Apr 25, 2010

Criminalising HIV transmission

A bill was recently introduced in the Malawian parliament that will make it a crime for a person who knows they are HIV positive to infect someone else. Malawi with a population of 13 million is said to have some of the highest HIV infection rates in the world. Official figures put the rate at 12 percent. According to Deputy Women and Child Welfare Minister, Catherine Gotani, “the bill seeks is to ensure people make informed choices."

This looks straightforward at first glance, but it raises serious questions. How do you prove that a person knew his/her positive status and knowingly infected someone else? HIV testing is not universally compulsory and not everyone knows their status; and exposure to risk factors is not a reliable indicator of a positive status."


It’s quite easy to see how the person who first learns of his or her HIV-positive status may be accused of having “brought” the virus into the relationship though it may not be clear who was first infected. In many cases women are often the first to know about their HIV status particularly as governments “move towards provider-initiated HIV testing and counseling in pre-natal settings.”


I really wish I had a copy of the bill because I am curious to see where the law would stand on the non-sexual transmission of the virus. This would include mother-to-child transmission during pregnancy, birth or through breast feeding. Are we to see mothers standing trial for passing the virus to their children?

With the passage of this law, are we likely to see fewer people getting tested to protect themselves from prosecution and subsequent incarceration? If this is indeed an unintended consequence, we can expect to see fewer people on life-saving antiretroviral treatment - since you have to know your HIV status to start treatment.

To make a lasting impact on the fight against HIV/AIDS, governments should focus their attention on
proven methods. These would include:

  • providing HIV information and support to people so they can avoid exposure to the virus by practicing safer behaviour,
  • increased access to confidential testing and counselling, and 
  • addressing cultural norms that exacerbate HIV-related stigma.
Update: 26/4

I neglected to mention in my original post that sex workers in Malawi have already voiced their opposition to this bill. Under bill’s definition it means that HIV positive sex workers who fail to inform clients of their status are liable for prosecution. One has to ask if the same will be true for clients who fail to disclose their HIV positive status.

I can certainly see a disproportionate number of sex workers being prosecuted and convicted with the passage of this law. Attitudes still prevail that place blame on this group for transmitting HIV, and this would add another layer of stigma and discrimination. 

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