Is the 'AIDS Prevention Act' Unconstitutional? ... "Violation of the Principle of Clarity" vs "Not an Excessive Punishment"

Public Hearing on Constitutionality of Punishment Clause for AIDS Infected Persons' 'Transmission Acts' to Others
"Infringement on Infected Persons' Freedom of Action" vs "Consideration of Protecting Freedom of Action of Indefinite Majority"

[Asia Economy Reporter Heo Kyung-jun] A public hearing was held at the Constitutional Court regarding whether the legal provision that punishes people with acquired immunodeficiency syndrome (AIDS) who engage in transmission acts through blood or bodily fluids with imprisonment of up to three years is unconstitutional.

On the 10th, the Constitutional Court conducted a hearing on the constitutional review case concerning Articles 19 and 25, Clause 2 of the AIDS Prevention Act. This hearing was held 2 years and 11 months after the case was filed.

Article 19 of the AIDS Prevention Act stipulates that infected persons must not engage in transmission acts to others through blood or bodily fluids. Article 25, Clause 2 of the same law punishes infected persons who violate Article 19 by engaging in transmission acts with imprisonment of up to three years.

The defendant in this case was prosecuted for having engaged in sexual intercourse without a condom while hiding the fact of being infected with AIDS from the other party. The Seoul Western District Court, which is handling the case, requested a constitutional review in December 2019, citing the possibility that the relevant provisions are unconstitutional.

The defendant’s side argues that the terms "bodily fluids" and "transmission acts" specified in the provisions under review are too broad and violate the principle of clarity under the principle of legality.

They claim that even though consistent use of antiretroviral drugs reduces the HIV virus concentration in the body below detectable levels, eliminating the possibility of infecting others, the law criminalizes intimate sexual contact solely based on infection status and condom use, violating the principle of proportionality and infringing on the general freedom of behavior of infected persons.

The defendant’s attorney stated, "The provisions under review rather hinder the promotion of public health," adding, "Because these provisions target infected persons for punishment, if infected persons’ sexual activities are subject to punishment as transmission acts, it could discourage early testing and treatment, which would be counterproductive to public health."

On the other hand, Baek Kyung-ran, Commissioner of the Korea Disease Control and Prevention Agency and an interested party, stated, "Treatment for infected persons (antiretroviral therapy) has limitations in preventing infection," and "Punishing infected persons for condomless sexual intercourse does not violate the principle of proportionality or infringe on the general freedom of behavior of infected persons."

She also said, "The statutory penalty of imprisonment of up to three years without a fine is similar to the penalty for serious injury, which also does not allow fines. In the case of tuberculosis, there are differences in treatment possibilities and physical impact, so it cannot be considered an excessive penalty or a violation of the principle of equality."

Choi Jae-pil, head of the Infectious Diseases Department at Seoul Medical Center and a reference witness for the defendant, argued, "If infected persons receive proper treatment, it has been shown that there is not a ‘possible risk of transmission’ but rather ‘no possibility of infection.’ However, in practice, law enforcement punishes transmission acts of persons who are in a state with no possibility of infection on the grounds that ‘it cannot be generalized that the possibility of transmission is zero.’"

He added, "It is problematic to consider all transmission acts of infected persons as abstract risk crimes based on the unattainable standard of ‘zero possibility of transmission.’ Maintaining the criminalization policy of transmission acts actually hinders early testing and treatment that can prevent HIV infection."

In response, Park Jae-pyung, professor at the Law School of Chungbuk National University and a reference witness for the interested party, stated, "We must consider not only the restriction of the basic rights of infected persons but also the guarantee of the general freedom of behavior of the unspecified majority who are infected or at risk of infection." He added, "In other infectious disease-related laws, transmission is not simply defined as transmission acts but is limited to cases where transmission is possible. Therefore, it is predictable that the crime of transmission acts is also limited to cases where transmission is possible, not all transmission acts in general."

This content was produced with the assistance of AI translation services.