Will criminalization of HIV transmission hinder or help prevention efforts?

We are at a critical juncture in the fight against HIV/AIDS in Uganda, with the chance of really getting the epidemic under control.

The good news is that we know what works; antiretroviral drugs, male circumcision, condoms and reduced sexual risk behaviors. Although use of these services is increasing in Uganda, the bad news is that we have not always prioritized and implemented the full range of evidence-based effective interventions.

On 13th May, 2014, the Parliament passed the HIV and AIDS Prevention and Control Bill 2010 as an Act. It is now the HIV and AIDS Prevention and Control Act 2014 and the same is yet to be assented to by the President of the Republic of Uganda before it becomes binding and applicable law.

The framers of the Bill reasoned that, “the existing legal framework falls short of provisions that will adequately control, prevent and manage the HIV and AIDS pandemic in Uganda”. This Bill can help to address some of the gaps in our national HIV response. For instance, clause 27 (state obligations), clause 28 (creation of the HIV/AIDS Trust Fund) and clause 46 (exemption to creation of risk), point to clear directions for HIV prevention.

However, the Bill also introduces potentially retrogressive and discriminatory provisions that could undermine HIV prevention.  Although the Bill is not yet enacted into law, we examine the possible effects that it might have on the uptake of HIV services and transmission risk behaviors in Uganda. We argue that, in its current form, the Bill will not contribute to significant reductions of HIV incidence in Uganda, and could instead compromise prevention efforts.
 

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Historical perspective

Laws criminalizing HIV transmission and exposure exist in many developed and developing countries. By 2005, at least 36 European countries had either HIV-specific criminal laws or had used existing laws on bodily harm to prosecute people living with HIV. By 2009, 15 African countries had enacted HIV-specific criminal laws, and this number increased to at least 25 countries by 2011.

At about the same time, 67 HIV-specific criminal laws had been enacted in 33 states in the USA. Many people have been prosecuted for HIV-related transmission crimes using these laws. For instance, between 1986 and 2001, 316 HIV-positive people were prosecuted for exposing others to the risk of HIV transmission in the USA. By 2011, more than 125 prosecutions for non-disclosure of HIV status occurred in Canada. Two cases involving Ugandans have been reported; one in Canada and the other in Australia.

In April 2009, Johnson Aziga, a Ugandan living in Canada, was sentenced to life imprisonment after he was found guilty of infecting his two sexual partners while in October 2009, Zebtek Wepukhulu, a Ugandan living in Australia, was sentenced to a 10-year jail sentence for transmitting the virus to a female partner.

In Africa, three cases, two – from Burkina Faso – and one from Uganda are currently on record. The Burkina Faso case involved two HIV-positive women who were prosecuted for intentional transmission of HIV. The first case involved an HIV-positive woman who extracted a sample of her own blood and injected it into a man in order “to shut him up for good”; while the second case involved an HIV-positive woman who bit a health worker. Both cases were treated as ‘intentional HIV transmission’ but prosecuted under the existing criminal code. In the Ugandan case, a 64-year-old nurse (Rosemary Namubiru) was reported to have pricked herself with a needle and used it to prick a baby (her patient) with intent to transmit HIV.

Namubiru has since been prosecuted for negligence and sentenced to three years in jail. It is important to note that many of these cases were prosecuted based on existing (non-HIV-specific) criminal laws while others were based on HIV-specific laws that were enacted before the availability of effective HIV prevention interventions such as antiretroviral therapy.

The current availability of interventions such as antiretroviral drugs to reduce the risk of HIV transmission or male circumcision to reduce HIV acquisition has changed the context in which many of these laws were written. Indeed, in June 2014, the Iowa Supreme Court set aside the conviction of Nick Rhoades, who had been sentenced to 25 years in prison because “HIV-positive individuals who have a reduced viral load as a result of effective treatment pose little risk of transmitting HIV”.

The Uganda Bill does not provide for such effective interventions that reduce the risk of HIV transmission. There are two important questions to consider here: Do we need new HIV-specific legislation when existing criminal laws can suffice? Can the use of HIV-specific laws help to reduce HIV transmission risk and contribute to Uganda’s HIV prevention response?
 

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Uganda’s HIV prevention response

Uganda’s HIV prevention response has been in the spotlight in recent years with reports of increasing HIV infections dominating the media. There are concerns that both HIV incidence (number of new HIV infections) and HIV prevalence (number of people living with HIV) have increased over the years. HIV prevalence has increased from 6.4% in 2005 to 7.4% in 2011.

However, if we consider that an estimated 73% of HIV-positive Ugandans are now on ART and are thus not dying of AIDS, this positive public health and medical advance can account in large part for the fact that more people are living with HIV. The government, through the Uganda AIDS Commission – the body mandated to coordinate HIV prevention and control efforts in Uganda – revised the National HIV and AIDS Strategic Plan, and developed a National HIV Prevention Strategy to stem the rising HIV epidemic.

Both documents call for intensified scale-up of critical interventions including condom promotion and supplies, HIV counseling and testing services, voluntary medical male circumcision, prevention of mother-to-child transmission of HIV and antiretroviral therapy. The target is to raise the coverage of these interventions to 80-90% of the population. However, service coverage has remained persistently low, not because people do not want to access services, but due to weaknesses in our health systems.

In order to attain this target, there is need for an enabling environment that promotes increased demand for services and equitable friendly access to HIV services. Does the Bill, in its current form, provide such an enabling environment for people to access HIV services without fear of criminal penalty, or does it constitute a barrier to HIV prevention?  We believe that if it is eventually passed as a law in its current form, the Bill would not provide an enabling environment for the prevention and control of HIV/AIDS in Uganda. 
 

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Positive and negative provisions in the Bill

There are some aspects of the Bill that are progressive and could contribute to the control of the HIV epidemic. We believe that the HIV and AIDS Trust Fund could improve funding and coordination of the HIV/AIDS response in the country. However, there are worrisome ambiguities. For example, while the Bill requires routine HIV testing for pregnant women which is currently the standard of care, it also requires the presence and testing of the woman’s partner (clause 14).

Additionally, the Bill states that “a medical officer or other qualified officer … may notify a sexual partner of a person who tests positive where he or she reasonably believes that the HIV positive person poses a risk of HIV transmission”. This will foster a climate of fear for many women, since involuntary disclosure of HIV-infected status to a husband or partner can result in violence, abandonment, disinheritance and loss of access to her children.

This is likely to discourage women from seeking HIV testing and undermine the national priority of testing all pregnant and breastfeeding mothers so as to provide antiretroviral drugs for prevention of mother to child HIV transmission. Involuntary HIV disclosure is also likely to have a profound detrimental effect on women who often learn their HIV status first through antenatal care services, and who, if infected with HIV, may be blamed by their partners for bringing HIV into the relationship, thereby increasing cases of intimate partner violence and marital disruption.

Thus, mandatory disclosure to partners and the threat of criminal prosecution will only undermine critical public health measures. Men and women should be encouraged to mutually disclose their HIV status, and should be offered supportive couples’ counseling to facilitate mutual disclosure.

The Bill also contains apparent contradictions about confidentiality of test results. While the Bill allows a medical officer or other qualified officer to disclose results in certain circumstances, in clause 19(1), it states that the results of the test “shall be confidential and shall only be disclosed to the person tested”.

In clause 21, the Bill states; “a person [medical officer] may disclose information concerning the result of an HIV test or related medical assessments of a person tested… [to] any other person with whom an HIV infected person is in close or continuous contact… if… in the opinion of the medical practitioner, poses a clear and present danger of HIV transmission to that person”.

Yet, the Bill also provides penalties for health personnel for “breach of confidentiality”, which can involve fines and/or imprisonment for up to 10 years (clause 40).  These contradictions are confusing and will provoke anxiety among health professionals which could undermine their motivation to promote HIV testing for fear of prosecution. This situation also complicates the health worker-patient relationship.
 

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Involuntary disclosure may increase stigma and discrimination in Uganda. The Uganda AIDS Indicator Survey shows that 17% of women and 22% of men believe that people with HIV should be ashamed of themselves, while 18% of women and 22% of men believe that people with HIV should be blamed for bringing the disease into the community.

As Edwin Cameron (Justice of the Supreme Court of South Africa) has argued, “it is stigma that makes those at risk of HIV [infection] reluctant to be tested; it is stigma that makes it difficult – and often impossible – for them to speak about their infection; and it is stigma that continues to hinder access to the life-saving ARV therapies that are now increasingly [becoming] available across Africa”.

In Botswana and Zambia, stigma against HIV-positive persons and fear of discrimination were the key reasons for the low uptake of HIV testing and enrolment into Prevention of Mother-to-Child Transmission (PMTCT) programs. Thus, a law requiring involuntary HIV status disclosure will have disastrous effects not only on the uptake of HIV services, but also on the continued transmission of HIV.

The Bill criminalizes “attempted transmission of HIV” resulting in a fine or imprisonment. This is a vague and poorly defined offence based on the stipulation that “the HIV positive person has been given reasonable opportunity to inform his or her partner(s) of his or her HIV positive status and failed to do so.”

It punishes an individual even if the partner does not become infected.  Knowledge of one’s HIV status is critical for prevention and care, but the 2011 Uganda AIDS Indicator Survey shows that over half of HIV-positive women and nearly two-thirds of HIV-positive men are not aware of their HIV status, and are likely unknowingly transmitting HIV infection to others.

If people fear the legal consequences of testing HIV-positive, they will avoid testing altogether and this will undermine the impetus to know one’s HIV status, given that it is only after one is aware of their HIV positive status that they can be criminalized for attempted or intentional transmission of HIV.

The Bill also criminalizes “intentional transmission of HIV.” However, it does not define what constitutes “willful” or “intentional” transmission and leaves it open to interpretation by the Police or the legal fraternity. There have been cases of malicious transmission where persons who know they are infected willfully and intentionally infect others, but such cases are rare and can be prosecuted under existing criminal laws against causing bodily harm.
 

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Effect of criminalization on HIV transmission risk behaviors

A review of the scientific literature shows that criminal laws have not helped prevent HIV. Indeed, the opposite is the case. Laws criminalizing HIV-positive individuals, commercial sex, intravenous drug use and homosexuality create stigma and barriers to accessing health care; such laws drive people underground and only facilitate the spread of HIV.

In any case, the implementation of the punitive clauses in the Bill will require proof that the accused person is indeed the person who infected the complainant with HIV. Such proof can only be obtained through use of sophisticated HIV testing techniques such as DNA sequencing. As a country, Uganda does not have the capacity to do these tests; neither is it justifiable to invest in this technology for purposes of prosecution, given other funding priorities.

Conclusion and way forward

We would like to believe that there must have been good intentions at the conception of the Bill but quickly recognize that the HIV and AIDS Prevention & Control Bill is unlikely to reduce new HIV infections, in its current state, and could in fact have serious, deleterious, unintended consequences. There are apparently sufficient punitive laws that exist and could be drawn upon to punish those who cause malicious (intentional) HIV transmission.

We would like to encourage the government to set aside funds to expand and scale-up provision of effective interventions such as those outlined in the National HIV Prevention Strategy. Once this is done, we believe that Uganda will be able to achieve its HIV prevention targets. 

Authors

1.  Joseph KB Matovu, Lecturer, Makerere University School of Public Health
2.  Rhoda K Wanyenze, Associate Professor, Makerere University School of Public Health
3.  Harriet Magala, Advocate, Kituuma-Magala & Co. Advocates
4.  David. M. Serwadda, Professor, Makerere University School of Public Health