This morning the conservative CNSNews reported on Tom Lantos Human Rights Committee Hearing on Uganda’s Anti-Homosexuality Bill. As I read the piece, I wondered if the reporter was trying to change the subject of the bill. The article seems quite focused on the following section of the Anti-Homosexuality bill pertaining to HIV positive persons:
3. Aggravated homosexuality.
(1) A person commits the offense of aggravated homosexuality where the
(b) offender is a person living with HIV
Offender is not defined in the bill but homosexuality is defined quite broadly and includes touching someone of the same-sex in a sexual manner. Touching is defined as
“touching” includes touching—
(a) with any part of the body;
(b) with anything else;
(c) through anything; and in particular includes touching amounting to penetration of any sexual organ. anus or mouth.
Touching in this manner can get you life in prison. If an HIV positive person touches in this manner, the action is considered “aggravated homosexuality” with death the penalty.
The CNSNews report makes a point to ask those at the Human Rights Committee hearing what they believe should happen with HIV persons who engage in homosexual sex. Here is the specific question:
CNSNews.com: “It was mentioned today that the death penalty and long prison terms or life imprisonment are absolutely unacceptable and terrible for people who engage in homosexual acts. And I was wondering if I could get your opinion on something. Like, what would you—what do you think would be the appropriate way to address someone who knows they are HIV-positive and engages in homosexual relations anyway? Like, what would be an appropriate penalty or a correct way to address that in your opinion?”
The question seems to assume that HIV-positive people who have sex set out to infect their partners with the virus. Rep. Baldwin gives a reasonable answer to the question.
Rep. Tammy Baldwin (D-Wis.): “I think that—if there is—well first of all, in many parts of the globe, diagnostic tools aren’t necessarily available and so knowledge of one’s own HIV and its status is not uniformly as high in other places where health care is harder to come by than it is in the U.S. When somebody has a communicable disease whether it be H1N1 flu, and they go about the public without, you know—potentially doing harm, or a sexually transmitted disease with calculation, tries to expose others, that is something that I think should be punishable and that it’s up to the legislatures of each country to decide what the appropriate penalty level is—how to deter such purposeful, harmful activity as well as protect others if there’s thought that that behavior might continue.”
Baldwin: “We’ve tackled that here in the U.S. I would tell you that it varies from state to state what those criminal penalties or other penalties might be. We’ve dealt with it not only with regard to sexually-transmitted disease, but diseases like tuberculosis. And we’ve dealt with it at different times in different ways. But I don’t think there’s one sort of boiler- plate way. But again, I want to acknowledge this issue that health care systems are not the same in every country, and in order for this to be intentional, somebody has to know their HIV status.”
Rep. Baldwin makes clear that the actionable offense is intent to harm. However, the CNSNews reporter does not seem to get the crucial distinction – a distinction not made in the Anti-Homosexuality Bill. In the bill, there is no language that requires the offender to have harmful intent. The clear intent of the bill, as was recently confirmed to me by a researcher in the Ugandan Parliament Research Service is “to outlaw all same-sex sexual conduct.” Being HIV-positive gets the strongest penalty. In the bill, intent to harm is not relevant. The CNSNews reporter ignores Rep. Baldwin’s response.
CNSNews.com: “Okay. So in the case of somebody who does know that they are HIV-positive, are you saying that there should be a penalty then for continuing to engage in homosexual acts?”
Baldwin then tries to get back to the important distinctions involving awareness and intent.
Baldwin: “Unprotected? I mean, there’s obviously ways to make sure that, you know, there are precautions—there are also universal precautions in medical settings as well as, you know, for those who engage in consensual activity. But certainly if there is somebody who is using their, you know, their status as a weapon, you know, particularly to do harm, there should be, there should be appropriate penalties for that. And I’m not going to advise any particular jurisdiction what it should be, but they should grapple with that in a democratic way.”
Even though the title of the article notes that Baldwin addressed purposeful spreading of HIV, the body of the article failed to make the important distinction:
But Baldwin did not say what specific punishment was warranted, particularly in the country of Uganda, which currently is considering legislation that would impose the death penalty on any HIV-positive person who willfully and knowingly engages in homosexual relations.
“Willfully and knowingly” engaging in homosexual relations should not be penalized according to Baldwin; doing so with the intent to spread HIV is what she addressed. HIV-positive people may engage intimacy with appropriate precautions. Failing to make this distinction might be an oversight on the part of CNSNews or it might be an attempt to change the subject from what the bill says to focus on something that many readers would want to see addressed in law.
However, it is important to note that the bill as written intends “to outlaw all same-sex sexual conduct” and to impose the death penalty on same-sex intimacy, including touching, where one or both parties are HIV-positive, even if the touching is with mutual consent.