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Increase in HIV-specific criminalization in Africa associated with USAID

The sudden up-tick in HIV-specific laws in African countries has been tied directly to the U.S. Agency for International Development (USAID).

Housing Works, an organization that advocates for the rights of HIV-positive people in the U.S. and abroad, reports on their blog Wednesday that USAID funded a 2004 Action for West Africa Region HIV-AIDS program that pushed HIV-specific criminal laws. The program received a grant of $35 million over five years. As part of the program’s activities, a “model” HIV-specific criminal law was created.

While the U.S. led the way in creating such laws in the late 80s, USAID says it opposes criminalization of HIV.

The advocacy group says these laws spread to at least 27 African countries since 2004. Prior to the advent of the model law framework, there were no African countries with HIV-specific laws. The spread of the laws has been called “legislation contagion” by the Canadian HIV/AIDS Legal Network.

Advocates say the laws open HIV-positive people in Africa to human rights abuses.

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.

Housing Works also ties the criminalization movement to the brutal beating death of an Ugandan leader for LGBT rights. David Kato was an activist fighting the proposed “Kill Gays” legislation in Uganda. He was found bludgeoned to death in his home last month. Many Ugandan newspapers have been publishing lists of suspected gay or lesbian people, and calling for violence against them.

As the Florida Independent, a sister publication of the Michigan Messenger, reported Wednesday, the “Kill Gays” legislation was inspired by U.S. based anti-gay evangelicals. The legislation has also been tied to the shadowy politico-Christian group The Family which counts among its members former U.S. Reps. Pete Hoekstra and Bart Stupak as well as other leading conservative lawmakers in D.C.

Ironically, while African countries like Uganda point a finger at homosexuality as the cause of the HIV epidemic in Africa, statistics show the epidemic in Africa is driven by heterosexual behavior and reuse of dirty needles.

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