The criminalization of HIV and the significance of knowledge: a comparative study
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
- Full Text:
- Date Issued: 2018
- Authors: Du Toit, Michelle Christine
- Date: 2018
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , HIV infections -- Law and legislation -- South Africa Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/29915 , vital:30793
- Description: Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered.
- Full Text:
- Date Issued: 2018
Understanding the contributions of the Treatment Action Campaign and Section27 to a Rights-Based Approach to HIV and AIDS in South Africa
- Authors: Dlamini, Nomalanga
- Date: 2017
- Subjects: Treatment Action Campaign , SECTION27 (Braamfontein, South Africa) , AIDS (Disease) -- Prevention -- South Africa , AIDS (Disease) -- Law and legislation -- South Africa , Public health laws -- South Africa , AIDS (Disease) -- Patients -- Legal status, laws, etc. -- South Africa , AIDS (Disease) -- Patients -- Civil rights -- South Africa
- Language: English
- Type: Thesis , Masters , MSocSc
- Identifier: http://hdl.handle.net/10962/4690 , vital:20713
- Description: This thesis examines the link between social movements with the legal system to enforce human rights within the public health sector in regards to access to HIV and AIDS-related disease treatment. Research shows large scale incapacity for the provision of such essential medications within the public health sector; this is not merely an issue for those in the developing world. This thesis demonstrates that it is an issue that is faced by those using the public health sector services to access essential HIV and AIDS medications and it shows that certain people are unaware of their human rights to have fair and equal access to such essential medications. Although there is abundant research studies on HIV and AIDS in South Africa, there is a lack of studies that look into the impact that social movements have had in strong-arming, to a certain extent, the government in holding it accountable for infringing its constitutional promises to all citizens. This thesis is set against a backdrop where, the crisis of lack of access to essential medications in the public health sector which is closely intertwined with the collapsing health care system and it is combined with the issues of international patent policy for essential medication and developing countries like South Africa, who are trying to tackle this hurdle straight on. This thesis argues that the social injustices of rights violations integrated with the issues of international patent laws aggravate the access to essential medications in the public health sector in the country. This thesis adopts the use of a Rights-Based Approach, which is built on the foundational understanding that at the centre the focus is on human rights. In using the rights-based approach the intention is to outline ways in which to improve and further develop the ability of individuals and communities to recognize their rights. The findings show that the important factor of using a Rights- Based Approach is that it puts the pressure on the state to legitimately fulfil its obligation to its people. Thus the thesis evaluates the use of combining the legal system to enforce human rights and the role of social movements to realize the right to health for South Africans that use the public health sector to access essential HIV and AIDS antiretroviral drugs. This research paper shows that the Treatment Action Campaign and Section27 have contributed to the recent transformation of the public health sector in South Africa. They have achieved this through the implementation of rights-based education campaigns as well as HIV and AIDS education particularly geared for those that use the public health sector facilities, to attain access to essential medications; not only for HIV and AIDS but also for tuberculosis and other AIDS-related disease treatment. The thesis further highlights that the Treatment Action Campaign and Section27 have assisted in greatly improving the access to HIV and AIDS essential medications for prevention of Mother to Child Treatment Programs. The findings of the research paper outline that the main issue lies in the fact that even though essential medications for HIV and AIDS are now more available, the medical infrastructure is one of the main problems accounting for the lack of service delivery of these essential medications in the country’s public health sector.
- Full Text:
- Date Issued: 2017
- Authors: Dlamini, Nomalanga
- Date: 2017
- Subjects: Treatment Action Campaign , SECTION27 (Braamfontein, South Africa) , AIDS (Disease) -- Prevention -- South Africa , AIDS (Disease) -- Law and legislation -- South Africa , Public health laws -- South Africa , AIDS (Disease) -- Patients -- Legal status, laws, etc. -- South Africa , AIDS (Disease) -- Patients -- Civil rights -- South Africa
- Language: English
- Type: Thesis , Masters , MSocSc
- Identifier: http://hdl.handle.net/10962/4690 , vital:20713
- Description: This thesis examines the link between social movements with the legal system to enforce human rights within the public health sector in regards to access to HIV and AIDS-related disease treatment. Research shows large scale incapacity for the provision of such essential medications within the public health sector; this is not merely an issue for those in the developing world. This thesis demonstrates that it is an issue that is faced by those using the public health sector services to access essential HIV and AIDS medications and it shows that certain people are unaware of their human rights to have fair and equal access to such essential medications. Although there is abundant research studies on HIV and AIDS in South Africa, there is a lack of studies that look into the impact that social movements have had in strong-arming, to a certain extent, the government in holding it accountable for infringing its constitutional promises to all citizens. This thesis is set against a backdrop where, the crisis of lack of access to essential medications in the public health sector which is closely intertwined with the collapsing health care system and it is combined with the issues of international patent policy for essential medication and developing countries like South Africa, who are trying to tackle this hurdle straight on. This thesis argues that the social injustices of rights violations integrated with the issues of international patent laws aggravate the access to essential medications in the public health sector in the country. This thesis adopts the use of a Rights-Based Approach, which is built on the foundational understanding that at the centre the focus is on human rights. In using the rights-based approach the intention is to outline ways in which to improve and further develop the ability of individuals and communities to recognize their rights. The findings show that the important factor of using a Rights- Based Approach is that it puts the pressure on the state to legitimately fulfil its obligation to its people. Thus the thesis evaluates the use of combining the legal system to enforce human rights and the role of social movements to realize the right to health for South Africans that use the public health sector to access essential HIV and AIDS antiretroviral drugs. This research paper shows that the Treatment Action Campaign and Section27 have contributed to the recent transformation of the public health sector in South Africa. They have achieved this through the implementation of rights-based education campaigns as well as HIV and AIDS education particularly geared for those that use the public health sector facilities, to attain access to essential medications; not only for HIV and AIDS but also for tuberculosis and other AIDS-related disease treatment. The thesis further highlights that the Treatment Action Campaign and Section27 have assisted in greatly improving the access to HIV and AIDS essential medications for prevention of Mother to Child Treatment Programs. The findings of the research paper outline that the main issue lies in the fact that even though essential medications for HIV and AIDS are now more available, the medical infrastructure is one of the main problems accounting for the lack of service delivery of these essential medications in the country’s public health sector.
- Full Text:
- Date Issued: 2017
The criminalization of HIV/AIDS : a comparative analysis
- Authors: Myburgh, Rene
- Date: 2013
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sexually transmitted diseases -- Law and legislation -- South Africa. , HIV-positive persons -- Legal status, laws, etc. -- South Africa , Liability (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10185 , http://hdl.handle.net/10948/d1020754
- Description: The Human Immunodeficiency Virus (HIV)1 and the Acquired Immunodeficiency Syndrome (AIDS)2 have become a global epidemic. With an average of 35.3 million people infected with the virus worldwide, countries are desperate to curb HIV infections.3 Most HIV positive men, women and children are found in Sub-Saharan Africa.4 In an attempt to fight HIV/AIDS, some countries have opted for an approach of criminalization, where it is a crime to infect or expose another person to the virus.5 Other countries, such as South Africa, have chosen to avoid the criminalization approach, and to focus rather on public health schemes that can assist in the prevention of transmission. The United Nations (UN) has stated that overly broad application of criminal law to HIV raises serious human rights and public health concerns.7 Because of these concerns, the Joint United Nations Programme on HIV/AIDS (UNAIDS) has urged states to limit application of criminal law to HIV-related cases.8 Furthermore, UNAIDS has urged states to rather employ scientifically proven methods to prevent HIV transmission. This treatise will set out the laws adopted by Canada, Zimbabwe, the United Kingdom, New Zealand and South Africa. Out of all five countries, South Africa is the only country that does not criminalize HIV transmission or exposure.10 In setting out the common law, statute law, case law as well as academic considerations, this treatise will attempt to identify trends in the current criminalization of HIV climate. In addition to setting out the law in the five countries, this treatise seeks to show that South Africa is one of the few countries with a developed legal system to shy away from criminalization. This treatise also seeks to establish whether South Africa’s approach is a suitable option for the country, considering it boasts the highest HIV infection rate in the world.
- Full Text:
- Date Issued: 2013
- Authors: Myburgh, Rene
- Date: 2013
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sexually transmitted diseases -- Law and legislation -- South Africa. , HIV-positive persons -- Legal status, laws, etc. -- South Africa , Liability (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10185 , http://hdl.handle.net/10948/d1020754
- Description: The Human Immunodeficiency Virus (HIV)1 and the Acquired Immunodeficiency Syndrome (AIDS)2 have become a global epidemic. With an average of 35.3 million people infected with the virus worldwide, countries are desperate to curb HIV infections.3 Most HIV positive men, women and children are found in Sub-Saharan Africa.4 In an attempt to fight HIV/AIDS, some countries have opted for an approach of criminalization, where it is a crime to infect or expose another person to the virus.5 Other countries, such as South Africa, have chosen to avoid the criminalization approach, and to focus rather on public health schemes that can assist in the prevention of transmission. The United Nations (UN) has stated that overly broad application of criminal law to HIV raises serious human rights and public health concerns.7 Because of these concerns, the Joint United Nations Programme on HIV/AIDS (UNAIDS) has urged states to limit application of criminal law to HIV-related cases.8 Furthermore, UNAIDS has urged states to rather employ scientifically proven methods to prevent HIV transmission. This treatise will set out the laws adopted by Canada, Zimbabwe, the United Kingdom, New Zealand and South Africa. Out of all five countries, South Africa is the only country that does not criminalize HIV transmission or exposure.10 In setting out the common law, statute law, case law as well as academic considerations, this treatise will attempt to identify trends in the current criminalization of HIV climate. In addition to setting out the law in the five countries, this treatise seeks to show that South Africa is one of the few countries with a developed legal system to shy away from criminalization. This treatise also seeks to establish whether South Africa’s approach is a suitable option for the country, considering it boasts the highest HIV infection rate in the world.
- Full Text:
- Date Issued: 2013
Criminalisation of HIV/AIDS in South Africa: a critical look at the Criminal Law (Sexual offences and related matters) Amendment Act 32 of 2007
- Authors: Ndawula, Barnabas
- Date: 2010
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10167 , http://hdl.handle.net/10948/1280 , AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Description: Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.
- Full Text:
- Date Issued: 2010
- Authors: Ndawula, Barnabas
- Date: 2010
- Subjects: AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10167 , http://hdl.handle.net/10948/1280 , AIDS (Disease) -- Law and legislation -- South Africa , Sex crimes -- South Africa
- Description: Human Immuno Virus (HIV) and Acquired Immuno Deficiency Syndrome (AIDS) have formed part of the South African landscape since the first report in 19831and today South Africa is reported to be the country with the highest number of people living with HIV/AIDS in the World2. This state of affairs, in combination with South Africa’s high sexual crime rate resulted in a general public out-cry with calls for the government and the legislature to enact laws to stem the spread of HIV/AIDS3. Government and the legislature finally responded by way of promulgating the criminal law (sexual Offences and related matters) Amendment Act4 (hereinafter the sexual Offences Act). The Sexual Offences Act inter alia provides for the compulsory testing of alleged offenders of sexual crimes5 This treatise will show that chapter five of the sexual Offences Act, indirectly criminalises HIV/AIDS, and that this is not desirable. It will be submitted that the criminalisation of HIV is against the stated UNAIDS policy 6 It is finally submitted in this treatise that South Africa should repeal all provisions in its law that directly or indirectly criminalises HIV/AIDS transmission and instead follow both and is a deterrent to public health methods of curbing the epidemic, while at the same time exacerbates the spread of the epidemic by forcing people who are HIV positive not to openly come out. It will be argued in the use of criminal law against the transmission of HIV creates stigma and is also an attack on individual human rights. The study will also show that the supposed marginalised persons, such as women and children are not protected by the use of criminal law in the prevention of HIV transmission, contrary to the arguments of the proponents of those who support the use of criminal law. The study will show that far from protecting these marginalised groups of people, criminalisation of HIV transmission, does in fact hurt them the UNAIDS policy and the South African development corporation (SADC) Model Law on HIV and AIDS.
- Full Text:
- Date Issued: 2010
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