UNAIDS announces new project examining "best available scientific evidence to inform the criminal law"

A new project announced yesterday by UNAIDS will "further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health."

I'm honoured to be working as a consultant on this project, and although I can't currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.

The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark's suspension of its HIV-specific law.  It's not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.

The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV.  It will present its findings by October 2012.

As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy's calls for HIV-specific criminal statutes that "are consistent with current knowledge of HIV transmission and support public health approaches" and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

I'd like to add a few more countries to the "positive development" list.

Canada
Last September, I spoke at two meetings, in Ottawa and Toronto, that officially launched the Ontario Working Group on Criminal Law and HIV Exposure's Campaign for Prosecutorial Guidelines for HIV Non-disclosure.

The Campaign's rationale is as follows

We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.

We therefore call on Ontario's Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.

Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.

We call on Ontario's Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.

Last month, Xtra.ca reported that

The office of the attorney general confirms it is drafting guidelines for cases of HIV-positive people who have sex without disclosing their status.

This is a major breakthrough, but the campaign still needs your support. Sign their petition here.

By the way, video of the Toronto meeting, 'Limiting the Law: Silence, Sex and Science', is now online.



Australia
Also last month, the Australian Federation of AIDS Organisations (AFAO) produced an excellent discussion paper/advocacy kit, 'HIV, Crime and the Law in Australia: Options for Policy Reform'.

As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.

There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.

It then systematically examines, in great detail, the impact of such prosections in Australia.

These include:

1. HIV-related prosecutions negate public health mutual responsibility messages
2. HIV-related prosecutions fail to fully consider the intersection of risk and harm
3. HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
4. HIV-related prosecutions reduce trust in healthcare practitioners
5. HIV-related prosecutions increase stigma against people living with HIV
6. HIV-related prosecutions are unacceptably arbitrary
7. HIV-related prosecutions do not decrease HIV transmission risks
8. HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings

It notes, however, that

There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:

• To consider what circumstances of HIV transmission should be defined as criminal;
• To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
• To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.

 That's exactly the kind of policy outcome that UNAIDS is hoping for.

In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.

Their suggestions include:

• Enable detailed discussion and policy development
• Develop mechanisms to learn more about individual cases
• Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused

• Work with police, justice agencies, state-based agencies and public health officials
• Improve judges’ understanding of HIV and work with expert witnesses
• Work with correctional authorities
• Work with media

I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.

The full UNAIDS article is below.  I'll update you on the project's progress just as soon as I can.

Countries questioning laws that criminalize HIV transmission and exposure

26 April 2011

On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.

A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.

This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.

In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.

In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.

Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.

Best available scientific evidence to inform the criminal law

These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.

To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.

The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.

The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.

As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.

Global: AIDS 2010 round-up part 1: sessions, meetings and media reports

A remarkable amount of advocacy and information sharing took place during the XVIII International AIDS Conference held in Vienna last month.  Over the next few blog posts, I'll be highlighting as much as I can starting with a round-up of sessions, meetings, and media reports from the conference.  A separate blog post will highlight posters, a movie screening and some inspirational personal meetings.

Sunday: Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward 
A meeting that I co-organised (representing NAM) along with the Global Network of People Living with HIV (GNP+) and the Canadian HIV/AIDS Legal Network received quite a lot of coverage.

Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward was a great success with many of the 80+ attendees telling me it was Vienna highlight. The entire meeting, lasting around 2 1/2 hours, has been split into eight videos: an introduction; six presentations; and an audience and panel discussion. The entire meeting can also be viewed at the NAM and Legal Network websites, with GNP+ soon to follow.

Reports from the meeting focusing on different parts of the meeting were filed by NAM and NAPWA (Aus) and I was interviewed by Mark S King for his video blog for thebody.com.

Richard Elliott of the Canadian HIV/AIDS Legal Network, Moono Nyambe from GNP+ and UNAIDS' Susan Timberlake – all of whom took part in the meeting – were interviewed for a piece in Canada's Globe and Mail, with the headline, U.S., Canada lead world in prosecuting those who transmit AIDS virus: Criminal charges are justified only when infection is intentional, activists contend.

The same day, an editorial in the Globe and Mail completely undermined the rather balanced article by stating, quite bluntly

Disclosing one's status is, of course, a difficult and emotional journey, fraught with potentially negative consequences. HIV-positive people can be marginalized, and discriminated against in terms of housing, employment and social relationships. However, the collective rights of this minority group cannot take precedence over their individual responsibility not to infect others.

It concluded

But in Canada the law is clear: Exposure without disclosure is a crime. And that is a good thing.

Judging by the comments left by readers of both articles, although there is some sympathy for the person with HIV, there's a long way to go before Canadian hearts and minds are won over by the anti-criminalisation advocacy movement.

Wednesday: Policing Sex and Sexuality: The Role of Law in HIV
Lucy Stackpool-Moore (IPPF) and Mandeep Dhaliwal (UNDP) co-chaired a satellite session on the Wednesday that included presentations by Anand Grover, UN Special Rapporteur on Right to Health, and my colleague Robert James of Birkbeck College, University of London.


Thursday: HIV and Criminal Law: Prevention or Punishment? 
This debate included discussion of criminalisation from the point of view of increased stigma. Lucy Stackpool-Moore again contributed. The session was not only recorded by the rapporteur, Skhumbuzo Maphumulo, but also reported on by PLUS News.

Thursday: Leaders against Criminalization of Sex Work, Sodomy, Drug Use or Possession, and HIV Transmission

This was the session with the highest profile names (rapporteur summary here). Chaired by Stephen Lewis, Founder of AIDS Free World, it was left to none other than Festus Mogae, Former President of Botswana, and a member of the Global Commission on HIV and the Law, to make a statement against the criminalisation of HIV exposure and transmission: "Criminalisation of HIV transmission is...futile", he said, quite a few times.   (Audio of his statement, at around 38:00, can be heard here).   

Although it was mostly a repetition of some of the well-worn public health and human rights reasons already presented two years earlier by Edwin Cameron at AIDS 2008, it is significant that a former president of an African country made this statement, given the 'legislation contagion' that has occurred on that continent.  President Mogae noted that he had written to some of his estwhile colleagues pleading with them not to pass HIV-specific laws in their countries.  With more than 25 African countries with such laws on the statute books and at least another eight African countries considering them, I think they need some more convincing.

Thursday: Where HIV Is a Crime, Not Just a Virus!

This was the only oral abstract session at AIDS 2010 dedicated exclusively to the criminalisation of HIV exposure and transmission, and I was honored to have two abstracts represented. The rapporteur summary is here.

I've already included a blog posting on my presentation, which you can see here. The other presentations included Criminalization of HIV transmission and exposure and obligatory testing in 8 Latin American countries, presented by Tamil Rainanne Kendall. (Audio and slides here); Tanzania case study on how AIDS law criminalizes stigma and discrimination but also stigmatizes by criminalizing deliberate HIV infection, presented by Millicent Obaso (Audio and slides here); and If there is no risk and no harm there should be no crime. Legal, evidential and procedural approaches to reducing unwarranted prosecutions of people with HIV for exposure and transmission, presented by Robert James (and co-authored by yours truly). (Audio and slides here).

The session was also reported on by aidsmap.com.

Thursday: Late Breakers (Track F)
This session included three oral abstracts on criminalisation of HIV exposure and transmission.
A quantitative study of the impact of a US state criminal HIV disclosure law on state residents living with HIV, presented by Carol Galletly. (Audio and slides here).

Roger Pebody of aidsmap.com provides an excellent summary of her findings here

Under [Michigan] state legislation, people with HIV are legally obliged to disclose their HIV status before any kind of sexual contact. Disclosure is meant to occur before sexual intercourse “or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body”. This would include even fingering or the use of a sex toy.

Carol Galletly reported on a study with 384 people with HIV who live in Michigan (but recruitment methods and demographics were not fully described). Three quarters of respondents were aware of the law.

She wanted to see if the existence of the law had any impact on her respondents’ behaviour. Comparing those who were aware of the law with those who were not, people who knew about the law were no more likely to disclose their HIV status to sexual partners. Moreover they were not less likely to have risky sex.

On the other hand, approximately half of participants believed that the law made it more likely that people with HIV would disclose to sex partners. Having this belief was associated with being a person who did disclose HIV status to partners.

In fact a majority of participants supported the law. Individuals who Gallety characterised as possibly being marginalised were more likely to support the law: women, non-whites, people with less education and people with a lower income.

The two other presentations were: HIV non-disclosure and the criminal law: effects of Canada's 'significant risk' test on people living with HIV/AIDS and health and social service providers, presented by Eric Mykhalovskiy (Audio and slides here) and Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso presented by Patrice Sanon (Audio and slides here).

Other media reports
Other reports mentioning the criminalisation of HIV exposure and transmission published during the conference include:

A piece in the Montreal Gazette, headlined, Advocates raise concerns over prosecuting HIV-positive people

The troubling increase in the number of new HIV cases in Canada may be attributed to the country's reputation of being a world leader in prosecuting HIV-positive people who fail to disclose their status, according to one group of AIDS advocates. "We're looking at rising numbers of infection, especially among certain risk groups," said Ron Rosenes, vice chair of Canadian Treatment Action Council. "And now we're looking at the criminalization issue as one of the reasons people have been afraid to learn their status."

Totally unproven, of course, but a great hook to hang the story on.

There was also a round-up story focusing on the broader issue of criminalisation (of drug use, same-sex sex, sex work) that mentioned HIV exposure and transmission in passing on this blog post on  RH Reality Check.

Finally, an article in CMAJ interviewed Richard Elliott (again!) and highlighted some of the advocacy work at AIDS 2010 as it discussed the ongoing debate in Canada regarding the use of the criminal law to prosecute non-disclosure.

Angola: Police report two prosecutions in 2007/8

The first reported use of Angola's 2004 HIV-specific law suggests at least two successful prosecutions in 2007/8.

The brief-but-stigmatising report by Angola Press is below. It should be noted that "intentional transmission" is very likely to simply mean there was non-disclosure of known HIV-positive status prior to unprotected sex. It is unclear why the police released these data now.

Two cases of intentional HIV/AIDS transmission were official recorded throughout 2007/2008 countrywide by the National Police, said a source from the corporation. The spokesman of the Police in Luanda, Jorge Bengue, gave the information, adding that despite this figure, there are many HIV positive people that practice such crimes.

"The national police know, in an informal way, that there are more crimes of this nature. What we have not are more cases officially notified, as there is protectionism from the society, so that the problem be solved among them", he said.

The source said that the police got acquainted with these cases after various conflicts between couples.

Uganda: Minister's turnaround on HIV bill raises concern (PLUSNews)

KAMPALA, 11 May 2010 (PlusNews) - Ugandan AIDS activists have expressed concern over a decision by the Ministry of Health to back an HIV/AIDS bill that would criminalize the deliberate transmission of HIV.

Last week, State Minister for Health in charge of General Duties, Richard Nduhura, appeared before the parliamentary committee on HIV to explain the government's position on the HIV and AIDS Prevention and Control Bill (2009). Nduhura backtracked on his earlier position that portions of the bill would lead to discrimination and undermine the rights of people living with HIV.

"I am in support of the law as it is now," he told IRIN/PlusNews.

Uganda's President Yoweri Museveni has in the past stated that he "fully supports" an HIV/AIDS law that would criminalize deliberate transmission of the virus.

The bill, as well as another controversial proposed law, the Anti-Homosexuality Bill 2009, has led to widespread criticism by human rights activists.

According to Stella Kentutsi, of the National Forum of People Living with AIDS Network in Uganda, the minister's U-turn showed there was still a lack of understanding of its clauses and how they would affect people living with HIV.

"The biggest problem we have with this bill is lack of awareness; we think [Nduhura's] comments were biased and influenced by parliament," she said. "He needs to sit and think carefully, then make a decision that will balance both sides."

Nduhura said he was convinced of his new position, and had not been unduly influenced by members of the parliamentary committee.

The forum has been raising awareness across the country about the bill, which is intended to provide a legal framework for the national response to HIV, as well as protect the rights of individuals affected by HIV. Many of its clauses seek to protect the rights of people living with HIV to healthcare, criminalize discrimination on the grounds of HIV status and uphold the principles of confidentiality and consent.

Contradictions

However, AIDS activists say the parts that criminalize the deliberate transmission of the virus are counter-productive; for instance, the bill outlaws attempted transmission of HIV and recommends life in prison for people found guilty of intentional transmission of HIV. Many activists have questioned how the government would prove deliberate transmission.

The bill further recommends that intravenous drug users, sex offenders and their victims, people charged with offences related to prostitution, and pregnant women and their partners be automatically tested for HIV. If passed, it would authorize medical practitioners to inform, at their discretion, people they felt were at risk of contracting HIV, such as an HIV-positive person's spouse.

"If you push for a more severe or lesser punishment because someone is infected you are discriminating and undermining the rights of people living with HIV," Kentutsi said. "Those who are HIV-infected should not be treated any differently."

The bill is due to be tabled before parliament imminently, and stakeholders will have a chance to put forward their positions on its clauses.

"People should not lose sleep over the bill; that phrase [deliberate transmission] could be dropped or retained - there is still a lot of room to review it," said Chris Baryomunsi, a member of parliament's select committee on HIV.

East Africa: Move Towards Common HIV/AIDS Law (IPS)

Another excellent piece from the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

EAST AFRICA: Move Towards Common HIV/AIDS Law
by Wambi Michael

ARUSHA, Dec 4 (IPS) - All HIV-positive east Africans could soon access free anti-retroviral treatment even as they move freely from country to country, if a new proposed law comes into effect.The East African Community (EAC) is currently developing a law to guide the region’s response to HIV/AIDS.

This comes as the regional block moves towards an integration process that would see more citizens cross the boarders in the five states of Kenya, Uganda, Tanzania, Burundi, and Rwanda.

"With the signing of the protocol on customs union that will enable free movement of persons, you are actually going to see free movement of the virus because people will be interacting more easily as they transact business. The effect of that is that HIV must be seen regionally," said Catherine Mumma, a Kenyan Human Rights Lawyer, who works with consultancy group Africa Vision Integrated Strategies. She led a consultation in the EAC states before the drafting of the new proposed law.

Based upon the consultations, the proposed law aims to provide joint treatment policies for people in the region while they move freely across the borders.

"One other thing is that east Africans would want a law that would enable them to access services anywhere they go in east Africa. So that if you were in Nairobi and you were on ARVs and you only brought two days ARVs and Kenya Airways went on strike, you should be able on the third day to walk into a treatment centre and get treated."

The law will allow for a common stance on HIV/AIDS, which aims to be non-discriminatory. Currently some countries in the region criminalise the treatment of HIV-positive sex workers and gay men.

The presidents of the five member states agreed in November to commence the East Africa common market protocol, which beings in early in 2010. It will allow for the free movement of labour and trade across borders, similar to the Southern African Development Community trade agreement.

Lucy Ng’ang’a, the executive director for the Eastern African National Networks of AIDS Service Organisations (EANNASO) said the proposed law will take on the good parts of the existing laws in the region but also tackle some of the silent issues and make better the areas that are controversial.

For example, Kenya has as a law providing for the free treatment and counselling for HIV-positive people.

One of the controversial areas is the criminalisation of the transmission of HIV/AIDS being suggested by countries like Uganda.

Another controversial area is that in the Penal Codes of Kenya, Rwanda, Burundi and Tanzania prostitutes and gay men, who are considered high risk in HIV/AIDS transmission, are not allowed access to treatment.

Member states like Kenya, Tanzania and Burundi already have laws on HIV/AIDS.

Uganda’s law, the HIV/AIDS Control Bill 2009, was tabled before Parliament in 2008 as a Private Member’s Bill. It has already caused a public outcry because of a clause relating to the criminalisation of HIV transmission between adults.

EANNASO contracted consultancy group Africa Vision Integrated Strategies to study the existing HIV laws within the region and advise on a draft bill for an East African Law on HIV.

The report by the Kenyan-registered consultancy was presented at a regional consultative meeting held between December 3rd and 4th, 2009.

Participants at the meeting in Arusha voiced concern at provisions in the member states laws relating to the rights of People Living With HIV/AIDS and criminalisation of HIV transmission.

Mumma told IPS that most people consulted felt that the issue of wilful transmission of HIV/AIDS should be punishable, but not in the context of the HIV law. It should be dealt with separately because if it was included in the HIV law, it will stigmatise people who may use this law to seek protection and treatment, the East Africa Law Society said.

"HIV should be seen as any other diseases including hepatitis B. And it would better for it to be dealt with in the context of the penal code even if it meant drafting another clause in the penal code," Mumma said.

Sarah Bonaya, a Kenyan Representative at East African Legislative Assembly and also a member of the General Purposes Committee in the parliament, said she was sure that her colleagues in the assembly would support the Bill which may be tabled as a Private Member’s Bill to the East African Assembly.

She was happy that consultations had gone on through the five states to ensure a harmonised law that would address some of the negative provisions within each member state law that would affect management of HIV/AIDS as a region.

The new proposed law on HIV/AIDS would be the second in Africa after the SADC HIV law adapted in November 2008. The SADC law provides a comprehensive framework for harmonisation of HIV and human rights in southern Africa.

Uganda: 'Human rights will suffer' under new HIV/AIDS law (update)

Update: December 3rd

The United Nations Special Envoy on AIDS in Africa, Elizabeth Mataka – and NGOs that include the Uganda Network on Law, Ethics and HIV/Aids (Uganet) and ActionAID – have added to the many voices urging Uganda to reconsider its proposed HIV and AIDS Prevention and Control Bill.

The Daily Monitor reports that Ms Mataka told journalists in Kampala yesterday:

“I emphasise the importance of creating a bigger and social environment conducive for HIV prevention and to refrain from laws that criminalise the transmission of HIV and stigmatise certain groups in the population. These laws can only fuel the epidemic further and undermine an effective response to HIV."

Dorah Musinguzi, acting Executive Director of Uganet stated:

“We are cognisant of the fact that the draft Bill contains provisions that seek to address the HIV/AIDS pandemic but we need a law on the basis of which rights can be claimed and duties articulated in the context of HIV/AIDS. AIDS is no longer just a disease but a human rights issue. The law should be carefully crafted to find the right balance between promoting the public health while safeguarding and promoting human rights.

Original post: November 6th

A group of more than 50 Ugandan and international organizations and individuals have released a report criticising many of the provisions in the HIV and AIDS Prevention and Control Bill which is on its way to becoming law in Uganda.

A press release from Human Rights Watch (HRW) begins

The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to "observe instructions on prevention and treatment," and misleading statements on preventing or controlling HIV.

Worryingly, the latest version of the bill, released a few days ago, has now a added provision criminalising attempted transmission, which "further opens the door for abusive prosecutions", HRW notes.

However "failure to inform one's sexual partners of HIV status is no longer criminalised" along with the rather interesting provision that would have criminalised "failure to take reasonable steps and precautions to protect oneself from HIV transmission."

Some might argue if criminalisation of HIV exposure or transmission remains in the Bill, why not allow for the prosecution of someone who does not protect oneself from HIV? That way, the law focuses on equal responsibility for HIV transmission/acquisition.

However, in a high prevalence country like Uganda (where an estimated 5.4% of the adult population is living with HIV) this would be unworkable, and would criminalise pretty much everyone who has unprotected sex, or at least is diagnosed HIV-positive - obviously a major backwards move, as this would remove any incentive for testing.

The HRW press release also focuses on the potential for criminalisation of HIV exposure and transmssion to disproportionately affect women, even though many lawmakers believe these laws protect them.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women's inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

"Women and girls have been disproportionately affected by HIV/AIDS," said Joseph Amon, health and human rights director at Human Rights Watch. "My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care."

Last month a Ugandan MP introduced a separate Anti-Homosexuality Bill that would impose the death penalty on HIV-positive gay men in Uganda if they have sex with another man.

The proposals have been roundly criticised by pretty much every human rights and HIV organisation in the world.

Global: Human Rights Watch - Punitive Laws Threaten HIV Progress

Human Rights Watch today issued a press release to tie in with World AIDS Day – the theme of which is "universal access and human rights" – which highlights that punitive laws, including those that criminalise HIV transmission, threaten progress towards both of these important goals.

World AIDS Day: Punitive Laws Threaten HIV Progress

(New York) - HIV prevention efforts - and the promise of antiretroviral therapy as prevention - are being undermined by punitive laws targeting those infected with and at risk of HIV, Human Rights Watch said today on the eve of World AIDS Day.

This year's World AIDS Day theme is "universal access and human rights," tying together goals for universal access to HIV prevention, treatment, and care with recognition that respect for human rights is critical in the global response to AIDS. Achieving universal access to treatment has also been a key theme in debates over the past year around the use of antiretroviral treatment (ART) as a part of comprehensive HIV prevention strategies. Mathematical models have proposed that early initiation of universal antiretroviral treatment combined with HIV prevention programs could lead to the eventual elimination of HIV infection. "There is increasing evidence that antiretroviral treatment can be an important part of comprehensive prevention strategies," said Joe Amon, Health and Human Rights director at Human Rights Watch. "But if human rights abuses are unaddressed and punitive laws target people vulnerable to or living with HIV, the potential of treatment as prevention isn't going to be realized."

In many parts of the world, legislation effectively criminalizes populations living with HIV or vulnerable to HIV infection, such as sex workers, drug users, and men who have sex with men. These laws fuel stigma and discrimination, increase barriers to HIV information and treatment, and contribute to the spread of disease, Human Rights Watch said. Elsewhere, laws criminalizing HIV transmission discourage HIV testing, potentially subjecting those who know their HIV status to criminal penalties while exempting those who are unaware of their infection.

In early November, Human Rights Watch released a 10-page critique of a proposed Ugandan HIV/AIDS law, which includes mandatory HIV testing, forced disclosure, and criminal penalties for the "attempted transmission" of HIV to another person. The Ugandan Parliament is also considering a bill that allows for a seven year prison term for any person or organization who supports or promotes lesbian, gay, bisexual, or transgender people's rights. It would jail for up to three years anyone who fails to report a person they suspect of being lesbian or gay. A person living with HIV who has consensual homosexual sex would face the death penalty, regardless of risk of HIV transmission and even if their partner is also HIV-positive.

Since 2005, 14 countries in Africa have passed HIV-specific laws that potentially criminalize all sexual behavior among HIV-positive individuals, including those who use condoms, regardless of disclosure and actual risk of transmission. In a number of countries, maternal-to-child HIV transmission is a criminal offense, even where antiretroviral treatment may not be available. In Uganda, the draft legislation exempts HIV transmission before or during birth but allows for the prosecution of women whose infants acquire HIV from breast milk.

"HIV prevention has failed in many countries not because we don't know how to design effective prevention programs, but because governments have been unwilling to implement these programs and ensure that they reach everyone," Amon said. "The potential of HIV treatment in comprehensive prevention programs will be similarly sabotaged if governments continue to pass punitive laws and trample upon human rights.

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.

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.

Kenya: Opinion piece criticising AIDS Control Act

Aids Control Act ‘a mere shell’
By COLLINS OMONDI
Monday, March 30 2009 at 19:16
Daily Nation

In Summary

• Special Programmes minister has left out some key provisions of the Act which are at the core of fighting stigma
• Lack of consent for testing for HIV and unlawful disclosure of HIV test results fuels stigma and discrimination.

MONDAY WAS THE commencement date for the HIV and Aids Prevention and Control Act 2006.

It is, however, disappointing that the Special Programmes minister has left out some key provisions of the Act which are at the core of fighting stigma and protecting the human rights of people living with Aids.

There is absolutely no justification for subjecting sections 14, 18 and 22 relating to consent for HIV testing and confidentiality of HIV test results to delays.

Undeniably, there exists inextricable links between stigma and discrimination against people living with Aids and violations of privacy and confidentiality to which these sections relate.

Lack of consent for testing for HIV and unlawful disclosure of HIV test results fuels stigma and discrimination. This leads to social and economic suffering for those affected.

Also, the explicit requirement under section 39 to conform to the legal framework governing the conduct of biomedical research does not apply, at least for the time being, though researchers have frequently been blamed for violating rights of people with Aids.

The non-implementation of these sections robs the Act of its raison d’être and jeopardises the effectiveness of provisions on privacy and confidentiality and non-discrimination thus exposing these people to the risk of continued violation of their rights.

It also creates the impression that certain requirements as to consent for testing and confidentiality and biomedical research do not apply as a matter of law for the time being, leading to legal uncertainty and confusion.

As it is, the Act is a mere shell. Needless to say, these sections were not as controversial as certain sections which have been implemented such as section 24 on criminalisation of wilful HIV infection.

Further, assuming there exists issues of concern under certain sections, say consent for HIV testing by “mature minors”, such issues are not so fatal that they should rob the Act of its raison d’être.

Such inevitable issues in any law-making process are easily addressed through amendments in Parliament, as this is the only institution with the legal mandate to change that which it passed into law, or through regulations made pursuant to the Act.

The minister’s action, although it may be guided by a genuine desire to address certain concerns, is wholly ill-advised and is not supported by reasons the government has been giving for the inordinate delay in implementing the Act.

For instance, the 2008 Kenya Country Progress Report to the United Nations General Assembly Session on HIV and Aids cited the need for amendments to the Act to include marginalised groups and other emerging issues.

To what extent the non-implementation of these sections is affected by these concerns remains unclear.

Going by the history of the Act, one can only pray that these provisions are brought into force immediately and that whatever issues that led to the sections being put in abeyance are addressed.

Mr Omondi, a lawyer, is the HIV and human rights project coordinator at the Children’s Legal Action Network (CLAN).

Zimbabwe: DJ charged with raping 16 year-old girl, now HIV-positive

A 36 year-old HIV-positive DJ from Bulawayo, Zimbabwe, has been charged with raping a 16 year-old girl and infecting her with HIV.

The report, from newzimbabwe.com, says the man is charged with three counts of rape, but he does not appear to have been charged specifically for the alleged HIV infection.

He is alleged to have had sex with the girl (the age of heterosexual consent is 16 in Zimbabwe) three times over New Year's Eve and the following two days, while she was staying with him at his hotel, following a "drug and booze-fuelled" party.

When the girl's mother found out where she was, she went to the hotel to bring her home.

The mother took her daughter home but she did not reveal that she had been raped until the mother “noticed some change in her behaviour”. On being questioned, she told her mother that [the DJ] had raped her and police were called.

She tested HIV-negative on January 8th, but positive on March 18th, suggesting that she did acquire HIV during this period.

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:

• 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.

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

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

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

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

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

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

Sarafino Aginya is a resident of Metu in Moyo district.

Having sex with a mentally ill person is an offence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Uganda: Proposed criminal HIV transmission laws opposed by advocates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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