Court Throws Out Unconstitutional AIDS Law

[MOON Ki]

From another TOP:

http://jukwaa.proboards.com/thread/9317/willy-mutunga-opts-early-retirement

I wish him happy retirement. I think his timing is sincere.

On another note, i was disturbed by one of the recent ruling of the CA; that HIV status needs not be disclosed to a 'sexual contact' and that it is "unconstitutional" to do so!

What a rotten judgement that was. Those judges have no idea what they have just done. They are in my mind complicit in mass murders but that is a topic I wanted to start seperately.

I don't see it that way.   If you look at the act, you will note that it includes the sort of thing that would be prosecuted in the, say, the UK or the USA:

(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected.

http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/HIVandAIDSPreventionandControlAct_No14of2006.pdf

The problem has always been this bit: 



And the difficulty is that the law does not say what "sexual contact" is, but nevertheless intends to prosecute on the basis of undefined terms.   

Suppose, for example, that a woman intends to get off by having a man suck her breasts and do some fingering, or a man intends to get off from having a woman do a hand-job on him, or a couple engages in what is sometimes called dry fucking.    Each of those is undoubtedly a sexual contact, but neither party is in any danger of anything; in fact, people who might otherwise want to go the whole hog will settle for such lesser activities precisely because they do not involve any risk.    But under the law, as it stood, either party could have faced a lengthy jail sentence for not revealing HIV status, which, in such cases, would be going a bit far.   In contrast, (2) clearly indicates placing a person at risk.

I think the legislators can still fix the law by specifying what they mean by "sexual contact" and making sure that it is line with (2).  But having people disclose status where there is clearly no need to do so puts them at unnecessary risk of stigma and discrimination; the law should offer protection against that. 

(With consenting adults, the mere desire to fuck, however strong and however expressed, should not be treated in the same manner as actually fucking. The part of the law that has been rejected did not make that distinction.)

[Bella]

the latter are not under any duty to keep such information confidential.

This, from the article, I think is a fair complaint. The other one, also in the article and raised by MoonKi, on defining in precise terms "sexual contact" is also valid. Looking at the article,it does not seem that the judges or the NGO/petitioner have a problem with the requirement of honesty per se. What they appear to object to is the vagueness and loopholes which leave much room for abuse. I personally think that requiring people to disclose their known H.I.V status (+, -, untested) before exchanging bodily fluids like blood and semen is only commonsensical.

[Kim Jong-Un's Pajama Pants]

From another TOP:

http://jukwaa.proboards.com/thread/9317/willy-mutunga-opts-early-retirement

I wish him happy retirement. I think his timing is sincere.

On another note, i was disturbed by one of the recent ruling of the CA; that HIV status needs not be disclosed to a 'sexual contact' and that it is "unconstitutional" to do so!

What a rotten judgement that was. Those judges have no idea what they have just done. They are in my mind complicit in mass murders but that is a topic I wanted to start seperately.

I don't see it that way.   If you look at the act, you will note that it includes the sort of thing that would be prosecuted in the, say, the UK or the USA:

(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected.

http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/HIVandAIDSPreventionandControlAct_No14of2006.pdf

The problem has always been this bit: 



And the difficulty is that the law does not say what "sexual contact" is, but nevertheless intends to prosecute on the basis of undefined terms.   

Suppose, for example, that a woman intends to get off by having a man suck her breasts and do some fingering, or a man intends to get off from having a woman do a hand-job on him, or a couple engages in what is sometimes called dry fucking.    Each of those is undoubtedly a sexual contact, but neither party is in any danger of anything; in fact, people who might otherwise want to go the whole hog will settle for such lesser activities precisely because they do not involve any risk.    But under the law, as it stood, either party could have faced a lengthy jail sentence for not revealing HIV status, which, in such cases, would be going a bit far.   In contrast, (2) clearly indicates placing a person at risk.

I think the legislators can still fix the law by specifying what they mean by "sexual contact" and making sure that it is line with (2).  But having people disclose status where there is clearly no need to do so puts them at unnecessary risk of stigma and discrimination; the law should offer protection against that. 

(With consenting adults, the mere desire to fuck, however strong and however expressed, should not be treated in the same manner as actually fucking. The part of the law that has been rejected did not make that distinction.)

MOON Ki,

Even tweaking the same law still comes off as discriminatory.  That is because the same requirement is not expected of people with highly contagious syphilis, TB, schizophrenia etc.  Yet someone born HIV+ would be required to disclose this private fact.

It is just going overboard in a situation where people already have the right to use their judgement.  If someone tells you I don't want to tell you my HIV status and you go ahead and enjoy ding dong with them, why should they, and not you, be held liable just because they happen to be HIV+?

[Bella]

Terminator, I think if someone says "I dont want to say either way", that person has given enough information. I do think if he has not had such a convo with the person, exchanging bodily fluids ought to be illegal without something like that if one person knows he's HIV+. I do agree that the same ought to be required of all STDs or indeed any dangerous contagious illness that is known to the sufferer and callously spread without necessity (necessity like, say trying to get to a hospital or to meet some other basic need)