Civil and criminal liability arising out of the transmission of sexually transmitted

Abstract

Acquired Immune Deficiency Syndrome was first recognized in the summer of 1981. The virus which may progress to full-blown AIDS, which later became known as the human immunodeficiency virus, was discovered in 1983. AIDS has put governments under increasing pressure to act against the threat of the disease, by making use of the law. However, in its approach to sexually transmitted infections, especially in relation to AIDS and HIV, the law has to protect two conflicting interests; the right of the public to be protected against the disease and the right of the individual not to be unfairly restricted as a result of having the disease or of being considered to be at risk. This thesis will be focusing on one component of the so-called conflict; the legislative intervention aimed at the protection of the public from AIDS, HIV and other sexually transmitted infections. There is a public need to restrict conduct which is likely to spread these diseases. The public seeks legal protection. Legal protection can be afforded by the use of two tools ever-present in the course of legal history; the criminal law and the civil law. Many of those presently affected with or at risk of the AIDS virus operate on the borders of or even outside the law. If stricter measures are taken against such people and against the lifestyles which they choose, morality and law will be confused. However, this is not to deny that criminal sanctions may apply against a person who knowingly transfers the virus, or any other sexually transmitted infection, to another or who knowingly puts another at risk through sexual intercourse. The Law of Tort provides the individual with a system of compensation where he or she is wronged by another. Whenever a man suffers damage he is inclined to look to the law for redress. Clearly, the private action under the law of tort can be sought when harm results due to the transmission of a sexually transmitted infection. In discussing what use may be made of the civil and the criminal laws in this field, the thesis will highlight the difficulties encountered. Moreover, the thesis will analyse whether Maltese Law provides an effective tool to combat the spread of sexually transmitted diseases.