Canada: More on the Aziga verdict

Since the guilty verdict in first ever murder trial for sexual HIV transmission, Canada’s media has been filled with editorials, for the most part welcoming Johnson Aziga’s conviction.

For example, Mr Aziga’s local paper, The Hamilton Spectator, whose reporter Barbara Brown covered every day of the trial, led with an editorial today headlined: Aziga verdict serves justice.

More sinister, is The Winnipeg Free Press editorial which used Mr Aziga’s conviction as thinly-veiled racist commentary, arguging that African migrants with infectious diseases have no place in Canada, in today’s editorial entitled, Opening doors to disease.

Other papers, such as The Chronicle Herald from Nova Scotia, The Toronto Star and the national Globe and Mail, have picked up on earlier comments from Alison Symington of the Canadian HIV/AIDS Network, who questions a society that has turned a public health issue into one of murder. Right-wing columnist Rose Dimano even managed to be ‘shocked’ in her Toronto Star editorial.

Shockingly, there are some AIDS activists who support the view that HIV-positive individuals have no obligation to reveal their status to sexual partners; that everyone is responsible for taking their own precautions.

However, there has also been some balanced reporting, notably an article by Wade Hemsworth of The Hamilton Spectator, entitled Should we keep AIDS out of the courts? which featured interviews with myself and Ms Symington alongside that of a retired law professor who was pro-criminalisation. The piece was also summarised today by the Kaiser Network.

Update: April 15th. Also including a link to a website called which includes a very nice summary of the issues, and includes a voting tool asking whether Johnson Aziga is a murderer. After 18 votes, 72% voted yes, 17% voted no, and 11% were unsure.

And I almost missed the best anti-criminalisation piece of them all from Canada’s gay paper, Xtra, featuring excellent quotes from Richard Elliott, the executive director of the Canadian HIV/AIDS Legal Network; Angel Parks, coordinator of the AIDS Committee of Toronto’s Positive Youth Outreach programme; and Barry Adam, a sociologist at the University of Windsor and Ontario HIV Treatment Network.

Finally, I wrote a piece for published today about the facts of the case, the first few paragraphs I reproduce here.

A Canadian man who is thought to have recklessly transmitted HIV to seven women, two of whom subsequently died, has made legal history by becoming the first person ever to be convicted of first-degree murder for sexual HIV transmission. The case has reignited the criminalisation debate in Canada, which has prosecuted more HIV-positive individuals per capita for sexual HIV exposure or transmission than any other country in the world.

The trial, which lasted six months, concluded last Saturday, when a nine-man, three-woman jury found Johnson Aziga, 52, guilty of two counts of first-degree murder, ten counts of aggravated sexual assault and one of attempted aggravated sexual assault after deliberating for three days.

Read more

Canada: Three articles cover the gamut of opinions on criminalisation

Three articles published last week covered the gamut of opinions on Canada’s HIV exposure laws, and the impact they are having.

To begin with the most conservative, an opinion piece by Ken Gallinger in the Toronto Star, entitled HIV is not the common cold, concedes, after being asked provocatively “how it could ever be okay for a person who is HIV-positive to have sexual relations with another person?” that HIV-positive people can have sex “as long as both partners fully understand what they are doing, and take every possible precaution to prevent the spread of the virus.”

Another editorial by in the student newspaper, The Martlet, explored the impact of media reporting on the Charles Mzite case in Victoria, BC, and notes that “[p]eople with HIV can have safe, healthy sex lives. They are not criminals, though people like Mzite do much to perpetuate the stigma against them.”

The article also explores the ethics of HIV testing for migrants, and why disclosure is not always possible.

Today, an HIV-positive immigrant like Mzite would have been denied entry into the country. He would not have been allowed to be tested for the virus anonymously like he did in 2001, which allowed him to tell his partner his result was negative without the clinic reporting him to a medical health officer and alerting his partners. Taking away these individual freedoms isn’t addressing the root of why people might hide their HIV-status and continue high-risk behaviour. It’s not easy to tell somebody you have HIV, and it’s not easy to ask.

Finally, Vancouver’s gay paper, Xtra West, interviewed HIV advocate Glenn Betteridge who was in town to discuss the impact of HIV exposure laws on HIV-positive people.

The article highlights that most cases that reach trial are focused on heterosexual transmission, but still warns its gay HIV-positive readers that to avoid legal repercussions when having sex in Canada, they must disclose even if using a condom or having unprotected sex with another HIV-positive person.

Consistently practicing safer sex doesn’t eliminate the need to disclose, either, Betteridge told the Vancouver forum. When it comes to an individual’s obligation under the law in this country, Betteridge bluntly states, “a condom doesn’t cut it.” Though courts in some countries, including Canada, have made judgments based on rates of infection for certain sexual acts, viral load, and the use of condoms, there is to date no definitive legal ruling that practicing safer sex belies the need for open dialogue about HIV status…Betteridge says disclosure can be a factor even between HIV-positive individuals. Although the courts have yet to see such a case, the risks associated with drug-resistant strains of HIV, which can be passed to someone with a currently manageable strain, means disclosure may be required there too.

I do worry enormously about the impact of Canada’s HIV exposure laws. Forcing disclosure every time, even under circumstances when HIV transmission is extremely unlikely, can be a double-edge sword, as a recent Sigma report (from England) discovered.

This year’s CHAPS conference highlighted an important finding from another recent Sigma report, Relative Safety II reported on that:

Some men reported that they took care to disclose their HIV status to sexual partners. One individual even went so far as to save web logs of internet chat to prove that he had disclosed his HIV status in the event of a criminal complaint being made. However, other men had adopted the opposite strategy, and told the investigators that they were taking additional precautions to conceal their HIV status to protect themselves from the risk of prosecution. This suggested to Dr Dodds that the prosecutions were not increasing the likelihood that HIV-positive individuals would disclose to potential sexual partners.

Since the law in England does not actually mandate disclosure, the impact in Canada may differ, but given conversations I’ve had recently with several thoughtful HIV-positive Canadians, I think not.

Canada: HIV doctor apologises for ‘offensive’ pro-criminalisation article

A Canadian HIV clinician whose pro-criminalisation views made the front page of the The Guelph Mercury last week has issued a letter of apology and clarification, stating that she is “definitely not ‘pushing for criminal charges’.”

The article, published on February 6th, and written by staff writer, Rob O’Flanagan, claimed that:

A leading HIV/AIDS physician in Guelph says those infected with the disease who recklessly spread it to others should be charged with a criminal offence.

It went on to quote Dr. Anne-Marie Zajdlik – a highly regarded HIV primary care physician who also volunteers at the Tsepong Place of Hope AIDS Clinic in Lesotho, and is a Board member of OHAfrica – as saying:

“If I assume that someone who is HIV positive knows they are, and I assume that they’ve also received the care that’s available in this country, then they have received counselling that tells them how to practise safe sex.

“Someone who knows they are HIV positive, but has not listened to the counselling and continues to live a very disorganized life for whatever reason, and knowingly transmits the virus to someone else, that is a criminal act.”

The article then quotes an anti-criminalisation advocate, who, unfortunately, brings denalism into the argument.

I have skepticism around AIDS in the same way a lot of people have skepticism around cancer,” he said. “Some people get cancer and they die. Some people get cancer and they don’t die. The same thing happens with AIDS. I am not one of these people that think that HIV is like a loaded gun that is going to kill you.”


But Zajdlik said she believes AIDS is a deadly illness, “and if you know you have it and engage in an act that you know is likely to transmit it, and you don’t tell your partner — giving them the opportunity to protect themselves — that’s a crime,” she said.

“And if you don’t charge someone who has the mindset that, ‘I have HIV and I don’t care, or I have HIV and I will have sex with whoever I want to and I don’t need to tell them,’ then you are putting the community at risk.”

Now, in an email circulated to HIV advocates around Canada, Dr Zajdlik passes on her “regrets and apologies to anyone who is offended by The Guelph Mercury Article on the Criminalization of HIV”.

She goes on to write: “The journalist who wrote the article used quite a bit of licence and gave the article a tone which I take offence to. I am not an expert in this area. I am not knowledgeable on all of the issues associated with this topic and I am the last person on earth who would wish in anyway that those infected with HIV would be marginalized or unjustly penalized. I am definitely not ‘Pushing for criminal charges’.

“I was unwise to speak to this journalist on this topic. I will not engage in further public discussion concerning this issue and I apologize to those who may be confused or offended by the contents of the article and my contribution to it.”

The article comes at a time when prosecutions of HIV-positive people for exposing their sexual partners to virus are taking place on a weekly basis in Canada. The highest profile case is that of Johnson Aziga, whose double first-degree murder trial has been on a two month hiatus whilst his defence team prepare their evidence, and whose trial has received a great deal of publicity.

However, advocates are fighting back, including the recently-formed Ontario Working Group on Criminal Law and HIV Exposure. Canada’s national gay newspaper, Xtra, has also launched a campaign to condem the criminalisation of HIV – the campaign’s Facebook page currently has almost 250 members.

Qatar: Woman and three men on trial for criminal HIV transmission

A woman in Doha, the capital of Qatar, is on trial for either criminal HIV exposure or transmission, since it is unclear whether the three male complainants are also HIV-positive. Bizarelly, according to the only report I can find on the case, from The Peninsula, the three men are also on trial, although it is unclear exactly what they are accused of.

A criminal court here is hearing a case involving an HIV-infected woman who is accused of transmitting the killer virus to three men. Incidentally, the three victims are also accused in the case…

A witness, who works with Hamad Medical Corporation (HMC) as a senior consultant, confirmed in deposition to the court that the first accused—the woman—was treated at the hospital since she had HIV… According to him, the woman was asked to give an undertaking that since she was afflicted with the dreaded virus, she would not have intimate physical relations with anyone since doing that would mean transmitting the killer disease to others.

Another key witness in the case was from a law-enforcement agency who had interrogated the three male accused in the case who were victims of HIV. He said the trio had confessed to having had physical contact with the woman and feared that they might have come in contact with the disease. The case, according to Al Sharq, has been transferred to the court by the Public Prosecution recently.

UK: Report shows police mishandling of investigations into alleged criminal HIV transmission

Below are the opening paragraphs of a news story I wrote for aidsmap about a new THT report about how the police in England are handling investigations into criminal HIV transmission.

The full report, Policing Transmission, can be downloaded from THT.


A new report by the Terrence Higgins Trust (THT) launched [on January 27th] at the House of Commons has revealed a systematic mishandling of complaints for alleged criminal HIV transmission in England & Wales. The report, Policing Transmission was welcomed by the Association of Chief Police Officers (ACPO), which acknowledged that “too many times we have got it wrong”.

There have been “scores, if not hundreds” of arrests since the first conviction for reckless HIV transmission in England and Wales, that of Mohammed Dica in October 2003, noted THT’s Sir Nick Partridge speaking at the launch of the report in the House of Commons, hosted by Lord Norman Fowler, Vice Chair of the All Party Parliamentary Group on AIDS.

Sir Nick said that whilst most police investigations had been dropped due to a lack of evidence, during the course of these ‘failed’ investigations – which had lasted up to a year – “lives had been turned upside-down and some came close to being destroyed”.

During the period 2005-6, there was an average of one arrest every two weeks. Concerned at this number of arrests and aware of the cost, in terms of “public resources and private misery”, THT approached ACPO and the Metropolitan Police Service (MPS) in order to examine the role of the police in criminal HIV transmission investigations.

Read more here.

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,, 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.”

Uganda: Bill to force spouses to reveal HIV status

Uganda’s proposed HIV and AIDS Prevention and Control Bill is analysed in this report from the Daily Monitor.

President Museveni has previously said that he supports the death penalty for criminal HIV transmission.


Bill to force spouses to reveal HIV status

by Sheila Naturinda

Monitor Online

Dec 12, 2008 – 2:54:15 AM


Ugandans who test positive for HIV, the virus that causes Aids, will have their results shared with their spouses and sexual partners with or without their consent, under a new law proposed by the government.

The draft HIV and Aids Prevention and Control Bill 2008 unveiled before a committee of Parliament this week, seeks to criminalise the willful and intentional transmission of HIV to an uninfected person. It also seeks to guarantee access to treatment for those already infected and to protect people living with HIV against discrimination.

The Bill still, undergoing consultations, seeks to get a formal legislation to back up and supplement the fight against the epidemic in the country. HIV/Aids activists have, however, attacked provisions of the draft that seek to peel away the veil of confidentiality that voluntary testing for HIV currently provides.

For instance, the Bill recommends that medical personnel who carry out an HIV test “may notify the sexual partner(s) of the person tested where he or she reasonably believes that the HIV positive person poses a risk of HIV transmission to the partner and the person has been given reasonable opportunity to inform their partner(s) of their HIV positive status and has failed to do so”.

Ms Stella Kentutsi of the National Forum of People Living with HIV/Aids Networks in Uganda told Daily Monitor that the provisions compelling disclosure are insensitive to the people living with HIV. “This criminalisation will automatically affect disclosure which has been encouraged and it will therefore increase the level of silent transmission among the population,” she said.

Mr Robert Ochai, the executive director of The Aids Support Organisation, said the Bill has many contentious clauses including that of disclosure which ought to be deleted or amended.

Dr Chris Baryomunsi, the vice chairperson of the parliamentary committee on HIV/Aids, defended the draft Bill and its provisions and said similar laws criminalising willful transmission of HIV had been passed in South Africa, Kenya, the Philippines and China. He added, however, that the Bill could be amended to address concerns raised by various groups.

The Bill urges individuals, who are aware of their HIV-positive status to inform their sexual partners and observe instructions on prevention and treatment. Although the Bill provides for voluntary counselling and testing for HIV, it prescribes compulsory HIV tests for people convicted of drug abuse or possession of medical instruments associated with drug abuse, people charged with sexual offences such as rape and defilement, as well as sex workers convicted on prostitution charges.

The Bill also prescribes “routine” HIV testing for victims of sexual offences and pregnant women as well as their partners. It also provides for individuals to be subjected to HIV tests under a court order, with or without their consent.

First effort

The Bill is the first formal effort by the government to criminalise behaviour that could lead to HIV and Aids. It comes at a time of growing anxiety among public health specialists over the stagnation of the country’s HIV prevalence rate at around 6.5 per cent and evidence of rising year-on-year infections.

The move towards forceful disclosure appears informed by research findings which show more infections occurring among married couples, as well as a high incidence of discordance where one partner is not infected.

Supporters of the Bill argue that compelled disclosure will help uninfected partners take steps to prevent infection.

Despite the controversial clauses on disclosure, the Bill contains several provisions designed to protect the rights of people living with HIV and Aids.

Apart from providing for pre and post-test counselling, the Bill says every pregnant woman who tests positive for HIV is entitled to safe and appropriate anti-retroviral treatment, which helps postpone the onset of Aids, and medication to prevent the transmission of the virus to her baby. It also provides for HIV testing for babies born to HIV-positive mothers and guarantees treatment, care and support for those found to be infected.

In other provisions, the Bill forbids employers from subjecting employees to compulsory HIV tests. It also notes that “no person shall be compelled to undergo an HIV test or disclose his status for the purposes of gaining access to any credit or loan services, medical, accident or life insurance or extension of continuation of such services”.

The Bill states, “A person shall not be denied access to any employment which he/she is qualified or transferred and denied promotion on such grounds like he has the virus or he is perceived to carry the virus.” It prescribes a five-year jail term to employers who violate this provision.

The Bill also seeks to eliminate discrimination among school children that have been affected in their schools because some have been denied education on grounds that they are HIV positive. “An education institution shall not deny admission or expel, discipline segregate and deny participation in any event that a person is perceived to be of HIV positive status,” it states. The Bill also seeks to have all persons whether infected or not have a right to vie for public offices.

In work places, the Bill seeks to force all employers to make sure all mechanisms are in place to reduce contraction of the disease by their employees.

In places like hospitals, according to Dr Baryomunsi, all employers will be mandated to ensure that necessities like adequate gloves and immediate medications are available in cases where someone accidentally pricks himself. “This helps in cases where such a person is likely to unknowingly transmit the virus to a patient,” he said.

The Bill states: “Every institution comprising of 20 or more persons will provide HIV/Aids related treatment and the compensation to persons working in such an institution who will be occupationally exposed to the virus,” the Bill reads in part.

Highlights of the Bill

  • Willful and intentional transmission of HIV is criminal.
  • A doctor can notify a partner of an HIV-positive preson their status if the doctor believes the infected person poses a risk of transmission
  • Individuals aware of their HIV-positive status should inform sexual partners and observe instructions on preven tion and treatment.
  • Compulsory HIV tests for people convicted of drug abuse or possession of medical instruments associated with drug abuse, people charged with sexual offences such as rape, defilement, as well as sex workers convicted of prostitution.
  • Routine HIV testing for victims of sexual offences and pregnant women as well as their partners.
  • Every preganant woman who tests HIV-positive is entitled to safe and appropriate anti-retroviral treatment.
  • HIV testing for babies born to HIV-positive mothers and treatment, care for those found infected.
  • Loan/credit/insurance providers should not subject clients to HIV test as a precondition for offering the credit or service.

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?


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.