The authors provide ten reasons why criminal laws and criminal prosecutions for people transmitting HIV to others are a bad strategy. First, criminalisation is ineffective. Second, what is really needed are measures that really protect those at risk of contracting HIV. Third, criminalisation victimises, oppresses and endangers women. Fourth, criminalisation is often unfairly and selectively enforced. Fifth, criminalisation places blame on one person instead of two. Sixth, these laws are difficult and degrading to apply. Seventh, many of these laws are extremely poorly drafted. Eighth, criminalisation increases stigma. Ninth, criminalisation is a blatant disinducement to testing. And tenth, criminalisation assumes the worst about people with HIV and, in doing so, it punishes vulnerability.
Values, Policies and Rights
In the generalised epidemics of HIV in southern Sub-Saharan Africa, men who have sex with men have been largely excluded from HIV surveillance and research. Epidemiologic data for MSM in southern Africa are among the sparsest globally, and HIV risk among these men has yet to be characterised in the majority of countries. A cross-sectional anonymous probe of 537 men recruited with non-probability sampling among men who reported ever having had sex with another man in Malawi, Namibia, and Botswana using a structured survey instrument and HIV screening with the OraQuick© rapid test kit. The HIV prevalence among those between the ages of 18 and 23 was 8.3%; 20% among those 24–29; and 35.7% among those older than 30 for an overall prevalence of 17.4%. In multivariate logistic regressions, being older than 25 and not always wearing condoms during sex were significantly associated with being HIV-positive. Human rights abuses were prevalent, with 42.1% reporting at least one abuse. Concurrency of sexual partnerships with partners of both genders may play important roles in HIV spread in these populations. Further epidemiologic and evaluative research is needed.
Gay Kenyans will be driven further underground and away from HIV prevention, treatment and care services following a recent call by Prime Minister Raila Odinga for a nationwide crackdown on homosexuals, activists say. Addressing a rally in Nairobi on 28 November, Odinga ordered the police to arrest and bring criminal charges against anyone found engaging in sex with someone of the same gender. He added that the country's constitution made it clear that homosexual activity was not tolerated. David Kuria, chair of the Gay and Lesbian Coalition of Kenya, said the prime minister's remarks will negatively impact the government's efforts to include the country's gay population in HIV prevention programmes. For example, activists warned that few would be willing to participate in a government survey - due to start in December - that aims to draw on responses from the country's gay population to inform HIV programming for men who have sex with men (MSM). Activists said potential respondents would be too fearful of being targeted by the authorities. Homophobia is widespread in Kenya, but this is the first time such a senior political figure has openly called for legal action against homosexuals. In October, a cabinet minister who called for tolerance towards gays was urged to resign for promoting ‘un-African’ culture.
For years, there has been silence at the global level about the disproportionate impact that HIV and AIDS have on men who have sex with men (MSM). This silence has led to unabated epidemics and especially weak HIV prevention programming at national levels for MSM across the globe. This policy brief aims to provide universal guidelines for HIV and AIDS services that target MSM. It also discusses the legal context in Africa, where sex between members of the same sex is illegal in most countries, explaining how criminalising homosexuality heightens the risk for HIV transmission and drives those most at need away from prevention, care, treatment, and support services. The brief points to consensus among HIV behavioral researchers and practitioners that combination approaches to prevention, sustained over time and tailored to the specific local needs of MSM, should be adopted to effectively address HIV prevalence and incidence among MSM. These approaches should combine and integrate biomedical and behavioral strategies with community-level and structural approaches. The brief provides some important core principles of practice that can serve as broad guidelines in the design, implementation, and evaluation of targeted HIV prevention programmes and paradigms within MSM communities worldwide.
AIDS activists in Zimbabwe have launched a major drive to ensure that the rights of people living with HIV are enshrined in the new constitution. The Global Political Agreement signed in September 2008 between Zimbabwe's various political rivals, which gave rise to the coalition government in February 2009, includes writing the new constitution expected to be introduced in 2010. ‘We are not calling for a token participation, but significant and meaningful involvement that will go a long way in promoting our welfare and rights when the constitution is adopted,’ Tonderai Chiduku, advocacy coordinator of Zimbabwe National Network of People Living with HIV and AIDS (ZNNP+) said. The Southern Africa AIDS Information Dissemination Service (SAFAIDS) and ZNNP+ are calling for a bill of rights that would promote better access to health services. An estimated two million people are living with HIV and AIDS in Zimbabwe, one of the countries hardest hit by HIV and AIDS, but have never before been actively involved in such legislation and do not have representation in parliament, Chiduku said. The activists have also urged policy-makers to include a clause that would commit the government to spending a minimum of 10–15% of the national budget on healthcare.
International Affairs Directorate, Health Canada: March 2009
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) should be used as a tool to improve access to HIV services for disabled people, who are often marginalised in national HIV policies, according to this new report. People with disabilities (PWDs) experience all the risk factors associated with HIV, and are often at increased risk because of poverty, severely limited access to education and health care, lack of information and resources to facilitate 'safer sex', lack of legal protection, increased risk of violence and rape, vulnerability to substance abuse, and stigma. HIV and AIDS were implicitly included in the CRPD under article 25a, where ‘State Parties shall provide PWDs with the same range, quality and standard of free, affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes’. It was also noted that disabled people could not claim their right to health services unless they were educated about these rights.
These new guidelines from South Africa’s Department of Labour cover various aspects related to HIV and AIDS in the workplace, especially concerning the elimination of unfair discrimination and promotion of equal opportunity and fair treatment. The Department argues for a multilateral approach to deal with HIV, AIDS and tuberculosis (TB), and the guidelines show how to promote a safe working environment and manage the diseases in the workplace, as well monitoring and evaluation of intervention programmmes. They were developed in partnership with the International Labour Organisation (ILO). The guidelines call for prevention programmes to be sensitive to culture, gender and language with relevant information that is accessible. Employees with HIV or AIDS may not be dismissed on the basis of their status.
The issue of homosexuality arouses different but deeply felt emotions in many parts of the world. In Africa, 38 countries criminalize homosexuality with sentences ranging from a small fine to life imprisonment. The author notes that criminalization goes well beyond the human rights discourse; it is also a public health issue. He notes the many well researched papers that provide evidence on the negative public health impact of criminalization, not just on the homosexual persons, but also on the public health system of a country, leading global health organizations such as World Health Organization and UNAIDS to issue guidelines on the issue of criminalization. The author presents the arguments, given the demonstrable negative impact of stigma and criminalisation on public health and human rights, whether the Kenyan society can broker a middle ground between morality aspirations on the one hand and public health & human rights on the other.
Aggravated homosexuality will be punished by death, according to a new bill tabled in Parliament of Uganda on 13 October 2009. The private member’s bill was tabled by Ndorwa West MP, David Bahati (NRM). A person commits aggravated homosexuality when the victim is a person with disability or below the age of 18, or when the offender is HIV-positive. The bill thus equates aggravated homosexuality to aggravated defilement among people of different sexes, which also carries the death sentence. The Bill, entitled the Anti-Homosexuality Bill 2009, also states that anyone who commits the offence of homosexuality will be liable to life imprisonment. A person charged with the offence will have to undergo a mandatory medical examination to ascertain his or her HIV status. The bill further states that anybody who attempts to commit the offence is liable to imprisonment for seven years. The same applies to anybody who aids, abets, counsels or procures another to engage in acts of homosexuality or anybody who keeps a house or room for the purpose of homosexuality. The bill also proposes stiff sentences for people promoting homosexuality – a fine of 100 million Ugandan shillings or prison sentences of five to seven years.
In January 2017, President Trump signed an executive order that denied U.S. assistance to any foreign-based organization that performs, promotes or offers information on abortion. A similar policy was in effect under past Republican presidents. In 2017 it was expanded exponentially to apply not just to around $600 million in overseas family-planning funds, but to the entire $8.8 billion in annual U.S. global health aid. It will take years to gauge the full impact of the policy, which will affect aid groups as they renew grants or seek new U.S. funding. More broadly, the policy has created a wave of uncertainty in aid-dependent countries. For the first time, groups that treat HIV, malaria and other illnesses will also have to pledge to have no role in promoting abortion — or forgo American aid. Academics have questioned whether the policy effectively decreases abortions. A 2011 study by Stanford University researchers suggested the policy has actually been “associated with increases in abortion rates in sub-Saharan African countries.” One possible reason the researchers gave for this was that some organizations that had provided contraceptives lost funding, which may have led to more unwanted pregnancies. While most foreign health groups have committed to following the new rules., a small group , including the International Planned Parenthood Federation and Marie Stopes, have refused to sign.