HIV Criminalization Laws and conversations at grassroots in Africa

Conducting conversations on streets of cities in Africa, initiating spontaneous debates on HIV and criminalization at different platforms reveals different characteristics related to HIV and the criminalization surrounding it in Africa.

  • There are those who see voluntary spreading equivalent to someone with an intention to kill others, therefore if apprehended should be subject to court proceedings and if found guilty should be punished.

  • There are those who see voluntary spreading equivalent to someone with an intention to kill others, therefore if apprehended should be processed, a guilty sentence read without due diligence of court proceedings. 

  • There are those who look at HIV from a strictly religious point of view and prescribe religious solutions.

  • There are those who look at HIV from a strictly bio-social-medical point of view and prescribe  bio-social-medical solutions.

  • There are those who look at HIV from a strictly legal point of view and prescribe legal solutions.

  • There are those who suggested genital mutilation (male castration and female genital mutilation)

  • There are those who look at HIV with mixed points of view and prescribe mixed solutions. These ones say HIV-related crimes have to be looked at from a case-by-case approach and that one shoe cannot fit all. One interesting example brought up in the conversations was the role of tribunals as in the case of Kenya.

  • The above cases presuppose an existence of: religious texts and written down consequences; in the case of the secular world, there are laws and penal codes through which culpability is pronounced. This means there are institutions to report to or to seek guidance and restitution.

  • What this scenario assumes is a general awareness of responsible conduct practices. This has informed the beliefs, customs and norms around HIV. A binary character arises from this (one that affirms good conduct and negates bad conduct): responsible conduct not to spread or acquire sexually transmitted diseases; an existence of structures to correct irresponsible spread or neglect.

  • When it comes to HIV, there is a chain of actors. An ecosystem in which prevention is approached differently. Perhaps this explains why there are two camps: HIV criminalization and HIV law modernization camps.

  • There are key lifestyle practices: those expected of two adults to establish consent (age, carnal and safer sex related); consenting adults establish relation parameters ( consummating and fidelity roles)

Action points drawn from all the above call for time to engage participants fully in understanding the consequences of sexual acts beyond: family making; sexual-reproductive health; and sexual pleasure. Communities should have opportunities to consider  consequences of different actions. 

Why we need to draw in more people on the African continent in the conversations around HIV criminalization and modernization laws:

  • Given that societies are governed by laws, consenting adults should know that lifestyles or actions are key in determining court cases around sexual intercourse. Consent, age and roles  played are points of reference in determining culpability. These compounding events should feature in health education manuals. It is high time these are brought into the mainstream information, education and communication mainstream.

  • Denigrating persons with HIV dehumanizes them. A mosquito carries malaria, both are therefore dangerous. A mosquito has been studied and we now know how it spreads malaria. Effort should be taken to avoid using a stigmatizing language when it comes to HIV criminalization and modernization laws. HIV criminalization should place emphasis on intent to spread with malice. The same zeal that we see in booking cases and taking one through court processes should be used to address vulnerabilities. in the event of being considered a criminal, denigrating persons with HIV compounds an already vulnerable situation in these six areas: medical, cognitive, institutional, deferential, economic and social. One who is infected with HIV has what is called a medical vulnerability. Complications set in anytime. This may mean the infection requires medical attention on a regular basis and once people are on medication it has to be for a lifetime. It means humane treatment and an uninterrupted course of medication. Cognition relates to the mental processes of perception, memory, judgment and reasoning. So, cognitive vulnerability arises when the need to accord a person living with HIV necessary bodily mending possibilities is not met. This could be in form of depriving regular counseling and a readiness to address effects of drugs to a person living with HIV. Any form of interruption increases risk of opportunistic infections; health needs for people with HIV may occur in more than one body part from eye, ear to skin care. Therefore different departments and social services may be needed for quality care to exist at deferential, economic social and institutional levels. 

  • Criminalization revolves around the elements of opportunity, motive and voluntary action. In the case of HIV, spread by unprotected sex or neglect in taking containment precautions by professionals are culpable. We propose that the name HIV criminalization should instead be HIV voluntary transmission law. This naming draws attention to human conduct. It is specific and makes it easier to provide information, education and communication geared at making communities participate in promoting prevention and responsible citizenship.