A reader from Kenya writes to inform me that, “Kenya passed the Sexual Offences Act and the HIV Prevention and Control Act in 2006, and sections 26 and 24 of those acts, respectively, have rather broad provisions criminalizing HIV transmission.”
He provided me with a link to a very thoughtful article on the pros and cons of criminalisation HIV transmission from The (Nairobi) Standard, which I reproduce below.
These are the actual laws, available online at www.kenyalaw.org.
26. Deliberate transmission of HIV or any other life threatening sexually transmitted disease.
|Deliberate transmission of HIV or any other life threatening sexually transmitted disease.||26. (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know –
(a) will infect another person with HIV or any other life threatening sexually transmitted disease;
(b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease;
(c) will infect another person with any other sexually transmitted disease,
shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less fifteen years but which may be for life.
(2) Notwithstanding the provisions of any other law, where a person is charged with committing an offence under this section, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct, for the purpose of ascertaining whether or not he or she is infected with HIV or any other life threatening sexually transmitted disease.
(3) The sample or samples taken from an accused person in terms of subsection (2) shall be stored at an appropriate place until finalization of the trial.
(4) The court shall, where the accused person is convicted, order that the sample or samples be tested for HIV or any other life threatening sexually transmitted disease and where the accused person is acquitted, order that the sample or samples be destroyed.
(5) Where a court has given directions under subsection (4), any medical practitioner or designated person shall, if so requested in writing by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person concerned;
(6) An appropriate sample or samples taken in terms of subsection (5) –
(a) shall consist of blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of determining whether or not the accused person is infected with HIV or any other life threatening sexually transmitted disease; and
(b) in the case a blood or tissue sample, shall be taken from a part of the accused person’s body selected by the medical practitioner or designated person concerned in accordance with accepted medical practice.
(7) Without prejudice to any other defence or limitation that may be available under any law, no claim shall lie and no set-off shall operate against –
(a) the State;
(b) any Minister; or
(c) any medical practitioner or designated persons,
in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5), unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent.
(8) Any person who, without reasonable excuse, hinders or obstructs the taking of an appropriate sample in terms of subsection (5) shall be guilty of an offence of obstructing the cause of justice and shall on conviction be liable to imprisonment for a term of not less than five years or to a fine of not less fifty thousand shillings or to both.
(9) Where a person is convicted of any offence under this Act and it is proved that at the time of the commission of the offence, the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she was aware of his or her infection, notwithstanding any other sentence in this Act, he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.
(10) For purposes of this section –
(a) the presence in a person’s body of HIV antibodies or antigens, detected through an appropriate test or series of tests, shall be prima facie proof that the person concerned is infected with HIV; and
(b) if it is proved that a person was infected with HIV after committing an offence referred to in this Act, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when the offence was committed.
|Act 14 of 2006 – HIV AND AIDS PREVENTION AND CONTROL|
|24. prevention of transmission.|
|prevention of transmission.||
24. (1) A person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall-
(a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and
(b) inform, in advance, any sexual contact or person with whom needles are shared of that fact.
(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected.
(3) A person who contravenes the provisions of subsections (1) or (2) commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.
(4) A person referred to in subsection (1) or (2) may request any medical practitioner or any person approved by the Minister under section 16 to inform and counsel a sexual contact of the HIV status of that person.
(5) A request under subsection (4) shall be in the prescribed form.
(6) On receipt of a request made under subsection (4), the medical practitioner or approved person shall, whenever possible, comply with that request in person.
(7) A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after reasonable opportunity to do so-
(a) complied with subsection (1) or (2); or
(b) made a request under subsection (4),
may inform any sexual contact of that person of the HIV status of that person.
(8) Any medical practitioner or approved person who informs a sexual contact as provided under subsection (6) or (7) shall not, by reason only of that action, be in breach of the provisions of this Act.
Law on Aids should be realistic and practical for it to be effective
The Standard (Nairobi)
When James Kamau was diagnosised with HIV 15 years ago, his world crumpled. That was a time when HIV-positive people were condemned to die.
“HIV is the most stigmatised disease in human history and yet it is not contagious. People are more wary of HIV than TB,” says Kamau.
The Sexual Offences Act and HIV/Aids Prevention and Control Act criminalise wilful transmission of HIV. The objective is to address harmful HIV-related behaviour.
“Although we cannot ignore the criminal law as a tool to deter deliberate transmission of HIV, we would be cheating ourselves if we think the law is a holistic solution,” says Kenya National Commission on Human Rights commissioner Winnie Lichuma.
Though a legislative approach is essential, public health law should take effect instead of a criminal law. Kenya already has a Public Health Act.
“HIV is mostly spread through behaviour that is not criminal. This makes it more of a public health issue than a criminal issue,” says Allan Maleche, a lawyer.
Maleche argues that imprisoning HIV-positive people will not necessarily translate to behaviour change. The contention however is not the law, but rather how to table evidence. For instance, how does one prove he or she has been deliberately infected?
“The aspect of capturing deliberate transmission of HIV through criminal law is very elusive. Without medical records, can a complainant’s claim of being HIV-negative before a sexual encounter hold water?” poses Kamau.
The same predicament has been experienced by HIV/Aids activists in South Africa, Nigeria and Namibia. These governments tried to criminalise wilful transmission and did not go far. Some see the law as an instrument that can only fuel stigma. In addition, those opposed to criminal law claim it is discriminatory and limited as a tool for HIV prevention. They argue the law could even damage important health initiatives against HIV/Aids.
Knowing your status
In effect, it is important to deal with deliberate transmission of the virus as a socio-cultural and economic issue rather than a criminal one. Criminalisation may, in fact, discourage people from getting tested. Someone can easily cite ignorance of status as defence against a lawsuit.
Criminal law emphasises consent between individuals to ensure the people in question have agreed to become intimate and are aware of each other’s HIV status. “I would say consent is where the problem begins. We generally do not have a culture where people are aware of their status. Some of us do not even know exactly when they got infected,” says Florence Anam of Kenya Network of Women with HIV/Aids.
Although she has lived with the virus for three years, Anam says there is no physical evidence of the illness. Had she not been tested, she would have assumed she was HIV negative.
Attempting to employ criminal law perhaps is tantamount to putting the cart before the horse. A more effective approach should involve creating a culture where people strive to know their status. However, there are situations that require the law. For instance, in cases where people’s right to decide when and with whom to have sex have been violated.