Where Giving Someone HIV Is a Crime
WHY YOU SHOULD CARE
A new law is generating outrage in Uganda, and this time it’s not (just) against gays.
It is among society’s most basic reactions to a deadly disease: Punish anyone who transmits it. But in the years since jurisdictions around the world passed laws against transmitting HIV, a few countries in Africa have rejected the idea because it discouraged people from getting tested. Last summer in the U.S., the Justice Department asked states with such laws to reconsider.
Yet even as tides change around the world, one country can be counted on to hold out: Uganda, which has also made headlines with its sweeping anti-gay legislation. No sooner did its courts strike down the anti-gay law than it promptly passed another controversial bill, the HIV Prevention and Control Bill. This new law criminalizes “willful” HIV transmission with up to 10 years in prison and allows doctors to share test results without patient authorization. Critics say that while the law could be used to persecute those living with HIV, it will almost certainly deter people from getting tested: After all, if you don’t know you have a disease, how could you willfully infect someone else? “It’s a cheap and populist law,” says Flavia Kyomukama, who lives with HIV and is the advocacy manager of Uganda’s Women’s Organization Network for Human Rights Advocacy.
Dozens of activist groups say the law will impede the fight against AIDS and encourage discrimination and stigma.
Official hysteria might play a part. Uganda is the rare African country where HIV rates are ticking up, not down. Some 7.3 percent are infected, up from 6.4 percent in 2005, and about 140,000 new cases emerge each year. The Ugandan government argues that the law — which passed unanimously — addresses a surge of intentional transmission cases. “It had become a habit for people who know they have HIV to prey on innocent partners,” says Sam Okuonzi, a physician and member of the parliament, “in order not to ‘die alone.’”
While health workers say such instances are rare, local media have given a lot of coverage to alleged cases of criminal transmission like that of Rosemary Namubiru. This HIV-infected medical worker was sentenced to three years in prison and labeled “killer nurse” by local press for using a needle that had been contaminated with her blood to treat a 2-year-old patient. (Namubiru’s sentence was commuted in November.)
Meanwhile, dozens of activist groups — from local health workers to Human Rights Watch — say the law will impede the fight against AIDS and, like the anti-homosexuality law, encourage discrimination and stigma. “Criminalizing a disease is never a good idea,” says Lawrence O. Gostin, director of the World Health Organization’s Collaborating Center on Public Health Law and Human Rights. If someone willfully and successfully infects another with a disease, he should be prosecuted under general criminal law, he says. But “any disease-specific criminal law is unethical” and ineffective, he says. What does work? Access to information, according to the WHO, as well as condom distribution, testing and addressing discrimination.
To be sure, the law does include some provisions along those lines, like guarantees of access to medical services and rules that prevent discrimination against HIV-positive people. Still, sexual-health activists believe criminalization will nullify any beneficial consequences by engendering fear and putting innocent people behind bars. After all, proving who is the source of an HIV transmission is virtually impossible. “HIV-positive people, we are on our toes,” says Kyomukama, “and LGBT people have to look over their shoulders to ensure they are not framed.”
Indeed, many fear this new law will be used as a tool to target the gay community, which has already been hesitant to ask for HIV-related services for fear of being outed under the anti-homosexuality law. “This will send LGBT people underground and lead to riskier sexual behaviors,” says Dr. Frank Mugisha, executive director of Sexual Minorities Uganda.
But the biggest effects of the law are going to fall mostly on women, because the text establishes mandatory testing for mothers-to-be and victims of sexual assault. Uganda’s sex workers, who have a 37 percent rate of HIV infection, will likely avoid health services for fear of being prosecuted. And the fact that medical professionals are allowed to disclose HIV test results without the patient’s consent could also put women at risk of violence: “Women might be harassed or beaten up by their husbands when they find out,” says Dave Scamell, deputy director for sexual health and rights at the American Jewish World Service, who works closely with many local groups opposing these measures.
A host of civil society organizations are readying to challenge the law in court, hoping to achieve the same result they did against the anti-homosexuality act. Meanwhile, studies show that HIV might be slowly becoming less infectious. The virus seems to be evolving faster than Uganda’s approach to combating it.