1. 1 Legislation contagion: the spread of problematic new HIV laws in Africa XVII International AIDS Conference Mexico City, Mexico Wednesday 6 August 2008 Richard Pearshouse Director of Research & Policy

2. 2 “HIL virus” spreads across west and central Africa September 2004: AWARE-HIV/AIDS holds a regional workshop to adopt a “model law” on HIV/AIDS in N’Djamena (Chad) By July 2006: Burundi*, Benin, Guinea, Togo, Mali By December 2007: Cabo Verde, Chad, Guinea Bissau, Mauritania, Niger, Sierra Leone*, Equatorial Guinea By July 2008: Central African Republic, Burkina Faso, Democratic Republic of the Congo Current Bills: Senegal, Liberia, the Gambia, Côte d’Ivoire

3. 3 What is the role of the law in responding to HIV? Limited role – Cannot bring about HIV prevention or treatment; only sufficient HIV programmes and services can HOWEVER HIV law must avoid NEGATIVE CONSEQUENCES! Law reform on broader issues is often more important

4. 4 AWARE-HIV/AIDS “model law” “Model law” on HIV/AIDS “developed” in N’Djamena (Chad) Supported financially by USAID implemented in collaboration with Family Health international, The Futures Group, Population Services International Template to eager parliamentarians: Guinea-Bissau, Gambia (Bill) are identical Useful provisions in parts of “model law”, e.g. non-discrimination

5. 5 Criminalisation of HIV transmission “Any person who is guilty of wilful transmission shall be sanctioned with…” (Article 36(2) of “model law”) “Wilful transmission”? “Transmission of HIV virus through any means by a person with full knowledge of his/her HIV/AIDS status to another person.” (Article 1)

6. 6 Other problems… Restrictions on HIV/AIDS education to minors Compulsory HIV testing - person indicted for HIV infection or attempted HIV infection, accused rapists, to “resolve a marital dispute”, “all pregnant women” Obligation on a PLHIV to disclose his or her HIV infection to “spouses and any sexual partners as well as to their physicians” Gives health care practitioners broad power to notify spouses and sexual partners Model law says nothing about women Model law says nothing about vulnerable groups

7. 7 Roll-back of “model law”? Sign-on letters Engagement led by UNAIDS in Senegal and Geneva AWARE-HIV/AIDS agree in principal to revision: FAAPPD Limited success at revisions at national level STOP PROMOTION & FUNDING! Focus on Bills: the Gambia, Liberia, Côte d’Ivoire, Mozambique, Malawi…

8. 8 UNAIDS alternative language No person shall be criminally responsible under this Act or any other applicable law where the transmission of HIV, or exposure to the risk of HIV infection, arises out of or relates to: … a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence; … a person living with HIV who practiced safer sex, including using a condom; a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission; … a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person; or the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.

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