Journal of Child and Family Studies

, Volume 21, Issue 1, pp 14–24

Family Impact Analysis of Section 6 (Sexual Transmission) of the Kenya HIV and AIDS Prevention and Control Act No. 14 of 2006

Authors

    • Department of Human Development and Family StudiesUniversity of Wisconsin-Stout
  • Jane Rose M. Njue
    • School of Family Consumer and Nutrition ScienceNorthern Illinois University
Original Paper

DOI: 10.1007/s10826-011-9515-7

Cite this article as:
Rombo, D. & Njue, J.R.M. J Child Fam Stud (2012) 21: 14. doi:10.1007/s10826-011-9515-7

Abstract

We have analyzed the impact of Section 6 of The Kenya HIV and AIDS Prevention Act on Kenyan families and especially within marriage. In 2006 Kenya passed two bills into law: The Kenya HIV and AIDS Prevention Act and The Sexual Offences Act. The latter addresses sexual offenses including rape, incest and other acts of sexual violence and relates to the Prevention Act in that HIV infection may be transmitted during a sexual offense. Section 6 of the Prevention Act focuses on the sensitive issue of secondary and tertiary transmission of HIV. Although protection is accorded to individuals living with HIV, this section of the law places responsibility on this group to reduce infections among positive individuals as well as the spread of infection between spouses {when only one partner is positive} by criminalizing recklessness leading to HIV infection. By asking questions proposed in the family impact analysis such as, does the law enhance family stability, and commitment or does it acknowledge diverse family forms, interdependence and target vulnerable groups, the framework allows us to examine the impact of Section 6 of the law on families. Under the FIA framework, the ability of The Prevention Act to enhance family functions, promote wellbeing, marital stability, commitment and responsibility is considered while taking into account the contextual realities in Kenya.

Keywords

KenyaHIV/AIDS preventionPolicy analysisFamilyMarriage

Introduction

We examined the context of the development The Kenya HIV and AIDS Prevention and Control Act no. 14 of 2006 and evaluated the potential impact of Section 6 of The Act on families using the Family Impact Analysis (FIA) as outlined by Bogenschneider (2006). The evaluation took into account sexual behavior and the associated socio cultural contexts in a bid to determine potential consequences of The Act. The voices of the public that the bill generated were also used in the evaluation. The overall purpose of the Kenya HIV and AIDS Prevention and Control Act no. 14 of 2006 is to enhance secondary and tertiary prevention of HIV transmission through the achievement of the following four goals: First, promotion of public awareness about the causes, modes of transmission, consequences, and means of prevention and control of HIV; second, extend the full protection of human rights and civil liberties to every individual suspected or known to be infected with HIV and AIDS; third, promote safety and precautions in practices and procedures that carry the risk of HIV transmission; and fourth, to positively address and seek to eradicate conditions that aggravate the spread of HIV.

Section 6 of the Kenya HIV and AIDS Prevention and Control Act focuses on preventing the transmission of HIV and AIDS by an infected person through two distinct pieces of legislation. One, individuals who are aware that they are infected with HIV is mandated to stop the spread of the virus by taking all reasonable measures and precautions. These include informing in advance, any sexual contact or person with whom needles are shared of the fact that they are HIV positive. When the infected individual, knowingly and recklessly, places another person at risk of becoming infected with HIV without the contact knowing that fact and voluntarily accepting the risk of being infected, then the infected person has committed an offense. The infected person upon conviction shall therefore be liable for punishment of a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding 7 years, or both a fine and imprisonment. The Act implies that a person who is at risk of being infected and/or infected either through sexual contact and/or sharing of personal items would be the plaintiff. Although The Act does not explicitly state the responsibility of the plaintiff, it can be assumed that the plaintiff would have the task (burden) of proving that offense has been committed against him or her.

Two, Section 6 also requires that medical practitioners who are responsible for treating an infected individual advise their patients to disclose their HIV status to their sexual contacts. If the medical practitioners become aware that an infected patient has not disclosed to his or her sexual contacts of the infection after reasonable opportunity, the medical practitioner may inform the infected patient’s sexual contacts about the patient’s HIV/status. The practitioner is protected by The Act to disclose.

This Act has been hailed as a major turning point in the fight against the spread of HIV and AIDS not only in Kenya but in sub-Saharan Africa. While prevention strategies have identified risks and risky behaviors and how to avoid and/or reduce risk through media with a generalized audience, this policy has a specific target namely those already infected with HIV. We selected it for analysis because of its unique component of criminalizing HIV infection and the potential impact it might have on long term sexual relationships. Any policy might have intended and unintended consequences as well as direct and indirect impact on families (Bogenschneider 2006; Zimmerman 1992) if subjected to appropriate evaluations to determine such potential or actual outcomes. Using the six principles of FIA proposed by Bogenschneider, we shall evaluate the impact of this Section 6 of the HIV and AIDS Prevention and Control Act on the family to ascertain whether it (1) supports and encourages being responsible in marriage (2) strengthens marital commitment and stability, (3) acknowledges interdependence of family members, (4) empowers and respects family autonomy in collaborating with service providers, (5) acknowledges and values diversity, and (6) supports vulnerable families. However, it is important that we first examine the historical context relevant to the spread of the HIV prior to the formulation of the policy.

History and Context of the HIV and AIDS Prevention Act

The history of HIV and AIDS Prevention Act is embedded in family values and the practice of sexuality on one hand and the role of the government on the other. In Kenya, HIV is spread mainly through heterosexual contacts. Therefore, it is important to examine the role of sexuality and the prevailing contexts and the role that the government has played in shaping the prevention of HIV infection including the enactment of The HIV and AIDS Prevention Act.

Sexuality

The practice of sexuality in Kenya has been impacted by transitions in family functions from traditional to less traditional ones which partly account for the spread of HIV. Before the coming of the missionaries and colonization, ethnic communities had some form of gender-based traditional sex education for the youth. For example, during the Kikuyu ethnic community circumcision, the young initiates were secluded from the community by gender to receive instructions on adulthood expectations (Mbito and Malia 2009). This included sexually responsible behavior. Educating youth was a community responsibility that transformed youth into adults. The consequences of inappropriate sexual behavior specifically leading to pregnancy included harsh punishment. It was taboo not fulfill the age designated expectations including the appropriate time and context to get pregnant. The Luo ethnic community controlled a girl’s sexuality to avoid pregnancy outside of marriage and thereby maintain social order by having children born and raised in the family of the man/husband. Girls who got pregnant out of wedlock were relegated to marrying old men as a second, third or subsequent wife, a position that was not as prestigious as being a first wife (Ogola 1994). Their children were not socially accepted and were not accorded the full care and protection as were other children born within a marriage (Evans-Pritchard 1950; Nyambedha and Aagaard-Hansen 2003; Ocholla-Ayayo 1976).

As nuclear families replaced extended families as the norm, due to urbanization, migration, and globalization the educative role formerly performed by the community has become the task of the nuclear family. Currently, however, not many Kenyan parents talk with their children about sexuality (Mbugua 2007). Many parents confess to lacking knowledge and the inclination to talk about issues pertaining to sexuality to their children. Consequently, media have been widely used to teach about HIV and sexual behavior. The limited involvement of parents in sexuality education leaves an important gap. Research has shown that similar gaps characterized by lack of communication on sex matters exist within marriages (Miller et al. 2009).

Additionally, family values have changed in many ways as the hold of traditional norms and regulations have become loose. Many social problems, including the HIV epidemic, out of wedlock births, sexual exploitation and abuse of women and children as well as domestic violence have increased (Cohen and Atieno-Odhiambo 1989; Ngige et al. 2008). These changes have been associated with the changing dynamics of family functions which are often accounted for by other forces such as urbanization, migration, rapid population increase and lack of political goodwill to support policies that address social problem (Wilson and Hennon 2008).

The Role of Government

Although the first publicly declared case of HIV was in September 1984, a few cases had been observed by 1983. However, the name of the virus and the disease had not been identified by then. In the early to mid eighties HIV was largely unrecognized among the Kenyan population. The reason for this is that there were few full blown cases of the AIDS and deaths resulting from AIDS (Hershey 2009). The governments of Kenya and other African countries have been faulted for failing to include HIV in its political agenda. Lorch (1993) cited several reasons for this failure by the Kenya government from the 1980s through the 1990s. First, the government was preoccupied with ensuring that it stayed in power at the expense of implementing social and economic developmental policies which would have addressed the increase in HIV. Second, the government feared that focusing on the rising prevalence of HIV in the country would interfere with tourism which is a great source of foreign exchange. Third, there was lack of knowledge regarding the identification of the HIV virus and lastly the government lacked financial resources to engage in research and intervention strategies to combat the spread and invest in HIV/AIDS education.

The Sexual Education Bill of 1996 proposed the teaching of sex education to all secondary (high) school children. If the bill had passed it might have put in place the basis of addressing the concerns that HIV/AIDS introduced to the sexuality debate in Kenya (Kirby 2000). Proponents of the bill argued that sex education would promote healthy sexual behavior and the youth would refrain from engaging in sex or risky sexual behavior. The opponents feared the opposite effect; they argued that sex education teaches the youth “how to have sex” and that it would give the youth license to engage in sex. With policy-makers and stakeholders (especially the churches) divided on whether or not to teach sex education in schools, the opportunity was lost to bring to the forefront the spread of HIV and AIDS and devise preventive programs. The impact of HIV continued to be felt across the country. Indeed it took just 3 years after the sex education bill failed to pass for the government to declare HIV a national disaster.

Despite the delay in dealing with HIV, the government has continued to use education, public health strategies and most recently legal justice to reduce the risks of infection. Beginning in 1985, Kenya made an effort toward addressing the HIV/AIDS issue with the support of the United Nations, bilateral agencies, nongovernmental organizations, community based organizations, and religious institutions (Akwara et al. 2003). Because HIV/AIDS was not yet perceived as a threat, the focus for National AIDS Control Programme (NASCOP) was awareness creation, blood safety, and clinical management of AIDS-related opportunistic diseases. By 1992, it had become evident that HIV/AIDS is related to sexually transmitted infections and in 1994, the National AIDS and STD Control Programme was established. Although the acronym remained the same as NASCOP, the focus of attention included sexually transmitted infection (STI). In 2003, the newly elected 9th Parliament formed a new parliamentary group that created a more integrated approach to dealing with HIV and AIDS by doing the following: (1) launching extensive public education through the government ministries including, health, education, culture and social services, and economic planning and, (2) availing research money to academic institutions for research on how to most effectively combat HIV AIDS. The government also subsidized the cost of medicine for the individuals who were already infected with AIDS.

Education through mass media probably has been the most widely used means of intervention. At the onset of the HIV/AIDS epidemic, education was focused on creating awareness. With the influence of western governments, the ABC model was developed to categorize levels of risk from the public health/educators’ perspective. A, stands for abstinence, and targets youth that are assumed not to have initiated sex, and encourages them to remain celibate until marriage. The B stands for being faithful (to one’s partner). This method is only applicable for those living together as married couples and cohabiting or those in “come we stay” relationships, as they are referred to in Kenya. And C stands for condom use, directed at high-risk groups like commercial sex workers and long distance truck drivers. Although the model was designed after the success story in Uganda, it has been criticized for categorizing individuals into risk groups that are not necessarily applicable to Africa where HIV is generalized in the population. Such categorization is in contrast to the US, where HIV continues to be confined to specific populations (Green 2004).

Muturi (2005) asserted that preventive education through mass media fails to address socio-cultural aspects of sexual behavior, leaving individuals to use sexual myths and fallacies created in fear to guide and inform their sexual behavior. For example, Muturi conducted a study to investigate the cultural hindrances to HIV prevention and found that participants practiced “shared healing.” Shared healing refers to a situation in which a spouse has sex with his or her partner who is on medication for a sexually transmitted infection because they believe that they can both heal. Witte et al. (1998) also reported a mismatch between preventive messages and the realities of targeted groups. The authors found that sex workers targeted for prevention education needed information on how to negotiate for condom use rather than how to use them correctly, which was the emphasis of the program. Public health strategies, including education, continue to be the dominant means of reducing the risks of infection. Challenges experienced by sexual partners who are struggling with infection and prevention are evident. Couples who find themselves in this situation need advice on safe sex and family planning options, but many HIV-discordant partners say these services are hard to access, leaving them without guidance (Integrated Regional Information Network (IRIN) 2011).

Having discussed the history and context of sexuality that preceded the development of the HIV and AIDS Prevention Act, it is important to understand the magnitude and impact of HIV and AIDS in Kenya as part of sub Sahara Africa in order to appreciate enactment of the policy. Therefore the following section will focus on the statistics and impact of HIV/AIDS.

Statistics and Impact of HIV/AIDS

According to the Kenya National Bureau of Statistics (KNBS) and ICF Macro (2010), the prevalence of HIV among the populace ages 15 through 49 has remained above 5% which is the threshold for an epidemic as set by World Health Organization. Using prenatal clinics, demographic health surveys and Kenya AIDS Survey Indicator, trends in prevalence have been estimated from 10% in 1990 to 7% in 2009. Prevalence peaked to 13.9% in 1998 and registered a low 5.1% in 2006. This rose by 2% as 2007 Kenya AIDS Indicator Survey reported 7.4% prevalence. The persistence of the high prevalence shows that a policy framework is still needed to look into ways of curbing the spread of infection.

The impacts of HIV infection are economic, social and psychological and have been reported in both quantitative and qualitative research. Barnett and Whiteside (2003) have detailed the timing and degree of impact caused by HIV infection from individuals, families, communities and the nation. Barnett and Whiteside (2003) have argued that HIV/AIDS infection has far reaching effects that even the most intensive and extensive evaluation designs cannot capture its totality. The authors observed that although the impact of HIV is felt at every level of the nation, the greatest impact is felt by the family unit. When a family member is diagnosed with HIV infection, the family immediately begins to feel the impact as resources reduce to meet the cost of treatment. If the infected member contributes to family income and the patient cannot continue to work, the family income is reduced (Barnett and Whiteside). Children also are impacted by HIV/AIDS. Children show psychological reactions to parental illness and death. Stigmatization, dropping out of school, change of friends, increased workload, and discrimination and social isolation against orphans all increase the stress and trauma of parental death (UNAIDS 2009).

Due to the negative impact of the HIV epidemic, factors that have influenced rates of infections, whether by suppressing or enhancing the spread, have been examined. Sexual behavior has been viewed as the intermediary between infection and contextual factors that shape behavior. There are challenges in persuading intimate partners including couples from adopting a desired sexual behavior that decrease risks of infection. Clark et al. (2006) found that there was an increased risk of infection because of high frequency of unprotected sex that occurs, especially with older polygamous men. Delaying marriage after an initial sexual encounter was also found to increase the risk of infection among women (Bongaarts 2006; Rombo 2009). Prevention strategies among HIV positive couples have been complicated by the patients’ confidentiality right to safeguard sharing their HIV positive status. Yet sharing has both negative and positive consequences. In a study that examined risk reduction among partners who are infected with HIV, Lifshay et al. (2009) found that individuals changed their sexual behavior after learning of their HIV positive status. For example, they reduced the frequency of engagement in sexual activities and some used condoms more frequently. However, the study found that gender imbalance in marriages hindered women from practicing their desired behavior changes. It is important for policymakers to know whether criminal justice provides protection to individuals with increased risks within marriage. Criminalizing HIV transmission through the enactment of Section 6 of the Kenya HIV and AIDS Prevention and Control Act provides such an option. The discussion will now turn to how this law will impact the family using Family Impact Analysis (FIA).

Family Impact Analysis Framework

Kamerman and Kahn (1978) distinguished between explicit and implicit family policy. Explicit family policies are designed to achieve specific goals regarding families while implicit are policies that are not intended to affect families but which have indirect consequences on them. Family policy aim at positively influencing four main functions of the family which include: (1) family creation (e.g. to marry, divorce, to bear or adopt children or provide foster care), (2) economic support (e.g. provide members with basic needs), (3) childrearing and (4) care giving (e.g. provide assistance for disabled, ill and elderly). Bogenschneider (2006) argued that a family perspective to policy brings out family actions that might be hidden by other prevailing ideologies such as individual rights, competitiveness, and money and material possessions over commitment. In Kenya, a family perspective might add to the gendered framework that dominates analysis of the impact of social policies.

Bogenschneider (2006) asserted that in order to develop family-friendly policies, it is important to ask the right questions. The two key questions are: (1) what can government and communities do to enhance family’s capacity to help itself and others and, (2) what effect does a policy have on families? Because of the realization that, families are universal fundamental social units which sustain societies in different ways, The Consortium of Family Organization developed the FIA to guide policy makers in the USA to take into consideration the impact any policy is likely to have on families (Ooms 1995). This framework facilitates policy makers within the legislative systems to take into account both the intended and unintended consequences of policies, being proposed at federal and state levels.

Bogenschneider (2006) outlined the rationale for family impact analysis by arguing that just like environmental and economic analysis; FIA is part and parcel of policy analysis. Both environmental and economic impact analysis resonate with most Americans who are likely to ask what a policy will cost or whether it contributes to environmental degradation or global warming. Questions regarding policy impact on families would seek to determine how family functions are impacted by policy. Like American families, Kenyan families seek to fulfill similar functions of care giving, procreation, child rearing and ensuring economic well being of both immediate and extended family members. Due to the universality of family functions across the world, Family Impact Analysis (FIA) becomes relevant despite the different contexts. In the following section we evaluate the transmission sections of the Kenya HIV and AIDS Prevention and Control Act using the six principles of FIA.

On one hand, Section 6 of The Act is a public health policy because it takes a tertiary approach to stop the spread of HIV. It is the third level of prevention which holds the infected individual responsible. While on other, The Act seeks to punish those who breach the law. Yet by targeting sexual relationships, the policy has implications for families, especially marriage. Although the law generally is applicable to any sexual relationship that is deemed to increase risks of infection, married couples are not exempt. Primary risks include having unprotected sex with multiple partners. Secondary risks are factors that are likely to aggravate the occurrence of the primary risk, for example, early marriage (Clark 2004) and gender-based violence (The Population Council 2008). The increased frequency of unprotected sex with husbands who are engaged in sexual encounters with other women increases risk of infection with HIV. Gender-based violence hinders women from participating in sexual intercourse on their own terms. Both factors are embedded in cultural practices and norms. Although this policy was signed into law in 2006, the minister in charge has not authorized its implementation and therefore actual consequence of The Act is still to be experienced. The FIA is based on the realities of sexual relationship especially marriages. Therefore the meanings of the principles are also reflecting their relevance to families and HIV prevention. The exercise has the potential to provide insights for possible amendments that could strengthen the policy before it is eventually implemented.

Does the Policy Provide Support and Encourage being Responsible in Marriage?

We assume that support would entail suppressing the occurrence of separation and/or divorce between partners where at least one of them has been diagnosed with HIV infection. Responsibility includes not putting one’s partner at risk of HIV infection. The following story illustrates how Section 6 can be used to provide support and encourage responsible behavior in a marriage when HIV infection of one partner has been diagnosed. The Sunday Times of South Africa (2000) reported a case of a Kenyan couple’s legal pursuit regarding HIV status. In the case, the Kenyan high court forced a man to take his HIV positive wife back into the family home. Upon learning about the wife’s HIV positive status, the husband filed for divorce on the grounds of risks to his life and to their two young children and forced the wife to live in the family’s servant quarters. An earlier court had denied the wife’s petition not to be thrown out of the home. On the grounds of human rights the husband was forced to take the wife back. Throwing the woman out of the home was described as traumatizing and dehumanizing by the high court. Although the outcome of the law showed that the individual right of persons living with HIV prevailed in this case, there was no evidence of increased risks of infection to the husband and/or the children cited in this case. The judgment provided what might be termed case law or a precedence that The Act might stand for. In such a case the law is supportive of marriage. How the relationship plays out after the judgment is not within the scope of the policy. However, other policies that provide counseling services might help strengthen the relationship may be necessary to avert any unintended negative consequences. The behavior of the infected partner was determined not to increase any risks of infection to the partner and their children. Therefore the court stopped an otherwise eminent separation on its track.

Partners are expected to assume different, but related, responsibilities under The Act. The HIV positive partner is expected to avoid putting his or her partner at risk of infection and the latter is expected to be responsible for gathering evidence to prove that he or she was exposed to risks of HIV infection. By enforcing disclosure The Act is encouraging the infected individual to take responsibility. However, the reactions to voluntary disclosure, especially in developing countries, have not been positive [World Health Organization (WHO) (2004)]. The organization reports that disclosure may lead to loss of economic support, blame, abandonment, physical and emotional abuse, and disruption of family relationship. Pregnant women were least likely to disclose. After analyzing several studies on disclosure, the WHO deduced that voluntary disclosure only happens in relationships where support is likely to be provided. Consequently, involuntary disclosure as this Act requires, might be in relationships that cannot handle such a stressor. So long as HIV infection is stigmatized relationships are likely to be challenged by disclosure. Other programs such as the Voluntary Counseling and Testing (VCT) would provide the much needed extra support to partners after involuntary disclosure. Under such circumstance, The Act can be extended to meet the supportive qualities.

Before infection, The Act could be assumed to warn spouses on the consequences of risky sexual behavior such as unprotected extra-relationship sex. Spouses are held responsible by the law when they fail to act sexually responsible and get infected with HIV. The catch however, is when the proof of irresponsibility is the burden of the partner. Another drawback is the lack of awareness of the HIV status of oneself and one’s partners. This reduces the likelihood that the policy would be utilized since knowing one’s own and one’s partner’s HIV status are mandatory premise to begin gathering evidence for use when seeking justice. Additionally, The Act has the potential to lead to separation especially when a guilty partner is sentenced to serve jail time. The ultimate unintended consequence after serving jail time might be the absolute dissolution of the marriage. The complainant might have to learn to live with their HIV positive status as a chronic or terminal illness depending on whether s/he can afford treatment. If they have children, the consequences might be even more precarious as they face the possibility of becoming orphans.

Does it Strengthen Marital Commitment and Stability?

Ideally sexual fidelity could be assumed to be an indication of the appropriate commitment in marriage that is relevant to HIV prevention. Studies have established that the association between sexual fidelity and HIV prevention does not apply to many relationships. Research shows that women who delay marriage while engaging in unprotected premarital sex significantly increase their risk of HIV infection (Bongaarts 2006; Rombo 2009). This could explain why Freeman and Glynn (2004) found that among discordant couples in Kenya, women are more likely to be the infected partner.

The Kenyan culture implicitly condones sexual infidelity on the part of the men in that there is less censure for men than women. As such marriage is so fluid, even monogamous unions in the region could become and, therefore, remain potentially polygamous (Nii-Amoo Dodoo 1998, p. 234). Although the number of polygamous marriages has continued to decline over the years, the rate of infection among married individuals has continued to grow. Sexual fidelity in marriage therefore, cannot protect an individual from HIV infection if: (1) one or both were exposed to HIV prior to marriage, and (2) partner opts to remarry and/or acquire additional partners.

Stability in marriage is achieved when the partners provide both expressive and instrumental support to one another (Kayongo-Male and Onyango 1984). While the expressive entails emotional support, the latter includes child rearing, care giving, procreation and economic support. When these functions are fulfilled family members are likely to feel a sense of stability. All family members, especially children thrive in stable homes (Larson and Holman 1994; Wilson and Ngige 2005). The need for expressive and instrumental support increase when a partner has been diagnosed with HIV. This is because HIV manifests through ailments that require treatment and time off work whether within or outside the home. Care giving becomes a necessary support for the infected partner should the infection progress to AIDS. Yet, research shows gender differences in the provision of support. When a male is diagnosed with HIV, often the wives will be the primary caregiver, while should the female be the one infected, the male partner is not likely to be the primary care giver. The couple’s case cited earlier in the paper is an example of what is likely to happen to an infected woman whose husband is still HIV negative. Rarely do women resist the maltreatment after the diagnosis as the disparity in treatment between the genders transcends home to healthcare systems. For example, a study by Opiyo et al. (2008) found disparity in quality of care received by men and women who have AIDS. The study found that men often get better quality care from wives and from the healthcare providers than women. Even when they are not sick, men do not provide care to other family members, especially children, to allow the woman to seek healthcare service outside the home.

Although the burden of proof of risky sexual infidelity is very important for the execution of this Act especially for the complainant against the respondent, the culture condones polygyny. In support for the role of polygyny in meeting family goal, Nwoye (2007) differentiates affluent polygyny from interventive polygyny. The latter is a response to family stress such as childlessness resulting from infertility or children of only one gender while the former is due to high socio-economic status. It is ironic that multiple sex partners is an established risk to HIV infection which might lead to family instability due to inability to carry out functions, yet the same practice (polygyny) aims at providing the family a social status.

Although gathering evidence of increased risk by the plaintiff would be a difficult task, at the time of filing a case the relationship is likely to be strained. Like the plaintiff who files for divorce is often emotionally disengaged a priori, the plaintiff using this law is likely to be in a similar emotional state. Indeed, the law is harsher than divorce law that seeks to dissolve a marriage in a fair manner. It seeks to determine a crime has been committed and punishment meted in order to render justice for the plaintiff thereby not supporting the couple, but rather an individual.

Does it Recognize Interdependence?

Recognition of interdependence calls for considering implications of a policy on families over individuals. Interdependency is the stronghold of the extended African families. The impact of HIV illustrates the role of interdependency as losses through HIV and AIDS deny individuals benefits that were established prior to infection and possibly death. Criminalizing HIV infection puts the interest of the complainant over that of the partner and the rest of family members who might have been beneficiaries. The Act aims at serving justice or accord equitable treatment for a partner by limiting the freedom of the respondent if found guilty. However, disclosure of HIV infection honors interdependency. Mandatory disclosure of HIV infection of a spouse recognizes both direct and indirect interdependence. Disclosure promotes prevention and also allows the person living with HIV to receive support. By mandating medical practitioners or counselors working with the individuals infected with HIV to encourage disclosure or to disclose, The Act might yield some unintended positive impact. Disclosure is fundamental to prevention. De Cock et al. (2002) observed that the approach taken for HIV prevention in Africa is westernized and does not follow the traditional public health principles in preventing the spread of Sexually Transmitted Infections, (STI). Due to stigmatization and discrimination of people living with HIV, confidentiality has been mandated as a right. By emphasizing disclosure, The Act puts back part of the public health approach of preventing the spread of an STI especially HIV. The only drawback is that treatment was available for STI and the infections were not as highly stigmatized as HIV. With increased access to treatment, disclosure might be embraced more. Since only those who are likely to receive support voluntarily disclose their HIV status, individuals who are forced to disclose under The Act are likely to benefit from knowing, but might not get the support that they need.

Timing of diagnosis and disclosure is important for health reasons and the sooner the better. Yet, only when “reasonable” time has lapsed and voluntary disclosure has not occurred is the practitioners expected to disclose. The Act does not specify the duration of “reasonable” time, the discretion of when it is appropriate is made by the practitioner. Disclosure benefits the partner and other family members. Partners have failed to take the necessary precautions like accessing health care in good time because they did not learn about their partners HIV status. Other complications have been observed following deaths related to HIV.

The indirect interdependence is accounted for by the impact of HIV at the family level (Barnett and Whiteside 2003). For this reason The Act can be hailed for recognizing the interdependence of members. Preparing for property inheritance in the eventuality of death due to AIDS can be better handled if there is disclosure. Ideally families can be able to better plan for the future and provide support after disclosure. Even if disclosure leads to the dissolution of a marriage, it allows the person to react to the reality in the moment which is better than getting to know such information may be after the person is deceased. The policy is progressive by encouraging disclosure which might lead to positive unintended outcome such as reducing stigmatization of HIV as more people might get to know their HIV status.

Does it Promote Partnership, Empowerment and Autonomy?

It is important for individuals and families interacting with service providers not to experience any loss of dignity in the process. Therefore, as The Act gives legal power to individuals in marriage to act in their best interest and that of their partners, the processes should not diminish their self worth. Whether one is seeking justice through the legal system or facing mandatory disclosure in the health care, their vulnerability should not compromise the quality of service they deserve. This is against a back drop of research showing that AIDS patients do not get fair treatment especially in public health care system (Raviola et al. 2002). Likewise, women who seek justice for sexual assaults or related cases have been subjected to unfair scrutiny. For example, the court might enquire about how the woman was dressed at the time of the incident. As if to imply that she was responsible for the assault.

Disclosure reduces harm caused by non disclosure. Disclosing HIV status to a partner can be empowering to the individual, thus reducing negative feelings associated with breeching a patient’s right to confidentiality and autonomy. Partner disclosure by women with HIV has been associated with a fourfold increase in reported condom use to nearly 70% (Farquhar et al. 2004). A comprehensive review of studies on disclosure in sub Sahara Africa concluded that only the women whose relationships are strong were willing to risk disclosure (WHO 2004). The organization recommends further studies to establish barriers to disclosure and how to best support partners who are afraid to disclose.

Given the evidence that disclosure has the potential benefit to prevent the spread of HIV and allow individuals to get support from family members, it is imperative that health care providers support patients to be empowered. Health care providers need to be provided with the necessary skills and resources to deliver better service to HIV and AIDS patients (Raviola et al. 2002). The Act stands to benefit HIV patients more with a comprehensive guideline.

The existence of The Act in itself a source of empowerment that allows individuals who have been exposed to risks of infection with HIV to seek justice. Often when options are provided, individuals cease to feel trapped. In conjunction with The Sexual Offense Act, the two policies were supported for their potential in helping women and children who are more vulnerable to sex offenses whether violent or not.

Does it Take into Account Family Diversity?

Marriages take many forms. They include woman to woman, monogamy (one husband, one wife), and polygyny (one husband, more than one wife). Woman-to-woman marriages are unique traditional arrangements where the woman husband determines the man or men to father “her” children. Since assisted reproduction is almost non-existent in Kenya, sexual intercourse is the primary mode to conception and this increases risks of HIV infection when the woman husband prefers multiple fathers for her children (J. Onchoke, personal communication, July 1, 2008).

It is also known that multiple sex partners increase risks of HIV infection and that in polygynous marriages there are explicitly multiple partners. Remarriages have been found to have greater risks than polygyny (Rombo 2009). Other risky unions include traditional marriages and cohabitation. These practices challenge the applicability of The Act especially when customary cultures supersede the written law. How will the law handle a case where an individual in polygynous union is seeking justice? How will the law determine who might be held responsible? In a case of woman to woman marriage where the woman husband chose more than one man to father her children, the latter objected to having multiple sex partners and went to the court. There was no legal framework to guide the case (J. Onchoke, personal communication, July 1, 2008). The burden of proof would be arduous in such unions. The Act stays bifurcated from the traditional diversity leaving women and children vulnerable to the traditions as well as modernity. This shortfall was identified by Kamau (2009) after evaluating the impact of The Kenyan laws are likely to have on women. When women lose so does the family.

It is ironic that legally married women have reduced risks of infection compared to those in customary (common-law) marriages or cohabiting. According to Kamau, the women who most need the law are less likely to use it because their unions are not recognized by the law. Legally married women also tend to be of the highest SES. Not necessarily socially and economically dependent on their husbands, these women are empowered to question their husbands’ extramarital activity, negotiate for safe sex (Parikh 2007), and seek and access quality healthcare.

Does it Support Vulnerable Families?

The HIV epidemic is generalized across the population even among monogamous marriages and this makes every marriage vulnerable. However, it was hoped that the policy would seek to help women and children who are more vulnerable because of the power structures in the family and society. The ratio of men to women who are infected is 1: 2. This ratio shows that more women are infected than men. The policy therefore has the potential to hurt the vulnerable in the population, namely the women. Several authors have argued that married women find themselves in situations where they have little if any control (Esu-Williams 2000; Nyindo 2005; Patterson and London 2002). Whether they are the ones infected or it is their partner who is infected, women have little control on outcomes. A HIV free husband may choose to leave the marriage, while on the contrary economic dependency and cultural norms may oblige a HIV free wife to stay and take care of an ailing husband. Overall, sharing HIV status has negative repercussions for more woman than for men. Women experienced increased domestic violence after testing HIV positive (WHO 2004). The Sexual Offences Act 2006 protects women, children and anybody from sexual exploitation of any kind.

Unintended Consequences

Since HIV prevalence is higher among women than men, proponents of the transmission sections of The Act support the law for the protection it is likely to offer women and children. On the other hand, the opponents have criticized The Acts for several reasons. First, the laws place more burden on the infected individual to be cautious and allowing the uninfected to bear no responsibility in ensuring that they do not get infected. Second, individuals feel discouraged from testing for HIV if it can be used against the individual. Third, since the majorities who know their status are women (women undergo mandatory testing during pregnancy), the law might condemn more women to prison. With marital rape not included, sex within marriage is perceived to be consensual and unprotected—circumstances that would not amount to criminal action. Patient confidentiality is broken when medical practitioner is mandated to disclose HIV status to family members especially a spouse. In a bid to protect the uninfected The Acts might be counterproductive to strengthening families to fulfill their functions.

The Prevention Act places responsibility and institutes punishment on infected individuals who transmit HIV to their partners so long as the plaintiff can prove failure to take necessary preventive measures. They have also criticized the Preventive Act for its potential to be counterproductive to testing for HIV and increase mistrust in marriages. If test results and knowing one’s HIV positive status can lead people to prosecution by the justice system, few will be motivated to undertake this crucial step toward prevention. At the same time, proving HIV infection by a marriage partner would be burdensome.

Conclusion

Introducing criminal justice and mandatory disclosure to prevent the spread of HIV can be viewed to be family-friendly in certain circumstance. Criminalization might cost the family its stability. HIV is highly stigmatized and therefore the HIV free partner might not stay committed to the relationship. The Act would serve discordant couples where one is positive and the other is negative if it were not for stigmatization and cultural gender expectations including economic gender divide that lead to negative outcomes for women living with HIV. On the other hand disclosure of HIV status to a partner and subsequently to other family members helps the individual achieve better quality of life through support. When family members are supportive the individual living with HIV might take precautions to avoid infecting others especially their partners. The question of who can access justice under this law still remains to be determined. It is likely that individuals of higher socio-economic status might be able to use the law.

At times when justice is used it can be to the detriment of the family through failure to honor diversity, support cohesion as well as fail to capture the structural oppression that may lead to such outcomes. The Kenyan constitution recognizes customary, Islamic, Hindu and civil marriages. However, risks of HIV infection exist within these marriages as well as within remarriage and cohabitation. All these unions are sanctioned by the society and yet they are risky. When the norm is also the risk, the law has the challenge of isolating risky behavior from non risky behavior within such socio-cultural contexts. For example, currently the law offers protection to women who are being forced to marry their late husband’s kin (also referred to as wife inheritance). However, the women have to reach out to seek legal protection. Not all women who would desire this protection are able to do so. If this can be treated as precedence, then The Act has the potential to challenge practices that increase risks of infection despite social acceptance.

The effectiveness of Section 6 partly depends on HIV testing. The Kenya National HIV/AIDS Strategic Plan is to test 2 million people annually. Although the number of people testing for HIV have risen from 15% of the adult population in 2003 to 40.4% in 2008/09, among the infected many remain unaware. For example, in 2007 KAIS reported that 83% of HIV positive adults ages 15 through 64 was unaware because they never tested, tested and did not receive results or once tested negative and assumed to have remained negative (Kenya Government 2009). Women are least likely to share their HIV status. Regular testing and sharing of results with partner are fundamental for partners in order to have this policy be of use. Yet in cases where an individual chooses to put sexual partners at risk, they deserve to be punished. There have been stories of people living with HIV who act maliciously to intentionally spread the virus. Some have kept a secret list of their “victims” that they give instructions to be red at their funeral. Such individuals deserve to be punished by this law. The challenge is to be able to catch them on their tracks.

Copyright information

© Springer Science+Business Media, LLC 2011