With the support of their loved ones and a sharp legal team from KELIN, a group of brave Kenyans living with HIV has challenged some of the world’s harshest HIV criminalization laws. Galvanized by the Positive Justice Campaign, their petition asks the Nairobi High Court to strike down as unconstitutional section 26 of Kenya’s Sexual Offences Act—a law that Kenyan prosecuting authorities interpret to criminalize an outlandishly broad range of conduct and that carries a minimum (yes, minimum) sentence of 15 years imprisonment.
HIV criminalization laws lead to more HIV transmission
Despite unanimous condemnation of laws like these from the world’s leading human rights and public health authorities, it seems that a worrying measure of public support for them persists. The problem is, the laws have the exact opposite effect that good-willed people might hope for: they promote rather than prevent HIV transmission, sabotaging diagnosis and treatment campaigns by creating strong incentives against HIV testing.
Indeed, there is no evidence that such laws reduce HIV transmission and good evidence that they deter people from seeking testing and treatment. And the most powerful tool we have to prevent HIV transmission is HIV treatment, in large part because it is designed to reduce a person’s viral load to an undetectable level, at which point the virus cannot be transmitted. In other words, people on successful treatment cannot spread HIV. And HIV criminalization laws drive people with HIV underground, where prosecutors cannot reach them, but neither can testing and treatment services.
HIV criminalization laws discourage disclosure of HIV status to potential partners
Still, some support these laws because they believe people should tell potential partners if they have HIV and these laws make them do so. The problem is, again, the laws backfire, deterring rather than encouraging disclosure. Firstly, the threat of prosecution creates stigma and fear and discourages people from opening up about HIV. Secondly, many people with HIV, in some places the majority, do not even know they have it, and thus can’t disclose regardless of what the law says, and the majority of HIV transmission occurs between people who do not know their HIV status—again highlighting the desperate need for better testing rates. Finally, people who are most at risk for having HIV, including women, are often unable to disclose their status for fear of retribution, including violence, due to their unequal power in relationships and communities.
It’s not hard to understand why people with HIV are less likely to share their status when doing so might land them in prison for 15 years. The assertion that disclosure to potential partners is necessary is a contended one, especially when the person with HIV has an undetectable viral load and therefore cannot spread the virus. But assuming disclosure is desirable, the only way to get people to disclose is to make it safe for them to do so. We do that by eliminating stigma and discrimination, empowering people with information and tools for prevention and treatment, and building accountable health systems that foster partnership and trust with communities.
HIV criminalization laws are discriminatory and hide ulterior motives
Most HIV criminalization laws, including Kenya’s, punish people with HIV not on the basis of the culpability or danger of their individual conduct but rather simply because they happen to have HIV. Under many such laws, a person who has HIV could do the exact same thing as a person who doesn’t and only the former would be guilty of a crime even if her conduct was no more dangerous or morally wrong. HIV criminalization laws like Kenya’s punish people with HIV, in other words, not for what they do but simply for who they are. All major health institutions and experts, including the World Health Organization, UNAIDS and Kenya’s Ministry of Health, agree that elimination of stigma and discrimination is a necessary condition for a successful response to the HIV epidemic. Yet too often one hand of government campaigns against prejudice whilst the other prosecutes with it.
It is true that some HIV laws target only conduct that creates an unjustifiable risk of HIV transmission. But experience has shown time and again that such laws are highly prone to abuse, haunted as they are by historic and prevailing stigma against people with HIV. In the bad old days, which were not so long ago, the public representation of a person with HIV was invariably emaciated and hunched toward death. Add to this specter the fact that HIV is mostly spread through taboo-riddled means and the resulting stigma is as equally powerful as persistent. Misinformation abounds symbiotically with stigma, data shows, for example, that one out of eight people in Kenya say they wouldn’t buy vegetables from a person who has HIV. This stigma primes prosecutions that do not serve public safety or justice but are instead motivated by animus, whether conscious or otherwise.
HIV criminalization laws entrench patterns of disadvantage
Disadvantages and vulnerabilities intersect. The same things that make a person vulnerable to contact with the criminal justice system also make them vulnerable to HIV. And these laws, in turn, make them more vulnerable to imprisonment or longer periods of imprisonment, which, in turn again, make them more vulnerable to the weakening of the immune system and opportunistic infections that accompany untreated HIV. All of this perpetuates vulnerability to poverty, whether by removing a person from the work force while they are incarcerated or sick or by scuttling their chances for employment due to discrimination against people with HIV and the formerly incarcerated. To attempt to prosecute our way out of the HIV epidemic is to punish those we ought to uplift, to throw dirt on people in a hole when we ought to pass them a ladder.
HIV criminalization laws also load the odds of prosecution against a demographic already at higher risk for HIV, women. This is both because women are especially susceptible to HIV—for biological reasons but also and more significantly for an array of cultural, political and social reasons—and because knowledge of one’s HIV status is an element of the criminal offenses and women test for HIV, and therefore know their HIV status, at far higher rates than men. In other words, the laws punish women for doing exactly what everyone should do, get tested.
HIV criminalization laws invade privacy and disrupt loving, consensual relationships
Amongst the people challenging Kenya’s laws are a married couple; she has HIV whereas he does not. They love each other; they both knew the HIV status of the other and they chose to be together. Yet the Kenyan prosecuting authority interprets the law in a way that would imprison her for at least 15 years just for being intimate with her husband. In her husband’s words in his statement to the court:
“I love my wife and have chosen her with full awareness of her HIV status; and have chosen to express my love for her through marriage and physical intimacy. Our marriage is ours and it is private, and our physical intimacy within it is private, these parts of our lives together are ours alone and should not be interfered with.”
The question is, what business do police and prosecutors have in their bedroom? And who could answer other than, none?
People with HIV shouldn’t have to sue to get the government to do what it already knows is right
Hopefully, the people challenging Kenya’s laws will win this case and Kenyans will be better off for their efforts. But their work entails sacrifice. The litigation puts them at risk of exposing their HIV status to the world and even potential retribution from prosecutors who don’t appreciate being embarrassed on the world stage. At the very least, the litigation is likely to consume their time and energy for months and maybe years to come. All this while Kenya’s government has repeatedly committed to eliminating these types of discriminatory laws and says in a number of policy documents that such laws hamstring its efforts to address the HIV epidemic. The history of HIV has shown again and again that things don’t change until people with HIV make them change. Luckily, the tradition of sacrifice and resistance lives on in Kenya today.
