29/11/2020 | Writer: Defne Güzel

“Those living with HIV do not have to share their HIV status. No article in the law obliges individuals to do so.”

Justice against violation, solidarity against discrimination/Hatice Demir Kaos GL - News Portal for LGBTI+

One of the most evaluated topics in the discussions about HIV is the field of law. The “intentional injury” clause in the law hangs over us like the sword of Damocles. On the other hand, violations of privacy, health and right to work threaten the lives of persons living with HIV.

So what do the laws say? Attorney Hatice Demir, who also provides legal counseling at Pozitif-İz Association, answered our questions in our AIDS in Syringe article series.

Reminding that everyone should be attentive when talking about the laws, Demir states, “Otherwise, the law is no longer a tool to ensure justice and compensate for damage, and turns into a whip to talk about the limits of rights and freedoms.” And also says,

“Those living with HIV do not have to share their HIV status. No article in the law obliges individuals to do so.”

Lets talk about Article 86 of the Turkish Penal Code, that is, the crime of intentional injury. How is this article related to the HIV issue?

Article 86 of the Penal Code includes intentional injury, while Article 87 includes aggravated injury. According to these articles, “If the act of intentional injury results in

an incurable illness or causes a vegetative state in the victim”, this situation becomes a reason to increase the penalty. This article is of course not an article prepared by considering HIV. However, in the case of HIV and, more broadly, sexually transmitted infections (STIs), this article comes to the fore when someone is infected an infection deliberately or by taking into account the “infection risk”. This article is often referred to HIV because HIV falls into the category of “a disease that cannot be cured”. Of course, there are certain conditions for the imposing this article when it comes to HIV.

The first of these conditions is that the persons to be aware of their HIV status. In cases where the persons do not know their status, this can be opened up for a discussion if the crime was committed by negligence if the transmission occurs. These are the issues discussed in the theoretical criminal law. However, in practice, there are some cases occur such as when it is not known which of the parties was infected the other first in such a situation.

Secondly, the person must have such a viral load that can transmit HIV. In the case of U equals U, that is, “Undetectable=Untransmittable”; the viral load of the person is reduced to undetectable, so the risk of transmission is eliminated.

Thirdly, when the person refrains from being protected despite being able to transmit the infection.

Finally, despite all these, HIV transmission must have occurred. It is obvious that it will then be necessary to prove that the transmission took place through the relationship with the accused person.

In addition to all these conditions, scientific developments also affect the implementation of the law. I would like to remind you absolutely and in any case that; in law, every concrete incident has its own characteristics and each of these is evaluated separately. Therefore, any legal article should not be taken out from its own context and not be put forward like the solution to all question marks and problems. Therefore, lawyers, but mostly the ones who are not lawyers, should be attentive when talking about these issues. Otherwise, the law is no longer a tool to ensure justice and compensate for damage, and turns into a whip to talk about the limits of rights and freedoms.

In the light of all this information, do those living with HIV have to state their status? In addition, what can be done in case of violation of disclosure of persons’ status and their right to privacy?

This is a very broad question. Do persons living with HIV have to state their status? To whom? Under what conditions? By what method? To partner, doctor, employer, parent… Certainly, a separate discussion is carried out for each and every adjective that we cannot count, but more importantly for each condition. As I said before, the law or legal information should not be used like a single solution. A separate assessment should be made for each concrete situation. Nevertheless, we should not hesitate to say the following in the discussion of rights and freedoms; those living with HIV do not have to share their HIV status. No article in the law obliges individuals to do so.

Regarding the violation of the right to privacy, the legal instruments we will use will vary depending on from whom the violation originates. For example, if the privacy is violated by a doctor, application to a prosecutor’s office and a case for compensation may be brought to the agenda in addition to various administrative applications. If it is violated by a partner or friend, application to a prosecutor’s office and a case for compensation may be brought up.

In addition to the violation of privacy, one of the most common issues is the threat. In other words, there is a threat and sometimes even blackmail that this information to be spread. For these and all similar situations, we recommend persons to contact the associations working in the field and get a legal support. I would like to say that getting counseling from a lawyer before making legal applications helps a lot to prevent the violation of rights.

In addition to what you listed, persons living with HIV are also subjected to unfounded health checks during job application processes or are dismissed because they live with HIV. What is your opinion about these issues?

There are situations such as asking for HIV test results during the employment processes or being subjected to HIV testing without the consent of the person during health checks. HIV is not an obstacle for doing any job. Therefore, it is discriminatory not to be employed because of living with HIV. So why is HIV testing required? So why would it be requested if the test result would not affect the employment? It does not make any sense. If only we could say; in order to carry out routine health checks of persons living with HIV, studies should be carried out to regulate their sick leave rights during the time of going to the hospital and therefore the employer should know the status of the persons in that regard. However, this would be a very benevolent and naive interpretation for our country and even for the rest of the world.

Of course; it does not mean anything to say that it is against the law to ask for an HIV test at the time of employment. Persons either cannot say that they do not want to have this test, otherwise they are burned out or they are already tested without their consent. Therefore, it is necessary to inform that the most important thing is; you somehow had this test or it was without your consent, and the information that the result was positive went to the employer. This is never the sole reason for rejecting the employment. Unfortunately, in practice, the situation may not go that far. Especially in corporate places, the employer is vigilant and raises the justification for not employing you as if it is due to another reason. At this point, it is necessary to prove that the person was hired but was prevented from starting the job after submitting the documents and that the reason for this prevention is the person’s HIV status. I am aware that it looks a little difficult but it is not impossible. In these cases, not only the ways in applying to the usual laws of Turkey, but also to Human Rights and Equality Institution of Turkey (TİHEK) should also be on the agenda.

If it is learned that the person is living with HIV while working, of course, the person cannot be fired. There is also a decision of AYM/Constitutional Court in that regard.

Another problem encountered in this regard is that if the workplace has a private health insurance opportunity, the institution to which the person is addressed for the insurance informs the employer that the person is living with HIV. This will bring up many types of crimes on the agenda, from violating the right to private life to spreading personal data without consent.

After all, the right to work cannot be violated on account of HIV status. It is important that those exposed to such violations preserve evidence to document the violation and contact an association or lawyer.

What are the most common cases seen regarding HIV in the legal counseling process? How can persons living with HIV get access to legal support?

Apart from the topics we talked about, there are cases where the doctor refrains from treating persons living with HIV and the refugees are denied access to drugs with the latest amendment. In addition to what we talked about, we should also look at the violations stated in the reports on violations of the rights published by the associations. No such a detailed report prepared recently in Turkey. That is why it is so important to report violations. These reports show us which areas we should focus on. In which occupational groups should we prioritize awareness studies? On which topics should we provide detailed information to those living with HIV in peer trainings? The answer to these questions will only emerge in the light of a detailed report on the violations.

I also have to say that in most of the applications I receive, persons receive legal information, but they act hesitant about making legal applications. Of course, I understand this situation, because filing an application on this issue means disclosure to the police, the prosecutor, the judge, anyone having access to the file. In this sense, it is very important to empower those living with HIV. What I am saying is not new. I am not reinventing America. I just want to remind you over and over again when I have now the opportunity. The rights of persons living with HIV cannot be separated from universal patients’ rights. The stigmatization and discrimination experienced by persons living with HIV is a violation of human rights. The fight against this discrimination and stigmatization should be on the agenda of all human rights defenders.

Those living with HIV can receive legal support directly from the associations, which we call positive associations working directly on HIV, or LGBTI+ associations having studies on HIV and human rights associations. Of course, for this, we should also consider if a lawyer works in that associations and if they can provide legal support. Lawyers can be contacted by calling the hotlines of the associations, sending an e-mail to their info addresses, calling the offices of the associations.

In addition, legal support can be obtained from bar associations. Of course, this also varies according to the type of violation experienced. Legal aid centers of bar associations can provide lawyer support in cases of disputes arising from private law and when certain conditions are met.

In your article: “Diving into the HIV discussions with Turkish Penal Code[1]” you stated that persons living with HIV were deliberately intimidated by false information and that this was done to incite hatred against those living with HIV. How can the dissemination of updated and accurate legal information be ensured from this point?

Actually what I criticize there is this; first of all it is not ethical to oppose the subjects who have been stigmatized and discriminated against for years in the rights and freedoms debate by saying them that “These discussions are void, whatever you say, there is a law”. In other words, while there are concepts such as privacy on the one hand and safe space on the other hand to be discussed and you talk about intentional injury. Of course, lets talk about it. This article and possibilities are discussed in a serious part of the legal aspect in peer trainings, but as if the HIV movement did not know about it ... I cannot explain my entire feelings here. But this is a snobbish attitude that harms all of these discussions. For example, how many cases have you dealt with in that regard? How expert are you to know how this article of the Penal Code is applied on this issue? We have to ask these questions to ourselves in every situation. Persons should ask themselves, “I am talking about this right now, but where am I really in this talk?” Social media is such a place. You say something and you retreat. You are not thinking about the context of that information and how it will be used against whom. Everyone has to think about the context in which they provide a piece of information, how the discussion of that information will protect whom, how it will prevent or pave the way. The thesis “ this person did not tell me about HIV status” has been used to justify murders to get remissions in the murders in this country against women, LGBTI+ persons and refugees. Is it too much to ask for more attention at this point? I do not know…

If we get to the point where the right information is available, we shall tell more about HIV. We should mainstream it. We should stop HIV to be considered just an issue for persons living with HIV. When we talk about HIV, we will not just say “condoms. We will create more safe spaces. We will empower those living with HIV, which is most important. I am not sure if there is much point in providing legal information to those who do not have a legal training. Of course, fundamental human rights information should be provided to everyone, but why should Article 86 be in case just because persons are living with HIV? At this point, we should increase the number of trainings for key occupational groups. Most of all we should listen to the subjects.

I say here we shall do such and such, but I also find it useful to state that all these studies have been conducted for years. There are many persons working in this field. I am glad to have them. Fortunately, they did not stop working when HIV was considered in its worst form. Together, we will continue to maintain these studies.

Finally, is there anything else you would like to add?

I think HIV movement in Turkey in last few years has been evolved where HIV positive persons become the subject of the movement, it dropped off the agenda of how the HIV-negative persons will not be infected with HIV; rather I think there is a trend is raising where the violations faced by HIV-positive persons are addressed. These times are different times. We hear the voices of the subjects. I am also excited to devote my humble knowledge and effort in this field. I believe we will talk about a lot of other things in a decade, both tanks to the medical developments and to the momentum of the movement. I am really hopeful and excited. I hope we will meet more human rights defenders with whom we will combine our enthusiasm.

Translation: Özge Gökpınar

Tags: human rights, health