East African Bill Rejects HIV Criminalization Clause

May 15, 2012 | Katharina Schwan | Research & Policy

On April 23, the East African Legislative Assembly (EALA) passed the HIV and AIDS Prevention and Management Bill, which outlines progressive strategies to better manage the HIV/AIDS epidemic in the East African Country (EAC) partner states: The United Republic of Tanzania, Kenya, Uganda, Rwanda, and Burundi.

The increase in cross-border migration and the region’s variance in HIV prevalence rates, ranging from 3.3 percent in Burundi to 6.5 percent in Uganda, demonstrate the need for a more harmonized and coordinated response to the HIV epidemic. The bill emphasizes education, prevention, counseling and testing, and protection of human rights, particularly of vulnerable populations such as women and children. This rights-based approach rejects the need for a criminalization clause, under which “willful” transmission of the HIV virus is considered a criminal and legally punishable act.  

Three of the five member states- Burundi, Kenya, and Tanzania- have enacted HIV laws that regard the deliberate transmission of HIV a legal offense. With the passing of the new bill, these countries will be pressured to amend their laws according to the EALA’s framework. Adopting the EALA’s recommendations on HIV prevention and treatment will increase access to health services within and across the five countries.

Why decriminalize?

Some governments and policy makers maintain that legal prosecution of HIV exposure and transmission actually lowers HIV incidence by incapacitating or rehabilitating accused “criminals” or by deterring potential offenders from partaking in risky behavior. However, there appears to be no evidence supporting this claim. In fact, these policies are not only ineffective, but also harmful to the overall HIV/AIDS response.

The language used to describe willful transmission is often too broad. According to the N’Djamena model law, the HIV-specific legislation created in 2004 for the West African region, “willful transmission” is defined as transmission of HIV “through any means by a person with full knowledge of his/her HIV/AIDS status to another person.” This all-encompassing definition could include mother-to-child transmission as well as transmission despite efforts to practice safe sex. Unfortunately, the N’Djamena model serves as the basis for HIV legislation in a number of African countries, including Burundi.

Currently, a cost-effective test that can prove transmission from one person to another does not exist. Phylogenic testing can determine whether two different strains of the HIV virus are genetically similar. However these tests are expensive and unavailable in most developing countries. Yet, even if this test were accessible, it cannot absolutely confirm that one person infected the other.

HIV-specific laws undermine achievements in the fight against HIV/AIDS. For one, activists worry that uninfected individuals may become complacent under such regulations, as the burden to prevent transmission is placed entirely on HIV-positive patients. This also promotes continued stigma against those infected with HIV.

Additionally, discriminatory HIV laws decrease the use of health services, such as counseling and testing. Infected individuals may mistrust health care providers who could reveal their HIV status to spouses. Uninfected individuals may choose to forego testing in order to to remain unaware of their HIV status.

Finally, in countries where women already hold a lower status in society, these laws serve to reinforce gendered inequalities. Women are more at risk of being prosecuted than men for a number of reasons. For example, women are more likely to be aware of their HIV status due to their more regular use of health services. Furthermore, men are rarely blamed for HIV transmission- when infected, men are more likely to blame their female partners than vice versa. Last, even unintentional mother-to-child transmission of HIV may lead to the prosecution of women.

What should be done?

UNAIDS and UNDP state that in the rare cases when an individual maliciously and purposely transmits HIV with the intent to harm others, the application of criminal prosecution is warranted. However, rather than enact new HIV-specific laws, governments should turn to existing criminal laws, such as laws against grievous bodily harm or even attempted murder.

Nevertheless, since the overwhelming majority of new HIV cases are not caused by malicious intent, it is essential that existing criminal laws are not applied too broadly. This will support current HIV/AIDS prevention initiatives and protect the rights of those most affected by unfair policies.

Furthermore, while the EALA framework does not specifically mention high-risk groups such as sex workers, men who have sex with men (MSM), and intravenous drug users, it is essential that these individuals receive the same protection as other vulnerable populations as outlined by the bill.

With the passing of this new HIV/AIDS prevention bill, human rights activists hope that the east African governments will consider the EALA recommendations in their efforts to manage the HIV epidemic, in particular those countries that currently endorse an HIV-criminalization clause – Burundi, Kenya, and Tanzania. 

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