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 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.

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:

• Cameroon: Whose responsibility is HIV transmission? examining the issue of moral and legal responsibility and focusing on Cameroon.
• Mozambique: Proposed law a mixed bag for people with HIV, examining the specifics of Mozambique's proposed criminal HIV transmission laws.
• Southern Africa: HIV laws put women in the line of fire, examining laws in Botswana, Malawi, South Africa and Tanzania, and proposed laws in Angola and Mozambique.
• West Africa: HIV law "a double-edged sword", examining the laws in Benin, Guinea, Guinea-Bissau, Mali, Niger, Sierra Leone and Togo.

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.

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

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

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

Third World should help HIV sufferers, not punish them: judge
Victor Violante, Legal Affairs Reporter
The Canberra Times
16/07/2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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