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澳洲termpaper法律专业范文推荐:Should HIV transmission be criminalized?

时间:2019-04-01 14:18:32 来源:www.ukassignment.org 作者:未知 点击:4
1.0 Introduction引言
艾滋病传播已成为当代社会一个不容忽视的重要社会问题。由于其负面的社会和经济后果,联合国于2000年首次将艾滋病毒列为安全危机(Haffejee,Ports and Mosavel,2016年)。为了解决艾滋病传播问题,各国政府和学者提出了各种解决办法,这些方法可以简单地分为两类,一类是采取法律手段惩罚艾滋病传播行为(Gable、Gostin和Hodge,2009年),另一类是采取干预性非惩罚性手段(ve)。Rgidis和Falagas,2009年)。关于这两种方法的优缺点,人们一直在讨论,尚未得出结论。本文探讨了采取何种手段控制艾滋病传播的利弊。
HIV transmission has become an important social problem that can not be neglected in contemporary society. Because of its negative social and economic consequences, the United Nations first classified HIV as a security crisis in 2000 (Haffejee, Ports and Mosavel, 2016). In order to solve the problem of HIV transmission, governments and scholars of different countries have proposed various solutions, these methods can be simply divided into two kinds, one is to take law-based means to punish behavior of HIV transmission (Gable, Gostin and Hodge, 2009), the other is to take intervention-based non-punitive means (Vergidis and Falagas, 2009). There is constant discussion about the pros and cons of the two kinds of methods and no conclusion has been determined. In this essay, it explores the pros and cons to propose what kind of means should be adopted to control HIV transmission.
2.0 Body主体
2.1 Means of punishment处罚方式
生理上,一旦感染艾滋病毒的人发展成艾滋病患者,他们的健康状况将迅速恶化,他们将承受巨大的身体痛苦,直到他们的生命被疾病夺去。从心理、社会的角度考虑,一旦艾滋病感染者知道自己感染了艾滋病,就会产生心理上的巨大压力。此外,艾滋病毒感染者容易受到社会歧视,很难得到亲友的照顾和关注。对艾滋病毒携带者的社会歧视会给他们和他们的家庭带来灾难,他们必须承受沉重的心理负担,这很容易导致家庭不和甚至家庭破裂,因为大多数艾滋病患者和感染者都处于养家糊口的年龄,他们往往是家庭的主要来源。利基金。当他们自己不能工作,也需要支付高昂的医疗费用时,他们的家庭经济状况很快就会恶化。对于有艾滋病患者的家庭,他们的结果通常是留下没有抚养过的孤儿,或者让父母独自一人(Balisanga等人,2016年)。
艾滋病毒主要侵犯20-45岁的主要成年人,这些成年人是社会生产者,他们支持一个家庭,一个国家的捍卫者。艾滋病毒已经削弱了社会生产力,减缓了经济增长,降低了预期寿命,降低了国家质量,削弱了国家实力。社会歧视和不公平待遇使艾滋病病毒感染者脱离社会,造成社会动荡,犯罪影响增大,破坏社会秩序和社会稳定。艾滋病毒孤儿和使无辜儿童遭受失去亲人的痛苦,他们经常遭受歧视、辍学、营养不良和沉重的劳动负担(Weber和Grant,2015年)。正是由于艾滋病毒传播带来了如此多的负面结果,许多国家将艾滋病毒传播纳入了刑法。尽管不同国家对故意传播艾滋病毒的具体刑事指控存在差异,但通常将这种故意传播艾滋病毒的“行为”认定为刑事犯罪并追究其责任(Brown、Hanefeld和Welsh,2009年)。
Physiologically, once people with HIV infection develop into AIDS patients, their health condition will deteriorate rapidly and they will bear great pain physically, until their lives are claimed by the disease later. Considering from a psychological, social perspective, once HIV-infected people know that they are infected with HIV, psychologically great pressure will be generated. In addition, HIV-infected people are vulnerable to social discrimination, it is difficult for them to get the care and attention of their relatives and friends. Social discrimination against people living with HIV will bring disaster to them and their families, they have to bear heavy psychological burden, which easily leads to family discord and even family breakdown, because the majority of AIDS patients and infected persons are at the age of supporting family, they often provide the main source of family funds. When they themselves can no longer work and they also need to pay high medical expenses, the economic situation of their family will soon deteriorate. For families with AIDS patients, their result is generally leaving unsupported orphans, or leaving their parents alone (Balisanga et al., 2016). 
HIV mainly violates prime adults of 20-45 years old, and these adults are social producers, those who support a family, a country's defenders. HIV has weakened social productivity, slowed economic growth, reduced life expectancy, reduced national quality and weakened national strength. Social discrimination and unfair treatment make HIV-infected people be separated from a society, causing social unrest, increased crime effect, destroyed social order and social stability. HIV orphan children and make innocent children suffer from the loss of their loved parents, and they often endure discrimination, school dropouts, malnutrition and heavy labor burdens (Weber and Grant, 2015). It is precisely because of so many negative results that HIV transmission brings, many countries have included spreading HIV in criminal law. Although there are differences in the specific criminal charge of intentional transmission of HIV between different countries, it is common to identify such "acts" of intentional transmission of HIV as criminal offenses and to hold them accountable (Brown, Hanefeld and Welsh, 2009). 
The intentional spread of HIV is a new crime. In this regard, some scholars are in accordance with the crime of deliberately transmitting sexual diseases to define acts of deliberately spreading HIV. The so-called intentional transmission of HIV refers to that those who know that they are AIDS patients or HIV carriers are through deliberate sexual intercourse, blood transfusion, shared syringes, organ transplantation to spread HIV to other people.
Governments of different countries have developed the provisions of criminal responsibility on deliberate transmission of HIV to others, so as to prevent spreading HIV (Sanon et al., 2009). In the United States, Georgia law provides that people with behavior of intentional spread of HIV will face 10 years imprisonment and penal sum of 5 million dollars. In Russia, people who knowingly spread HIV are punishable by imprisonment of up to five years; in Latin America, those who have acts of intentional transmission of HIV will be punished with three to five years of imprisonment; in Senegal, intentional transmission of HIV will bring a person to prison for 10 years, coupled with heavy fine (Gostin and Hodge, 2009).
Of course, it should also be notified that there are many shortcomings in the use of legal means to control spreading HIV. Firstly, the use of legal penalties is likely to cause social discrimination against AIDS patients, resulting in the stereotype that AIDS patients will be equivalent to perpetrators, and AIDS patients’ legal rights such as: privacy protection will be violated (Dodds, Bourne and Weait, 2009). Secondly, there is not enough evidence to show that the legal means of punishment can bring about public health benefits, but undermine existing public health efforts. For example, it undermines the relationship between AIDS patients and health professionals and researchers, so that many HIV transmission behaviors become underground and it is difficult to be found and managed, which on the one hand increases the cost of management of HIV transmission, on the other hand, it prompts underground HIV transmission (Gable, Gostin and Hodge, 2009). Finally, the use of legal penalties is likely to result in spreading HIV in prisons, because sexual intercourse with high risk are likely to happen in prisons and it is difficult to have an access to needles and condoms in prisons (Graham, Treadwell and Braithwaite, 2008).
2.2 Non-punitive measures
The legal governance of people at high risk of HIV agrees with the objective of establishing social order. However, there is an important objective for a country's strategy for governance of people at high risk of HIV, namely, the goal of public health through behavioral interventions towards a high-risk population of people living with HIV to achieve the goal of reducing the harm caused by HIV and other diseases to achieve the purpose of prevention and control of the spread of diseases to create a favorable public health environment (Mayer, Mimiaga and Safren, 2017). 
The 100% condom promotion program in Thailand, which began in 1991, has resulted in a significant reduction in HIV prevalence among sex workers. It is considered to be "an effective measure to prevent and control the spread of HIV through sex, and it is also a low-input, high-yield intervention" approach adopted by UNAIDS and promoted worldwide (Chidrawi, Greeff, Temane and Doak, 2016).
Methadone and other appropriate drugs are used for maintaining treatment towards drug addicts to reduce dependence on drugs, so as to reduce HIV infection and spread caused by injecting drug to reduce disease, death and crime caused by drug addiction (Chidrawi, Greeff, Temane and Doak, 2016).
The importance of needle exchange in the spread of HIV has been recognized by many governments and organizations, and they have taken certain measures to intervene. In the United States, efforts to prevent the spread of blood-borne diseases among drug addicts rely on a network of more than 100 needle exchange programs (SEPs). SEPs are through providing clean needles to reduce AIDS and other blood-borne diseases (Chidrawi, Greeff, Temane and Doak, 2016).#p#分页标题#e#
It should be noted that behavioral interventions are not only the above three, it also includes health education, testing and so on. Generally speaking, behavioral intervention is a kind of HIV prevention and control measure which is distinctly different from legal control. It more focuses on achieving the goal of AIDS prevention and control from the perspective of public health. With the increasing importance of behavioral interventions attached by governments, more and more epidemiological studies have revealed the possibility and necessity of behavioral intervention in HIV prevention and control. Vergidis and Falagas’s (2009) results have showed that there are less than a third of the target population were willing to use condoms before the intervention. After the intervention, the target population's AIDS knowledge rate increased significantly, the number of who used condoms significantly increased.
Mayer, Mimiaga and Safren’s (2017) survey results showed that drug users' needle sharing rate, water and container sharing rate decreased significantly after intervention, and the number of drug users' daily injections was also significantly reduced. Therefore, it is believed that needle exchange combined with propaganda interventions can not only significantly reduce drug users' sharing of needles, washing water and containers, but also reduce the frequency of drug users' needles sharing, while it will not increase the number of drug addicts' drug injections.
Certainly, it should be noted that behavioral interventions of HIV is also facing a dilemma, there is an obvious conflict between legal punishment policy and HIV intervention, some people advocate "legalization of sex", which can not get moral and legal support; part of the public misunderstand  commercial sexual interventions, they suggest that interventions carried out towards sex workers are an indulgence of illegal behavior; sex workers are in a weak position in sex trade and they can not decide whether to use condoms (Chidrawi, Greeff, Temane and Doak, 2016). The widespread use of condoms as an important measure of HIV prevention and control, which has been widely understood and supported by the public, but there has been widespread ethical and legal controversy from the outset of implementation of the measure, and many people are worry about that it will encourage juvenile promiscuous sexual activity, Extra-marital sexual activity and even prostitution activities, the controversy has a direct impact on the practical effect of condom promotion (Mayer, Mimiaga and Safren, 2017).
2.3 Discussion
Whether HIV transmission should be punished is a complex issue. Before discussing this issue, it is necessary to clarify the principled views of the government and the public on HIV transmission. According to Mayer, Mimiaga and Safren’s (2017) research, the author believes that at least the following three principles should be definite, first, it should be able to effectively control HIT transmission. Second, whether it is in line with the principle of economic costs, whether it is feasible. Finally, it should protect the rights of AIDS patients.
Considering from the view of effectiveness, the legal means for the deliberate HIV transmission is  clear and severe, which can not only deter those who have the intention to transmit HIV, but also prevent them to continue to harm other people, however, for unconscious HIV transmission behavior, the role is not significant (Graham, Treadwell and Braithwaite, 2008). The use of behavioral interventions and other non-punitive means plays an important role in the control of unconscious HIV transmission behavior, because it helps to popularize and enhance public awareness of anti-HIV, for those who have behavior of intentional transmission of HIV, it lacks coercion (Chidrawi, Greeff, Temane and Doak, 2016).
From the feasibility point of view, using legal means to punish HIV transmission behavior will allow some patients with HIV to hide their identity, which increases the cost of controlling HIV transmission, and for those who spread HIV consciously, legal means also increases their crime costs, deterring them. The use of non-punitive means allow HIV carriers to accept control frankly, which can indeed reduce management costs, but for people who consciously spread HIV, behavioral interventions are actually invalid, that is, the costs for behavioral interventions towards them are actually waste.
From the rights point of view, the use of non-punitive means can really guarantee the rights of people with AIDS, and the use of legal means to punish people with behavior of HIV transmission will violate the patients' rights, but this rights damage is not unavoidable, such as infringing privacy, causing discrimination, limiting the access to condoms of AIDS patients in prisons, etc., through a series of measures can effectively reduce damage of their rights. For instance, it should protect personal privacy while investigating and forensics for trials, publicizing in public about the differences between AIDS patients and those who transmit HIV intentionally to reduce public discrimination against AIDS patients, reduce public discrimination, it should strengthen prison management to provide more condoms and other HIV prevention tools and medicines (Weber and Grant, 2015). 
Considering from the perspective of social and public health, the use of non-punitive means has lot of benefits, but for those who have intention to transmit HIV, the control is not enough. Based on the above analysis, the means of punishment for behavior of conscious spread of HIV has more control, and the costs will not be increased a lot, the ethical issues brought can also be under control, while non-punitive means can control behavior of unconscious HIV transmission better. Then from this point of view, whether punishment means should be adopted towards HIV transmission depends on what kind of control objects it faces. The author comments that people who have behavior of spreading HIV intentionally should be punished by laws. The reasons are listed as follows. First, according to data in the United States, in 2011 there were about 1.2 million people carrying HIV. Among this group of people, 14% of them did not know that they were infected with the deadly virus (Chidrawi, Greeff, Temane and Doak, 2016), which means that only 14% of people can be completely ruled out from the possibility of intentionally spreading HIV, the vast majority of people who spread HIV are aware of their infection with the virus. Second, the behavior of transmitting HIV intentionally is very bad, because they deliberately take no protective measure, resulting in more possibility of spreading HIV, at the same time, events of deliberately spreading HIV are also likely to cause public panic after disclosure, it will also cause the public’s negative stereotypes for AIDS patients. Finally, if those who spread HIV consciously are not punished by laws, it will go against the spirit of existing law, because in essence, intentionally spreading HIV and other intentional assault have a lot in common (Gable, Gostin, Hodge. 2009).  
Actually, the use of legal punishment for intentional HIV transmission behavior is not appropriate in the following circumstances, such as there is no obvious risk in the HIV transmission behavior; it is not clear that whether HIV can be transmitted; disclosure of his / her HIV-positive status will bring serious negative consequences and risks; reasonable measures have been taken to reduce the risk of HIV transmission, or the two sides in advance accept the possible risks to reach a consensus (Chidrawi et al., 2009).
3.0 Conclusion
Judging from the perspective of social and public health, the use of non-punitive means has a lot of benefits, but for those who transmit HIV intentionally, the control is not enough. The punishment means for behavior of spreading HIV consciously has more control, and the costs will not be increased a lot, the ethical problems brought can also be under control, and non-punitive means can control the behavior of unconscious spread of HIV better. The author suggests that those who spread HIV intentionally should be punished by law. The reasons are shown as follows: first, only 14% of people can completely rule out the possibility of intentionally spreading HIV, the vast majority of people who know that they have been infected with HIV before they transmit the virus to other people. Second, the behavior of spreading HIV intentionally is very bad. Thirdly, setting free those who have intention to spread HIV goes against the spirit of existing laws. Of course, the use of legal punishment for intentional HIV transmission behavior is not appropriate in some special circumstances.
 
References
Balisanga, H. et al. (2016). HIV surveillance in Rwanda: readiness assessment to transition from antenatal care-based to prevention of mother-to-child transmission program-based HIV surveillance. International Journal of Infectious Diseases, 52(11), 62-67.
Brown, W., Hanefeld, J. and Welsh, J. (2009). Criminalising HIV transmission: punishment without protection. Reproductive Health Matters, 17(34),119-126.
Chidrawi, H. C., Greeff, M., Temane, Q. M. and. Doak, C. M. (2016). HIV stigma experiences and stigmatisation before and after an intervention. Health SA Gesondheid, 21(12), 196-205.
Dodds, C., Bourne, A. and Weait, M. (2009). Responses to criminal prosecutions for HIV transmission among gay men with HIV in England and Wales. Reproductive Health Matters, 17(34), 135-145.
Gable, L., Gostin, L. and Hodge, J.G. (2009). A global assessment of the role of law in the HIV/AIDS pandemic. Public Health, 123(3), 260-264.
Graham, L. F., Treadwell, H. M. and Braithwaite, K. (2008). Social policy, imperiled communities and HIV/AIDS transmission in prisons: a call for zero tolerance. Journal of Men's Health, 5(4), 267-273.#p#分页标题#e#
Haffejee, F., Ports, K. A. and Mosavel, M. (2016). Knowledge and attitudes about HIV infection and prevention of mother to child transmission of HIV in an urban, low income community in Durban, South Africa: Perspectives of residents and health care volunteers. Health SA Gesondheid, 21(12), 171-178.
Mayer, K. H., Mimiaga, M. J. and Safren, S. A. (2017). 90 - bio-behavioral interventions to prevent HIV transmission. Infectious Diseases (Fourth Edition), 2, 824-828.
Sanon, P. et al. (2009). Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso. Reproductive Health Matters, 17(34), 146-153.
Vergidis, P. I. and Falagas, M. E. (2009). Meta-analyses on behavioral interventions to reduce the risk of transmission of HIV. Infectious Disease Clinics of North America, 23(2), 309-314.
Weber, S. and Grant, R. M. (2015). Ending sexual HIV transmission: lessons learned from perinatal HIV. Journal of the Association of Nurses in AIDS Care, 26(5), 520-525.
 


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