Kenya: criminal HIV laws in full; discussed in thoughtful article

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)
Joyce Chimbi
23/08/2008

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.

Zimbabwe: Blame, responsibility, impact of criminalisation on women analysed

Excellent opinion piece in the Zimbabwean newspaper, The Herald, which discusses blame and responsibility and the impact of criminalisation of HIV transmission on women.

 

Blame Game Won’t Change a Thing

The Herald (Harare)

Beatrice Tonhodzayi

4 October 2008She is young and very striking. That type of girl that would give most of my male colleagues’ ideas; if she ever looked their way. She is very pretty, what my male colleagues term the “typical African queen.”

However when you look deeply into her eyes, you can tell she is sad.

But what would make such a pretty and young lady sad?

Mutsa (not her real name) is living with HIV. It is not that knowledge however that is responsible for the sadness that surrounds her very being.

It is anger and a sense of betrayal.

Anger and betrayal, that she feels towards her former lover, a medical doctor, who she says infected her with HIV.

When Mutsa got in touch with me about her story, I felt very betrayed on her behalf.

There she was, going out with a medical doctor, someone who has all the knowledge about HIV transmission. This was the first man she had ever been with and he had the nerve to infect her with HIV, I felt.

But then, I began to wonder!

Did he even know that he was HIV positive?

Yes, he may have slept with other women before or besides Mutsa but this does not mean he knew his status and therefore willingly infected his girlfriend.

And why did Mutsa have unprotected sex with him when she did not know his status?

I am a woman; I champion the women’s cause as much as I can because I sincerely believe that life has not been very kind to woman-kind.

However, I am a journalist and must look at both sides of the coin. I must be objective.

There are many women who are living angry lives unnecessarily. They are filled with so much bitterness at the fact that their husbands and partners have infected them with HIV.

This anger in some cases, is so intense that it eats up one’s very passion for life.

They wish these men could just be thrown into jail for committing such heinous crimes.

Is this necessarily fair to the men in question and the women themselves?

A cursory glance shows that most women who are living with HIV blame a man for their status and this is understandable.

It is a fact that most men sleep with several women at the same time. How many women can safely say they have never been played?

Definitely not me!

But if we know we are or have been played, should we not begin to look out for ourselves?

Another interesting truth is that even women, who have had other sexual encounters before marriage, are quick to point a finger to the man when they test positive.

This is despite the fact that some of them would not have tested before entering this relationship.

Ever think for a moment that you could actually have been positive before, sisters?

If the truth be told, there are some men who have also been infected by women. But how many times do you hear people sympathising with a man?

Is this because men do admit to having been around and done that, unlike their female counterparts?

Multiple concurrent partnerships, especially the “small house” syndrome, are very popular in southern Africa and this is a documented fact.

Such partnerships have been identified as a key driver of HIV in the region.

Because men keep the majority of small houses, whenever transmission occurs, a finger is pointed at them and quite rightly so, mostly.

But what does just blaming them achieve if women do not stand up and begin to look out for themselves.

For argument’s sake, let us say the man is responsible, does this mean by pointing a finger, the virus would disappear?

If we could even go on to punish someone for infecting someone, would we solve anything?

Some would argue that it is high time we criminalised HIV transmission but will this prevent the spread of HIV?

Would it make people more sexually responsible?

Justice Edwin Cameron of South Africa’s Supreme Court of Appeal at the just ended XVII International AIDS Conference in Mexico said criminalisation of HIV transmission makes for bad policy direction around the epidemic.

He said laws and prosecutions don’t prevent the spread of HIV but may actually continue to distract us from reaching our goals of ending deaths, stigma, discrimination and suffering.

He also said something else that I like.

“The prevention of HIV is not just a technical challenge for public health. It is a challenge to all humanity to create a world in which behaving is truly feasible, is safe for both sexual partners, and genuinely rewarding.

“When condoms are available, when women have the power to use them, when those with HIV or at risk of it can get testing and treatment, when they are not afraid of stigma, ostracism and discrimination, they are far more likely to be able to act consistently for their own safety and that of others.”

The responsibility lies with all of us surely?

At the International AIDS Conference Regional Feedback Meeting held at the Harare International Conference Centre, Southern Africa HIV and AIDS Information Dissemination Service (SAfAIDS) Executive Director, Mrs Lois Chingandu also echoed the same comments.

She said the challenge with sexual matters were that they were mostly a “heat of the moment” thing and therefore clearly ascertaining that someone has an intention of infecting someone would be difficult.

“One could look for a condom in the dark and fail to find it. Both parties would go ahead to have consensual sex. Could we blame someone here?” she asked.

Today my message is simple. I am just appealing to Mutsa and others like her who are failing to move on because of the anger and sense of betrayal they feel that someone infected them to let go of it and live their lives.

She once felt like taking him to court but then, she says, she realised there was really no point for her status would not change.

I am also inviting my readers out there to contribute their thoughts and comments to this issue of blame and criminalising HIV transmission. My e-mail address is beatrice@safaids.org.zw

Please note:

Each of us has the responsibility and right to protect ourselves from HIV infection and re-infection

Failing to manage one’s anger is one way of increasing stress levels

You can still enjoy a full and productive life, even if you are HIV positive

Beatrice Tonhodzayi is a Programme Officer-Media with SAfAIDS

Mexico conference shines spotlight on criminal HIV transmission

South African Supreme Court Justice Edwin Cameron’s impassioned call for “a campaign against criminalisation” has been heard far and wide since he gave his plenary presentation on the final day of the XVII International AIDS Conference in Mexico City last month.

I have collected the various articles that have reported on Justice Cameron’s plenary, as well as the five other sessions consisting of at least 20 different oral or poster presentations, many of which I previously reported on here. Several of the articles also include quotes from a press conference held in Mexico, which – strangely – took place at the same time as the main Wednesday session on criminalisation, and which I unfortunately missed.

They include a high profile article in The New York Times, as well as articles or editorials from Canada, Jamaica, Rwanda, South Africa, Uganda, and the United Kingdom. There was even coverage of the issue in The Diplomatic Courier, a publication from the United States that reports on diplomatic and security issues .

I also wrote a second piece for aidsmap.com, covering Justice Cameron’s plenary in detail and several other sessions at the conference, which you can find here.

Seeking Better Laws on H.I.V.
by Lawrence K. Altman
New York Times
August 9, 2008

MEXICO CITY — The 17th International AIDS Conference ended here on Friday with a call for the reversal of laws that criminalize and stigmatize groups at risk for H.I.V., the virus that causes AIDS.

“Criminalization is a poor tool for regulating H.I.V. infection and transmission,” Edwin Cameron, a justice of the Supreme Court of Appeals in South Africa, said in a plenary session.

“Let one of the conference outcomes be a major international push-back against misguided criminal laws and prosecutions,” said Justice Cameron, who is himself infected.

Citing cases in Texas, Zimbabwe, Sierra Leone, Bermuda and Switzerland to illustrate the “folly of criminalization,” the judge said, “There is no public health rationale for invoking criminal law sanctions against those who unintentionally transmit H.I.V. or expose others to it.”

Justice Cameron said he understood that society feared the deadly virus and that public officials might want to invoke laws to counter those who recklessly passed it to others.

But, he said, “Criminalization is warranted only where someone sets out, knowing he has H.I.V., to infect another and succeeds.”

Justice Cameron cited the conviction in Dallas in May of Willie Campbell, 42, a homeless, H.I.V.-infected man who was charged with harassing a public servant with a deadly weapon after he spat at a police officer who arrested him.

Mr. Campbell must serve at least half of his 35-year sentence before he can apply for parole.

Justice Cameron pointed out that, according to the Centers for Disease Control and Prevention, saliva has never been shown to result in the transmission of H.I.V.

“The man was punished not for what he did, but for the virus he carried,” the judge said.

At the trial Mr. Campbell’s lawyer said he was indicted as a habitual offender, with a minimum penalty of 25 years, because he had been convicted of attacking two other officers in a similar manner and biting two inmates, as well as more than two dozen other offenses.

Justice Cameron described a law in Sierra Leone that requires a woman to take reasonable measures and precautions to prevent transmitting H.I.V. to her fetus. But testing for the virus and treatment for an infected mother are not widely available, health officials have said.

At least a dozen African countries have adopted similar laws, many poorly drafted, said the judge, who called them poor substitutes for measures that protected those at risk.

AIDS conference ends with call to end stigma
Ingrid Brown
Jamaica Observer
Monday, August 11, 2008

According to Edwin Cameron – a judge of the Supreme Court of Appeal of South Africa – the enactment of laws that criminalise transmission of or exposure to HIV had become so widespread, and criminal prosecutions so frequent, that they had become a crisis in efforts to deal rationally and effectively with HIV.

“Rather, they radically increase HIV stigma and become barriers to testing and treatment,” he said.

10 reasons why criminal laws and prosecutions make bad policy in the AIDS epidemic
Body Positive Northwest (UK)

On the final day of AIDS 2008 in Mexico City HIV positive Judge from South Africa’s Supreme Court of Appeal, Edwin Cameron delivered a passionate lecture entitled HIV is a virus, not a crime.

Justice Cameron argued that the enactment of laws that criminalise transmission of or exposure to HIV has become so widespread, and criminal prosecutions so frequent, that they have become a crisis in efforts to deal rationally and effectively with HIV. Citing examples from locations as diverse as the United States, Sierra Leone and Singapore, Cameron highlighted the irrational nature of these laws and their ineffectiveness in achieving their purported goal of preventing the spread of HIV. Rather, they radically increase HIV stigma and become barriers to testing and treatment. Prosecutions often single out already vulnerable groups such as sex workers, men who have sex with men and, in European countries, black males. Women are especially victimised by these laws, which expose them to assault, ostracism and further stigma.

Cameron stated that one of the outcomes of AIDS 2008 should be a major international pushback against such misguided criminal laws and prosecutions. He urged delegates — strengthened in their resolve to fight against stigma and discrimination — to return home committed to persuading lawmakers and prosecuting authorities of the folly and distraction of criminalisation.

In brief, Cameron stressed the following;

1. Criminalisation is ineffective
2. Criminal laws and criminal prosceuctions are a poor substitute for measures that really protect those at risk
3. Criminalisation victimises, oppresses and endangers women
4. Criminal laws and prosecutions are often unfairly and selectively applied
5. Criminlisation places the blame on one person instead of responsibility on two
6. Criminal laws targeting HIV are difficult and degrading to apply
7. Many of the laws are very poorly drafted
8. Criminalisation increases stigma
9. Criminalisation is a strong discincentive to testing
10. Criminalisation assumes the worst about people with HIV, and so punishes vulnerability.

Prevent and treat HIV, don’t criminalize it
Andre Picard
The Globe and Mail (Canada)
August 14, 2008

In Dallas, a 42-year-old homeless man was arrested for “harassing a public servant with a deadly weapon” – a fancy way of saying he spit on a cop. Because Willie Campbell was HIV-positive, he was jailed for 35 years, even though there has never been a documented case of the AIDS virus being transmitted by saliva.

In Zimbabwe, an infected woman was arrested for having unprotected sex with her lover.

The woman was convicted of “deliberately infecting another person,” even though the man was not infected and did not want to press charges. She was sentenced to five years in prison.

In Windsor, Ont., Carl Leone was sentenced to 18 years in prison after being convicted of 15 counts of aggravated sexual assault. The 32-year-old did not tell his sexual partners he was infected with HIV. Five of the women contracted the virus. Around the world, women and men infected with HIV are increasingly being prosecuted.

Mr. Justice Edwin Cameron of the Supreme Court of Appeal of South Africa told delegates to the International AIDS Conference last week that the growing criminalization of HIV-AIDS is a travesty that risks undermining progress and fuelling the epidemic.

“HIV is a virus, not a crime,” he said.

Judge Cameron, who is HIV-positive himself, said there are instances in which criminal prosecutions are appropriate, such as rape and when an infected person deliberately and knowingly spreads the virus, as in the case of Mr. Leone in Canada. But those crimes are covered by existing legislation.

Judge Cameron said what is troublesome in a world where 33 million are infected with HIV is the creation of special laws relating to HIV transmission and exposure.

In Egypt, for example, being infected with the AIDS virus is a crime, regardless of behaviour.

In Sierra Leone, “HIV transmission” is now a crime and the law applies to anyone who exposes another to the virus, even without transmission. The law expressly applies to pregnant women, meaning an HIV-positive woman can be jailed for being pregnant or breastfeeding, even though there are effective measures for preventing transmission.

Judge Cameron said HIV is a fearsome virus, but the response is largely irrational and counterproductive. He listed 10 reasons criminal laws make for bad health policy:

1) Criminalization is ineffective: There is no proof it stops the spread of HIV.

2) Criminal laws and prosecutions are a poor substitute for measures that really protect those at risk.

3) Criminalization victimizes, oppresses and endangers women. Worldwide, the vast majority of those who know they are infected are women, because of policies of testing them before the birth of a child.

4) Criminal laws and prosecutions are often unfairly and selectively applied. Those who end up being prosecuted are sex workers, men who have sex with men, intravenous drug users and, in Western countries, immigrants.

5) Criminalization places the blame on one person in a sexual relationship instead of responsibility on two people. In much of the world, women are in a subordinate position and cannot protect themselves.

6) Criminal laws targeting HIV are difficult and degrading to apply. Should consensual sex be subject to cross-examination? (Rape and the deliberate attempt to infect are different issues entirely.)

7) Many of the laws are poorly drafted and they would not pass muster in democratic states.

8) Criminalization increases stigma.

9) Criminalization is a strong disincentive to testing. And if a person is not tested, he or she will not be treated.

10) Criminalization assumes the worst about those with HIV and punishes vulnerability.

Put simply, Judge Cameron said, “Criminalization is a poor tool for controlling HIV-AIDS. There is no public health rationale whatsoever for invoking criminal law sanctions against those who unintentionally transmit HIV or expose others to it.”

It is also well established that countries that respect human rights and civil liberties, and encourage the undiagnosed to be tested for HIV, do a far better job of containing the epidemic than those adopting punitive, moralistic strategies.

The epidemic of HIV-AIDS is now in its third generation, and is likely to be with us for several more generations.

Prevention and treatment are the main tools available to fight this plague, with a dollop of human rights on the side. The world will never be able to prosecute away this massive public health challenge.

Move to criminalise AIDS ‘bad for Africa’
Tamar Kahn

Business Day (South Africa)

MEXICO CITY — A wave of ill-considered new African HIV/AIDS laws criminalising the transmission of the virus were likely to backfire and end in more people being infected, Supreme Court of Appeal judge Edwin Cameron said this week.

Cameron was speaking at the 17th International AIDS Conference, which ends today.

“Just like condoms or faulty medical supplies, bad laws can spread the virus,” said SA’s Cameron, who is expected to give a plenary address on the issue later today.

Cameron said he hoped to use the “Champions for HIV” initiative that Botswana’s former leader, Festus Mogae, started this week, to urge changes to recently passed laws in west, east and central Africa that criminalised HIV transmission.


Criminalising HIV spread won’t help
Editorial
Daily Monitor (Uganda)
August 12, 2008

There is growing concern across the world in regard to the criminalisation of HIV infection. The concern was reiterated at the 17th International HIV/Aids Conference in Mexico which ended last week.

In Uganda the government is soon coming up with a law that criminalises HIV transmission. The draft law holds that any person who knowingly infects another with HIV or carries out an action while knowing that such action will pass on the virus to another person, shall be guilty of a criminal offence.

The punishment for the offence has not yet been specified but the President has said that people who knowingly infect others with HIV should be hanged on conviction.

Whereas it’s heinous to deliberately infect other people with HIV, and whereas the government is right to get concerned, drafters of that law must be mindful of the impediments in its implementation. Criminalisation of HIV infection may not help reduce HIV prevalence as it may be difficult to secure a conviction in courts of law.

The law targets to punish people who infect others through unprotected sexual intercourse including HIV infected rapists/defilers who force their victims into unprotected sex and thereby infecting them.

However there are hurdles that may render this law ineffective. How will the prosecution establish that the victim was HIV free before the alleged rape/defilement occurred? How will the prosecution prove that it’s not the victim who actually infected the rapist/defiler?

How will the prosecution prove that the rapist who has been tested and found HIV positive, knew his sero-status before or at the time he committed the alleged rape/defilement? Because a person can be deemed to have deliberately spread the HIV only if they knew that they were infected with the virus at the time of commission of the crime.

The drafters of the law on criminalisation of HIV transmission have an uphill task to come up with a law that will not become too complicated to deliver the desired results.

Besides, the criminalisation of HIV spread may cause stigma by portraying people living with HIV as callous human beings who have little regard or remorse for other people’s lives.

The government should explore more effective non-criminal interventions or policies to fight HIV/Aids prevalence instead of criminalising the transmission of the Aids virus.

When HIV Carriers Could Be Guilty for Transmitting the Virus
Rwanda News Agency/allAfrica.com
21 August 2008

In 2006, Mr. Emmanuel Gahutu and his wife discovered they were HIV positive. Mr. Gahutu now blames it all on her – after a 17-year marriage. As RNA reports, should some campaigners get their way, Mr. Gatutu should be able to drag his wife to court for infecting him.

Mr. Gahutu’s story is telling. He is firm to the belief that he got the virus from his wife. “I got married over seventeen years ago and since then I have never had extramarital sex,” he says.

The soft-spoken Mr. Gahutu from the western provincial town of Nyamagabe is sure that his wife may not have been faithful. Although they never went for testing before getting married, his first born, a 17-year-old daughter, is HIV negative. Together they have six children.

“This implies that we must have been negative when we got married, but later on when my wife was pregnant two years ago, she tested positive and I was advised to have a test, which came out positive,” says Gahutu.

As per the present situation, according to Mr. Mulisa Tom – who deals directly with the legal dimensions of HIV, it is not possible to criminally charge anybody in Rwanda for transmitting the HIV virus because the local criminal law does not provide for it. Mr. Mulisa is the Legal Officer in Charge of Human Rights and HIV/Aids at the National University of Rwanda’s Legal Clinic.

Unlike Rwanda however, some countries in this region already have laws to prosecute people that may willfully transmit HIV. But HIV/Aids activists, researchers and the UN Aids Agency – UNAIDS – are not amused.

During the just concluded XVII International AIDS Conference in Mexico, the criminalisation of HIV transmission or exposure was one of the burning topics.

[…]

Trying to solve the problem of growing cases of infections using the courts, activists like Ms Valerie Musemakweli, say will take the fight against the disease back so many years.

Ms Valerie – who has lived with the virus for some 15 years says people who know their sero-status will not reveal it to their spouses or even seek medical support, “and could move to another place where they are not known” just to escape the law.

Sometimes you could get the virus without knowing how you go it, argues Ms Valerie, but you could tell your spouse just because of your conscience to protect them. “But when you are forced to do that by law, somebody may not feel comfortable to do that and therefore just keeps silent for fear the partner may abandon them and tell the whole would about your status”.

Evidence difficult to prove

In February this year, Gasana, 29 years, from the Southern Province, was diagnosed HIV positive. His newly wedded bride Jacqueline – aged 22 was found to be negative.

Out of furry, Jacqueline dumped her husband and was encouraged by her family to remarry. Mediation and sensitization about HIV/Aids by the University Legal Clinic encouraged the youthful Jacqueline to return to her husband – but they are living in separate bedrooms.

In a situation where Gasana would have been required by law to tell his wife, it is doubtful – later alone accept to be counseled. Instead, he would have kept quiet with the understanding that if she gets to know, she will leave him.

“If what is needed today is disclosure. Then where does the right to privacy and confidentiality lie”, wonders Mr. Mulisa of the University Legal Clinic. Instead, he says mechanisms to educate the public about voluntary disclosure are more feasible, to reduce the wide number of ‘potential criminals’.

The law can be helpful in situations where somebody plans and executes the “intention of willfully” transmitting the HIV/Aids virus to another, which can be an offence in criminal justice, according to some experts.

Case in particular could be if a doctor makes it a point to infect a patient with a syringe well aware it has been used by an infected person.

“But the burden of proof in issues where the various modes of transmission are usually practiced in privacy, with individuals who are not minors (by the law of the particular Country) and it was not rape or defilement because the consent of the parties existed”, argues Mr. Mulisa.

Intentional transmission

After HIV/Aids, activists say, similar laws would be necessary for diseases like Ebola, Tuberculosis and others where contact with an individual may lead to transmission.

Should there be more legal means to fight HIV/Aids or should governments invest in health care services and reduce transmission through community awareness programmes.

The UN clearly does not want to have a growing trend of criminalising HIV exposure and transmission to go on undeterred.

[…]

Better NOT

In Rwanda, as some activists say, should such a law come to force, the consequences to the fight against HIV/Aids that has brought down prevalence and infection rates, will be history. “No one will ever again take an HIV/Aids test in fear of being suspected to be a PONTENTIAL CRIMINAL”, Mr. Mulisa notes.

This law, as he points out, will reverse the current measures where pre-test counseling has led to many people publicly coming out to the public to educate the others and join the campaign to fight the spread of HIV/Aids.


Criminalization of HIV
A growing number of countries are passing or seeking to pass HIV-specific legislation that carry criminal punishments.
By Rebecca Wexler for Diplomatic Courier
27/08/08

At the XVII annual International AIDS Conference in Mexico City last week, leading experts called on countries around the world to reverse course on the adoption of HIV-specific criminal statutes that apply general criminal law to HIV transmission.

In what many delegates referred to as a dangerous trend, a growing number of countries are passing or seeking to pass HIV-specific legislation that can carry punishments ranging from monetary fines to life imprisonment.

While the criminalization of HIV transmission and exposure is hardly a new concept, several high-profile cases in the developed world along with an explosion of poorly crafted and broadly defined legislative endeavors in the developing world have raised alarm bells for international policymakers.

In 2008, an HIV-positive Texas man was sentenced to 35 years in prison for harassing a public servant with a deadly weapon after spitting on a police officer. Although the Center for Disease Control (CDC) has never recorded a case of HIV transmission through saliva, the man was charged with assault because his saliva was deemed a deadly weapon. In a similar example of how such criminal statutes blur the line between risky behaviors and criminal liability, a Zimbabwean immigrant living in Canada this year was sentenced to seven years in prison for aggravated sexual assault after failing to disclose his HIV-positive status to eight women prior to engaging in consensual unprotected sex. None of the women later became infected.

In Africa – where cultural and social constructs pose particular obstacles to tackling the HIV/AIDS epidemic – criminalization legislation has reached a fever pitch in the aftermath of a US-funded Action for West Africa Region HIV/AIDS Project (AWARE-HIV/AIDS) meeting in N’djamena, Chad in 2004.

As part of the meeting, West African parliamentarians drafted what is now known as the N’djamena African Model Law. The law contains some protections, including the guarantee of pre- and post-natal counseling and the right to health care services, but features several troubling provisions. The N’djamena model broadly requires HIV-status disclosure to a “spouse or regular sexual partner” within six weeks of diagnosis and permits mandatory testing of pregnant women, rape victims, and when necessary to “solve a marital dispute.”

The N’djamena law also creates the vague offense of willful transmission pertaining to those who transmit the virus “through any means with full knowledge of their HIV-positive status” – a parameter broad enough to include mother-to-child-transmission. The law does not, however, distinguish between those who intend to do harm and those whose behavior can be categorized as reckless or negligent, raising particular questions about the culpability of individuals who might not be aware that they are HIV positive.

Touted by AWARE-HIV/AIDS as addressing “the need for human rights legislation in that region to protect those who are infected and exposed to HIV,” the model law has been adopted as the basis of national HIV legislation in nine West and Central African countries. At least six countries in Southern Africa where the burden of HIV/AIDS is the highest are in the process of following suit.

The explosion in the adoption of HIV-specific transmission and exposure laws on the continent – described by some as a “frenetic spasm” of activity – places Africa on the cusp of becoming the most heavily legislated region in the world.

Proponents of these laws point to legal mandates as “powerful weapons of social change,” with the potential to both deter reckless and high-risk sexual behavior, and serve as an effective tool of prevention.

In a joint meeting of the AIDS and Rights Alliance for South Africa (ARASA) and Open Society Initiative for Southern Africa (ORISA) policymakers debated the way forward for HIV-specific statutes. At the meeting, supporters of HIV transmission legislation suggested that such laws hold everyone accountable for curbing the spread of HIV, placing the onus of responsibility on both people living with HIV/AIDS to protect their partners, and on non-infected persons to demand safer sex practices and the use of condoms.

Evidence, however, has yet to provide support for the theory that the criminalization of HIV transmission either alters behavior or controls transmission rates. According to a recent commentary in the Journal of the American Medical Association penned by Temple University Beasley School of Law professor Scott Burris and Justice Edwin Cameron of the Supreme Court of Appeals in South Africa, not a single study to date has effectively proven that the threat of criminal prosecution influences condom use.

Of note, Justice Cameron made waves after becoming the first public official in Africa to disclose his HIV-positive status. A qualitative study conducted in the United Kingdom, however, found that criminal prosecution and the accompanying publicity increased perceptions of stigma for people living with HIV/AIDS, undermining public health efforts that stress disclosure, testing, and supportive social environments as cornerstones of controlling HIV transmission.

Stigma and HIV-based discrimination have taken center stage in the debate against criminalization efforts, with opponents arguing that such legislation could paint HIV-positive persons as criminals, deterring them from seeking testing or treatment and making them even less likely to disclose their HIV status for fear of criminal reprisal.

Speaking at the opening session of the UNDP and UNAIDS Secretariat Consultation in Geneva in 2007, Justice Cameron suggested “HIV is treated exceptionally for one over-riding reason: the stigma associated with it as a sexually transmitted infection,” adding “no other infectious disease, not even any other sexually transmitted disease, is treated as HIV is treated.”

The situation becomes worse for African women, who still exist in male-dominated communities in which the power over sexual relationships and their safety lies in the hands of their husbands and male partners. In many African countries, women do not have the power to demand condom use or fidelity from their husbands without the risk of being beaten or ostracized by their communities. According to a World Health Organization survey, roughly 25% of African women do not disclose their HIV status for fear of being beaten or abandoned.

Further complicating matters, women are often the first to know about their HIV status because of antenatal testing, and are usually blamed for bringing HIV into the home. An unintended consequence of these transmission laws is the exacerbation of these unequal power relations, further marginalizing women and potentially deterring them from seeking counseling or treatment.

Recognizing concerns that transmission statutes are ineffective tools for altering sexual behavior, violate medical privacy rights, and add stigma and fear to a disease that already bears a scarlet letter, UNAIDS earlier this month drafted a new policy brief urging governments to limit criminalization to cases of intentional transmission.

More specifically, the brief calls on legislators and policymakers to reject the application of criminal law to cases in which there is no significant risk of transmission, or in cases where an individual is unaware of his or her HIV positive status, discloses his or her HIV positive status to a sexual partner, or takes reasonable precautions to avoid transmission, such as practicing safer sex.

In the absence of a public health rationale for invoking criminal law against those who transmit HIV, both Justice Cameron and UNAIDS have suggested punishment and retribution are the driving forces of criminal law efforts, adding that safety and prevention must come first.

According to Hon. Justice Michael Kirby of the High Court of Australia “There will be calls for ‘law and order’ and a ‘war on AIDS.’ Beware of those who cry out for simple solutions, for [in] combating HIV/AIDS there are none.”

UK: Developing guidance for HIV prosecutions: an example of harm reduction?

I’m including an excerpt here – the conclusion, actually – of an excellent article by Yusef Azad of the National AIDS Trust, in the July issue of the HIV/AIDS Policy and Law Review, published by the Canadian HIV/AIDS Legal Network, which describes the way the HIV sector managed to successfully intervene and manage the harm of criminal prosecutions in England & Wales for ‘reckless’ HIV transmission following an initial period of shock and panic.

By persuading the Crown Prosecution Service (CPS) to consult with the community on the production of a policy statement, as well as legal guidance for prosecutors and caseworkers in this area of law, he argues that this was pragmatic ‘harm reduction’. Certainly, the process has resulted in a much higher burden of proof of transmission and guilt, and there have been no successful prosecutions since an African migrant living in Bournemouth pleaded guilty in January 2007.

Since then, three cases have been dismissed by a judge in pretrial hearings, including two gay cases (in Preston in April 2007 and Cardiff in May 2008) and one heterosexual case (in Manchester in October 2007). These prosecutions all failed because the men had the same informed solicitor who successfully argued that the CPS failed to provide uneqivocal proof that the defendant, and only the defendant, could have, in fact, infected the complainant(s). Although the CPS guidance was only published in March 2008, even the existence of draft versions was enough to persuade the judge in the earlier two cases.

The full article, ‘Developing guidance for HIV prosecutions: an example of harm reduction?’, can be found here.

Judging success depends a lot on one’s initial expectations. The CPS were not in a position to end prosecutions for reckless transmission or disagree with the interpretation of the OAPA 1861 as set out by the Court of Appeal.

What they could do — and what they did do — was consider in greater depth, and on the basis of detailed evidence, what is required to prove responsibility for infection, knowledge, recklessness and appropriate use of safeguards. An informed understanding of these elements has, even in the context of current criminal law, resulted in fewer and fairer prosecutions.

As the CPS says in its Policy Statement, “[O]btaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult … accordingly it is unlikely that there will be many prosecutions.” Therefore, we should consider this to be a successful example of policy intervention as harm reduction.

It was not without its risks. Success was due to a number of factors, not least of which was a CPS that was already committed to taking seriously the concerns and experiences of affected communities when considering prosecutions in socially sensitive areas of law.

Some jurisdictions will not have such an enlightened prosecution service, and so the HIV sector will need to start further back in terms of engaging with the authorities. But it may be possible, even given the different legal contexts of different countries, to use the CPS Guidance to help bring about improvements in practice elsewhere.

The process was helped immensely by the commitment from an extraordinarily wide range of partners within the HIV sector, encompassing NGOs, academics, clinicians, virologists and, above all, people living with HIV.

Although harm may be reduced, it has not been ended — prosecutions for reckless HIV transmission remain and will continue. There is an urgent need to restate the ethical and policy case against such prosecutions and to consider freshly how and when we might engage with political decisionmakers on this issue.

Criminal HIV transmission and exposure laws spreading around the world ‘like a virus’

Edwin J. Bernard, aidsmap.com, Thursday, August 07, 2008

Concern over the growing international trend towards the criminalisation of HIV transmission or exposure was documented in a Wednesday morning session at the XVII International AIDS Conference that highlighted “criminalisation creep” in Europe and Central Asia as well as the rapid spread of “highly inefficient laws” in West and Central Africa.

UNAIDS is so alarmed by these developments that this week they produced a new policy paper strongly suggesting that governments should repeal current laws that criminalise HIV transmission and exposure laws with the exception of intentional transmission.

With five major sessions over four days and least 20 different oral or poster presentations, the criminalisation of HIV transmission or exposure is one of the burning topics of the XVII International AIDS Conference agenda. And on Friday, South African Supreme Court Justice Edwin Cameron will deliver a plenary speech calling for an unambiguous rejection of the use of criminal law to regulate the sexual behaviour of those with and at risk of HIV.

Today, however, the conference heard evidence that laws enabling prosecutions for HIV exposure or transmission – whether via sex, needle-sharing or from a mother to an unborn child or infant – are high on the agenda of many nations around the globe, despite the fact that there is no evidence these laws change behaviour, and growing evidence that they may inadvertently exacerbate the HIV epidemic.

West African model law confusing and problematic
In a session entitled, ‘To transmit or not to transmit: is that really the question? Criminalisation of HIV transmission’, the conference heard that since 2005, Western and Central Africa has witnessed an explosion of national HIV-specific criminal exposure and transmission laws that threaten to make it one of the most legislated regions in the world for HIV.

So far, Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone have passed laws in rapid succession and more Western, Central and Southern African countries are proposing similar laws, including Angola, the Democratic Republic of Congo, Malawi, Madagascar, Tanzania and Uganda.

Most of these laws are based on the African Model Law, created in September 2004 during a workshop by Action for West Africa Region– HIV/AIDS (AWARE–HIV/AIDS), in N’djamena, Chad.

Richard Pearshouse of the Canadian HIV/AIDS Legal Network noted that AWARE-HIV/AIDS receives USAID funding, and is implemented by Family Health International with additional funding from US-based organisations including Population Service International and the Constella Futures Group. He suggested to conference delegates that they politely let these organisations know how they feel about this at their stands in the exhibition hall.

The model law comes in the guise of human rights legislation in order “to protect those who are infected and exposed to HIV,” and Mr Pearshouse pointed out that the model law does have some positive provisions, including a guarantee of pre- and post-test counselling; a right to healthcare services and medical confidentiality; and protection from discrimination when receiving healthcare and in the provision of goods and services.

However, Mr Pearshouse also pointed out that the model law contains a number of problematic provisions, such as the requirement that someone newly diagnosed with HIV must disclose their status to a “spouse or regular sexual partner” as soon as possible and at most within six weeks of the diagnosis; mandatory HIV testing during antenatal care, following a rape charge, and “to solve a matrimonial conflict”; and, most worryingly, the extremely vague offence of “willful transmission” defined as transmission of HIV “through any means by a person with full knowledge of his/her HIV/AIDS status to another person” including via sex, needle-sharing, and mother-to-child transmission.

He argued that the phrase “through any means” was imprecise and may end up criminalising all HIV-positive individuals, even those who practise safer sex regardless of disclosure and regardless of the actual risk of transmission.

Criminalising mother-to-child transmission is especially problematic, he said. The UNAIDS policy brief on criminal HIV transmission released this week argues that this is inappropriate because:

  • everyone has the right to have children, including women living with HIV;

  • when pregnant women are counselled about the benefits of antiretroviral therapy, almost all agree to being tested and receiving treatment;

  • in the rare cases where pregnant women may be reluctant to undergo HIV testing or treatment, it is usually because they fear that their HIV-positive status will become known and they will face violence, discrimination or abandonment;

  • forcing women to undergo antiretroviral treatment in order to avoid criminal prosecution for mother-to-child transmission violates the ethical and legal requirements that medical procedures be performed only with informed consent;

  • and often, HIV-positive mothers have no safer options than to breastfeed, because they lack breastmilk substitutes or clean water to prepare formula substitutes.

Do women really need these laws?
These new laws have arrived under the guise of protecting women – who have few legal or human rights in many African nations – noted Michaela Clayton of the AIDS & Rights Alliance for Southern Africa (ARASA), but, “is this what women really want?” she asked.

She said that 61% of HIV-positive individuals in sub-Saharan Africa are women and that women are the often the first person in a couple to know their HIV status due to antenatal screening.

Women, she said, are then often blamed for “bringing HIV home” and consequently often feel unable to disclose their HIV status to their male partners due to a very real fear of physical harm and eviction.

In addition, due to power imbalances within relationships most women are unable to practise safer sex, since condoms are a male-controlled prevention method.

Under these laws, she said, it seemed likely that women as well as men will be arrested and prosecuted and suggested that these laws may deter women from accessing HIV testing and services aimed at preventing mother-to-child transmission of HIV.

“Criminalisation is bad public policy,” she concluded. “Jurisdictions should not adopt criminalisation policies and those that have already done so should reverse course.”

”Criminalisation creep” in Europe and Central Asia
The same conclusion was asserted even more forcefully by HIV-positive advocate, Julian Hows, who presented results of an updated scan by the Global Network of People Living with HIV/AIDS (GNP+) and the Terrence Higgins Trust (THT) of criminal HIV exposure and transmission laws in 53 countries in Europe and Central Asia.

A 2004 rapid scan, published in 2005, previously revealed that out of the 45 European countries surveyed, in at least 36, the actual or potential transmission of HIV can constitute a criminal offence.

During his presentation, Mr Hows revealed that Sweden, Switzerland and Austria remained at the top of the prosecutions league table, followed by Denmark, Finland, France, Italy, Netherlands, Norway, and the UK.

Only Albania, Bulgaria, Estonia, Luxembourg, and Slovenia had no existing or HIV-specific laws criminalising HIV exposure or transmission, although reliable data were lacking for Greece, Monaco, Portugal, Spain, and Uzbekistan.

However, Mr Hows pointed out that data on prosecutions is difficult to obtain in many countries and that the data may “significantly underestimate prosecutions.”

He noted that in the United Kingdom although there have ‘only’ been 16 prosecutions and twelve convictions to date, there have been more than 100 police investigations that did not reach the court, “but which also had devastating effects on individuals, their families and their communities” and suggested that this may also be the case in the other countries that currently prosecute HIV exposure or transmission.

He added that information on the enforced quarantine of HIV-positive individuals perceived to be a threat – such as is the case in Sweden – is also difficult to ascertain.

Since 2004, six countries have enacted or proposed laws that criminalise HIV exposure or transmission, including Albania, Moldova, Montenegro, Kyrgystan, Serbia and Turkey. In addition, Malta, Poland, Kyrgystan and Serbia can now be added to the list of countries that have prosecuted at least one individual for HIV exposure or transmission.

One bright spot, noted Mr Hows, is advocacy that has – or may have – a positive impact in four countries.

In Switzerland, the Swiss Federal AIDS Commission’s statement regarding the lack of infectiousness of individuals on effective treatment may reverse the trend that has seen ten prosecutions and eight convictions in the past four years.

However, last month the highest Swiss court ruled that all people with HIV can be criminally liable for HIV transmission, even if untested.

In the Netherlands, no prosecutions or convictions have taken place since 2005 due to two Dutch Supreme Court rulings in 2005 and 2007 following intense discussion between legislators, lawyers and civil society organisations.

However, there has been one prosecution for intentional transmission of HIV by a needle filled with HIV-infected blood.

In the United Kingdom, new guidelines by the Crown Prosecution Service have clarified some of the uncertainties that have surrounded prosecutions for reckless HIV transmission, and given the high threshold of evidence required it seems likely that prosecutions will become increasingly rare – in fact the last three attempts to prosecute reckless HIV transmission in England and Wales have failed.

And, although there has been no change in law, the Ukrainian Network of People Living with HIV/ AIDS has had success in highlighting the unreliablity of phylogenetic testing and have avoided several prosecutions being initiated.

Mr Hows concluded, however, that “there is a slow ‘creep’ of increasing criminalisation across the countries being studied,” and that “laws are being introduced or being made more punitive without any regard or consideration for the evidence.”

He noted that “advocacy efforts to decriminalise where possible, mitigate where it is not, and ensure that laws are not introduced where there are none – are mainly noticeable by their absence”.

UNAIDS argues only intentional transmission should be prosecuted
In an attempt to counter the growing trend of criminalising HIV exposure and transmission, UNAIDS this week published a new policy brief that strongly argues against all prosecutions for HIV exposure or transmission with the exception of “cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.”

The paper states that, “there are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights.”

It argues that alternatives to criminal sanctions should be explored: “Instead of applying criminal law to HIV transmission, governments should expand programmes which have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative”

Further, UNAIDS suggest that governments “strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and children; improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and children, and support women’s equality and economic independence, including through concrete legislation, programmes and services. These are the most effective means by which to protect women and girls from HIV infection and should be given the highest priority.”

The paper concludes with several important recommendations, including:

  • Governments should abide by international human rights conventions on equal and inalienable rights, including those related to health, education and social protection of all people, including people living with HIV.

  • Governments should repeal HIV-specific criminal laws, laws directly mandating disclosure of HIV status, and other laws which are counterproductive to HIV prevention, treatment, care and support efforts, or which violate the human rights of people living with HIV and other vulnerable groups.

  • General criminal laws should only apply to the intentional transmission of HIV, and governments should audit the application of general criminal law to ensure it is not used inappropriately in the context of HIV.

  • Governments should redirect legislative reform, and law enforcement, towards addressing sexual and other forms of violence against women, and discrimination and other human rights violations against people living with HIV and people most at risk of exposure to HIV.

  • Access should be significantly expanded to proven HIV prevention programmes (including positive prevention), and support voluntary counselling and testing for couples, voluntary disclosure, and ethical partner notification.

References
UNAIDS Policy Brief Criminalization of HIV Transmission August 2008.

Pearshouse R et al. Legislation contagion: the spread of problematic new HIV laws in Africa. 17th International AIDS Conference, Mexico City, abstract WEAE0101, 2008.

Clayton M et al. Criminalising HIV transmission: is this what women really need? 17th International AIDS Conference, Mexico City, abstract WEAE0102, 2008.

Hows J et al. Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia. 17th International AIDS Conference, Mexico City, abstract WEAE0103, 2008.

Africa: “Terrifying” new HIV/AIDS laws could undermine AIDS fight

MEXICO CITY, 7 August 2008 (PlusNews) – In an attempt to stem the spread of the virus, African countries are increasingly passing legislation that criminalises HIV exposure and transmission. But these laws could do more harm than good, delegates attending the International AIDS Conference in Mexico, heard on Wednesday.

“Africa has burst into this whole frenetic spasm of criminalising HIV,” said South African Justice, Edwin Cameron.

Laws that make HIV transmission an offence are nothing new in the developed world. In Switzerland, a man was sent to jail this year for infecting his girlfriend with HIV, even though he was unaware of his HIV status and a Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances the officer was exposed to the virus were virtually zero.

Now African governments – particularly in West Africa – are jumping on the bandwagon.

Four years ago, participants from 18 countries met at a regional workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa. But the law that they came up with was far from “model”, in fact Cameron described some of its provisions as “frankly terrifying”.

According to Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, the model law’s broad definition of wilful transmission could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.

The law also makes provision for compulsory HIV testing for accused rapists and for the settling of marital disputes; empowers healthcare workers to disclose a patient’s HIV status to their spouse or sexual partner; and requires people with HIV to tell their partners as soon as possible or within six weeks of learning their diagnosis.

Worryingly, at least seven countries in West and Central Africa have already used the model as the basis for their national HIV legislation, while at least six others are in the process of developing similar laws.

Some countries have chosen to adopt the “model” law word for word, while others have attempted to simplify it, making the legislation “profoundly human rights unfriendly and human rights regressive”, according to Pearshouse.

Southern Africa, where the burden of HIV is the highest, has a mix of effective and ineffective HIV laws, but very few countries have so far introduced legislation that criminalises HIV transmission.

However, Michaela Clayton, executive director of the AIDS and Rights Alliance of Southern Africa, told delegates that in Malawi, a bill with very broad provisions for criminalising transmission, including from mother-to-child, is currently being debated. If found guilty under the proposed law, an HIV-positive person could face imprisonment of up to 14 years. Mozambique is considering passing similar legislation.

''Criminal law is simply the wrong framework for dealing with HIV transmission. Everywhere it has been tried, it has been counter-productive''

“Bad laws can spread the virus”

Speakers agreed that the intentional and malevolent infection of another person is a criminal offence, but warned about the difficulty of drawing a line between criminal and non-criminal transmission.

Julian Hows, from the Global Network of People living with HIV/AIDS, urged delegates to consider the effect of criminalisation laws on HIV-positive people. He said they created “fear and confusion” and made people living with the virus feel like criminals.

“Criminal law is simply the wrong framework for dealing with HIV transmission,” Cameron commented. “Everywhere it has been tried, it has been counterproductive and applied unjustly.”

Instead of preventing HIV, criminalisation fuels stigma and discourages people from getting tested, disclosing their status to partners or accessing treatment.

Criminalisation is often positioned as a way of protecting women, but Clayton pointed out that because women test for HIV in greater numbers than men, it is women who were more likely to be arrested and prosecuted. She also warned that the laws would create mistrust between people living with HIV and health care providers.

“Just like faulty condoms or unsafe medical supplies, bad laws can spread the virus,” Cameron said.

Canada: Criminalising HIV may only fuel the epidemic

An excellent article published today in the online edition of Canada’s gay newspaper, Xtra, examines the impact of criminal prosecutions for HIV exposure (and transmission) in the country with currently the most prosecutions per capita in the world (that we know about, at least).

I must admit I may be somewhat biased about the article, since the writer, Shawn Syms, interviewed me for it; however, it does also include an interview with Richard Elliott of the Canadian HIV/AIDS Legal Network.

 

Criminalizing HIV may only fuel the epidemic

Laws create disincentive for testing

Shawn Syms / Xtra.ca / Thursday, July 17, 2008

Want to know a great way to increase the spread of HIV? Criminalize it.

In Canada, a person with HIV can be put in jail if they have unprotected sex with someone who didn’t ask about their HIV status. This means that HIV-negative people have the power to seek prosecution of HIV-positive people over sexual choices they made together, even if no HIV transmission occurs at all.

On first glance, this may sound fair. After all, isn’t the person with HIV being dishonest, hiding information that any HIV-negative person deserves to know so they can avoid hopping in the sack with them in the first place? If you judge by media coverage, or common public sentiment, or even the views of many gay men, you might agree. But things aren’t that simple.

The Supreme Court decided a decade ago that a person with HIV can be prosecuted if they engaged in sex that involved a “significant risk of serious bodily harm” — but the question of which activities meet that criteria and which don’t hasn’t been definitely settled.

If there are unanswered legal questions, the lack of community agreement is just as apparent. I think there’s a shared ethical consensus that it’s malicious to lie about HIV status to convince someone to have unprotected sex. Beyond that though, opinions are all over the map.

Some negative gay men assert their own responsibility to play safe and don’t discriminate based on known or perceived HIV status — while others express righteous indignation that anyone would engage in even the safest of activities without informing others if they have HIV.

Some men with HIV feel that if they disclose, any behaviour that both parties agree to is acceptable. Others think playing extra safe should be enough. And significant numbers of people with HIV actually support criminalization. Can we all come closer together as a community on these questions? And does criminal prosecution under the law offer us any assistance in that goal?

“These laws harm public health — and they don’t help anyone,” argues Edwin Bernard, a writer and researcher who studies HIV criminalization laws around the world. “The subtle but very real impact of these legal cases is that people with HIV don’t have the same sexual and reproductive rights as others.”

If you read the judgments in court cases of so-called “reckless” HIV-transmission risk — more and more of which are prosecuting gay men — they seem to send the message that people with HIV are completely responsible for protecting the sexual health of others, and that HIV-negative people don’t have any personal responsibility for the choices they make.

That’s not exactly the case, says Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, which has advocated for the legal rights of people with HIV since 1992. He points out the kinds of charges levelled in these cases — such as “criminal negligence causing bodily harm” — are specific to criminal law, which is only concerned with the innocence or guilt of the accused person. In fact, the responsibility of the other partner when it comes to safer sex isn’t even really considered.

So why could criminalizing the HIV-transmission risk actually increase the threat of HIV? Because it encourages the people at very greatest risk of passing HIV on — those who don’t even know they have it — to avoid testing, diagnosis and treatment.

“This creates yet another disincentive for people to get tested,” says Elliott, since knowing your HIV status makes you a target for criminalization — whether or not you consistently practice safer sex. That’s because there is very little to protect someone from an HIV-negative person lying about them — and it’s left to the judge to decide who is telling the truth.

Often the name of the person with HIV is dragged through the media in terms that are sensational at best, and inaccurate at worst — as was seen in the recent case of gay man Ryan Handy. The London Free Press headline blared “HIV positive man spread virus, jailed 8 months,” even though he didn’t do that at all. Consistently, the name of the accuser is withheld — potentially creating a safe space for malicious liars to attack responsible people with HIV with relative impunity.

“What’s happening in Canada is a witch hunt against HIV-positive people,” says Bernard. He points to the Quebec case earlier this month where a woman with HIV pressed charges against her boyfriend for domestic assault. The boyfriend countered that the woman had exposed him to HIV, even though the woman said she disclosed her HIV status early in the relationship and claimed the sex had been protected all along.

“This is a revenge case,” says Bernard. “Any time anybody has a grudge against an HIV-positive person, it is now possible to make a complaint and it will always end up being a ‘he-said/she-said’ or ‘he-said/he-said’ case in court.”

I’d like to expect that all judges and prosecutors are free of bias and well-informed about the real risks of HIV transmission — but that may be a foolish hope. Two months ago an American man with HIV was sentenced to 35 years in prison for spitting on someone. Late last year, an Ontario judge insisted that a witness with HIV and hepatitis C wear a protective mask in the courtroom despite zero risk to anyone in the room. And prosecutors have provided judges and juries with inaccurate information about the ability to medically determine which person infected which in HIV-transmission cases.

“So many of these cases are one person’s word against another — and juries are predisposed against HIV-positive people,” adds Bernard. “Condom use and disclosure must be proven. But unless people start using mobile phones to video the moment of disclosure and the condom being put on… it gets ridiculous.”

There is a common perception that people diagnosed with HIV represent a serious risk to others. But the far more grave threat lies elsewhere — with people who believe themselves to be HIV-negative and who, with little risk of legal prosecution, go around having unprotected sex with anyone they want, perhaps with little discussion of sexual risk and responsibility.

Placing a legal burden on people who know they are HIV-positive goes after the wrong people the wrong way. These women and men have taken the responsibility to get tested and are most likely to be on treatment, which itself significantly reduces their likelihood of infecting others. And when we punish them and throw them in jail, we put them in a situation where they have less access to medication, safer-sex supplies or clean needles — creating a dire epidemic of HIV and hep C in our prison system among people who will eventually be released in far worse shape.

Meanwhile, Bernard points out, studies in Canada and the US have concluded that people who don’t know their status — who may believe themselves to be negative — are the ones responsible for the majority of new HIV infections. “Nearly all new HIV infections can be attributed to HIV-positive persons unaware of their HIV status,” he wrote in an analysis of multiple research studies for the online resource Aidsmap.

This is because these people are more likely to practice unprotected sex and because the amount of HIV in someone’s system is dramatically elevated at the point of initial infection — making it easier to pass the virus on. (The ruling in one Canadian case has suggested these people may be legally liable as well, but this has not been definitively confirmed by the courts.)

All this means that practicing safer sex — rather than mandating that all people with HIV always disclose their status — is the best bet for everyone who wants to remain HIV negative. Disclosing HIV status doesn’t protect positive men and women from legal action, and it opens them up to discrimination, stigma and danger.

That can include the threat of physical violence. “Do I risk getting beaten up by disclosing? Or do I risk getting criminally prosecuted if I just stay quiet?” says Elliott of the situation faced by some people with HIV. “This is a really good example of how the criminal law is of very little use in a really complicated human interaction.”

“Disclosure is not the answer,” says Bernard. He points to the case of David Summers, who, according to a report in the Halifax (UK) Evening Courier, violently beat and brain-damaged a man who disclosed his HIV status after sex, “leaving his victim unconscious in his blood-spattered flat.” The report did not indicate that the sex was unprotected.

Bernard has reviewed legal cases of criminal HIV transmission from around the world. In his view, Canada’s record is one of the worst. Per capita, he says, “Canada is criminalizing more people with HIV than anywhere in the world.” The punishments in the US are the most severe, and the laws in Switzerland are most “draconian” — there, unlike in Canada, using a condom doesn’t protect someone from prosecution.

Bernard and Elliott both point to the response to criminalization in England and Wales as hopeful. The UK Crown Prosecution Service developed a guidance document to advise prosecutors on HIV criminalization cases, incorporating input from AIDS service organizations. But Elliott cautions that the comparatively decentralized nature of the Canadian system makes a similar response here unlikely.

Is there any way out of this mess? “The fewer of these laws there are, the better off we will be, in terms of the health of the public at large,” argues Bernard, suggesting that criminalization be replaced with a renewed focus on safer sex for everyone and testing, diagnosis and treatment for people who do acquire the virus. “HIV is everybody’s concern and sexual health is everybody’s responsibility.”

Africa’s criminal HIV transmission laws are highly inefficient, says Justice Michael Kirby

Australia’s most eloquent and insightful High Court judge, Justice Michael Kirby, spoke at the International Criminal Law Reform conference in Dublin yesterday, arguing that the move to criminalise HIV transmission in sub-Saharan countries such as Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone will do more harm than good.

He also also argued that countries which focused on human rights-based laws that encouraged the undiagnosed to test for HIV did better at containing the epidemic than those which “adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction.”

 

Third World should help HIV sufferers, not punish them: judge

Victor Violante, Legal Affairs Reporter

The Canberra Times

16/07/2008

Developing countries should introduce laws that encourage potentially HIV-positive people to seek diagnosis and treatment, High Court judge Justice Michael Kirby said last night.

Speaking at the International Criminal Law Reform conference in Dublin, Justice Kirby said governments that had focused on educating rather than punishing those with HIV or AIDS were most successful in containing their spread.

”Those countries that have adopted a human rights-respecting approach to the HIV/AIDS epidemic have been far more successful in containing the spread of HIV than those countries that have adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction,” he said.

Justice Kirby has been heavily involved in the international fight against AIDS, having served as a member of the World Health Organisation’s Inaugural Global Commission on AIDS from 1988 to 1992. Since 2004 he has been a member of the UNAIDS global reference panel on HIV/AIDS and human rights.

While many developed countries, including Australia, had laws that criminalised the deliberate spread of HIV, such laws should not be used as part of the strategy to curb infection rates.

”Legal and punitive laws have been kept in reserve because their aggressive deployment has generally been seen as counterproductive.

”This is so because of the typical ineffectiveness of criminal law as a response to activities important to individual identity and pleasure [such as sex and drug use].”

Justice Kirby, who is openly homosexual, spoke about his indirect experience with HIV, having seen friends die from the virus.

”From 1985, I lost a number of close friends, several of them members of the legal profession. I witnessed the substantial helplessness of the medical profession in the early days of HIV.”

He urged the thousands of lawyers, judicial officers and lawmakers from all over the world at the conference to avoid enacting what he called ”HILs”, or highly inefficient laws.

Of concern were laws introduced in some African nations, including Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone, that impinge on the human rights of those infected with HIV or AIDS.

One law criminalised the ”wilful transmission” of HIV, but defined the offence as the transmission of HIV ”through any means by a person with full knowledge of his or her HIV status to another person”.

Justice Kirby said, ”Potentially, [that law] imposes criminal liability, although a person may practise safer sex which reduces or eliminates actual risk of transmission to a sexual partner; takes steps to disinfect injecting or skin-piercing equipment; or involving mother-to-child transmission of HIV regardless of the actual risks involved in the particular case.”

He urged governments to introduce laws and programs that were proven strategies in the war against HIV and AIDS, even if they were unpopular with their cultures.

”Taking the effective measures is not always popular. Yet taking punitive measures, depending on their terms and enforcement, is, on current information, unlikely to succeed in the environment where there is no effective vaccine and no curative therapy which can be offered to persons living with HIV and AIDS.”

US: Spitting as a deadly weapon: analysis

I have just written a news feature for aidsmap.com analysing the recent conviction of an HIV-positive man in Texas to 35 years in prison for spitting at a policeman.

The first few paragraphs are below, but to read the article in full, click this link.

Texas jury concludes saliva of HIV-positive man a ‘deadly weapon’, sentenced to 35 yrs jail

Edwin J. Bernard, Friday, May 16, 2008

A 42 year-old HIV-positive man from Texas who spat at a police officer during his 2006 arrest for being drunk and disorderly has been sentenced to 35 years in prison by a Dallas court and must serve at least half of his sentence before being eligible for parole because the jury found that his saliva was a deadly weapon.

The case, which was reported by more than 175 news outlets yesterday, has outraged UK HIV organisations, particularly since only three reports – from The New York Times, USA Today and the Mississippi Clarion-Ledger – actually mention that HIV cannot be transmitted via spitting.

‘It is shocking that in the same country which has some of the most advanced research into HIV and its treatments, there can be such ignorance within the legal system as to how HIV is transmitted,” said Deborah Jack, Executive Director of the National AIDS Trust. “This is not justice but a victory for fear, myth and prejudice. Such a verdict – contradicted by all the science – must constitute a breach of Mr Campbell’s right to a fair trial.”

Lisa Power, Head of Policy at Terrence Higgins Trust, added: “The saliva of someone with HIV is not a deadly weapon. Putting someone with HIV in a situation where they cannot access condoms, treatment is poor and they may have little choice about sexual activity is a far more dangerous thing to do, and US clinicians need to tell the Texas legal system so.”

UK: Excellent article in Economist on criminal HIV transmission

Here’s a first…a well-written, concise and balanced article on the repercussions of criminalising reckless HIV transmission in England & Wales, from this week’s edition of The Economist.

HIV transmission: A modern bugbear
Apr 10th 2008
From The Economist print edition

AT FIRST blush the bigwigs at the Health Protection Agency, which monitors diseases, could have told a rosier story. On March 28th they reported that sexual-health clinics diagnosed 8% fewer HIV infections last year than in 2006. But Britain’s epidemic is not fading, they insisted. New infections among gay men and straight people are close to all-time highs; falling infections among heterosexuals who caught the virus in Africa account for almost all of the decline (see chart).

There are more ominous trends than these. Britons’ understanding of the risks has gradually worsened over the past decade or so. In January a poll by Ipsos MORI found that more than two out of five Londoners do not know that sex between men carries a chance of transmitting HIV. Lately, says Yusef Azad of the National AIDS Trust, a charity, the proportion of gay men having unprotected sex who give blood for a syphilis test but refuse to do so for a HIV test has gone up.

Is this complacency or dread? Mr Azad worries that some gay men may shirk free HIV checks because they fear a positive result could incriminate them in future. Since 2001, 13 people in Britain have been convicted of reckless grievous bodily harm (reckless injury in Scotland) for spreading HIV to their partners. Because recklessness involves taking a known risk, eschewing knowledge of the danger probably averts a court case.

Doctors and campaigning groups such as the National AIDS Trust say that the legal system creates muddled disincentives for public health. One man without a biochemical diagnosis of his status has been convicted after he ignored advice from a clinician and his South African wife that he should get one. But because a court in Liverpool also found him guilty of bigamy and fraud, with all the charges bundled together, his case provides an iffy precedent, if one at all.

The World Health Organisation has branded British police tactics “objectionable” and bemoaned the courts’ feeble understanding of virology. Until 2006 prosecutors bedazzled defendants into pleading guilty by waving lab reports of the genetic similarities between the virus in their blood and in their accuser’s. Yet such data cannot rule out other possibilities, for example that the accuser really infected the accused or a third party infected both. Sarah Porter, one “AIDS assassin”, as the tabloid press often brands those found guilty, may have been wrongly convicted, reckons Matthew Weait, a law lecturer who has written a book on the criminalisation of HIV transmission.

Chaos might be expected given that the law employed in such cases was written before doctors fully grasped that germs caused contagious diseases. It is also why the Crown Prosecution Service recently provided formal guidance. A policy statement published on March 14th makes clear that genetic data will always form part but never the entirety of case evidence. Moot points remain, such as whether someone who does not tell a partner about having HIV and transmits the virus when a condom splits is reckless.

Using the law to punish reckless disease-transmission runs the danger of doing more harm than good. Tellingly, HIV is the only bug ever to have prompted a criminal conviction in England and Wales. And the sentences so far meted out have been more than twice as long as those for the violent whacking and clobbering involved in other grievous-bodily-harm crimes. Yet living with HIV in Britain is less dangerous than living with hepatitis C, another sexually transmitted virus.

Copyright © 2008 The Economist Newspaper and The Economist Group. All rights reserved.