Canada: New film explores the impact of using sexual assault law to prosecute HIV non-disclosure

This week sees the release of an important new short film from the Canadian HIV/AIDS Legal Network.

Consent: HIV non-disclosure and sexual assault law interrogates whether criminalising HIV non-disclosure does what the Supreme Court of Canada believes it does – protect sexual autonomy and dignity – or whether, in fact, it does injustice both to individuals charged and to the Canadian criminal justice system’s approach to sexual violence.

Produced together with Goldelox Productions, with whom the Legal Network also collaborated on their powerful 2012 documentary’ Positive Women: Exposing Injustice, this 28-minute film features eight experts in HIV, sexual assault and law whose commentary raises many questions about HIV-related legal developments in Canada.

At a time when society seems to be taking the prevalence of sexual

violence and rape culture more seriously, this film dares to ask some

difficult questions about its limits in the law. The law of sexual

assault is intended to protect women’s sexual autonomy, equality

and dignity, yet as applied with respect to alleged HIV non-disclosure,

these values are not necessarily being advanced. Through expert

testimonies, Consent shines a light on the systemic obstacles women

face in disclosing their HIV status, points to the dangerous health

and human rights outcomes of applying such a harsh charge as

aggravated sexual assault to HIV non-disclosure, and makes the

argument that the law needs to better protect those who are living

with and vulnerable to HIV. Consent demonstrates that advocacy

efforts opposing the overly broad criminalization of HIV non-disclosure

must address the use of sexual assault law and that such efforts must

do so alongside feminist allies.

From: http://www.consentfilm.org/about-the-film/

The Canadian HIV/AIDS Legal Network has for some time been exploring the implications of using sexual assault law to prosecute HIV non-disclosure cases, given the marked differences between the types of conduct that are typically referred to as sexual assault (including rape) and HIV non-disclosure cases.

In April 2014, the Legal Network convened leading feminist scholars, front-line workers, activists and legal experts for a ground-breaking dialogue on the (mis)use of sexual assault laws in cases of HIV non-disclosure. Consent: HIV non-disclosure and sexual assault law was filmed during this convening.

Their analysis demonstrates that the use of sexual assault law in the HIV non-disclosure context – where the sexual activity is consensual other than the non-disclosure – is a poor fit and can ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence.

The Consent website ( in English / in French ) also lists future screenings across Canada, which will be accompanied by panels and workshops, as part of an ongoing strategy to build up allies among women’s rights advocates for the longer-term work.

A discussion guide will also soon be available.

Uganda: Community Health Alliance Uganda (CHAU) board chairman, Dr Stephen Watiti calls for repeal of clauses on disclosure, mandatory testing and transmission in HIV and AIDS Prevention and Control Act

Community Health Alliance Uganda (CHAU) board chairman, Dr Stephen Watiti, has called for an amendment of the 2014 HIV and AIDS Prevention and Control Act.

Watiti, who was speaking at the launch of CHAU’s 2016-2020 Strategic Plan last week in Kampala, wants clauses on disclosure, mandatory testing and intentional transmission repealed.

CHAU is one of the local non-governmental organizations (NGOs) involved in anti-HIV/Aids campaigns in the country. Enacted last year amidst protests from civil society and activists, the HIV and AIDS Prevention and Control Act criminalizes intentional transmission of HIV, enforces mandatory testing and requires spouses to disclose results to their partners, among others.

“In most of our communities if a woman tested positive and told her husband as stipulated in this law, it sparks domestic violence and stigmatization. So, my appeal is to review and scrap such clauses,” said Watiti, also plans to join elective politics in his bid to push for the aforesaid changes in parliament next year.

He also noted that it would be difficult to prove whether someone set out to intentionally infect their partners in a love affair.

“Preventing new infections should be a responsibility of both HIV positive and negative people,” Watiti argued, adding that testing should be voluntarily because making it mandatory is a violation of human rights.

His comments were directed to chief guest at the function, Dr Chris Baryomunsi, the state minister for health in charge of general duties and also MP for Kinkiizi East.

In response, Baryomunsi assured guests the parliamentary health committee would consider such appeals upon reviewing the HIV/Aids Act and also address concerns about the NGO Bill, which many civil society activists claim is intended to curtail their work.

Noting that some NGOs such as CHAU have done a good job as government partners in the battle against HIV/Aids, Baryomunsi said they would consider progressive provisions to ensure work is not stifled.

Baryomunsi explained that the law is intended to clamp down on NGOs that registered to health-related work but deviate from their mandate along the way.

Baryomunsi lauded the organization for its work of supporting people living with HIV in 20 districts including Kayunga, Luweero, Nakasongola, Mukono, Wakiso, Kamuli, Mayuge, Mityana, Gulu and Mbarara.

CHAU also provides family planning and sexual reproductive health education services.

AFAO Policy Analyst Michael Frommer highlights the many types of anti-HIV criminalisation advocacy undertaken by the Canadian HIV/AIDS Legal Network

The 8th IAS Conference on HIV Pathogenesis, Treatment and Prevention (IAS 2015) is on in Vancouver, Canada, this week. AFAO Policy Analyst Michael Frommer reports back on the pre-conference community forum. 

Key human rights challenges, such as criminalisation of HIV transmission, were centre stage at the IAS community forum on Saturday 18 July.

Alison Symington, co-director of Research and Policy at the Canadian HIV/AIDS Legal Network (Legal Network), described the challenge of advocacy and policy work in Canada in the face of ongoing criminalisation.

Aside from the significant justice issues when charges are laid for HIV non-disclosure, exposure or transmission, she also identified the serious of issue of people threatening their partners with an allegation, when there is relationship conflict, and how this in particular affects women who may be in abusive relationships.

In Canada, as in Australia, most of the people charged to date have been male heterosexuals, with a strong racialised element – mainly Black men. Since the mid-1990s, there has been an increase in the proportion of gay men charged.

Despite the fact that men make up the majority of those charged, Alison has investigated the pernicious effects of criminalisation on women. She explained how the ‘informal’ criminalisation of HIV positive mothers works, with their sense that their parenting is being under surveillance.

She outlined a huge range of advocacy and policy activities being undertaken by the Legal Network in response.

1) Legal defence strategy and intervention

Tactics include contacting the defence lawyers of individuals who have been charged with criminalisation related offences. The Legal Network also intervenes in the formal court proceedings and provides relevant scientific evidence.

2) Campaigns and advocacy

This has involved the Legal Network’s participation in the ‘Stop the Witch Hunt’ campaign targeting prosecutors, undertaken in collaboration with the AIDS Action Now. Legal Network staff also sit in court during trials, to make clear to judges/prosecutors that the community is monitoring developments.

3) Raising awareness/education

This education work is targeted at raising understanding among judges and among the community.

4) Working with doctors/scientists

A key piece of work was the Canadian Scientist Statement on HIV transmission risk. The Legal Network organised for 70 leading scientists from across Canada to sign this document which explained clearly the actual levels of risk of HIV transmission.

5) Distinguishing between HIV non-disclosure and sexual assault

HIV non-disclosure/exposure/transmission charges in Canada are made under the Canadian criminal law as an aggravated charge using the sexual assault provisions. The Legal Network aims to work with domestic violence/feminist organisations to ensure that HIV-related jurisprudence does not circumvent the appropriate application of sexual assault laws.

6) Prosecutorial guidelines

This has been an ongoing area of work across Ontario, Quebec and British Columbia. Ontario most recently advocated for the adoption of guidelines, but without adequate community input the Government drafted guidelines were dropped. There is still a desire to pursue appropriately formulated guidelines in future.

Marama Pala (in the audience) highlighting Australia’s public

health response to MC Dazon Dixon Diallo.

The comprehensive advocacy and policy response taken by the Canadian Legal Network is extremely impressive.

With one of, if not the highest rates per capita of criminalisation in the world, it is obviously very necessary in the Canadian context.

While some circumstances differ, there are a great many ideas that may be drawn upon for responding to HIV criminalisation in the Australian context.

World Health Organization publishes analysis of impact of overly broad HIV criminalisation on public health

A new report from the World Health Organization, Sexual Health, Human Rights and the Law, adds futher weight to the body of evidence supporting arguments that overly broad HIV criminalisation does more harm than good to the HIV response.

Drawing from a review of public health evidence and extensive research into human rights law at international, regional and national levels, the report shows how each country’s laws and policies can either support or deter good sexual health, and that those that support the best public health outcomes “are [also] consistent with human rights standards and their own human rights obligations.”

The report covers eight broad areas relating to sexual health, human rights and the law, including: non-discrimination; criminalisation; state regulation of marriage and family; gender identity/expression; sexual and intimate partner violence; quality of sexual health services; sexuality and sexual health information; and sex work.

The authors of the report note that it provides “a unique and innovative piece of research and analysis. Other UN organizations are examining the links between health, human rights and the law: the United Nations Development Programme’s (UNDP’s) Global Commission on HIV and the Law published its report in 2012, and the Office of the High Commissioner for Human Rights (OHCHR) and United Nations Special Rapporteurs regularly report to the Human Rights Council on the impact of laws and policies on various aspects of sexual health. Nevertheless, this is the first report that combines these aspects, specifically with a public health emphasis.”

The points and recommendations made relating to overly broad HIV criminalisation (italicised for ease of reference) are included in full below.

Executive Summary: The use of criminal law (page 3)

All legal systems use criminal law to deter, prosecute and punish harmful behaviour, and to protect individuals from harm. However, criminal law is also applied in many countries to prohibit access to and provision of certain sexual and reproductive health information and services, to punish HIV transmission and a wide range of consensual sexual conduct occurring between competent persons, including sexual relations outside marriage, same-sex sexual behaviour and consensual sex work. The criminalization of these behaviours and actions has many negative consequences for health, including sexual health. Persons whose consensual sexual behaviour is deemed a criminal offence may try to hide it from health workers and others, for fear of being stigmatized, arrested and prosecuted. This may deter people from using health services, resulting in serious health problems such as untreated STIs and unsafe abortions, for fear of negative reactions to their behaviour or health status. In many circumstances, those who do access health services report discrimination and ill treatment by health-care providers.

International human rights bodies have increasingly called for decriminalization of access to and provision of certain sexual and reproductive health information and services, and for removal of punishments for HIV transmission and a wide range of consensual sexual conduct occurring between competent persons. National courts in different parts of the world have played an important role in striking down discriminatory criminal laws, including recognizing the potentially negative health effects.

3.4.5 HIV status (pages 22-23)

Although being HIV-positive is not itself indicative of sexual transmission of the infection, individuals are often discriminated against for their HIV-positive status based on a presumption of sexual activity that is often considered socially unacceptable.

In addition, in response to the fact that most HIV infections are due to sexual transmission, a number of countries criminalized transmission of, or exposure to, HIV, fuelling stigma, discrimination and fear, and discouraging people from getting tested for HIV, thus undermining public health interventions to address the epidemic.

Even where persons living with HIV/AIDS may be able, in principle, to access health services and information in the same way as others, fear of discrimination, stigma and violence may prevent them from doing so. Discrimination against people living with HIV is widespread, and is associated with higher levels of stress, depression, suicidal ideation, low self-esteem and poorer quality of life, as well as a lower likelihood of seeking HIV services and a higher likelihood of reporting poor access to care.

HIV transmission has been criminalized in various ways. In some countries criminal laws have been applied through a specific provision in the criminal code and/or a provision that allows for a charge of rape to be escalated to “aggravated rape” if the victim is thought to have been infected with HIV as a result. In some cases, HIV transmission is included under generic crimes related to public health, which punish the propagation of disease or epidemics, and/or the infliction of “personal injury” or “grievous bodily harm”.

Contrary to the HIV-prevention rationale that such laws will act as a deterrent and provide retribution, there is no evidence to show that broad application of the criminal law to HIV transmission achieves either criminal justice or public health goals. On the contrary, such laws fuel stigma, discrimination and fear, discouraging people from being tested to find out their HIV status, and undermining public health interventions to address the epidemic. Thus, such laws may actually increase rather decrease HIV transmission.

Women are particularly affected by these laws since they often learn that they are HIV-positive before their male partners do, since they are more likely to access health services. Furthermore, for many women it is either difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences, and they may therefore face prosecution as a result of their failure to disclose their status. Criminal laws have also been used against women who transmit HIV to their infants if they have not taken the necessary steps to prevent transmission. Such use of criminal law has been strongly condemned by human rights bodies.

Various human rights and political bodies have expressed concern about the harmful effects of broadly criminalizing the transmission of HIV. International policy guidance recommends against specific criminalization of HIV transmission. Human rights bodies as well as United Nations’ specialized agencies, such as UNAIDS, have stated that the criminalization of HIV transmission in the instance of intentional, malicious transmission is the only circumstance in which the use of criminal law may be appropriate in relation to HIV. States are urged to limit criminalization to those rare cases of intentional transmission, where a person knows his or her HIV-positive status, acts with the intent to transmit HIV, and does in fact transmit it.

Human rights bodies have called on states to ensure that a person’s actual or perceived health status, including HIV status, is not a barrier to realizing human rights. When HIV status is used as the basis for differential treatment with regard to access to health care, education, employment, travel, social security, housing and asylum, this amounts to restricting human rights and it constitutes discrimination. International human rights standards affirm that the right to non-discrimination includes protection of children living with HIV and people with presumed same-sex conduct. Human rights standards also disallow the restriction of movement or incarceration of people with transmissible diseases (e.g. HIV/AIDS) on grounds of national security or the preservation of public order, unless such serious measures can be justified.

To protect the human rights of people living with HIV, states have been called on to implement laws that help to ensure that persons living with HIV/AIDS can access health services, including antiretroviral therapy. This might mean, as in the case of the Philippines, for example, explicitly prohibiting hospitals and health institutions from denying a person with HIV/AIDS access to health services or charging them more for those services than a person without HIV/AIDS (167).

International guidance also suggests that such laws should be consistent with states’ international human rights obligations and that instead of applying criminal law to HIV transmission, governments should expand programmes that have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative.

3.6 Legal and policy implications (pages 29-30)

5. Does the state consider that establishing and applying specific criminal provisions on HIV transmission can be counter-productive for health and the respect, protection and fulfilment of human rights, and that general criminal law should be used strictly for intentional transmission of HIV?

The full report can be downloaded from the WHO’s Sexual and Reproductive Health website.

International Community of Women Living with HIV (ICW) publish updated position statement on overly broad HIV criminalisation

The International Community of Women Living with HIV (ICW) have published an updated position statement on the criminalisation of women living with HIV for non-disclosure, potential or perceived exposure, and transmission.

The statement highlights many problems with overly broad HIV criminalisation, but is notable for singling out issues that specifically relate to women living with HIV:

Critically, rather than reducing transmission of HIV, fear of prosecution may deter women from accessing needed treatment care and support, discourage disclosure, and increase vulnerability of women to violence…

Criminalization is often framed as a mechanism to protect women who are experiencing intimate partner violence or sexual assault. However, in practice there same laws intended to protect women often place them in increased risk for violence and increasing stigma surrounding HIV…

The criminalization of mothers for HIV transmission and/or exposure serves to further increase stigma for positive women who want to have children or who are pregnant, by blaming women for transmission.

ICW recommends the following:

  • Repeal laws that criminalize non-intentional HIV exposure or transmission, particularly those that single out women living with HIV or people living with HIV for prosecution or increased punishment solely based on their HIV status.
  • Empower women to know about the criminal context of HIV transmission and exposure.
  • Enact legislation that promotes gender equality in the criminal justice system.
  • Remove all laws that disproportionately target women living with HIV and marginalized groups.
  • Promote community based awareness campaigns to address criminalization as a human rights violation.
  • Train health care providers, and other support workers to ensure that confidentiality for women living with HIV is protected.
  • Increase legal support for women living with HIV facing prosecution under these harmful laws.

Read the full position statement below.

ICW Position Statement 2015 CRIMINALIZATION OF WOMEN LIVING WITH HIV: NON-DISCLOSURE, EXPOSURE, AND TRANSMI…

Alone But Together
Women and Criminalisation of HIV

(15 min, Zimbabwe Lawyers For Human Rights, Zimbabwe, 2014)

This video explains why overly broad HIV criminalisation harms women, and highlights the issue with an interview with a woman who is fighting her conviction for allegedly infecting her husband.

Malawi: High Court rules that mandatory HIV testing is unconstitutional

By Anneke Meerkotter, Southern Africa Litigation Centre (SALC) and Ian Southey-Swartz, Open Society Initiative for Southern Africa (OSISA)

In 2009, a group of women, presumed to be sex workers, was as part of a police sweeping exercise in Mwanza, Malawi. The women were taken to the Mwanza District Hospital where they were tested for HIV without their knowledge or consent, and in contravention of Malawi’s HIV policy. The women were then taken to the Mwanza Magistrates’ Court where some were charged with and convicted of “spreading venereal disease (HIV)”.

In 2011, eleven of these women filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests and the public disclosure of their HIV status in open court. The women argued that these actions by government officials violated their constitutional rights. Justice Dorothy nyaKaunda Kamanga handed down judgment on 20 May 2015.

Reading her judgment in court, Justice nyaKaunda Kamanga, said that forced HIV testing amounted to a violation of the applicants’ constitutional rights, including their right to privacy; their right to non-discrimination; their right to freedom from cruel, inhuman and degrading treatment; and their right to dignity. Justice Kamanga went a step further and requested a copy of the criminal court records in order to review the sentence the magistrate imposed on the applicants.

The case is illustrative of how the criminal justice system often impedes on accused persons’ rights to dignity, a fair trial and access to justice. In the present case, the matter was repeatedly delayed, including due to high caseloads and industrial action by judiciary personnel.

The judgment comes in the context of other important developments in Malawi. Civil society activists have increasingly voiced their concerns about the manner in which sex workers are treated by the police. Police often arbitrarily arrest women presumed to be sex workers during sweeping exercises and misguidedly and unlawfully charge them with offences such as being a rogue and vagabond or living off the earnings of prostitution, when there is no evidence of such offences having been committed. Such arrests inevitably involve a range of human rights violations.

The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.

The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated. It is hoped that the judgment, once available, will be used as a resource by other marginalized groups to assert their rights and will contribute to improving constitutional jurisprudence in the region.

Kenya: Detailed analysis of recent High Court ruling on Kenya’s HIV-specific law by Annabel Raw, head of Health Rights Programme at the Southern Africa Litigation Centre

On 18 March 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act (“Act”) unconstitutional. I applaud the impetus of the decision but I want to argue that the narrow focus of the Court’s judgment reduces its potential to advance rational health policies and laws.

Section 24(1) of the Act requires a person aware of being HIV-positive to “take all reasonable measures and precautions to prevent the transmission of HIV to others” and to “inform, in advance, any sexual contact or persons with whom needles are shared” of their HIV-positive status. Subsection (2) prohibits “knowingly and recklessly, placing another person at risk of becoming infected with HIV”. Contravention of these provisions is a criminal offence punishable by imprisonment for up to seven years, and/or a fine. Under section 24(7), a medical practitioner who becomes aware of a patient’s HIV-status may inform anyone who has sexual contact with that patient of their HIV-status.

In 2010, the AIDS Law Project sought a declaration that section 24 of the Act was unconstitutional and “unacceptable discrimination” on the basis of health status. It argued that the undefined terms of “inform”, “in advance” and “sexual contact” renders section 24 vague and overbroad, contrary to the principle of legality. It submitted that the provision violates the right to a fair hearing, equality, non-discrimination, and sexual privacy. The petitioner was supported by an amicus curiae, the Centre for Reproductive Rights, which made submissions on the disproportionate impact that the provision would have on women, exacerbating stigma and undermining public health interventions.

In a unanimous judgment of a sitting of three judges of the High Court, Lenaola HJ held that the central issue was the provision’s vagueness and overbreadth. Focussing solely on the absence of a definition for “sexual contact”, the Court held that it is impossible to determine what acts are prohibited. Further, given that section 24 places no obligation on sexual contacts who have been informed of another’s HIV-status to keep that information confidential, the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

Similar criminal provisions exist in a number of countries. The Constitutional Court in Zimbabwe is, for example, currently considering the constitutionality of Zimbabwe’s HIV criminalization law. The Kenyan judgment must be applauded to the extent that it emboldens the human rights critique of these laws and compels the Kenyan government to reconsider the provision.

It is disappointing, however, that the privacy violations were constructed so narrowly, with the Court failing to appreciate the risks of criminalizing non-disclosure more broadly, particularly for vulnerable groups, as raised by the amicus. Furthermore, by framing the vagueness and overbreadth ruling so strictly, the inhibiting effects of criminalization on effective public health interventions remain legally unscathed.

Insofar as the courts may be a useful forum to advance health rights and public health, perhaps a better legal foundation would be a rationality review of legislation. In a number of common law jurisdictions, this entails testing conduct or law against the ends that it claims to achieve. The standard typically requires that conduct needs to be rationally connected to a legitimate government interest or purpose in order to be lawful.

As made clear by the Act’s long title, its purpose is to prevent, control and manage HIV and AIDS, promote public health, and deliver appropriate care for persons living with HIV. The criminalization of HIV transmission and non-disclosure has come under heavy criticism by leading international experts and bodies for failing to protect human rights in a way that promotes public health initiatives for the effective treatment and control of HIV. If the argument against criminalization of HIV transmission is found persuasive in court, the legislation should be found irrational because it employs a strategy that is harmful to its purported ends.

It is in this sense that we might consider rationality review when using the courts in similar jurisdictions as fora to insist on public health policies and laws that are founded in scientific evidence and not fear and stigma.

Zimbabwe: HIV-specific criminal law criticised for making women with HIV more vulnerable

Women in the country have condemned the law criminalising the willful transmission of HIV claiming that women always feel the brunt of the law. Criminalisation of willful or deliberate transmission has become controversial in a county. Willful transmission is defined in the Zimbabwean law as the failure to disclose one’s status or to take precautions for preventing the transmission of HIV/ AIDS.

Speaking during a TweetT@ble discussion held by the Netherlands Embassy and 263Chat, Martha Tholanah the Director of International Community of Women living with HIV Zimbabwe said the legislation is unlawful.

“HIV/AIDS has always carried the face of a woman and women always carry burden the HIV pandemic. The criminalisation of willful transmission also has a woman face which is unlawful as women always end up being victims of the provision,” said Tholanah.

She also said, “Women are always accused of bringing the HIV virus into marriages and the justice system has not done enough to protect women who end up being imprisoned for 20 years.”

While it is difficult to detect who infected the other in a relationship women have always been labeled as the culprits.

Cases of willful transmission are on the rise mainly based on HIV positive people who have had sex with the primary intent of transmitting the virus to their partner.

Several cases have been brought before the courts where individuals claim to have deliberately infected with HIV by their partners with many occasions pointing the woman as the one who infected the men.

Tamara Jonsson, the Program Officer of UNAIDS Zimbabwe said, “the provisions of the criminal law are problematic especially the criminalisation of non disclosure.

“Criminalisation of non disclosure has negative implications on women as it does not guarantee safety after disclosure.”

She went on to say that stories told always climax with the younger women eventually being summoned to the courts for allegedly infecting the male counterpart.

Tinashe Mudawarara a lawyer with ZLHR, said the law is overbroad and it’s the provision are wide, dangerous, and unlawful and thereby infringing on the right to protection of the law.

Center for Reproductive Rights welcomes Kenya High Court ruling that quashes vague and unconstitutional HIV-specific criminal statute

03.30.15 – (PRESS RELEASE) Key provisions of a law criminalizing the transmission of HIV in an effort to curb spread of the disease in Kenya are unconstitutional and violate fundamental human rights, according to a recent landmark ruling from the High Court of Kenya. The Center for Reproductive Rights filed an amicus brief in support of the case brought by AIDS Law Project in 2010.

While the “HIV and AIDS Prevention and Control Act, No.14 of 2006” (“HIV/AIDS Act”) codifies measures for treatment, counseling, care and support of people living with HIV—it contains troubling provisions that criminalize the transmission of HIV in certain instances and permit partner disclosure of HIV/AIDS status by health care workers. The law also discriminates against women, who are often subject to coercive practices and violations of informed consent and confidentiality when testing for HIV, particularly during pregnancy.

In its decision issued on March 18, the three-judge panel ruled Section 24 of the HIV/AIDS Act which criminalized transmission of HIV was unconstitutional under the Kenyan Constitution, as the provisions are too vague and that disclosing patients’ HIV status violates their rights to privacy and confidentiality. The judges also advised the State Law Office to review the HIV/AIDS Act to “avoid further litigation” surrounding the law.

Said Evelyne Opondo, regional director for Africa at the Center for Reproductive Rights:

“All people are entitled to quality health services—regardless of their HIV status or other health needs.

“This law has inflicted fear, shame, and punishment on countless Kenyans, especially pregnant women who desperately need and deserve quality maternal health care.

“We commend the High Court for finding the criminalization of HIV transmission as unconstitutional and a violation of Kenyans’ fundamental human rights. Now is the time for the Kenya government to immediately amend this legislation and ensure people living with HIV can get the care they need without fear of discrimination or criminalization.”

“We must ensure people living with HIV receive the proper medical care and support that they need,” said Jacinta Nyachae, Executive Director of the AIDS Law Project. “If we want to reduce the spread HIV and AIDS and put an end to the stigma, violence and discrimination surrounding the disease, our public policies must be based on medical evidence and grounded in human rights.”

In 2011, the Center for Reproductive Rights submitted an amicus brief in the AIDS Law Project v. Attorney General & Director of Public Prosecutions (Petition No. 97, 2010), challenging the constitutionality of the law. The Center claimed that the HIV law could be interpreted to criminalize women living with HIV who expose or transmit the virus to a child during pregnancy, delivery, or breastfeeding. The Center argued that criminalizing HIV exposure and transmission does not protect women from transmission, but instead exacerbates existing stigma and discrimination against women, exposing them to risk of prosecution. The Center’s brief also recommended the law’s provisions permitting partner disclosure of HIV status be quashed.