“I suffered stigma and discrimination both from my relatives and at my place of work. I was afraid of disclosing my status to my employer. I thought it may cost me my job.
People living with HIV need to have their rights like any other person; they need the right to privacy, for their status to be kept confidential.”
Alice Mwangi, beauty therapist from Yamumbi, Kenya.
In August 2006 Alice Mwangi filed a case. She had gone for a routine appointment at an antenatal clinic when she was tested for HIV without her consent. The test was followed by the unauthorized disclosure of her positive HIV status to her family members.
“I suffered stigma and discrimination both from my relatives and at my place of work. I was afraid of disclosing my status to my employer and their reaction to the news. I thought it may cost me my job and this would make my life more miserable.
Later I went for a tooth extraction and my father shouted to the dentist that I ‘had AIDS’. The dentist then refused to provide dental services. It was difficult for me and I had to find an alternative dentist.
In Kenya HIV transmission is described as a criminal act in the HIV Act. If a person who knows his or her status infects another person willingly or intentionally, they can be charged in a court of law.
The impact of the criminalisation of HIV transmission has made me think about my own sexual behaviour and about protecting my partner and about discussing my partner’s own HIV status. It has made me develop a positive attitude towards people living with HIV. It has also made me think about confidentiality – after all, no one wants his or her status shared without her consent.
People living with HIV need to have their rights like any other person; they need the right to privacy, for their status to be kept confidential and rights to non discrimination, to liberty and freedom of movement in terms of being protected against imprisonment, segregation or isolation in a special hospital ward. They need their right education and information: their right to access to all HIV prevention education and information, especially sexual reproductive information.
Do I think people living with HIV should disclose their HIV status before every sexual encounter? That depends on the person whom they want to disclose to, and whether this person will give support. At the same time they should insist on protection.
We should all be responsible for preventing the transmission of HIV, not only the people who are infected. HIV prevention should be comprehensive, making use of all approaches known to be effective.
Laws addressing issues on HIV transmission should be reinforced to curb the rapidly increasing number of HIV infections but, at the same time, it should not be used to victimize the people who are already positive and doing something about it to protect themselves and others. Stigma has undermined the ability of individuals’ families and society at large to protect themselves and provide support and reassurance to those affected."
“It was an example of the state system falling apart. The established counselling service was misused for a purpose contrary to its basic principles: that of guaranteed voluntary consent and confidentiality.”
Milena Stevanovic from Skopje, Macedonia, was a member of a medical team that was on duty in November 2008 when the police issued a court warrant to test arrested street commercial sex workers for STIs.
"In November 2008, the Ministry of Interior began a campaign to eradicate the so-called ‘socio-pathological occurrence of male and female individuals giving sexual services for money.’
According to the Ministry the official grounds for the police intervention, arrest and detainment of sex workers was the existence ‘of certain indications that these persons might be carriers of different sexually transmitted diseases, and consciously transmit them to other persons, which is in violation with the existent laws in the Republic of Macedonia.’ Calling on the Criminal Code the Ministry provided a court order to perform medical examinations.
The process started early in morning when the police called us on the telephone asking if we provided HIV and STI testing. Then they announced their intentions. Immediately I had a meeting with the director who said that we couldn’t perform such a service. When this fact was presented to the police it took them less than two hours to issue us with a court order.
There followed a statement informing the public of the results of the compulsory testing of the sex workers. According to the analyses, ‘Seven of them were carriers of the virus HCV-Hepatitis C, an infectious disease transmitted by sexual and blood contact with an infected person.’ The ministry said that they instigated criminal charges because of reasonable suspicion that ‘they performed a criminal act of transmitting infectious disease.’ Given the resistance they showed during the implementation of the court order, it was argued, they were aware of the virus they carried, and therefore they were negligent. After one year’s legal process the sex workers were found guilty of transmitting STIs but were given probation.
It was an example of the state system falling apart. The established counselling service was misused for a purpose contrary to its basic principles: that of the guaranteed voluntary consent and confidentiality. So it was a paradox. As someone who helped develop that system - and its voluntary counselling and testing (VCT) protocols and services - I can’t understand why anyone would use that same system for that purpose, especially on a group of people, such as street sex workers, who were being counselled and tested on HIV and STIs. So if you ask me, that’s the greatest tragedy of this incident.
Or maybe the worst thing is that a health institution, which should have been protected by law, ended up exposing test results without the consent of its patients.
This leads me to the conclusion that someone had the aim of destroying everything we’ve achieved. You feel completely powerless. You feel as if the only thing you can do is to help lessen the consequences for those poor women.
Previously there had been no cases of HIV or other infectious disease being brought up in court. We can’t predict what would happen if criminalisation became an everyday reality. What I do know is that some people will suffer from double stigma: being HIV positive and coming from the different key populations.
There is absolutely no reason for criminalising HIV transmission.
Maybe we need a legal discussion on the pros and cons. Objectively, there is no reason why HIV should be treated as a criminal offence. The explanation is very simple: everyone is responsible for their own behaviour and risks - that’s the end of the story.
Here, the chance of someone not knowing their HIV status is very high. But if we are talking about something that is a criminal offence like rape, and if HIV is transmitted as consequence of a violent act, then that would be something else. But, again, the reason for prosecution should be the criminal act and not HIV.
The criminalisation of HIV transmission has had a completely demoralising effect on me. It means that whatever you agree upon within the community, to adopt a document, to establish a state service, it is worthless. There is always someone who has the political power to destroy for their own political promotion.
Human rights in our context are a mockery. The main reason is because there is no implementation in everyday life.
They are often misused by the institutions responsible for protection of human rights. There is no rule of law when human rights are concerned and sometimes patients in Macedonia are not well informed and refer to the human rights legislative for trivial issues.
Rights, but also the obligations, should be the same for everybody. What do I mean by obligations? Everyone is responsible for their own actions and the risks of those actions. So this is the basic philosophy when we are talking about HIV. Otherwise you can easily enter in to a labyrinth leading to millions of questions. Hypothetically all of my patients can start a court procedure against the person responsible for their HIV status. So I ask myself, what would be the consequence of all of these court processes?
Here is an example: I had a case where the husband wouldn’t disclose his status to his wife. We tried everything we could to motivate him to inform his wife about the possibility of HIV transmission. But he didn’t want to and continued to live a ‘normal’ married life. So the woman was left to discover that she had become HIV positive on her own, when she became really sick. I had to live with the knowledge that someone’s life is in danger. However my team followed the protocol and we didn’t disclose the status of the patient to his wife. In the end, although it took some time, the husband decided to tell his wife. This case illustrates why everyone should be responsible for their own actions and protection.
Although this example is an argument for obligatory disclosure, I would say that we can discuss this option only within marriage, but when we are talking about different sexual relationships, I can’t see the purpose of making the disclosure obligatory. To be more precise, you can’t solve all of the HIV problems with adopting legal instrument for prosecuting people living with HIV (PLHIV).
If we insist that PLHIV disclose their status in every sexual encounter than we are insisting on an ideal society, a utopia. I can’t find a good reason why we should ask PLHIV to be extremely responsible if the rest of society is not behaving in the same manner. In the same way, we can’t ask that from any patient living with any other kind of disease.
The things here in Macedonia are going to change. We needed 20 years to ‘grow up’ and to face HIV. There were no PLHIV in the past, simply because they were dying.
Today we have people living with HIV. So we are just starting to go through the HIV issues that other societies have already faced. Hopefully we will use their experience to find easier solutions."
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
“I have a learnt a lot from my interactions with people who are HIV positive. At a personal level it has also enabled me and my wife to discuss these issues more, because we discuss some cases looking at what happened, and we realize and learn that being HIV positive is not strange – it is just part of life. Nothing really changes when people are positive.”
Chrispine Sibande, is a lawyer and Deputy Director for Legal Services of the Malawi Human Rights Commission.
"HIV is being criminalized right now in Malawi. This is through the Penal Code – Section 192. It states that ‘any person who unlawfully or negligently commits does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be guilty of a misdemeanor.’ So, we have seen cases in Malawi where the courts have charged people under this provision on issues of HIV. People have been prosecuted because of their HIV status.
One example from 2009 relates to sex workers who were charged with an act of negligence (contrary to section 192 of the penal code) in Mwanza district, for ‘unlawfully and knowingly committing an act likely to spread infection of the disease HIV and AIDS by practicing prostitution’. This happened in three different cases.
The women were arrested at a bar, and taken by the police, with some men. All the men were released – only the women remained in custody. They were ordered to board a police vehicle and taken to Mwanza District Hospital. At the hospital, there were two police officers in the corridor, they were taken into a room where they saw they saw two medical officers and additional two police officers, and were simply told ‘can we have your hand?’ So then blood was taken from them, but they didn’t know what for - until they were taken to court. They were charged with the offence of spreading a venereal disease, specifically HIV.
These women didn’t have legal representation so they pleaded guilty because the police intimidated them. The court read out their HIV status, and it was then that these women realized that the blood samples taken at the hospital were meant for an HIV test. It was the first time that the women had learned of their HIV status. The test results were announced to everybody in court– in front of so many people. Anyone who was in the court room at that time knew the HIV status of the accused persons.
So we partnered with another NGO and followed up the cases – I interviewed the women, reviewed the court files to find out exactly what happened, and we are now considering a Constitutional Challenge. This kind of action violates the Malawi Constitution and international human rights standards. In our Constitution we have Section 20, which guarantees the right to non-discrimination, and Section 21 that guarantees the right to Privacy and to Dignity. In one of the cases, the women were asked to leave Mwanza as part of the judgment, which is also strange because that is a clear violation of liberty and violation of the person’s right to live anywhere in Malawi.
We are trying to challenge the action from a human rights perspective based on our Constitution. In the Judicial Review we are asking the court to condemn the action of the police, the District Hospitaland the Magistrate and say it was unlawful, arbitrary and unreasonable. We are seeking declarations from the court on all three issues and that these women should be compensated. I have drafted the papers and I am ready to go to court.
Many of these women have now settled outside Mwanza, out of fear of being labeled ‘HIV positive’ and seen as ‘stupid ladies deliberately spreading HIV’. When I interviewed the Magistrate and also the police, they said ‘Oh why are you bothering about sex workers?’ I think the sex workers were deliberately targeted because they were seen to be ‘less human’. Of course evidence shows that almost every day these women are beaten or have money or cell phones confiscated from them, but there is that feeling that these women are ‘after all, prostitutes’. Nobody will listen to them. That is the spirit of the message that I got from the Magistrate and the police when I interviewed them.
So when you look at these particular cases it is very clear that people are already being criminalised for the transmission of HIV in Malawi. At the same time we have a draft HIV Bill that states that we intend to criminalise HIV and AIDS. In Malawi we have a constitution and we have ratified several human rights instruments, so the application of the criminal law is a very serious setback in Malawi.
When you look at the human rights standards it is clear that they don’t encourage criminalisation of HIV and AIDS. And we made that position known, but the problem was that we weren’t part of the Commission – the Malawi Human Rights Commission were simply asked to make a submission. We made it clear that we should never ever criminalise issues of HIV and AIDS.
The reasons are quite obvious. We need to address HIV as a health issue and there are obligations that the State has to meet to make sure that services are available and that people have treatment, and also that information is available. It is also very clear that there is a lot of stigma attached to HIV.
Now the moment you try and criminalise it, then people fear prosecution, and it won’t help with the provision of condoms, of ARVS, or for people to come forward and go for testing. If we look at criminalisation you can see how it targets people who know they are HIV positive and limits them having sex. The response to HIV should be a whole crusade where we need to get everybody involved.
The proposed HIV Bill introduces a number of positive things so to condemn the whole Bill would be unfair. When the Bill addresses issues of stigma and discrimination – for example that an employer will be prosecuted if they deny employment to someone on the basis of their HIV status – then it can be helpful. But imagine the consequences of criminalizing HIV particularly for women and for vulnerable groups such as sex workers? There are certain issues in the Bill that would be a setback for the fight against HIV.
Not only as a human rights lawyer but also from looking at the context of HIV in Malawi, honestly, criminalizing HIV does not make sense. For example witchcraft – it is an offence in Malawi to allege that someone is a witch. Now this is the criminal position – the question is what are people doing about it? Everyday people are accusing each other of witchcraft. Everyday people are calling on traditional doctors. Everyday, people are being arrested for witchcraft. So the issue is when you have a bad law it is more breached than honoured.
For HIV you need to make sure that people have information, and then that there is a provision to access condoms, and that people know their HIV status, and, if they are positive, the government provides health services like ARVs and counselling. The solution that ‘we will lock you up or arrest you because you are HIV positive’ will just force people underground, and as a result there will be more - not less - people who have HIV. We would just be perpetuating the problem.
My work has simply helped me to know that a person who is HIV positive is not different from any other person. I have also realized that there are serious challenges for people living with HIV – treatment remains a challenge in terms of access to ARVs, there is a lack of information, and other things at the national level.
My work has just helped me to understand more things from a legal perspective, a social perspective and a psychological perspective. I have a learnt a lot from my interactions with people who are HIV positive. At a personal level it has also enabled me and my wife to discuss these issues more, because we discuss some cases looking at what happened, and we realize and learn that being HIV positive is not strange – it is just part of life. Nothing really changes when people are positive."
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
Marama Pala, an executive director from New Zealand, discovered that her former partner was HIV positive when she saw him on the front page of a newspaper article entitled 'Face of Fear'.
"The High Court Trial awful for me, he was found guilty by jury and sentenced to seven years imprisonment, on his release he was deported. During the trial he had large numbers of supporters trying to keep him in the country for his daughter. I was made the villain because I put him in jail and forced him out of the country.
I was infected on 23 July 1993 by an African Man in New Zealand – Peter Mwai. I found out that he had HIV from a newspaper article with his face on the front page saying 'FACE OF FEAR'.
The article below described how he had infected women with HIV and if anyone had had contact with this man to ring the police. I did, and then was asked that, if I should I test positive, would I help them stop this man from infecting any other women? I said yes, and then I was tested shortly after.
After a two week wait the test came back positive and charges were laid.
The police had evidence that he was told he had HIV in June by an infectious diseases clinician. I was infected in July, and fell within the time frame to charge him. Whereas the other women he infected didn’t, but five other women could charge him with reckless endangerment.
I had asked him to wear a condom, he refused. I did not insist, because I had very little knowledge about HIV, I thought he was too healthy-looking and he had already shown me a picture of his baby daughter who was healthy too.
HIV transmission is currently not the subject of a specific ‘law’ in New Zealand, but there is legislation from 1969 about intentionally infecting someone with a disease. Peter Mwai was originally charged with this, but the police could not prove ‘intent’ and the charge was lessened to Grievous Bodily Harm, as well as the reckless endangerment charges.
There was a High Court Trial - that was awful for me. He was found guilty by jury and sentenced to seven years imprisonment, on his release he was deported, and subsequently died of TB in Uganda. During the trial and his release time he had large numbers of supporters trying to keep him in the country for his daughter. I was made to feel like the villain because I put him in jail and forced him out of the country.
I think there is sufficient criminal law to stop the rare person who behaves irresponsibly. New laws would cause more stigma and discrimination for those already living with HIV.
Not all people living with HIV are reckless, 95 per cent of them would be deeply affected should they ever infect another person. It’s the people that don’t give a damn and intentionally or thoughtlessly expose people to the virus - that small five per cent is making it worse for the rest of us, and they need to be held accountable.
Age and wisdom have changed my mind about this issue. At the time the case was so hyped, and drama-filled. I believed I’d be supported afterwards, I wasn’t.
I was so young and easily influenced by the police. I had no idea of the consequences at the time.
This court case did no favours for dark-skinned men living with HIV in New Zealand. It created a stereotype that all ‘black’ men with HIV were intentionally infecting large numbers of women.
Yet the evidence shows there have only been a few cases. The few have made it worse for the rest of us. Now I’m married to a HIV positive man from Papua New Guinea, and he is dark skinned.
My husband and I have a great relationship, but he is very aware that, should it end, and if he was to live as a single man in New Zealnad, that the stereotype would follow him. The truth of this came home to me on one occasion when he was discriminated against, unfairly, by the police because of the colour of his skin and his HIV status.
I take the approach that no disclosure is necessary if safe sex is practiced, but if someone is having casual sex on more than one occasion, then that becomes a grey area.
I still support the idea that it is the decision of the person living with HIV, as long as they practice safe sex.
Apart from those two scenarios, I would still support the right of the person living with HIV to make that decision, either way; it’s a personal choice to trust someone with those details.
Personally, I have told every sexual partner since my infection, but because of my trial and the subsequent publicity, I was exposed and everybody knew of my case and my infection, therefore I had no choice but to disclose, in case they found out another way.
If someone has an unsafe sexual encounter, I would support the anonymous disclosure of the 'track and trace' system through a sexual health clinic. It isn’t only the responsibility of the person living with HIV to stay safe."
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
“We have to make all our decisions based on evidence as opposed to emotion or knee-jerk reactions."
Former Director of the National AIDS Coordinating Committee working in Trinidad and Tobago, Amery Browne is currently a Member of Parliament in Opposition. He was formerly a Government Minister with responsibility for the policy direction for the social sector.
"One or two sensational stories and emotive reactions should not be guiding government policy, and wherever they occur, legislative initiatives to criminalize HIV transmission are not based on effective policy.
To those who are working toward sound legislation to benefit persons living with HIV and those at risk, I would encourage persistence and patience. There is no magic bullet and you cannot expect overnight change.
There is broad recognition within Trinidad and Tobago and in the Caribbean region that the law as it stands may not be serving us well in terms of an effective response to HIV. Bearing in mind that we are part of a Commonwealth System and some of what existed formerly in the United Kingdom has remained in our countries—we share a unique historical context.
There has been a fairly strong regional response to HIV and the law, and a recent legislation review has looked at issues of human rights, issues related to criminalization and looking at issues that some countries have with regard to HIV, sodomy and sex work.
The national consultations were very rewarding because there was some demonstration that the local population has matured to some extent in terms of the openness to change and progress with regard to some of the traditionally challenging issues.
The emerging strength of a number of advocacy groups has assisted additional sectors to recognize that the ‘traditional’ approaches to HIV policy and law have in some respects left some of our citizens at continued or increased risk.
There is often a very strong impetus for quick change or rapid action but I don’t know if that is always realistic or even desirable, and we must always bear in mind the possibility of a backlash from more conservative elements, but let’s say a country that has made positive changes and the government has not reaped any political whirlwind or collapsed because of a bold legislative decision, some of that change and those benefits should be shared across borders, utilizing key Commonwealth organizations and other agencies.
That dialogue is important specifically among politicians and parliamentarians who sometimes are not sufficiently included in multi-sectoral fora that could lead to change.
Many of the parliamentarians would have grown up with certain attitudes, constantly reinforced, and it is important to develop opinion leaders who can become beacons among their peers, as well as in the national context. The key qualities that I would encourage are persistence and patience.
There are very good reasons why HIV transmission should not be a criminal offence. It’s certainly not a cut and dried issue.
It has proven very difficult to prove or demonstrate willful transmission to the issue of attribution or causality—which person had HIV first—resulting in much controversy in some cases that have been pursued internationally.
Such laws have the danger of further stigmatizing key populations and persons living with HIV — being seen overall as potential perpetrators as opposed to very often the primary victims of social injustice and crime.
We have made a transition to seeing people living with HIV as part of the response and as the solution, but having laws or provisions like this would shift the concept back to persons living with HIV being perceived as the ‘problem’.
It is the stigma, it is the ignorance and it is the discrimination that contribute more to the transmission and propagation of HIV, than the sporadic cases of someone who has escaped the type of support that now exists and might be having unprotected sex and be willfully exposing others to the virus.
We have to make all our decisions based on evidence as opposed to emotions or knee-jerk reactions. One or two sensational stories and emotive reactions should not be guiding government policy—it must be much more evidence-based. So from a medical background the thing is to first do no harm. If what you are proposing as part of a solution has been proven or has the potential to do harm: is that really something you would want to do as a country?
People living with HIV should be encouraged to voluntarily disclose their status. Certainly the health services emphasize voluntary disclosure, sometimes with support, as opposed to coerced or enforced disclosure.
Bearing in mind that sexual contacts and sexual relationships occupy a very wide spectrum—those very complex and diverse human interactions. The law is not a useful instrument to enforce disclosure. Instead in Trinidad and Tobago we would continue to review our counseling protocols and those associated with diagnosis to ensure that disclosure support is part of how we interact with clients—as opposed to bringing in a law that would criminalize non-disclosure.
The law exists for a reason and that’s why we have laws against all sorts of things. But with regard to the desire to control certain types of human behaviour—especially sexual or intimate behaviour between women and men, men and men, or women and women—the law really is a very blunt instrument and it can be misused very often.
We have seen countries making the wrong decisions in regard to HIV and AIDS.
I am very confident that in my part of the world societies are maturing to a point where it is easier to make improvements in the law and harder to make the wrong types of decisions.”
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
“In the West it may work to change the law and then expect change on the ground. But this experience does not translate to my culture.
I am not saying stop working with the law, but first work within the custom, religion, and the culture of the people. Don’t just target the person to change his behaviour—you also need to work with his community.”
Sayed El Zemari is an International Health Expert and former practising Medical Doctor from Egypt.
“In Egypt the law does not have the same position as it does for people in the West. The law on the ground in the Middle East and Africa is not respected as it should be. Many times you change the law, but nothing changes on the ground.
So you say: ‘don’t smoke in enclosed places’ – yes it’s a very good law! But no one respects it, no one enforces it and people don’t believe they should.
Female circumcision, for example, is an age-old tradition in Egypt, Sudan, and Somalia. Due to exposure to other cultures and the results of evidence-based research we now realize its negative consequences. It is not unusual to find a Minister of Justice after giving an official presentation about such law, then go home to celebrate the circumcision of his daughter.
It is not criminalization (in the law) but the way people approach it that has a meaning in their lives.
It is the culture, the religion, the community that refuses to accept, say, public homosexuality. You can find articles addressing homosexuality in Arabic literature going back hundreds of years.
During my childhood I knew some peopIe who were known to be gay; whether practicing or not, and they had some sort of acceptance within their communities and were enjoying their standard basic rights, for instance: to live, to be educated, to work and to marry (the opposite sex). But when it comes to being out on the street and saying ‘Hey, I am gay and I have these rights ...’ - it’s not on.
There is law, and there is law in the traditional or customary sense. Let me give one example: I work with men who have sex with men (MSM) as part of HIV key populations, and one of them needed to have an operation on his bowel. He came to me for help to find a surgeon so I went to some colleagues and said ‘Do you know how HIV is transmitted?' He said: ‘Yes, I know’. I said ‘Do you think is it transmitted by coughing or sneezing?' He said:‘No’.
'What if a surgeon operates on someone who is living with HIV, is he in danger of HIV transmission if he uses normal precautionary measures for infection control?’ He replied: ‘No’.
Fine. So I told him that I have a person who is living with HIV and in need of an operation. Was he willing to do it? He told me 'No, no, no'.
I asked him 'Why?' He said 'No, just no'.
I moved from one to another until I increased the money to double the original cost for the operation and the fourth one agreed to do the surgery.
But I cannot describe for you how this patient was humiliated on the operating table. The way the surgeon was gossiping and talking—I mean maybe because of the change in anatomy he realized that he was an MSM? I don’t know, but the harm that the surgeon and nurses did to this patient in terms of what they said was much greater than the pain of the operation itself.
The question whether HIV transmission should be a criminal offence is a good one. If transmission is intentional, then yes, I think there is a need for some action to be taken. However there are many degrees of punishment. When it is careless or negligent, I would also say yes. As a medical doctor, I know that many people die because of malpractice, and I cannot forgive someone for that.
It is the same for the traffic accidents — if someone kills my son because he is reckless, I cannot forgive him. In the same way, if someone who knows that he is HIV positive is careless and just allows my son or my daughter to become HIV infected I would feel the same.
I am not saying he should get the highest degree of punishment but, for sure, something should be done. In terms of disclosure, I think if someone is not going to use a condom then they should disclose if they are HIV positive. Either use a condom or disclose, so that the other person can decide.
I am not a legal person and I am not sure what an appropriate punishment should be, but, for example, in the case of medical doctors and malpractice, they can be stopped from practicing for a month or two, or fined. I consider it to be a minor incident, not a major one, there are worse things that could happen, but there should be some penalty in place.
There have been a lot of efforts in using the law to change risky social behaviours — like female genital mutilation (FGM) or MSM. In the West it may work to change the law and then expect change on the ground.
But this experience does not translate to many other cultures. I am not saying stop working with the law, but first work within the custom, religion, and the culture of the people. Don’t target the person to change his behaviour—you need to work with the community.
No one can deny that the law is important, but in many countries new laws means new opportunities for corruption. So it is better to work with communities and with their leaders rather than devoting too much attention to the law.”
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
"The neighbours started to avoid my family. They used to shout at me and my daughter and we were not allowed to participate in any community activity".
Kaniz Fathema, Peer counsellor
Mukta Akash Bangladesh, Khulna, Bangladesh
"I was born in Khulna, a city in Bangladesh. In 2002 my parents arranged my marriage with a guy who had just returned from Saudi Arabia. I was in the second year at college. I was married in June 2002, against my will.
From the first year of our marriage, I noticed that my husband was often unwell. He had frequent fever, aches and stomach trouble. He was not willing to go to a doctor. In 2006 we had a daughter. In the same year he went to India and found out that he was HIV positive.
After he came back he wanted me and my daughter to be tested for HIV. In April 2006, he took me to the Khulna district hospital for an HIV test, and we found out that I was HIV positive. A few days later we found out that my daughter was positive as well.
Once my husband and in laws found out that I was HIV positive their attitude towards me changed.
They started to blame me for everything. My husband started to beat me. Although I have never asked him how I become HIV positive or if he knew before that he was HIV positive. Finally they wanted me out of the family and I returned to my parent’s house. After a few days he (my husband) came to my parent’s house and told the neighbours that I was HIV positive.
Soon my daughter started to become unwell. She was having frequent fever, mouth ulcers and pneumonia.
I took her to the local children’s hospital. I informed the doctor that she was HIV positive. Within minutes the whole hospital knew.
People were coming to see us, as if we were some kind of animal in a cage. Nurses were using gloves all the time. We were hated by everyone.
One day one of the cleaners told me that they were going to burn the beddings once we leave. After hearing this I took my daughter to a private clinic.
In this clinic, once the nurses got to know they started to avoid us. So, the doctor requested that we leave.
He feared that no one will come to his clinic if they heard about us. After returning home, I got in touch with a doctor from India. I used to get ART treatment for my daughter from India.
I started to look for a job but no one was willing to employ me knowing my HIV status.
The situation is really sad. Although I have a job now, I want to break free from this hatred and stigma.
Females are especially criminalised by HIV laws in my country, even considering the social status of women in Bangladesh.
It is breaching our human rights. It is causing spread of HIV/AIDS, and people are not willing to come forward to test because they fear to be criminalized.
I think criminalisation is a disincentive to finding out your HIV status. The criminalization and discrimination that I face are too much to bear.
If one transmits it willingly, then, I think HIV transmission should be a criminal offence. There should be support for HIV positive persons. We need to build more awareness. The number of awareness programs that we are doing is not sufficient at the moment.
Having HIV has changed me.
I used to know nothing about the world. But since I have been struggling for my daughter, I have changed. I know about HIV/AIDS and where to seek help now.
I am humiliated by my status. I hate when people hate me and look at me as if I am something strange.
The rights of people who know their HIV status should be the same as those who don’t. Because they are both human, and a positive person is also a normal human being".
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
“As a country we’re really struggling with what to do with HIV from a legal perspective."
Lomcebo Dlamini, Swaziland
Lawyer and Activist, Women in Law, Southern Africa (WLSA)
“As a country we’re really struggling with what to do with HIV from a legal perspective—not only the criminal lawyer. There was initially a panic and a lack of understanding of the issues—a hard line taken by the criminal law in terms of wanting to punish HIV transmission under things like ‘attempted murder’. But overtime and with the additional education that has been around, I think we have moved from that extreme position.
At the moment we don’t have any criminal law explicitly mentioning HIV, which is fine, and that is how we would want to keep it. But when issues of HIV arise in criminal cases you can tell that there is difficulty with the issue because of the capacity of the judicial delivery system—the judges, lawyers and judicial officers. They tend to focus on procedural issues rather than on the more controversial issues in a case. For example in terms of explicit criminalisation of HIV transmission it is clear that there should be no offence. I formed this opinion through my work with women.
There are so many things that impact on a woman’s life—well beyond the legal—for example reasons why someone may or may not disclose, or may or may not feel that they are able to disclose. But in terms of aggravating circumstances such as in a rape case, it is more difficult. Although it could be seen as stigmatizing, there is no doubt that an added impact occurs for the victim of rape if HIV transmission also occurs. It is very difficult.
I don’t know why this has happened with HIV and AIDS, but for whatever reason now the onus seems to be on people living with HIV to disclose their status. Why should that be the case?
I mean we all have a responsibility over our own lives. We’re all receiving the same education and the same information. You’re rights come with responsibilities and at the end of the day are you expecting someone else to do it for you? You have to do it for yourself. The onus should not be on another person—ultimately we all have the responsibility. If someone chooses to disclose or doesn’t choose to disclose, you should still have consistent behaviour in terms of protecting yourself.
When the issue arises in cases we’ve got challenges dealing with it. There doesn’t seem to be clarity within the justice delivery system or direction in terms of what they should do. Let’s not put HIV in the law—it is just a condition. How is it different from other conditions like TB? And it really is not practical. It would be very difficult to prove HIV as an aggravating offense. You would have to prove transmission at the time, which in our country could have been two or three or four years before the case goes to court.
Was the perpetrator HIV positive at that time? Was the victim HIV negative at that time? Reducing HIV to have consequences in the law as an aggravating circumstance doesn’t have much utility. How do you ensure that you protect the rights of all involved and not add to stigma? Criminalization would just compromise the efforts that have already been made, and people would not test for HIV.
Instead of focusing on the law, efforts should focus on the after care treatment that people receive for example after rape, or gender based violence or during HIV testing and counseling.
We need assistance to understand how we can deal with HIV in a lot of other ways rather than using the law. As a country we haven’t quite had the conversations, and the legal sector and parliamentarians need help to really look at the issues.
I am a lawyer and activist in Swaziland at the moment. When you start engaging in these issues it initially starts as something objective—issues in the research or issues for clients. But in reality, as soon as you lose friends or as soon as you go for your own test, it brings it home closer. Then your clients become not just faces but part and parcel of your life.
Working with HIV issues has challenged individuals in organizations to reflect on their own values. HIV raises difficult issues - it’s like King Mswati’s saying: HIV is everybody’s business.”
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
“As researchers our main purpose is to work for disease control, not to contribute to criminal investigations...the legal situation makes our work harder.”
Jan Albert is Professor of Infectious Diseases and has worked at the Swedish Institute for Infectious Disease Control (SMI). Currently he works as an HIV researcher at the Karolinska Institute. He has been an expert witness in several trials regarding HIV transmission.
"HIV is interesting from a scientific point of view, the organism itself, but it’s also important and meaningful work. I’m interested in the areas where research, patient care and public health overlap.
We have had quite a few convictions for wilful or reckless HIV transmission in Sweden. We have also had a few convictions for exposure without transmission. There are no specific HIV laws, instead HIV transmission is dealt with under the regular criminal law. The problem is that it has not been handled in a uniform way by Swedish courts, and the length of imprisonment varies substantially.
We also have a Communicable Diseases Act that involves a number of contagious diseases, including HIV, chlamydia and gonorrhoea, but not only STIs.
The main principle of the act is that people who have these contagious diseases, and their doctors, have several obligations. As a doctor, you’re obliged to trace the people the infected person has had contact with, and, as a patient, you should avoid spreading the disease by informing your sex partners and using a condom.
I think a general discussion is needed regarding the way we deal with HIV transmission – but no other infectious disease - under the criminal law.
In my opinion the lengths of penalties are way too long. I don’t think we should remove all legislation around HIV, but I believe that it would work better if it were handled under the Communicable Diseases Act.
I see HIV transmission from three different perspectives, as a member of a public authority, as researcher and as human being. Of course, it’s impossible to not be affected as a human being and sometimes it has been problematic to juggle these different roles.
Since I’ve been an expert witness in court trials, my personal opinion regarding people living with HIV (PLHIV) has changed.
In my experience the accused persons are seldom ‘raw criminals’. Instead, they are people who have been careless or even reckless. There are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV, which is how these acts often are described by the media.
Instead, my impression is that they hope that transmission will not happen, or sometimes they do not care, but even then there is no intent to transmit. You can relate this to drink driving, the drunk driver acts carelessly but the intent isn’t to kill someone. I think you have to make this reasoning a part of the debate, especially in the media and also in relation to the penalties.
I’ve seen prejudice in the media reporting of these cases, but that’s how the media works and I have learnt how to deal with it. They often want the sensational and spectacular news, especially tabloids. I wished there was place in the media for a more nuanced view; sometimes we see it, but not very often.
I know about the genetic evolution of HIV from my research and public health work. I use genetic methods to study the principles of HIV transmission, but the same methods can be used to investigate whether it is likely that a person has transmitted HIV to another.
Thus, genetic research to improve our understanding of how the infection is spread can also be used as evidence to convict.
Because of the practise of applying criminal law to cases of HIV transmission it is hard for public health authorities to collect information about the spread of HIV in Sweden.
Research ethics are really brought to a head in these issues. As researchers our main purpose is to work for disease control, not to contribute to criminal investigations. So the legal situation makes our work harder. Aside from that, criminalisation maintains stigma around HIV. If you’re trying to normalise HIV as a disease, it’s counterproductive to put people in jail and have big headlines in the media about ‘HIV criminals’.
Of course, it’s important that people living with HIV have rights and the same rights as everybody else. But the critical question is whether this means that they have the same rights as everybody else to have unprotected sex whenever they want to.
I don’t think that’s straightforward. We need a balanced discussion and legislation, which protects the rights of both infected and uninfected persons.
I don’t think we will see a dramatic change in Sweden in the next few years. But I hope that we will get a more nuanced and moderate view on HIV. There will be more and more HIV infected people living in Sweden, and the rest of the world.
Do we want to turn a proportion of our population into potential criminals every time they have sex?"
This is one of the stories exposing the effect criminal laws on HIV transmission are having on people’s working and private lives in 'Behind bars: life stories of people affected by the criminalization of HIV'. For more information and to read the other stories: http://bit.ly/criminalization.
Launched at the International AIDS Conference in Vienna, July 2010, Criminalize Hate Not HIV is part of a growing campaign to raise awareness about issues relating to the criminalization of HIV transmission. As part of this campaign, a short conscious raising film was released today - World AIDS Day.
The short-film is stylized and artistic, showing the humanness of sex, of relationships and of HIV. The people in the film are from many walks of life, are not professional actors, and many are living with HIV. It builds on IPPF’s Declaration of Sexual Rights and purposefully focuses on sex - irrespective of how, where, with whom and why people have sex. The film hints at not only the laws criminalizing HIV transmission and exposure but also laws criminalizing behaviours associated with HIV transmission (drug injection, sex work, and sex between men).
Arabic, French, Spanish and Swahili versions of the film are also available: http://www.youtube.com/IPPFHIV
By Kevin Osborne (IPPF)
Almost 20 years after the HIV virus was discovered, law and policy is still used to criminalize the transmission of HIV. In some countries this happens under old laws (from the nineteenth century or exported through colonialism) and in others under new laws explicitly drafted as part of the national response to HIV.
The nature and impact of the criminal law and its impact on the response to HIV is neither well documented nor well understood. But it risks further marginalizing people already vulnerable to HIV infection, including women, men who have sex with men, sex workers and people who use drugs. Legislation and legal practice is different in every country around the world, and collectively we need to become more conscious of the impact of both the criminal law and its implementation on national responses to HIV.
To call attention to these and other related issues, the International Planned Parenthood Federation (IPPF) has published "Behind Bars" a collection of interviews that exposes how criminal laws regarding HIV transmission are affecting people's working and private lives all around the world.
The stories illustrate the personal and professional dilemmas faced by doctors, lawyers, researchers and advocates. They include the stories of a doctor who, against her ethical principles, was forced to aid a police investigation, a woman living with HIV who prosecuted her former partner, and a lawyer who advocated in an HIV transmission case.
By fueling stigma, criminalization undermines efforts to prevent, treat and care for HIV.
From the UK to the USA, Mali to Mozambique, Azerbaijan to Australia, criminal laws are increasingly being used to prosecute HIV transmission or exposure. But, as the interviews reveal, criminal law is a blunt instrument for HIV prevention.
Behind Bars show how a simplistic "law-and-order‟ response to HIV can intensify a climate of denial, secrecy and fear and provide a fertile breeding ground for the spread of HIV. The drive for criminalization of wilful transmission of HIV is proving a costly intervention - in terms of time and money spent on investigating individuals' private lives and determining the burden of proof - and seems to have had limited impact on HIV prevention.
Contributor Jan Albert, Professor of Infectious Diseases at the Karolinska Institute Sweden, said:
“Since I‟ve been an expert witness in court trials, my personal opinion regarding people living with the virus has changed. In my experience the accused are seldom "criminals".
There are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV, which is how these acts often are described by the media. There will be more and more HIV infected people living in Sweden, and the rest of the world. Do we want to turn a proportion of our population into potential criminals every time they have sex?”
These stories show that criminalizing the transmission of HIV is actually undermining our efforts to prevent the spread of HIV. Fear of prosecution deters people from coming forward for testing and counselling; policing the bedroom effectively drives the problem underground.
Behind Bars is published as part of IPPF's Criminalize hate, Not HIV campaign, for World AIDS Day, December 1, 2010. Each day, one of the nine stories will be posted to our blog.
For more information and to view all the stories: http://bit.ly/criminalization
Original article posted to RH Reality Check: http://www.rhrealitycheck.org/blog/2010/11/29/behind-bars-life-stories-people-affected-criminalization
