Criminalising HIV Will Not Work. 16/9/10

President Museveni hinted in February 2007 on the introduction of legislation that would punish people who intentionally spread HIV

AllAfrica

A German singer was recently found guilty of causing bodily harm to a former partner by having unprotected sex with him despite knowing she was HIV positive.

Nadja Benaissa, a member of German girl band 'No Angels', was convicted on August 26 by a court in Darmstadt, Germany, and handed a two-year suspended sentence. The 28-year-old had confessed to having unprotected sex and keeping her infection secret, but denied intending to infect anyone.

In Uganda, President Museveni hinted in February 2007 on the introduction of legislation that would punish people who intentionally spread HIV. More than three years after, the HIV Prevention and Control Bill was tabled in Parliament in May 2010.

However, events leading to this have divided the public and various stakeholders' opinions on the benefit of the law, especially since the same offence is covered under Section 171 of the Penal Code Act of Uganda.

This states inter-alia that, "Any person who unlawfully or negligently does any act which is and which he or she knows or has reason to believe to be likely to spread the infection of any disease dangerous to life, commits an offence and is liable to imprisonment for seven years."

Uganda was heralded as the yardstick of HIV prevention due to its abstinence, condom use campaigns, HIV testing and public debates which to a large extent reduced the rate of infection.

The anxiety that has surrounded the advent of trying to criminalise deliberate HIV infection has negatively impacted on the aforementioned, especially increasing stigmatisation of people living with HIV. It has also induced fear of discussing difficulties in managing safer sex and created a false sense of security for people who are not infected, believing they are protected.

The UK, whose common law is the guide for Uganda, did not spend fortunes enacting new legislation criminalising HIV infection. It relied on the 1861 Offences Against the Person Act and, unlike Uganda wanting to prosecute for deliberate infection, has only prosecuted for reckless infection.

Reckless infection occurs when a person with HIV was careless before sex because they did not say they had HIV (or lied), or passed it on by not using a condom. They as such did not intend, want or plan for their partners to get HIV but they are guilty of not trying to stop it happening.

The deliberate infection Uganda wants to prosecute (at least by definition) would not involve sexual relations as it is relatively unlikely that sex will lead to HIV infection as is seen in discordant couples and other lucky escapes, hence sex would be a very ineffective method of passing on HIV if someone was really intent on doing so.

The concept of wilful or deliberate transmission is referring to reckless infection and whilst most nations offer a maximum sentence of 5 years in sensible prison conditions, Uganda is looking at 10 years and we all know what our prison conditions are like.

Uganda is also not ready medically, financially and culturally to implement this law. Medically proving that someone infected another has always been almost impossible even to more medically developed nations.

Such evidence would also breach doctor-patient confidentiality which is the bedrock of the medical profession and would require a lot of corroboration and expense. This law has been ill conceived the world over and the UK and other nations are coming to terms with its negative effects and barely using it.

Uganda as a nation that is a beacon of hope for HIV can focus any available financial resources on prevention, awareness, education and its prior positive HIV programme. For the consenting adults, the principle of 'voluntary assumption of risk' whenever one has unprotected sex should operate.

It is unfair to impose a duty on a person with HIV to disclose his status in the bedroom, hard as it may be, yet in this day and age hardly does a 'victim' ask the compelling question of the other's sexual health or request for an STD test before embarking on unprotected sexual relations.

Besides, if every HIV person in Uganda pointed a finger at someone he/she believed they got it from, the courts would certainly be overwhelmed. As expected, the Benaissa ruling has elicited some protest from Germans for pinning blame on the lady, yet her partner also shared equal responsibility.

Laws criminalising HIV transmission are not a consequence of reasonable public health decisions but irrational panic and a weak foundation for rational law making.