This post has been contributed by Professor Jill Marshall, Module Convenor for Jurisprudence and legal theory.
It is 40 years since the onset of the HIV and AIDS epidemic. The recent highly praised UK Channel 4 Series, It’s a Sin is a drama by writer Russell T Davies detailing the lives of four young gay men and one young woman in a flat-share in London set against the first decade of the epidemic. The series shows the ignorance, stigma and shame surrounding the illness at the time which hit the gay community hard. There are recollections of the UK government AIDS leaflets which passed through every British letterbox (SILENCE = DEATH) and TV public information advertisements shown depicted tombstones emblazoned with DON’T DIE OF IGNORANCE. For many of us who were children and young people at the time, these were part of daily life ads on TV or leaflets through the door. For others, this was a life and death situation. Once caught, HIV – human immunodeficiency virus – was a death sentence. This is no longer the case. HIV damages the cells in immune systems and weakens the ability to fight everyday infections and disease. AIDS is acquired immune deficiency syndrome and is the name of a number of potentially life-threatening infections and illnesses that happen when the immune system has been severely damaged by the HIV virus.
Since the 1980s, there has been much research and medical developments, supported by policy and legal implementation. Today with testing and diagnosis, most people with the virus have effective treatments and will not develop any AIDS-related illnesses, so they can live a long and healthy life.
The TV series, and the 40th Anniversary, provides a moment to rethink prejudice and policy, and to reinforce progressive attitudes towards those living with illness. At the time, much prejudice existed with corresponding shifts and tensions towards regulation and discrimination but also towards empathy and understanding. In what ways can you relate this to your liberalism and the law chapter, and beyond, in the Jurisprudence course? What does this example tell us about the relationship between morality and liberty? HLA Hart, in the Hart-Devlin debate, echoing John Stuart Mill, makes clear that law should only step in to interfere with people’s freedoms when their actions cause harms to others. Otherwise, what people choose to do in their private lives, their own moral compass, is not ‘the law’s business’. The title of the programme is a deliberate play on the song by the Pet Shop Boys of the same name with its moral connotations of transgression. Many laws and policy-related guidance came in as a result of HIV and AIDS concerning the giving of blood, workplace restrictions, transmission of the virus and consequences for those involved. Some continue in existence. Scholars continue to argue these unduly punish gay men.
I understand that “the law used in England and Wales to prosecute people for HIV transmission is the Offences Against the Person Act 1861 (OAPA 1861). People are prosecuted under the section on grievous bodily harm. There are two possible offences – reckless transmission (under Section 20) and intentional transmission (under Section 18).
Jurisprudentially speaking, it coerces a person to be more responsible towards others. A person with HIV or AIDS can play a more positive role by preventing it from infecting others by being ‘civic-minded’ – more thoughtful and not reckless. Isn’t it reasonable to confine one’s personal practice private rather than indiscreetly infecting others? Surely the enjoyment or pleasure gained should not be at the expense of others. I think an HIV or AIDS person can still contribute back to the society by not aggravating the situation or harming another person. This is indeed a unique service or contribution to the society he lives in by keeping the infections down through social responsibility. A few years ago, I wanted to donate some blood to the hospital but it was rejected on my declaration that I was in UK during the Mad Cow Disease’s outbreak. In one sense I have contributed back to the society by allaying fear and worries to the blood donation team and also preventing my ‘questionable’ blood from reaching the blood bank. I am glad I made an honest declaration regarding my status lease I pass on my “ latent mad cow disease ‘ to another person who needs my blood.