The Impact of Criminalization on the AIDS Epidemic in Kenya Through section 24 of the HIV Prevention and Control Act

There is an apt West Africa saying that, to get at the root cause of the murder, one must find the blacksmith who made the machete. It seems the government ignored this saying when the Minister of State for Special Programmes through Legal Notice No. 80 of 2010 commenced section 24 of the HIV and AIDS Prevention and Control Act from the 1st Day of December 2010. Despite this years theme on World Aids day being ‘Universal access and human rights’, transmission of HIV has now been criminalized by this statute.

Section 24 of the HIV and AIDS Prevention and Control Act, 2006 provides that a person who is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall- (a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and (b) inform, in advance, any sexual contact or person with whom needles are shared of that fact. Further, a person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected. We urge the relevant authorities to revise this law and make appropriate amendments because of very good reasons:

Recognizing the devastating impact of an HIV diagnosis

No one wants to be infected with HIV. An HIV diagnosis can have a devastating effect on a person, especially if he or she has been deceived, and can result in feelings of anger, betrayal, grief and a desire for revenge.

Behind each HIV diagnosis there is a story. People put themselves at risk for getting HIV, or of infecting others, for complex reasons. It is almost never the case that someone maliciously and intentionally sets out to infect another person. Criminal charges, trials and convictions are not a cure for HIV. They cannot rid anyone’s body of the virus. And they will not stop the HIV epidemic.

To reduce the number of new HIV cases, we need to ensure people who are infected with HIV receive proper medical care and other support. We need innovative public education campaigns so that everyone is aware of their risks. And we need to fight the stigma that forces so many HIV+ people to hide their status. These measures will promote the wellbeing of people infected with HIV and reduce the spread of HIV.

What does criminalization do?

What does criminalization of HIV non-disclosure do for public policy?

The wholesale criminalization of HIV non-disclosure is bad public policy because it undermines HIV prevention, is harmful to HIV positive people and impacts negatively on Kenyan society.

Criminalization diverts attention from developing and implementing policies that have proven effective at reducing new HIV infections. We really need policies that support the scale- up of HIV testing and counseling, and address the social determinants of HIV risk including poverty, violence, drugs and discrimination.

The criminalization of HIV non-disclosure attempts to prevent HIV transmission through deterrence and punishment. This approach has been strenuously criticized as bad public policy by leading judges, legal scholars and international organizations including the Joint United Nations Program on HIV/AIDS.

Criminalization of HIV non-disclosure is part of a growing trend to respond to complex social problems using the blunt instrument of criminal law. “Law and order” approaches to problems such as drug use have proven counter-productive. There is no reason to expect that the use of criminal law to reduce HIV transmission will work any better.

Public policy should be based on the best available evidence. Kenya’s embrace of criminalization reflects moral judgments and unfounded assumptions, rather than evidence. There is no good evidence to show that criminalization of HIV non-disclosure makes HIV positive people more likely to disclose their status, reduces sexual behaviours that place people at risk of HIV, or reduces new HIV infections.

What does criminalization of HIV non-disclosure do for the public health response to HIV/AIDS?
• Criminalization weakens the public health response to HIV/AIDS.
• The criminal law approach stands in stark contrast to evidence-based, flexible and effective public health strategies that involve education, testing, counseling, and a range of sanctions to respond to behaviors that places others at risk.
• Criminalization can make people fearful of HIV testing and less likely to approach the public health system for information on reducing risk and support for safer behaviours.
• Untested and therefore untreated people are usually more infectious and more likely to spread HIV to others.

What does criminalization of HIV non-disclosure do for the court system?
• Criminalization promotes clogged courts. Our court system is already overburdened. Dealing with HIV non-disclosure in the courts comes with a high cost to both society and the people involved.
• Courts may not be in a position to make the right decision. Since these cases are about the intimate details of personal relationships, it is often difficult to prove or defend against such charges. And police, prosecutors and judges are not experts in epidemiology, public health or the science of HIV transmission. So decisions about laying and prosecuting criminal charges, and court decisions, may be influenced by prejudices and fears.
• People may use the criminal justice system for personal gain. They may lay charges (or threaten to do so) against a sexual partner to control that person, out of a desire for revenge, or when a relationship breaks down. If they are good liars, their sex partners may be wrongly convicted and end up in jail.

What does criminalization of HIV non-disclosure do to community organizations?
• Responding to criminalization places unnecessary new burdens on already over-burdened community organizations. Every day there are more and more people living with HIV in Kenya, yet government and private support has not kept pace with this ever-increasing need for front-line services.
• AIDS service organizations should be able to devote their energy and resources to services that have been shown to reduce HIV transmission and improve the lives of people living with HIV—education, testing, support services and programs addressing stigma, discrimination and poverty.
• Fears of legal liability will also interfere with counseling and education work in community organizations.

What does criminalization of HIV non-disclosure do for people living with HIV?
• Criminalization demonizes people living with HIV and places them at greater risk of isolation, stigmatization and discrimination.
• Criminalization is a backward step in the response to HIV that can make people less likely to disclose their status if they know it, or to find out their status by getting tested.
• Using the criminal law to address issues of HIV exposure may have disproportionate impacts on specific groups. Some people living with HIV, especially sex workers and women in abusive relationships, may face violence if they are obligated to disclose their HIV to sex partners even where there is negligible risk of HIV transmission.

What does the criminalization of HIV non-disclosure do for the general public?
• Criminalization makes the general public more vulnerable to HIV infection by giving people a false sense of security.
• Criminalization sends the message that because HIV positive people have the responsibility to disclose their HIV status; people are “safe.” This may increase risk behaviours amongst HIV negative people who will count on every HIV positive person to disclose.
Criminalization takes the emphasis away from the tradition of shared responsibility for safe sex and preventing the spread of HIV. It is everyone’s responsibility, whether they know their HIV status or not, to ensure that HIV is not transmitted. Criminalization potentially divides communities that need to be working together to fight the spread of HIV.

What are the alternatives to the criminal law?

Give public health authorities a greater role.
Public health authorities should do their utmost to support people to integrate their HIV infection into their lives, while promoting their health and that of their sexual partners. Public health interventions should progress from the least invasive, least restrictive responses, to more restrictive or coercive responses, including legal sanctions under public health laws, if necessary.

Re-commit to HIV prevention. All levels of government should focus HIV prevention and awareness on people who do not have the knowledge or skills necessary to protect themselves from HIV. Public health should undertake these two activities in concert with community-based organizations that serve the needs of people living with or at risk of HIV.

Restrict the use of the criminal law. UNAIDS has urged governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.

Recognize that HIV is here to stay. There is no cure. And the reasons people become infected with HIV are complex and involve sex, disease, poverty, and power within relationships and in society. So it is unrealistic to expect that we can prevent all new cases of HIV, or that something as blunt as the criminal law will make a real difference in decreasing the number of new HIV infections.

Fight ignorance and stigma. Ask yourself, “What keeps some people from disclosing their HIV status?” The answer for many of these people is the stigma and discrimination that people living with HIV face every day. If there were less ignorance, prejudice and stigma people would have less difficulty disclosing their HIV status.

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