Helen Zille’s desire to criminalise HIV, and require mandatory HIV testing is an understandable reaction to a national crisis. But the required policies would not only be illiberal, but probably also ineffective.
It’s easy to understand why the Premier of Western Cape, Helen Zille, wants to do something to minimise the prevalence of and costs associated with HIV infection. According to her remarks at a wellness summit earlier this month, HIV treatment costs the provincial government close to R2 billion a year – and that is no small sum to spend on a preventable disease. Her proposed solution to this includes wanting to charge men who have unprotected sex with multiple partners with attempted murder.
In an interview with John Maytham on CapeTalk567 on 9 November, Zille presented three complementary measures for minimising the problem of HIV infection: compulsory testing, compulsory disclosure of HIV status to potential sexual partners, and compulsory wearing of condoms in non-monogamous sexual relations. We were told that she desires that these measures become law, and that similar sorts of responses to Aids had been effective in various other jurisdictions.
There is much one can agree with in terms of her motivations – even if not in terms of the proposed remedies. It is in all of our interests to have public funds spent in the most effective possible ways, and it’s also normally in our interests to safeguard ourselves against threats to our health. But we pursue those interests unreliably and sometimes irrationally. Humans are disposed to something called hyperbolic discounting, namely the preference for smaller but sooner rewards over larger but later ones.
What this means is something we all know well – thinking we’ll go to the gym, stop smoking, or start eating more healthily tomorrow. We’re enjoying it now, and we find it easy to discount the long-term costs of satisfying our immediate desires. This is not to say that it’s obligatory to care about your own health or longevity. It would certainly be weird, but not impossible to imagine being enough of a hedonist that you commit yourself to a shorter, but more Bacchanalian life, understanding the potential consequences in full.
The concern raised by Zille is that we might be accused of excusing or forgiving reckless behaviour by funding treatment of its consequences from public coffers. While the state guarantees the right to medical treatment, the argument was made that these rights entail certain responsibilities – namely the three responsibilities outlined above.
But this conclusion would be somewhat hasty. While the idea that “rights entail responsibilities” seems axiomatic to many, it isn’t quite true. A positive right, where something is provided (such as a right to healthcare), is provided by the state as an obligation funded by our taxes. It’s certainly regrettable that we cause inefficient spending of that money through poor choices, but those poor choices don’t make us liable for an increased contribution to healthcare funding.
Leveraging that regrettable inefficiency into changed behaviour is a moral issue, but not one that can easily be legislated (whether doing so is desirable or not). We can try to persuade people to live healthier lives – for their own good as well as for the good of efficient healthcare spending – and we can try to “guilt” them into not allowing their preventable conditions from swallowing a disproportionate share of available funds.
However, if HIV infection following unsafe sex should become your legal responsibility to avoid, one can start to wonder where these sorts of responsibilities would end. I don’t have to have a car accident for alcohol consumption to become a cost to the state. I could drink to excess most nights in the safety of my own home, and still eventually require treatment for cirrhosis. Likewise for smoking and lung cancer or emphysema, and of course for my dietary choices also, where my diabetes or high cholesterol end up requiring expensive medication, surgery, or both.
These things might differ in scale, but not in type. It’s easy to find examples of self-inflicted harms that cost everyone else money through public provision of treatment, and it serves us well to try to eliminate all of them. But doing so always comes at a cost, and that cost can be a significant erosion of our liberty. We could, for example, require that everyone hand their car keys to the restaurant host, only to be returned on your successfully passing a breathalyser test. We don’t do this because of the belief that it’s appropriate to punish people for actually causing harm to others, and not appropriate to regulate their lives to the extent that it becomes impossible for them to cause those harms.
It’s not only concerns regarding the erosion of liberty that should make us wary of calls to criminalise unsafe sex in general, or force us to be tested for HIV. Readers of Daily Maverick would mostly be in the position of having ready access to medical care, including HIV testing. It could be performed as part of an annual check-up, or even provided in the workplace. But this won’t be the case for the rural poor, meaning that the state would have to spend the money to roll out nationwide testing – or inadvertently make it the case that being poor automatically means being a criminal under this sort of legislation.
Then, it is also not clear that criminalisation of HIV does any good, despite Zille’s claims to the contrary. Edwin Cameron’s 2008 paper in the Journal of the American Medical Association makes reference to a study comparing HIV infection in Illinois (which requires HIV disclosure and criminalises sex without informed consent) and New York (which has no such laws). No statistically significant difference in sexual behaviour was found in this comparison – and this in a country with significantly higher literacy than ours, and also one in which myths regarding HIV and its spread are largely absent.
There is also a stigma attached to HIV, and its criminalisation cannot but exacerbate that. Cameron points out that: “Tragically, it is stigma that lies primarily behind the drive to criminalization. It is stigma, rooted in the moralism that arises from sexual transmission of HIV, that too often provides the main impulse behind the enactment of these laws.
“Even more tragically, such laws and prosecutions in turn only add fuel to the fires of stigma. Prosecutions for HIV transmission and exposure, and the chilling content of the enactments themselves, reinforce the idea of HIV as a shameful, disgraceful, unworthy condition.”
This is not to say that we shouldn’t criminalise knowingly infecting others with HIV, just as other sorts of intentional harm to others are criminalised. As I started out by saying, one can sympathise with Zille’s frustrations, and her desire to go further than this. HIV and Aids are significant problems, and large sums of money are being spent on treatment that could instead be spent on the treatment of unpreventable medical conditions. But addressing this one – HIV – with the force of law requires something like a camera in every bedroom, and could also be accused of unfairly targeting the poor and women.
Public awareness and understanding of the harms we can do to each other and our responsibilities to avoid those harms takes time to generate, especially in a context where under-education and mythology – in this area as well as others – abound. We need to keep informing and educating, but the law is too blunt an instrument to arrest HIV without compromising other values we hold dear. To think that it’s our best recourse seems utterly wrong-headed, and just about as crazy as believing that you live in a haunted house. DM
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Rousseau is a voluntary exile from professional philosophy, where having to talk metaphysics eventually became unbearably irritating. He now spends his time trying to arrest the rapid decline in common sense exhibited by his species, both through teaching critical thinking and business ethics at the University of Cape Town, and through activities aimed at eliminating the influence of religious ideology in public policy. When not being absurdly serious, he’s one of those left-wing sorts who enjoys red wine, and he is alleged to be able to cook a mean Bistecca Fiorentine.
"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon