CRIMINALIZING HIV TRANSMISSION COUNTERPRODUCTIVE

The passing into Law last week of the HIV Prevention & Control Bill 2010 while trying to control the HIV pandemic may fuel instead of stall the spread of the virus.

The promoters of bill sought to create a legal framework for the prevention and control of HIV, disclosure of sero-status to reduce transmission, provision of testing and counseling services and prescribing penalties for intentional transmission of HIV.

On the surface of it the motives behind the bill are noble even laudable but we know that even the road to hell is paved with good intentions.

One sees this bill as knee jerk reaction to the recent increases in HIV prevalence after the country had for many years registered consistent success in slowing the rate of new infections.

Two of the most controversial clauses criminalize the transmission of HIV. Clause 39 seeks to penalize anyone who "attempts to transmit HIV" to another person to a fine or/and upto five years behind bars, while clause 41 goes after people who "willfully and intentionally transmit HIV" to a fine or/and imprisonment of up to 10 years.

The major danger with this is that it stigmatizes pele with the virus, a throw back to the early days of the pandemic when, driven by fear, societies were most likely to deny the existence of the challenge at best or ostracize victims entirely.

Uganda, hobbled by a lack of resources in the 1980s determined that the best thing was to be open about the problem even though it might have affected the economy in lost earnings from tourism for example. The net out come was that Uganda came to grips with the pandemic long before our more conservative neighbours allowing us to roll back its deadly advance.

Once resources were available widespread testing for HIV helped in helping people access treatment and alter their behavior.

In determining that a criminal act has been committed this new law presupposes that the one trying to infect knows their HIV-status or at least that the law will be more punitive if it can be proved that one knew they were carrying the virus and indulged in risky sexual behavior.

This might have the effect on discouraging people for going for testing in an effort to prevent from future liability under this law.

If this is the outcome it would be a significant step backward in the war against AIDS. It has been an uphill task to get people to voluntarily present themselves for testing the last thing we need is for that momentum to be slowed or reversed altogether.

One can understand the desire to criminalize transmission of the virus than say transmitting Other sexually transmitted infections or cholera or Ebola. In sub- Saharan Africa nine in ten infections are through sexual intercourse, it therefore threatens our need to procreate and also probably the only source of pleasure for the majority of people, dare I say.

But we know that not all people carrying the virus contracted it through immoral behavior and so deserve their fate, as the hypocritical moralists among us maintain. Some are children, victims of sexual violence or contracted it through blood transfusion. But closer to home, women who are largely not in control of their sexuality may fall victim to this because all pregnant women are tested for the virus and their significant others may accuse them of infecting them, as the technology to know who infected who has not been developed.

It does not help that HIV transmission has been criminalizes in the west so the opposition to these kind of laws sound like voices in the wilderness.

Advances in HIV research mean that infection is no longer a death sentence, with life expectancy of victims now up to as high as 75. But in order for those infected to be treated effectively they need to test as soon as possible. Stigmatizing them only makes this that more difficult.

Clearly fear is driving this kind of legislation. The only way to combat fear is through knowledge, as the successful campaign against the epidemic showed in the 1980s. This is not an abstract concept to us in Uganda we know this through hard experience. 

It sounds counter intuitive but knowledge rather than punitive measures are definitely where the continued gains against HIV will be made.