February 23, 2011
USAID-funded law puts Africans with HIV behind bars.
When police found Ugandan gay rights activist David Kato bludgeoned to death last month in his Kampala home, the news brought renewed public attention to the well-documented U.S. roots of Uganda's now infamous anti-homosexuality bill.
What's gone unnoticed in recent years, however, is U.S. patronage of other anti-human rights legislation in Africa that promotes both homophobia and the persecution of people living with HIV. The U.S. Agency for International Development, while publicly denouncing laws that specifically criminalize HIV, has in fact financed their recent rapid dissemination across the African continent.
Millions of dollars in USAID funds have helped spur what the Canadian HIV/AIDS Legal Network is calling a "legislation contagion" that jeopardizes human rights in Africa.
A decade ago, not a single African country had a law that specifically criminalized HIV exposure. Now, at least 27 African nations punish exposure. These laws open the door for the jailing -- or worse -- of people with HIV who practice safer sex; mothers who transmit the virus to their children; and even those who have HIV but are undiagnosed.
"By funding the creation -- and wide dissemination -- of a 'model' HIV-specific law, USAID has sent mixed messages from the United States," said Edwin Bernard, editor of HIV and the Criminal Law. "On the one hand, the model law supports human rights by criminalizing stigma and discrimination. But by using vague and imprecise language in its HIV criminalization statute it also creates fear, confusion and the further stigmatization of people living with HIV."
In 2004, AWARE, a project led by the North Carolina-based global health organization FHI, convened a meeting of African leaders in N'Djamena, Chad. Two other U.S. groups, Population Services International and the Constella Futures Group, provided funds. The goal, according to FHI, was to design a legislative template for West and Central African nations that would protect people living with HIV and those at risk of contracting the virus. But if the law was meant to protect human rights, its conception was hasty and ill-conceived.
"Many informants discussed the speed at which the model law was drafted and disseminated," said Daniel Grace, a doctoral candidate at the University of Victoria, British Columbia who is writing his thesis about the creation of the legislation.
In three days, the group created a template. At least 14 African countries have adopted laws mimicking the U.S.-funded model.
The template contains a number of dangerous provisions.
First, it punishes the "willful transmission" of HIV through "any means." This phrase opens the door for wide interpretation, allowing governments to incarcerate a person practicing safer sex, regardless of whether he or she informs a partner of his or her status. The template also opens the possibility of punishment for mothers who pass HIV to their children, regardless of precautions taken to stop transmission.
Second, the model law penalizes partners who do not disclose HIV status to a "spouse or regular sexual partner" within six weeks of diagnosis. In countries where HIV-positive status can subject a person to social isolation, exile, physical abuse or even death, this provision has major implications.
Women, said Frederica Stines, Africa program officer at the International Women's Health Coalition, will be the overwhelming victims of this criminalization creep. They are more likely to know their HIV status; more likely to be the victims of rape; more likely to be thrown out of their homes because of their status; and less likely to be able to insist on condom use. "Criminalizing is not prevention," said Stines, who has more than a decade of experience promoting reproductive rights in Africa. "Who wants to know their status if they could be arrested?"
Many governments adapted the model law but altered it in a way that allows for even broader abuses. Togo's law makes any sex without a condom an illegal act, regardless of HIV status. Benin's version makes it a crime for a person who knows he or she is infected to engage in "unprotected sexual relations" without disclosing his or her status -- no actual transmission of HIV is required. Burundi's version says that the government can try a "willful" transmitter for murder.
It looks like Kato's Uganda could be the next to catch the criminalization contagion.
The country made headlines in 2009 when parliamentarians introduced a law that would execute homosexuals, legislation many said was inspired by U.S. evangelicals. Then, last year, with less media fanfare, members of parliament introduced a bill that, like the USAID-sponsored N'Djamena law, would criminalize HIV transmission. Human Rights Watch denounced the HIV/AIDS Prevention and Control Act, saying it will discourage testing and encourage stigma. Its sponsors soldier on.
"Kato was known for his fight for the removal of laws like this," said Dr. Cheikh Traoré, senior advisor for sexual diversity at the United Nations Development Programme. He first met Kato three years ago at an African AIDS conference. "For me, the best way for outsiders to honor his memory is to get behind the people who are in the country, the people who are ignored and isolated, but who try to change these laws."
Robert Clay, director of USAID's Office of HIV/AIDS, denounced the very provisions included in the law sponsored by his agency. "Criminalization of HIV/AIDS is not supported by the U.S. government," he said.
When asked to address the discrepancy between the model law and USAID's stance, he said the U.S. merely funded the AWARE project -- and that the model produced at the N'Djamena conference is not representative of the agency. "We know stigmatization, stigma and discrimination, are really a driver of this epidemic," he said. "And we need to make sure that we don't have those types of laws on the books."
No one at FHI would speak on the record about the organization's involvement.
Criminalization of HIV/AIDS is, in fact, supported by the U.S. government.
By criminalizing transmission, African nations are simply following their peers in the West. By 1988, at least eight U.S. states had introduced HIV-specific laws, according to HIV and the Criminal Law. Other wealthy nations followed suit.
Since 1998, UNAIDS and the Office of the United Nations High Commissioner for Human Rights have recommended that governments not enact laws that specifically criminalize HIV. But the U.S. has ignored this call. Today, 28 U.S. states have HIV-related criminal or public health laws. Punishment ranges from a $100 fine to imprisonment of up to 30 years in Arkansas.
"Laws do not just happen," said Grace. "While the purpose of [my] research is not to blame specific legislative drafters, parliamentarians or lawyers, it is important to hold actors accountable and to make visible the processes by which 'dangerous' provisions have been passed across the [African] region."