Uganda: the social impact of HIV criminal law

Criminalisation of HIV is unjust, unwise, undermines existing government efforts and is especially damaging to women’s rights, argues Hajjarah Nagadya

Hajjarah Nagadya
23 July 2014

This article is the seventh in 50.50's series on the World AIDS 2014 Conference taking place this week in Melbourne

The declaration of the 20th International AIDS Conference now underway in Melbourne, states: "We express our shared and profound concern at the continued enforcement of discriminatory, stigmatizing, criminalizing and harmful laws which lead to policies and practices that increase vulnerability to HIV."

The declaration comes two months after the Ugandan Parliament took a step backwards in the fight against AIDS by passing the HIV Prevention and Control Bill which criminalises intentional HIV transmission. Although this Bill has not yet been signed into law by the president, it is clear to us that the legislators are mindless of the rights of people living HIV and heartless to all Ugandans. In other parts of the world such as Zimbabwe, laws are also pending and also at risk of being passed into law.

Ugandan legislators insist that the bill is designed to protect the rights of people living with HIV. However, in our view this bill, once signed into law, will only stigmatize them. Moreover, it will deter those both with and without the virus from accessing prevention, treatment, and care services.

The new legisaltion opens up to health care providers the right to impose mandatory testing on anyone in their care. Furthermore, it includes a clause which also criminalises attempted transmission, a clause that puts at risk those in discordant relationships - where one partner has HIV and the other does not.

Criminalisation of intentional transmission of HIV contravenes the International Guidelines on HIV and Human Rights, which state that “criminal and or public health legislation should not include specific offences against the deliberate and intentional transmission of HIV, but rather should apply general criminal offences to these exceptional circumstances.” This clause thus also authorizes an individual’s health care provider to disclose a person's HIV status to anyone whom they think is possibly exposed to HIV by this individual. 

In most of the world, few people have tested voluntarily for HIV. Indeed most countries – including the UK - are still struggling to ensure that people get tested at all. However, punitive laws have emerged in many regions - including North America and Africa -  which are still struggling to ensure there is progress towards an effective HIV response, and where health care services have not yet extensively reached the people who need them. This new legislation will mean that even the little success achieved in Uganda is likely to be adversely affected.

Criminalization of HIV does not only concern people living with HIV, but all people. The bill seems only to be directed at those already knowing their HIV status. However there has been no discussion of its impact on those who do not yet know their status. This means that people will in future just avoid being tested, in order not to fall foul of this law. Government-promoted testing programmes will thus also be undermined by such legislation. There is no way HIV can be managed when there is criminalisation of transmission: the stated aim of the bill is contradicted by its content. 

As if all the above were not bad enough, this legislation will have a specific impact on women living with HIV who are pregnant.

Many countries, including Uganda, are struggling to implement new programmes like the “Elimination of Mother to Child Transmission” (eMTCT) , so that all women living with HIV may be in a position to give birth to HIV-free babies and also stay healthy themselves. According to the UNAIDS  Global Report 2013, statistics show that antiretroviral coverage among pregnant women living with HIV was at 62% in 2012. A further 38% did not receive life saving treatment. This means that over one third of children were at risk of acquiring HIV around the time of birth.

A major barrier to HIV testing and treatment for women already exists in the form of gender-based violence, both in health care settings and at home. Since women are the section of society who are most often tested for HIV, during peri-natal care, it is widely assumed that the woman is the parent who has acquired HIV first.

Science shows that it is difficult, if not impossible, to establish in court who between two partners acquired HIV first or who caused transmission, for purposes of sustaining prosecution. This means many women are already blamed for transmission without any clear evidence.  Women understandably fear being blamed - by health providers and partners alike - for having brought HIV into the relationship.

With the introduction of the Ugandan bill, women’s fear of testing and its consequences increases. This is because women who are expecting a baby will also now not go for testing, for fear that the health service will collect information about them that could be used as evidence to criminalize them in future. The majority of women will also not access ante-natal or maternal health services, since most will have had to have a test before accessing these services.

Instead, pregnant women will resort to traditional birth attendants, who do not have access to anti-HIV medication, and who require no HIV test. This will thus inadvertently increase the number of children likely to be born with HIV.

Thus this new legislation, waiting to be signed into law in Uganda, will mean that maternal mortality figures – already high for women with HIV – will also rise.

Children born with HIV may well ask in future why they were born without the full protection of the state for themselves - and for their mothers. 

The HIV Prevention and Control Bill,  now awaiting the President's signature, demonizes individuals who are living with HIV and AIDS and worsens existing stigma around the illness. It would particularly criminalise women who, as a result of pregnancy-related medical care, form the majority of the few people who know their HIV status. Thus women especially will be exposed to the risk of criminal prosecution. They will also be at even greater risk of HIV-related violence and abuse than they already are.

Applying criminal law to HIV exposure or transmission does nothing to address the epidemic characterized by gender-based violence or the deep economic, social, and political inequalities that are at the root of women’s and girls’ disproportionate vulnerability to HIV.

Women are more likely to be the ones prosecuted for HIV transmission due to inherent gender-based power imbalances. Because they access maternal health care services, women are more likely to know their status first, compared to their male partners.  Criminalization of HIV exposure or transmission will therefore not protect women from coercion or violence by their intimate partners and in-laws.

It is unwise and unjust for countries to criminalize HIV transmission. With such legislation governments are much less likely to achieve their target goals of HIV prevention. They should rather focus on promoting laws that outlaw stigmatization of people living with HIV and protect their rights, as some other countries have begun to do. We need laws that extend services closer to those most affected, and  ensure that women living with HIV have access to a comprehensive package of sexual and reproductive health services. Criminalization of HIV will not reduce HIV transmission rates. Instead it will just undermine some of the progress there has been in Uganda so far achieved.

I won’t be at the Conference myself. However, I hope that other colleagues there will be raising these issues – and that the Ugandan Government will take note.

This article is part of 50.50's long running series on AIDS Gender and Human Rights exploring the ways in which global policies ignore the gender dimensions of the pandemic, and the impact this has on women's human rights. We are publishing daily during the 2014 World AIDS Conference in Melbourne July 20-25




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