China: New law punishes non HIV disclosure as “deliberate spread of AIDS” (update)

Update: December 3rd

Xinhuanet.com
reports that a new law has been passed in Gansu province in north-western China mandating disclosure within a month of diagnosis. The short article makes it clear that non-disclosure will result a prosecution for “deliberate” HIV transmission, although the penalties are not clear.

A regulation adopted by the provincial health department requires HIV carriers and AIDS patients to inform their sexual partners within a month after they get their HIV test results, said Wang Xiaoming, vice director of the department on Wednesday. It also stipulates that HIV carriers and AIDS patients have a responsibility to persuade their sexual partners into receiving counselling and test. Violation of the regulation would be seen as deliberate spread of AIDS and the violators would be punished according to law, Wang said.


Original post: November 13th

Policymakers in Gansu province in north-western China are proposing to pass a law that makes disclosure of HIV-positive status mandatory within four weeks of diagnosis; if not they “face a lawsuit.”

China Daily reports that the measures are “widely considered well-intentioned but unrealistic.”

The regulation, now still a draft, issued by the Gansu health department on Monday, stipulates that upon getting the HIV confirmation from the clinics, the sufferer must tell his or her partners within a month about the infection, or face a lawsuit.

“The requirement featuring a one-month time limit is not human-oriented as sufferers who first learn of their HIV status need time to accept the harsh reality, let alone informing others of their condition,” said He Tiantian, who heads the Women’s Network against AIDS – China, a civil society supporting females living with HIV/AIDS.

[…]

“Some give fake documents to protect their privacy,” said Professor Jing Jun with Tsinghua University.
Among the 700,000 HIV/AIDS sufferers in China, only 270,000 can be tracked, he said. Regional surveys in the country showed that only one-third of the newly diagnosed HIV sufferers would disclose their infection to their partners.
“The Gansu regulation is good in intention while unrealistic in practice,” he noted. Those most likely to tell their partners are those who have been married for a long time. Other sufferers, especially prostitutes, often fail to inform their partners about the infection, he said.

Of note, the report does not mention a law proposed by the Chinese government in 2006, to prosecute “deliberate” HIV transmission. The two, are, of course related: in too many jurisdictions non-disclosure (even in the absence of significant risk, and definitely in the absence of transmission) is currently criminalised.

South Korea: Korean man gets 18 months for HIV exposure; calls for HIV-specific laws (updated)

Update: October 27th

The 26 year-old Korean taxi driver arrested in March was found guilty earlier this month under South Korea’s public health law for having unprotected sex without disclosure and has been sentenced to 18 months in prison.

Original post: 16th March

The arrest of an HIV-positive taxi driver in Jecheon, North Chungcheong Province last week – originally for “habitually stealing women’s underwear” but now charged under public health law for having unprotected sex without disclosure with at least ten women – has resulted in a resurgence of panic around criminal HIV transmission in South Korea, and calls for HIV-specific criminal laws.

The case was first reported in English on March 13th in the Korea Times.

An AIDS patient in his 20s has had sex with dozens of women in Jecheon, North Chungcheong Province, over the last six years, police have revealed. The Jecheon Police Station said Friday that the patient, identified as Chun, 27, had sexual relationships with waitresses and drunken passengers while working as a taxi driver since 2003.

More details emerged on March 14th at Donga.com.

Police said he neither told his sex partners of his infection nor used contraceptives. A police search of his house found packets of medicine along with women’s underwear. Police grilled Jeon on what the medicine was for and he confessed to being HIV-positive. Police sought an arrest warrant for him yesterday for violating an AIDS prevention law and began tracking the women who had sex with him.

On March 15th, the Korea Times reported that the local sexual health clinic had been flooded with requests for HIV testing following reports of the man’s arrest.

According to the regional office, 61 people have undergone HIV tests, about 12 times the usual figure, since the arrest of 27-year-old cab driver Jeon, Friday. The official said no one was yet found to have the virus, but it will forward test samples to a higher institute for close examination.

On a positive note, public health officials are being extremely responsible and informing the public that the risk of transmission from a single act of unprotected sex is low, particularly since the man is on effective treatment.

According to health authorities, however, chances are low that his sex partners were infected with the deadly virus. Since he was put under monitoring, he has got counseling and medical checkups 30 times and taken regular medication. This means he is as healthy as an ordinary person, a source at the disease control center said. (Donga.com)

However, experts said the likelihood of catching HIV from unprotected sexual activity with someone who is HIV-positive is a mere 0.5 percent. “Since Jeon had been taking drugs to control the virus, the odds could be even lower,” a health expert said. (Korea Times, 15/3/09)

Nevertheless, according to Donga.com.

Domestic law only prohibits those who are HIV-positive from working at entertainment establishments that require regular medical checkups of their employees. Calls are rising for authorities to draw up countermeasures to control the jobs and private lives of HIV-positive people.

And a Donga.com editorial on March 16th appears to support these calls.

The news of an HIV-infected taxi driver who had sex with scores of women has rocked the nation. Medical Web sites are being bombarded with inquiries about AIDS symptoms and applications for the HIV test have jumped ten-fold. Generally, HIV/AIDS patients avoid contact with people because contracting the disease is lethal for their weakened immune system. If a HIV-positive person attempts to purposely spread the disease, however, there is no way to block him or her from doing so. In the wake of the news, calls are rising that the 1987 AIDS prevention law is ineffective to stem the spread of the deadly disease. The country’s AIDS control and prevention system should be urgently revamped.

Update: March 16th, 5pm: An editorial today in the Korea Times blames the public health authorities rather than the individual himself.

It goes without saying that prevention is the best way of containing the spread of HIV/AIDS. Therefore, the government and the health authorities should establish a firm preventive system before it is too late.

Africa: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

I received an email last week from Miriam Mannak, a freelance writer based in Cape Town, South Africa who keeps on blog on AIDS in Africa. She recently contributed this excellent piece on the spectre of criminalisation on her continent to the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

 

AFRICA: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

CAPE TOWN, Jul 30 (IPS) – In Sierra Leone, a mother who transmits HIV to her child can be fined, jailed for up to seven years, or both. Human Rights Watch reports that in 2008, several men were arrested in Egypt simply for being HIV positive. New legislation is currently being discussed in Angola that could lead to a three to ten year jail sentence for those who knowingly pass on HIV.

The legislation is inspired by a September 2004 workshop organised by the influential reproductive health organisation Family Health International developed an “African Model Law” intended to protect those who are infected and exposed to HIV.

But various civil society organisations fear that these legislative measures will hurt more than help the fight against HIV/AIDS.

Discourages testing, delays treatment

“If being HIV positive is being regarded as a crime, people will be less likely to get themselves tested,” said Johanna Kehler, director of the Aids Legal Network (ALN) – a South African non-governmental organisation that aims to protect the human rights of people living with and affected by HIV/AIDS.

“This means that they are more likely to spread the disease unknowingly, and will not have access to antiretrovirals that may help to prolong their lives.”

Jennifer Gatsi Mallet – coordinator of the Namibian branch of the International Community of Women Living with HIV/AIDS (ICW), a global network run for and by HIV positive women – agrees with Kehler’s statements.

“The criminalisation of HIV will be yet another reason why people will stay away from testing facilities and clinics,” she said.

The International Planned Parenthood Federation, a global organisation that advocates sexual and reproductive health and rights, counts 58 countries around the world with laws in place to prosecute HIV transmission and 33 others that are considering passing such legislation. Of these, twenty are in Africa.

Women lose more

“Women will be the first ones in line to be prosecuted, as they are more likely to know their status compared to men, simply because they visit clinics more often, for instance during and after their pregnancy,” Kehler explained.

Gatsi Mallet added that in “many parts of Africa, clinics and men are like water in fire. While some accuse health facilities of being unfriendly to men because most of the health care workers are female, others consider visiting as unmanly, especially when it comes to HIV and other sexual related transmitted diseases,” she added.

“They therefore rather prefer to go to traditional healers, whom are in general more male orientated.”

Because women are more likely to discover they are HIV positive, their male partners often blame them for bringing the virus home – regardless of the fact that the infection may well have travelled the other way.

“Women across the world, including in Africa, experience difficulties negotiating safe sex,” Kehler said. “If a man does not want to use a condom, they often are left with no choice.”

Angela from Cape Town, who requested anonymity – contracted the virus a few years ago. “I never had sex with anyone else but my husband, but I suspected that he was sleeping around. I just knew. So sometimes I asked him to use a condom, but he always blatantly refused,” she explained.

“He said that a wife is supposed to trust her husband. When I went for prenatal care two years ago, I was told I was HIV-positive. After confronting my husband, he accused me of sleeping around and of infecting him. He threw me out of the house.”

In countries like Egypt, such an accusation could lead to prosecution. The same is true in Togo, where HIV-positive people are prohibited by law from having unprotected sex, regardless of whether they have disclosed their status to their partner.

“In case of prosecution, women are left in a terribly vulnerable position, as many do not have the resources to, for instance, prove that they were HIV negative before intercourse,” Kehler noted. “Neither can they prove if they did not do it deliberately.”

Laws against mother to child transmission (MTCT) should also be banned, the ALN argues.

An HIV-positive mother can pass the virus to her child during pregnancy, whilst giving birth, or through breast feeding. Of the 370,000 cases of MTCT each year, about 90 percent occur in Africa, according to UNAIDS.

In countries like Guinea, Guinea-Bissau, Mali and Niger, a mother can be criminally charged if she does not take steps to prevent HIV transmission to baby, including taking antiretrovirals during the pregnancy.

MTCT is almost entirely preventable, by taking antiretrovirals and giving birth in a sterile environment. Breast feeding poses certain risks: WHO studies indicate that a mother who is HIV positive risks passing the virus on to her child. But in certain situations – for example where a mother does not have access to clean water to mix formula and sterilise bottles, but is on antiretrovirals – exclusive breastfeeding is recommended.

Formula-fed babies in developing countries are six times more likely to die from diseases like diarrhoea and respiratory infections than breast-fed babies, according to WHO.

“The problem is that many African women do not have access to proper health care facilities and cannot afford formula,” Kehler said. “These are things governments should provide. If they fail, they should be the ones that are to be held accountable for MTCT.”

SIDEBAR: Who’s responsible for MTCT?Chantelle Heunis* from Overcome Heights – an informal settlement near Cape Town – was infected by her now ex-husband with the disease in 1999. At the time she was pregnant with her second daughter.

“I only found out after my baby was three months old, after I went for a check-up as she was ill due to lactose intolerance. The nurse offered to test me for HIV – which was not a routine procedure back in the days. The results came back positive.”

The next step was to test the baby. “It was dreadful, but thank god she was found HIV negative,” Heunis said. “She is ten years old now, and as healthy as can be.”

According to Heunis, it should not be allowed for women to be punished for MTCT. “I was lucky because I was in good hands, but many women do not have this privilege. They transmit the virus through unhygienic birthing practices, for instance, or because they do not have access to ARVs to prevent MTCT.”

She also rejects the notion that HIV positive women should not be allowed to have children. “It is within our rights to have children. Besides, if a mother is HIV positive, that does not mean the baby is also.”

* not her real name.

Editorial: Burden of HIV disclosure falls on Uganda’s women

An article in today’s Toronto Star highlights the heavy burden that HIV-positive women will carry under Uganda’s proposed HIV/AIDS Prevention and Control Law.

In the article, children’s rights activists, Marc and Craig Kielburger, note that many HIV-positive women in Uganda – who are likely to be tested before their husbands as part of ante-natal screening – face violence and even death for disclosing their HIV status to their husbands. They highlight the fate of Glorius Kyarihunda, 25, who was murdered by her husband within days of disclosing her HIV status to him.

According to the Ugandan branch of the International HIV/AIDS Alliance, Glorius was one of five women murdered in 2008 under similar circumstances. Thousands more suffered abuse or eviction. In a survey of just one district by ActionAid Uganda, 100 out of 465 women said they experienced domestic violence as a result of disclosing their status.Disclosure is not only difficult, it’s dangerous. Yet, just months after Glorius’ death, the Ugandan Parliament is debating a bill that gives a person six weeks after testing positive to tell their partner before the government does.

Given the inequalities in both inter-personal relationships, and the legal status of women in Uganda, this is simply unfair, they argue given:

the rules of predominantly male-dominated societies leave women unable to negotiate condom use or family planning. Many men, like Glorius’ husband, hold their wives responsible for infection.

The article then goes on to critique other criminal HIV transmission laws in Africa:

In Togo, anyone who doesn’t use a condom in “all risky sexual relations” is breaking the law while Guinea requires mandatory testing before marriage. In Zimbabwe, a woman was convicted for “deliberately infecting another person.” Her lover has never tested positive for the virus. In Sierra Leone, women can also be criminalized for exposing their infants to HIV.

That this anti-criminalisation article was published in a Canadian paper is somewhat ironic given the number of prosecutions taking place there, but then there is often a lack of joined-up-thinking in many low-prevalence countries when it comes international concern about AIDS and domestic HIV policies.

Uganda: Article examines why HIV/AIDS Prevention and Control Bill is flawed

An excellent article from Andrew Bahemuka, policy advocacy officer of the Uganda Women’s Network, summarises all of the arguments against HIV-specific criminal HIV transmission legislation, published today in New Vision.

Criminalising HIV/AIDS: Not a win-win situation
Publication date: Wednesday, 15th April, 2009
By Andrew Bahemuka

AFTER nearly 30 years of addressing the HIV/AIDS pandemic, Uganda has reinforced the importance of breaking the silence around the epidemic, talking openly about HIV, and encouraging people to live positively.

Presently the Government seeks to complement the existing policy framework on HIV/AIDS with an overarching legal response.
The Government’s push to come up with the HIV/AIDS Prevention and Control Bill, 2008 is driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV/AIDS in the country; coupled by what is perceived to be a failure of existing HIV prevention efforts.

However, applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights.

In some countries, which have passed the law, women have been prosecuted for mother-to-child transmission (PMTCT) of HIV. This is particularly outrageous when globally prevention of mother-to-child transmission coverage is only at 33%.

In resource poor settings, criminalisation is likely to put the blame solely on the woman for transmission that she may be unable to prevent due to dismally poor PMTCT coverage.

Criminalising HIV transmission does nothing to address the real problem which is women’s overall lack of power in society. Women often learn they are HIV positive before their male partners because they are more likely to access health services and thus are blamed for bringing the HIV virus into the relationship, according to a UNAIDS report.

Criminalisation therefore, is unlikely to prevent new infections or reduce women’s vulnerability to HIV. Criminalisation may harm women rather than assist them, and negatively impact both on public health and human rights.

Criminalising HIV exposure or transmission is generally an unjust and ineffective public policy. The obvious exception involves cases where individuals purposely or maliciously transmit HIV with the intent to harm others. Article 13 in particular provides for compulsory testing of targeted groups (drug abusers, sexual offenders and commercial sex workers) contrary to the international guidelines on HIV/AIDS and human rights.

The targeted groups are predominantly vulnerable and marginalised categories who should, in fact, be subjects of protection by the state. In these cases, existing criminal laws can and should be used rather than passing HIV-specific laws.

In addition, the Government should effectively prosecute all cases of sexual violence and ensure that rape in marriage is recognised as a crime. This is unlikely to happen soon with the Government’s delay in passing the Domestic Relations Bill, the Sexual Offences Bill and the Domestic Violence Bill.

Criminalisation of HIV immediately invokes stigma, discrimination and a disincentive for voluntary testing, and access to care and treatment. Save for a few cases, most people who transmit HIV either do so not knowing they are infected and not knowing they are transmitting HIV, or because they fear to reveal their HIV status.

Examples include women in abusive relationships who may fear to disclose their status for fear of the repercussions. Even in these cases, however, the creation of HIV-specific offences is generally not warranted, as existing criminal laws are sufficient to punish individuals who specifically intend to transmit HIV to others.

For example, laws against causing bodily harm can be applied to HIV transmission. Even under criminal law, caution has to be taken where there was no significant risk of HIV transmission or where a person:

-Did not know that he or she was HIV-positive
-Disclosed his or her HIV-positive status to the person at risk (or had reason to believe the other person was aware of his status)

-Did not disclose his or her HIV-positive status because of fear of violence or other consequences.

-Took risk-reducing measures (such as practising safer sex through using a condom or other precautions), or

-Previously agreed on a level of mutually acceptable risk with the other person.
In view of the above, HIV/AIDS specific legislation is not a necessity and should not be encouraged. The Government should focus on empowering people living with HIV to seek HIV testing, disclose their status, and practise safer sex without fear of stigma and discrimination.

The Government could aim at empowering HIV-positive persons by enacting and enforcing anti-discrimination laws and promoting social campaigns to reduce stigma. In order to slow down the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex, sharing syringes, or engaging in other risky behaviour, which no HIV-specific criminal law could possibly do.

HIV risk behaviour is prevalent in prisons, and most prison systems continue to reject introduction of evidence-informed prevention measures such as condoms and sterile injecting equipment and fail to undertake measures to reduce the prevalence of rape and other forms of sexual violence.

There is need therefore, for the Government to consult widely with the different stakeholders to make the current bill, human rights responsive. That is when we shall consolidate the gains the country has made in the HIV/AIDS struggle.

US: New York DA calls for HIV-specific laws following new ‘reckless endangerment’ case

A New York State man charged with nine counts of reckless endangerment for having sex with nine males aged between 16 and 20 (the age of consent in NY is 17) without disclosing his HIV status has unleashed a political maelstrom reminiscent of the Nushawn Williams case in the late 1990s.

Suffolk County District Attorney Thomas Spota is teaming up with Parents for Megan’s Law – a group that advocates cracking down on sex offenders – and calling for HIV-specific laws in New York State because, according to an article in today’s Newsday, the man is “a walking public health menace.”

“Often, it is not until confronted with a case such as this that inadequacies in the law are revealed to prosecutors and the public,” Spota said. “The penal law needs to be reviewed and revised to enhance the penalty and the ability to prosecute an individual who knowingly exposes individuals to HIV,” the virus that causes AIDS.

The current case involves a 36-year-old newspaper deliveryman from Oceanside, who was arrested in December for having sex with a 16 year-old male in his car. When officers found HIV medications in the car, he was arrested and charged with reckless endangerment, criminal sex acts and endangering the welfare of a child.

Yesterday, he was charged on another eight counts of reckless endangerment after investigations uncovered a further eight males, aged 16 to 20, with whom he allegedly had sex without disclosing his HIV status. Unlike Williams, who pleaded guilty and was tried in the media, the man has pleaded not guilty on all nine counts of first-degree reckless endangerment.

A second news story from Newsday does not clarify whether any of the males have tested HIV-positive, and also shows a certain amount of ignorance regarding HIV transmission from Spota.

Suffolk County District Attorney Thomas Spota said medical privacy laws prevent him from revealing whether any of the alleged victims had contracted HIV or AIDS. He also noted New York law does not allow him to prosecute the suspect on charges of intentionally spreading the disease, adding he intends to ask state lawmakers to consider a change in the law.

Spota said [the man] faces a maximum of seven years if convicted of the most serious charge.

“On the other hand, each of the victims of this crime have been sentenced in our view to a lifetime of worry and testing,” he said.

Today’s sensitive HIV antibody tests have reduced the ‘window period’ between infection and diagnosis to a few weeks. A few people may produce antibodies outside this period, but all tests are now accurate by 3 months. Therefore, this will not result in a “lifetime of worrying and testing,” as long as the young men are advised of the medical facts.

Complicating matters somewhat is the fact that the man is a registered sex offender due to “a 1992 sodomy conviction involving a 6-year-old relative. He was released from prison in 2001.”

US: Nebraska Senator proposes new HIV exposure laws

Senator Pete Pirsch of Omaha, Nebraska has proposed an amendment to Nebraska’s Revised Statutes that would criminalise “intentionally, knowingly, or recklessly engag[ing] in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life-threatening communicable disease.”

The law, of course, makes no sense, and is badly written, like so many HIV-exposure laws. It will basically criminalise any diagnosed HIV-positive person who has unprotected sex without first disclosing their HIV status to their prospective partner, and the individual will be punished (by up to 20 years’ imprisonment) regardless of whether there was a real risk of HIV transmission, or even whether HIV transmission occurred.

This is the second time that Nebraska has attempted to pass an HIV exposure law. In 2004, Senator Lowen Kruse proposed a similar law which did not pass. Let’s hope the same happens this time.

Below, I include the Associated Press story (complete its a stigmatising and incorrect headline) from an Omaha radio station website, and the full text of the proposed law, which can be downloaded as a pdf here.

Update: The reason behind the new push for a law is this case from December.

Allen J. Moore won’t have a chance to spread HIV to anyone – at least not anyone outside of prison – for the next 10 years…Moore was sentenced for manufacturing child pornography after Omaha police investigators discovered a tape of him having sex with a 17-year-old boy and a young man. The 17-year-old told police that he consented to sex with Moore. The teenager said, however, that Moore never told him he had HIV. Now, the teen is saddled with the virus that can cause AIDS. And now, state senators are prepared to reconsider a bill that would make it a crime to knowingly transmit HIV without informing an intimate partner. Without such a charge, prosecutors had to scramble to find anything to hold Moore accountable. State Sen. Brad Ashford, chairman of the Judiciary Committee, called Moore a “poster child” of why Nebraska needs such a law.

Spreading AIDS could be felony in Neb.
Associated Press – January 21, 2009

LINCOLN, Neb. (AP) – Having sex with the intention of spreading a deadly disease like AIDS would be a felony in Nebraska under a proposal in the state Legislature.

State Sen. Pete Pirsch of Omaha introduced the bill (LB625) Wednesday that would also make it illegal to sell or donate organs, blood, semen and other bodily fluids with the intention of spreading a deadly disease. Sharing hypodermic needles with the same purpose would also be illegal.

Pirsch wants a harsh penalty for violating the proposed law. Violators would be guilty of a Class 1B felony, which carries a minimum prison sentence of 20 years, and a maximum sentence of life in prison.

LEGISLATURE OF NEBRASKA
ONE HUNDRED FIRST LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 625
Introduced by Pirsch, 4.
Read first time January 21, 2009
Committee: Judiciary
A BILL
1 FOR AN ACT relating to crimes and offenses; to amend section
2 28-101, Reissue Revised Statutes of Nebraska; to prohibit
3 the intentional exposure to another of a life-threatening
4 communicable disease; to harmonize provisions; and to
5 repeal the original section.
6 Be it enacted by the people of the State of Nebraska,

1 Section 1. Section 28-101, Reissue Revised Statutes of
2 Nebraska, is amended to read:
3 28-101 Sections 28-101 to 28-1350 and section 2 of this
4 act shall be known and may be cited as the Nebraska Criminal Code.
5 Sec. 2. (1) It is unlawful for an individual who knows
6 oneself to be infected with a life-threatening communicable disease
7 to intentionally, knowingly, or recklessly:
8 (a) Engage in sexual intercourse or sodomy with another
9 individual with the intent to expose that individual to that
10 life-threatening communicable disease;
11 (b) Sell or donate one’s own organs, tissue, or blood,
12 blood products, semen, or other bodily fluids with the intent to
13 expose the recipient to a life-threatening communicable disease;
14 and
15 (2) Share with another individual a hypodermic needle,
16 syringe, or both for the introduction of drugs or any other
17 substance into, or for the withdrawal of blood or body fluids
18 from, the other individual’s body with the intent to expose another
19 person to a life-threatening communicable disease.
20 (3) For purposes of this section:
21 (a) Sexual intercourse does not include penetration by
22 any object other than the male sex organ; and
23 (b) Sodomy does not include the penetration of the anal
24 opening by any object other than the male sex organ.
25 (4) Violation of this section is a Class IB felony.

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

Kampala

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?

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.