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News Report: Uganda Parliament Proposes Death Penalty in New HIV/AIDS Bill

Jim Burroway

May 19th, 2010

Update 5/20: Warren Throckmorton was able to obtain a copy of the proposed legislation. It appears that the news report below is in error. There is no death penalty provision. There are, however several other problems with the bill, which I will investigate further when I get a chance to do so. One of the first things I noticed however is that this provision criminalizing intentional transmission of HIV is remarkably different from the similar provision in the Anti-Homosexuality Bill. Whether you agree with the intent to of the HIV/AIDS Prevention and Control Bill or not, it is instructive that there is at least an attempt to define intentional transmission, an attempt that is entirely missing from the Anti-Homosexuality Bill.

Please feel free to look over the bill and add your own observations in the comments.

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This looks uncomfortably familiar to those of us who have been following the Anti-Homosexuality Bill. Details are sketchy:

The long awaited HIV/AIDS control bill has been tabled in Parliament for the first reading today morning.

The bill seeks to penalize deliberate spread of HIV/AIDS, with death as the maximum punishment.

This bill however has been widely criticized by the International community as it is likely to increase stigma against people living with HIV/AIDS.

The chairperson of the comiittee (sic), Beatrice Rwakimari tabled the bill including the certificate of financial implications.

The Speaker of Uganda Parliament, Edward Kiwanuka Ssekandi referred the bill to the Social Services committee for scrutiny.

This provision appears similar to one of the death-penalty clauses in the Anti-Homosexuality Bill. That portion of the bill reads as follows:

3. Aggravated homosexuality.
(1) A person commits the offense of aggravated homosexuality where the

(a) person against whom the offence is committed is below the age of 18 years;

(b) offender is a person living with HIV;

(c) offender is a parent or guardian of the person against whom the offence is committed;

(d) offender is a person in authority over the person against whom the offence is committed;

(e) victim of the offence is a person with disability;

(f) offender is a serial offender, or

(g) offender applies, administers or causes to be used by any man or woman any drug, matter or thing with intent to stupefy overpower him or her so as to there by  enable any person to have unlawful carnal connection with any person of the same sex,

(2) A person who commits the offence of aggravated homosexuality shall be liable on conviction to suffer death.

(3) Where a person is charged with the offence under this section, that person shall undergo a medical examination to ascertain his or her HIV status.

Clause 3. (1) (b) was often cited to support the claim that the Anti-Homosexuality Bill would impose the death penalty for the “deliberate” spread of HIV, but it is important to note that the bill contains no requirement that the intent be deliberate at all. In fact, the third subclause would suggest that the death penalty would apply upon receiving a positive serostatus result from an HIV test, which might very well be the first time the charged individual would know he or she was HIV-positive. Alternately, if the accused already knew he was HIV-positive, the proposed bill provides no acknowledgment that the accused’s partner may have known about it and entered into a consensual relationship.

Health care professionals worry that the effect of the entire provision would be to discourage people from learning their HIV status.

A few weeks ago, the Monitor, Uganda’s largest independent newspaper, reported that a Cabinet subcommittee tasked to examine the Anti-Homosexuality Bill recommended that portions of the bill be passed as amendments to other pieces of legislation. Until now, speculation mainly centered around Clause 13 of the bill which would criminalize the “promotion” of homosexuality, which the subcommittee decided should be passed. It is unclear what recommendations the subcommittee offered with regard to the death penalty for people with HIV.

We currently don’t have the text of the new proposed legislation but are seeking it from anyone who may have access to it.

Update: Human Rights Watch reacts:

“The bill contains measures that have been proven ineffective against the AIDS epidemic and that violate the rights of people living with HIV,” said Joe Amon, Health and Human Rights director at Human Rights Watch. “The HIV epidemic in Uganda is getting worse, and this bill is another example of misguided, ideological approaches and lack of leadership.”

The bill as currently written codifies discredited approaches to the AIDS epidemic and contains dangerously vague criminal provisions. Contrary to international best practices, the bill would criminalize HIV transmission and behavior that might result in transmission by those who know their HIV status.

The bill would discourage voluntary HIV testing, while making testing mandatory for pregnant women, their partners, suspected perpetrators and victims of sexual offenses, drug users, and prostitutes, in violation of fundamental principles of consent. The bill also allows medical practitioners to disclose a patient’s HIV status to others, breaching confidentiality standards. These provisions could potentially endanger those who are infected by exposing them to stigma, discrimination, and physical violence.

HRW’s statement doesn’t mention any death penalty provision in the earlier drafts of the bill.

Comments

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Paul in Canada
May 19th, 2010 | LINK

Having been involved with UNAIDS over the past 20 years and having worked in Africa and Eastern Europe, my heart breaks to see these regressive steps being taken, despite the years and years of efforts, not to mention the tens of millions of dollars invested, to address HIV/AIDS in a progressive and forward-moving way.

Ideological ignorance triumphs again.

Heart-breaking, just heart-breaking.

glidzi
May 19th, 2010 | LINK

i don’t think Africans should pamper homosexuals. The culture is not even African, so Human Rights Watch should stop dictating to us.
Personally, i don’t think the bill is unfriendly. I was expecting the construction of gas chambers to burn those homosexuals.

(Ghana)

wendy
May 19th, 2010 | LINK

Glidzi, gays are naturally occuring all over the world and in EVERY culture. What you fail to understand, those gas chambers would be used against stright people with AIDS too.

Timothy Kincaid
May 19th, 2010 | LINK

In Uganda, those gas chambers would be predominantly for straight people. The overwhelming vast majority of HIV infected people are heterosexual in Uganda.

L. Junius Brutus
May 19th, 2010 | LINK

I really don’t see how deliberately spreading HIV, or any other disease, should be legal. I would be mightily pissed if someone infected me, either deliberately or by having unsafe sex while knowing his status, and then got off scott-free. I definitely don’t think that prosecuting people under these conditions is a bad thing, rather, it’s an act of mercy toward their victims.

“Personally, i don’t think the bill is unfriendly. I was expecting the construction of gas chambers to burn those homosexuals.”

Thank you, Glidzi, for showing us the character of the average bigot.

Phil
May 19th, 2010 | LINK

I have to agree with L. Junius that I think that deliberately infecting someone with any disease should be illegal, and deliberately infecting someone with a chronic or terminal disease is especially heinous.

I understand the need to be careful not to stigmatize people living with HIV, and to be compassionate to all persons, especially those in groups that have been traditionally discriminated against. But I’ve known young men who were incredibly naive, had sex with a man who lied about his HIV status, and became positive. To me, that is a crime comparable to rape.

And, not unlike rape, because it deals with sex and also with victims who might face discrimination, it’s not something that is often discussed.

Jim Burroway
May 19th, 2010 | LINK

It would seem that AIDS stigma is alive and well in the Western hemisphere as well. I’m not aware of roving bands of people with HIV/AIDS going around “deliberately” infecting people. At least not outside the feverish imaginations of anti-gay activists.

Unless you’re dealing with a rape situation (and we already have plenty of laws to deal with that), the so-called “victim” needs to man-up, as it were, and take responsibility for his own decision not to partake in safe-sex practices, no matter what his sexual partner tells him about his HIV status. And he needs to do this for three reasons:

1) The HIV+ partner may not actually know his status,
2) The HIV+ partner may have been recently tested as HIV- because he is in that initial infection window in which his body hasn’t built up HIV antibodies, or
3) he may well be lying about his status.

Laws which criminalize “deliberate” HIV infection have two downsides. Not only does it cast the person living with HIV/AIDS as a predator regardless of his or her circumstances, but it also provides an opportunity for the so-called “victim” to shirk his own responsibility and lash out at someone he believes might have infected him, regardless of the facts or his own shirking of responsibility.

(By the way, I’ve used masculine pronouns throughout, but this also applies to women as well.)

As long as we continue to cast this as a victim vs. perpetrator problem, then we will continue to experience an increasing infection rate. It’s time to stop looking for scapegoats and start taking responsibility. Blaming someone else for your own infection that resulted in a consensual relationship is chickenshit. And that’s all there is to it.

Burr
May 19th, 2010 | LINK

Amen, Jim.

Unless someone comes up to you and assaults you with a needle of their HIV infected blood, this “deliberate” crap is a load of bull.

And if it’s rape, there’s already a law to deal with that.

Timothy Kincaid
May 19th, 2010 | LINK

I had a friend who was lied to. His partner convinced him that he was negative and infected my friend.

This was in the mid-90′s, when Mark was in his early 20′s.

Mark died.

I was there.

Of course making it illegal would have been moot in this case as the partner had already died, but I am not particularly sympathetic to the “he should have protected himself” argument.

A monster lied to him and manipulated him and killed him.

L. Junius Brutus
May 19th, 2010 | LINK

“Unless you’re dealing with a rape situation (and we already have plenty of laws to deal with that), the so-called “victim” needs to man-up, as it were, and take responsibility for his own decision not to partake in safe-sex practices, no matter what his sexual partner tells him about his HIV status. And he needs to do this for three reasons:

1) The HIV+ partner may not actually know his status,
2) The HIV+ partner may have been recently tested as HIV- because he is in that initial infection window in which his body hasn’t built up HIV antibodies, or
3) he may well be lying about his status.”

That’s interesting. I agree that safe sex should always be practiced, but that hardly means that a person who fails to do so is to blame for catching HIV, if he does. Assuming that a certain person A knows that he has HIV, and then infects person B by having unsafe sex with that person. Why is it that you put the blame for catching the disease squarely on the victim, who *did not know* that person A had HIV, while you completely disregard the role of person A, who *knew* that he had HIV and had unsafe sex with another person anyway? That is reckless disregard for the health of others, and it’s absolutely disgusting. To me, it seems that a greater responsibility lies with the person who *knows for sure* that he has HIV, than with the person who thinks that the other person *might have HIV* (or is lied to into thinking that the other person does not).

This has nothing to do with “stigma,” it’s about protecting people from people who deliberately spread their disease, or don’t care about it if they do.

Burr
May 19th, 2010 | LINK

How often does that really happen and how often can you prove it?

The problem is that making such a notable, specific, and publicized law about it is it allows the system to drag in all sorts of edge cases in order to appease the stoked outrage of the populace.

Phil
May 19th, 2010 | LINK

Jim,

I absolutely agree that it is vital for every person who engages in sexual behavior to act responsibly, and that means assuming that every person _ought_ to act as if everyone they have sex with is HIV positive, as well as being host to a number of other potentially infectious diseases.

That is what everyone _ought_ to do.

That does not change the fact that it is seriously wrong to intentionally infect someone with a terminal disease.

If you are unaware of your status, it’s true that you can’t intentionally infect someone, although it’s possible for you to act negligently in situations where it is reasonable to expect you to know better.

That, also, does not change the fact that it is seriously wrong to intentionally infect someone with a terminal disease.

I think the argument that criminalizing intentional infection may lead people to choose not to get tested is a good point. Such a point requires that we assume there is a subset of people who are willing to infect others, they just don’t want to face consequences for it. I acknowledge that such a subset may exist, but I’m not sure if the argument is persuasive.

By way of hypothetical example, if someone presented me with mounds of credible evidence that de-criminalizing rape would lead to more rape victims seeking treatment and counseling, I’m not sure I would automatically support de-criminalizing rape. At the same time, the Uganda law in the OP comes from a cultural context that stigmatizes people with HIV, both culturally and legally, so I can understand why it’s troubling.

F. Revell
May 19th, 2010 | LINK

I can’t believe (well, unfortunatly I can) that such a short sighted and bigotted bill can b even considered, it’s straight from the dark ages. I agree with the human rights board, it will make things far worse and create a culture of fear.

L. Junius Brutus
May 20th, 2010 | LINK

“How often does that really happen and how often can you prove it?”

Does that even matter? Even if it happened once a year, justice needs to be done.

“The problem is that making such a notable, specific, and publicized law about it is it allows the system to drag in all sorts of edge cases in order to appease the stoked outrage of the populace.”

There is nothing “stoked” about the outrage. Do you not get angry when you hear that some scumbag infected a young, naive 18-year old boy by having unprotected sex with him, despite knowing his status, or even lying to the poor boy?

Timothy Kincaid
May 20th, 2010 | LINK

There are a few provisions that could be troubling (who can be compelled to be tested and partner notification) but considering the extent of the epidemic in Uganda, I don’t find this bill to be that bad.

Interestingly, it makes it the legal responsibility of the citizen to protect themself and it appears to endorse condom usage as being a legal requirement (point 3)

Phil
May 20th, 2010 | LINK

“There is nothing ‘stoked’ about the outrage.”

I think the point is that, in Uganda, this bill is part of a larger culture of stigma and oppression of people with HIV/AIDS.

It’s not a simple issue–a law that is reasonable in principle can be drafted with bad intentions. That doesn’t change, however, the fact that it is reasonable in principle.

L. Junius Brutus
May 20th, 2010 | LINK

“I think the point is that, in Uganda, this bill is part of a larger culture of stigma and oppression of people with HIV/AIDS.

It’s not a simple issue–a law that is reasonable in principle can be drafted with bad intentions. That doesn’t change, however, the fact that it is reasonable in principle.”

Of course, and I don’t dispute that point. But this should not turn into an all-out attack against laws criminalizing the malicious transmission of HIV.

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