HIV: The blame game

HIV/AIDS is a topic that cannot be divorced from realities across the African continent. To invoke the words HIV or AIDS is not to discuss the identity of any nation or any individual—but as a far-reaching public health concern—legislation, research and social work in the continent often revolve around eliminating the disease. Uganda has many organizations taking powerful and complex approaches to curbing instances of HIV/AIDS, with incredibly intelligent people working and succeeding in taking charge of their own public health issues. Too often though, nations and districts are reduced to their prevalence rates; HIV becomes almost a version of national identity in the eyes of the global community. Similarly, policies are constructed around dealing with the threat posed by HIV-positive individuals, without considering the policies that should be instituted in order to constructively help them. Ultimately, it is this mindset that provides the basis for legislation that criminalizes the transmission of HIV.

And over the past decade, Uganda has on several occasions come close to criminalizing HIV transmission and exposure. Legislation proposed (and ultimately stagnated) in 2010 was condemned by Human Rights Watch and 15 Ugandan organizations for its reduction in government responsibility to provide affordable treatment, its criminalization of transmission and its removal of consent requirements for AIDS testing. An almost identical bill came to the parliament floor in 2012. It again proposed criminal sentences for transmitters as well as a legal mandate for medical examiners to notify the family and friends of HIV positive individuals of their status if they failed to do so themselves. Having ultimately failed, legislators were left without this “quick and easy” solution to HIV transmission. This has left the nation in a better position, able to employ a variety of methods with more subtle approaches than the proposed cut-and-dry criminal one.

The United States, on the other hand, has implemented legislation very similar to these rejected Ugandan laws. As a nation, the U.S. has the greatest criminalization of HIV exposure and transmission, boasting the largest number of prosecutions per 1,000 people living with AIDS. The majority of legislation is determined at a state level, and 30 of our 50 states have laws in place that impose criminal penalties on people who know themselves to be HIV-positive and expose someone else to that virus.

Prosecution and punishment in the United States is neither limited to cases where HIV is actually transmitted nor cases in which individuals are even truly at risk of getting HIV. What is criminalized is, without consent or knowledge, “exposing” another individual to HIV. Here, “exposure” often includes scientifically inaccurate cases like spitting and biting, cases in which there are no blood-to-blood contact and no exposure. These American laws conceptualize a HIV-positive person as possessing moral turpitude, bent on spreading their own misfortune. Not only do they disregard a greater scientific understanding of the disease, but they disregard individual circumstances and push all blame and responsibility on the individuals with HIV.

The question of responsibility is an interesting one; whose responsibility it is to limit the transfer of HIV, individuals who are HIV-positive or those who are HIV-negative? AIDS is no longer the invisible and incomprehensible killer it was in the 90s, and the thought of its method of transmission no longer invokes the urban lore of malicious individuals roaming subway stations and crowded restaurants with syringes of infected blood. In Uganda, more often than not, HIV is transmitted between “consenting” partners. (Although the argument behind criminalization legislation is that you cannot give consent if your partner hasn’t informed you of their HIV status.)

So should HIV-negative individuals be responsible for their own health and bodies? Is it their job to ensure that their partners won’t give them HIV, or mono, or some other disease? Or should HIV-positive individuals tell anyone they might become intimate with of their status? What if transmission is basically impossible, as the Swiss Federal Commission for HIV/AIDS found in some of their studies on individuals treated with antiretroviral therapy? I’m of the opinion that, to attain true consent, both individuals must step up and take responsibility for their and their partner’s health. But if neither person does, who is to blame?

Independent of the morality discussion, however, these criminalization laws have a negative impact on the societies in which they are implemented. Reducing a complex social issue to the bang of a gavel is almost as reductionist as to consider AIDS prevalence to define a nation like Uganda. Human Rights Watch has asserted that in Uganda, criminalizing HIV would affect women to a greater degree because women are required to be tested at prenatal visits during pregnancy, so they are disproportionately likely to know their status and disproportionately unlikely to be able to assert themselves in a discussion on something like condom use. Pushing the impetus for curbing prevalence rates on individuals with the disease is neither productive nor fair.

Ultimately, the prevention of HIV/AIDS transmission in Uganda and in the United States is the responsibility of everyone independent of his or her HIV status. And this mutual responsibility can only be fulfilled in an environment where one side isn’t criminalized and the other isn’t removed from the discussion.