The views expressed herein are solely those of the writer.
By Jeshua Bardoo.
HIV/AIDS AND THE LAW IN SVG
Across the world, millions of people have been impacted by HIV/AIDS. Saint Vincent and the Grenadines (SVG) is not immune, as we have many persons living with HIV/AIDS amongst us. However, the good thing is that HIV/AIDS is no longer the “death sentence” that it was once thought to be. Today, many people living with HIV/AIDS can now live long, healthy lives thanks to medical advancements. Nevertheless, while astonishing medical advancements continue to be made globally, the legal framework in SVG lags behind. This article gives a brief legal overview of HIV/AIDS laws, specifically in areas such as medical consent, criminalization, privacy, and discrimination.
Age of sexual consent
Before we delve into the issue of HIV/AIDS, I want to touch on the age of sexual consent, as sexual intercourse is one of the main ways through which HIV/AIDS is transmitted. In SVG, based on the Criminal Code, the legal age at which a female can consent to sexual intercourse is 15 years old. There is no explicit age at which a male can consent to sexual intercourse in SVG. However, based on SVG’s Marriage Act, it is implied to be at least 16 years old, as that is the age when a male can legally get married in SVG.
Age of medical consent
In terms of medical consent, where possible, it is always good to get the patient’s informed and voluntary consent before testing, treatment, or performing a medical procedure.
Despite the fact that females can consent to sex at 15 (according to SVG’s Criminal Code) and even get married when they are 15 years old (according to SVG’s Marriage Act), under the laws of SVG, they cannot consent to be tested for HIV/AIDS, be treated for HIV/AIDS, and/or access various preventative measures, such as condoms, without parental consent. Persons 16 years and older may, without parental consent, access testing, treatment, and/or various HIV/AIDS preventative measures, such as condoms.
Why is a girl allowed to have sex, get pregnant, have a child, and/or even get married at 15 years old, yet at that age she cannot be tested or even treated for HIV/AIDS, without parental consent?
SVG’s laws regarding the age of sexual consent and the age of medical consent without parental consent may need to be reviewed and/or amended.
Criminalization
In terms of criminalization, SVG does not have laws that explicitly criminalize HIV exposure, non-disclosure, and transmission. However, general laws under the Criminal Code relating to assault and bodily harm may be applicable in cases involving the wilful intention to transmit HIV (e.g., where a person knows their HIV status, acts with the intention to transmit HIV, and does in fact transmit the virus).
Moreover, Section 291 of the Criminal Code titled, “Negligent acts likely to spread disease” states that, “Any person who unlawfully or negligently does any act which he knows, or has reason to believe, to be likely to cause the spread of any infectious or contagious disease, is guilty of an offence and liable to imprisonment for one year”, may possibly apply to persons who unlawfully and negligently spread HIV to others.
The Global Commission on HIV and the Law, along with UNAIDS and other expert bodies, recommends that criminal law be reserved only for cases involving intentional HIV transmission. Outside of intentional transmission, it has been recommended that criminal law should not be applied to HIV in situations including, but not limited to, where the person did not know their HIV status or took effective precautions to prevent HIV transmission, including using condoms, taking effective HIV treatment, or having a low viral load. It has also been recommended that it should not be applied to cases involving vertical transmission, including breastfeeding.
Furthermore, according to the Eastern Caribbean Supreme Court Sentencing Guidelines on Sexual Offences, it is an aggravating factor in a sexual offence if someone knows that they are infected with an STI and/or transmits an STI as a consequence of an offence.
Privacy Laws
Currently, SVG’s Constitution does not have an explicit right to privacy under sections 2 – 13 of the Bill of Rights (although there is an ongoing debate regarding whether there is an enforceable right to privacy based on it being mentioned in section 1, the opening section, of the Bill of Rights), and as far as I am currently aware, no enforceable legislation expressly protects privacy and confidentiality, particularly with regard to medical information. Protection of confidentiality is maintained through common law principles, professional standards, and ethics governing doctor-patient relationships. The right to confidentiality is also affirmed in SVG’s Charter of Patient Rights and Responsibilities, which states that patients have a right to privacy and confidentiality in all medical contexts, except where there are compelling health or legal reasons.
Anti-Discrimination Laws
Currently, SVG’s Constitution does not explicitly prohibit discrimination on the grounds of HIV/AIDS or even health status. Moreover, there is no comprehensive anti-discrimination law prohibiting discrimination based on a person’s HIV/AIDS status. Furthermore, there are no specific local laws, such as those in relation to employment, housing, or the provision of goods and services, that explicitly prohibit discrimination based on a person’s HIV/AIDS status.
As SVG continues to develop as a nation, let us continue to build on the local legal framework so that persons living with and/or impacted by HIV/AIDS can have the necessary legal protections.
Author: Jeshua Bardoo is a Vincentian Lawyer, Human Rights Activist, Writer, and NGO leader. He is the Founder and President of Equal Rights, Access and Opportunities SVG Inc. (ERAO SVG). He has an LLM in International Human Rights Law. In the past, he was the recipient of a National Exhibition Scholarship and also a UK Chevening Scholarship. He is a McCain Global Leader Alumni, and last year he was selected by the French Ministry of Europe and Foreign Affairs to participate in their prestigious Future Leaders Invitation Programme (PIPA). He can be contacted via email at jeshuabardoo@gmail.com.
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