A Law to Punish People who Knowingly Infect others with HIV?
Worry that the HIV/AIDS problem will be driven underground.
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First published: October 7, 2006
In his testimony, Asiimwe told the court, presided over by Entebbe Grade One Magistrate, Mary Kaitetsi, that he defiled and infected his daughter with the virus because he wanted to die with her.
In a fully packed court, Asiimwe evoked bitterness and anger as he awfully narrated what many people described as a beastly act. Despite this, Asiimwe was only charged with incest and defilement since, according to the Magistrate, there was no law to punish people who knowingly infect others with HIV/AIDS.
Asiimwe's sentence would have been different if the proposed law on punishing people who knowingly infect others with HIV had been adopted. Many people have for long been calling for a law that punishes those who know that they are infected with the deadly virus and go ahead to infect others, which they say could go a long way in containing the HIV/AIDS pandemic. Anti HIV activists say that if put in place, the law would give law enforcers in Uganda ground to prosecute those who knowingly spread the virus.
If Asiimwe had been in countries like the United States and Canada, in addition to defilement and incest charges, he could have also been charged with murder or endangering the life of his daughter.
In Canada where the law has already begun biting, a Ugandan-Canadian, Johnson Aziga 48, of Hamilton, west of Toronto was in 2005 charged with first-degree murder for knowingly transmitting HIV to unsuspecting partners, or failing to use protective means.
According to Opio Oloya, a New Vision columnist, the murder charges were handed down after two of Aziga's 12 alleged victims died from HIV/AIDS related illnesses. Opio Oloya says that Aziga is believed to be the first person in Canada's legal history to be charged under the law.
The activists say that this development and the compelling argument that the advancement of science makes it that much easier to find out whether one is HIV-positive, and consequently much harder to deny responsibility for infecting others with the virus. A similar law can work in Uganda.
"Those who transmit the virus after testing positive are doing so willfully and should be punished," says Ann Mutetsi, a shop attendant in Kampala, who lost both her mother and father to HIV/AIDS. Mutetsi believes that for someone to purposely sleep with a number of partners because they are angry about being HIV-infected and want to infect others is a very serious and horrible act, which should be severely punished.
Winnie Wesonga, a counselor with Family Life Network, a Kansga based NGO, says that there is need to have such a law because it will create fear among some people and thus reduce the number of people getting involved in such acts. Kampala City lawyer, Richard Mugisha, shares this view.
According to Mugisha, the law that criminalizes those who knowingly infect others with HIV/AIDS can be a good law and would be instrumental in halving the HIV/AIDS if the enforcers are very serious but adds that it requires a lot of commitment and resources.
"The law can work depending on who implements it and the measures they have put in place to ensure that it achieves what they want it to achieve," Mugisha says. But he admits that the law is not easy to implement.
"It would require that everyone be tested and their results stored in a databank, so that they are all aware of their status. Otherwise, it would pause a problem in proving that the accused had knowledge of their status," Mugisha told Ultimate Media in an interview.
Mugisha also says that it is hard to enforce such a law because the onus would be on the victim to prove that he or she was ignorant of the accused person's status and did not decide to take the risk willingly. Other than that, Mugisha argues that science would also pose another problem.
"According to science, some people are just carriers of the virus and do not pass it on to others. The incubation time of this particular virus would prolong some cases where they have to wait for over four months to prove that one is infected," he explains.
David Mudala, a police constable in Kampala concurs that enforcing such a law would be extremely hard because getting evidence will be difficult. "One complicated aspect is that people do not get tested before engaging in sex. Even then, I do not believe in HIV test results. How is it possible to get HIV results in just 15 minutes?" he asks.
James Mbabazi, a resident of Buganda Road flats says that proving that someone infected the other with HIV/AIDS pauses complications. "There are circumstances where it could be difficult to prove that it is intentional. People engage in sexual relations for any number of reasons, which rarely relate to hurting someone," he says.
Other people believe that criminalizing HIV/AIDS will create a bad precedence- if one can be prosecuted for "knowingly infecting" others with the HIV/AIDS virus. They argue that this would require that those who carry potentially deadly communicable diseases like cholera and SARS should face the law because the diseases often spread from a few principal carriers outward until a larger community of people is infected.
Such people have suggested that public awareness of HIV/AIDS rather than criminal prosecution should be adopted to slow the spread of the disease. There is also concern that the law could be for the very tiny minority of HIV-carriers who recklessly endanger the lives of others by knowingly having unprotected sex.
Indeed, although Wesonga says that she supports a law that punishes those who knowingly infect others with HIV, people who spread HIV/AIDS intentionally may have deeper problems that need to be understood.
"There is need to first understand their deeper problems before handling them with a law. We need to understand their problems and then design strategies to help them," she advises, adding that adducing evidence like the case of rape and defilement may prove daunting.
Renown Pastor and singer, George Okudi says that the government should instead emphasize spiritual awareness and teachings by encouraging people to go to church for spiritual guidance.
"Laws have never helped to stop crime. Out of five thieves, only one may get apprehended. How about the remaining four? Therefore education rather than laws can check the spread of HIV," he told Ultimate Media in an interview.
Uganda has been using behavioral change and education of condom use under its ABC (Abstinence, Be faithful and Condom-use for those who cannot abstain or be faithful to their partners). The strategy has led to a reduction of the infection rate in Uganda from 30 percent in the late 1980s and as a result, Uganda has won many international accolades.
However, following years of a near miraculous reversal of HIV/AIDS prevalence from to 6.2% in 2002-3, there is general fear that the country is becoming complacent and slowly slipping back into the danger zone. Read Rise in HIV/AIDS Slaps Uganda in the Face.
According to the latest HIV/AIDS country status report carried out by The Uganda AIDS Commission, the country has registered a stagnation in HIV prevalence of between 6% and 7% from 1999 up to date, with marginal reduction or increase across the years.
This stagnation is worrying many anti HIV/AIDS practitioners, prompting calls for more proactive preventive efforts if the HIV/AIDS scourge is to be halved in Uganda, including the proposed law to punish those who knowingly infect others with the virus.
The concern has also been extended to include knowingly infecting underage children with HIV/AIDS. Recently, members of the Parliamentary Committee on HIV/AIDS recommended that HIV positive people who have sex with minors with or without consent when they know that they are HIV positive should be sentenced to death.
The MPs say that HIV-positive people who perform sexual acts with people under the age of 18 should face a felony charge called "aggravated defilement".
The legislators are already drafting a bill which if passed would seek the death penalty for HIV-positive people who perform sexual acts with minors with or without consent. In Uganda, the age of consent is 18 years.
Elioda Tumwesigye, chair of the parliamentary committee on HIV/AIDS says that if the bill is passed, HIV-positive people who perform sexual acts with people under age 18 would be executed if convicted.
However, some human rights groups in the country say the bill is "off target," arguing that instead of emphasizing capital punishment, more effort should go toward increasing HIV/AIDS awareness campaigns.
Under current Ugandan law, people who are found guilty of rape and defilement can be sentenced to death, but judges can choose to give an offender a lesser sentence and no one to date has been sentenced to death for the crime.
Some groups opposed to the proposed bill worry that if capital punishment becomes mandatory, the HIV/AIDS problem will be driven underground.
MPs in the coming parliamentary session will debate whether to make the death penalty mandatory and also will discuss whether HIV-positive people who rape children should be given the same punishment as those who rape teenagers. The effort is clear: to put in place a law that punishes people who knowingly infect others with HIV/AIDS.
It remains to be seen whether and when such a law can ever be enacted and implemented in Uganda.
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First published: October 7, 2006
Gideon Munaabi is a journalist and public relations practitioner with Ultimate Media Consult (U) Ltd. He has been and continues writing widely for different publication locally and internationally. He is a founding member of Ultimate Media Consult (U) Ltd and is currently the chairman of the organisation.