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Showing posts with label South Africa. Show all posts
Showing posts with label South Africa. Show all posts

Monday, 13 September 2010

South Africa: Opposition leader Helen Zille says HIV exposure is 'attempted murder', cites Nadja Benaissa case as example

South Africa's leader of the Democratic Alliance opposition party, Western Cape Premier Helen Zille has said that HIV-positive people who knowingly have unprotected sex without disclosing their status, should be charged with attempted murder. She also cited the recent case of German pop star, Nadja Benaissa, as an example for South Africa to follow.

Her remarks, reported in the Cape Times, were made during an address to the South African Institute of International Affairs last week.

She said the lack of personal responsibility contributed to some of the greatest social ills in the country.

"Social pathologies are complex, but I think we must all agree that promoting a culture of personal responsibility is essential to addressing all these things. We also need to take action against people who are HIV-positive and knowingly have unprotected sex without disclosing their status. This, I believe, is an offence on a par with attempted murder. This is complex and difficult, and requires enormous courage from the wronged sexual partner to lay a charge and give evidence," Zille said.

[...]

Zille said the recent court case against a German pop star for failing to disclose her HIV-positive status was an example to emulate. German singer Nadja Benaissa, a member of No Angels, was found guilty of causing grievous bodily harm to her ex-boyfriend by having unprotected sex with him despite knowing she had HIV. The 28-year-old was given a two-year suspended prison sentence and 300 hours' community service. Zille said the lack of personal responsibility contributed to some of the greatest social problems facing the country, such as HIV/Aids, alcoholism, drug abuse, teenage pregnancy, foetal alcohol syndrome, and absentee fathers who did not pay maintenance.

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that "an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified."

A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007. Rather, the legislation requires HIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.

Tuesday, 11 May 2010

South Africa: AIDS Law Project reinvented as SECTION27

As of last Friday, the ground-breaking South African AIDS Law Project (ALP), founded by Edwin Cameron in 1993, became part of SECTION27, a new NGO that focuses on all "the socio-economic conditions that undermine human dignity and development, prevent poor people from reaching their full potential and lead to the spread of diseases that have a disproportionate impact on the vulnerable and marginalised".

SECTION27 draws its name from section 27 of the South African Constitution, which lies at the heart of our supreme law’s commitment to socio-economic rights. Health challenges are a major feature of our new democracy and intensifying and placing a closer focus on the right to health will benefit HIV. The duty to ensure access to quality health care services falls not just on government but on the well-resourced private health sector as well.

As well as the press release republished below, here's a link to an article from AllAfrica.com which highlights ALP's many achievements as well as SECTION27's first legal battle:
In a fitting start, the organisation faces a potential legal battle over the right to use the name, Section27 as the Companies and Intellectual Properties Registration Organisation (CIPRO) claims that this name is the preserve of government only.According to a letter from CIPRO, the name "connote (sic) governmental patronage. The wording employed to serve as a name cannot be allowed and are calculated to cause damage moreover misleading and undesirable" (errors in original) and that a clause in the Constitution is "a government issue".

Press release: 6 May 2010

INTRODUCING AN ORGANISATION THAT WILL CHALLENGE THE STATE AND THE PRIVATE SECTOR TO FULFIL THEIR CONSTITUTIONAL OBLIGATIONS ON HEALTH

At 4pm on 7 May 2010, a new human rights organisation – SECTION27 – will be launched formally in Johannesburg in the presence of Health Minister Dr Aaron Motsoaledi, COSATU General Secretary Zwelinzima Vavi, Constitutional Court Justice Edwin Cameron and a range of leaders from civil society in South Africa and internationally.

Venue: Atlas Studios, 33 Frost Avenue, Milpark, Johannesburg

SECTION27 incorporates the AIDS Law Project (ALP), one of South Africa’s most successful post-apartheid human rights organisations. Given the intensifying legal, political and social challenges facing South Africa, particularly in respect of health, refocusing our mission became a logical progression of the ALP’s work.

SECTION27 is a public interest law centre that will focus on access to health care services and other socio-economic rights. SECTION27 will combine research, advocacy and legal action to improve the socio-economic conditions that undermine human dignity and development, prevent poor people from reaching their full potential and lead to the spread of diseases that have a disproportionate impact on vulnerable and marginalised people.

Health is central to dignity and equality and all other rights are central to health. Forming SECTION27 is not an attempt to move away from HIV/AIDS. We reject arguments that HIV/AIDS has been overfunded at the expense of health more broadly. There has been progress on HIV because we have fought for it as a human right. In our view, HIV/AIDS will continue to be the litmus test for the delivery of health services over the coming years: for example, the epidemic poses major issues in respect of appropriate budgeting and expenditure. Placing the spotlight on HIV offers an entry point for tackling the systemic problems that confront the health system.

SECTION27 draws its name from section 27 of the South African Constitution, which lies at the heart of our supreme law’s commitment to socio-economic rights. Health challenges are a major feature of our new democracy and intensifying and placing a closer focus on the right to health will benefit HIV. The duty to ensure access to quality health care services falls not just on government but on the well-resourced private health sector as well.

SECTION27 will also have a focus on socio-economic rights more broadly. For example, SECTION27 will throw its weight behind organisations that fight for the right to basic education. In addition, the pursuit of rights to have access to health care services, sufficient food and basic education will require us to promote and defend foundational rule of law questions such as transparency, accountability and the appropriate regulation of both public and private power.

Recently there has been much debate on the rule of law and transformation of the judiciary and the legal profession. Elements of government, the ANC and the private sector have questioned the value of key parts of the Constitution as well as the role of the courts that are required to uphold it. SECTION27 will join this debate and seek to shape it. We are not pro-government or pro-business. We are pro-poor, pro-human rights, pro-equality, pro-health and pro-Constitution. It is with these commitments that we announce a new force for health and social justice in South Africa, SECTION27.

For a more detailed description of SECTION27, its goals, vision and mission please visit: www.section27.org.za

Our Prospectus can be found at: SECTION27 Prospectus

Tuesday, 9 December 2008

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

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

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

They include:


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

AFRICA: Will criminalising HIV transmission work?
IRIN/PlusNews
Monday 08 December 2008
Countries in sub-Saharan Africa are looking at a new way of preventing HIV infections: criminal charges. But experts argue that applying criminal law to HIV transmission will achieve neither criminal justice nor curb the spread of the virus; rather, it will increase discrimination against people living with HIV, and undermine public health and human rights.

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

In Switzerland, a man was sent to jail earlier in 2008 for infecting his girlfriend with HIV, even though he was unaware of his HIV status, and a Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances of the officer being exposed to the virus were negligible.

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

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

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

Most legislative development has taken place in West Africa, where 12 countries recently passed HIV laws. In 2004 participants from 18 countries met at a regional workshop in N'djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa.

The law they came up with was far from "model", according to Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, who maintains that the model law's broad definition of "wilful transmission" could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.

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

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

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

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

Tuesday, 2 September 2008

Mexico conference shines spotlight on criminal HIV transmission

South African Supreme Court Justice Edwin Cameron's impassioned call for “a campaign against criminalisation” has been heard far and wide since he gave his plenary presentation on the final day of the XVII International AIDS Conference in Mexico City last month.

I have collected the various articles that have reported on Justice Cameron's plenary, as well as the five other sessions consisting of at least 20 different oral or poster presentations, many of which I previously reported on here. Several of the articles also include quotes from a press conference held in Mexico, which – strangely – took place at the same time as the main Wednesday session on criminalisation, and which I unfortunately missed.

They include a high profile article in The New York Times, as well as articles or editorials from Canada, Jamaica, Rwanda, South Africa, Uganda, and the United Kingdom. There was even coverage of the issue in The Diplomatic Courier, a publication from the United States that reports on diplomatic and security issues .

I also wrote a second piece for aidsmap.com, covering Justice Cameron's plenary in detail and several other sessions at the conference, which you can find here.

Seeking Better Laws on H.I.V.
by Lawrence K. Altman
New York Times
August 9, 2008

MEXICO CITY — The 17th International AIDS Conference ended here on Friday with a call for the reversal of laws that criminalize and stigmatize groups at risk for H.I.V., the virus that causes AIDS.

“Criminalization is a poor tool for regulating H.I.V. infection and transmission,” Edwin Cameron, a justice of the Supreme Court of Appeals in South Africa, said in a plenary session.

“Let one of the conference outcomes be a major international push-back against misguided criminal laws and prosecutions,” said Justice Cameron, who is himself infected.

Citing cases in Texas, Zimbabwe, Sierra Leone, Bermuda and Switzerland to illustrate the “folly of criminalization,” the judge said, “There is no public health rationale for invoking criminal law sanctions against those who unintentionally transmit H.I.V. or expose others to it.”

Justice Cameron said he understood that society feared the deadly virus and that public officials might want to invoke laws to counter those who recklessly passed it to others.

But, he said, “Criminalization is warranted only where someone sets out, knowing he has H.I.V., to infect another and succeeds.”

Justice Cameron cited the conviction in Dallas in May of Willie Campbell, 42, a homeless, H.I.V.-infected man who was charged with harassing a public servant with a deadly weapon after he spat at a police officer who arrested him.

Mr. Campbell must serve at least half of his 35-year sentence before he can apply for parole.

Justice Cameron pointed out that, according to the Centers for Disease Control and Prevention, saliva has never been shown to result in the transmission of H.I.V.

“The man was punished not for what he did, but for the virus he carried,” the judge said.

At the trial Mr. Campbell’s lawyer said he was indicted as a habitual offender, with a minimum penalty of 25 years, because he had been convicted of attacking two other officers in a similar manner and biting two inmates, as well as more than two dozen other offenses.

Justice Cameron described a law in Sierra Leone that requires a woman to take reasonable measures and precautions to prevent transmitting H.I.V. to her fetus. But testing for the virus and treatment for an infected mother are not widely available, health officials have said.

At least a dozen African countries have adopted similar laws, many poorly drafted, said the judge, who called them poor substitutes for measures that protected those at risk.

AIDS conference ends with call to end stigma
Ingrid Brown
Jamaica Observer
Monday, August 11, 2008

According to Edwin Cameron - a judge of the Supreme Court of Appeal of South Africa - the enactment of laws that criminalise transmission of or exposure to HIV had become so widespread, and criminal prosecutions so frequent, that they had become a crisis in efforts to deal rationally and effectively with HIV.

"Rather, they radically increase HIV stigma and become barriers to testing and treatment," he said.


10 reasons why criminal laws and prosecutions make bad policy in the AIDS epidemic
Body Positive Northwest (UK)

On the final day of AIDS 2008 in Mexico City HIV positive Judge from South Africa's Supreme Court of Appeal, Edwin Cameron delivered a passionate lecture entitled HIV is a virus, not a crime.

Justice Cameron argued that the enactment of laws that criminalise transmission of or exposure to HIV has become so widespread, and criminal prosecutions so frequent, that they have become a crisis in efforts to deal rationally and effectively with HIV. Citing examples from locations as diverse as the United States, Sierra Leone and Singapore, Cameron highlighted the irrational nature of these laws and their ineffectiveness in achieving their purported goal of preventing the spread of HIV. Rather, they radically increase HIV stigma and become barriers to testing and treatment. Prosecutions often single out already vulnerable groups such as sex workers, men who have sex with men and, in European countries, black males. Women are especially victimised by these laws, which expose them to assault, ostracism and further stigma.

Cameron stated that one of the outcomes of AIDS 2008 should be a major international pushback against such misguided criminal laws and prosecutions. He urged delegates — strengthened in their resolve to fight against stigma and discrimination — to return home committed to persuading lawmakers and prosecuting authorities of the folly and distraction of criminalisation.

In brief, Cameron stressed the following;

1. Criminalisation is ineffective
2. Criminal laws and criminal prosceuctions are a poor substitute for measures that really protect those at risk
3. Criminalisation victimises, oppresses and endangers women
4. Criminal laws and prosecutions are often unfairly and selectively applied
5. Criminlisation places the blame on one person instead of responsibility on two
6. Criminal laws targeting HIV are difficult and degrading to apply
7. Many of the laws are very poorly drafted
8. Criminalisation increases stigma
9. Criminalisation is a strong discincentive to testing
10. Criminalisation assumes the worst about people with HIV, and so punishes vulnerability.

Prevent and treat HIV, don't criminalize it
Andre Picard
The Globe and Mail (Canada)
August 14, 2008

In Dallas, a 42-year-old homeless man was arrested for "harassing a public servant with a deadly weapon" - a fancy way of saying he spit on a cop. Because Willie Campbell was HIV-positive, he was jailed for 35 years, even though there has never been a documented case of the AIDS virus being transmitted by saliva.

In Zimbabwe, an infected woman was arrested for having unprotected sex with her lover.

The woman was convicted of "deliberately infecting another person," even though the man was not infected and did not want to press charges. She was sentenced to five years in prison.

In Windsor, Ont., Carl Leone was sentenced to 18 years in prison after being convicted of 15 counts of aggravated sexual assault. The 32-year-old did not tell his sexual partners he was infected with HIV. Five of the women contracted the virus. Around the world, women and men infected with HIV are increasingly being prosecuted.

Mr. Justice Edwin Cameron of the Supreme Court of Appeal of South Africa told delegates to the International AIDS Conference last week that the growing criminalization of HIV-AIDS is a travesty that risks undermining progress and fuelling the epidemic.

"HIV is a virus, not a crime," he said.

Judge Cameron, who is HIV-positive himself, said there are instances in which criminal prosecutions are appropriate, such as rape and when an infected person deliberately and knowingly spreads the virus, as in the case of Mr. Leone in Canada. But those crimes are covered by existing legislation.

Judge Cameron said what is troublesome in a world where 33 million are infected with HIV is the creation of special laws relating to HIV transmission and exposure.

In Egypt, for example, being infected with the AIDS virus is a crime, regardless of behaviour.

In Sierra Leone, "HIV transmission" is now a crime and the law applies to anyone who exposes another to the virus, even without transmission. The law expressly applies to pregnant women, meaning an HIV-positive woman can be jailed for being pregnant or breastfeeding, even though there are effective measures for preventing transmission.

Judge Cameron said HIV is a fearsome virus, but the response is largely irrational and counterproductive. He listed 10 reasons criminal laws make for bad health policy:

1) Criminalization is ineffective: There is no proof it stops the spread of HIV.

2) Criminal laws and prosecutions are a poor substitute for measures that really protect those at risk.

3) Criminalization victimizes, oppresses and endangers women. Worldwide, the vast majority of those who know they are infected are women, because of policies of testing them before the birth of a child.

4) Criminal laws and prosecutions are often unfairly and selectively applied. Those who end up being prosecuted are sex workers, men who have sex with men, intravenous drug users and, in Western countries, immigrants.

5) Criminalization places the blame on one person in a sexual relationship instead of responsibility on two people. In much of the world, women are in a subordinate position and cannot protect themselves.

6) Criminal laws targeting HIV are difficult and degrading to apply. Should consensual sex be subject to cross-examination? (Rape and the deliberate attempt to infect are different issues entirely.)

7) Many of the laws are poorly drafted and they would not pass muster in democratic states.

8) Criminalization increases stigma.

9) Criminalization is a strong disincentive to testing. And if a person is not tested, he or she will not be treated.

10) Criminalization assumes the worst about those with HIV and punishes vulnerability.

Put simply, Judge Cameron said, "Criminalization is a poor tool for controlling HIV-AIDS. There is no public health rationale whatsoever for invoking criminal law sanctions against those who unintentionally transmit HIV or expose others to it."

It is also well established that countries that respect human rights and civil liberties, and encourage the undiagnosed to be tested for HIV, do a far better job of containing the epidemic than those adopting punitive, moralistic strategies.

The epidemic of HIV-AIDS is now in its third generation, and is likely to be with us for several more generations.

Prevention and treatment are the main tools available to fight this plague, with a dollop of human rights on the side. The world will never be able to prosecute away this massive public health challenge.

Move to criminalise AIDS ‘bad for Africa’
Tamar Kahn

Business Day (South Africa)

MEXICO CITY — A wave of ill-considered new African HIV/AIDS laws criminalising the transmission of the virus were likely to backfire and end in more people being infected, Supreme Court of Appeal judge Edwin Cameron said this week.

Cameron was speaking at the 17th International AIDS Conference, which ends today.

“Just like condoms or faulty medical supplies, bad laws can spread the virus,” said SA’s Cameron, who is expected to give a plenary address on the issue later today.

Cameron said he hoped to use the “Champions for HIV” initiative that Botswana’s former leader, Festus Mogae, started this week, to urge changes to recently passed laws in west, east and central Africa that criminalised HIV transmission.


Criminalising HIV spread won’t help
Editorial
Daily Monitor (Uganda)
August 12, 2008

There is growing concern across the world in regard to the criminalisation of HIV infection. The concern was reiterated at the 17th International HIV/Aids Conference in Mexico which ended last week.

In Uganda the government is soon coming up with a law that criminalises HIV transmission. The draft law holds that any person who knowingly infects another with HIV or carries out an action while knowing that such action will pass on the virus to another person, shall be guilty of a criminal offence.

The punishment for the offence has not yet been specified but the President has said that people who knowingly infect others with HIV should be hanged on conviction.

Whereas it’s heinous to deliberately infect other people with HIV, and whereas the government is right to get concerned, drafters of that law must be mindful of the impediments in its implementation. Criminalisation of HIV infection may not help reduce HIV prevalence as it may be difficult to secure a conviction in courts of law.

The law targets to punish people who infect others through unprotected sexual intercourse including HIV infected rapists/defilers who force their victims into unprotected sex and thereby infecting them.

However there are hurdles that may render this law ineffective. How will the prosecution establish that the victim was HIV free before the alleged rape/defilement occurred? How will the prosecution prove that it’s not the victim who actually infected the rapist/defiler?

How will the prosecution prove that the rapist who has been tested and found HIV positive, knew his sero-status before or at the time he committed the alleged rape/defilement? Because a person can be deemed to have deliberately spread the HIV only if they knew that they were infected with the virus at the time of commission of the crime.

The drafters of the law on criminalisation of HIV transmission have an uphill task to come up with a law that will not become too complicated to deliver the desired results.

Besides, the criminalisation of HIV spread may cause stigma by portraying people living with HIV as callous human beings who have little regard or remorse for other people’s lives.

The government should explore more effective non-criminal interventions or policies to fight HIV/Aids prevalence instead of criminalising the transmission of the Aids virus.

When HIV Carriers Could Be Guilty for Transmitting the Virus
Rwanda News Agency/allAfrica.com
21 August 2008

In 2006, Mr. Emmanuel Gahutu and his wife discovered they were HIV positive. Mr. Gahutu now blames it all on her - after a 17-year marriage. As RNA reports, should some campaigners get their way, Mr. Gatutu should be able to drag his wife to court for infecting him.

Mr. Gahutu's story is telling. He is firm to the belief that he got the virus from his wife. "I got married over seventeen years ago and since then I have never had extramarital sex," he says.

The soft-spoken Mr. Gahutu from the western provincial town of Nyamagabe is sure that his wife may not have been faithful. Although they never went for testing before getting married, his first born, a 17-year-old daughter, is HIV negative. Together they have six children.

"This implies that we must have been negative when we got married, but later on when my wife was pregnant two years ago, she tested positive and I was advised to have a test, which came out positive," says Gahutu.

As per the present situation, according to Mr. Mulisa Tom - who deals directly with the legal dimensions of HIV, it is not possible to criminally charge anybody in Rwanda for transmitting the HIV virus because the local criminal law does not provide for it. Mr. Mulisa is the Legal Officer in Charge of Human Rights and HIV/Aids at the National University of Rwanda's Legal Clinic.

Unlike Rwanda however, some countries in this region already have laws to prosecute people that may willfully transmit HIV. But HIV/Aids activists, researchers and the UN Aids Agency - UNAIDS - are not amused.

During the just concluded XVII International AIDS Conference in Mexico, the criminalisation of HIV transmission or exposure was one of the burning topics.

[...]

Trying to solve the problem of growing cases of infections using the courts, activists like Ms Valerie Musemakweli, say will take the fight against the disease back so many years.

Ms Valerie - who has lived with the virus for some 15 years says people who know their sero-status will not reveal it to their spouses or even seek medical support, "and could move to another place where they are not known" just to escape the law.

Sometimes you could get the virus without knowing how you go it, argues Ms Valerie, but you could tell your spouse just because of your conscience to protect them. "But when you are forced to do that by law, somebody may not feel comfortable to do that and therefore just keeps silent for fear the partner may abandon them and tell the whole would about your status".

Evidence difficult to prove

In February this year, Gasana, 29 years, from the Southern Province, was diagnosed HIV positive. His newly wedded bride Jacqueline - aged 22 was found to be negative.

Out of furry, Jacqueline dumped her husband and was encouraged by her family to remarry. Mediation and sensitization about HIV/Aids by the University Legal Clinic encouraged the youthful Jacqueline to return to her husband - but they are living in separate bedrooms.

In a situation where Gasana would have been required by law to tell his wife, it is doubtful - later alone accept to be counseled. Instead, he would have kept quiet with the understanding that if she gets to know, she will leave him.

"If what is needed today is disclosure. Then where does the right to privacy and confidentiality lie", wonders Mr. Mulisa of the University Legal Clinic. Instead, he says mechanisms to educate the public about voluntary disclosure are more feasible, to reduce the wide number of 'potential criminals'.

The law can be helpful in situations where somebody plans and executes the "intention of willfully" transmitting the HIV/Aids virus to another, which can be an offence in criminal justice, according to some experts.

Case in particular could be if a doctor makes it a point to infect a patient with a syringe well aware it has been used by an infected person.

"But the burden of proof in issues where the various modes of transmission are usually practiced in privacy, with individuals who are not minors (by the law of the particular Country) and it was not rape or defilement because the consent of the parties existed", argues Mr. Mulisa.

Intentional transmission

After HIV/Aids, activists say, similar laws would be necessary for diseases like Ebola, Tuberculosis and others where contact with an individual may lead to transmission.

Should there be more legal means to fight HIV/Aids or should governments invest in health care services and reduce transmission through community awareness programmes.

The UN clearly does not want to have a growing trend of criminalising HIV exposure and transmission to go on undeterred.

[...]

Better NOT

In Rwanda, as some activists say, should such a law come to force, the consequences to the fight against HIV/Aids that has brought down prevalence and infection rates, will be history. "No one will ever again take an HIV/Aids test in fear of being suspected to be a PONTENTIAL CRIMINAL", Mr. Mulisa notes.

This law, as he points out, will reverse the current measures where pre-test counseling has led to many people publicly coming out to the public to educate the others and join the campaign to fight the spread of HIV/Aids.



Criminalization of HIV
A growing number of countries are passing or seeking to pass HIV-specific legislation that carry criminal punishments.
By Rebecca Wexler for Diplomatic Courier
27/08/08

At the XVII annual International AIDS Conference in Mexico City last week, leading experts called on countries around the world to reverse course on the adoption of HIV-specific criminal statutes that apply general criminal law to HIV transmission.

In what many delegates referred to as a dangerous trend, a growing number of countries are passing or seeking to pass HIV-specific legislation that can carry punishments ranging from monetary fines to life imprisonment.

While the criminalization of HIV transmission and exposure is hardly a new concept, several high-profile cases in the developed world along with an explosion of poorly crafted and broadly defined legislative endeavors in the developing world have raised alarm bells for international policymakers.

In 2008, an HIV-positive Texas man was sentenced to 35 years in prison for harassing a public servant with a deadly weapon after spitting on a police officer. Although the Center for Disease Control (CDC) has never recorded a case of HIV transmission through saliva, the man was charged with assault because his saliva was deemed a deadly weapon. In a similar example of how such criminal statutes blur the line between risky behaviors and criminal liability, a Zimbabwean immigrant living in Canada this year was sentenced to seven years in prison for aggravated sexual assault after failing to disclose his HIV-positive status to eight women prior to engaging in consensual unprotected sex. None of the women later became infected.

In Africa - where cultural and social constructs pose particular obstacles to tackling the HIV/AIDS epidemic - criminalization legislation has reached a fever pitch in the aftermath of a US-funded Action for West Africa Region HIV/AIDS Project (AWARE-HIV/AIDS) meeting in N’djamena, Chad in 2004.

As part of the meeting, West African parliamentarians drafted what is now known as the N'djamena African Model Law. The law contains some protections, including the guarantee of pre- and post-natal counseling and the right to health care services, but features several troubling provisions. The N'djamena model broadly requires HIV-status disclosure to a "spouse or regular sexual partner" within six weeks of diagnosis and permits mandatory testing of pregnant women, rape victims, and when necessary to "solve a marital dispute."

The N'djamena law also creates the vague offense of willful transmission pertaining to those who transmit the virus "through any means with full knowledge of their HIV-positive status" - a parameter broad enough to include mother-to-child-transmission. The law does not, however, distinguish between those who intend to do harm and those whose behavior can be categorized as reckless or negligent, raising particular questions about the culpability of individuals who might not be aware that they are HIV positive.

Touted by AWARE-HIV/AIDS as addressing "the need for human rights legislation in that region to protect those who are infected and exposed to HIV," the model law has been adopted as the basis of national HIV legislation in nine West and Central African countries. At least six countries in Southern Africa where the burden of HIV/AIDS is the highest are in the process of following suit.

The explosion in the adoption of HIV-specific transmission and exposure laws on the continent - described by some as a "frenetic spasm" of activity - places Africa on the cusp of becoming the most heavily legislated region in the world.

Proponents of these laws point to legal mandates as "powerful weapons of social change," with the potential to both deter reckless and high-risk sexual behavior, and serve as an effective tool of prevention.

In a joint meeting of the AIDS and Rights Alliance for South Africa (ARASA) and Open Society Initiative for Southern Africa (ORISA) policymakers debated the way forward for HIV-specific statutes. At the meeting, supporters of HIV transmission legislation suggested that such laws hold everyone accountable for curbing the spread of HIV, placing the onus of responsibility on both people living with HIV/AIDS to protect their partners, and on non-infected persons to demand safer sex practices and the use of condoms.

Evidence, however, has yet to provide support for the theory that the criminalization of HIV transmission either alters behavior or controls transmission rates. According to a recent commentary in the Journal of the American Medical Association penned by Temple University Beasley School of Law professor Scott Burris and Justice Edwin Cameron of the Supreme Court of Appeals in South Africa, not a single study to date has effectively proven that the threat of criminal prosecution influences condom use.

Of note, Justice Cameron made waves after becoming the first public official in Africa to disclose his HIV-positive status. A qualitative study conducted in the United Kingdom, however, found that criminal prosecution and the accompanying publicity increased perceptions of stigma for people living with HIV/AIDS, undermining public health efforts that stress disclosure, testing, and supportive social environments as cornerstones of controlling HIV transmission.

Stigma and HIV-based discrimination have taken center stage in the debate against criminalization efforts, with opponents arguing that such legislation could paint HIV-positive persons as criminals, deterring them from seeking testing or treatment and making them even less likely to disclose their HIV status for fear of criminal reprisal.

Speaking at the opening session of the UNDP and UNAIDS Secretariat Consultation in Geneva in 2007, Justice Cameron suggested "HIV is treated exceptionally for one over-riding reason: the stigma associated with it as a sexually transmitted infection," adding "no other infectious disease, not even any other sexually transmitted disease, is treated as HIV is treated."

The situation becomes worse for African women, who still exist in male-dominated communities in which the power over sexual relationships and their safety lies in the hands of their husbands and male partners. In many African countries, women do not have the power to demand condom use or fidelity from their husbands without the risk of being beaten or ostracized by their communities. According to a World Health Organization survey, roughly 25% of African women do not disclose their HIV status for fear of being beaten or abandoned.

Further complicating matters, women are often the first to know about their HIV status because of antenatal testing, and are usually blamed for bringing HIV into the home. An unintended consequence of these transmission laws is the exacerbation of these unequal power relations, further marginalizing women and potentially deterring them from seeking counseling or treatment.

Recognizing concerns that transmission statutes are ineffective tools for altering sexual behavior, violate medical privacy rights, and add stigma and fear to a disease that already bears a scarlet letter, UNAIDS earlier this month drafted a new policy brief urging governments to limit criminalization to cases of intentional transmission.

More specifically, the brief calls on legislators and policymakers to reject the application of criminal law to cases in which there is no significant risk of transmission, or in cases where an individual is unaware of his or her HIV positive status, discloses his or her HIV positive status to a sexual partner, or takes reasonable precautions to avoid transmission, such as practicing safer sex.

In the absence of a public health rationale for invoking criminal law against those who transmit HIV, both Justice Cameron and UNAIDS have suggested punishment and retribution are the driving forces of criminal law efforts, adding that safety and prevention must come first.

According to Hon. Justice Michael Kirby of the High Court of Australia "There will be calls for 'law and order' and a 'war on AIDS.' Beware of those who cry out for simple solutions, for [in] combating HIV/AIDS there are none."


Friday, 15 February 2008

South Africa: HIV-positive father accused of attempted murder for raping son

An HIV-positive father is on trial in the South African capital, Pretoria, for the rape and attempted murder of his ten year-old son, according to a report from the South African Press Agency.

The charge sheet alleges the father had not only sodomised the boy but also attempted to murder him because he knew he was HIV-positive at the time.
The full story, from iol.co.za, is below.

Father accused of raping his own son

Judgement will be delivered on Thursday in the Pretoria High Court trial of a 29-year-old Mamelodi father, who is accused of attempting to murder and rape his own son, the court heard on Wednesday.

The father pleaded not guilty to the charges, claiming he was innocent and had been "framed", but did not testify in his own defence.

His frail-looking son, who is now ten years old, earlier this week testified through an intermediary about his alleged ordeal at his father's hands.

The charge sheet alleges the father had not only sodomised the boy but also attempted to murder him because he knew he was HIV-positive at the time.

He allegedly went to fetch his son after not seeing him for a long time, but then went drinking, taking the child along. He allegedly made several attempts to have intercourse with the boy, but was reprimanded and prevented from doing so by friends.

He however allegedly succeeded in sodomising the little boy later on in the evening.

The child's mother testified that she had taken him to the clinic after realising that he could not sit when she tried to bathe him.

The boy's uncle said he had been woken that night by the sound of someone screaming.

He found the accused being assaulted by his friends and was told that the accused's son alleged he had been raped.

The uncle said he knew that the accused was HIV positive before the incident and had seen the medicine he used.

A childhood friend of the accused on Wednesday testified that the accused had been drinking that night and at one stage said he had an erection and wanted to have sex with his son, which was why he had followed them home later that night.

The friend had intervened when he saw the accused slapping his son, but said he had not seen the accused choking his son as well, as the boy had alleged.

Later that evening, he violently pulled the accused off his son after finding him on top of the boy with his pants down behind an outside toilet.

The child's pants had also been pulled down and he had difficulty walking.

The boy was later taken to the police station.

Tuesday, 8 January 2008

South Africa: New rape laws mandate HIV testing for alleged offender

From March South Africa's new Sexual Offenses Amendment Act will allow victims of rape to apply for a court order to force their alleged attacker to take an HIV (antibody?) test.

"The bill was approved by parliament before it went into recess last month after being held up for more than a year because of technical legal problems over the clauses about compulsory HIV tests for sexual offenders.

The revised legislation said all victims should be entitled to apply for a court order to compel the alleged sex offender to take an AIDS test, and should get free medication immediately after the rape to reduce the risks of contracting the virus. Given the delay in HIV infection showing up in tests, many women currently face weeks of agonized uncertainty over whether their attacker carried the deadly virus.

The provisions on AIDS testing will take effect in March because of the legal complexities involved, the Justice Ministry said."


Full story from the Associated Press here.

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