Mr. Gahutu’s story is telling. He is firm to the belief that he got the virus from his wife. “I got married over seventeen years ago and since then I have never had extramarital sex,” he says.
The soft-spoken Mr. Gahutu from the western provincial town of Nyamagabe is sure that his wife may not have been faithful. Although they never went for testing before getting married, his first born, a 17-year-old daughter, is HIV negative. Together they have six children.
“This implies that we must have been negative when we got married, but later on when my wife was pregnant two years ago, she tested positive and I was advised to have a test, which came out positive,” says Gahutu.
As per the present situation, according to Mr. Mulisa Tom – who deals directly with the legal dimensions of HIV, it is not possible to criminally charge anybody in Rwanda for transmitting the HIV virus because the local criminal law does not provide for it. Mr. Mulisa is the Legal Officer in Charge of Human Rights and HIV/Aids at the National University of Rwanda’s Legal Clinic.
Unlike Rwanda however, some countries in this region already have laws to prosecute people that may willfully transmit HIV. But HIV/Aids activists, researchers and the UN Aids Agency – UNAIDS – are not amused.
During the just concluded XVII International AIDS Conference in Mexico, the criminalisation of HIV transmission or exposure was one of the burning topics.
Concern over the growing international trend towards the criminalisation of HIV transmission or exposure was documented highlighting a “criminalisation creep” in Europe and Central Asia, as well as the rapid spread of what campaigners have called “highly inefficient laws” in West and Central Africa.
The conference heard that since 2005, Western and Central Africa have witnessed an explosion of national HIV-specific criminal exposure and transmission laws that threaten to make it one of the most legislated regions in the world on HIV.
In the spotlight are Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone – that have the laws. Angola, the Democratic Republic of Congo, Malawi, Madagascar, Tanzania and Uganda, are proposing similar laws.
Some the of laws that have been introduced, according to Aidsmap – an HIV/Aids newswire, contain a number of problematic provisions, such as the requirement that someone newly diagnosed with HIV must disclose their status to a “spouse or regular sexual partner” as soon as possible and at most within six weeks of the diagnosis.
Others stipulate mandatory HIV testing during antenatal care, following a rape charge, and “to solve a matrimonial conflict”.
“Willful transmission” is another aspect of such laws, defined as transmission of HIV “through any means by a person with full knowledge of his/her HIV/AIDS status to another person” including via sex, needle-sharing, and mother-to-child transmission.
Mr. Richard Pearshouse, a Canadian HIV/AIDS Legal expert told delegates that this is worrying, describing the offence as “extremely vague”.
He argued that the phrase “through any means” was imprecise and may end up criminalising all HIV-positive individuals, even those who practice safer sex regardless of disclosure and actual risk of transmission.
Trying to solve the problem of growing cases of infections using the courts, activists like Ms Valerie Musemakweli, say will take the fight against the disease back so many years.
Ms Valerie – who has lived with the virus for some 15 years says people who know their sero-status will not reveal it to their spouses or even seek medical support, "and could move to another place where they are not known" just to escape the law.
Sometimes you could get the virus without knowing how you go it, argues Ms Valerie, but you could tell your spouse just because of your conscience to protect them. "But when you are forced to do that by law, somebody may not feel comfortable to do that and therefore just keeps silent for fear the partner may abandon them and tell the whole would about your status".
Evidence difficult to prove
In February this year, Gasana, 29 years, from the Southern Province, was diagnosed HIV positive. His newly wedded bride Jacqueline – aged 22 was found to be negative.
Out of furry, Jacqueline dumped her husband and was encouraged by her family to remarry. Mediation and sensitization about HIV/Aids by the University Legal Clinic encouraged the youthful Jacqueline to return to her husband – but they are living in separate bedrooms.
In a situation where Gasana would have been required by law to tell his wife, it is doubtful – later alone accept to be counseled. Instead, he would have kept quiet with the understanding that if she gets to know, she will leave him.
"If what is needed today is disclosure. Then where does the right to privacy and confidentiality lie", wonders Mr. Mulisa of the University Legal Clinic. Instead, he says mechanisms to educate the public about voluntary disclosure are more feasible, to reduce the wide number of 'potential criminals'.
The law can be helpful in situations where somebody plans and executes the “intention of willfully” transmitting the HIV/Aids virus to another, which can be an offence in criminal justice, according to some experts.
Case in particular could be if a doctor makes it a point to infect a patient with a syringe well aware it has been used by an infected person.
"But the burden of proof in issues where the various modes of transmission are usually practiced in privacy, with individuals who are not minors (by the law of the particular Country) and it was not rape or defilement because the consent of the parties existed", argues Mr. Mulisa.
Intentional transmission
After HIV/Aids, activists say, similar laws would be necessary for diseases like Ebola, Tuberculosis and others where contact with an individual may lead to transmission.
Should there be more legal means to fight HIV/Aids or should governments invest in health care services and reduce transmission through community awareness programmes.
The UN clearly does not want to have a growing trend of criminalising HIV exposure and transmission to go on undeterred.
At the Mexico conference, UNAIDS unveiled a new policy proposal arguing against all prosecutions for HIV exposure or transmission with the exception of “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.”
According to Aidsmap, the policy states that, “there are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights.”
The policy also argues that alternatives to criminal sanctions should be explored: “Instead of applying criminal law to HIV transmission, governments should expand programmes which have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative”
The UN Agency calls on governments to “strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and children; improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and children, and support women’s equality and economic independence, including through concrete legislation, programmes and services.”
Do women really need these laws?
These new laws have arrived under the guise of protecting women – who have few legal or human rights in many African nations – notes Michaela Clayton of the AIDS & Rights Alliance for Southern Africa (ARASA) – to the Mexico conference as reported by Aidsmap, but she asks, “is this what women really want?”
Clayton said that 61% of HIV-positive individuals in sub-Saharan Africa are women and that women are the often the first person in a couple to know their HIV status due to antenatal screening. And indeed, like the case of Mr. Gahutu shows.
Women, Clayton said, are then often blamed for “bringing HIV home” and consequently often feel unable to disclose their HIV status to their male partners due to a very real fear of physical harm and eviction.
Power imbalances within relationships mean most women are unable to practise safer sex, since condoms are a male-controlled prevention method. These laws may deter women from accessing HIV testing and services aimed at preventing mother-to-child transmission of HIV, she pointed out.
“Criminalisation is bad public policy,” she said. “Jurisdictions should not adopt criminalisation policies and those that have already done so should reverse course.”
Better NOT
In Rwanda, as some activists say, should such a law come to force, the consequences to the fight against HIV/Aids that has brought down prevalence and infection rates, will be history. "No one will ever again take an HIV/Aids test in fear of being suspected to be a PONTENTIAL CRIMINAL", Mr. Mulisa notes.
This law, as he points out, will reverse the current measures where pre-test counseling has led to many people publicly coming out to the public to educate the others and join the campaign to fight the spread of HIV/Aids. (End)