Criminalizing HIV transmission using model law: troubling best practice standardizations in the global HIV/AIDS response

Abstract

A growing body of social science research has focused on the negative public health consequences of criminalizing the sexual transmission of HIV. I examine the criminalization of contagion in West and Central Africa and address a significant research gap: How do legislative environments that enable harmful laws to be applied become created in the first place? With stated aims of promoting human rights and public health objectives, HIV/AIDS-related laws have been created transnationally though the use of an omnibus model law. A group of legislative actors have problematized this United States Agency for International Development (USAID) funded model law, known as the USAID/Action for West African Region model law, or N'Djamena model law. This ‘harmonizing’ text led to the rapid spread of HIV/AIDS laws, including the criminalization of HIV transmission, across at least 15 countries in West and Central Africa between 2005 and 2010. The HIV model law was packaged and ‘sold’ to developing countries through the strategic use of best practice discourse. Best practice replications are enabled though a set of social and technological relations of use including the availability of mobile, standardizing texts. Although best practice standardization has been a key feature of global health institutions work activities in the HIV response over the past two decades, recent replications related to the criminalization of HIV transmission illustrate the potential public health dangers of ‘don’t reinvent the wheel’ thinking. I offer a normative critique of the transnational, text-mediated process that has produced highly problematic laws.

Keywords:

• HIV/AIDS
• criminal law
• model law
• criminalization
• best practice

Acknowledgements

I wish to thank all my study participants for their willingness to share their work experiences. I am thankful for the feedback of Eric Mykhalovskiy, Dorothy Smith, William Carroll, Rebecca Johnson, and Matthew Weait on an earlier draft of this article. I am also grateful for the comments I received from anonymous reviewers at Critical Public Health.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The 18 counties in the West and Central Africa region covered by AWARE’s mandate are Benin, Burkina Faso, Cameroon, Cape Verde, Chad, Côte d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo.

2. For a detailed discussion of research methods, with a focus on the need for transnational institutional ethnographic (TIE) research in the field of public health, see Grace (2013b).

3. While the funding for the project came from USAID, the core management team of AWARE-HIV/AIDS was led FHI who worked in consortium with Population Services International (PSI) and Constella Futures/The Futures Group. A division of institutional responsibilities related to best practice replication exists across these three organizations along with a global network of associate partners (5 from 2003 to 2006, 3 from 2007 to 2008) each with specific roles in this transnational project.

4. This ‘innovation’ in the process of best practice replication is to allow countries to ‘embark on this course with confidence, without wasting time and resources’ (FHI, 2008, p. 2).

5. For example, Lieberman uses the example of Thailand being held up as a best practice country by UNDP and others in 2005 constituting it as a country that could ‘share its know how’ on how to prevent HIV transmission (2009, p. 97).

6. More research at the country level is required to understand why some countries decided to not engage in the process of omnibus HIV/AIDS law creation and if any pressure was placed on these counties to conform to the new regional standard.

Additional information

Funding

This work was supported by the Social Sciences and Humanities Research Council (SSHRC) of Canada [767–2007-1127].