Malawi: Human right groups condemn new HIV bill as discriminatory, paternalistic and harmful to the HIV response

Malawi rights bodies defy criminalising the transmission of HIV: Bill deeply flawed

Stakeholders have described the new HIV and AIDS Bill as ‘a bad law’ and a disaster to happen as it is discriminatory and will impede the fight against AIDS.

The bill includes mandatory HIV testing for pregnant women and their partners, and allows medical providers to disclose a patient’s HIV status to others. The bill also criminalizes HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status.

Human rights groups and activists who converged in Lilongwe recently for the media advocacy meeting on HIV and Aids Bill described the new bill on HIV and AIDS as a debauched law in the offing.

Centre for Human Rights Education, Advice and Assistance (CHREAA) organised the meeting.

Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights, the rights activists said. The criminalization of HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status is overly broad, and difficult to enforce.

Female Sex workers Association executive member, Zinenani Majawa, speaking on behalf of sex workers in in Malawi said: “This Bill targets us because men will always be saying this sex worker infected me with the disease.”

Majawa vehemently quashed the bill, saying it does not give any hope towards the HIV positive response.

The sex workers representative argued that Section 43 and 44 will also be difficult to apply with due adherence to fair trial rights including the right to be presumed innocent, adding that it is not correlating on the obligation for the state to prove criminal conduct beyond a reasonable doubt.

“This is because in most circumstances, there is no scientific means to prove the direction of HIV transmission beyond a reasonable doubt,” said Majawa.

During the meeting the stakeholders nudged holes on the new bill, saying, for example section 43 that targets deliberate transmission was seen to be similarly overboard.

“Phylogenetic analysis is expensive it requires the use of complex computational tools to estimate how closely related the samples of HIV taken from complainants and defendants are in comparison to other samples,” argued some stakeholders.

‘Vilification of women’

Making a presentation on the new Bill, Women Lawyers Association (WLA) President Sarai Chisala said, in its current format, despite the many admirable aspects of the HIV Bill, the provisions that create criminal measures to enforce various HIV management efforts have the effect of infantilizing, criminalizing, stigmatizing and potentially victimizing women – particularly women who are already living with HIV.

Said Chisala: “Rather than being protective and preventive, the law is paternalistic, positing women as both victims and vectors of HIV. Yet in reality women living with HIV rarely describe themselves as “victims” when relaying how they became infected, and the language of vectors is especially harmful for those most marginalised members of society such as female sex workers.”

Chisala further explained that the HIV Bill both demonizes and infantilizes women, they are painted as carriers of the disease but also as potentially careless and callous mothers; and women of loose morals.

“In a country where more than half of the women are married before the age of 18, and it is within these relationships – and oftentimes violent relationships, a product of harmful cultural practices – that they either become infected or learn of their infection, in this manner, lives that are already filled with violence are suddenly even more fraught with danger, Chisala said.

Sarai added that there are clear public health implications to a pandemic such as HIV and AIDS and the role that the government opts to play in the management of the pandemic has a severe impact on the course of the disease.

According to the WLA president: “legislation can be used to set out the manner in which issues such as voluntary counselling and testing; partner notification; medical care and treatment of AIDS related illnesses; and, epidemiological surveillance, amongst other things, are handled,” adding; “The UNAIDS Handbook for Legislators on HIV/AIDS, Law and Human Rights (the Handbook) suggests that laws should require specific informed consent before HIV testing is done for fear of risking violation of a person’s right to both privacy and personal liberty, the Handbook also goes on to stress that targeting specific groups for compulsory testing is in violation of the non-discrimination principle under international human rights law.”

The WLA leader also noted with consternation that the overly punitive crafting of many of the provisions in the HIV Bill, that were intended to prevent the spread of HIV and AIDS, are instead more likely to lead to disproportionate demonization and vilification of women living with HIV.

Some of the organizations which have openly challenged the newly introduced bill includes, female sex workers, Child Rights Information and Documentation Centre, Coalition of Women Living with HIV, AIDS Rights Alliance, Mango Network, Southern Africa Litigation Centre, Centre for Development of People, CHREAA, Youth Watch Society just to mention a few.

Published in the Nyasa Times on Nov 2, 2017

Mexico: Lawmakers and civil organisations commit to reform HIV criminalisation law in Quintana Roo

They will reform Penal Code to protect people with HIV

Lawmakers and civil organizations agree to push for changes to article 113

Saturday, October 21, 2017

Considering that article 113 of the Criminal Code of Quintana Roo may violate the human rights of people suffering from diseases such as HIV / AIDS, members of the 40th Legislature committed themselves to progress the analysis of a reform to modify it, or as the case may be, repeal it.

This Friday, Deputy Laura Esther Beristain Navarrete, president of the Commission on Health and Social Welfare and Deputy Alberto Vado Morales, president of the Culture Commission, met with civil organizations dedicated to issues such as HIV prevention and Human Rights of the LGBTQI Community, as well as representatives of the National Human Rights Commission and the Human Rights Commission of the State of Quintana Roo.

After looking at the drafting proposals with respect to the reform of article 113 of the Criminal Code of the State and listening to the arguments of the civil organizations and human rights organizations, it was agreed to push before the Justice Commission of the Congress this article that has been in force since 1991, they said.

It should be noted that Article 113 in its current wording, according to the organizations, criminalizes people living with HIV, implying that people suffering from this disease can be subject to a criminal trial solely because of their health condition, which is a matter of brevity, said the deputies.

During the meeting, topics such as the need to avoid legislative lag and to advance in the opinion of issues that have already been presented by the president of the Health Commission, Laura Beristain and the deputy Alberto Vado, such as reforms to the Civil Code for equal marriages and rights of affiliation of the LGBTTTI community; to the Criminal Code to deal with hate crimes against this sector of the population; the HIV Prevention and Treatment Act and reforms to promote gender identity of transgender people.

For his part, the president of the organization Círculo Social Igualitario, Edgar Mora Ucan, indicated that the repeal of article 113 of the Criminal Code is a watershed moment to legislate with a vision for human rights.

“This is a transcendental fact for the state, is creating the precedent of legislating with a vision for human rights. Only two states in the country do not have this legislation and in Quintana Roo it is being done. The door is being opened to legislate on other human rights issues, “he said.

Published in La Jornada Maya on October 21, 2017

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Reformarán Código Penal para proteger a personas con VIH

Acuerdan legisladores y organizaciones civiles impulsar cambios al artículo 113

La Jornada Maya

Sábado 21 de octubre, 2017Por considerar que el artículo 113 del Código Penal de Quintana Roo puede ser violatorio de los derechos humanos de las personas que padecen enfermedades como VIH Sida, diputados integrantes de la 40 Legislatura se comprometieron a avanzar en el análisis de una reforma para modificarlo y, en su caso, derogarlo.

Este viernes la diputada Laura Esther Beristain Navarrete, presidente de la Comisión de Salud y Asistencia Social y el diputado Alberto Vado Morales, presidente de la Comisión de Cultura, se reunieron con organizaciones civiles dedicadas a temas como la prevención del VIH y promotores de los derechos humanos de la Comunidad LGBTTTI, así como con representantes de la Comisión Nacional de Derechos Humanos y la Comisión de Derechos Humanos del Estado de Quintana Roo.

Luego de un análisis de las propuestas de redacción con respecto a la reforma del artículo 113 del Código Penal del Estado y con los argumentos de las organizaciones civiles y de los organismos de Derechos Humanos se acordó impulsar ante la Comisión de Justicia del Congreso, la derogación de dicho artículo que se encuentra vigente desde 1991, según señalaron.

Cabe destacar que el Artículo 113 en su redacción actual, de acuerdo con las organizaciones, criminaliza a las personas que viven con VIH, lo que implica que las personas que padecen esta enfermedad pueden estar sujetas a un juicio penal únicamente por su condición de salud, tema que es de atenderse a la brevedad, consideraron los diputados.

Durante el encuentro se abordaron temas como la necesidad de evitar el rezago legislativo y que se avance en el dictamen de temas que ya han sido presentados por la presidente la de la Comisión de Salud, Laura Beristain y el diputado Alberto Vado, tales como reformas al Código Civil para los matrimonios igualitarios y derechos de filiación de la comunidad LGBTTTI; al Código Penal para la atender los crímenes de odio hacia este sector de la población; la Ley de Prevención y Tratamiento del VIH y reformas para impulsar la identidad de género de las personas transgénero.

Por su parte el presidente de la organización Círculo Social Igualitario, Edgar Mora Ucan, indicó que la derogación del artículo 113 del Código Penal es parte-aguas para legislar con visión hacia los derechos humanos.

“Este es un hecho trascendental para el estado, está creando el precedente de legislar con visión hacia los derechos humanos. Solo dos estados en el país no cuentan con esta legislación y en Quintana Roo se está haciendo. Se está abriendo la puerta para que se legisle sobre otros temas en materia de derechos humanos” aseguró.

Belarus: More than 50 cases of criminal prosecution of HIV in Belarus in the first 6 months of 2017

Belarusian legislation discriminates against HIV-positive people (Google translation – Article in russian below)

In the six months of 2017, the number of cases of criminal prosecution of HIV-positive people in Article 53 of the Criminal Code of the Republic of Belarus (Infection with the Human Immunodeficiency Virus) has significantly increased in all regions of Belarus, especially in the Gomel region.

If in the period from 2012 to 2016, 38 cases were registered, then for 6 months in 2017 – more than 50 people were convicted, many of them are serving sentences in places of deprivation of liberty.

“The Belarusian community of PLWH” notes that at a time when calls for testing and self-testing for HIV are sounding throughout the country, campaigns are underway to create a tolerant attitude, people with identified HIV status are being prosecuted. The topic of HIV infection is actively discussed in the Belarusian press and abroad, thereby creating a negative, negative impression about people living with HIV, creating a new wave of enmity, stigma and discrimination in society.

Article 157 of the Criminal Code of the Republic of Belarus was approved in 1999, when HIV infection was considered an incurable disease. Since then, about 20 years have passed, mankind has stepped into a new age, medical approaches have changed, highly effective treatment has appeared, HIV is no longer a deadly disease, and has become chronic, well controlled by antiretroviral treatment. In HIV-positive people taking ARV therapy, with an undetectable viral load, the risk of HIV transmission during sexual intercourse is reduced to almost zero.

Article 157 of the Criminal Code of the Republic of Belarus consists of three parts:

Knowingly placing another person at risk of contracting the human immunodeficiency virus (HIV) – is punishable by a fine, or by arrest, or by imprisonment for up to three years.
Infection of another person by frivolity or with the indirect intent of HIV by a person who knew about his having this disease is punishable by imprisonment for a term of two to seven years.
The action provided for in paragraph 2 of this article, committed against two or more persons, either knowingly underage, or with direct intent, is punishable by imprisonment for a term of five to thirteen years.

In the first and second parts of this article, criminal cases are instituted against people who live in legal marriages or couples where one partner is HIV-positive even if he has informed his partner about HIV-carrier, even if the fact of one from family members is taken completely consciously and voluntarily.

In accordance with the requirements of Art. 157 of the Criminal Code of the Republic of Belarus, discordant marriages in general are under the ban and under penalty of criminal responsibility, as well as one-time voluntary sexual contacts between people of different HIV status.

In Belarus there are presumably more than 500 discordant couples. They live and work, multiplying the welfare of their country, are good taxpayers. Practically every family has children who risk being left in single-parent families, without parental care, because of the absurdity and inhumanity of law enforcement practice.

Russia also provides for criminal liability for posing a risk of contracting HIV infection under art. 122 of the Criminal Code. Thanks to the active efforts of the Russian community of PLHIV, an important note was added to the article in 2003, on the basis of which the person who put the partner at risk of infection or who infected him with HIV infection is released from criminal liability “if another person put at risk of infection, or was infected with HIV infection, was warned in a timely manner about the presence of the first of this disease and voluntarily agreed to perform actions that created the danger of infection. ” Such an addition in Article 122 of the Criminal Code released HIV-positive Russians with established HIV status from criminal prosecution.

“Belarusian community of PLWH” believes that Article 157 of the Criminal Code of the Republic of Belarus contradicts international and national legal norms. Under current legislation, an HIV-positive person can not feel a full-fledged citizen of their country. Such a practice with respect to people living with HIV is discriminatory and requires an early resolution at the legislative level of Belarus!

As of September 1, 2017, there were 18,438 HIV-positive people registered in Belarus.

Published in ECU on Oct 6, 2017

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Белорусское законодательство дискриминирует ВИЧ-позитивных людей

За шесть месяцев 2017 года во всех регионах Беларуси, особенно в Гомельской области, значительно увеличилось количество случаев уголовного преследования ВИЧ-положительных людей по статье 157 Уголовного Кодекса Республики Беларусь (Заражение вирусом иммунодефицита человека).

Если в период с 2012 по 2016 годы было зарегистрировано 38 случаев, то за 6 месяцев 2017 года — более 50-ти человек были осуждены, многие из них отбывают срок наказания в местах лишения свободы.

«Белорусское сообщество ЛЖВ» отмечает, что в то время, когда по всей стране звучат призывы к тестированию и самотестированию на ВИЧ, проходят кампании по формированию толерантного отношения, люди с выявленным ВИЧ-статусом подвергаются уголовному преследованию. Тема о заражении ВИЧ активно муссируется в белорусской прессе и за ее пределами, тем самым формируя отрицательное, негативное впечатление о людях, живущих с ВИЧ, порождая новую волну вражды, стигмы и дискриминации в обществе.

Статья 157 Уголовного Кодекса Республики Беларусь была утверждена в 1999 году, когда ВИЧ-инфекция считалась неизлечимым заболеванием. С тех пор прошло около 20 лет, человечество перешагнуло в новый век, поменялись медицинские подходы, появилось высокоэффективное лечение, ВИЧ больше не является смертельно опасным заболеванием, и перешел в разряд хронических, хорошо контролируется антиретровирусным лечением. У ВИЧ-положительных людей, принимающих АРВ-терапию, при неопределяемой вирусной нагрузке риск передачи ВИЧ при половых контактах снижается практически до нуля.

Статья 157 УК РБ состоит из трех частей:

Заведомое поставление другого лица в опасность заражения вирусом иммунодефицита человека (ВИЧ) – наказывается штрафом, или арестом, или лишением свободы на срок до трех лет.
Заражение другого лица по легкомыслию или с косвенным умыслом ВИЧ лицом, знавшим о наличии у него этого заболевания – наказывается лишением свободы на срок от двух до семи лет.
Действие, предусмотренное частью 2 настоящей статьи, совершенное в отношении двух или более лиц, либо заведомо несовершеннолетнего, либо с прямым умыслом, – наказывается лишением свободы на срок от пяти до тринадцати лет.

По 1 и 2-ой части данной статьи возбуждаются уголовные дела по отношению к людям, которые живут в законных браках или парах, где один из партнеров является ВИЧ-положительным, даже если он проинформировал своего партнера о ВИЧ-носительстве, даже если факт заболевания одного из членов семьи принят совершенно осознанно и добровольно.

В соответствии с требованиями ст. 157 УК РБ дискордантные браки вообще находятся под запретом и под страхом уголовной ответственности, равно как и разовые добровольные половые контакты между разными по ВИЧ-статусу людьми.

В Беларуси предположительно насчитывается более 500 дискордантных пар. Они живут и трудятся, преумножая благосостояние своей страны, являются добропорядочными налогоплательщиками. Практически в каждой семье есть дети, которые рискуют остаться в неполных семьях, без попечения родителей, по причине абсурдности и антигуманности правоприменительной практики.

В России также предусмотрена уголовная ответственность за поставление в опасность заражения ВИЧ-инфекцией по ст. 122 УК РФ. Благодаря активным действиям российского сообщества ЛЖВ, в 2003 году в статью было внесено важное примечание, на основании которого человек, поставивший партнера в опасность заражения, либо заразивший его ВИЧ-инфекцией, освобождается от уголовной ответственности, «если другое лицо, поставленное в опасность заражения, либо зараженное ВИЧ-инфекцией, было своевременно предупреждено о наличии у первого этой болезни и добровольно согласилось совершить действия, создавшие опасность заражения». Такое дополнение в ст.122 УК РФ освободило ВИЧ-положительных россиян с установленным ВИЧ-статусом от уголовного преследования.

«Белорусское сообщество ЛЖВ» считает, что статья 157 УК РБ противоречит международным и национальным правовым нормам. При существующем законодательстве ВИЧ-положительный человек не может чувствовать себя полноправным гражданином своей страны. Подобная практика по отношению к людям, живущим с ВИЧ является дискриминационной, и требует скорейшего разрешения на законодательном уровне Беларуси!

По состоянию на 1 сентября 2017 года в Беларуси зарегистрировано 18 438 ВИЧ-положительных людей.

New Zealand: Does the transmission of HIV still amount to grievous bodily harm? Interview with Jason Myers, AIDS Foundation Director, on the Court of Appeal current deliberation

Is deliberately spreading HIV grievous bodily harm?

A court’s being asked to determine whether spreading HIV still amounts to causing grievous bodily harm.

A man is appealing a grievous bodily harm conviction, after a jury found him guilty of knowingly infecting his partner with HIV.

He’s arguing the disease doesn’t amount to grievous bodily harm, because it can be easily treated.

Aids Foundation executive director Jason Myers said he isn’t surprised to see a case like this before the courts.

“Back in the eighties, early nineties it was a death sentence for many people. What you’ve essentially got in 2017 is a long-term manageable chronic disease.”

Canada: Legalities around disclosing HIV and other STIs in Canada

Have an STI? What you’re legally obligated to disclose

Jenelle Marie Pierce was 16 when she found out she had genital herpes.

“I was made to sleep on the floor at slumber parties because people thought they were going to contract my herpes from me,” the now 35-year-old from Caledonia, Mich., told Global News. “People can be cruel and really it’s just a product of a lack of information.”

Finding out you have a sexually transmitted infection (STI) may seem like the end of your love life, but according to experts, it’s not true. With the right amount of education, communication in disclosing your status and safe sex practices, you can foster a healthy intimate relationship.

In Canada, STI infections are on the rise. Between 1998 and 2015 (the most recent national data available), chlamydia — the most commonly reported STI in Canada — has risen from 39,372 to 116,499 annual cases among all ages and genders, and gonorrhea rates increased from 5,076 to 19,845 in the same time period. Infectious syphilis rates rose dramatically from 501 to 4,551 cases.

But aside from the obvious health implications these infections have, their emotional burden can be almost equally dangerous. A 2014 study published in the journalAIDS Patient Care and STDs found that STI-related stigma was associated with decreased odds of testing for STIs and decreased willingness to notify a partner of an STI among young African American men.

A similar study from 2009 that was published in Perspectives on Sexual and Reproductive Health also found that STI-related stigma was a barrier to adolescents’ screening behaviour.

“I’ve been called everything from a slut to a whore. People assume that you are a cheater, you are promiscuous … But it [affects] people from all walks of life, all backgrounds. It’s across the board. People from everywhere contract these infections.”

The key is to be open and ethical about your STI to prevent the spreading of any infections.

Legalities around disclosing

In Canada, it’s a crime not to disclose HIV or another STI before having sex that poses a “significant risk of serious bodily harm.” However, most prosecutions have been strictly related to HIV and hardly any have been related to herpes, syphilis, chlamydia or other STIs.

The legal obligation to disclose your status was established in the 1990s, but for people with HIV, the law became harsher in 2012. That’s when the Supreme Court of Canada decided that people living with HIV are obligated to tell their partner about their status before engaging in sex that poses a “realistic possibility of HIV transmission.”

In practice, what that means is if you’re going to engage in vaginal or anal sex and are HIV positive but don’t tell your partner ahead of time, you could face criminal prosecution if you don’t use a condom or if you use a condom but have a viral load higher than “low.”

According to advocates, this test has been applied inconsistently by the courts without proper regard to the science.

“The science is now established that there is effectively zero risk of transmission to a sexual partner if you have an undetectable viral load,” Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, told Global News.

There have been conflicting court decisions for people with HIV with an “undetectable” viral load. Some have been prosecuted and other’s haven’t.

At least 184 people have faced charges related to HIV non-disclosure after sex in Canada, one of the highest rates of HIV criminalization in the world, Elliott added. Only a few prosecutions have been related to herpes and syphilis. There haven’t been any prosecutions for non-disclosure of chlamydia, gonorrhea or HPV.

Public health

Besides the legal obligations laid out by the Canadian criminal code, some experts believe it’s important to be transparent about your STI in the name of public health.

“You want to be upfront, you want to tell the person, and you also want to reassure them that you will be performing safe and intimate contact,” Jason Tetro, a Canadian microbiologist, told Global News.

Tetro, who used to work in HIV research and policy, says STIs are becoming more and more resistant to antibiotics, which means they’ll be even more of a headache to treat — so, why not be open from the beginning, before any sexual contact?

“If you happen to be exposed you may be facing a very long and difficult antibiotic treatment before you’re clean, so the fact is, if we all work together to make sure we are not spreading these bugs, it’s going to improve public health overall.”

Having the awkward conversation

There are two approaches to talking to your partner, according to Pierce.

The first is being completely open about your STI status from the get-go. For those who are comfortable laying it out on the table, they can add their status to their dating profiles. The reason behind this approach, explained Pierce, is that you have a lower chance of getting your feelings hurt.

The second approach is more discreet. Just like any relationship that grows organically, some private matters like revealing your STI, are not discussed until trust is gained.

Of course, you need to disclose before there is any sexual contact.

“The idea behind that is that nobody actually puts everything out there on the table when they start dating. That’s kind of the whole dating process, it’s learning about somebody as you go,” Pierce said.

“Nobody says ‘I have horrible debt and my dad is an alcoholic and my brother is in prison’… [it’s a] myriad of things that might be a deal breaker for somebody.”

It really depends on who you are, there is no right or wrong way to do it, she added.

Once you’ve figured out the timing, you then need to figure out the method.

Avoid finding yourself in the heat of the moment. Find a private and quiet place to have the conversation, and approach it in a practical way, Pierce says. Lay out the facts in a neutral and non-emotional manner, because you don’t want to influence their response.

“It’s OK to acknowledge that it might be awkward or weird, but be as open and clear-cut as you can.”

Once you’ve disclosed your status and laid out the options for safe and protected sex, you have to let them decide if they want to take the relationship to the next level. Pierce’s biggest piece of advice? Don’t take the person’s response — positive or negative — personally.

Pierce, who has had a successful career and has had many healthy relationships, says you shouldn’t get discouraged. It’s better to be honest and straightforward, and foster a partnership with someone who will work with you to keep the STI contained to one person.

Published in Global News on October 16, 2017

US: "Undetectable = Uninfectious" isn't reflected in HIV criminalisation laws in several U.S. states

Undetectable = Uninfectious. So why are people with HIV still being criminalised for having sex

By now, most people in the HIV community know that having an undetectable viral load means being uninfectious. It’s just science! But this information isn’t reflected in laws in several U.S. states, dating back to the 1980s and 1990s, that criminalize people with HIV for having sex without telling partners their HIV status — even if they use a condom on top of being undetectable.

Thankfully, there’s a movement of HIV-positive people underway that’s slowly getting states to strip back their outdated criminalization laws. It’s called the Sero Project — and at the 2017 AIDSWatch conference in Washington, D.C., we talked with folks from all over the country who are part of it.

“There’s still criminalization that impacts so many people — and it’s driven by fear,” says Paul Yabor, a longtime Philadelphia-based HIV activist (who sadly died earlier this year after this video was made).

“I’ve experienced this,” says Ken Pinkela, Sero’s director of communications and military policy, who was imprisoned and dishonorably discharged from the U.S. Army for having sex without disclosing his status. “Wrongful accusals and allegations that didn’t exist.”

Says Gina Brown, a community organizer for the Southern AIDS Coalition: “The thing that bothers me the most is that [these laws] keep people from knowing their status. So, if I know that I can go to jail because I have sex with someone whether I use a condom or not — you know, I don’t want to know! And I do community work in New Orleans, and I hear that all the time.” She also decries “the fact that no other sexually transmitted virus is criminalized.”

Says Derrick Mapp, HIV health counselor and national trainer at San Francisco’s The Shanti Project: “Me being HIV-positive — I’m not a criminal. It’s something that happens. Spitting, scratching and fighting — these things don’t transmit HIV.” Yet, HIV-positive folks have often ended up doing years in jail for exactly those actions.

Remember Eric Leonardos from the TV show Finding Prince Charming? He’s part of the decriminalization fight as well: “Martin Luther King Jr. says that an unjust law is no law at all,” he declares. “And these are unjust laws and they have no place.”

Watch our video (edited by Michael Faber) and hear them in their own words. Then consider reaching out to Sero and getting involved in the fight. They’ve already had victories in California, Colorado and Iowa. Maybe, with your help, your state could be next!

Tim Murphy has been living with HIV since 2000 and writing about HIV activism, science and treatment since 1994. He writes for and has been a staffer at POZ, and writes for the New York Times, New York Magazine, Out Magazine, The Advocate, Details and many other publications. He is also the author of the NYC AIDS-era novel Christodora.

Published in the Body on Oct 10, 2017

Namibia: Michaela Clayton, director of ARASA, talks about HIV criminalisation in a interview with The Namibian

IT is very difficult to prove that someone infected another person knowingly with HIV and to then prosecute them, said Michaela Clayton, director of the AIDS and Rights Alliance for Southern Africa, last week.

Clayton said this in an exclusive interview with The Namibian on the issue of criminalising intentional HIV infection and to prosecute those believed to have transmitted the disease maliciously.

“It is very difficult to prove who the source of the infection is, because you will have to exclude every other sexual contact and every other potential risk that the person might have been exposed to in terms of HIV infections,” she said.

“You will then have to prove that the person knew that they were infected with HIV at the time of the intercourse, and that they failed to disclose that to their partner,” said Clayton, adding that many sexual offence cases were thrown out of court because “there would be no one to witness and there is no physical evidence”.

Criminalisation of intentional HIV transmission has become a concern in the management of the disease, with many countries adopting laws that allow for prosecuting those who knowingly spread the virus.

A 2008 Arasa study found that criminalising HIV did not stop the spread of the virus, but that criminalising the spread of HIV and prosecuting those implicated only increases stigma.

Clayton said the focus of lawmakers should be on how to use the law “to respond to the spread of HIV and effectively deal with the epidemic”.

Recently, the Confidénte newspaper reported about a woman who demanded money from her partner for allegedly knowingly infecting her with ‘a chronic disease’.

Pictures of the two individuals were widely shared on social media platforms, and many critics argued that intentional infection should not be criminalised as it would increase stigma and could lead to suicides and mental problems. Clayton said although it was difficult to prove the source of the infection, Namibia has laws that can be used to get justice for the person claiming to have been intentionally infected with HIV, such as “assault with intent to do grievous bodily harm”.

Clayton said the police could be approached and a case opened, and the accused person could potentially be prosecuted for assault, but then the accuser would have to prove that they had not had sexual contact with any other person.

She said a person would also not be found guilty if they had been on anti-retroviral therapy (ART), “which at times suppresses viral load and makes it impossible to infect another person”.

“If you are on ARV and you adhere to your treatment, your viral load can go down to undetectable on a test. When your viral load is undetectable, it is almost impossible to infect another person,” she said.

CRIMINALISATION AROUND THE WORLD

A report published last year indicates that 72 countries have adopted laws that criminalise intentional HIV infection. In most countries, HIV infection is listed as the only chronic disease subject to criminalisation.

The report further states that about 61 countries have recorded prosecutions for HIV “non-disclosure, potential or perceived exposure and/or unintentional transmission”.

According to Aljazeera reports from last year, the US has laws that allow for HIV positive people to be criminally charged for spitting on or biting someone.

Aljazeera also reported that an HIV positive person could end up serving a lengthy prison sentence for not disclosing their status before having sex or sharing needles.

According to the report, the criminalising of HIV infection has become concerning in Africa.

“The rise of reported prosecutions in Africa during this period [2016] (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on the continent, is especially alarming,” stated the report.

US: Missouri’s laws should encourage people to seek testing, not motivate them to avoid it

Laws motivate many to avoid testing, treatment for HIV

I agree with the sentiments expressed by St. Charles County Prosecuting Attorney Tim Lohmar when interviewed following the conviction this month of former Lindenwood University wrestler Michael Johnson. Missouri’s HIV-specific criminal codes are dated and medically inaccurate and should be changed to reflect current medical knowledge.

Missouri law makes sex by an HIV-positive person subject to criminal prosecution unless the person living with HIV can prove he disclosed his HIV status. Since disclosure is very difficult to prove, many times coming down to he-said/she-said, such laws penalize knowing your status.

I’m in no way downplaying the seriousness of knowing your status and not disclosing it in a relationship. However, our laws currently motivate many to avoid being tested and treated. That is clearly not in the best interest of health in our communities and could potentially harm many of our families.

I believe Missouri can do more to reduce the rate of transmitted diseases. That’s why I sponsored House Bill 88, a needle exchange bill, in 2017. Needle exchange participants are five times more likely to enter an addiction treatment program. That’s huge.

Needle exchanges have proven that they do not increase drug use and they help prevent serious disease outbreaks caused by needle sharing. They also protect non-drug users with whom the addicted person may be in a relationship. While governor of Indiana, Vice President Mike Pence signed a needle exchange bill to respond to their outbreak of hepatitis C and HIV. Missouri can and should do this as well.

We need to modernize Missouri’s laws that encourage people to not seek diagnosis and treatment. I look forward to working on this again in the upcoming legislative session and know many others in the Legislature see the need as well.

Published in St Louis Post Dispatch on Sept 29, 2017

US: CDC acknowledgment that Undetectable = Untransmittable is likely to have a huge impact on legal fights over HIV disclosure laws

CDC joins consensus on HIV that ‘Undetectable = Untransmittable’

The historic announcement has significant implications for HIV advocacy efforts.

In a statement acknowledging National Gay Men’s HIV/AIDS Awareness Day Wednesday, the Centers for Disease Control and Prevention (CDC) embraced a scientific consensus with profound impacts. “When [antiretroviral therapy] results in viral suppression, defined as less than 200 copies/ml or undetectable levels, it prevents sexual HIV transmission,” the statement said.

It was the first time the agency acknowledged what several massive studies have consistently found: when an individual’s HIV viral count is undetectable, it is virtually impossible for them to transmit HIV to a sexual partner. “Across three different studies, including thousands of couples and many thousand acts of sex without a condom or pre-exposure prophylaxis (PrEP), no HIV transmissions to an HIV-negative partner were observed when the HIV-positive person was virally suppressed,” the statement continued. “This means that people who take ART daily as prescribed and achieve and maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV-negative partner.”

Hundreds of experts and organizations had already signed onto a massive “Undetectable = Untransmittable” (U=U) consensus statement organized by the Prevention Access Campaign. Bruce Richman, executive director of the campaign, responded to the news by telling HIV Plus Magazine, “This is the moment we have been waiting for!”

The implications of the CDC acknowledging that there is “effectively no risk” are massive in terms of both politics and policy. As HIV Plus Magazine notes, nearly half of all HIV-positive people in the U.S. have brought their viral load to an undetectable level through treatment, so it’s significant to recognize that they are not contributing to the epidemic.

As the CDC continues to roll out messaging and information, it will likely not only impact prevention campaigns, but also legal fights over HIV disclosure laws. There are 38 states that have some version of a law that criminalizes perceived or potential exposure or transmission of HIV, and another six where individuals with HIV have been prosecuted under broader statutes. These laws — some even three decades old — rely on antiquated science and punish people with HIV for not disclosing their status to sexual partners even when they pose no risk of transmission.

Though passed with the intention of trying to protect people from HIV, their enforcement actually makes it more difficult to fight the epidemic. Studies have shown that the laws discourage people from getting tested (so as to avoid culpability), which means it’s more likely that people don’t know they’re positive and aren’t in treatment. The laws simultaneously create a false sense of security, such that men who believe their state has such a law are actually slightly more likely to engage in riskier sexual behaviors like condomless sex. Instead of protecting people from HIV, these laws are actually making it far easier for HIV to spread while simultaneously reinforcing stigma against people who are HIV-positive.

The CDC’s embrace of the consensus that “undetectable equals untransmittable” could be an effective buffer for the enforcement of these laws, if not the basis for challenging them directly. In 2014, the Iowa Supreme Court issued a landmark ruling overturning a conviction under that state’s HIV criminalization law specifically because of the science showing that the individual could not have transmitted the virus because of his undetectable viral load. That same year, Iowa also became one of the first states to start to dismantle its HIV criminalization laws, which had previously been some of the harshest in the country.

Overcoming these stigmatizing laws and spreading knowledge about the research on undetectable viral loads is essential to the ongoing fight against HIV. As the CDC statement notes, men who have sex with men are still “severely affected by HIV,” representing two-thirds of all new diagnoses in the United States. Some studies have indicated that more transmissions are happening from people who have been diagnosed but who have not entered treatment. The case could not be stronger that getting them into treatment will, in most cases, halt their transmission of the virus.

Ideally, the CDC will build off this endorsement of the science and do more to advocate for that treatment. Unfortunately, President Trump has proposed massive cuts to the funding that helps supply 11.5 million people worldwide with antiretroviral drugs, and the health care policies he supports also make it harder for people with HIV to afford the care they need. It’s a good sign that the government has caught up with the science, but now it will be essential for officials to fund the policies that science supports.

Published in Think Progress on September 28, 2017

US: Update on HIV criminalisation laws in the US

HIV Criminalization update: Some U.S. Nondisclosure Laws Advance, While Others Recede

By Victoria Law

From TheBody.com

Table of Contents

First, the good:

California Law Modernizing HIV Criminalization Awaits Governor’s Signature

On Sept. 11, 2017, California lawmakers passed SB 239. As reported previously, the bill reduces HIV transmission from a felony to a misdemeanor. This means that people who are convicted will face no more than six months in jail rather than years in prison. The bill also eliminates several HIV-specific criminal laws that carry severe penalties, even for activities that do not risk exposure to HIV. SB 239 now awaits Governor Brown’s signature, the final step before becoming law.

For Nestor Rogel, a California activist living with HIV, the bill’s passage brings a sense of freedom. Rogel, who was born HIV positive, has always had to take numerous precautions to document his disclosure in order to avoid potential prosecution. Not only does the bill bring a sense of personal relief, but he’s hoping for broader changes in societal attitudes. “Decriminalization is a good step to destigmatization,” he told TheBody.com. “California is used as a model for so many things. I’m hoping that other states will take California as a model in this, as well.”

Idaho Statewide Coalition Created to Modernize HIV Criminalization Laws

In 2013, fewer than 30 people were diagnosed in Idaho, ranking the state 45th in the nation for HIV cases. That’s fewer than the number of state HIV criminalization prosecutions since its nondisclosure laws were enacted in 1988. It should be noted that, in Idaho, actual transmission is not required for prosecution.

Kerry Thomas was the first person ever prosecuted under these laws; in 1999, Thomas was convicted and sentenced to 15 years in prison for nondisclosure. In 2009, Thomas was prosecuted and again pled guilty to nondisclosure. This time, the judge sentenced him to 30 years. Thomas is not eligible for parole until at least March 2029.

In 2016, after attending the HIV Is Not a Crime conference, Kevin Lish of All Under One Roof LGBT Advocates of Southern Idaho began pulling together a statewide coalition to modernize laws and address the harsh penalties in the state’s HIV-specific codes. “We need laws that encourage people to be tested, know their status and have honest conversations with potential partners so that we can start curbing the number of new cases in Idaho,” he told A&U Magazine.

Now, the bad: Massachusetts Bill Would Criminalize Nondisclosure

Massachusetts Bill Would Criminalize Nondisclosure

Ten Massachusetts lawmakers are sponsoring H2295, which criminalizes HIV nondisclosure before sex or sharing needles. It also further criminalizes engaging in sex work (which is already a crime punishable by prison sentence) if the person is HIV positive, as well as donating or selling blood, organs, tissue and other bodily fluids or body parts. The proposed penalty would be a minimum of five years in prison (and a maximum of 15 years).

The bill has remained in the Joint Committee on the Judiciary since its introduction in January.

Maryland Adopts Law Authorizing Court-Ordered HIV and HCV Testing

In May, Governor Larry Hogan signed HB 1375 into law. The law authorizes judges to issue “emergency orders” for HIV and hepatitis C testing if the person is believed to have “caused exposure to a victim.” Victims include law enforcement officers, firefighters, emergency medical technicians (EMT), forensic scientists and health care workers collecting medical evidence of sexual assault. The law authorizes the test to be conducted via oral swab.

Tennessee Adopts Law Authorizing HIV, Hepatitis Testing of Arrested Individuals

May seems to have been a bad month for HIV criminalization. Tennessee also enacted a law requiring HIV and hepatitis testing. HB 1283 requires HIV and hepatitis testing for any arrested person if requested by a law enforcement officer, firefighter or EMT exposed to blood or bodily fluids “in any manner that presents a significant risk of transmission.” It also allows any employee of the state’s bureau of investigation’s crime laboratories who might have been exposed to bodily fluids to request such a test. Unlike the Maryland law, HB 1283 requires a blood test rather than an oral swab.

Maggi Duncan, executive director of the Tennessee Association of Police Chiefs helped draft the legislation. “We’re talking about a criminal,” she reportedly said, ignoring the fact that arrests do not automatically mean convictions or guilt. “In the course of being arrested, they could have possibly exposed a first responder.”

Published in the Body on September 21, 2017