Example 2: Combating legislation criminalizing HIV transmission

Example 2: Combating Legislation Criminalizing HIV Transmission

Project Type: Advocacy

The Organization

Canadian HIV/AIDS Legal Network
Toronto, Canada
Website:  http://www.aidslaw.ca
E-mail:  info@aidslaw.ca

The Canadian HIV/AIDS Legal Network is an international organization that promotes the human rights of people living with and vulnerable to HIV through research, analysis, advocacy, litigation, public education, and community mobilization.

The Problem

A model law on HIV transmission was drafted following a meeting held in N’Djamena, Chad in 2004 by Action for West Africa Region—HIV/AIDS (AWARE), with funding from the United States Agency for International Development (USAID). The model law expands criminal liability for intentional transmission of HIV. Over 25 African countries now criminalize wilful transmission of HIV, including twelve countries in Western Africa that have adopted legislation based on the model law.

The model law allows for radically expanded criminal liability for wilful transmission of HIV by setting out a broad definition of “wilful transmission” and by demanding punishment for all wilful transmissions of the virus. Article 36 of the model law sets out that “any person who is guilty of wilful transmission of HIV shall be sanctioned . . . .” The article broadly defines “wilful transmission” as “transmission of the HIV virus through any means by a person with full knowledge of his/her HIV/AIDS status to another person.” Therefore, the model law would expand criminal liability to include, inter alia, mother-to-child transmission; transmission between consenting parties engaging in safe sex; and the transmission that results from the sharing of needles for injection drug use, even after attempts have been made to disinfect.

Africa: National statutes criminalizing the spread of HIV

Adopted: Burundi (2005), Djibouti (2007), Kenya (2006), Madagascar (2005), Mozambique (2009) and Tanzania (2008), Cameroon (2002) , Chad (2007), Congo (2009) , Democratic Republic of Congo (2008), Equatorial Guinea (2006), Benin (2006), Burkina Faso (2008), Cape Verde (2008), Guinea (2005), Guinea- Bisseau (2007), Liberia (2008), Mali (2006), Mauritania (2007), Niger (2007), Sierra Leone (2007), Togo (2005), Lesotho (2003), Zimbabwe (2001).

Proposed: Malawi, Uganda, Botswana. Status Unclear: Angola (2004), Central AfricanRepublic (2006), Senegal (2010).

Africa: National statutes criminalizing the spread of a deadly disease

Adopted: Ethiopia, Botswana.
Proposed: Rwanda.

Actions Taken

The Canadian HIV/AIDS Legal Network (CHLN), along with other concerned NGOs, worked to raise public awareness of the effects of this model law. In addition, the CHLN pressed UNAIDS to publish an alternative model law. CHLN provided legal analysis and aided the drafting of various provisions of the alternative model law. UNAIDS later published the alternative model law as part of its materials, and domestic NGOs used the alternative model law to try to reform criminalization provisions that had passed or were pending adoption. The alternative model law was designed for policy makers and advocates in developing countries where legislative drafting resources may have been scarce.

Results & Lessons Learned

HIV prevention, care and treatment services operate best within a clear legal framework. Law reform is not a complete solution, but it is a necessary and often neglected step. Reforming law and policy around the issue of HIV can be especially challenging given the stigma and discrimination in the general population against those living with HIV and competing demands on the time and energy of local advocates.

Additional Resources

  • Richard Pearshouse, Canadian HIV/AIDS Legal Network, A Human Rights Analysis of the N’Djamena Model Legislation on AIDS and HIV-specific Legislation in Benin, Guinea, Guinea-Bissau, Mali, Niger, Sierra Leone and Togo (September 2007). www.aidslaw.ca/publications/publicationsdocEN.php?ref=967.
  • Cécile Kazatchkine et al, Canadian HIV/AIDS Legal Network, Criminalizing HIV Transmission or Exposure in the Context of West and Central French-speaking Africa (2010). www.aidslaw.ca/EN/aids2010/documents/AIDS10_CK_Africa.pdf.
  • Legislation contagion: building resistance, 13 Canadian HIV/AIDS Legal Network: HIV/AIDS Policy & Law Review, no. 2/3 (December 2008). www.aidslaw.ca/publications/interfaces/downloadFile.php?ref=1412. 
  • NAM, The ‘Legislation Contagion’ of the N’Djamena Model Law. www.aidsmap.com/page/1442068/.
  • Pearshouse R., Legislation contagion: the spread of problematic new HIV laws in Western Africa. HIV/AIDS Policy & Law Review 12 (2/3), 2007.
  • Pearshouse R., Legislation contagion: building resistance. HIV/AIDS Policy & Law Review 12 (2/3), 2008.