A decade ago, not a single African country had a law that specifically criminalized HIVexposure. Now,at least 27African nations punish exposure. These laws open the door for the jailing—or worse—of people with HIV who practice safer sex; mothers who transmitthe virus to their children; and even those who have HIV but are undiagnosed.The spread of such laws is in part the result of a 2004 model law created byAction for West Africa Region-HIV/AIDS, a five-year project funded at just under $35 millionby
USAID.“By funding the creation—and wide dissemination—of a ‘model’ HIV-specific law,USAID has sent mixed messages from the United States,” said Edwin Bernard, editor of HIV and the Criminal Law. “On the one hand, the model law supports human rights bycriminalizing stigma and discrimination. But by using vague and imprecise language inits HIV criminalization statute it also creates fear, confusion and the further stigmatization of people living with HIV.”
A ‘human rights’ initiative
In 2004, AWARE, a project led by the North Carolina-based global health organizationFHI, convened a meeting of African leaders in N’Djamena, Chad. Two other U.S.groups,Population Services Internationaland theConstella Futures Group, provided
funds. The goal,according to FHI, was to design a legislative template for West andCentral African nations that would protect people living with HIV and those at risk of contracting the virus. But if the law was meant to protect human rights, its conceptionwas hasty and ill-conceived.“Many informants discussed the speed at which the model law was drafted anddisseminated,” said Daniel Grace, a doctoral candidate at the University of Victoria,British Columbia who is writing his thesis about the creation of the legislation.In three days, the group created a template. At least 14 African countries have adoptedlaws mimicking the U.S.-funded model.
The template contains a number of dangerous provisions.First, it punishes the “willful transmission” of HIV through “any means.” This phraseopens 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