Increase in HIV-specific criminalization in Africa associated with USAID

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The template contains a number of dangerous provisions.

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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.

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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.

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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?”

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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.