The public health and human rights impact on women

The push for many of the new HIV-specific laws on the African continent (which often contain both protective and punitive elements) has either come from women or from those who believe that these laws can protect women and girls from being infected with HIV by unfaithful partners and/or sexual violence.^1,2 Representatives of some women’s rights groups have pointed out that women are poorly served when the criminal law and the criminal justice system fail to address the effects of the ‘other epidemic’³ of gender-based violence, particularly within long-term intimate relationships. However, it has been suggested that HIV-specific criminal laws may, in fact, threaten the health and human rights of women and girls.^4,5,6,7,8,9

One reason for this is that such laws can place women in a difficult situation once they learn of their HIV status. The scale-up of antenatal HIV testing in many settings is a worldwide effort to reduce mother-to-child transmission of HIV. A consequence of this important public health strategy is that women are often more likely to learn their HIV status before male partners have learned theirs.^10,7 Women who perceive that they could be blamed for ‘bringing HIV home’ may feel unable to disclose their HIV status to their male partners due to a very real fear of physical harm, eviction and/or other serious negative consequences. (As detailed in the chapter: Proof, there is growing understanding of sexual practises inside and outside marriage, including evidence that men are engaging in HIV sexual risk taking outside their primary relationship without disclosing this to their partners.¹¹) In addition, power imbalances within relationships may prevent women from exercising the choice to practise safer sex, in particular since condoms are a male-controlled HIV-prevention method. Men may also be more likely to seek recourse via state-justice systems and/or patriarchal customary laws, which are recognised to some degree in most African legal systems.

A 2004 review of 17 studies from Asia and Africa concluded that, in many locations, a large percentage of women feared violence, abandonment and accusations of infidelity if they told their family members or sexual partners that they were HIV-positive.¹² Consequently, current WHO HIV-testing and counselling guidelines recognise pregnant women as a group vulnerable to adverse consequences of disclosure of HIV-positive status.¹³

Although rare, HIV-positive pregnant women in the United States and Canada have been prosecuted for mother-to-child transmission under general criminal or public health law (see Criminal HIV Transmission. www.criminalhivtransmission.blogspot.com, 28 October 2008). Several African jurisdictions have enacted HIV-specific laws that are worded in ways that make them applicable to pregnant women who know, or think, that they have HIV. The potential for prosecuting mother-to-child transmission is made explicit in Sierra Leone's HIV-specific law (although the proposed National AIDS Commission Act 2010¹⁴ would remove this provision) and is implicit in several other African countries' HIV-specific laws.¹ Commentators suggest that it would be inappropriate for any government to expend public resources to prosecute mother-to-child transmission until such a government does everything possible to enable women to avoid unwanted pregnancies and to ensure ready access to effective prevention of mother-to-child transmission programmes.¹⁵

UNAIDS¹⁶ argues that criminalising mother-to-child transmission is always inappropriate because:

• Everyone has the right to have a family, including women living with HIV.

• When pregnant women are counselled about the benefits of antiretroviral therapy, almost all agree to being tested and receive treatment.

• In the rare cases where pregnant women may be reluctant to undergo HIV testing or treatment, it is usually because they fear that their HIV-positive status will become known and they will face violence, discrimination or abandonment.

• Forcing women to undergo antiretroviral treatment in order to avoid criminal prosecution for mother-to-child transmission violates the ethical and legal requirements that medical procedures be performed only with informed consent.

• HIV-positive mothers may have no safer options than to breastfeed, because they lack breast-milk substitutes or clean water to prepare infant formula.