HIV prevention laws based on moralistic judgements of lawmakers may increase stigma

'The intention may not be cruel... but the impact may be': understanding legislators' motives and wider public attitudes to a draft HIV Bill in Malawi.

Stackpool-Moore, L. Sex Transm Infect. 2013. June 89 (4)

Objectives: The law in relation to HIV has prominence in the formation and regulation of moral norms in regard to human rights, and in regard to criminalisation, the policing of sexuality and intimate behaviours, and the production of stigma. The research focuses on the potential and impotence of the law to govern for, and enable, the human right to health in the context of HIV in Malawi.

Methods: This one-country qualitative case study (Malawi) action research involved data collection during a 6-month period (October 2010-March 2011). Datasets include interviews with law commissioners (n=10), opinion leaders (n=22), life story participants who were people living with and closely affected by HIV (n=20), reflections of the action research team (n=6), and a review of the proposed HIV and AIDS (Prevention and Management) Bill, legal and policy documents.

Results: The analysis of the perspectives of the law commissioners, who formed the Special Law Commission and drafted the Bill, revealed that stigma was consciously invoked to delineate social norms and guide governance of notions of personal responsibility. The analysis of the perspectives of the life story participants, whose lives would be most directly impacted if these provisions came into force, reveals the extent to which the stigma associating criminality and HIV is falling on fertile ground through its engagement and generation of internalised stigma; unearthing an uneasy link between stigma and the law in response to HIV in Malawi.

Discussion: The results indicated that the proposed HIV Bill in Malawi manifests a tension between intention and impact. By incorporating criminal sanctions as part of the proposed HIV Bill, the lawmakers actively seek to use stigma to shape social attitudes and attempt to guide normative behaviour.

Abstract access  [1]

Editor’s notes: This paper presents research that examines the impact of criminal law in relation to HIV on stigma in Malawi. Through interviews with lawmakers and life story interviews with people living with and closely affected by HIV, the author examined how participants understand the proposed draft HIV and AIDS (Prevention and Management) Bill. The legal initiative for the bill, whilst based on principles of non-discrimination, includes provision to imprison a person who knows that he (sic) is HIV positive and does not refrain from an act which is likely to infect another person or who deliberately infects another person. Of great concern, the interviews revealed that whilst participants stated a support for non-discrimination of people living with HIV, many supported criminalisation of HIV transmission. The lawmakers were almost unanimously in favour of criminalising HIV transmission as a way to seek retribution and justice rather than for prevention of HIV transmission. The author noted that the lawmakers were particularly judgemental and moralistic about the issue. The people living with or affected by HIV were less certain and provided arguments for and against criminalisation, especially in relation to deliberate transmission of HIV where knowledge of status is not known. They were particularly worried that this law may dissuade people from testing. This paper provides an important understanding of the tension between political level intent to reduce stigma around HIV and the moralizing position taken by law- and policy makers. More worryingly, the author suggests that the perpetuation of stigma through such means as this law could be used to maintain or establish social control. 

Africa [10]
Malawi [11]
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