Reducing Vulnerabilities to HIV: Does the Criminalization of HIV/AIDS Patients Contribute?

Yonas Mekonnen  Ekubu

doi:10.4236/blr.2016.74027

Yonas Mekonnen Ekubu

Abstract: States ever since the outbreak of HIV/AIDS have been using different methods in order to combat the pandemic if possible and to reduce vulnerability. In spite of this, HIV/AIDS continues to be prevalent especially in a less developed countries to the extent that it to be hurdle for development. Criminalization of HIV/AIDS patients is one of the mechanisms that are used in the fight against the deadly disease. However, employing criminalization as prevention and vulnerability reduction strategy poses a question and stimulates a debate. Hence, the main thrust of this article is to identify this challenge and to assess whether criminalization of HIV/AIDS patients reduce vulnerability to HIV/AIDS. This being the aim it will also go on to analyze the role of criminal law in a public health issue. In doing so, the article will discuss experience of countries in criminalization of HIV/AIDS patients along side with international frameworks. At a glance, criminal law through a vehicle of punishment seems to play a role in reducing vulnerability to HIV/AIDS but, the writer based on the analyses of relevant literature and experiences of countries, argues that the use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so, and this is because of the high degree of proof required in criminal case and the difficulty of using criminal law in HIV related issue due to the nature of the disease and the absence of technology used for the required proof in the criminal law, i.e. beyond reasonable doubt.

Keywords: Criminalization, Transmission, Vulnerability, HIV/AIDS, Ethiopia

Cite this paper: Ekubu, Y. (2016) Reducing Vulnerabilities to HIV: Does the Criminalization of HIV/AIDS Patients Contribute?. Beijing Law Review, 7, 292-313. doi: 10.4236/blr.2016.74027.

References

[1] Civil Code of Ethiopia (1960). Negarit Gazzeta, Extraordinary Issue, Proc. No. 161, 19th Year.

[2] Constitution of the Federal Democratic Republic of Ethiopia (1995). Negarit Gazzeta, Extraordinary Issue, Proc. No. 1, Year 1.

[3] Criminal Code of the Federal Democratic Republic of Ethiopia (2004). Negarit Gazzeta, Extraordinary Issue, Proc. No. 414, 19th Year.

[4] Criminal Procedure Code of Ethiopia (1961). Negarit Gazzeta, Extraordinary Issue, Proc. No. 185, 19th Year.

[5] Dej, E., & Kilty, J. M. (2013). Criminalization Creep”: A Brief Discussion of the Criminalization of HIV/AIDS Non-Disclosure in Canada. Canadian Journal of Law and Society, 27, 55-66.
http://dx.doi.org/10.3138/cjls.27.1.055

[6] Merminod, A. (2009). The Deterrence Rational in the Criminalization of HIV/AIDS. Lex Electronica, 13, 4-28.

[7] Merso, F. (2007). Women & Girls and HIV/AIDS in Ethiopia: An Assessment of the Policy and Legal Framework Protecting the Rights of Women and Girls and Reducing Their Vulnerability to HIV/AIDS.

[8] Multi Sectoral Plan of Action for Universal Access to HIV Prevention, Treatment, Care and Support in Ethiopia.

[9] Public Health Proclamation (2000). Negarit Gazzeta, Extra Ordinary Issue, Proc. No. 200, 6th Year.

[10] Ralf, J. et al. (2009). Ten Reasons to Oppose the Criminalization of HIV Exposure or Transmission. Reproductive Health Matters, 17, 163-172.

[11] Tsehay Weda, Basic Principles of Criminal Law (1994).

[12] UNAIDS Recommendations for Alternative Language to Some Problematic Articles in the N’Djamena Legislation on HIV (2004).

[13] UNAIDS/UNDP International Consultation on the Criminalization of HIV Transmission: Summary of Main Issues and Conclusions. Geneva, 2008.