Where Health Is Crime: HIV in Modern Kenya

Authored by: Sahaar Khoja

Art by: Melody Huang

What if a doctor’s visit ended up with you in jail? In Kenya, for members of the LGBTQ+ community, this is not a hypothetical scenario–it is a lived reality. When legal systems clash with health systems, the cost is measured not only in rights denied but in lives lost. Criminalization undermines public health goals, especially in the fight against HIV/AIDS.

The question of whether healthcare should be considered a human right remains one of the most controversial issues in global public policy. Critics argue that universal healthcare places a significant financial burden on governments, necessitating increased taxation or budget reallocations [1]. Making healthcare a universal right could also lead to longer wait times, resource shortages, and lower-quality care due to increased demand. Despite these concerns, recognizing healthcare as a human right is effective in tackling public health challenges such as the HIV and AIDS epidemic in Kenya, where legal barriers and social stigma prevent individuals from accessing life-saving services. In particular, the criminalization of homosexuality—punishable by up to 14 years in prison—poses insurmountable obstacles for men who have sex with men (MSM) in seeking HIV prevention, testing, and treatment services [2]. Fear of legal repercussions has discouraged engagement with healthcare providers, ultimately weakening public health outcomes and hindering national efforts to control the epidemic [3]. 

Adopting a human rights approach to HIV services can help break this cycle. Such a framework would ensure that all individuals–regardless of their sexual orientation or gender identity–can access healthcare services free from discrimination, stigma, or punitive legal consequences. By normalizing and protecting access to HIV care, this approach would not only improve health outcomes but also yield broader public health benefits through reduced transmission and increased treatment adherence. Ultimately, this approach would foster inclusivity and encourage marginalized populations to seek care, thereby strengthening the overall healthcare system [4]. 

To effectively combat the HIV epidemic and remove barriers to care, Kenya must align its legal framework with public health goals by decriminalizing same-sex behavior and eliminating HIV-specific criminal statutes. HIV criminalization laws are rooted in outdated understandings and fail to reflect contemporary scientific knowledge about HIV transmission and treatment. For instance, antiretroviral therapy (ART) allows individuals living with HIV to achieve undetectable viral loads, meaning they cannot transmit the virus sexually [5]. Despite this progress, criminalization of individuals living with HIV persists, even in countries like the United States. As of 2022, more than 30 U.S. states had laws criminalizing HIV exposure, many of which do not account for modern treatment protocols or transmission risks [6]. These legal relics reinforce stigma, discourage individuals from testing and contradict contemporary scientific evidence.

The CDC emphasizes the importance of using inclusive language and fostering open conversations about HIV to normalize the subject [7]. Public health strategies should adopt a culturally sensitive and community-focused approach. Engaging community leaders, especially religious figures or local influencers, should be involved in public awareness campaigns to challenge misinformation and stigma at the grassroots level. Such figures can serve as powerful advocates for acceptance, education, and health-seeking behavior. Equally important is the role of the healthcare system itself. Providers should be trained to deliver confidential, empathetic, and non-discriminatory care. This is especially critical for populations at higher risk of HIV, particularly LGBTQ+ individuals and sex workers. When individuals feel respected and safe within healthcare settings, they are significantly more likely to seek regular care, adhere to treatment, and share critical health information. 

Ultimately, recognizing healthcare as a human right is not only a moral argument but a practical necessity. Ensuring universal access to care–free from discrimination or fear–is not only ethically sound but scientifically proven as a more effective approach to disease prevention and management. As the global fight against HIV/AIDS continues, Kenya must take the leap of faith to dismantle legal and social barriers that hinder access to life-saving care.

References:

1. O'Hara, L. M., & Lien, L. A. (2020). Universal health coverage and the right to health: Historical development, health disparities, and COVID-19. The Yale Journal of Biology and Medicine, 93(4), 681–688. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7692272/

2. Advocates for Human Rights. (n.d.). Kenya: UPR stakeholder submission on LGBTIQ rights. https://www.theadvocatesforhumanrights.org/Res/TAHR%20TEFLK%20Kenya%20UPR%20LGBTIQ%20final%20%281%29.pdf

3. Baral, S. D., Logie, C. H., Grosso, A., Wirtz, A. L., & Beyrer, C. (2013). Modified social ecological model: A tool to guide the assessment of the risks and risk contexts of HIV epidemics. Sexually Transmitted Infections, 89(Suppl 1), i3–i9. https://doi.org/10.1136/sextrans-2012-050753

4. Fleming, P. J., Colvin, C. J., Peacock, D., & Dworkin, S. L. (2016). What role can gender-transformative programming for men play in increasing men’s HIV testing and engagement in HIV care and treatment in South Africa? Culture, Health & Sexuality, 18(11), 1251–1264. https://doi.org/10.1080/13691058.2016.1183045

5. Rodriguez, M. I., Batur, P., & Tschann, M. (2019). Association of criminalization of HIV exposure with HIV testing rates. JAMA Network Open, 2(5), e193175. https://pubmed.ncbi.nlm.nih.gov/31056293/

6. The Williams Institute. (2022). HIV criminalization in the United States: A sourcebook on state and federal HIV criminal law and practice. UCLA School of Law. https://williamsinstitute.law.ucla.edu/issues/hiv-criminalization/

7. Centers for Disease Control and Prevention. (n.d.). Let’s stop HIV together: HIV stigma and discrimination. https://www.cdc.gov/stophivtogether/hiv-stigma/index.html