By Johanna Kehler
More than 40 national, regional and international human rights, gender and HIV organisations convened in Cape Town on November 27 and 28 to discuss trends, implications and realities of HIV criminalisation. They met in the context of acknowledging that human rights are to be at the centre of effective responses to HIV and Aids, legislative trends to criminalise HIV transmission and recognising a reality in which stigma, discrimination and other violations of rights, based on a person's sex, gender, sexual orientation or HIV status prevail.
The round-table discussion was hosted and convened by the Aids Legal Network, in partnership with Sex Worker Education and Advocacy Taskforce (Sweat), the Triangle Project and Leadership South.
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Recent global and regional legislative trends indicate a strong call for criminalisation of HIV transmission as one of the measures in response to the growing HIV and Aids pandemics. Whereas supporters of "criminalisation" reason that it is the only possible response to halt the HIV pandemic, since "reckless" behaviour needs to be "criminalised", opponents of these legislative changes are united in the view that any form of criminalising the transmission of HIV is a gross human rights violation.
Moreover, there is the common understanding that the criminalisation of HIV transmission will further deter people from making use of HIV testing services for fear of being "criminalised". This will increase already prevailing HIV-related stigma, discrimination and violation of rights and, therefore, heighten HIV risks and vulnerabilities, particularly among already vulnerable and marginalised groups, which are women, especially HIV-positive women, young women, sex workers and lesbian women.
Calls for criminalisation of HIV transmission not only fail to recognise that existing legislation is in place to prosecute the "wilful" transmission of HIV, but seem to ignore the gendered implications of criminalising HIV transmission.
There is growing global advocacy for the recognition that human rights are to be at the centre of all responses to HIV and Aids. An integral component of the call for rights-based responses to the HIV and Aids pandemics is the principled understanding that public health responses will achieve their desired goals only if they are based on human rights approaches.
It is in the paradigm of public health needs and responses to the HIV and Aids pandemics that human rights are increasingly threatened and legislative trends to criminalise HIV transmission have flourished.
Over the past five years, 19 African countries, including Tanzania, Mali, Kenya and Sierra Leone, have adopted HIV-specific legislation. A further eight countries, including Uganda, Malawi and Mozambique, are finalising HIV-specific legislation. Although legislative provisions vary from country to country, common clauses include restrictions on access to education and information for children (in Guinea, for example, legislation prescribes that children under the age of 13 are not to have any access to HIV and Aids education), various conditions of mandatory or compulsory HIV testing (such as pre-marital HIV testing in Guinea), provisions legislating HIV-disclosure and partner notification (in Mali the law places a legal duty to disclose a positive HIV diagnosis to a spouse or regular sexual partner within six weeks after diagnosis), and the criminalisation of HIV transmission (for example, in Kenya). There are other examples, such as the HIV-specific legislation in Sierra Leone, that explicitly criminalises mother-to-child transmission of HIV.
In recognising these legislative trends in the region, it is imperative not only to acknowledge that these legislative responses are primarily driven by public health needs, but to critically assess and analyse the various human rights implications inherent in legislative trends to criminalise people with HIV. Moreover, it is crucial to clearly identify the extent to which HIV-specific legislation, especially legislation criminalising HIV transmission, has an impact, particularly on women.
Based on the principled understanding that any form of HIV criminalisation is a gross human rights violation, participating organisations, including Aids Rights Alliance of Southern Africa and International Community of Women living with HIV, felt very strongly that these legislative trends will not only deter people from accessing HIV prevention, testing, treatment, support and care services, because of fear of being criminalised, but also increase HIV-related stigma and discrimination, because people living with HIV or who are perceived to be at "high risk of HIV infection" will be further stigmatised as potential "criminals" and a "threat".
In the context of access to HIV testing, prevailing stigma, discrimination and other rights abuses, including the lack of assured confidentiality, are commonly recognised barriers - highlighted also in the continuing low uptake in HIV testing. Many of the arguments made against criminalising HIV transmission emphasise strongly that the fear of an HIV-positive diagnosis, and the potential of subsequent criminalisation, will further deter people from accessing services, including HIV prevention and testing services.
Legislative and policy measures providing for mandatory HIV testing of pregnant women - a step often accompanied by debates to introduce legislation to criminalise HIV transmission - also carry the risk that women might decide not to access antenatal healthcare out of fear of being tested for HIV because a positive HIV diagnosis might lead to a woman being prosecuted for transmitting HIV to either her child or sexual partner.
Therefore, women's rights to access healthcare, including reproductive healthcare, will become severely compromised with the introduction of legislation that criminalises HIV transmission.
It is also fair to assume that criminalising HIV transmission will undermine HIV prevention efforts, because a person accessing HIV-prevention measures could be perceived to have HIV and, therefore, could be seen as a potential "criminal".
Moreover, HIV criminalisation will further limit access to prevention of mother-to-child transmission (PMTCT) programmes, because women are easily identifiable as living with HIV when they participate in PMTCT programmes.
Acknowledging women's specific risks and vulnerabilities in the context of HIV and Aids, the two-day meeting affirmed that legislative trends to HIV criminalisation will in their application criminalise mostly women - because women are often the first to know of their positive HIV status and women are, therefore, more likely to be prosecuted. Subsequently, legislation - often introduced as a means "to protect women" - will lead to the arrest and prosecution of women for infecting their partners and children with the HI virus.
It is commonly recognised that one of the underlying factors defining women's greater risks and vulnerability to HIV transmission is the patriarchal system that places women in a position of lesser power to make informed choices, including sexual choices. Therefore, women are least in the position to negotiate conditions of sex and to negotiate whether to use condoms. Yet, women will be liable for prosecution for "wilful" transmission of HIV.
Similarly, gender violence is widely recognised to be as much a cause as a consequence of HIV infection. Research findings indicate that young HIV-infected women are 10 times more likely to have experienced violence than women who are not infected. The fear of violence is an often-cited barrier - especially for women - to disclosing their HIV-positive status. Criminalising HIV transmission is likely to lead to more incidences of HIV-related violence as the law describes people living with HIV as potential "criminals".
HIV criminalisation may also potentially reverse some of the gains made in relation to sexual and reproductive health and rights, such as the right to make informed sexual and reproductive choices.
In countries such as Namibia, where there is no existing or proposed legislation criminalising HIV transmission in place, HIV-infected women are coerced and forced into sterilisation solely based on the grounds of an HIV-positive diagnosis, and many HIV-infected women are subjected to coercive and forced "abortions".
These are two of the many examples clearly indicating the extent to which women with HIV are already "criminalised" - irrespective of whether HIV-specific laws are in place. With the introduction of HIV criminalisation, women's and especially HIV-positive women's sexual and reproductive rights will be further limited, violated and denied.
A similar argument can be made about human rights gains in the response to HIV and Aids. Achieved rights-based responses to HIV, such as access to HIV testing services protecting the right to autonomy, informed choice, confidentiality and non-discrimination, as well as the right of access to treatment, support and care, are severely compromised and threatened by legislative trends to criminalise HIV transmission.
So, while an argument could be made that these legislative trends are founded in "good intentions" to halt the spread of HIV, the outcome is "bad policy" and will reverse the progress made in responding to HIV and Aids realities and challenges from a human rights perspective.
Furthermore, opponents of HIV criminalisation are united in the recognition that "change in sexual behaviour" - which is key to reducing the risk of HIV transmission - cannot be legislated. Adopting HIV-specific legislation criminalising HIV transmission is not only an approach to the pandemics that violates, by its very definition, fundamental rights and freedoms of people infected with, and affected by, HIV and Aids, but is also misleading in that "safer sex practices" could potentially be enforced by the law.
Highlighting 10 reasons why criminalisation is "bad policy", Judge Edwin Cameron states: "Criminal prosecutions are a misguided substitute for measures that really protect those at risk of contracting HIV."
Hence, efforts to halt the spread of HIV and especially to reduce women's risks and vulnerabilities to HIV infection are to focus on removing barriers to HIV prevention, testing, treatment, care and support - instead of creating additional barriers that deter people from accessing much-needed services and information - on effectively addressing the underlying factors of the pandemics, such as the patriarchal paradigm that fosters women's lesser power to negotiate conditions of sex, and enabling and perpetuating women's greater risk and vulnerabilities, and to effectively address the prevailing HIV-related stigma, discrimination and other violations of rights instead of increasing the risk of human rights abuses through "legalising" criminalisation of HIV transmission and, in so doing, "legalising" the criminalisation of people living with HIV.
Dr Kehler is the national executive director of the Aids Legal Network.
- This article was originally published on page 9 of Cape Times on December 01, 2008
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