AIDS and the law: weigh justice with compassion

WHILE society grapples with the social and moral issues surrounding AIDS, lawyers and lawmakers are now facing the potential criminal implications of the willful, or careless, transmitting of this disease. Pending prosecutions and legislation speak to new circumstances, at least those that until recently had not generally come to light. The underlying legal questions, however, are perennial ones. They include the issue of public protection and societal rights on the one hand and individual liberties and privacy guarantees on the other.

Here, as in so many other civil and criminal situations, justice demands a delicate balance of considerations.

Acquired immune deficiency syndrome (AIDS) raises strong emotions because of the plight of its victims and the fear of contagion.

So it is particularly important that, in making legal determinations, principle is weighed with compassion; the desire to check matched with the will to heal or find solutions. Public action should be motivated not by fear of or resentment toward homosexuals, supposedly the prime carriers of the disease in Western countries.

Finding ways to curb AIDS is certainly sound government policy. It is also of public benefit to disseminate accurate information about the subject to calm hysteria and anger. Further, it is imperative to make certain that victims of this condition - whether criminally suspect or not - are afforded the same civil rights and protections as others.

An article on ``AIDS and the legal system: The Challenge of the Eighties'' in the current issue of Human Rights magazine, pinpoints the needed delicate balance.

It is stressed that legal decisions regarding AIDS must be based on known medical knowledge, sound legal judgment, and human sensitivity. The author also points out that it should be acknowledged that AIDS is different from other sexually transmitted diseases because of the fear, stigma, discrimination, and fatality associated with it.

Human Rights, a quarterly published by the American Bar Association, reports that ``virtually all areas of the law will be affected, challenged and modified to respond to the social impact of the disease.''

Among the specific legal questions being raised are: How should liability be assessed when a person contracts AIDS from a blood transfusion? Should child custody or visitation rights be restricted for a parent with the disease? Is mandatory testing an invasion of privacy?

Court cases in California and Minnesota and a military court-martial in Arizona, among others, have attracted increased attention to the problem, and helped to prod tough, new proposed legislation to deal with it.

In Los Angeles, for example, a man was charged with attempted murder for allegedly selling his AIDS-contaminated blood and engaging in prostitution although he supposedly knew he was carrying the AIDS virus. And a Minneapolis prison inmate who bit a guard was the first person with AIDS ever convicted by a federal jury for assault with a deadly weapon.

Meanwhile, an Army private is now being prosecuted by the military for supposedly willfully transmitting the disease by engaging in sex with two soldiers.

According to National Law Journal statistics, more than a dozen states are now considering criminal statutes for conscious transmission by AIDS carriers.

Florida and Idaho have already made it a crime to deliberately or knowingly expose other persons to the AIDS virus.

Among other state measures, proposed or pending, is a California proposal to make it a felony - punishable by six years in prison - to donate blood after testing positively for AIDS.

New Jersey legislation would criminalize the engaging in sexual activity by a person who knows he or she carries the virus. Violators could face up to five years in jail and a $7,500 fine.

A Nevada law now calls for a 20-year prison term for AIDS carriers who knowingly sell sex.

Congressional proposals would also assess criminal penalties on those in the so-called ``high risk'' groups who donate blood, organs, or semen. Those targeted are intravenous drug users, prostitutes, and men who have engaged in homosexual activity in the past decade.

New York Gov. Mario Cuomo, a strong advocate of criminal laws to curb AIDS, has called the deliberate or reckless transmission of this virus ``a sin against the community, a crime.''

Individual-rights groups - among them the American Civil Liberties Union and Lambda Legal Defense and Education Fund (a gay legal services organization) - insist, however, that the spread of AIDS is a medical crisis and is not easily remedied by legal solutions.

At the same time, legal experts stress the difficulty of proving specific intent to transmit the virus - which is paramount to successful prosecution.

A Thursday column

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