Norway: HIV advocates call for repeal of HIV criminalisation law

A group of Norweigian advocates known as HIV Manifesto are calling for the Norwegian government to repeal Section 155 of the Norwegian penal code, a 1902 infectious disease law that has only ever been used to criminalise HIV transmission.

The campaign has been picked up by Canada’s gay newspaper, Xtra – the report is below.

Full information about the HIV Manfesto campaign, which is supported by the IAS and IAPAC, amongst others, is available in English here and Norwegian here.

Norwegian activists call for repeal of HIV law
HIV CRIMINALIZATION / Century-old law works against prevention, they say
Krishna Rau / National / Thursday, January 22, 2009

Activists in Norway are calling for the repeal of a 1902 law on infectious diseases they say is being used to attack people with HIV.

Section 155 of the Norwegian penal code states that, “Any person who, having sufficient cause to believe that he is a bearer of a generally contagious disease, willfully or negligently infects or exposes another person to the risk of infection shall be liable to imprisonment for a term not exceeding six years if the offence is committed willfully and to imprisonment for a term not exceeding three years if the offence is committed negligently.”

The section goes on to state that, “Any person who aids and abets such an offence shall be liable to the same penalty. If the aggrieved person is one of the offender’s next-of-kin, a public prosecution shall be instituted only at the request of the aggrieved person unless it is required in the public interest.”

The group HIV Manifesto is calling for the Norwegian government to remove the section.

Its manifesto states, “This legal paragraph was introduced in 1902 in order to protect the society from the public threat of infectious diseases. However it has only been applied in cases involving HIV, and is often referred to as the
‘HIV paragraph.’

“It has never been documented that Section 155 prevents HIV transmission. On the contrary there are reasons to believe that it imposes several negative consequences for both individuals and society.”

HIV Manifesto claims the law actually works against HIV prevention.

“The paragraph produces a false safety for HIV-negatives, who assume that HIV-positives have and will show the full responsibility to avoid HIV transmission; hence it contributes to deteriorating use of safer sex,” states the group. “The law makes some people think it is better not to test for HIV, to avoid the risk of being punished by this law.”

“The law takes the attention away from the real challenges, in particularly the psychosocial ones. The risk of being punished also makes some people reluctant to inform about their sexual partners, and hence the paragraph can inhibit the determination of the transmission source. The paragraph undermines more efficient actions to prevent HIV transmission.”

Editorial: “Criminalising HIV carriers is counterintuitive”

After the Xmas and New Year break, I have something of a backlog of reports which I will be filing over the next few weeks under their published dates (rather than the actual day I write them up).

Although this report, from The Tapei Times, was published a month ago, it has some news currency, since the author, Justice Edwin Cameron, of the South African Supreme Court of Appeal, has this week been appointed by South Africa’s President Kgalema Motlanthe to join the Constitutional Court – the highest court in the land.

His achievement reflects well on everyone who is gay and/or HIV-positive and who also battles for social and ethical justice; he truly is an inspiration.

Congratulations, Edwin!

Criminalizing HIV carriers is counterintuitive
By Edwin Cameron
Taipei Times
Monday, Dec 08, 2008

“If the law supposes that,” Mr Bumble says in Charles Dickens’ novel Oliver Twist, “the law is an ass.” A criminal law that makes it preferable for carriers of HIV not to know that they are infected and capable of spreading it to others, including their loved ones, seems particularly suited to Mr Bumble’s condemnation.

Yet tragically, in a misguided attempt to thwart the spread of HIV and AIDS, lawmakers in many parts of the world have passed criminal statues that promote ignorance about the disease, punish its victims and enhance the chances that the virus will infect new victims. Some countries in Western and Central Africa are enacting poorly drafted policies based on the African Model Law, which makes it a criminal offense for any person infected by the virus to transmit it to someone else or to expose another person to it. In some jurisdictions, prosecutors can bring charges against pregnant women who are HIV-positive for potentially exposing the virus to their unborn children.

There are, to be sure, rare and dramatic cases in which a person with HIV infects another with the specific intention of inflicting harm. It is a reality that men infected with HIV or AIDS in some parts of Africa have even raped girls believing that sex with virgins is a cure. And some women’s rights advocates have supported laws that criminalize transmitting HIV, arguing that these laws would punish men who concealed their HIV-positive status from their sexual partners, including their wives and girlfriends. But existing criminal laws are more than adequate to allow willing justice systems to mete out appropriate sanctions against people who intend harm.

Criminal laws targeting all HIV carriers, however, are counter-productive and inherently unjust. These laws effectively make criminals out of millions of the disease’s innocent victims, especially its women victims.

In Zimbabwe, for example, a woman was recently sentenced for exposing her lover to HIV even though she did not infect him. In Ukraine, human-rights lawyers report the troubling case of a woman who was convicted for transmitting HIV to her husband even though he had used a condom, and despite the fact that he asked for the charges to be withdrawn.

Gender bias against women permeates throughout Africa, and women are usually blamed for bringing HIV into a relationship. This popular misconception springs, at least in part, from the fact that women are more likely to know their HIV status because they are routinely tested for HIV at maternity clinics when they seek pregnancy tests or examinations.

Most men on the other hand — deterred by fear, ignorance, pride and, sometimes, taboo — refuse to be tested voluntarily. This skews the outcomes of legal cases because the lack of testing of men makes it nearly impossible for a woman infected with HIV to establish before a court of law that her male sex partner infected her.

Laws criminalizing the transmission of HIV undermine public health because they deter people who are HIV-positive and those at risk of acquiring the virus from seeking testing, counseling, and treatment. When persons face the possibility of criminal sanctions, not knowing their HIV status can be their most-effective legal defense. Prosecutions will act to deter many people — especially men as well as persons living in areas where HIV treatment is largely unavailable — from being tested because it would expose them to the risk of criminal liability.

Such laws also transform HIV victims into scapegoats for a societal problem for which the governments and broader societies are failing to undertake effective, and sometimes politically or culturally risky, steps that can defeat the disease. Sadly, these “risky” steps include things as rudimentary as open discussion of the disease, education and encouraging people, and especially men, to undergo testing.

AIDS has claimed more than 25 million lives since medical scientists first identified it in 1981. New infections continue to outpace treatment efforts. Basic precautionary options such as HIV testing, male and female condoms, and sterile syringes for drug injection remain out of reach for the vast majority of those who need them.

This woeful situation demands effective action and not more victims and scapegoats.

Open, informed discussion of the HIV epidemic, education into HIV prevention, distribution of condoms, and other strategies are the only known way of preventing new infections. The vulnerability of women to HIV should be addressed by protecting their equal right to marital property, enforcing laws against gender-based violence, including rape in marriage, and empowering them to negotiate safer sex with men.

Canada: Article exposes Canada’s Kafkaesque HIV laws

Criminal HIV exposure prosecutions are reaching Kafkaesque levels in Canada, as this report from Canada’s national gay newspaper, Xtra.ca, makes clear.

In the wake of the trial of Johnson Aziga – which continues after an Xmas and New Year break on Monday 12th January – Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network is now concerned that Canada may begin to prosecute the 80+ individuals previously convicted of HIV exposure for murder following the deaths of their sexual partners years down the line.

The law in Canada is such an ass – and open to potential cases of blackmail and revenge – that another expert, Ryan Peck, the executive director of the HIV/AIDS Legal Clinic (Ontario) (HALCO), recommends that the HIV-positive partner asks their HIV-negative partner to sign a disclosure form before any sex.

 

The law cracks down on HIV

Murder charges are now on the table in Canada

Krishna Rau / Toronto / Friday, January 02, 2009

The growing criminalization of HIV could mean increasingly harsh treatment for those convicted of spreading the virus. Tim McCaskell, the cofounder of AIDS Action Now, says the current first-degree murder trial of Johnson Aziga — a Hamilton man charged in the deaths of two women after infecting them following consensual sex — could be an alarming precedent.

“When you develop a social zeitgeist that the solution to crime is jails and penalties and punishment then that’s how you treat an epidemic as well,” says McCaskell. “It seems to me that the fact that he’s been charged with murder is more about sensationalism and upping the ante than it is about even getting a conviction. “But if you do get a conviction on that we’re really in trouble.”

The case against Aziga is the first in Canada involving a murder charge, says Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network. He says there have been a few previous attempted murder charges, but the circumstances were vastly different. “There was clearly assaultive behaviour, biting, spitting,” Elliott says. “It’s not been a case of consensual sex. It’s been cases where they say, ‘I hope you die,’ as they throw blood or something. This [consensual sex] is completely different unless you have a lunatic who’s deliberately trying to kill people by infecting them by having sex.”

Elliott says a conviction in the Aziga case could lead to murder charges years after someone was infected through consensual sex. “It’s possible, if the person to date has not been charged with murder, but has been convicted of aggravated sexual assault which has been the predominant charge, and then 10 years later the infected person dies.”

Elliott says he’s more worried about the possibility of charges being laid against people who infect a sexual partner without even knowing their status. He refers to a 2003 case from Newfoundland in which a couple had unprotected sex before the man tested positive. He did not disclose his status and they continued to have unprotected sex. The man was only convicted of attempted aggravated sexual assault because it couldn’t be proved that the woman was infected after his test. The case ended up in the Supreme Court of Canada.

“The Supreme Court said, ‘You might be reckless if you have reason to believe you might be infected and don’t disclose the fact,’” says Elliott. “It certainly opens the door to a case where prosecutors could argue someone was reckless if there are circumstances in which a person should have known — if they were called by a past contact or by Public Health.”

Elliott says a man in Switzerland was convicted of grievous bodily harm after he was told by a previous partner that she was HIV-positive. The man did not get tested and then infected another woman.

“You have to get into drawing lines,” says Elliott. “When should you have known? It starts to get absurd if you go down the line.”

But even if someone did disclose their positive status, they might not be believed if their infected partner denies disclosure took place.

“There is a concern that these he said/he said cases will result in convictions due to the pervasive stigma and discrimination facing people living with HIV/AIDS,” writes Ryan Peck, the executive director of the HIV/AIDS Legal Clinic (Ontario) (HALCO), in an email.

Elliott cites a case in Montreal involving an HIV-positive woman who allegedly did not disclose her status as an example of the legal discrimination faced by HIV-positive people.

“That case seems to have involved a physically abusive relationship in which he was charged with assaulting her,” he says. “The advocates claim that was used to lessen the sentence given to him.”

Peck states that the situation is so treacherous that HALCO is providing possible strategies for disclosure. He suggests HIV-positive people consider disclosing their status in front of friendly witnesses or a counsellor or support worker who’s taking notes. He also suggests double-checking.

“Have a friend ask the sex partner if they know about your status,” he writes. “If disclosure takes place online, make sure it is done clearly, i.e. not using code words. The sex partner should acknowledge the disclosure, and a copy should be saved and printed.”

Peck suggests that having a sex partner sign an acknowledgment would be legally ideal but unlikely.

“Get your sex partner to sign a document before sex that says that he knows you are HIV-positive and that he knows what it means,” Peck writes. “The document should include the date and the partner’s name and signature. This is a good way for you to protect yourself. But it is also the most unrealistic strategy.”

Kenya: Unease over new HIV transmission law

IRIN/PlusNews has published an interesting article analysing the potential impact of Kenya’s new criminal HIV transmission law, which was passed in 2006 but has yet to be impemented.

KENYA: Unease over new HIV transmission law

NAIROBI, 12 December 2008 (PlusNews) – In June 2006, a young woman in western Kenya died of HIV-related complications and left a list of about 100 people that she said she had infected with HIV. A new law, approved by the Kenyan president but yet to be implemented, is hoping to prevent wilful transmission.

The HIV and AIDS Prevention and Control Act 2006 has drawn mixed and very sharp reactions. Inviolata Mbwavi, an AIDS activist who went public about her status in 1994, warned that the legislation in its current form appeared to label HIV-infected people as dangerous human beings with whom people should not associate.

“When you criminalise HIV then we are going back to square [one] of trying to stigmatise the virus even more, yet we have not effectively dealt with the stigma associated with HIV. Why do we want to further burden those who are already burdened by coming up with HIV-specific legislation?”

The Kenyan government is divided on the matter. The National AIDS Control Council, a government body set up to coordinate HIV control activities, is strongly opposed to the section that puts the responsibility for not transmitting the virus on those already living with it.

“Why would one bother to go for a test when they already know it could be used against them in a court of law?” said Tom K’Opere, an advocate of the High Court, at a conference organised by the Kenya National Commission on Human Rights to discuss the merits and demerits of the legislation.

“It is ridiculous, because we all know that knowing one’s status is one of the most effective ways of containing the scourge, yet we are now trying to discourage this by introducing such a law.”

According to the National AIDS Control Council, most Kenyans do not know their status.

Supporters of the law, like Otiende Amollo, a lawyer and member of the task force that collected views from the public before the legislation was drafted, maintain it would go along way in protecting vulnerable groups like women and children, who are particularly vulnerable to sexual assault.

Anne Gathumbi, an officer of the Open Society Initiative for East Africa, which supports and promotes public participation in democratic governance and the rule of law, said: “We know that the majority of those who know their status are women. What we are doing by passing such a law is therefore to condemn people we are claiming to protect to jail.”

The new legislation has also brought into question the responsibility of HIV-negative people. “What we are proposing in the law only touches those already [HIV]-positive. We should also look at the responsibility of those who do not have the virus,” said Anne Marie, a civil society activist.

“Are we not forgetting that we should vouch for shared responsibility? Let us not create a law because we are desperate to show the world that we are doing something.”

Another clause causing concern is the one that gives medical practitioners the authority to disclose the status of patients to their next of kin, violating their right to confidentiality. It remains to be seen whether Kenya will go ahead and implement these contentious clauses.

Kennedy Anyona*, who has lived with the virus for the past four years, says the responsibility of revealing one’s status to anybody is a right that should not be delegated to any other party.

“I have a right to confidentiality and that cannot be trampled upon. The responsibility of revealing my status, which is the best thing to do however, rests with me,” he said.

“Taking that away means I am being denied my human right to privacy and confidentiality, which are even enshrined in international laws to which Kenya is a signatory.”

Africa: PlusNews publishes in-depth analysis of criminalisation throughout the continent

PlusNews, the global online HIV and AIDS news service of the United Nations Integrated Regional Information Networks (IRIN), has published an excellent in-depth analysis of criminalisation in Africa.

A collection of short articles focusing on various aspects of criminalisation in different parts of the continent can be downloaded as a pdf here, or read online here.

They include:

I reproduce here an article providing an overview of the situation alongside a criminalisation map of Africa which they say will be updated once they receive more accurate information from readers in Africa.

 

AFRICA: Will criminalising HIV transmission work?

IRIN/PlusNews

Monday 08 December 2008

Countries in sub-Saharan Africa are looking at a new way of preventing HIV infections: criminal charges. But experts argue that applying criminal law to HIV transmission will achieve neither criminal justice nor curb the spread of the virus; rather, it will increase discrimination against people living with HIV, and undermine public health and human rights.

UNAIDS has urged governments to limit criminalisation to cases “where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit HIV”. The reality is that intentional and malevolent acts of HIV transmission are rare, so in most instances criminal prosecutions are not appropriately applied.

In Switzerland, a man was sent to jail earlier in 2008 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 of the officer being exposed to the virus were negligible.

Laws making HIV transmission an offence are not new to the developed world, but the trend has been growing in African countries, where higher prevalence levels make such laws all the more attractive to policymakers.

“Africa has burst into this whole frenetic spasm of criminalising HIV,” said South African Justice Edwin Cameron, who is also HIV positive, at the International AIDS Conference in Mexico earlier this year.

In Uganda, proposed HIV legislation is not limited to intentional transmission, but also forces HIV-positive people to reveal their status to their sexual partners, and allows medical personnel to reveal someone’s status to their partner.

Most legislative development has taken place in West Africa, where 12 countries recently passed HIV laws. In 2004 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.

The law they came up with was far from “model”, according to Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, who maintains that 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.

People living with HIV have expressed concerns that the growing trend to criminalise HIV infection places legal responsibility for HIV prevention solely on those already living with the virus, and dilutes the message of shared responsibility.

UNAIDS has warned that using criminal law in cases other than intentional transmission could create distrust in relationships with healthcare workers, as people may fear the information will be used against them in a criminal case. Such laws could also “discourage HIV testing, since ignorance of one’s status might be perceived as the best defence in a criminal law suit.”

Some policymakers have called for HIV legislation as a means to protect women from HIV infection, but the irony is that sometimes these laws may result in women being disproportionately prosecuted. Many women find it difficult to negotiate safer sex or to disclose their status to their partner.

What are the alternatives? UNAIDS recommends that instead of applying criminal law to HIV transmission, governments should expand programmes proven to have reduced HIV infection. At the moment, there is no information indicating that using criminal law will work.

Uganda: Man jailed for infecting mentally ill woman with HIV; fuels proposed ‘wilful’ transmission law debate

A 47 year-old HIV-positive man has been jailed for 14 years in Uganda for having sex with a mentally ill young woman and allegedly infecting her with HIV.

Although there is currently no criminal HIV transmission in Uganda, the trial took place during fierce public debate over the HIV Prevention and Control Bill which seeks criminalise “wilful” HIV transmission. However, sex with a mentally ill person is a criminal offense regardless of HIV status that carries a penalty of a 14 year prison sentence.

I’ve included two articles here. The first, from New Vision Online, reports the trial and setencing and refers to the legal debate. The second, from IRIN/Plus News, a few weeks earlier, examines the proposed law and civil society’s reactions to it.

Man jailed for infecting girl with HIV
New Vision Online
Wednesday, 3rd December, 2008
By Dradenya Amazia

A 47-year-old man is to serve 14 years in jail for having sex with a mentally ill 19-year-old-girl and infecting her with HIV/AIDS.

Sarafino Aginya is a resident of Metu in Moyo district.

Having sex with a mentally ill person is an offence.

Aginya, who was arrested red-handed last August, yesterday pleaded guilty, and blamed Satan.

Any person who has sex with a woman, knowing that she is an idiot or imbecile, is liable to imprisonment for 14 years, according to the Penal Code.

Passing judgment, Magistrate Geofrey Salaume, said Aginya intentionally infected the girl, which had traumatised the family and her care-takers.

The night he committed the horrific act, Salaume said, Aginya pretended to be drunk and the girl’s parents offered him accommodation.

In the middle of the night, Aginya forced the girl into “live sex and infected her with HIV/AIDS” well aware of his status, the magistrate stated.

“You have traumatised and abused the hospitality the family of this girl provided you by adding more stress and misery to her parents by forcing her to have unprotected sex while knowing that you have HIV/AIDS,” Salaume said while reading his ruling. Salaume said there was need to keep people like Aginya “away for sometime so as to make others learn.”

“I want to keep you away from others by giving the maximum punishment which I feel is proportionate to your act, which will be 14 years of imprisonment.”

He said Aginya’s act was a taboo in African culture.

“We can’t tolerate this kind of act. It is taboo in African culture to have pre-marital sex with a girl at her parents’ home and in their bed,” he fumed.

Salaume cautioned the people of Moyo to be careful with distant relatives and friends when extending hospitality to them. Aginya has 14 days to appeal to the High Court if he so wishes.

The prosecutor produced a medical report proving that the accused was HIV-positive and had infected the girl.

The court heard that Aginya was accommodated in the same room with the girl. The mother heard her screaming and rushed to the bedroom where she found Aginya forcefully having sex with the girl. Aginya was arrested and handed over to the Police.

The intentional spread of HIV/AIDS is not covered by the Penal Code. But the HIV/AIDS Prevention and Control Bill, now in Parliament, seeks to make this a criminal offence. It is intended to provide a legal framework for the national response to HIV and protect the rights of individuals affected by HIV.

The Bill has, however, been vehemently opposed by the people living with the disease. The Bill has been also criticised by activists, saying it requires HIV-positive people to reveal their status to their sexual partners and pregnant women to be tested.

Laws that make the intentional HIV transmission an offence have been in effect in the developed world. The trend is growing in Africa, where higher prevalence levels make such laws attractive to policymakers.

In Switzerland, a man was sent to jail earlier this year for infecting his girlfriend with HIV, even though he was unaware of his HIV status. A Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a Police officer.

UNAIDS has warned that using criminal laws in cases other than intentional transmission could create distrust between healthcare workers and patients.

UGANDA: Draft HIV bill’s good intentions could backfire
PlusNews
24 November 2008

AIDS activists in Uganda have slammed a proposed new law that will force HIV-positive people to reveal their status to their sexual partners, and also allow medical personnel to reveal someone’s status to their partner.

The HIV Prevention and Control Bill (2008) is intended to provide a legal framework for the national response to HIV, as well as protect the rights of individuals affected by HIV.

Activists agree that Uganda needs legislation to guide its HIV policy. “We want the law; as a matter of fact we are overdue in having a legal framework,” said Beatrice Were, a leading HIV-positive campaigner.

However, they are concerned that the bill in its current form could worsen the difficulties many HIV-positive people experience.

Pregnant women will have to undergo compulsory testing, which proponents said would increase the number of women accessing prevention of mother-to-child HIV transmission (PMTCT) services; in 2007, only 600,000 pregnant women of 1.4 million were tested for HIV, 91,000 of whom were found to be infected.

Dr David Apuuli Kihumuro, head of the Uganda AIDS Commission, told IRIN/PlusNews that certain sections of the bill needed to be revised, for instance, the provision that HIV status disclosure would be mandatory for couples planning to marry.

“We have to think about the repercussions of this in a male-dominated society,” he said, noting that many women were afraid of their husbands’ reactions once they revealed their HIV status; at least three women have been killed by their husbands this year because they were positive.

Stella Kentutsi, programme manager at the National Forum of PHLA Networks in Uganda (NAFOPHANU), said medical practitioners usually had no way of knowing how a spouse or other sexual partners might react, and should therefore not be permitted to reveal an infected person’s HIV status. “Even if the partner has a right to know … forceful revelation is not okay,” she said.

‘Wilful’ transmission
The bill also criminalises – with a punishment of the death penalty – the intentional or wilful transmission of the virus. President Yoweri Museveni has said he “fully supports” an HIV/AIDS law that would criminalise deliberate transmission of the virus. There has been a recent public outcry over media reports of HIV-positive individuals infecting minors, which has gained support for the bill.

“If you push for … punishment because someone is infected, you are discriminating and undermining the rights of people living with HIV,” Were said.

Kentutsi asked: “How do you know who infects intentionally and wilfully and who does not?” What makes it intentional or wilful?”

Activists said applying criminal law to HIV-risk behaviour was likely to undermine prevention efforts and, rather than encouraging people to know their status, would actually deter them from seeking HIV testing.

The bill could also allow the government to avoid its responsibility to prevent HIV, and foist the blame for being positive on infected people.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at either criminals or potential criminals,” a recent statement by NAFOPHANU said.

“Rather than introducing laws criminalising HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment.”

Canada: The Johnson Aziga Case: HIV transmission should not be a crime

There’s so much to say about the ongoing Johnson Aziga double murder trial that I am now waiting for the verdict before publishing highlights (lowlights?) of media reporting on this landmark case.

In the meantime, I’m posting a commentary by the highly respected Dr Mark Wainberg published yesterday in the McGill Reporter, the online publication of McGill University, Montreal, as food for thought.

The Johnson Aziga Case: HIV transmission should not be a crime
by Mark A Wainberg

The media have done an excellent job in recent weeks covering the murder trial of Johnson Aziga, who has been accused of sexually transmitting HIV to 11 different women, two of whom have died of their infections. Moreover, it is alleged that Mr. Aziga deliberately withheld from these women the fact that he was HIV-positive and that he refused to use a condom during intercourse. Most Canadians probably hope that Mr. Aziga, if convicted, is sentenced and imprisoned for his crimes, and believe that the criminal justice system should pursue these cases with vigour. But people should understand that such legal action, and the willingness of our courts to hear these cases, will only weaken the global battle against HIV transmission.

First, those cases that have gone to court have probably done more harm than good, even when it has been possible to prove wilful transmission. In almost all such instances, defence lawyers have seized upon the discredited notion that HIV may not cause AIDS. Because these cases have often attracted widespread coverage, the result is often confusion about the harmful nature of HIV and to give the so-called HIV denialists a platform from which to promulgate their views.

More important, we must consider that potentially being charged with wilful HIV transmission may deter a significant number of people from being tested for HIV infection in the first place. After all, if you do not know that you are HIV positive, you cannot logically be accused of transmitting it. This leads to two major negative consequences:

The failure to identify as many HIV positive people as possible will lead to higher rates of HIV spread than would otherwise occur. Multiple studies have now shown that individuals who are informed that they are HIV positive will commonly desist from high-risk sexual behaviour to protect sexual partners. This is not the case for the uninformed. This point cannot be over-emphasized, research has also revealed that as many as 50 percent of all new HIV transmissions are attributable to people who have only been infected recently. One reason for this is that levels of virus in the blood and sexual fluids are usually very high for about a six-month period following infection.

Delaying testing also means that many HIV-infected persons may not be diagnosed for several years after infection, thus giving the virus additional time to replicate and cause significant, often irreversible, damage to the immune system. This can sometimes result in life-threatening infections that might otherwise have been prevented. There are also concerns that failure to initiate anti-HIV therapy early may leave people more vulnerable to a variety of cancers.

Earlier initiation of anti-HIV therapy also lowers the amounts of virus in both blood and sexual fluids, thereby rendering people far less infectious to their sexual contacts. Indeed, some groups now proclaim that people whose viral replication is fully suppressed by antiviral treatment need no longer use condoms or take other precautions when having sexual relations with regular partners. Although health authorities have not endorsed this controversial recommendation, its very existence underlines that appropriate use of anti-HIV drugs will not only improve the health of infected people, but may also hold benefits for HIV spread and public health.

All of the above constitute grounds for advocating frequent testing of individuals who might be at risk of contracting HIV. Yet the risk of being accused of the crime of wilful HIV transmission, along with the stigma of being identified as HIV positive, might be powerful deterrents for many.

How can society resolve this problem, while not, in effect, encouraging sexual promiscuity and risky behaviour? We need to recognize that the current criminalization of HIV transmission is not doing any good and, might even have the perverse effect of increasing HIV transmission by people who do not know or don’t want to know that they are infected. We also need to accept that having sexual relations involves personal responsibility: Before having sex with someone, you should know them on more than just a superficial level.

Finally, let’s not confuse the issue of HIV testing and personal responsibility for consensual sexual relations with that of HIV transmission by rapists or other perpetrators of crime. Clearly, people who force others into non-consensual sex should continue to be charged and tried under the law. Probably, as well, a person who throws contaminated blood or needles at someone should be charged with assault, since their intent was most likely to cause harm, notwithstanding that any resultant skin contact with such blood would be extremely unlikely to result in HIV transmission. But the putative crime in such cases would be assault rather than intent to transmit HIV.

If the evidence against Johnson Aziga is upheld in court, this will substantiate that he is the unsavory, irresponsible individual that the prosecutors in the case have made him out to be. But let’s also recognize that our policies regarding criminalization of HIV transmission are having the opposite effect of those that were intended. Let’s fix things in order to have a much better chance at reducing the scope of the HIV epidemic.

Dr. Mark Wainberg is the Director of the McGill AIDS Centre at the Jewish General Hospital.

Global Criminalisation Scan website now live

The Global Network of People Living with HIV (GNP+) today launched their Global Criminalisation Scan microsite, an incredibly important and useful new resource for anyone interested in criminal HIV exposure and transmission laws.

The GNP+ Global Criminalisation Scan site is a living, growing document of laws, judicial practices and case studies of criminalisation worldwide. Data from over 150 jurisdictions are currently available with more to come early next year.

I am proud to say that I have been part of the small team working on this site. I have also written a series of articles for the in-depth section examining the real difficulties in implementing these laws using case studies from around the world.

These include articles on:

The full press release is below.

NEWS RELEASE
Global Criminalisation Scan now online
December 1, 2008

Today, a new collection of information on the criminalisation of HIV transmission was published online at criminalisation.gnpplus.net.

Criminalising the sexual transmission of HIV is a trend seen in countries around the world. Globally hundreds of people have been sentenced for non-intentional HIV transmission, exposing others to the potential transmission of HIV, or failing to disclose their status to their sexual partners, with punishments of up to life imprisonment.

People living with HIV and their advocates believe that these prosecutions hinder prevention efforts and increase stigma. Such criminalisation unjustly places responsibility exclusively on the shoulders of people living with HIV and diminishes the empowerment of individuals to gain control over their health irrelevant of their HIV status.

GNP+ and partner organizations have documented laws criminalising the transmission of or exposure to HIV to support advocacy efforts with providing an easily accessible ‘clearing-house’ of resources, research, and initiatives on the subject.

The Global Criminalisation Scan is the first ever effort attempting to document laws, judicial practices and case studies, around the criminalisation of HIV transmission on a world wide scale. Information from over 150 jurisdictions worldwide is already online. Early in 2009, information from over 200 jurisdictions will be available.

The Global Criminalisation Scan presents the laws on HIV transmission or exposure, as well as offering an analysis of individual cases of criminal prosecution. Where possible the Global Criminalisation Scan links back to media and other reports and research, including court proceedings.

So far four out of the six Global Criminalisation Scan partners have gone ‘live’ with their research and data is now available from Asia/Pacific, Europe/Central Asia, Central and Latin America, as well as North America.

Currently the Global Criminalisation Scan partners are the Asia Pacific Network of People living with HIV ( Asia Pacific), GNP+ North America (North America), Grupo Genesis Panama Positivo on behalf of RedLA+ (Central/Latin America), and Terrence Higgins Trust (Europe/Central Asia).

The Network of African People living with HIV (NAP+) and the Caribbean Network of people living with HIV (CRN+) will be joining this group in 2009 and launching the sections on Africa and the Caribbean respectively.

The Global Criminalisation Scan is based on earlier work carried out in 2005 by
GNP+ Europe and Terrence Higgins Trust (THT).

The Global Criminalisation Scan is a living document. More information will be added as it comes in. We encourage everyone to send additional information on their country or region to the contacts listed on the regional pages or to the global contact address at GlobalCriminalisationScan@gnpplus.net

Uganda: Proposed criminal HIV transmission laws opposed by advocates

Advocates living with HIV in Uganda are fighting tough new criminal HIV transmission laws originally proposed by President Museveni last year.

Section 37 of the proposed HIV/AIDS Prevention and Control Bill 2008 proposes to execute HIV-positive individuals who “knowingly infect minors with HIV”.

If passed, any HIV-infected person who performs a sexual act with another person who is below the age of 18 commits a felony called aggravated defilement and, if convicted by the High Court, will be executed.

HIV group to fight anti-AIDS law
Friday, 17th October, 2008
By Anne Mugisa
New Vision

THE people living with HIV/AIDS have condemned the proposed HIV Prevention and Control Law. They asked the Government to drop the Bill which is currently before the parliamentary committee on HIV/AIDS.

The proposed law is aimed at criminalising deliberate spread of the deadly virus. According to Flavia Kyomukama of the Global Coalition of Women Against AIDS, the law is likely to increase stigma and fuel the spread of the virus.

These sentiments came forth during the launch of the national five-year prevention and care strategic plan of the Uganda AIDS Commission (UAC) at the Imperial Royale Hotel in Kampala on Wednesday.

“Why is government running away from its inadequacies of providing prevention, care, treatment and social support services? They must protect the citizens in a way that does not put to risk the lives of an already marginalised group, in this case, people living with HIV in Uganda,” Kyomukama said.

However, the donors refused to condemn the Bill, despite the passionate attack on it by the Global Coalition of Women against AIDS. Instead, the Irish Ambassador, Kevin Kelly, who represented donors at the launch, said the Bill should be combined with provisions to protect those infected.

The state minister of health, Dr. Richard Nduhuura, said the Bill will not criminalise people living with AIDS but punish those who knowingly infect others.

The UAC, Director General, Dr. Kihumuro Apuuli, identified the biggest driver of the AIDS pandemic as being men, both married and single, who have numerous sexual partners. They are infected and deliberately having unprotected sex.

People living with Aids criticise HIV Bill
Evelyn Lirri
October 20, 2008
Monitor Online

Kampala: People living with HIV/Aids have criticised a proposed Bill that criminalises the spread of the disease, saying it will only perpetuate stigma and discrimination.

According to Ms Flavia Kyomukama from the Global Coalition of Women Against Aids, criminalising the spread of HIV/Aids will lead to less disclosure of status as people will shun voluntary counselling and testing.

“We believe the proposed HIV Bill is a retrogressive and bad policy for us because it will perpetuate stigma and discrimination which we have been fighting for a long time,’’ Ms Kyomukama said.

Speaking at the sixth HIV/Aids Partnership Forum organised by the Uganda Aids Commission on Friday in Kampala, Ms Kyomukama said the government should instead refocus its energies on enacting the Domestic Relations and Sexual Offences Bills.

The government is currently drafting a Bill to execute offenders who knowingly infect minors with HIV. The Bill, which is before the parliamentary committee on HIV/Aids, specifically targets those who infect children with HIV through sexual abuse.

If passed, any HIV-infected person who performs a sexual act with another person who is below the age of 18 commits a felony called aggravated defilement and, if convicted by the High Court, will be executed.

But activists believe the Bill is misguided, urging the government to instead put more efforts in HIV awareness and prevention campaigns. “The Bill is not the way to fight HIV/Aids. The way is social support and ensuring that we prevent new infections,’’ said Ms Kyomukama.

However, Health State Minister Richard Nduhura said the Bill will only punish those who knowingly infect others with the HIV virus. There are currently close to one million Ugandans living with HIV while 130,000 new infections occur annually.


Uganda: Aids Activists Reject Bill
29 October 2008
by Anthony Bugembe
New Vision/AllAfrica.com

PEOPLE living with HIV/AIDS have rejected the proposed HIV/AIDS Prevention and Control Bill 2008.

The draft Bill criminalises the intentional transmission of HIV and AIDS. According to Section 37 of the Bill, a person who intentionally transmits HIV and Aids to another person commits an offence.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as either criminals or potential criminals,” said Paddy Masembe, the executive director of Young People Living with HIV/AIDS.

Masembe said the draft Bill undermines several critical issues. These include vulnerability and needs of women, young people, prisoners, people with disabilities, migrants, sex workers and the age of informed consent for HIV-related medical treatment and interventions.

He was representing the National Forum of People Living with HIV/AIDS Networks in Uganda during a discussion in Mengo recently.

Lillian Mwoleko, the regional coordinator of the International Community of Women Living with HIV/AIDS, expressed concern over compulsory HIV testing for pregnant women and their partners.

“No one, especially women, should be forced to disclose his or her status given the consequences of doing so. They include stigma, discrimination, violence and abandonment.”

Masembe urged that the process be halted as they hold wider consultations with stakeholders.

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.