During our GHC training, we discussed the HIV and AIDS Prevention and Control Act 2014, which criminalizes transmission of HIV in Uganda. A colleague at our HIV/AIDS NGO told me that a group from our organization and other NGOs had lobbied the government to not sign the bill into law, fearing that its passing would mean furthering the epidemic.  When the bill was signed into law in August, I was crushed.  The true shock came just a few weeks later, however, when a colleague informed me that HIV transmission has already been criminalized in the US and many countries around the world.

A quick internet search reveals an ironic media landscape: just one of the primary Ugandan newspapers had coverage of this bill’s signing into law (New Vision), yet several international and US-based publications (BuzzFeed NewsHuman Rights Watch) covered the story, many of which disparage the Ugandan government without recognizing similar legislation in the US and other high-income countries. I believe that we need to think critically about the details of health laws and their implications for patients’ access and health workers’ service delivery beyond the legislation’s good-willed intentions, no matter what the geographic context.

A civil rights analysis of the Uganda HIV and AIDS Prevention and Control Act 2014

“A person who willfully and intentionally transmits HIV to another person commits an offence, and on conviction shall be liable to a fine of not more than one hundred and twenty currency points or imprisonment for a term of not more than ten years or both.”

I find this phrase problematic: “willfully and intentionally transmits”. I would like to think that very few individuals are transmitting HIV intentionally – read: knowing they are HIV positive and desiring to transmit the virus to someone else. Of course there are the rare exceptions, like the cases of men and women who have lots of unprotected sex as revenge for contracting HIV from someone else. But in these cases, can we really hold the HIV-positive person to be solely responsible? Everyone has a right to insist on use of condoms to protect themselves against HIV and STIs and if one does not, they are taking a risk. If their insistence is ignored and unprotected sex is forced on them, this qualifies as rape and constitutes a different issue. There is also the famous controversial case of the Ugandan HIV-positive nurse who stuck herself with a needle before using it on a child. She was later charged with criminal negligence and though the child never became HIV positive, the incident encouraged the passing of the previously drafted legislation in Uganda.

“Willful” and “intentional” imply that the transmitter knew that they were HIV positive before engaging in the behavior that led them to transmit to someone else who had been negative. So what of vertical transmission of HIV? In Uganda’s 2009 HIV transmission bill, mother-to-child transmission was an exception to the law. However, pregnant women and their partners, sex crime victims, people accused of sex crimes and anyone who “unreasonably” withholds consent are mandated to test for HIV. Mandating testing is a violation of human rights. Further disturbing, the law allows medical providers to disclose a patient’s HIV status to others without consent.

Additionally, if willful and intentional transmission is predicated on knowing one’s HIV status, isn’t this a disincentive for being tested for HIV? We do not yet know how the courts will allow evidence on the prosecution side to be collected. Will HIV testing clinics and organizations be mandated to break confidentiality and provide test results of their patients? Even if they are not required to provide test results, isn’t it likely that this legislation will make people distrustful of testing sites and not want to test?

There is another issue here when it comes to testing. The most commonly used HIV tests can give an accurate reading based on your status as of exposure three months prior and back. What if the claimant was HIV positive before the event in which they were exposed to HIV by the defendant? How can the defendant prove that it was not themselves but an earlier situation which transmitted the virus? This also brings up the question of the claimant knowing their status. Will they need proof of their HIV negative status prior to the exposure incident? While this could incentivize testing, the fact that most people would not assume they would need proof of their HIV negativity in case it is intentionally transmitted to them makes this unlikely.

There are exceptions to prosecution by the law (e.g., if condoms are used) but the burden of proof and enforcement mechanisms for these situations remains unclear.

 

Global HIV criminalization legislation landscape

Activists cite misunderstanding of the causes of HIV transmission and stigma against those with HIV as a primary motivation for HIV transmission’s criminalization in countries of the world. According to the Global Network of People Living with HIV, in July 2010 there were 56 countries, territories and entities in the world reported to have laws that specifically criminalize HIV transmission or exposure. The network also noted that by this date, 600 people living with HIV in 24 countries had been convicted of criminal transmission. The USA has held the highest number of criminal transmission trials – by 2008, 36 states had prosecuted. According to Avert.org, at least nine HIV-positive individuals in the US have been found guilty of HIV transmission via spitting, with sentences ranging from 90 days to 25 years. This, to me, is a severe human rights violation since science proved long ago that spitting is not a mode of HIV transmission.

Conclusion

Unfortunately these laws around the world remain, despite the fact that in so many of the cases, the person who accuses another of “intent to transmit” did not become HIV positive, despite the fact that these laws further stigmatize HIV positive individuals, and despite the fact that often these laws actually deter individuals from being tested for HIV. While I do not believe that the Government of Uganda has made a wise choice in signing into law the HIV and AIDS Prevention and Control Act, I also believe that all countries must take a critical look at their HIV legislation to ensure that all efforts are made to genuinely prevent the spread of the virus and ensure the wellbeing of those already living with it.

What implications will the Uganda HIV and AIDS Prevention and Control Act 2014 really have on the country? Only time will tell.

Leave a Reply