HIV transmission:Will criminalising it curb the spread?
Dec 14, 2008
FREDA Nabonwe, 31, left her husband after years of abuse. When he found her, he raped her; an act that is ignored in Uganda when it occurs within a marriage.
By Fred Ouma
FREDA Nabonwe, 31, left her husband after years of abuse. When he found her, he raped her; an act that is ignored in Uganda when it occurs within a marriage.
Nabonwe later tested HIV-positive and discovered that at the time of rape, her husband knew he was infected. When she confronted him about it, he said they had to die together.
Would a law criminalising HIV transmission have protected Nabonwe or, at the very least, given her an opportunity for legal redress? The Government, legal and AIDS experts as well as gender activists have been grappling with this question in the recent months, after laws were passed in some countries allowing prosecution for HIV exposure or transmission.
Some countries in Sub-Saharan Africa have instituted a law to penalise people who wilfully infect others with HIV.
Women have been cited to often lack the power to insist on condom use or faithfulness from their partners, so it is believed such laws will protect them. But experts argue that applying criminal law to HIV transmission will achieve neither criminal justice nor curb the spread of the virus. They say it will, instead, increase discrimination against people living with HIV and undermine public health and human rights.
UNAIDS has urged governments to limit criminalisation to cases where a person knows he or she is HIV-positive and acts with the intention to transmit the virus. The reality is that intentional acts of HIV transmission are rare, so in most instances, criminal prosecutions are not appropriately applied.
In Switzerland, this year, a man was jailed for infecting his girlfriend with HIV, yet he was unaware of his status. In Texas, USA, a court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances of the officer being exposed to the virus were negligible.
Such laws are normal to the developed world and the trend is growing in Africa, where the HIV prevalence rate is high.
In Uganda, the proposed HIV legislation is not limited to intentional transmission, but also requires HIV-positive people to reveal their status to their sexual partners. It also allows medical personnel to reveal someone’s status to their partner.
Most legislative development has taken place in West Africa, where 12 countries recently passed HIV laws. In places like Guinea, Guinea-Bissau, Sierra Leone, Mali and Niger, a woman can be criminally charged with not taking the necessary steps to prevent HIV transmission to her unborn baby, such as taking antiretroviral drugs during pregnancy.
In 2004, participants from 18 countries held a workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa. According to Richard Pearshouse, the director of research and policy at the Canadian HIV/AIDS Legal Network, the law was far from “modelâ€. But he maintains that it is a broad definition of “wilful transmission†and could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.
People living with HIV have expressed concerns that the growing trend to criminalise HIV infection places legal responsibility for HIV prevention solely on those living with the virus, and dilutes the message of shared responsibility.
UNAIDS has warned that using criminal law in cases other than intentional transmission could create distrust in relationships with healthcare workers, as people may fear the information will be used against them in a criminal case.
Some policy makers have called for HIV legislation as a means to protect women from HIV infection, but the irony is that sometimes these laws may result in women being disproportionately prosecuted. Many women find it difficult to negotiate safer sex or to disclose their status to their partners.
A draft HIV bill has good intentions but could backfire
AIDS activists have slammed the proposed new law that will force HIV-positive people to reveal their status to their sexual partners; and to allow medical personnel to reveal someone’s status to their partner.
They argue that the law will make people reluctant to get tested, hence hindering efforts of prevention. The HIV Prevention and Control Bill (2008) is intended to provide a legal framework for the national response to HIV as well as protect the rights of individuals affected by HIV.
Activists agree that Uganda needs legislation to guide its HIV policy. “We want the law; as a matter of fact, we are overdue in having a legal framework,†says Beatrice Were, a leading HIV-positive campaigner. However, activists are concerned that the bill in the current form could worsen the difficulties many HIV-positive people experience. Pregnant women will have to undergo compulsory testing, which proponents said would increase the number of women accessing prevention of mother-to-child HIV transmission services.
In 2007, only 600,000 pregnant women of the 1.4 million were tested for HIV; 91,000 of whom were infected.
The Uganda AIDS Commission chief Dr. David Kihumuro Apuuli, told The New Vision that certain sections of the bill needed to be revised, for instance, the provision that HIV status disclosure would be mandatory for couples planning to marry.
“We have to think about the repercussions of this in a male-dominated society,†he says, noting that many women were afraid of their husbands’ reactions once they revealed their HIV status. At least three women have been killed by their husbands this year because they were HIV-positive, according to Kampala Police records.
Stella Kentutsi, the programme manager at the National Forum of PHLA Networks in Uganda, says medical practitioners usually have no way of knowing how a spouse or other sexual partners might react and should, therefore, not be permitted to reveal an infected person’s HIV status. “Even if the partner has a right to know, forceful revelation is not okay,†she says.
Wilful transmission
How do you know who infects intentionally and wilfully and who does not? What makes it intentional or wilful?
The bill also criminalises — with death sentence — the intentional or willful transmission of the virus. President Yoweri Museveni says he supports an HIV/AIDS law that would criminalise deliberate transmission of the virus.
Lately, there has been a public outcry over media reports of HIV-positive individuals infecting minors, which has gained support for the bill. “If you push for punishment because someone is infected, you are discriminating and undermining the rights of people living with HIV,†Were says.
Activists say applying criminal law to HIV-risky behaviour is likely to undermine prevention efforts and, rather than encouraging people to know their status, it would deter them from testing for HIV. The bill could also allow the Government to avoid its responsibility to prevent HIV and foist the blame for being positive on infected people.
“We should avoid creating scenarios where people living with HIV/AIDS are looked at as either criminals or potential criminals,†a recent statement by National Forum of PHLA Networks in Uganda revealed.
“Rather than introduce laws criminalising HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment.â€
What are the alternatives?
AIDS activists recommend that instead of applying criminal law to HIV transmission, governments should expand programmes proven to have reduced HIV infection.
A UNAIDS policy brief released in August urges governments to enact and enforce laws that protect women from sexual violence and discrimination as a more effective way of protecting them from HIV.
Currently, there is no information indicating that using criminal law will work, says Onyango Oloka, a professor of law and the director of the Human rights and Peace Centre at Makerere University.
FREDA Nabonwe, 31, left her husband after years of abuse. When he found her, he raped her; an act that is ignored in Uganda when it occurs within a marriage.
Nabonwe later tested HIV-positive and discovered that at the time of rape, her husband knew he was infected. When she confronted him about it, he said they had to die together.
Would a law criminalising HIV transmission have protected Nabonwe or, at the very least, given her an opportunity for legal redress? The Government, legal and AIDS experts as well as gender activists have been grappling with this question in the recent months, after laws were passed in some countries allowing prosecution for HIV exposure or transmission.
Some countries in Sub-Saharan Africa have instituted a law to penalise people who wilfully infect others with HIV.
Women have been cited to often lack the power to insist on condom use or faithfulness from their partners, so it is believed such laws will protect them. But experts argue that applying criminal law to HIV transmission will achieve neither criminal justice nor curb the spread of the virus. They say it will, instead, increase discrimination against people living with HIV and undermine public health and human rights.
UNAIDS has urged governments to limit criminalisation to cases where a person knows he or she is HIV-positive and acts with the intention to transmit the virus. The reality is that intentional acts of HIV transmission are rare, so in most instances, criminal prosecutions are not appropriately applied.
In Switzerland, this year, a man was jailed for infecting his girlfriend with HIV, yet he was unaware of his status. In Texas, USA, a court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances of the officer being exposed to the virus were negligible.
Such laws are normal to the developed world and the trend is growing in Africa, where the HIV prevalence rate is high.
In Uganda, the proposed HIV legislation is not limited to intentional transmission, but also requires HIV-positive people to reveal their status to their sexual partners. It also allows medical personnel to reveal someone’s status to their partner.
Most legislative development has taken place in West Africa, where 12 countries recently passed HIV laws. In places like Guinea, Guinea-Bissau, Sierra Leone, Mali and Niger, a woman can be criminally charged with not taking the necessary steps to prevent HIV transmission to her unborn baby, such as taking antiretroviral drugs during pregnancy.
In 2004, participants from 18 countries held a workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa. According to Richard Pearshouse, the director of research and policy at the Canadian HIV/AIDS Legal Network, the law was far from “modelâ€. But he maintains that it is a broad definition of “wilful transmission†and could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.
People living with HIV have expressed concerns that the growing trend to criminalise HIV infection places legal responsibility for HIV prevention solely on those living with the virus, and dilutes the message of shared responsibility.
UNAIDS has warned that using criminal law in cases other than intentional transmission could create distrust in relationships with healthcare workers, as people may fear the information will be used against them in a criminal case.
Some policy makers have called for HIV legislation as a means to protect women from HIV infection, but the irony is that sometimes these laws may result in women being disproportionately prosecuted. Many women find it difficult to negotiate safer sex or to disclose their status to their partners.
A draft HIV bill has good intentions but could backfire
AIDS activists have slammed the proposed new law that will force HIV-positive people to reveal their status to their sexual partners; and to allow medical personnel to reveal someone’s status to their partner.
They argue that the law will make people reluctant to get tested, hence hindering efforts of prevention. The HIV Prevention and Control Bill (2008) is intended to provide a legal framework for the national response to HIV as well as protect the rights of individuals affected by HIV.
Activists agree that Uganda needs legislation to guide its HIV policy. “We want the law; as a matter of fact, we are overdue in having a legal framework,†says Beatrice Were, a leading HIV-positive campaigner. However, activists are concerned that the bill in the current form could worsen the difficulties many HIV-positive people experience. Pregnant women will have to undergo compulsory testing, which proponents said would increase the number of women accessing prevention of mother-to-child HIV transmission services.
In 2007, only 600,000 pregnant women of the 1.4 million were tested for HIV; 91,000 of whom were infected.
The Uganda AIDS Commission chief Dr. David Kihumuro Apuuli, told The New Vision that certain sections of the bill needed to be revised, for instance, the provision that HIV status disclosure would be mandatory for couples planning to marry.
“We have to think about the repercussions of this in a male-dominated society,†he says, noting that many women were afraid of their husbands’ reactions once they revealed their HIV status. At least three women have been killed by their husbands this year because they were HIV-positive, according to Kampala Police records.
Stella Kentutsi, the programme manager at the National Forum of PHLA Networks in Uganda, says medical practitioners usually have no way of knowing how a spouse or other sexual partners might react and should, therefore, not be permitted to reveal an infected person’s HIV status. “Even if the partner has a right to know, forceful revelation is not okay,†she says.
Wilful transmission
How do you know who infects intentionally and wilfully and who does not? What makes it intentional or wilful?
The bill also criminalises — with death sentence — the intentional or willful transmission of the virus. President Yoweri Museveni says he supports an HIV/AIDS law that would criminalise deliberate transmission of the virus.
Lately, there has been a public outcry over media reports of HIV-positive individuals infecting minors, which has gained support for the bill. “If you push for punishment because someone is infected, you are discriminating and undermining the rights of people living with HIV,†Were says.
Activists say applying criminal law to HIV-risky behaviour is likely to undermine prevention efforts and, rather than encouraging people to know their status, it would deter them from testing for HIV. The bill could also allow the Government to avoid its responsibility to prevent HIV and foist the blame for being positive on infected people.
“We should avoid creating scenarios where people living with HIV/AIDS are looked at as either criminals or potential criminals,†a recent statement by National Forum of PHLA Networks in Uganda revealed.
“Rather than introduce laws criminalising HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment.â€
What are the alternatives?
AIDS activists recommend that instead of applying criminal law to HIV transmission, governments should expand programmes proven to have reduced HIV infection.
A UNAIDS policy brief released in August urges governments to enact and enforce laws that protect women from sexual violence and discrimination as a more effective way of protecting them from HIV.
Currently, there is no information indicating that using criminal law will work, says Onyango Oloka, a professor of law and the director of the Human rights and Peace Centre at Makerere University.