Ireland: Following first HIV-related conviction for "intentionally or recklessly causing serious harm" in Ireland, Dr Juliana Adelman reflects on the fear of contagion

 Fear of contagion clouds our thinking about the transmission of HIV

How can we treat people fairly while reducing risk to others of contracting the disease?

There is no legal obligation on a person with HIV to disclose their status, nor is there a law that provides a specific penalty for knowingly transmitting the disease. For the second time this year, this legal situation is being tested in the courts. The defendant is accused of “recklessly or intentionally causing serious harm” by transmitting HIV to two separate sexual partners.

This raises serious questions about our understanding both of HIV the disease and of personal responsibility with regard to health. Is the contraction of HIV, now a treatable long-term condition, “serious harm”? Who is at fault for contracting a disease? What does fault mean? These are very difficult questions and have vexed societies for as long as contagious diseases have circulated them. Sexually transmitted diseases bring another layer of complexity as they also involve attitudes towards sexual activity.

An interesting thing happens in my history of medicine class when we talk about sexually transmitted diseases. The students veer between contradictory positions. On the one hand, they have no sympathy for the system of Magdalene laundries and lock hospitals that incarcerated women with suspected syphilis, often against their will.

Contrasting sympathies

The students say such a system was sexist and motivated by a tendency to blame victims of disease. When we talk about HIV, however, they advocate a different position. This year, one student suggested to the class that people who are HIV-positive should be placed on something akin to a sex offender register. Everyone should know about their status and have the opportunity to avoid them. A kind of walking, permanent, lock hospital.

When I try to point out that their sympathy with syphilitic women in the past seems in stark contrast to their fear of people with HIV in the present, they are confused. How did the person get HIV they ask? Because, they say, there are ways to get the disease that are your fault and ways that are not.

In the 17th century, when syphilis was still a new and poorly understood disease, some doctors blamed women for creating the disease in their own wombs. Kevin Sienna has unearthed a wide range of sources pointing the finger of blame at women, especially women who were too overtly sexual. The “pocky steams” of the prostitute or the unfaithful wife passed the disease to unsuspecting men; no one asked how the women got it in the first place.

Patients isolated

In the 19th century, the Contagious Diseases Acts (1864 to 1869) attempted to stamp out syphilis by arresting and inspecting women suspected of prostitution. Women need not be caught in the act of soliciting sex, but only rumoured or accused. If the medical examination found symptoms of disease, the woman was confined to a lock hospital for treatment. Protests against the Act for how it treated women were immediate and loud and eventually it was repealed.

Yet societies continued to treat sexually transmitted diseases differently than other contagious diseases. Robert Koch identified the bacteria that causes tuberculosis in 1882. Transmission of the disease could be prevented by specific behaviours, including the isolation of contagious patients. Yet some public health advocates resisted efforts to make the disease “notifiable” to authorities for fear that social stigma would prevent victims from seeking treatment. While TB did carry a stigma and patients often spent months and years isolated in sanitoria, its victims elicited more sympathy than fear.

A fear of moral contagion clouds our thinking about the transmission of HIV today. Because the disease is most commonly passed through intravenous drug use and sexual intercourse, we consider it shameful and its victims at least partly responsible for their plight. But we do not distribute that blame equally: heroin addicts, African immigrants, the sexually promiscuous, prostitutes, and gay men have often carried a disproportionate amount of blame. No wonder that most people with HIV would rather keep their diagnosis a secret.

Someone diagnosed with HIV at age 20 is, with treatment, expected to live to 73. That means that there are many people living in our communities, partaking of all aspects of human life, who are HIV positive. How can we treat them fairly while also reducing the risk that others will contract the disease?

Dr Juliana Adelman lectures in history at Dublin City University

 

 

US: North Carolina's HIV criminalisation reform protects people who are undetectable but leaves others vulnerable

In North Carolina, an HIV Criminalization Reform Bill Passed, but People Who Aren’t ‘Undetectable’ Remain at Risk

Until recently, North Carolina was one of two-dozen states that directly criminalize HIV exposure, but in a historic move this year, the state updated its HIV control measures to conform with the modern understanding of transmission risk.

North Carolina’s unique journey to HIV criminalization reform might serve as a roadmap for other advocates hoping to modernize their own state’s laws. But it hasn’t been without controversy, with some advocates taking issue with North Carolina’s new carve-out for HIV-positive people who have achieved viral suppression.

Thanks to antiretroviral treatment, people who take a pill every day are no longer capable of transmitting the virus to others, a scientific framework called “undetectable equals untransmittable” or “U=U.” North Carolina’s new rule protects that population completely, but it leaves others vulnerable to legal ramifications.

That’s a problem, some argue, because it might deepen racial disparities that already exist in prison sentences and in viral suppression. According to the Prison Policy Initiative, black North Carolinians make up only 22% of the state’s population yet account for 55% of all people in state prisons and local jails; whites comprise 65% of the state’s population but only 36% of those in state prisons or jails. When it comes to viral suppression, in North Carolina, 62% of all people with HIV are virally suppressed. But 66% of whites living with HIV in the state are undetectable, compared with 61% of blacks and 51% of Latinx people.

“These concerns are valid and need to be addressed,” says Christina Adeleke, communications and development coordinator with North Carolina AIDS Action Network (NCAAN). But addressing these “bigger system issues … is a conversation that’s way bigger than HIV criminalization.”

Adeleke and her colleagues at NCAAN were instrumental in bringing about North Carolina’s reform and presented their process for advocating for reform at the 2018 HIV Is Not a Crime Training Academy in Indianapolis. If it were up to NCAAN’s executive director Lee Storrow, he would repeal HIV criminalization laws outright. But Storrow and Adeleke both emphasize that they are working in a Southern state, where it’s tough to move the needle on HIV criminalization reform.

“We wanted to advance it as far forward as we had the capacity to, without going so far that we wouldn’t achieve anything,” explains Storrow.

“We had to be very mindful to be in lockstep with the state,” Adeleke adds. “Where we landed was as far as we could go at this point.”

According to Storrow, North Carolina now has the most progressive HIV criminal law in the South. He argues that decriminalizing behaviors for people who have achieved viral suppression is an important first step. Additionally, North Carolina’s reform contained other important changes, eliminating stigmatizing words, such as “infected” and “retarded,” and conforming with new federal rules around HIV-positive organ donation.

Now, NCAAN is hoping that North Carolina’s modernized rules will encourage people who are living in the shadows to seek treatment, knowing that they’ll be protected from prosecution if they’re able to take their medications every day.

NCAAN’S Journey

Dozens of HIV criminalization laws were passed in the 1990s and 2000s when fear of the epidemic was at an all-time high. But, today, some lawmakers are rethinking these decades-old rules in the wake of mounting evidence that they’re based on outdated science. California recently modernized its law to reduce HIV transmission from a felony to a misdemeanor — a reform advocates consider a best-case scenario. Meanwhile, other states have moved in a different direction, broadening their HIV criminalization laws to include hepatitis C and other sexually transmitted infections.

But, unlike other states, North Carolina’s HIV criminalization rules are not baked into the legal code. Instead, the rules exist as part of the state’s public health control measures, under the purview of the Commission for Public Health.

In 2017, those control measures were up for review, and NCAAN saw an opportunity to finally modernize the state’s criminalization rules. Initially, state officials only wanted to reform the control measures to include the federal HIV Organ Policy Equity Act (HOPE Act), which legalizes organ donation between HIV-positive people, said Storrow.

However, NCAAN advocated for broader reforms, arguing that the state should decriminalize condomless sex between HIV-positive couples and mixed-status couples who use pre-exposure prophylaxis (PrEP).

Moreover, NCAAN fought to eliminate non-disclosure prosecutions for HIV-positive people who are virally suppressed, based on the contemporary understanding that effective treatment prevents people with HIV from passing the virus to others.

It took months of meetings and many strained conversations to convince some state officials that HIV criminalization rules should be modernized. In part, that’s because many people still believe that HIV is a highly contagious death sentence.

People assume that if you are living with HIV, you are in a constant state of being able to transmit HIV to other people,” says Adeleke. “In reality, if you are on medication and in treatment and virally suppressed, it is physically not possible to do that. You can live a normal life.”

Eventually, a compromise took shape, and the new, modernized rule took effect in January 2018. Storrow says the changes made are meaningful to many North Carolinians, especially couples who are on treatment and no longer need to fear prosecution. But he also called the changes “incomplete,” asserting that there’s a long way to go in the effort to completely decriminalize HIV in his state.

Adeleke hopes North Carolina’s journey can be a model for other Southern states that must balance the desire for radical reform against the backdrop of conservative-leaning leadership.

Adeleke recommends that other advocates working in the South familiarize themselves with specific legislation and public health laws in their own states.

“See who specifically is in charge of making certain decisions; you may find you have allies waiting in certain parts of government who can help you move this along,” she adds.

In North Carolina, the majority of people on the HIV reform task force were people living with HIV, Adeleke says.

“The process was inspiring because it showed how a community can take ownership of a particular topic that’s really affected them,” she says. “To be able to achieve the result we did was exciting.

Sony Salzman is a freelance journalist reporting on health care and medicine, who has won awards in both narrative writing and radio journalism. Follow Salzman on Twitter: @sonysalz.

Published in the Body on June 25, 2018

 

Canada: The treatment of people living with HIV at the hands of Canada Supreme Court perpetuates stigma and fear

Our Highest Court’s Position On HIV Disclosure Is Steeped In Stigma

It perpetuates fear through a set of decisions that force those living with HIV to disclose their status, even if the risk of transmission is non-existent.

Canada’s reputation as a caring and progressive society has been tarnished by how the nation’s highest court has stigmatized people living with HIV. And, as recent court battles show, the supreme court rulings aren’t just charged and stigmatizing, they are also on shaky legal ground.

During an impassioned lecture at the University of Calgary recently, celebrated human rights advocate and HIV activist Justice Edwin Cameron, of South Africa’s highest court, described the treatment of those living with HIV at the hands of the Supreme Court of Canada (SCC) as a “uniquely Canadian monstrosity.

“Worldwide, despite antiretroviral treatment, about one million people die of AIDS annually. Many of them, roughly but accurately expressed, are dying of stigma,” said Cameron, who was diagnosed with HIV in 1986. His struggle with the virus, and his advocacy work, formed part of his best-selling memoir, Witness To AIDS.

Stigma, he argued, is “a social brand of judgment, an imprint of contempt and ostracism” that perpetuates silence and shame, and even fear of diagnosis, meaning too many people are not accessing the treatment that can restore their health.

The Supreme Court of Canada, charged Cameron, has served to perpetuate that fear with a set of decisions that imposed a legal duty on those living with HIV to disclose their status to partners even if they are receiving antiretroviral treatment, which reduces the virus to virtually undetectable levels.

“Canada has a dubious distinction. After the United States and Russia and eastern European countries,” said Cameron. “It has prosecuted more cases, it has put more people in prison for simple non-disclosure of HIV infection, than any other country. It lags behind only a handful of jurisdictions in absolute numbers of convictions.”

And all the prosecution, which results from non-disclosure being treated in Canada as a criminal offence, is doing more harm than good, according to the Community, AIDS, Treatment, Information Exchange (CATIE), a Canadian group that promotes good practices for treatment and prevention programs for those living with HIV and hepatitis C.

CATIE points out there is zero evidence to show criminal penalties deter participation in behaviours that present risk of transmission. But prosecution is effective in deterring people from getting tested, while giving the public a false sense of security that criminal prosecutions will somehow protect them, Cameron pointed out. CATIE has recorded at least 184 instances of criminal charges in Canadian cases of non-disclosure.

“How can it be that Canada places so injurious a brand mark of stigma on people living with HIV, more so than many other western countries,” stated Cameron.

At the heart of it lie two supreme court decisions — (R v.) Currier and (R v.) Mabior.

‘Rape with no rapist’

Henry Currier of B.C. was charged with aggravated assault for not disclosing his HIV to two women with whom he had consensual, unprotected sex. Neither of his partners contracted the virus but the Supreme Court ruled his failure to disclose his condition constituted fraud, thus negating consent.

“The result was rape with no rapist, but instead only a sexual partner with a medical condition that was neither communicated, nor transmitted to the other partner,” said Cameron. The decision, “punished those with HIV solely for having HIV and for not disclosing it.”

“In doing so (R. v.) Currier created a new monster legal category of aggravated assault with no assault, except emotional exposure to an infectious disease, and no aggravation, except judicial enforcement of societal condemnation of the accused person’s conduct… in not disclosing his infection.”

“This criminal category, the most expansive, judicially created doctrine targeting HIV on the planet, is a uniquely Canadian monstrosity.

The issue of HIV non-disclosure returned to the Supreme Court in 2012 with R. v. Mabior.

Clato Mabior stood trial on 10 counts of aggravated assault involving nine women and was sentenced in 2008 to 14 years for not disclosing his status. Mabior was receiving antiretroviral treatment at the time and none of his partners contracted HIV.

Cameron said the court failed to take into account established medical evidence of the efficacy of antiretroviral treatment and HIV transmission. Furthermore, other people living with more communicable and deadly diseases are not bound to disclose.

“From a moral point of view, Mr. Mabior, like Mr. Currier, are unappealing. But it is not the court’s task to yield to moralism or to invent overbroad criminal doctrines to enforce it.”

Published in the HuffPost on June 14, 2018

 

US: The criminal law is falling behind, ignoring advances in HIV science

Fighting for HIV justice

Writer and advocate Olivia Ford argues that the modern realities of living with HIV are being overlooked by the criminal justice system.

Advances in global HIV prevention, care, science, and treatment in recent years — and the potential benefits to the lives of people living with, at risk of acquiring and affected by HIV— are astounding. Effective HIV treatment has made healthy and normal lifespans a reality for millions of people living with HIV across the globe, and treatment and human rights advocates continue to work to secure access to these lifesaving treatments for everyone living with HIV.

The science is clear: When taking effective anti-HIV medication, a person living with HIV cannot transmit the virus to a sexual partner. If they are pregnant, the chance that their baby will acquire HIV during birth can drop to less than one percent.

Even without being on treatment or using a condom or other barrier, HIV is difficult to transmit. And if HIV transmission occurs, the person acquiring HIV has a serious but manageable disease and can expect to live a normal lifespan with adequate treatment. Yet these soaring advances — which have saved and extended countless lives — have all-too-often been misunderstood, misrepresented, or ignored within criminal justice systems the world over.

So what is HIV criminalisation?

HIV criminalisation is a term that describes the unjust use of the criminal law (or similar laws, such as public health, civil and/or administrative law) to punish and control the behaviour of people living with HIV based on their HIV status. Behaviour in these cases is most often consensual in nature.

This can happen through HIV-specific criminal statutes, or by applying general criminal laws governing offences such as assault (including sexual assault), reckless endangerment, or even attempted murder, to instances of potential or perceived exposure to HIV. Use of the law in this way ignores robust and widely available scientific and medical evidence related to HIV and its transmission, and to the realities of living with HIV in the modern era of the epidemic.

HIV criminalisation is a growing, global phenomenon. However, it seldom receives the attention it ought to, considering not only that it undermines the HIV response by compromising public health and the human rights of people living with and affected by HIV, but also that there is no evidence of any benefit from these laws.

In many instances, laws that criminalise HIV are exceedingly vague or broad — either in their wording, or in the way they have been interpreted and applied. This opens the door to a host of potential human rights violations against people living with HIV.

Usually these laws are used to prosecute individuals who are aware they are living with HIV and allegedly did not disclose their HIV status prior to sexual relations (HIV non-disclosure); are perceived to have potentially exposed others to HIV (HIV exposure); or are thought to have transmitted HIV (HIV transmission). The laws are often enacted, and applied, based on myths and misconceptions about HIV transmission — as well as stigma against communities living with or affected by HIV.

Some of these laws allow prosecution for acts that constitute no, or a vanishingly low, risk of HIV transmission: spitting, biting, scratching, oral sex, sex with condoms or a low viral load. In many countries a person living with HIV who is found guilty of other “crimes” — notably, but not exclusively, sex work, or someone who spits at or bites law enforcement personnel during their arrest or incarceration — often faces enhanced sentencing even when HIV exposure or transmission was impossible, or virtually impossible.

Two significant problems with most HIV criminal laws and prosecutions are that they typically focus on proof of HIV disclosure, rather than on whether a person had any intent to do harm or whether a perceived harm (i.e., transmission) actually occurred; and felony punishments and severe sentences sometimes treat any level of HIV exposure risk as the equivalent of murder, manslaughter, or rape with a weapon — a patently false and dangerous equivalency. One key aim in reforming HIV criminal laws can be to challenge these two problems by advocating for the corresponding core legal principles that convictions must require proof that the person intended to do harm; and the degree of punishment must be closely related to the level of harm.

As of February 2018, HIV Justice Worldwide estimates that 68 countries currently have laws that specifically allow for HIV criminalisation; including the 29 individual states in the United States with such laws raises the total to 97 jurisdictions. Other jurisdictions have non-specific laws that are still used to criminalise people living with HIV. Prosecutions for HIV non-disclosure, exposure, and transmission have been reported in 69 countries — 116 jurisdictions, including 38 US states and the US military. HIV-related cases can be challenging to track — even more so in countries where such information is not freely available. Therefore, it is impossible to determine an exact number of HIV-related criminal cases for every country in the world.

Much of what is known about individual cases comes from media reports. Mainstream media plays a significant role in reinforcing a society’s prejudices, and HIV criminalisation is just one lens for witnessing that insidious process. Because HIV criminalisation stories may involve salacious details of “sex, drugs, and crime,” media outlets may use dramatic headlines highlighting those details to grab attention in busy media markets. The images and language used in these stories increase the notoriety of specific defendants, and can serve to further marginalise and target individuals who are already members of vulnerable groups.

Where do the criminalisation laws come from?

The world’s first HIV-related prosecutions, and eventually HIV-specific laws, occurred in the mid-late 1980s, when HIV was truly a death sentence for millions of people who acquired the virus. These legal actions grew out of lack of control of the epidemic and widespread ignorance about the nature of HIV transmission. Their enactment was also driven by stigmatising myths of “intentional HIV transmitters” fed by mainstream media reports that often exploited other forms of bias, such as anti-black racism and homophobia.

The number of countries enacting such laws has increased in the decades since, even as powerful HIV drugs became available which dramatically lengthened lifespans for those with access to them, and reduced to zero the risk of HIV transmission from those taking them. Sub-Saharan Africa had no HIV-specific laws when the 21st century began; now nearly half the countries on the continent have a mechanism for prosecuting people living with HIV. This trend has also been presenting in high-income countries in recent years.

Who do these laws target?

Under these overly broad statutes, virtually anyone who is living with HIV could be prosecuted. Laws that criminalise people living with HIV disproportionately affect communities that already face undue levels of policing, incarceration, and human rights abuses — including people of colour; sex workers; women, inclusive of transgender women; and people living at the intersections of these identities.

These laws are often framed as protecting women “victims” from dishonest partners. But laws that criminalise HIV exposure do not protect women. Women living with HIV may face violence if they disclose their HIV status, but risk arrest and prosecution if they do not disclose — or they do disclose, but their partner claims they did not. Many women have been arrested or sent to prison based on accusations by former partners who used HIV criminal laws as a tool of harassment or control, often after the woman attempted to end the relationship.

Because women may be more likely than men to engage with sexual and reproductive healthcare due to pregnancy, women are often the first person in a relationship to be tested for HIV and to know their HIV-positive status. Even just an allegation of being the one to “[bring] HIV into the home” or simply an accusation of non-disclosure that leads to an encounter with the criminal system, can result in a woman losing her housing, property, child custody, and more, creating negative repercussions for her entire family.

Most laws require only that a person knew their HIV status for a successful prosecution. This effectively punishes a person living with HIV for the health-seeking action of knowing their HIV status, and can result in a “he said/she said/they said” battle in court, in which the person who knows their HIV-positive status usually loses.

HIV criminalisation is at odds with public health objectives, such as UNAIDS’ 90-90-90 goals for ending epidemic HIV. Anecdotal evidence as well as several analyses have suggested that fear of prosecution may deter people — especially those from communities highly vulnerable to acquiring HIV — from getting tested and knowing their status, because laws apply mainly to those who are aware they are living with HIV. HIV criminalisation can also block access to HIV care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals, because medical records can be made publicly available and used as evidence in court.

There is no evidence that HIV criminalisation laws deter behaviour that can transmit HIV, or reduce the number of new HIV cases. Further, by making it illegal for a person with HIV to have sex without disclosing their status, HIV criminalisation delivers the inaccurate message that all people with HIV are inherently dangerous, and that an adequate prevention strategy is to rely on partners to disclose and avoid those who share the information that they are living with HIV.

In reality, a large proportion of new HIV cases result from unprotected sex with a person who is living with HIV, but has not become aware of their HIV status through testing — or has had barriers to staying connected to HIV care. In a true public health approach, all consenting partners must take responsibility to engage in safer sex.

The above is an extract from Making Media Work for HIV Justice. Read in full here

Published in NAPWHA on June 13, 2018

Canada: Advocates frustrated by lack of clarity of British Columbia's new prosecutorial guidelines on HIV non-disclosure

BC’s HIV non-disclosure rules are falling behind

Advocates for people living with HIV say they are disappointed and frustrated by new guidelines from the BC Prosecution Service on how to handle HIV non-disclosure cases.

Medical and legal experts on HIV issues agree nearly unanimously that criminal law should not be used in HIV non-disclosure cases except in the most extreme circumstances. The BC Prosecution Service — government lawyers responsible for deciding whether to lay criminal charges — say it isn’t their job to update the law.

The new guidelines give little detail about when people with HIV have a legal duty to disclose to sexual partners, or in what situations transmission should be considered an insignificant risk.

The ambiguity over laws on HIV non-disclosure recently raised its head in the case of Brian Carlisle, a BC marijuana activist who was charged last summer with 12 counts of aggravated sexual assault. The charges were later dropped when prosecutors concluded Carlisle could not have transmitted the virus because his viral load was too low.

As Ontario and the federal government move to update their stances to reflect modern medical science and understandings of the disease, BC is stalled at an impasse. The lack of clarity on who might be charged and for what, HIV advocates say, casts a shadow over people living with HIV in the province.

Here’s a quick primer on HIV and the law in Canada:

In the defining case R v Mabior in 2012 the Supreme Court of Canada decided that people should only be charged for non-disclosure if there is a “realistic possibility of transmission.” This could be avoided, the court decided, if an HIV-positive person has a low viral load and also uses a condom. Otherwise, the accused could be found guilty of aggravated sexual assault, a crime punishable by up to 10 years in prison and a lifetime on a sexual offender registry.

HIV advocates have long argued that applying criminal law to HIV non-disclosure is almost always a mistake. Criminalization leads to fear and stigma, they say, and disincentivizes people from getting tested or informing past sexual partners that they might have been exposed to the virus.

Studies have shown that prosecutions disproportionately target gay, Black and Indigenous men, and police sometimes publish online the names, faces and HIV status of people charged with not disclosing they have HIV before they have even seen a day in court.

Advocates say that public health interventions, such as getting offenders access to HIV medication and mental health services, are more effective than the brute force of criminal prosecution.

The medical understanding of HIV has also progressed since Mabior. In 2016, hundreds of scientists around the world issued a consensus statement concluding that people with HIV who take antiretroviral drugs (medications used to manage HIV infection) and thereby achieve an undetectable viral load have effectively no risk of transmitting the virus sexually, even through condomless sex. More than half of people with HIV in Canada are estimated to have an undetectable viral load.

On Dec 1, 2017, World AIDS Day, both the Ontario and federal governments took serious steps to catch up to the science on HIV. Ontario’s attorney general announced that the province would no longer prosecute non-disclosure cases if the suspect has a suppressed viral load. At the same time, a federal Department of Justice report argued that Canada should move away from the “blunt instrument” of the law to managing HIV.

On the same day, newly-appointed BC Attorney General David Eby floated his own trial balloon, telling CBC that the province was ready to rethink the issue. Decriminalization advocates were hopeful. After all, Eby was a past president of the Canadian HIV/AIDS Legal Network, the same organization that had fought against criminalization in the Mabior courtroom.

When BC published new prosecutorial guidelines in March, their hopes were deflated. The policy largely summarizes the conclusions of Mabior, adding that prosecutors should “consider the available medical information specific to the accused.” It isn’t clear what medical conditions would need to be the case for a prosecution to go ahead.

That’s not enough, says Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network.

“They’re really abdicating responsibility, and hiding falsely behind the Supreme Court ruling,” Elliott says. “It’s a kind of intellectual dishonesty.”

Elliott says at the very least the policy should make it clear what counts as a realistic possibility of transmission, ruling out people who wear condoms, have an undetectable viral load, or only have oral sex.

In an email to Xtra, BC Prosecution Service lawyer Daniel McLaughlin says it isn’t the prosecution service’s job to explain how the law will be applied. The service’s policies are simply meant to give prosecutors a guide for how to evaluate cases on an individual basis, and reflect what the criminal law says.

“Policy provides guidance, but it cannot and should not dictate the result in every case,” McLaughlin writes. “Crown counsel need to make decisions that fit the unique circumstances of each case. For this reason, very few policies contain mandatory directives.” Prosecutorial guidelines, McLaughlin says, can’t override the law, and are meant to reflect what judges have decided on the issue.

Elliott disagrees. “There is this line being repeated that ‘We’re just doing what we’re required to do by the Supreme Court in Mabior,’” he says. “And it doesn’t really hold any water. It doesn’t make sense.”

“The ruling in Mabior doesn’t mean that you must prosecute people in all of these circumstances,” Elliott adds. “Just because you can pursue one doesn’t mean you ought to.”

BC has prosecuted far fewer HIV non-disclosure cases than Ontario, but Elliott says even if the Crown chooses not to lay charges, the threat still hangs over the heads of HIV-positive people.

“If you’re not going to prosecute these cases, why not just say it?” he says.

Xtra also reached out to BC Attorney General David Eby’s office. Eby replied in a written statement that he was not involved in the development of the prosecutorial policies. He also said he supports federal reform of the criminal laws, which could “provide clarity and consistency across the country and provide much-needed guidance to police, prosecutors and the judiciary.”

In addition to federal law reform or new guidance from prosecutors, it’s also possible change in HIV law will arrive through the courts. In a recent high-profile case, the Nova Scotia Court of Appeal threw out an aggravated sexual assault conviction against a man after hearing expert testimony that his low viral load meant he effectively could not have transmitted the virus to his sexual partners.

Published in Xtra on June 11, 2018

Chile: While Chilean parliament considers HIV criminalisation bill, newspaper takes a closer look at the arguments

Penalisation of HIV / AIDS transmission: The countries that condemn and the consequences using the law to criminalise HIV (Google translate, for original article in Spanish, scroll down)

The explosive increase of cases of HIV AIDS in Chile between 2007 and 2017 led the Ministry of Health to activate alarms, implementing a multiministerial action plan that seeks to curb the situation.

According to the figures, in a decade 5,816 people would have been infected in Chile.

The situation has also led to the presentation of a series of proposals in Parliament such as the PPD-PRO bench that seeks to establish compulsory sex education in secondary education.

However, one of the most controversial has to do with penalizing transmission, as stated out by the bill introduced by UDI deputies Juan Antonio Coloma and Sergio Gahona.

The measure seeks to apply a minimum to medium prison sentence to those who “knowingly carry the HIV virus and who is in the period can effectively transmit, transmit or endanger life or health through sexual relations to another person without their knowledge or consent. “

IS IT PENALISED IN THE REST OF THE WORLD? 

Onusida figures state that by 2016, a total of 36.7 million people were living with HIV, while 20.9 million were receiving antiretroviral treatment. Meanwhile, in that same year, 1.8 million people were infected worldwide.

Intentional transmission is the only case in which the Joint United Nations Program on HIV / AIDS (UNAIDS) considers it pertinent to apply criminal legislation to people who transmit HIV infection or expose others to the virus.

The agency’s report, which dates from 2007, states that “in other cases, legislators, prosecutors and judges should reject the application of criminal law.”

In addition, it urges States to avoid legislation specifically on HIV, but to apply general criminal law in cases of intentional transmission. In addition, it calls for a clear definition of “intentional transmission,” and to ensure that “the application of general legislation to the transmission of HIV is consistent with its international obligations in the area of Human Rights.

AND IN CASE OF VIOLATION? 

In the case of rape resulting in HIV infection, UNAIDS argues that the sentence could take into account “the aggressor’s serostatus as a legitimate aggravating circumstance only if the person knew that she was HIV-positive at the time of committing the crime”.

WHAT MEASURES ARE PROPOSED INSTEAD OF PENALIZING TRANSMISSION? 

UNAIDS argues that there are more effective measures that penalize contagion, such as strengthening and enforcing laws against rape – inside and outside of marriage – and other forms of violence against women and children; improve the effectiveness of the criminal justice system to investigate and prosecute crimes against women and children; support the equality and economic independence of women.

INTENTIONALITY OF TRANSMISSION? 

The report argues that there are few cases of intentional transmission of HIV, contrary to what the UDI parliamentarians propose, where they state in the bill that “there are many cases in which a person, out of simple amusement or revenge, decides to infect the virus. AIDS to other people and thereby generate immeasurable harm to people and their families, beyond their personal responsibilities. “

From the perspective of the international organisation, “this type of malicious acts are rare in the context of HIV and the available data show that most people living with HIV and knowing their HIV status take the necessary measures to prevent transmission of the virus to the others “.

They also argue that people who do not have access to voluntary counselling and testing, or because they fear to be tested because of the negative consequences that may result from a positive diagnosis, such as discrimination or violence, in such cases, people can transmit HIV without knowing their HIV status and should not face criminal proceedings. “

DIFFICULTY IN FINDING WHO TRANSMITTED TO WHO 

“It is often difficult to establish who transmitted HIV to whom (especially when both parties have had more than one sexual partner) and may depend on only one testimony, so people accused of HIV transmission may be found guilty of error, “says Onusida.

COUNTRIES WHERE THERE IS PENALISATION 

There is a large number of countries where the transmission of HIV is criminalized, including the United States, Uganda, Spain, Mexico, except San Luis Potosi and Aguascalientes, in all the penal codes of the states is stipulated the crime of danger of contagion.

A ranking of countries where there is criminaliSation of the disease dating from 2008, puts first Malta, then Bermuda and New Zealand.

In dozens of countries, various organizations have tried to stop the criminalization of HIV / AIDS, especially considering that this goes against the fight for the disease, because people fear to make their contagion visible or examined. (http://www.24horas.cl)

Published in Por El Ojo De La Cerradura on May 26, 2018

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¿Penalizar el contagio del VIH/SIDA?: Los países que condenan y las consecuencias de poner la enfermedad bajo la ley

El aumento explosivo de casos de VIH sida en Chile entre 2007 y 2017 llevó al Ministerio de Salud a activar las alarmas, implementando un plan de acción multiministerial que busca poner freno a la situación.

Según las cifras, en una década 5.816 personas se habrían contagiado en Chile.

La situación también ha derivado en la presentación de una serie de propuestas en el Parlamento como la de la bancada PPD-PRO que busca que establezca la educación sexual obligatoria en la enseñanza media.

Sin embargo, uno de los que más ha causado controversia dice relación con penalizar el contagio, tal como señala el proyecto de ley ingresado por los diputados UDI Juan Antonio Coloma y Sergio Gahona.

La medida busca que se aplique una condena de presidio menor en grado mínimo a medio a quienes “a sabiendas de ser portador del virus del VIH y que se encuentra en el período que puede efectivamente transmitirlo, contagiare o pusiere en peligro la vida o salud mediante relaciones sexuales a otra persona sin contar con su conocimiento o anuencia”.

¿ES PENALIZADO EN EL RESTO DEL MUNDO?

Las cifras de Onusida sostienen que al 2016, un total de 36,7 millones de personas viven con VIH, mientras que 20,9 millones se encuentran con tratamiento antirretrovírico. En tanto, en ese mismo año, 1,8 millones de personas se contagiaron a nivel mundial.

La transmisión intencionada es el único caso en que el Programa Conjunto de las Naciones Unidas sobre el VIH Sida (Onusida) considera pertinente aplicar la legislación penal a personas que transmiten la infección por VIH o exponen a otros al virus.

El informe del organismo, que data de 2007, sostiene que “en otros casos, legisladores, fiscales y jueces deberían rechazar la aplicación de derecho penal”.

Además, insta a los Estados a evitar legislar específicamente sobre el VIH, sino que aplicar el derecho penal general en casos de transmisión intencionada. Además, llama a definir claramente la “transmisión intencionada”, y asegurar que “la aplicación de la legislación general a la transmisión del VIH sea coherente con sus obligaciones internacionales en materia de Derechos Humanos.

¿Y EN CASO DE VIOLACIÓN?

En caso de violación con resultado de contagio de VIH, Onusida sostiene que la sentencia pueda tener en cuenta “el estado serológico del agresor como legítimo agravante sólo si la persona sabía que era VIH-Positiva al momento de cometer el delito”.

¿QUÉ MEDIDAS SE PROPONEN EN LUGAR DE PENALIZAR EL CONTAGIO?

Onusida sostiene que existen medidas más efectivas que penalizar el contagio, como fortalecer y hacer cumplir las leyes contra la violación -dentro y fuera del matrimonio- y otras formas de violencia contra las mujeres y niños; mejorar la eficacia del sistema penal para indagar y procesar delitos contra mujeres y niños; apoyar la igualdad e independencia económica de las mujeres.

 

¿INTENCIONALIDAD EN EL CONTAGIO?

El informe sostiene que son escasos los casos de transmisión intencionada de VIH, contrariando lo que proponen los parlamentarios UDI, donde señalan en el proyecto de ley que “no son pocos los casos en que una persona por simple diversión o venganza decide contagiar del virus del SIDA a otras personas y con ello generar un daño inconmensurable a personas y sus familias, más allá de sus responsabilidades personales”.

Desde la mirada del organismo internacional, “este tipo de actos dolosos son raros en el contexto del VIH y los datos disponibles demuestran que la mayor parte de las personas que viven con el VIH y conocen su estado serológico toman las medidas necesarias para prevenir la transmisión del virus a las demás”.

También sostienen que las personas que no tienen acceso a asesoramiento y pruebas voluntarias, “o porque temen someterse a la prueba debido a las consecuencias negativas que puedan derivarse de un diagnóstico positivo, tales como discriminación o violencia, en tales casos, las personas transmiten sin saber el VIH y no deben enfrentarse a un proceso penal”.

DIFICULTAD EN ENCONTRAR A LA PERSONA TRANSMISORA

“A menudo es difícil establecer quién transmite el VIH a quién (especialmente cuando ambas partes han tenido más de una pareja sexual) y tal vez dependa sólo de un testimonio. Por lo tanto, las personas acusadas de transmisión del VIH pueden se declaradas culpables por error”, sostiene Onusida.

PAÍSES DONDE EXISTE PENALIZACIÓN

Existe una gran cantidad de países donde la transmisión del VIH está penalizada, entre los que se encuentra  Estados Unidos, Uganda, España, México, salvo San Luis Potosí y Aguascalientes, en todos los códigos penales de los estados está estipulado el delito de peligro de contagio.

Un ranking de los países donde existe criminalización de la enfermedad que data de 2008, pone en primer lugar a Malta, luego Bermuda y Nueva Zelanda.

En decenas de países, diversas organizaciones han intentado detener la criminalización del VIH/SIDA, especialmente por considerar que esto atenta contra la lucha para la enfermedad, debido a que las personas temen visibilizar su contagio o examinarse. (http://www.24horas.cl)

 

 

[Update] Mexico: Activists Ask State congress to abide by Supreme Court ruling on HIV criminalisation statute

Veracruz government asked not to criminalise people with HIV (Google translate for original article in Spanish please scroll down)

August 3, 2018

The Multisectoral Group on HIV / AIDS and STIs of the State of Veracruz which asked the National Commission for Human Rights, the right to unconstitutionality, today demands the State Congress to comply with the decision of the Supreme Court of Justice of the Nation that declared unconstitutional article 158 of the criminal code of the state of Veracruz that criminalizes people with HIV.

On April 30 of this year, with eight votes in favor, the Supreme Court of Justice of the Nation determined the invalidity of the amendment to Article 158 of the Criminal Code of the State of Veracruz made on December 1, 2015. This amendment adds to the article referring to the “crime of danger of contagion” the term “sexually transmitted infections” so that those who have them could be sanctioned “for putting in danger of infection other people”.

The sentence of the SCJN said:

  1. The present constitutional challenge promoted by the National Commission of Human Rights is appropriate and well founded.
  2. The invalidity of article 158 is declared in the normative portion “sexually transmitted infections or other” of the penal code for the free and sovereign State of Veracruz of Ignacio de la Llave, which will be retroactive in terms of what is specified in the last section of this enforcement, on the understanding that said effects will be supplied as a reason for the notification of the operative paragraphs of this ruling to the Congress of the State of Veracruz by Ignacio de la Llave.
  3. Publish this resolution in the Official Gazette of the Federation, in the Gaceta del Estado de Veracruz, and the Judicial Weekly of the Federation and its Gazette.

On May 24 of this year, the president of the Board of Directors of the state of Veracruz, Deputy Maria Elisa Manterola Sainz, said in interviews conducted in Xalapa, Veracruz by the News AVC News and Format Sie7e, that the deputies were not obliged to abide by the resolution of the Supreme Court of Justice of the Nation (SCJN) that declared unconstitutional the reform of the Penal Code in the state that typifies the crime of “contagion by people with HIV”.

In these interviews, the deputy Manterola Sainz said “that once the SCJN notifies the Congress, the deputies should analyze in commissions whether or not to take into account the considerations of the Supreme Court, since they are not obliged to subject themselves to what they say “ “As a Legislative Power, we have to demonstrate autonomy first, and demonstrate what the Veracruzans demand of us (…) It has to be analyzed, there will have to be a response from us and the commissions in charge will present the proposal.”

Faced with this, at the time we stated that the Supreme Court of Justice of the Nation is the highest Constitutional Court of the country, under which, it has as its fundamental responsibility the defense of the order established by the Political Constitution of the United Mexican States , in addition to solving, definitively other jurisdictional issues of great importance to society.

As stated by the Master in Constitutional Law and Human Rights Cuauhtémoc “the SCJN is the highest stabilizing body of public power, through its intervention in the resolution of constitutional disputes whose competence is exclusively attributed to Article 105 of the Constitution and , that its action in these matters is not in its character of ordinary jurisdictional organ of the Federation, but in its character of Constitutional Court above the own federal, state or municipal order, and therefore, its action rises above these three levels to be constituted and to function as supreme organ (that is to say as organ of the “global State”) in charge of determining the competence of the parties that come before it to solve their differences.

The Court is not in a simple jurisdictional body responsible for ensuring legality and justice, but a real body guarding the superlegality of the Constitution, that is, a body charged with preserving and validating the fundamental decisions that constitute the Mexican State “.

The ruling of the Supreme Court of Justice of the Nation already declared the impugned rule invalid even with retroactive effects, for which reason the Congress of the State freely, but responsibly, in use of its legislative powers, must correct it.

The ordinary session of the Congress of Veracruz concluded without addressing the decision of the Supreme Court of Justice of the Nation that declared unconstitutional article 158 of the criminal code of the state of Veracruz that criminalizes people with HIV.

For this reason, the Multisectoral Group on HIV / AIDS and STIs of the State of Veracruz, who requested the National Commission for Human Rights, the right to unconstitutionality, today demands that the State Congress comply with the Supreme Court’s ruling of Justice of the Nation.

And beyond that, to strengthen their competencies in the area of HIV, AIDS and STIs for the harmonization of legislation that favour pro-human and progressive principles of human rights, which are essential to consolidate the guarantee of protection of the dignity of the people.

 

Published in Almomento on August 3, 2018

Piden al gobierno de Veracruz no criminalizar a personas con VIH

CIUDAD DE MÉXICO, 3 de agosto (AlmomentoMX).- El Grupo Multisectorial en VIH/sida e ITS del Estado de Veracruz solicitó a la Comisión Nacional de los Derechos Humanos, el derecho a la inconstitucionalidad, hoy reclama al Congreso del Estado que cumpla con el fallo de la Suprema Corte de Justicia la de la Nación que declaró  inconstitucional el artículo 158 del código penal  del estado de Veracruz que criminaliza a las personas con VIH.

El pasado 30 de abril del presente año, con ocho votos a favor, la Suprema Corte de Justicia de la Nación determinó la invalidez de la modificación al artículo 158 del Código Penal del Estado de Veracruz realizada el 1 de diciembre de 2015. Dicha modificación adiciona al artículo referente al “delito de peligro de contagio” el término “infecciones de transmisión sexual” a fin de que quienes las tuvieran pudieran ser sancionados “por poner en peligro de infectar a otras personas”.

La sentencia de la SCJN dijo:

  1. Es procedente y fundada la presente acción de inconstitucionalidad promovida por la Comisión Nacional de los Derechos Humanos.
  2. Se declara la invalidez del artículo 158 en la porción normativa “infecciones de transmisión sexual u otras” del código penal para el Estado libre y soberano de Veracruz de Ignacio de la Llave, la cual será retroactiva en términos de lo precisado en el último apartado de esta ejecutoria, en la inteligencia que dicho efectos se surtirán como motivo de la notificación de los puntos resolutivos de este fallo al Congreso del Estado de Veracruz de Ignacio de la Llave.
  3. Publíquese esta resolución en el Diario Oficial de la Federación, en la Gaceta del Estado de Veracruz y, el Semanario Judicial de la Federación y su Gaceta.

El 24 de mayo del presente año, la presidenta de la Mesa Directiva del Congreso del estado de Veracruz, Diputada María Elisa Manterola Sáinz, aseguró en entrevistas realizadas -en Xalapa, Veracruz por los Diarios AVC Noticias y Formato sie7e-, que las y los diputados no están obligados a acatar la resolución de la Suprema Corte de Justicia de la Nación (SCJN) que declaró inconstitucional la reforma al Código Penal en el estado que tipifica el delito de “contagio para las personas con VIH”.

En dichas entrevistas, la diputada Manterola Sáinz afirmó “que una vez que la SCJN notifique al Congreso, los diputados deberán analizar en comisiones si toman en cuenta o no las consideraciones de la Suprema Corte, puesto que no están obligados a sujetarse a lo que digan”. “Como Poder Legislativo tenemos que demostrar primeramente la autonomía, y demostrar lo que los veracruzanos nos exigen (…) Se tiene que analizar, tendrá que haber una respuesta de nuestra parte y las comisiones encargadas presentarán la propuesta.”

Frente a ello, en su momento manifestamos que la a Suprema Corte de Justicia de la Nación es el Máximo Tribunal Constitucional del país, en virtud de lo cual, tiene como responsabilidad fundamental la defensa del orden establecido por la Constitución Política de los Estados Unidos Mexicanos, además de solucionar, de manera definitiva otros asuntos jurisdiccionales de gran importancia para la sociedad.

Tal y como lo afirma el Maestro en Derecho Constitucional y Derechos Humanos Cuauhtémoc  “la SCJN es el máximo órgano estabilizador del poder público, a través de su intervención en la resolución de las controversias constitucionales cuya competencia le atribuye de manera exclusiva el artículo 105 Constitucional y, que su actuación en estos asuntos no es en su carácter de órgano jurisdiccional ordinario de la Federación, sino en su carácter de Tribunal Constitucional por encima del propio orden federal, estatal o municipal, y por tanto, su actuación se eleva por encima de estos tres niveles para constituirse y funcionar como órgano supremo (es decir como órgano del “Estado global”) encargado de determinar la competencia de las partes que acuden ante ella para solucionar sus diferencias.

La Corte no en un simple órgano jurisdiccional encargado de velar por la legalidad y la justicia, sino en un auténtico órgano guardián de la superlegalidad de la Constitución, es decir, en un órgano encargado de preservar y dar valida las decisiones fundamentales que constituyen al Estado Mexicano”.

La sentencia de la Suprema Corte de la Justicia de la Nación ya declaró la invalidez de la norma impugnada incluso con efectos retroactivos, por lo que el Congreso del Estado de manera libre, pero responsablemente, en uso de sus atribuciones legislativas deberá corregirla.

El periodo  ordinario  de sesiones del Congreso de Veracruz concluyó sin atender el fallo de la Suprema Corte de la Justicia de la Nación que declaró  inconstitucional  el artículo 158 del código penal  del estado de Veracruz que criminaliza a las personas con VIH.

Por ello, el Grupo Multisectorial en VIH/sida e ITS del Estado de Veracruz que fue quien solicitó a la Comisión Nacional de los Derechos Humanos, el derecho a la inconstitucionalidad, hoy reclama al Congreso del Estado que cumpla con el fallo de la Suprema Corte de Justicia la de la Nación.

Y más allá de eso, que fortalezcan sus competencias en materia del VIH, el sida y las ITS  para la armonización de la legislación que favorezcan los principios pro persona y de progresividad de los derechos humanos, los cuales son indispensables para consolidar la garantía de protección de la dignidad de las personas.

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Local Congress will modify statute that criminalizes people with HIV

 
Monday, May 28, 2018

After the Supreme Court of Justice of the Nation determined this unconstitutional issue, the Chamber of Deputies must abide by it.

 After the Supreme Court of Justice of the Nation (SCJN) determined it was unconstitutional to criminalize people living with HIV-AIDS, the Congress of Veracruz will amend the law, because being a failure of the SCJN is forced to comply, said deputy Gregorio Murillo Uscanga, president of the Commission for Human Rights and Care for Vulnerable Groups.

On December 1, 2015, Article 158 of the Veracruz Criminal Code was amended, including the “crime of transmission risks” in “sexually transmitted infections” which allows those who could “put themselves at risks of infecting others”.

The Mexican Network of Organizations against the Criminalization of HIV, which is composed of 44 civil society organizations, demanded that the local Chamber of Deputies strengthen their competencies in this area, as well as in other Sexually Transmitted Infections ITS to favor the principles of people and the progressivity of Human Rights.

Faced with the determination of the SCJN, the local congress must make the appropriate adjustments to address the ruling.

Published in e-consulta on May 28, 2018

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Congreso local modificará artículo que criminaliza a personas con VIH

E-consulta Veracruz  |
Lunes, Mayo 28, 2018

Luego de que la Suprema Corte de Justicia de la Nación determinara este tema inconstitucional, cámara de diputados debe acatarlo

Xalapa, Ver. – Luego de que la Suprema Corte de Justicia de la Nación (SCJN) determinara inconstitucional criminalizar a las personas que viven con VIH-Sida, el congreso de Veracruz modificará la ley, pues al ser un fallo de la SCJN se está obligado a acatarlo, señaló el diputado Gregorio Murillo Uscanga, presidente de la Comisión de Derechos Humanos y Atención a Grupos Vulnerables.

El primero de diciembre de 2015, se reformó el artículo 158 del Código Penal de Veracruz, donde se incluyó el “delito de peligro de contagio” en “infecciones de transmisión sexual” el cual permite sancionar a quienes pudieran “poner en peligro de infectar a otras personas”.

La Red Mexicana de Organizaciones contra la Criminalización del VIH, la cual está integrada por 44 organizaciones de la sociedad civil, exigió a la cámara de diputados local fortalecer sus competencias en esta materia, así como en otras Infecciones de Transmisión Sexual ITS para favorecer a los principios de las personas y la progresividad de los Derechos Humanos.

Ante la determinación de la SCJN, el congreso local deberá realizar las adecuaciones correspondientes para atender el fallo. 

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NGO urges local congress to abide by SCJN’s ruling on HIV (Google translation, for original article in Spanish, scroll down)

 

Xalapa, Ver.- The Mexican Network of Organizations against the Criminalization of HIV, through its coordinator Patricia Ponce Jiménez, called on the Local Congress and its president, María Elisa Manterola Sáinz, to abide by the Nation Supreme Court’s ruling regarding the declaration of unconstitutionality of the stature that criminalizes people living with HIV.

 

Through a communiqué issued this Friday, the Network recalled that on April 30 the SCJN ruled in favour of the appeal presented by the National Human Rights Commission (CNDH), at the request of the HIV Multisectoral Group, which was presented two years after the reform that the Congress approved to the Penal Code.

 

Article 158 of the Penal Code provided for a prison sentence and a fine for the person who “transmitted” the human immunodeficiency virus and other sexually transmitted infections considered serious diseases. The SCJN determined that this statute was lax, as well as unconstitutional.

 

For this reason, they reiterated the call for Congress to comply with the decision of the SCJN, since it is a jurisdictional body that is above any legislative power of the States.

 

In the statement, they said that the decision of the SCJN is unappealable and absolute, so the network insisted that it must be complied with immediately.

 

Published in La Opinion de Poza Rica on May 26, 2018

 

ONG exhorta al congreso local a acata fallo de SCJN en materia de VIH

 

Xalapa, Ver.- La Red Mexicana de Organizaciones contra la Criminalización del VIH, a través de su coordinadora Patricia Ponce Jiménez, hicieron un llamado al Congreso Local y a su presidenta, María Elisa Manterola Sáinz, para acatar el fallo de la Suprema Corte de Justicia de la Nación (SCJN) respecto de la declaración de inconstitucionalidad del artículo que criminaliza a las personas que viven con vih.

A través de un comunicado emitido este viernes, la Red recordó que apenas el pasado 30 de abril la SCJN falló a favor del recurso presentado por la Comisión Nacional de Derechos Humanos (CNDH), a petición del Grupo Multisectorial VIH, el cual se presentó hace dos años tras la reforma que el Congreso aprobó al Código Penal. 

El artículo 158 del Código Penal contemplaba pena de cárcel y multa a la persona que contagiara; el virus de inmunodeficiencia humana y otras infecciones de transmisión sexual contempladas como enfermedades graves. La SCJN determinó que este artículo era laxo, así como inconstitucional.

Por ello reiteraron el llamado a que el Congreso acate el fallo de la SCJN, pues se trata un órgano jurisdiccional que está por encima de cualquier poder legislativo de los Estados.

En el comunicado señaló que el fallo de la SCJN es inapelable y absoluto, por lo que insistió la red en que debe ser acatado de manera inmediata.

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Congress discusses the decision of the Supreme Court of Justice of the Nation to invalidate the criminalisation of HIV transmission (Google translation – For Spanish article, scroll down)

Xalapa, Ver.- The president of the Board of Directors of the local Congress, María Elisa Manterola Sáinz, assured that the deputies are not obliged to abide by the resolution of the Supreme Court of Justice of the Nation (SCJN) that declared unconstitutional the reform of the Code Criminal in the state that typifies the crime of “contagion” to HIV carriers.

In an interview, he said that once the SCJN notifies the Congress, the deputies should analyze in commissions if they take into account or not the considerations of the Supreme Court, as he said that they are not obliged to subject themselves to what they say.

“As a Legislative Power we must first demonstrate autonomy, and demonstrate what the Veracruzans demand of us (…) It has to be analyzed, there will have to be a response from us and the commissions in charge will present the proposal.”

In the same way, she spoke about the need to reform the Law to comply with the National Commission to Prevent Violence against Women (Conavim) in order to guarantee women access to the legal interruption of pregnancy (ILE).

Published in XEU.com on May 18,2018

Congreso analiza determinación de la SCJN negativa de tipificar como delito el contagio de VIH
 

Xalapa, Ver.- La presidenta de la Mesa Directiva del Congreso local, María Elisa Manterola Sáinz, aseguró que los diputados no están obligados a acatar la resolución de la Suprema Corte de Justicia de la Nación (SCJN) que declaró inconstitucional la reforma al Código Penal en el estado que tipifica el delito de “contagio” a los portadores de VIH.

En entrevista, dijo que una vez que la SCJN notifique al Congreso, los diputados deberán analizar en comisiones si toman en cuenta o no las consideraciones de la Suprema Corte, pues dijo que no están obligados a sujetarse a lo que digan.

“Como Poder Legislativo tenemos que demostrar primeramente la autonomía, y demostrar lo que los veracruzanos nos exigen (…) Se tiene que analizar, tendrá que haber una respuesta de nuestra parte y las comisiones encargadas presentarán la propuesta”.

De la misma forma, se pronunció en torno a la exigencia de reformar la Ley para acatar la Comisión Nacional para Prevenir la Violencia contra las Mujeres (Conavim) a fin de garantizar a las mujeres el acceso a la interrupción legal del embarazo (ILE).

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The Supreme Court of Justice of the Nation invalidates statute that punishes the transmission of sexually transmitted infections

Xalapa, Ver.- (AVC / Brisa Gómez) The Supreme Court of Justice of the Nation (SCJN) declared the invalidity of Article 158 of the Criminal Code of the State of Veracruz, which punishes those who knowingly “infect” sexually transmitted infections and other serious diseases.

With eight votes in favour of the bill presented before the plenary of the Supreme Court on Monday, it was pointed out that the notion of criminality was “highly inaccurate” because it did not establish what represents a serious illness and furthermore it was not possible to verify the intent of transmission.

With this, it reforms the statute which in Veracruz punishes the “transmission” of sexually transmitted infections and serious diseases with up to five years in prison, ordering the notification of this ruling to the Local Congress.

This is the first legislation criminalising people living with HIV that is thrown down by the highest judicial body in the country.

Published in AVC Noticias on April 30, 2018

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Veracruz: the state with the most prosecutions for the criminalisation of HIV

At least 15 people have been charged and tried on charges of transmitting HIV or a sexually transmitted infection.

Mexico City.- At the national level, Veracruz is the State with the highest number of cases of patients with sexually transmitted infections (STIs) and HIV being tried for being accused of the crime of transmission to other people, due to the criminalization embodied in the criminal codes of the States of the Republic.

Of the 26 cases registered in the country, in which judicial proceedings or sanctioning of persons carrying a sexually transmitted infection, including HIV, have been initiated, 15 were in Veracruz.

During the International Meeting “HIV is not a crime”, it was noted that it was worrying that States, entities and their organs of justice persecute patients of these diseases.

The author of this research, Leonardo Bastida Aguilar, a member of the organization Letter S, said that in the case of Veracruz, despite being known, through a response to a request for transparency, he was only informed about 15 cases of people already charged, for the crime of transmission of venereal diseases.

Requests for answers to questions such as disaggregation by gender, judicial district, year in which it was processed or the type of sexually transmitted infection in question or gender preference or identity were not answered.

He acknowledged that this information was given briefly in 2016 when Veracruz was placed first at the national level in terms of sanctioning proceedings against people with this type of ailments.

These 15 cases, were already concluded and resulted in administrative sanctions, however, there was no further information.

It is necessary to remember that in 2015 a reform was made to the Veracruz Criminal Code, where a person who infects another person with a sexually transmitted infection, including human immunodeficiency virus, is punished with imprisonment.

In other States, a case was recorded in Nuevo León by a patient with HIV and hepatitis; in Chihuahua a person prosecuted for HIV, hepatitis and syphilis; and in Baja California a case was sanctioned with 10 years in jail, with one of the most severe penalties.

This initiative in Veracruz, has been in the hands of the Supreme Court of Justice of the Nation (SCJN), for a constitutional challenge filed by civil society and the National Human Rights Commission, for approximately two years.

In support of the groups that came out in Veracruz against this proposal that criminalizes HIV patients and other STIs, at the national level, organizations that work on behalf of patients with HIV sent a letter to the Supreme Court to argue against the legislation in Veracruz.

Published in E-Consulta Veracruz on Oct 12, 2017

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Veracruz: el estado con más procesados por delito de contagio de VIH

Al menos 15 personas han sido procesadas y sometidas a juicio al ser acusados de transmitir VIH o infecciones de transmisión sexual.

Ciudad de México.- A nivel nacional, Veracruz es la entidad con más casos de pacientes con infecciones de transmisión sexual (its) y VIH sometidos a juicio al ser acusados del delito de contagio a otras personas, esto debido a la criminalización plasmada en los códigos penales de los Estados de la República.

De 26 casos registrados en el país, en los que se han iniciado procesos judiciales o sancionadores de personas portadoras de alguna infección de transmisión sexual, incluyendo VIH, 15 fueron en Veracruz.

Durante el Encuentro Internacional “VIH no es un crimen”, se advirtió que es preocupante que estados, entidades y sus órganos de justicia persigan a pacientes de estas enfermedades.

El autor de esta investigación, Leonardo Bastida Aguilar, integrante de la organización Letra S, dijo que en el caso de Veracruz, a pesar de darse a conocer, mediante una respuesta a solicitud de transparencia, sólo le informaron que se habían atendido 15 casos de personas ya procesadas, por el delito de contagio o transmisión de enfermedades venéreas.

A esta solicitud no se respondió a cuestionamientos como el desagregado por género, distrito judicial, año en que se procesó o el tipo de infección de transmisión sexual de que se trataba o la preferencia o identidad de género.

Reconoció que esta información se dio de manera escueta en el año 2016 con lo que Veracruz se colocó en el primer lugar a nivel nacional en cuanto a procesos sancionadores a personas con este tipo de padecimientos.

Estos 15 casos, incluso, ya fueron concluidos y dieron como resultado sanciones administrativas, sin embargo no hubo más información.

Es necesario recordar que en 2015 se llevó a cabo una reforma al Código Penal de Veracruz, donde se sanciona con cárcel a quien contagie a otra persona de alguna infección de transmisión sexual, incluyendo el virus de inmunodeficiencia humana.

En otras entidades se registraron un caso en Nuevo León, por un paciente de VIH y hepatitis; Chihuahua una persona procesada por VIH, hepatitis y sífilis; y en Baja California un caso sancionado con 10 años de cárcel, con una de las penas más severas.

Esta iniciativa vigente en Veracruz, se encuentra en manos de la Suprema Corte de Justicia de la Nación (SCJN), por el recurso de inconstitucionalidad que se presentó por parte de la sociedad civil y la Comisión Nacional de Derechos Humanos, desde hace aproximadamente dos años.

En apoyo a los grupos que se pronunciaron en Veracruz contra esta propuesta que criminaliza a pacientes de VIH y otras ITS, a nivel nacional organizaciones que trabajan a favor de pacientes con VIH, enviaron una carta a la Suprema Corte para argumentar en contra de la legislación veracruzana.

US: Michigan proposed bills aim to modernise state laws surrounding HIV

How new bills could change Michigan’s HIV laws

Kathleen Gray  Detroit Free Press Lansing Bureau
Published 10:00 p.m. UTC May 24, 2018

LANSING — Since the first case of HIV/AIDS was reported in Michigan in 1981, lawmakers say treatment for the disease has progressed so much that it’s time to revisit state laws surrounding HIV.

They have introduced a controversial package of bills that would, among other things, make it a misdemeanor, rather than a felony, to not disclose the disease to a sexual partner.

The bills would also update the language in the laws — many written in the ’80s — to reflect advances in treatments and technology. For example, a medication listed in current law is no longer used. And with data storage technology improvements, reporting on HIV can be done within 24 hours, rather than the seven days called for in the current state law.

“These bills represent a way to reduce the stigma of HIV and treat it like any other infectious disease,” Dr. Eden Wells, Michigan’s chief medical officer, said during a hearing before the House Health Policy committee Wednesday. “We should be treating people like patients, not criminals.”

Another controversial provision would require pregnant women in high risk populations to take an HIV test in their third trimester, although a patient would have the ability to opt out of the test.

 

“The basis of the law as it was written (in the 1980s) was in reaction to a lot of the hysteria and panic around the diagnosis,” Wells said, noting that with proper treatment, the disease shows undetectable viral loads “and then they won’t transmit the HIV.”

State Rep. Jon Hoadley, D-Kalamazoo, is the sponsor of the bill that would make non-disclosure of the disease a misdemeanor rather than a felony. As the bill is written now, some people don’t get tested because they don’t want to know the diagnosis and then can’t be held liable if there is a transmittal of the disease.

“We need to modernize the law so there’s no reason not to get tested and treated,” he said.

But state Rep. Ed Canfield, R-Sebawaing, said while he supported the bulk of the bills in the package, he was concerned about reducing the penalties for non-disclosure.

“If they’re allowed to make this a misdemeanor and a $1,000 fine, that’s what the offender gets out of it,” he said. “But if they pass the infection on to someone, it’s a lifetime condition that’s not curable.”

Canfield, who is a medical doctor, said he’s treated patients with AIDS and worries that current treatments that  have greatly extended life expectancies aren’t foolproof.

“What if the anti-virals become ineffective? What happens if we have a crisis that occurs or a businessman buys the patent for the drugs and drives up the cost?” he said. “We could see people dying again. This is a public health problem, not a social problem. And I don’t want to see other people getting harmed or injured.”

The instances of HIV in Michigan have been steadily going down since the number of new cases hit a high of 1,533 in 1992, according to the state Department of Health and Human Services. The number of deaths peaked at 981 in 1995. In 2016, 748 new cases of HIV were reported in the state, 140 deaths and 15,625 people living with the disease.

Wells said that 22 people have been charged with failing to disclose their disease to sexual partners and of those, 19 were charged not because they had actually transmitted the disease, but because they had merely failed to disclose their condition. She didn’t have statistics on the outcome of criminal cases.

The bills — HB 6016-6023 — didn’t get a vote Wednesday, but are expected to be taken up again before the House breaks for the summer in mid-June.

Contact Kathleen Gray: 313-223-4430, kgray99@freepress.com or on Twitter @michpoligal

Published in Detroit Free Press on May 24, 2018

Zimbabwe: Parliamentarian calls for repeal of HIV criminalisation law

Spreading HIV to your own partner is a crime but this must be reviewed, the Parliamentary Portfolio Committee on Health and Child Care has said.

The committee has called for the repeal of the deliberate transmission of HIV law as it violates the rights of women who have mostly borne the brunt of the statute.

 Speaking after the second hearing of the Public Health Bill in Parliament yesterday, committee chairperson Dr Ruth Labode said Zimbabwe has no diagnostic equipment to determine the time a person transmits the virus.

She said the same law was discouraging people from disclosing their HIV status to their partners.

“I stand here to support and to lay my support to the recommendation by the Committee that criminalisation of wilful transmission of HIV be repealed. Zimbabwe is a signatory to the political declaration of the high level meeting in New York which says, we should end HIV by 2030 and that no one should be left behind,” said Dr Labode.

“We all know very well that in Zimbabwe and the world-over, we do not have diagnostic equipment which can tell us who gave HIV to the other and at what time.”

She said more Zimbabwean women had been arrested compared to other countries as a result of the law.

“There is an assumption that whoever has manifested the disease first is the one who transmitted the virus. It can be anybody and it could be the other way round,” said Dr Labode.

She said for Zimbabwe to meet the global HIV targets, everyone must have access to services and be protected by law.

“If you are a woman and suddenly you find yourself positive, you will not tell your partner because of this law yet if the law was not there you would tell your partner and go and access ARVs to live happily ever after.”

Zimbabwe is targeting that 90 percent of people living with HIV know their status of whom 90 percent are on treatment and 90 percent are virally suppressed by 2030. — state media

Published in ZimEye on May 19, 2018

 

US: HIV criminalisation survivor David Plunkett dies aged 54

In Memory of HIV Criminalization Survivor David Plunkett

By JD Davids

From TheBody

May 18, 2018

TheBody is sad to share the news of the recent death of David Plunkett, a survivor of HIV criminalization in New York who served half of a 10-year sentence. David would have turned 54 today.

Plunkett was released in 2012 after a ruling by the New York Court of Appeals in his case that the saliva of a person with HIV could not be characterized as a deadly weapon or dangerous instrument.

By many accounts, Plunkett brought humor and a positive spirit to what he had endured.

“He was intelligent, and for all he’d been through, he had a surprisingly positive perspective on life,” said Audrey Baron Dunning, who represented Plunkett at the appellate level and took his case to the Court of Appeals. “We always laughed whenever we talked.”

After his release, Plunkett became certified as a paralegal.

Although the details of his passing are not fully known at this time, TheBody received confirmation from the Onondaga County Medical Examiner’s Office near his current home in Rome, New York. We will update this story with more information as it is received.

“At 43 years old, I never imagined how different my life would be because of my arrest and incarceration,” Plunkett said on the occasion of the 2014 release of a guidance from the U.S. Department of Justice on the need to reform or eliminate HIV criminalization laws. “I also never realized the stigma attached to those with HIV and especially those who also have a criminal record. I should have been able to focus on my health and career, not battling a system that incarcerates those who live with a chronic illness and remains uninformed about the nature and transmission of HIV.”

David contributed an essay to the catalog for Cell Count, an exhibit curated for Visual AIDS opening on May 31 in New York City. Plunkett’s piece is below.

“It’s deeply unfortunate that David won’t be there to feel the rallying support we hoped to provide for him and others through this project. I’m glad that he knew this was happening,” said Asher Mones, one of the exhibition’s curators. “He expressed a lot of joy knowing that people were organizing around reforming criminalization, and I think he would be happy to know that his story will not be lost.”

(TheBody thanks Brian Carmichael, an imprisoned artist living with HIV whose work will be featured in Cell Count, for informing us of Plunkett’s passing.)

Here is David Plunkett’s essay on being criminalized in New York:

I was 46 and semi-retired when I found myself incarcerated by the New York State Department of Corrections and Community Supervision at the infamous Sing Sing prison, located approximately 45 minutes from New York City.

I was diagnosed HIV positive in June 2006, a time I’ll never forget. I could find no resources for people living with AIDS and HIV (PWA) in my small town and began taking prescription narcotics and drinking heavily. On September 18, I had a doctor’s appointment and I had crashed my car, so my uncle took me to the office. I was intoxicated at the time, and the police were called. I was later told that I acted up. I was arrested and sent to the county jail. I remained in that very small jail for a year until my case adjudicated. I was eventually sentenced to ten years, maximum security.

This sentence all came about because, as the police were arresting me, they figured out I was gay. They broke my bones and skinned me up. At one point during the arrest, I made a mistake and revealed my HIV status; I stated that I was positive. I saw that I was bleeding, and for their safety as well as mine, I did the responsible thing. I knew I was not able to transmit the virus due to a low viral load. My meds were working, and I was well! However, my lawyer assured me the small town jury that had been selected would not see it this way. I was gay and worse yet, I was a “monster.” I had HIV and most people at the time believed the people who acquired the disease were “bad” gays, drug addicts, and sex workers.

This was social discrimination at its finest. HIV criminalization and stigma are still alive and well, even in the gay community today, where those who are negative often won’t associate with those who are positive, even while it is common knowledge that HIV is only transmitted by specific body fluids, such as breast milk, blood, and semen. Saliva will not transmit HIV. Yet, the judge in the lower court charged me for exposing the police officer to my saliva, which was clear of any blood. For this I served time.

While in state custody, I began writing letters to various legal firms that represented high-profile HIV/AIDS cases, evictions, discrimination, and unfair sentencing. To my delight, Lambda Legal took my case. Lambda is probably the best-known LGBTQ legal organization representing the community since the gay rights movement began. I had one of the top lawyers defending me: Scott Schoettes, an HIV-positive attorney with a passion for those unfairly treated by the system. He states, “There are two ways that prosecutions are brought against people living with HIV based on their HIV status. One of them is through general criminal laws, and that’s what we had in the Plunkett case. The other way is through HIV-specific criminal law.” Scott wrote an amicus (“friend of the court”) brief to accompany my attorney’s brief, which stated that I could not be charged with “aggravated” assault, because my teeth and saliva came with me, and therefore were not a dangerous weapon.

I waited four years for my appellate decision, a very long time when you are innocent. While I waited, I attended Mercy College and, upon my release, I was able to take the five classes I needed to graduate with my BA in behavioral sciences. I took every opportunity to participate in prison programs. I was going to do my time, not allow my time to do me! I was eventually released in 2012, and the decision set the standard for New York state, where HIV cannot be considered a “deadly weapon.” My release was a long time coming, but I made it, and I’m now completing my master’s in psychology, a field with many opportunities for those seeking employment under my circumstances.

It still saddens me that I continue to be stigmatized by society and the legal system today, especially when I learn about folks doing incredible amounts of time for HIV crimes that would be considered ridiculous by a society using critical thinking and taking the time to learn the very basics of HIV/AIDS. According to one study, “Research reveals that perceived discrimination is adversely related to a broad range of health outcomes and health risk behaviors.” When PWA’s are continually told by a discriminating society they do not deserve to live a happy and successful life, they are more likely not to medicate themselves with lifesaving drugs, therefore increasing rates of transmission. The best way to reduce HIV stigma is education, and the best way to deal with a court system that is stuck in the ’90s is to educate and lobby court officials.

JD Davids is a senior editor and the director of strategic communications at TheBody.com and TheBodyPRO.com.

Published in the Body on May 18, 2018