MS KAREN Tan of the Ministry of Health in her letter,
'HIV law aims to deter irresponsible sex conduct' (ST, Oct 11),
admitted that 'public education and prevention must be the
mainstay but legislation by itself is inadequate to tackle the
problem of HIV/Aids'. It is always not easy to coax people to change their social
behaviour but legislation is still the last bastion to drive
home the message that the HIV/Aids epidemic can be
contained. As early as 2003, the governor of California had been
lobbying for the promulgation of HIV laws in his state and
a year later California's HIV/Aids laws were accepted by
the legislature. Under the Health and Safety Code, the
following provisions are enacted: a) All licensed physicians and surgeons or other persons
engaged in the prenatal care of a pregnant woman or
attending the woman at the time of delivery are to inform
the woman of the intent to perform a test for HIV infection;
the routine nature of the test; the purpose, risks and benefits
of the test; the risks of perinatal transmission of HIV and that
treatments are known to decrease the risks of perinatal
transmission. b) A three-year sentence enhancement is mandatory for a
conviction of rape (including statutory and spousal rape), or
unlawful sodomy or oral copulation, if the defendant knew that
he was HIV positive at the time of the commission of the offence. c) At the request of the crime victim, the court may order HIV
testing of any person charged with a crime. Before issuing a
search warrant for the defendant's blood, the court must find that
there is a probable cause to believe that blood, semen or other
bodily fluids have been transferred from the defendant to the
victim and that there is probable cause to believe the defendant
committed the alleged offence. A victim may also request HIV
testing of the accused in the case of certain alleged sex crimes
that are the subject of a police report. d) Any person who exposes another to HIV by engaging in
unprotected sexual activity is guilty of a felony when the
infected person: i) knows he is infected ii) has not disclosed his HIV-positive status iii) acts with the intent to infect the other person with HIV. The felony charge is punishable in the state prison for a
period not exceeding eight years. What are the principles that should guide legal policy on HIV?
The law must be used to establish a protective and supportive
framework for people affected by the epidemic and not a
punitive one. Informed ethical debate can guide the direction of
the evolution of the law in this area. The law can be used as an
instrument to bring about change in personal behaviour and only
by having an informed group of lawyers will the legal and human
rights issues associated with the epidemic be properly tackled. The people who remain vulnerable to HIV are those who are
denied the means of protecting themselves against the disease
because of economic need, for example, or powerlessness to
control the basis upon which their sexual relationships take place.
Many factors come into play here such as poverty, inadequate
health care and health education and cultural values that compel
certain practices that expose women to the risk of HIV transmission. Women are often not free to make their own decisions about
their sexual relationships or to insist upon measures, such as
the use of condoms or fidelity on the part of their partner, that
would reduce the risk of exposure to HIV. The HIV policy debate is usually characterised as an inevitable
conflict between public health and individual rights. Policies that
infringe individual rights such as forcible HIV testing are
defended on the basis of an overriding need to protect public
health. On a practical level, HIV laws are not easy to enforce. However,
there is some evidence that such laws can assist in encouraging
condom use, if only because it makes it easier for prostitutes to
nsist upon condom use by their clients. The legislation can be an
instrument to bring about a marked behavioural change in this way. Law is a product of social and cultural values within a community.
It can also be instrumental in defining, reinforcing and actively
promoting certain values and practices. By either condoning or
outlawing certain forms of behaviour or expressions of cultural
values, the law can be a very powerful instrument for shaping
and reinforcing these values. The law can and ought to play a
proactive role not merely in mediating rights and obligations as
between individuals but also in seeking to change underlying
values and patterns of social interaction that create vulnerability
to the threat of HIV infection. Heng Cho Choon | 
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