Advocating prevention over punishment: the risks of HIV criminalization in Burkina Faso

Abstract

In 2004, parliamentarians from 12 countries in West and Central Africa created a template for legislation aimed at protecting the rights of people with HIV and stemming rising HIV infection rates by criminalizing HIV transmission. Since then, the template has been adopted as national law in 15 African countries, including Burkina Faso in 2008. The Burkina Faso law offers a number of protections for people with HIV, such as confidentiality of HIV test results, and holds the government accountable for providing health services for people with HIV and education about HIV in schools. However, other articles in the law, which criminalize HIV transmission and mandate disclosure of HIV status, may contribute to violations of the human rights of women and men with HIV. This article reviews the two cases brought in Burkina Faso under the 2008 HIV law to date, both against women, and explores the implications of specific elements of the legislation. It recommends that Burkina Faso use guidance provided by UNAIDS and the Southern Africa Development Community to repeal harmful articles in the HIV-specific legislation and implement the positive provisions. Prioritizing HIV prevention over punishment is the best way to respect the rights of people living with HIV and AIDS.

Résumé

En 2004, des parlementaires de 12 pays de l'Afrique centrale et de l'Ouest ont créé un modèle de législation pour protéger les droits des personnes avec le VIH et enrayer les taux croissants d'infection en criminalisant la transmission du VIH. Ce modèle a depuis été adopté comme loi nationale par 15 pays africains, dont le Burkina Faso en 2008. La loi du Burkina Faso offre un certain nombre de garanties pour les personnes avec le VIH, comme la confidentialité des résultats du test, et tient le Gouvernement pour responsable de la prestation de services de santé pour les personnes séropositives et d'éducation sur le VIH dans les écoles. Néanmoins, d'autres articles de la loi, qui criminalisent la transmission du VIH et obligent à révéler le statut sérologique, peuvent contribuer à des violations des droits des femmes et des hommes séropositifs. Cet article examine les deux cas de poursuites engagées à ce jour au Burkina Faso en vertu de la loi de 2008 sur le VIH, toutes deux contre des femmes, et envisage les conséquences d'éléments précis de la législation. Il recommande au pays de s'inspirer des recommandations de l'ONUSIDA et de la Communauté de développement de l'Afrique australe pour abroger les articles néfastes de la législation sur le VIH et d'en appliquer les dispositions positives. Donner la priorité à la prévention sur les sanctions est le meilleur moyen de respecter les droits des personnes vivant avec le VIH et le sida.

Resumen

En el año 2004, parlamentarios de 12 países en Ãfrica Occidental y Central crearon un paradigma para legislación destinada a proteger los derechos de las personas con VIH y disminuir las crecientes tasas de infección por VIH mediante la penalización de la transmisión del VIH. Desde entonces, el paradigma ha sido adoptado como ley nacional en 15 países africanos, entre ellos Burkina Faso en 2008. La ley de Burkina Faso ofrece varias protecciones para las personas con VIH, como la confidencialidad de los resultados de la prueba del VIH, y hace responsable al gobierno de proporcionar servicios de salud a las personas con VIH y educación sobre el VIH en las escuelas. Sin embargo, otros artículos de la ley, que penalizan la transmisión del VIH y exigen la divulgación del estado de VIH, podrían contribuir a las violaciones de los derechos humanos de las mujeres y los hombres con VIH. Este artículo analiza los dos casos enjuiciados hasta la fecha en Burkina Faso de acuerdo con la ley de VIH de 2008, ambos contra mujeres, y explora las implicaciones de elementos específicos de la legislación. Se recomienda que en Burkina Faso se utilicen las guías proporcionadas por ONUSIDA y la Comunidad de Desarrollo de Ãfrica Meridional para revocar los artículos perjudiciales de la legislación sobre el VIH y aplicar las disposiciones positivas. La mejor forma de respetar los derechos de las personas que viven con VIH y SIDA es dar prioridad a la prevención del VIH y no a las medidas punitivas contra éste.

Key Words:

• HIV/AIDS
• criminalization
• mandatory disclosure
• human rights
• women's rights
• Burkina Faso

Since 2004, at least 15 African countries have passed new legislation making it a crime to transmit HIV, and in some cases, to expose a person to the virus.¹ Some trace this trend towards HIV-specific legislation to the 2001 Declaration of the Commitment on HIV/AIDS, in which the United Nations General Assembly Special Session on HIV/AIDS (UNGASS) called on countries to: “enact, strengthen or enforce, as appropriate, legislation, regulations and other measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS.”²

In Central and West Africa, a Regional Workshop to Adopt a Model Law for STI/HIV/AIDS for West and Central Africa was organized by AWARE HIV/AIDS (Action for West Africa Region) in N'djamena, Chad in September 2004.^* This regional workshop brought together parliamentarians from 12 countries as well as representatives of various non-governmental organizations (NGOs) to develop and promote what Dr Martin Laourou, Senior Technical Advisor AWARE HIV/AIDS, described as a “model law which would respond to concerns in the area of [HIV] prevention, screening tests and health care [for]…persons infected and affected by HIV/AIDS.” Recognizing the high rates of HIV infection and the disproportionate burden of the epidemic in Africa and on African women in particular, the model law was intended to offer countries a legal framework to stem rising HIV infection rates in the sub-region.³

Participants in the workshop created a template for national legislation known as the “Model law for STI/HIV/AIDS for West and Central Africa.”³ This template offers a number of positive protections, including for people living with HIV, such as pre- and post-test counselling and confidentiality of test results. The template protects the privacy of people living with HIV and holds governments accountable for providing health services to them. It requires governments to provide education about HIV in primary, secondary and tertiary schools, as well as in non-school settings. The template encourages governments to address gender inequality and harmful traditional practices that make women and young people disproportionately vulnerable to HIV infection. Finally, it prohibits discrimination on the basis of HIV status.

As pointed out by others,^1,4–6 the template also contains numerous harmful provisions, including a requirement that people living with HIV disclose their status to spouses or regular sex partners within six weeks of diagnosis, and if not, their health care provider is required to disclose their status. The template further mandates that individuals submit to HIV testing in cases of rape, matrimonial conflict and pregnancy. It criminalizes HIV transmission and makes the crime punishable by severe fines and imprisonment, regardless of an individual's intent to transmit the virus or of precautions taken to avoid transmission. In 2008, this template was adopted as national law in Burkina Faso.

Burkina Faso's HIV/AIDS response

Burkina Faso's legislative response to HIV and AIDS is best understood within its overall national response. Compared to other sub-Saharan countries, HIV prevalence is low in Burkina Faso: 1.6% among adults ages 15–49 and decreasing.⁷ This may reflect, in part, efforts by the National Council against AIDS and Sexually Transmitted Infections (CNLS) to significantly ramp up the national HIV/AIDS response since 2001.⁸ In the most recent national HIV/AIDS plan, Burkina Faso expanded the CNLS's budget from approximately USD $175 million to USD $270 million.⁹ In 2005, the CNLS conducted a national needs assessment, which identified groups that are particularly vulnerable to HIV infection: sex workers and their clients, truck drivers, orphans and vulnerable children, young people aged 15–24, female domestic workers, prisoners, and widows.⁹

Burkina Faso's national HIV response has four pillars: disease surveillance, HIV prevention, services for people living with HIV, and partnerships with international donors.¹⁰ The primary means of HIV surveillance is testing pregnant women during antenatal visits. Prenatal testing was available at only five sites in 2001, but by 2004, 40% of pregnant women in the country were being tested for HIV,¹¹ and the number of sites had been expanded to at least 13 in 2009. In 2002, the CNLS started a programme to prevent vertical HIV transmission, which includes voluntary HIV counselling and testing for all women receiving antenatal care. The CNLS promotes abstinence and fidelity as well as condom use, and in 2003, they began distributing female condoms in addition to male condoms. The CNLS has increased HIV testing among university students by 30-fold and expanded the number of voluntary counselling and testing sites from five in 2001 to over 100 in 2009. Today, over 40 hospitals in Burkina Faso provide antiretroviral treatment, up from two hospitals in 2001.¹²

Burkina Faso has thus made significant progress. However, in 2006, the price of male condoms rose by 50%,¹³ creating a barrier, especially for the young and poor.¹⁴ In 2007, 65% of Burkinabes who needed antiretrovirals did not receive them,⁷ even though that same year the CNLS succeeded in lowering the cost of treatment by 70%.⁸ The CNLS is committed to integrating information about HIV prevention and transmission, care and treatment, and stigma and discrimination into all school curricula, but in 2007 only 1% of schools were providing life skills-based HIV education.¹⁵ There is a long way to go to meet all the population's needs.

Burkina Faso's legislative response to HIV/AIDS

Burkina Faso has several national laws and policies that protect people's rights and ensure their access to health services, and the country's civil society and legislators were keen to create HIV-specific legislation. Following the 2004 Regional Workshop in Chad, attended by two Burkinabe parliamentarians, Hon Christophe M Ouattara and Hon Sawadogo D Salifou, Burkina Faso passed the Law on Reproductive Health (Loi N°049-2005/AN Portant Santé de la Reproduction) in 2005.¹⁶

The 2005 law was the first in Burkina Faso to specifically identify people living with HIV and AIDS as a group that needed to be addressed, but it was perceived by many as too weak to adequately protect their rights, including to voluntary counselling and testing, accurate information in and out of schools, and non-discrimination when travelling and seeking health insurance. Various organizations, including those representing people living with HIV, held public events and appeared on radio programmes demanding that Burkina Faso pass HIV-specific legislation. The simultaneous demands by civil society and efforts by neighbouring West and Central African countries to do so after the AWARE workshop created an environment conducive to passing such legislation. A network of Burkina Faso parliamentarians called the Réseau des Parlementaires de Lutte Contre le SIDA (Network of Parliamentarians Fighting against AIDS) met in October 2005 and again in December 2006 with policymakers and NGO representatives to draft HIV-specific legislation. In writing this new legislation, the parliamentarians considered existing legislation, including the 2005 Reproductive health law. According to a local newspaper report, the new HIV law was intended to expand the rights of all people and guarantee them access to HIV education, encourage safer sex practices and HIV testing, and protect confidentiality.¹⁷

In Burkina Faso, parliamentary proceedings are closed to the public; however, the media reported that representatives of the Network of Parliamentarians Fighting against AIDS and the Commission of Employment, Social Affairs and Culture introduced the HIV law in Parliament.¹⁸ In June 2008, the legislation was passed, entitled Law governing HIV/AIDS and protection of the rights of persons living with HIV/AIDS (Loi N° 030-2008/AN Portant lutte contre le VIH/SIDA et protection des droits des personnes vivant avec le VIH/SIDA).¹⁹

Cases brought under Burkina Faso's HIV legislation

To date, two cases have been brought under the 2008 HIV law. One case, in Bobo-Dioulasso, Burkina Faso's second largest city, involved a 30-year-old mother of two, SS, living with HIV, who was arrested for “intentional transmission of HIV”. According to the defendant, SS, her neighbour, RK, was discriminating against her because of her HIV-positive status, so she extracted a sample of her own blood and injected him with it. In a 9 January 2009 article,²⁰ SS admitted to the charge and said she wanted to “shut him up for good”. RK was put on antiretroviral treatment and tested HIV-negative three months after the incident. Although SS was initially charged under the new HIV law, she was found guilty of assault under the Criminal Code for contaminating RK with a “substance harmful to health”²¹ and ordered to pay his health care costs.

In the second case, a woman living with HIV in Gaoua, a city in southern Burkina Faso, was accused of “intentional transmission of HIV” under the 2008 HIV law for assaulting a health worker. The woman said she was waiting in a food distribution line and, when the worker refused to give her the allotted amount, she bit him several times, saying she wanted to give him HIV. The health worker had her arrested and she spent two nights in a holding cell. Ultimately, she was charged with assault under the Criminal Code.²¹ The matter was settled by the police and not brought to court (Personal communication, Patrice Sanon, who worked on the case, March, June and September 2009).

Although the new HIV legislation was written with a primary goal of protecting the rights and health of people living with HIV, particularly women, it is notable that the two cases brought thus far under this law have been against women. In both cases, the defendants were accused of intentionally trying to transmit HIV, but charged and pursued under existing criminal law. It is too early to know how the new HIV-specific law will be implemented more widely. However, other articles in this law also make it a crime to expose a person to the virus or to transmit HIV, even if the transmission is unintentional. Below we summarize some of the positive protections offered in the Reproductive health law and the HIV law. We also present an analysis of articles that local organizations have questioned, in particular, the articles that criminalize HIV exposure and transmission and mandate testing and disclosure, and how these articles may exacerbate existing, pervasive gender inequality and hold women inequitably culpable for spreading HIV.

Positive protections in the legislation

The 2005 Reproductive health law guaranteed the rights of people living with HIV to health services and treatment, confidentiality and psychosocial support and the right to “enjoy, without discrimination, their civil, political and social rights including housing, education, employment, health and social protection” (Reproductive health law, Article 14). The 2008 HIV law built on this foundation by providing additional, positive protections, including the right to fully informed consent for HIV testing; medical, financial and administrative confidentiality by both health care providers and social workers; guaranteed nutritional and financial assistance; and the right to apply for employment, insurance, a bank loan, travel to and residence in Burkina Faso, medical care, housing and admission to a university without providing an HIV test result (HIV law, Article 19). Exploitation of a person living with HIV, the disclosure of positive HIV status (other than by a health care provider in certain circumstances), and the distribution of fraudulent information or medication for HIV are punishable under the HIV law (HIV law, Articles 16, 21, 23, 24). The law requires the government to provide comprehensive information about HIV, including confidential counselling and testing, prevention services and treatment to communities and in schools (HIV law, Articles 4, 5). Children do not require parental consent to participate in HIV education at school.

Potentially harmful clauses

The laws also include a number of articles with the potential to violate the rights of people living with HIV. It became a crime to expose another person to HIV or to transmit the virus (Reproductive health law, Article 18; HIV law, Articles 20, 26). People living with HIV who do not take “necessary and sufficient” precautions to protect their partner, i.e. who expose a partner to HIV, are liable for a fine of USD $200–$2,000 (Reproductive health law, Article 18; HIV law, Article 26). This fine exceeds the annual income of most Burkinabe.²² Futhermore, any person who infects another person with HIV may be tried for attempted murder under the Criminal Code (HIV law, Article 26). When the virus is actually transmitted, a person can be charged with “intentional attempted murder,” which is punishable by death.²³ People who know they have HIV are required to disclose their status to their partner(s) and abstain from unprotected intercourse (Reproductive health law, Article 17; HIV law, Article 7, 10). Finally, although the HIV law encourages all HIV testing to be done with the person's free and informed consent, it also specifies situations where consent is not required, such as cases of alleged, intentional HIV transmission, rape, or marital dispute (HIV law, Article 19).

Analysis of HIV legislation in Burkina Faso

One of the key weaknesses in Burkina Faso's legislation is its failure to define intent as the desire to infect.¹ A UNAIDS policy document, which came out several months after the Burkina law was passed, addresses this weakness by advising that governments should only prosecute cases of HIV transmission where the accused person “know[s] his or her HIV positive status, act[s] with the intention to transmit HIV… [and] in fact transmit[s] it”.²⁴

Secondly, by mandating instances of mandatory HIV testing, Burkina Faso's law is in conflict with the UNAIDS 2006 International Guidelines on HIV/AIDS and Human Rights, which recommend HIV testing only when “specific informed consent” is given, except for epidemiological surveillance purposes in which test results are not linked to individuals, or with organ, tissue, or blood donations.²⁵ Once an individual tests positive for HIV, it is indeed essential that s/he discusses it with all partners and takes precautions to prevent new infections. This is particularly imperative for serodiscordant couples.²⁶ However, mandating disclosure by law may have the unintended consequence of discouraging people from being tested because if they are unaware they are living with HIV they cannot be held criminally liable for exposing another person or transmitting the virus.²⁴ People may also be discouraged from seeking necessary health care services or an HIV test if they think it is likely a health care provider will breach confidentiality by disclosing their HIV status to their partner(s).²⁵ In practice, mandatory disclosure will likely require disclosure by more women than men in Burkina Faso because women are more likely to be tested and to know their status,⁷ due to the integration of HIV testing into some antenatal care and women's greater use of health services.²⁷

Both the UNAIDS International Guidelines²⁵ and the Southern Africa Development Community (SADC)²⁸ recognize that, in exceptional cases, health care providers may need to disclose a patient's HIV status to prevent immediate harm; however, both sets of guidelines are careful to narrowly qualify these cases. SADC states that a health care provider can only disclose a person's HIV-positive status when the person specifically requests it or in cases where the person has refused to disclose her/his HIV-positive status after appropriate counselling; there is a risk of immediate harm to a third party; the patient is informed that his/her partner(s) will be told; and the provider has “ensured that the person living with HIV is not at risk of physical violence resulting from the notification” (SADC Article 15.4).

Another damaging aspect of the HIV law is that, in places, it is overly broad or too vague. For example, it mandates that all people who know they are living with HIV abstain from unprotected intercourse, but does not say whether condom use is sufficient to protect them from prosecution. How will this law be enforced in a country where male condoms are seldom used and female condoms are difficult to obtain, despite the government's efforts to make them more accessible?²⁹ Further, these articles fail to take into account the fact that many women cannot choose to abstain from sex or insist on condom use, regardless of their HIV status.³⁰

Local organizations are also concerned that the HIV law could be broad enough to prosecute women for vertical transmission. Unlike Sierra Leone³¹ and Tanzania,³² Burkina Faso's legislation does not explicitly criminalize vertical transmission of HIV; however, it states that intentional transmission can take place through “any process whatsoever”. Antiretroviral treatment significantly reduces the risk of vertical transmission, but in Burkina Faso only a third of pregnant women living with HIV receive this.³³ If this law is implemented, women who do not have access to antiretrovirals and breastmilk alternatives may be at risk of criminal prosecution. So far no cases of criminal charges for vertical transmission of HIV have been reported in Africa. However, several women in other countries, including Sweden,³⁴ United States³⁵³⁶ and Canada,³⁷ who either did not disclose their HIV status or did not take antiretrovirals when they were advised to do so, have been charged for transmitting the virus to their fetus or infant, setting a dangerous precedent.

Finally, while the positive protections in both the HIV and Reproductive health laws are commendable and should be implemented immediately, in some cases they do not go far enough. For example, although these laws state that psychosocial support services must be provided, they do not provide the explicit protections that many people living with HIV, particularly women, need from emotional or verbal abuse, abandonment, or bankruptcy for disclosing their HIV-positive status.^28,38,39

Discussion

Although the proponents of Burkina Faso's HIV legislation were seeking an effective means of HIV prevention, there is no evidence that criminalization reduces HIV transmission, and available data show that it does little to change risk-taking behaviour.⁴⁰ UNAIDS urges countries that have not yet passed this type of legislation (such as Cameroun, Nigeria, Senegal, the Gambia, Côte d'Ivoire, and Liberia,⁴¹⁴²) not to pass it and instead to rely on existing criminal laws to prosecute cases of willful, criminal transmission.²⁴ In both cases brought in Burkina Faso thus far, the criminal code was or would have been sufficient to prosecute the alleged crimes.

UNAIDS has advised governments who have already passed HIV-specific criminal laws to repeal them and to ensure that all national laws comply with existing international human rights standards, including the right to live free of discrimination, violence, sexual coercion, and rape, regardless of HIV status.²⁶ When the complete repeal of legislation criminalizing HIV transmission is not possible, UNAIDS and SADC have both developed alternative language that can be used to amend harmful legal provisions.²⁸³⁸ Protective provisions in HIV-specific legislation should be implemented and allocated funding. In Burkina Faso, the 2008 HIV law is not currently attached to a budget line, essentially blocking the implementation of the positive programming it calls for, such as HIV education in schools, wide distribution of male and female condoms, and comprehensive services for people living with HIV.

Local civil society organizations in Burkina Faso, including Réseau Accès aux Médicaments Essentiels (RAME), are pressuring the national government to repealing the articles in the HIV law that criminalize HIV exposure and transmission and that mandate disclosure of HIV status. RAME will also conduct a public opinion survey on criminalization of HIV transmission in January 2010. If the survey shows public support for repealing these laws, RAME will seek to obtain 30,000 Burkinabe signatures, the minimum number required to petition the government to consider revising the legislation. RAME is already partnering with other NGOs working on HIV to educate communities and civil society groups about the laws through radio programmes, televised debates and press conferences. In addition to advocating for the repeal of specific articles, these groups are asking government to implement the positive provisions in both laws immediately.

It remains unclear whether or how cases of unintentional HIV exposure or transmission will be prosecuted in Burkina Faso or the long-term implications of mandatory disclosure of HIV status. No cases have yet been brought on the grounds of defending the rights of people living with HIV, and it therefore remains to be seen whether the original intent of these laws — to protect people living with HIV and AIDS — will be realized. We urge Burkina Faso and other governments to immediately repeal harmful articles in its HIV-specific legislation and implement the positive provisions, and to prioritize HIV prevention over punishment as the best way to respect the rights of people living with HIV and AIDS.

Acknowledgements

The authors are grateful to Whitney Welshimer, Denise Hirao, Kate Bourne and Adrienne Germain of IWHC for their assistance in the preparation of this paper.

Notes

* The Forum of African and Arab Parliamentarians for Population and Development, West African Regional Program of USAID, West African Health Organisation Centre d'Etudes et de Recherche en Population pour le Developpement, the Economic Community of West African States Parliament, and the Network of Parliamentarians in Chad for Population and Development collaborated in organizing the workshop. AWARE is funded by USAID and works in 18 West and Central African countries in collaboration with Family Health International, Public Services International, Futures Group and five other partners.³