot be justified, makes for a rash act.

How to tailor a statute to criminalise the gift giving/bug chasing phenomenon? The first step is to remove informed consent as a legal defence. The second is to make gift giving/bug chasing qualify as a rash act, or an act of advertent recklessness. Protected sex would not qualify.

Of course, proving recklessness in any situation is difficult but that is a problem for the courts to handle. Meanwhile, I urge Parliament to weigh carefully if such a statute is needed now before the Aids epidemic gets any worse. sg