The Futility of Criminalizing HIV Transmission

Yet another blog posting that demonstrates the futility of criminalizing having sex with someone without disclosing one's HIV status. It's quite simple. If you don't want to risk prosecution for the offense, don't get tested. Or make sure you get tested anonymously.

In this case, a man, who says he was infected in the late 1980s (but appears to have survived without antiretroviral drugs until about 20 years later) has unprotected sex, once, with a long term sex partner. How do we know that she wasn't already HIV positive at the time? That doesn't exonerate him, of course, but if she had kept her status secret from anyone, his behavior is punishable and hers is not.

The more people get tested the better. And better still if people get tested regularly if they think they continue to run risks of infection. But if knowing that you are HIV positive means you might accidentally infect someone with whom you haven't discussed your status, it's better to test anonamously.

People are not being criminalized for being HIV positive, they are being criminalized for being tested openly, in a manner that can be traced, should someone wish to trace it. Instead of getting people to test as early as possible, this makes it preferable for them to test as late as possible and to disclose their status as little as possible, perhaps never.

For people in developing countries, it's fairly obvious who is most likely to be punished by such laws. Women are under a lot of pressure to test when they are pregnant, sometimes more than once. For various reasons, it is often difficult, perhaps impossible, for them to keep their status confidential. And there is always the danger that someone else could reveal it.

In fact, if a woman needs any health services, especially before, during and after pregnancy, it is very unlikely that she can remain untested, or that her status can remain confidential, should the matter be scrutinized later.

Women in developing countries are more likely to be infected than men, often substantially more likely. They are more likely to have to test in local facilities (because of relative lack of mobility), where they are known by others.

Far from reducing stigma, this kind of criminalization would increase stigma. People would be under suspicion just because of things that may be known about them, or even because of characteristics that are merely attributed to them.

The orthodox view of HIV in developing countries is that HIV is almost always transmitted through heterosexual sex. But it is people who are felt to be engaging in more sex that will be most stigmatized, sex workers, pregnant women, perhaps young women, because prevalence is so high among them.

In the case mentioned above, both the woman and the man are intravenous drug users. They are both at high risk, far higher than people who engage in a lot of heterosexual sex. If the woman did know her status, it would probably be difficult to prove that.

And if she didn't know her status, perhaps, being an intravenous drug user, it might be suggested that she should have been tested a long time ago. It is claimed she was not tested till 2006, though the unprotected sex act was said to have occurred in 1999.

But why would anyone test if it's safer not to? If there was any chance that criminalization could reduce HIV transmission, there might be some justification for it, though it's hard to imagine what that could be. But in fact, it only makes things worse. It risks punishing people who may have been a lot more careful, or honest, and risks exonerating those who keep their test results to themselves, or don't even bother testing.

Harm Reduction Needs to Start in Health Facilities

Now that PEPFAR (the US President's Emergency Plan for AIDS Relief) have revised their Bush era decision to refuse funding to harm reduction programs, the Kenyan government may also consider changing their policy towards intravenous drug users (IDU). According to the head of Kenya's National Aids Control Program, addiction will be treated as a health issue and needle exchange, methadone and condoms will provided for IDUs.

Although the contribution of intravenous drug use to Kenya's epidemic is currently estimated to stand at about 4%, this kind of exposure is a highly efficient transmitter of HIV. Heterosexual sex, on the other hand, is not such an efficient transmitter. In some countries, sex workers are only likely to die of Aids if they are also IDUs.

Commercial sex work can be one of the few ways to make enough money to feed a drug addiction. The drugs have to be paid for, but injecting equipment can be, and often is, shared. So a source of clean injecting equipment for IDUs could play a big part in reducing HIV transmission by this route. However, the decision to fund HIV programs that target HIV transmission among IDUs may also allow better estimates of their full contribution towards Kenya's epidemic. It may also allow a better evaluation of the part that commercial sex work plays in the epidemic.

Very few HIV positive IDUs are currently on antiretroviral treatment. Such treatment could significantly reduce sexual transmission of HIV, though it may not reduce non-sexual transmission so much. But giving IDUs better access to diagnosis and treatment should improve conditions for them and reduce further HIV transmission.

Sadly, the Kenyan police force may need more than a change in the law. As long as they and others can make money out of drug users, it's unlikely they will all turn into social workers overnight. Nor are NASCOP in a position to decriminalize drug use on their own. So let's hope decriminalization becomes a reality. If the administrators of PEPFAR can change their minds for ideological reasons, I'm sure the relevant people in the Kenyan government could change theirs for pragmatic reasons.

But any kind of re-evaluation of non-sexual modes of HIV transmission would be welcome in Kenya, in fact, in all African countries. If donors, governments, health professionals and other big players in the HIV scene start to think about highly efficient modes of transmission, as opposed to the low efficiency of most types of sexual behavior, ordinary academics, epidemiologists and others may eventually be allowed to research and publish data that currently appears to be deprecated (to put it mildly).

Those with the money, however they managed to get hold of it, decide how that money should be spent. There's little point in waving a lot of drug addicts in front of donors if those donors are opposed to working with drug addiction. With such restrictions lifted, who knows, drug addiction, and therefore HIV transmission among IDUs (and those they associate with), may turn out to be more common than previously assumed.

Perhaps donors and governments will eventually revise their attitude towards commercial sex work, especially in view of its interconnections with drug use. This could even lead to questions about exactly how much sex has to do with HIV when the far more likely transmitter is non-sexual.

And, it's a long shot, but if the HIV industry is willing to accept that some HIV is transmitted non-sexually, even among people who are said to have a lot of 'unsafe' sex, they may even wonder if ordinary people engaging in ordinary amounts of 'safe' sex are being infected non-sexually too.

Drug users are not the only people who use injecting equipment. More disturbingly, they are not the only people reusing injecting equipment. Some people get a lot of injections, because they are sick, pregnant, an infant, a sex worker, whatever. And in populations with high HIV prevalence, all of those people are at heightened risk of being infected with HIV, non-sexually.

Maybe we’ll live to see the day when sex is viewed once again as an aspect of health and life rather than as a spreader of disease. But first, we have to accept that poor health care can be a significant source of disease. Harm reduction programs, now that health care professionals and governments are allowed to talk about them again, need to start in health facilities.

Lack of Logic in the Received View of the HIV Pandemic

Something I have always found mysterious about UNAIDS' view (it's something of a received view) of the course of the HIV epidemic is that they estimate that the number of new infections peaked in Sub-Saharan Africa (SSA) some time in the mid 1990s. And they reckon that the reason new infections began to drop from then on can be put down to the success of HIV prevention and education programmes in changing the sexual behaviour of people, especially men who have sex with men (MSM), commercial sex workers (CSW), intravenous drug users (IDU) and young women.

With few exceptions, most SSA countries were doing very little to treat people with HIV or to prevent the transmission of HIV in the 1990s. Treatment was in its infancy and was inaccessible to the majority of Africans. And where prevention programmes had been implemented, they consisted of little more than mass education campaigns. They had very little influence on people's behaviour in the 1990s. And why would they have much influence? They had only started and only in a few countries, Uganda being one of the countries that started HIV prevention early. But even the nature and effectiveness of Uganda's HIV prevention campaign is still being hotly debated. Prevalence there has changed little in years and sexual behaviour indicators have long been sliding in the wrong direction.

What bothers me is that even if widespread prevention activities started in the mid 1990s, it would take many years for them to have much effect. That's if they actually had any effect at all. Ok, I can't research every country in SSA, but in the case of Kenya, very little was being done in the 1990s. It was only in the early 2000s that some serious work started, say 2002 or 2003. And the Kenya Aids Indicator Survey (KAIS) makes it quite clear that HIV prevalence, which had been dropping before 2003, actually increased and is now higher, after half a decade of HIV prevention work.

What I'm getting at is this: if rates of HIV transmission peaked in the mid nineties, then it did so for some reason other than the fact that every country had implemented widespread prevention programmes. The reason I suggest this is because prevention just wasn't a big thing then, at least, not big enough to explain why the epidemic started to 'decline'. I'm not saying that rates of transmission didn't drop, just that they didn't drop because of prevention programmes.

Another reason for thinking that prevention programmes didn't have much influence on rates of HIV transmission is because even after they did start, there is little evidence that they could have been the cause of the drop. There is plenty of evidence that most current HIV prevention programmes have little or no effect. In Kenya's case, scaling up HIV prevention programmes seem to have resulted in an increase in prevalence, the total number of people living with HIV. This doesn't tell us if transmission rates have decreased, so what about transmission? Are there still lots of people becoming newly infected?

According to the KAIS, transmission patterns are changing. Numbers infected in urban areas have dropped but numbers infected in rural areas have increased, especially among men. The majority of Kenyans, 75% or more, live in rural areas. Poorer and less well educated people are now being infected in greater numbers. The majority of poor and less well educated people live in rural areas and most Kenyans are poor and badly educated. These trends all follow what KAIS refer to as a 'rapid scale up of HIV prevention, care and treatment services'.

A recent article in AllAfrica.com quotes UNAIDS as claiming that their successful prevention and education programmes have *finally* begun to change the behaviour of those who are most at risk. If this is only happening in recent times, how can they claim that it had anything to do with a decline in incidence that began in the mid 1990s. But Kenya, along with many other SSA countries, have explicitly not targeted some of the groups who are thought to be most at risk, MSM, CSWs, IDUs and young women. The well presented 'Modes of Transmission Survey' for Kenya makes it quite clear that these groups are still being ignored.

There may be isolated signs of people's behaviour changing in some ways. All sorts of movements may have achieved great things, especially relating to HIV treatment and increasing access to treatment. I certainly wouldn't claim that all the billions that have been poured into HIV for over two decades has been wasted. But I have yet to see clear evidence that HIV transmission has declined as a result of prevention efforts. I think the epidemic has its own dynamics, like any epidemic, but I am not convinced that the enormous Aids industry has had much influence on its course. I just hope I'm wrong.

Did Someone Say 'Final Solution'?

I have read various articles about the proposal to carry out a 'gay census' in Kenya. But none of them shed any light on why the Kenyan government should suddenly be interested in identifying some of those most at risk of being infected with and of transmitting HIV. The best way to make gay people feel they are not being singled out is to make HIV and sexual health services available to all, without prejudice.

In fact, the proposal is not just to single out men who have sex with men (MSM). The proposal also aims to identify commercial sex workers (CSW) and intravenous drug users (IDU). That's hardly going to make members of these groups feel any better. They all have several things in common: they are all doing something considered to be illegal. They are also the subject of prejudice, discrimination and condemnation by political and religious leaders.

Men who have sex with men, commercial sex workers and intravenous drug users need access to sexual health services. They also need access to more general health services, the protection of the law from persecution by members of the public and by the police. But programmes involving what is often referred to as 'harm reduction' are not popular in Kenya. The possibility of decriminalising sex between people of the same gender, commercial sex work or even intravenous drug use is not even being discussed right now.

So what strikes me as most suspicious about the call to carry out this gay census, or census of people who are most at risk from HIV, is that it is being funded by the President's Emergency Plan for Aids Relief (PEPFAR). PEPFAR has always been vehemently opposed to harm reduction measures, such as the use of condoms, needle exchange programmes and other activities that are known to help reduce the spread of HIV and other diseases.

Why would PEPFAR now be interested in funding this particular approach? Are we supposed to believe that the initiative has changed to such an extent that harm reduction is no longer refused funding? And are we also supposed to believe that the Kenyan government has completely reconsidered its earlier views on gay sex, commercial sex work and intravenous drug use?

I suspect the motives behind PEPFAR's decision to fund any kind of 'survey' of some of the most vulnerable people in the country. I suspect the Kenyan government's motives, too. I have heard rumours that a number of powerful people in the US are not completely unrelated to Uganda's current discussions of an effective pogrom against gay people. This is not the way to reduce HIV transmission and it will have numerous other human rights consequences.

Unless many other things are in place that guarantee the safety of people affected by this proposed 'survey', and that will include people who don't actually fall into any of the targeted groups, the whole thing should be abandoned immediately.