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.

Canada: Xtra publishes its anti-criminalisation piece-de-resistance

Just a week after Canada’s national gay paper, Xtra, published a radically anti-criminalisation interview on their website, Xtra.ca, comes their piece-de-resistance, Beyond the Courts: a smart, well-written and researched 5,000 word essay from queer Canadian writer/advocate Shawn Syms, whose previous writing on criminalisation and the HIV-positive/negative divide was equally insightful and thought-provoking.

In the piece – which will also be published in shorter form as the cover story of next month’s print edition of Toronto’s Xtra – Syms asks (and tries to answer) the question: How do we stop the spread of HIV without dividing our [unspoken HIV-positive versus HIV-negative and untested gay] communities?

Syms brings together many voices from Canada and abroad – including mine – to illustrate the “growing chorus of activists, civil-society advocates and community members [who are] rallying evidence to show that jailing people with HIV only quenches the individual and public thirst for retribution and blame—while failing to prevent onward HIV transmission.”

There’s much to recommend in the piece, but a few things stand out for me.

First, he turns the argument that the law protects HIV-negative people by punishing HIV-positive people for ‘victimising’ HIV-negative people on its head.

The media and police would have us believe that irresponsible people with HIV are out there victimizing others—but we should never forget that the reality is the other way around. People with HIV are an oppressed minority subject to frequent acts of discrimination by others who have power over them—including the accusers in criminalization cases.

Earlier in the piece, he explains how Canada’s criminalisation of HIV non-disclosure does this.

A vindictive person could use their knowledge of someone’s HIV status as a weapon against them. Many believe this is what happened last year in the case of “Diane,” a Montreal woman whose partner suddenly alleged she had not disclosed her HIV status once she pressed charges against him for domestic assault.

Some people with HIV have been threatened by people they’ve never even been intimate with. Fred Meikle of London, Ontario, says he had an exchange last year with an acquaintance in a gay.com online chatroom where the person stated, “I should call the police, tell them you didn’t disclose.” Meikle replied “We’ve never even had sex; you sat on my sofa and drank a beer.” He says the man replied, “Well, who do you think they will believe?”—highlighting the rift in social power between HIV-negative and positive gay men.

Understandably, this creates a climate of literal “terror” for people with HIV, says Angel Parks, Positive Youth Outreach coordinator for the AIDS Committee of Toronto (ACT). “This is spiraling out of control,” she says about the upswing in criminal charges. At a recent forum in Ottawa in June, she reports, people with HIV from across the country responded to the criminalization threat with “fear, shame, humiliation, and most of all confusion.” And at the weekly support group she coordinates, “individuals are scared… they don’t know to protect themselves” from the risk of bogus charges.

Now, Syms is not saying that all charges are bogus, but that the law as it had been created and is currently practised by the criminal justice system, is open to abuse. That relatively few cases have involved sex between men is irrelevent. It is the climate of fear and mistrust (on both sides) that worries him (and me).

He analyses this further later in the piece, when he rips apart the too-commonly-believed gay community myth that HIV only affects “hardcore risk takers” whose unbridled ‘barebacking’ turns them into “sexual predators.”

The common perception goes something like this. HIV is extremely dangerous, inevitably fatal and not that hard to get. People with HIV have an obligation to tell all partners before any sexual activity at all—because it’s not possible to consent to sex without knowing if the other person has HIV.

To this way of thinking, anyone who doesn’t disclose is dishonest, untrustworthy and probably addicted to barebacking—after all, if their sense of ethics and responsibility were not so obviously lacking, they wouldn’t have contracted the virus in the first place. And someone like that wouldn’t think twice about giving someone else HIV, on purpose. So the solution is to avoid these people, like the plague.

[…]

But gay men haven’t done a good job of passing on the harm-reduction message to new generations, says Richard Berkowitz, one of the originators of safe-sex education in 1983 and subject of the recent documentary Sex Positive. “Today, even progressive gay people fall into the trap of imagining that we are talking about sexual predators who deserve to be locked up.”

The perspective Berkowitz points out hinges upon seeing negative and positive gay men as fundamentally different from one another. This is a mistake, noted Sigma Research’s Ford Hickson in an address to a UK sexual health conference in March. What most often distinguishes positive and negative guys is not ethics or behaviour, but bad luck.

“HIV risk is widespread. It is not the case that a small group of hardcore risk takers account for the new infections,” said Hickson. “The transmissions that occur over the next year will be the unlucky ones in a large population each taking a few risks.”

Finally, he follows the lead of last week’s Xtra interviewee, Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), asking readers to get “angry and loud.”

As Justice Cameron of South Africa told those assembled at the Canadian HIV/AIDS Legal Network’s recent symposium, “some of the Canadian cases are so outrageous, I have wondered why there weren’t protestors outside the courtroom with t-shirts and placards and activists shouting inside the court room. Have you lost your activist fervour?”

Cameron is right. We need to rekindle the queer rage and sense of injustice that fuelled historic LGBT protests, from the response to the bathhouse raids, to the efforts of Gay CourtWatch in the eighties to protect gay men busted on sex-related charges, to the beginnings of the original AIDS activist movement.

And we need a coalition of negative, positive and untested queers and allies to carry out this effort. Criminalization is an extreme manifestation of HIV stigma—and it shouldn’t be only people with HIV who put themselves on the line to fight it. With tools ranging from placard and megaphones to Facebook and Twitter, we need to combat the abuses of the police, the justice system and the media, and demand access to appropriate testing resources and consistent and high-quality sex education for all, regardless of HIV status.

Kudos to Syms, and to Xtra‘s editorial director, Matt Mills, for this piece: the best I’ve seen yet on the issue as it relates to gay men in Canada (and light years ahead of how New Zealand’s gay press is dealing with the issue).

Read the full piece on Xtra.ca.

Canada: ‘Enough, this is it, no more’ says advocate

Today, Xtra.ca has an extraordinary interview with Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), that illustrates just how oppressed and under seige some HIV-positive Canadians (particularly gay men knowledgable about the law) are feeling about the approach of the criminal justice system to HIV non-disclosure before sex.

He is angry. So angry that he makes some pretty radical statements, including attacking his own!

One of those things [I disagreed with] is the way HALCO’s Ontario Working Group on Criminal Law and HIV approached the issue of HIV criminalization. Its position that criminalization — criminal charges against HIV-positive people for failure to disclose their serostatus to sex partners — may be called for in some instances is anathema to me. I will not accept it or agree with it.

I’ve read the Working Group’s position statement several times (and know and respect many of the people involved in the Group), and I can’t see anything in it that supports criminal charges for non-disclosure. It’s main message is: “The criminal law is an ineffective and inappropriate tool with which to address HIV exposure.”

He also suggests that anyone accused of non-disclosure engage in a one-person act of civil disobedience.

I’m suggesting to HIV-positive people that, if they find themselves charged in connection with failure to disclose allegations, they exercise their legal right to refuse to give statements that could end up being used against them in criminal court, that they should no longer cooperate with anyone, anywhere, anytime, or answer any questions about their sexual conduct…I’m not suggesting that anyone act irresponsibly. What I’m saying is it doesn’t matter what your actions are.

That this interview appears in a national gay forum, rather than one solely aimed at HIV-positive individuals, is remarkable (and brave not just of Bob Watkin, but also Xtra‘s editorial director, Matt Mills), but also somewhat problematic. If the pattern follows that of the UK, the majority of HIV-negative gay men support prosecutions, and even amongst HIV-positive individuals the sides are not clear-cut. Hence the rather strong comments (two so far, but it’s only just been published) from readers.

There’s no doubt in my mind that Canada (and Ontario in particular, where non-disclosure is now being charged as attempted murder ) is the front line in the fight against the criminalisation of HIV non-disclosure, exposure and transmission. What happens there may well determine the future for many other wealthy, low-prevalence countries with similar legal systems. The lines in the sand have been drawn, and Bob Watkin (and Xtra – which covers this issue almost every week: see also ‘Finding a way out of the HIV criminalization loop’ from September 10) is issuing a call to arms.

Below are highlights of Bob Watkin’s interview with Matt Mills.

I cannot condone in any way the conduct of anyone that results in someone else being infected. But there is no justification at all — anyway, anywhere, anyhow — for the criminalization of HIV and AIDS.

[…]

What led us to this point is an abject failure of the public health system and its proven inability to deal with a chronic long-term disease, HIV…It may be very difficult for people to accept being locked up by public health but it’s much better to be locked away, treated and educated in a medical setting, than to be locked in a prison.

[…]

The charges boil down to allegations. There is no other evidence that is really relevant. In all of these situations, no one disputes that the sex occurred. Two people make an irresponsible decision, one of them happens to be HIV-positive. Only one of them is absolved and that just isn’t right.

All this has created an environment in which people are not getting tested. They are afraid to know. People who have means are leaving the country, getting tested elsewhere and in fact getting treatment elsewhere, so they don’t leave evidence of their HIV status.

We as HIV-positive people have to say, “Enough, this is it, no more.” Unless we start saying that as a group we’re just going to find our lives become more and more and more dreadful.

US: ‘It’s Criminal’, says POZ magazine; my HIV exposure round-up proves it is!

The October issue of POZ magazine is just out, and their cover story is about the criminalisation of HIV non-disclosure.

It’s a timely reminder that the US prosecutes more HIV-positive individuals than any other country in the world. They go after us not only for allegedly not disclosing our HIV status before sex but also for just being HIV-positive and having sex or doing other things that are so low on the scale of HIV transmission risks that criminal law involvement becomes a stigmatising over-reaction.

In fact, over the summer months I’ve been so overwhelmed with news reports of prosecutions from the States, that I’ve had something of a backlog. So, here’s a summary of what’s been happening in August and September.

  • August 14th: In Ocala, Florida, a 39 year-old woman was arrested for not disclosing her HIV status. The complainant was a 58 year-old man who had sex with her once, according to Ocala.com.
  • August 21st: In Palm Beach, Florida a 32 year-old woman was arrested for “committing prostitution while HIV-positive, a third-degree felony which can result in up to five years in prison”, according to The Palm Beach Post.
  • August 27th: In Oklahoma City, a 40 year-old man was arrested following a complaint from another man for not disclosing his HIV status before oral sex. He was charged with “knowingly engaging in conduct reasonably likely to transfer HIV”, according to newsOK.com.
  • September 3rd: In Memphis, Tennessee, a burglary suspect was charged with criminal HIV exposure after he “he spit blood in the officer’s face and said that he was HIV-positive” during his arrest, according to myeyewitnessnews.com.
  • September 11th: In Florence, South Carolina, a 35 year-old was arrested for HIV exposure after a complainant went to police (sex of both individuals unknown). “A person who violates this law is guilty of a felony, and upon conviction, can be fined up to $5,000 or serve up to 10 years in jail,” according to WMBFnews.com.
  • September 11th: In Dayton, Ohio a 25 year-old “male prostitute is facing felony soliciting and prostitution charges after he was picked up by an undercover cop working as part of a prostitution sting,” reports the Dayton Daily News. His name, face and HIV status was also published.
  • September 17th: In Fort Smith, Arkansas, a 33 year-old man “charged with knowingly exposing a person to HIV is also the lone suspect in a 2002 homicide in North Carolina”, reports the Times Record. The 2002 murder allegedly took place after the female victim discovered the man’s HIV status and threatened charges.
  • September 21st: In Mattoon, Illinois a 42 year-old man faces HIV exposure charges after a 19 year-old woman complained to police that “he engaged in sex with her, knowing he was HIV positive”, reports the Journal-Gazette Times-Courier.

Admittedly, the Arkansas case does warrant some criminal justice system investigation (if only to finally prove or disprove these 2002 allegations). It is also the only one where the complainant is acually HIV-positive. I have a feeling we’ll be hearing a lot more about this case if and when it goes to trial!

Back to the POZ piece. Page 1 features an overview of US laws; why POZ believes they are wrong and out-of-date; and what HIV-positive individuals can do to protect themselves from prosecution.

If you can get a person to indicate that you have made it perfectly clear that you have HIV, and do so in front of a witness, such proof of disclosure may hold up in court. But unfortunately, many states do not define what constitutes “informed consent.”

[…]

Of course, it is also a good idea to use a condom. While not a legal defense in some states, condoms reduce the risk of spreading HIV. Historically, fewer people have been prosecuted for nondisclosure prior to sex when a condom was used.

Most important, the HIV community must lobby local, state and federal government officials and lawmakers to rewrite (or better yet, abolish) the laws that criminalize HIV transmission. Contact your mayor, your congress people, your state senators and their staff. Educate them about HIV risks and transmission, and hold their feet to the fire to ensure that all people living with HIV are not unfairly punished.

Page 2 features “comments posted on POZ.com by readers in response to various news stories and opinion pieces on the subject of criminalizing people living with HIV.”

Page 3 has an excellent interview by Regan Hoffman with Catherine Hanssens, executive director of The Center for HIV Law and Policy. Highlights include:

“It’s hard to think of any disease or context in which someone would be put away for 20 years for what is basically an act of consensual sex where no one has been harmed. But the reporting in the mainstream press [about these cases] is informed by huge misunderstandings about how HIV is transmitted and a lot of ignorance about whom HIV affects and what drives the epidemic.”

“The things that you would want to do to protect yourself and your partner are not necessarily the things that are going to be rewarded in the courtroom. There is a disincentive to disclose because proof is a difficult thing.”

“Disclosure is not the equivalent of latex… The thing that stops transmission is latex, not words.”

“The notion that we need a whole other set of standards and separate laws [to prosecute the nondisclosure of HIV] reveals that it’s not the intent to harm that results in a lot of prosecutions, but rather the ignorance about how transmissible HIV is and a revulsion for people who are affected by HIV.”

Couldn’t have said it better myself!

Canada: Two more arrests as Xtra analyses criminalisation laws

In the past few weeks, there have been two further arrests in Canada for sex without condoms and disclosure. In Alberta, a 32 year-old Calgary man faces eleven counts of aggravated sexual assault based on a short-lived relationship he had with a woman over a couple of weeks: he was charged for each time they had sex. And in Ontario, police issued a warning/’fishing expedition’ to women who may have had sex with a 32 year-old Peel man who they arrested and charged with aggravated sexual assault and sexual interference for having sex with someone under-age.

In the first of two articles to be published in Canada’s GLBT paper, Xtra, Dale Smith examines the issues facing HIV-positive Canadians (including those who may be unaware they are infected) as arrests and prosecutions continue unabated.

The Xtra article includes interviews with Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network; Glenn Betteridge, a legal and policy analyst who has done work with the Ontario HIV Treatment Network; Isabel Grant, law professor at the University of British Columbia; and Barry Adam, senior scientist and director of prevention research with the Ontario HIV Treatment Network.

Highlights include these quotes:

“Canada was one of the first countries to start laying charges with respect to HIV exposure or transmission. It was the first Supreme Court in the world that had ever considered the issue.”

Alison Symington on Canada’s role as world leader in criminalisation.

“We’re starting to understand more and more about the likelihood of transmission of HIV, and it’s not as high as I think some people assume that it is. Particularly if there’s anti-retroviral medications, it’s not immediately obvious that one act of sexual intercourse is likely to cause someone’s death. I think it’s a real stretch to make this murder, not only on policy grounds, but also on the narrow interpretation of Section 231.”

Isabel Grant on the lack of relevance between sexual HIV transmission and Section 231, which says that death as a result of aggravated sexual assault becomes first-degree murder.

“My worry is that the courts’ fixation on the issue of disclosure presumes that they’re discouraging transmission, but I don’t think that it works out in real life quite the way they think it does. People who disclose actually have a poorer record of safe sex than those who don’t, and [that] makes a certain amount of sense because disclosure is about trying to figure out if you can sero-sort or not, to find out if the other person is the same sero-status that you are. It becomes an invitation for unsafe sex.”

Barry Adam on why mandating disclosure is harmful.

“The law says that if you are suspicious, and you deliberately close your mind to the possibility of finding out, that’s considered wilful blindness and we treat you the same way as if you know. In this context, let’s say I’m not going to get tested for HIV because I really don’t want to know if I have it, because then nobody can charge me for passing it on. If that suspicion arises in your mind, and you deliberately close your mind to finding out, the law says you’re just as blame worthy.”

Barry Adam on not testing to avoid prosecution.

To read the full article on the Xtra website, click here.

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

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

 

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

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

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

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

Discourages testing, delays treatment

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

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

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

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

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

Women lose more

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* not her real name.

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

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

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

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

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

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

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

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

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

US: Iowa’s criminal HIV transmission law placed under the microscope

A series of articles published this week in the Iowa Independent, have scrutinised Iowa’s poorly-written, erroneously named ‘criminal transmission of the human immunodeficiency virus’ law (transmission is not required to be found guilty) following the May sentencing of 34 year-old Nick Rhoades to 25 years in prison after he pleaded guilty to a one-off act of non-disclosure with another man he met online. The articles suggest that there is a growing, grass-roots movement to reform the law, confirmed by a regular reader of my blog from Iowa, who tells me “some disparate elements are forming to get this law off of Iowa’s books. My state senator seems to be on board and hopefully we can all get ourselves together to form a lobby by this fall to ready ourselves for the legislative session in January.”

Journalist Lynda Waddington’s first article for the Iowa Independent, published last Monday, focuses on the Rhoades case and the history of Iowa’s HIV-specific law passed in 1998, the same year that Mr Rhoades was diagnosed HIV-positive. Since then, 36 people have been charged of whom 24 have been convicted. Ten men and two women are currently in an Iowa prison serving sentences up to 25 years for this ‘crime’.

She critiques the law for being poorly-written, allowing it encompass sexual acts with a “minuscule risk of transmission — such as kissing”. She then writes:

Further, Iowa law not only mandates informed consent of the specific act, but for the person consenting to have knowledge “that the action of exposure could result in transmission.” While this particular phrase could have been added as a protection for individuals with mental deficiencies, could it also be used to prosecute someone who engaged in a low-risk intimate activity without realizing that the activity could potentially result in transmission?

Indeed, sources close to the Rhoades case have informed me that oral sex was the only HIV transmission risk that occurred between the two men, although the Court is vague on this, and the police report too squeamish to mention anything other than “intimate contact”.

In her second article, published on Wednesday, Waddington examines further the impact of this law in Iowa, which she notes has been upheld by the Iowa Supreme Court three times.

She quotes Rhea Van Brocklin, community relations director for the AIDS Project of Central Iowa who states that the law does not appear to dissuade people at high-risk of HIV from testing:

“It could be hearsay within the community that people are afraid to get tested because of the law, but our agency specifically hasn’t seen that,” she said. “In fact, we doubled our testing numbers in 2008. We had a goal to test between 400 and 500 high-risk individuals and we tested about 800 last year. What we see is that people are taking HIV seriously and they want to know their status.”

[This is extremely interesting since I’m currently researching the claim made by many anti-criminalisation advocates that criminal HIV transmission laws deter people from testing, and, from what I am reading, there is no evidence to support these claims.]

The rest of the second article explores whether Iowa’s law should be revised or repealed. She interviews former Iowa representative, Ed Fallon, who voted for the law in 1998, but who now “believes that it might be time for the state to revisit criminal transmission laws.”

“It seems to me that since it is now 11, almost 12, years later, it wouldn’t be bad time to take a look at it again,” said Fallon, who admits he had some reservations before casting his affirmative vote for the bill. “I can think of so many bills we worked on that in the following year, or a few years later, we were rewriting or revisiting. … So, yes, surely the are some tweaks or changes that the legislature could consider relevant to this law, especially with all the new knowledge we have of the disease.”

He recalls that the impetus to pass the law was based on the State accessing Ryan White HIV funding from the Federal Government. However, the homophobia that informed the banning of gay marriage in the same legislative session may also have played a role.

“Certainly, in terms of that conversation, AIDS was a ‘gay disease,’ and we had to crack down on the lifestyle that helped spread the disease. So, there may have been a connection [between criminal transmission and same-sex marriage], but I honestly can’t recall if those types of sentiments continued into this debate.”

The discussion around reform or repeal is the subject of Waddington’s third article published on Friday. She interviews Bob Rigg, an experienced academic who is part of a committee examining the reorganising of Iowa’s criminal code, who warns advocates fighting for reform to be careful what they wish for.

“When people start playing around with the criminal code or they start saying that we should amend our Constitution, I’m like, ‘No, we shouldn’t.’ I err on the side of caution,” he said. “If you think what you’ve got is bad, be careful. You just might end up with something even worse.”

He suggests that a more pragmatic (if extremely conservertive), softly-softly approach might produce better outcomes for individuals convicted under Iowa’s ‘criminal transmission of HIV’: let the judges do what they do, but since the prison authorities have leeway to release individuals on parole, it is they who end up deciding how long a 25 year sentence really is.

“Just because a defendant is sentenced to 25 [years], doesn’t mean he or she is going to serve 25. Some of these individuals could be paroled in as little as two.”While state intervention to reduce prison sentences may not be an intended consequence of the initial legislation, Rigg argues that it can have “a moderating effect” on an otherwise extreme sentence.

“It is the judge’s job to sentence them. It is the DOC’s job to evaluate them for release,” he said.

Of course, this doesn’t the address the fact this is still a discriminatory, outdated law. The article ends somewhat downbeat, however, noting that law reform can be a long, long road.

A comment after the last article, from an HIV-positive Iowan, highlights that such long-term goals are absolutely necessary:

If it’s not possible to eliminate the HIV law in Iowa, amend it to add intent; probably most persons in Iowa that know their HIV status (and you have to know it to be prosecuted under the law) are under treatment and extremely low infection risk. When I was considered for prosecution under the law I was defending myself from an assault–I bit someone on the finger (he stuck his finger in my mouth, actually). Now, it’s not likely I could infect someone in the normal way, let alone a finger bite and yet THREE of Johnson County assistant DA’s recommended I be prosecuted under Iowa’s HIV law.

New Zealand: ‘HIV predator’ is named; seventh complainant adds further charges

The man dubbed the ‘HIV predator’ had his name and face splashed all over New Zealand’s media today in what has become the biggest criminal HIV transmission case in NZ history. There are now seven complainants (six men, one woman) of whom five are alleging that the man was source of their HIV infection.

As well as his name and several photos, today’s report on GayNZ.com includes many of the details left out of their earlier reporting, including his online dating profile nicknames and the name of the street he lived on in Auckland. They also highlight that HIV testing centres are anticipating a rise in HIV testing today and over the weekend as people recognise the man. But surely this is as much a ‘fishing expedition’ as a public health warning.

Today’s story on TVNZ.com includes a quote from Bruce Kilmister, chief executive of NZ’s PLHIV organisation, Body Positive

[Kilmister] said the alleged charges significantly changed a lot of people’s lives. “Everybody who has had an association with him in the past should come forward for a test. But it’s also a timely reminder that everybody has a responsibility to keep themselves safe and follow safe sex practice. HIV positive people have an added responsibility not to transmit the virus, and the best way they can do that is to have safe sex.”

To put the case into perspective, according to data from New Zealand’s Ministry of Health (AIDS New Zealand Issue 63 – March 2009 ) only 184 people were newly diagnosed with HIV in 2008 – of whom 91 were acquired via sex between men, but only 70% of these were acquired in New Zealand, most of whom lived in Auckland – and this was the highest number ever recorded. Since there are now five gay men (aged between 17 and 31) who claim the accused man infected them, this ‘cluster’ alone would represent around 8% of new diagnoses.

Adding to the panic is the 19 year-old female complainant (who has not tested positive). Between 1999-2008 there were only 52 women diagnosed with HIV that was heterosexually acquired in New Zealand. The TVNZ article continues

The fact a woman had allegedly been affected raised concerns the virus may have spread into the heterosexual community. “The reality is that most women think of the pill as the beginning and end of safe sex. It needs to be a message that goes right across the broad spectrum,” [said Kilmister.]

If this man is the source of five (or possibly more) infections, this certainly is a public health concern, and the criminal justice system involvement is, indeed, a result of the failure of public health. The call for new and better public health laws in New Zealand are understandable, and certainly would be better than the current system which required media and CJS intervention.

However, last year the NZ Ministry of Health published a study examining HIV prevalence in New Zealand, both diagnosed and undiagnosed (AIDS New Zealand Issue 62 – November 2008) which found a prevalence of 4.4% amongst men who have sex with men attending sexual health clinics, of whom only half were diagnosed. Undiagnosed people can’t disclose – and cannot be publically (or even privately) named and shamed as a way to warn others about specifically avoiding them. Undiagnosed people may also be having as much – or more – ‘promiscuous’ sex as the so-called ‘HIV predator’.

Earlier in the week, TVNZ ran an in-depth look at the case and interviewed Michael Stevens, the man who orginally brought the allegations to GayNZ.com and Simon Harger-Forde, director of HIV prevention at New Zealand AIDS Foundation. It makes for uncomfortable viewing by making patient confidentiality appear to be something bad, and conflating two issues (non-disclosure resulting in HIV exposure or transmisison being a criminally liable act and the lack of an effective public health response) without any examination of the issue of shared responsibility for sexual health. Only at the very end does Mr Harger-Forde say that laws don’t protect anyone, and that everyone should be using condoms.

Finally, an interesting blog posting from a feminist commentator, which highlights other concerns – that this case will end up leading to further stigmatisation of gay men and people living with HIV in New Zealand, and concludes:

Safe sex is crucial, of course, but it’s also crucial that the … case doesn’t become an exercise in victim-blaming, with homophobic overtones. And it’s also important that [his] behaviour doesn’t prompt a backlash against HIV positive people, who have the same needs for affection, companionship and intimacy as the rest of us.