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What is The Relation between HIV/AIDS and Injury/Homicide?

AYSE ECEM DUTAL KERIM KOCAMAN
What is The Relation between HIV/AIDS and Injury/Homicide?

What is HIV?

HIV is the abbreviation of Human Immunodeficiency Virus. HIV is infected with blood and unprotected sex. The virus settles into various body tissues and affects the immune system. The cure of the virus exists. World Health Organization has removed the virus from the list of deadly illnesses and placed it into the lifelong restrainable illnesses.

What is AIDS?

AIDS means Acquired Immunodeficiency Syndrome. The virus of HIV causes AIDS; however, not all HIV patients are AIDS positive. AIDS leaves the immune system defenceless against infections and cancer; moreover, it threatens life.

Is HIV an Obstacle to Marriage? Is AIDS a Marriage Impediment?

HIV-positive individuals are not banned from marrying according to the law. The law counts the illnesses that are marriage impediments, and AIDS or HIV are not counted among them. For this reason, the HIV test is not required before marriage.

If the patient found out about his/her illness before the marriage, the patient and the intended need to go to the medical centre, and the situation must be explained to the intended. Later, the intended need to give consent about his/her knowledge about the illness, mentioning that she/he accepts the marriage by considering the illness.

If the patient found out about the illness after the marriage, the wife/husband needs to be informed about the illness, and they also have to be tested out.

If the patient informed the partner about the illness, and the partner still gives consent about unprotected sex, the patient cannot be held responsible from the point of criminal law. However, if the patient infects people with sex without telling the illness or blood contact, it refers to intention. As occasion requires, TCK 87/1, which regulates aggravated injury because of the outcomes, and TCK 87/4, which regulates willful murder, can be considered. If the patient knows that she/he is AIDS positive and still does not warn the partner but does not want the partner to get sick as well, then eventual intent needs to be taken into consideration. Eventual intent can be seen as homicide or injury.

Suppose the patient is unaware of the illness, or her/his awareness cannot be proven, or there is no need for her/him to get suspicious about the illness. There is no liability of responsibility in terms of criminal law in that case.

To clarify the topic, let me refer to a verdict given by an Italian court called Cremona Court. There was a man whose wife died because of HIV. The Court found out that her husband infected her. The husband was AIDS positive. The Court found the husband guilty of murder with eventual intent. The reasons behind the Court’s decision about his intention was:

  • There was a risk behind the husband’s actions,
  • The husband accepted the risk,
  • The husband accepted the probability of death risk.

The Court also mentioned that if the husband had taken any alternative measures, the offender’s intention would be negligence.

Later, Superior Court quashes the verdict of the trial court. The Superior Court propounded that even though the husband kept his wife unaware of the illness and infected her with the deadly virus, he neither desires nor accepts the consequence. The Superior Court decided to find him guilty of negligence with an increased amount of punishment due to the predictability.

Conclusion

According to the studies, both AIDS and HIV are stated as not marriage impediments. If the individual knew the illness before the marriage, he/she has to inform the partner; likewise, if the individual found out about the illness during the marriage, they still have a responsibility to inform the other. Otherwise, the action can be counted as against due diligence.

If the individual keep the partner unaware of the illness and act imprudent, then willful murder or aggravated injury can be mentioned according to the consequence. On the other hand, if the partner is aware of the situation and still gives his/her consent, there is no chance to speak of criminal liability.

If the patient acts to infect the partner but cannot succeed, it refers to an attempt at crime.

Additionally, crimes in this context are included in the scope of legislative immunity, according to 83. Article of the Constitution.


Resources

  • <https://pozitifyasam.org/hiv-aids-nedir/>
  • <https://www.acibadem.com.tr/ilgi-alani/hiv-ve-aids/#genel-tanitim>
  • <https://www.pozitifiz.org/post/hiv-ve-evlilik>
  • <http://tbbdergisi.barobirlik.org.tr/m2008-79-464>
  • <https://www.anayasa.gen.tr/dokunulmazlik.htm>

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