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.
All such laws should be seen as having a symbolic rather than a practical value. Proof and enforcement would be extremely difficult. The offender may be dead or very ill by the time of prosecution. Proof that he or she caused the infection may be next to impossible. Moreover, such laws may have a counterproductive effect, even though unintended. If an element in such crimes is knowledge of one's own HIV status, the law may actually discourage persons from taking the HIV test, particularly if there are provisions for reporting persons who prove positive.
Quarantine laws are generally categorized as civil rather than criminal, yet they may impose restrictions on individual freedom as severe as penal laws. Sometimes they do so without the protections typically built into criminal process.
So far, only Cuba has a specific law to quarantine persons with HIV infection. Such a law would be unjust and ineffective in the most developed nations. The antibody test does not disclose all who are infected. It would be difficult, if not impossible, to provide resources to house, feed, guard and isolate all such persons. The impact of removing from an economy people with 8, 10 or more years of valuable contribution would be crippling.
Clearly, the target of laws and policies should be the behavior that spreads the risk, not the individual as such. Laws focused on individuals or groups may carry the risk of unjust discrimination or may be too heavy-handed in their operation. That is why a general policy of quarantine has been described, rightly in my view, as a brutal and unrealistic approach to the containment of HIV.
Nevertheless, calls for quarantine and identification of the infected will become more common as the infection spreads. In a number of jurisdictions, already existing powers of quarantine have been enhanced and made specific to include AIDS. Fortunately, lessons have been learned from the ways communities earlier tackled syphilis, also a potentially lethal sexually transmissible disease. An English Royal Commission report in 1913 made the point that the public health objectives of identifying the infected, counseling them and giving them such treatment as was available were more likely to contain the disease than were punishment and quarantine. As with syphilis, so with AIDS. Winning the support of those who bear the burden of infection and modifying their behavior is the strategy that offers most promise at this time, at least in developed countries.
Many jurisdictions have enacted laws to provide screening for the presence of HIV. China, for example, has recently extended its compulsory testing to all foreigners who apply to live in the country for more than six months. Many other countries, particularly those reporting a low incidence of AIDS and HIV, have drawn up similar laws.
One of the trickiest problems AIDS presents to lawmakers is that groups initially infected with the HIV virus in developed countries were already stigmatized and, in some sense, outcast. I refer to homosexual or bisexual men, intravenous drug users and prostitutes. In Australia, public opinion polls suggest wide support for mandatory testing of such groups.
Democratically elected governments, under the pressure to do something in the face of a major epidemic, may be tempted to legislate against particular groups. Migrants, prisoners, drug users and prostitutes, in particular, lack effective voice to dissuade lawmakers from making laws discriminating against them. To test migrants but not tourists would seem unjustifiable, since the latter may indeed have greater exposure to AIDS. Testing prisoners without making arrangements for their care if found to be HIV-positive is pointless. Yet in prisons around the world, compulsory testing is now increasing.
Sadly, hysteria can generate pain for the dying and the grieving. In New South Wales, regulations require that a person known to have AIDS--or reasonably suspected to have suffered it--be placed at time of death in double plastic bags, heat sealed, with the words "Infectious Disease-Handle with Care" placed on the body. This procedure only exacerbates grief, betraying the right of a deceased person not to disclose the nature of his illness. There is no scientific basis for the regulation. AIDS is not transmitted by handling a body. The regulation was, I regret, nothing more than response to a trade-union demand grounded in irrational fear. We will see many more such laws before this epidemic is over.
An Australian judge once said that the law "limps after medicine . . . at the rear of the line." For the health of society and the practical containment of AIDS and HIV, that is where I would generally keep the law for the present. Overenthusiasm in enacting laws on AIDS may make some people feel better, but such laws will have precious little impact on controlling the epidemic. For the time being, control in countries like Australia and the United States depends primarily on community and individual education. That may seem a strange conclusion for a lawyer to reach. But I am sure that it is right.