Uganda: Reporter looks at the role of the media in driving stigma surrounding HIV criminalisation

Is the media fanning stigmatisation in the HIV/AIDS fight?

KAMPALA – In the third and last part of the series to shine a light on the impact of stigimatisation in the fight against HIV/Aids, PML Daily’s Senior Staff Writer David Mafabi looks at how the media has unknowingly fanned the vice of stigimatisation.

Ms Rosemary Namubiru a nurse is today paranoid about her safety and has stopped taking anything for granted.

She enters her house at 7.00pm and never opens for strangers ever since she was convicted and sent to jail allegedly for infecting a child with HIV/ Aids.

This has been so since 2014, when a Ugandan court sentenced her to three years in jail for negligence over the potential infection of a two-year-old boy with HIV.

Ms Namubiru, who is HIV-positive, was reportedly criminally negligent by using an intravenous needle, that she had accidentally pricked her finger with, on the child, the court ruled.

Many journalists were awash with condemnation to the level that many newspapers dubbed her as a “killer nurse”, something that stigmatises her up to now.

Ms Namubiru is not alone in this condemnation and criminalization, there are many people living around the World who have gone through this kind of criminalization especially when the laws don’t add up.

In 2018, Ms Sylvia Komuhangi was also charged with committing a “negligent act” likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda for reportedly infecting a baby with HIV/Aids.

The Magistrates Court sentenced her to two years in prison; six months after her ordeal started even when the baby was tested and found to be HIV negative, Ms Komuhangi was kept in jail.

One newspaper article labeled Komuhangi as a “monster” at the time of her arrest. Another newspaper ran a story under the headline; “Woman gets two year jail term for infecting baby with HIV blood” which was so stigmatising.

Ms Komuhangi would possibly still be languishing in jail if her case had not caught the attention of lawyers from the NGO, Uganda Network on Law, Ethics and HIV/AIDS (UGANET) who appealed and the case was later overturned.

Members of UGANET, UNASO and other NGOs engaged in the national response to HIV and AIDS were unhappy with the way journalists covered Ms Namubiru’s arrest.

The general feeling was that the media led the public trial and conviction of Namubiru and Ms Komuhangi.

Actually many NGOs working to prevent new HIV infections and scale up access to treatment and related health services for people with HIV described the media as suffering from attention-deficit syndrome.

The media has the potential to influence public opinion and attitudes about HIV/AIDS, including attitudes towards people living with HIV/AIDS.

According to Mr Ben Bella Illakut, a veteran journalist, an effective media can raise the awareness level and can also bring about sustainable behavior change thereby reducing vulnerability to the virus.

He explained that the media should work as a facilitator for removing stigma and discrimination attached with the disease: HIV/AIDS afflicted individuals besides the anatomical discomforts undergo the mental suffering of stigma and discrimination at the hands of the society.

“A number of media campaigns should focus on the need to overcome prejudice and encourage solidarity with people infected/affected by virus,” said Mr Ben Bella.

Reports from veteran journalists also indicate that the media too have the capability to bring about transformation in the thinking pattern of the society in respect of PLWAHA and thus sowing the seeds of attitudinal changes.

They add that the media besides creating awareness and providing knowledge base about HIV/AIDS is also to remove the misconceptions about the transmission of the virus and the social ostracism of affected persons.

Mr Charles Odoi, the TASO manager, Mbale says that when writing about PLWHA, you ought to mind so much about how you address an issue as complex as HIV stigma and that there are many small things you can do that will make a big difference

He revealed that the media should also know how talk about HIV to avoid stigma, the words they use and avoid use of words like ‘Monster nurse’

“When talking about HIV, certain words and language may have a negative meaning for people at high risk for HIV or those who have HIV. The media can do their part to stop HIV stigma by being intentional and thoughtful when choosing our words, and choosing to use supportive—rather than stigmatizing— language when talking about HIV,” said Mr Odoi.

The stories written about these two PLWHA reflect a common pattern of how the media cover HIV; the story is highly unusual with a strong element of condemnation, stigmatisation and criminalisation.

Although it is clear that Ms Namubiru was not charged under the HIV and AIDS Prevention and Control Act 2014, some provisions of the law are vague and likely to cause further arrests, stigmatisation and criminalisation of people living with HIV/Aids.

Reports from WHO indicate that laws criminalizing HIV transmission and exposure exist in many developed and developing countries.

It is clear that by 2005, at least 36 European countries had either HIV-specific criminal laws or had used existing laws on bodily harm to prosecute people living with HIV and that by 2009, 15 African countries had enacted HIV-specific criminal laws, and this number increased to at least 25 countries by 2011.

While the HIV/AIDS pandemic has been inflicting a devastating impact on various sectors of life, one of the major obstacles to its prevention is social stigma.

Stigma is defined as an attribute that is deeply discrediting which links a person to undesirable characteristics, thus reducing that individual’s status in the eyes of society.

The stigma and discrimination associated with HIV/AIDS has been conceptualized at two levels: societal and individual. At the societal or cultural level, it manifests in discriminatory laws, policies, popular discourse and social conditions of people living with HIV/AIDS.

At the individual level, it takes the form of behaviours, thoughts and feelings that express the prejudice against persons infected with HIV. The primary targets of HIV/AIDS stigma are individuals with HIV and those perceived to be infected.

Ms Dora Musinguzi, the executive director at Uganda Network on Law, Ethics and HIV/AIDS (UGANET) said even when the media condemned and criminalized Ms Namubiru, if used effectively, the media can play an important role in lessening fear and stigma about HIV – the biggest obstacles to seeking information and treatment about the disease.

“It is unfortunate that the  of this important health issue remained patchy and sensationalist and there is need to discuss better ways for which the media can report about stigma, the law and ethics in HIV/Aids,” said Ms Musinguzi.

She says in keeping with this exhortation, journalists’ reports need to go beyond simplistic views of the global HIV epidemic as merely a crisis in public health and reflections on the complex social, cultural and economic determinants and consequences of the epidemic and the required complexity.

She explained that on a positive note, analysis of HIV reporting in Uganda and world over reveal that the language and tone of HIV stories from the mid-1990s onwards show greater sensitivity to people living with HIV.

Although Namubiru, a paediatric nurse with 30 years’ experience, had maintained her innocence during the trial, handing down the sentence in a packed courtroom, chief magistrate Olive Kazaarwe said Namubiru lacked remorse for her actions.

On the revised charge of criminal negligence — the nurse attracted sympathy and emerged as the apparent victim of rampant stigma in a country that until recently was being praised as a global leader in fighting AIDS and promoting an open attitude toward the disease.

The International activists claim Ms Namubiru and Ms Komuhangi were victims of discrimination because she is HIV positive, and said that their trial was unwarranted.

Several HIV/Aids activists in Uganda said the nurse had not acted maliciously, and her life had been ruined and that the public anger towards her showed the stigma people with HIV/Aids still face.

Ms Namubiru was released after one year of her sentence after the child was found HIV/Aids negative but reportedly got threats to harm her from her neighbours and had to travel to the countryside and stay away from her home in Kampala for safety.

The AIDS-Free World, in a statement said both of these cases illustrate “the failure of both the media and the prosecutor’s office to act responsibly” and could set “a dangerous precedent and could have grave consequences for the fundamental rights of people living with HIV and AIDS in Uganda and beyond,” said AIDS-Free World, in a statement.

The Global Commission on HIV and the Law said the nurse’s “life has been ruined. No matter the outcome of the trial, the panorama of ferociously intemperate accusation will haunt her and her family forever.”

Maj. Rubaramira Ruranga, the director of Health and Community Outreach Campaign at Operation Wealth Creation, one of few people who have publicly revealed they have HIV in a bid to discourage stigma, said the case against the nurse proves that “stigma still rages on” in Uganda.

“I am sure she felt isolated and dejected because of the way the media reported about her, calling her all types of names,” he said. “She was hurt and injured beyond repair.”

Mr Joshua Wamboga, a long-standing HIV/AIDS and Health-care advocate and former executive director at Uganda Network of Aids Service Organisations [UNASO] says some of the contentious provisions of the law include Article 18 (2) (d) where the results of an HIV test may be disclosed or released to “a medical practitioner or other qualified officer who is directly involved in the treatment or counseling of that person, where the HIV status is clinically relevant.”

He adds that this is “too wide a window” for the medical officer to operate in and that the other provisions of the law are those that criminalise “attempted transmission of HIV” and “intentional transmission of HIV”.

“The argument against this provision is that it interferes with medical ethics and the doctor patient relationship and criminalisation of HIV positive persons fuels discrimination as it happened in the case of Namubiru, Komuhangi,” said Mr Wamboga.

The executive director of National Community of Women living with HIV/Aids [NACWOLA], Ms Florence Buluba said People living with HIV infection and AIDS should have the same basic rights and responsibilities as those which apply to all citizens of the country.

She revealed that they are not allowed to be separated, isolated or quarantined in prisons, schools, hospitals or anywhere else because of their HIV-positive status.

She added that PLWHA are entitled to make their own decisions about matters that affect their marriage and having children and counseling about the consequences of their decisions should be provided.

“And no person may be tested for HIV infection without his or her consent beforehand and PLWHA have rights; a right of access to healthcare including reproductive health, a right to sufficient food and water; and a right to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance,” said Ms Buluba.

Although Uganda is one of the 60 countries that criminalise the intentional transmission of HIV [The HIV and AIDS Prevention and Control Act 2014], many a NGO says they are worrying not because of the deadly virus but due to the HIV and AIDS Prevention and Control law.

Human Rights Watch, HEALTH, Global advocacy project and UGANET say that The HIV Prevention and Control Act passed by the Ugandan parliament on May 13, 2014, is discriminatory and will impede the fight against AIDS.

They add that the new law in Uganda criminalizes HIV/AIDS Transmission, requires Pregnant Women to Undergo HIV Testing, the “willful and intentional” transmission of HIV to another person is an offense that is punishable on conviction with up to a ten-year prison term and a fine of up to UGX4. 8 million (about US$1,846).

Activists want the Constitutional Court to speed up Petition Number 24 of 2016 where the community of HIV activists challenged the HIV and AIDS Prevention and Control Act 2014.

Activists say the current HIV law is regressive and should be struck down and argue that it criminalises transmission which intensifies Stigmatisation and discrimination adding that the mandatory testing, provided in the law, is also discriminative.

The PJP Update – December 2019

The December 2019 edition of the Positive Justice Project newsletter is available here.

Dominican Republic: National Council for HIV asks for a review of HIV laws & drug laws, including HIV criminalisation provisions

Conavihsida asks to modify the HIV-AIDS law in the country

Source: Diario Libre, December 12, 2019 – Google translation, scroll down for article in Spanish

Conavihsida asks to modify the HIV-AIDS law in the country

In the country there are 12,000 people who have VHI and do not know it

The director of the National Council for HIV (Conavihsida), Víctor Terrero, asked the authorities to review and adapt laws and policies that affect drug users in HIV prevention and care programs.

It proposed the modification of Laws as 135-11 in its articles 50.78 and 79, as well as the Drug Law 50-88. He argued that sometimes a mother is sentenced to eight and ten years in prison for occupying a small portion of prohibited drugs and forgets that this woman has three and four small children to care for and maintain and that this type of case should be considered In the law.

“We are raising our voice in favor of injecting drug users living with HIV status and who are 22% more likely to get the virus,” he said.

He said that according to UNAIDS data these users often share needles, syringes and other supplies for injection, with which they contract the disease. He said that type of restrictive policy has failed elsewhere. He called to change the restrictive policy that is currently applied by a water utility so that drug use is not criminalized and is seen as a public health problem.

Third, the policies should focus on working with the person to avoid consumption, but also the spread of HIV through the use of syringes and other instruments. He recalled that there are about 12,000 people in the country who have HIV and do not know it.

By participating in the conference on “Drug, HIV and Human Rights Policies,” Terrero said that the most vulnerable population to contract HIV are the LGBTI population, Haitian migrants, low-school children in the bateyes who are the ones They provide the most new cases.

The director of Conavihsida reported that more than 79,750 people live with HIV in the country, of which they work with almost 69,000 for a missing 10,000. Retrovirals are supplied to all those identified, for which the State invested 17 million dollars this year.

On his side, Mauricio Ramírez Villegas, coordinator of the United Nations System in the Dominican Republic also advocated comprehensive policies on the issue of drugs and HIV.

He said that public policies must be more humanized to respond effectively to the fight against drugs and said there is scientific evidence from the United Nations, specialized agencies that demonstrate that a more humanized public policy is more effective than restrictive and criminal They deepen drug problems.

The items in dispute

Article 50.- Mandatory evidence . The tests for the detection of HIV or its antibodies are mandatory when:

1) It is required for the purpose of evidence in a criminal proceeding, upon order of the competent judicial authority; However, the accused refuses to carry out the test for detection

of HIV or its antibodies.

2) It involves donating blood, blood products, breast milk, semen, organs and tissues.

3) It is a pregnant woman, as part of the examinations prescribed by the attending physician, in order to ensure the best interest of the unborn child.

Article 78.- Obligation to inform the sexual partner. Any person who, knowing his HIV seropositivity, does not communicate his serological condition to the person with whom he is going to

Having sex will be punishable by imprisonment for two (2) to five (5) years.

Article 79.- Transmission of HIV intentionally. Any person who, by any means, transmits HIV intentionally to another, will be punished with imprisonment for twenty (20) years.

Conavihsida pide modificar ley de VIH-SIDA en el país

  • En el país hay 12,000 personas que tienen VHI y no lo saben

El director del Consejo Nacional para el VIH(Conavihsida), Víctor Terrero, solicitó a las autoridades revisar y adaptar legislaciones y políticas que afectan a los usuarios de drogas en los programas de prevención y atención del VIH.

Planteó la modificación de Leyes como 135-11 en sus artículos 50,78 y 79, así como la Ley de Drogas 50-88. Sostuvo que en ocasiones se condena a una madre a ocho y diez años de prisión por ocuparle una pequeña porción de droga prohibida y se olvida de que esa mujer tiene tres y cuatro hijos pequeños que cuidar y mantener y que ese tipo de caso se debe contemplar en la ley.

“Estamos levantando nuestra voz en favor de los usuarios de drogas inyectables que viven con la condición de VIH y quienes tienen un 22% más de posibilidades de contraer el virus”, sostuvo.

Manifestó que de acuerdo con datos ONUSIDA esos usuarios muchas veces comparten agujas, jeringas y otros suministros para inyección, con los cuales contraen la enfermedad. Aseguró que ese tipo de política restrictiva ha fracasado en otros lugares. Llamó a cambiar la política restrictiva que se aplica actualmente por una sanitaria para que no se siga criminalizando el uso de drogas y se vea como un problema de salud pública.

Terrero que las políticas deben enfocarse en trabajar con la persona para evitar el consumo, pero además, el contagio de VIH a través de uso de jeringas y otros instrumentos. Recordó que en el país hay unas 12,000 personas que tienen VIH y no lo saben.

Al participar en la conferencia sobre “Políticas de Drogas, el VIH y los Derechos Humanos”, Terrero señaló que la población más vulnerable para contraer VIH son la población LGBTI, los migrantes haitianos, los niños de baja escolaridad en los bateyes que son los que aportan la mayor cantidad de los nuevos casos.

El director de Conavihsida informó que más de 79,750 personas viven con VIH en el país, de los cuales trabajan con casi 69,000 para un faltante de 10,000. A todos los identificados se les suministran los retrovirales, para lo cual el Estado invirtió este año 17 millones de dólares.

De su lado, Mauricio Ramírez Villegas, coordinador del Sistema de Naciones Unidas en República Dominicana también abogó por política integrales en el tema de las drogas y el VIH.

Dijo que las políticas públicas deben ser más humanizadas para responder con efectividad a la lucha contra las drogas y aseguró que hay evidencias científicas por parte de Naciones Unidas, organismos especializados que demuestran que una política pública más humanizada es más efectiva que las restrictiva y criminales que profundizan los problemas de las drogas.

Los artículos en disputa

Artículo 50.- Pruebas obligatorias. La realización de las pruebas para la detección del VIH o de sus anticuerpos, son obligatorias cuando:

1) Se requiera para fines de prueba en un proceso penal, previa orden de la autoridad judicial competente; no obstante el imputado se rehúse a la realización de la prueba para la detección del VIH o de sus anticuerpos.

2) Se trate de donación de sangre, hemoderivados, leche materna, semen, órganos y tejidos.

3) Se trate de una mujer embarazada, como parte de los exámenes prescritos por el médico tratante, con la finalidad de asegurar el interés superior de la criatura por nacer.

Artículo 78.- Obligación de informar a la pareja sexual. Toda persona que, conociendo su seropositividad al VIH, no comunique su condición serológica a la persona con la que vaya asostener relaciones sexuales, será castigada con la pena de reclusión de dos (2) a cinco (5) años.

Artículo 79.- Transmisión del VIH de manera intencional. Toda persona que, por cualquier medio, transmita el VIH de manera intencional a otra, será castigada con pena de reclusión de veinte (20) años.

US: Bipartisan group of Missouri Lawmakers working to change HIV Laws that date from the 1980s

Missouri Lawmakers Want To Bring HIV Laws To The 21st Century

A bipartisan group of lawmakers is working to change current Missouri law on HIV that they say hasn’t been updated since the 1980s. 

Rep. Holly Rehder, R-Sikeston, said current laws now actually discourage people from being tested. She said if someone knowingly exposes their partner to HIV and they contract the disease, it’s a class A felony. This is the most serious of felony crimes which include murder, rape and forcible kidnapping. 

“If you don’t know your status, there’s no way in Missouri you can be charged with that class A felony,” Rehder said Wednesday in announcing the proposed legislative change. “Not knowing your status in Missouri, unfortunately, keeps people from having that concern, which, in turn, keeps people from getting tested.” 

In comparison, driving intoxicated and causing someone’s death is a class C felony. 

Rehder’s legislation would reduce knowingly exposing someone to HIV who then contracts it to a class C felony. Her bill also reduces the penalty of knowingly exposing someone to the disease who does not contract it from a class B felony to a class D felony. 

Rep. Tracy McCreery, D-St. Louis, filed separate legislation that completely eliminates felony charges and reduces all transmission offenses to misdemeanors. 

“That’s based on input that we received from experts around the country,” she said. “It puts it more in line with other kinds of disease transmission, as well.” 

Jeanette Mott Oxford, executive director with Empower Missouri, said it gets it out of the area of disclosure altogether. Both of these laws focus on intent. 

“Were you intending to transmit HIV? Because right now our law says condom use is no defense,” she said. “So you could be trying not to transmit HIV and still be charged with a crime in Missouri.”

There were roughly 13,000 people living with HIV in Missouri in 2018, according to the Department of Health and Human Services. Missouri has also been categorized as one of seven states in the U.S. with a rural HIV epidemic. However, with adequate treatment, those who are HIV-positive can avoid getting AIDS. Medication can also suppress the virus and reduce the risk of transmitting it to another person. 

“HIV is no longer a death sentence if you’re being treated,” said Rehder. 

Rehder’s bill and McCreery’s bill have been pre-filed, but full language has not been made available yet. Sen. Shalonn “Kiki” Curls, D-Kansas City, plans to file similar legislation in the Senate next week. 

On another health issue, Rehder will again attempt to pass a statewide prescription drug monitoring program. 

Many states across the nation experienced a decrease in drug overdose deaths in 2018, according to the Centers for Disease Control and Prevention. But Missouri saw a 12% increase. 

Data from the Missouri Department of Health and Senior Services shows that one out of every 65 deaths in Missouri in 2017 was caused by opioid overdose. Also, Missouri is also the only state without a PDMP.

Rehder said she believes she has the support to get it done this year. Approaching her final year in the House, she said it’s incredibly important to get it done this legislative session. 

“I was raised on welfare, single mom, multiple stepdads, multiple mom’s boyfriends in the home; one of my stepdads was a dealer,” she said. “I had quite a bit of a different lifestyle than many of my colleagues. You know, I had to quit school at 15 to help take care of my family and had my first baby at 16. I’ve seen some things that maybe some others haven’t.”

Rehder said she feels a personal responsibility to explain how policies affect the people that grew up in “her part of the community.”

Human rights are key to ending the epidemics

OPINION: End epidemics by breaking down human rights barriers to health

Access to healthcare is a right, not a luxury. We have an historic opportunity to rid the world of HIV, TB and malaria. Let’s seize that opportunity.

Peter Sands is the executive director of The Global Fund to Fight AIDS, Tuberculosis and Malaria and Antonio Zappulla is the chief executive of the Thomson Reuters Foundation.

Among the many challenges involved in improving health services, one is both pervasive and largely hidden. Human rights-related barriers to health, some explicit, others expressed in behaviours and norms, prevent millions of people from access to lifesaving prevention and treatment.

Think of a girl who is forced to get married at 15 and needs her husband’s permission to undergo an HIV test, or to get a bed net to protect herself and her children from malaria. Or a gay man who is beaten up by police and charged with sodomy when he secretly visits the home of a community health care worker to obtain condoms. Or a group of miners working 14 hours a day deep in a mine without ventilation and health insurance despite widespread tuberculosis.

Money alone cannot ensure and protect basic human rights for people most at risk from infectious diseases.

If the media stokes the appetite for a witch hunt against LGBT+ people or condones violence against women, how will society behave? If laws allow abuse and discrimination to be justified, how can social justice be achieved?

Stigma, ignorance, prejudice and lack of opportunities are some of the toughest road blocks to remove. But the combined power of the law and the media can make a difference.

Fair and balanced news coverage is critical in informing public opinion. Respect for human rights is essential to ensure access to health services. Combined, they become the key to unlocking systemic change.

In sub-Saharan Africa, women and girls are twice as likely to be HIV-positive compared to young men. Contributing factors include gender inequality, violence and limited access to education. Meanwhile, men who have sex with men, people who inject drugs, sex workers and transgender people often lack access to health programmes. The root cause? Social taboos, punitive laws and fear of arrest.

Framing health as a human right creates an obligation on states to ensure accessible, acceptable and affordable health care of appropriate quality. But this conception of health as a human right is not shared around the world. You have only to look, for example, at how HIV non-disclosure, exposure and transmission is still criminalized in 86 jurisdictions worldwide.

We will never end the epidemics of HIV, TB and malaria –  which killed 3 million people in 2017 alone – unless we dismantle social and human rights barriers to health services.

Everyone has a right to healthcare, encompassing dignity and respect. Not only is this a basic human right, but it is critical to fostering social stability and boosting economic growth. It is predicted that drug-resistant TB will cost the global economy approximately US$17 trillion by 2050 if progress is not made fast enough.

The Global Fund and the Thomson Reuters Foundation are joining forces to combine the power of an international health financing organization with global media and legal expertise, to help break down barriers to health services.

Each year, the Global Fund mobilizes and invests more than US$4 billion to support health programs run by local experts in more than 100 countries. Through its “Breaking Down Barriers” Initiative, the Global Fund is working with countries to reduce human rights-related barriers to health services: to ensure that everybody, including the most marginalized, also have access to prevention, treatment and care services; to see that health care workers are trained not to discriminate against, turn away, or fear people living with HIV or TB; to ensure that police are sensitized to support LGBT people to access prevention and treatment, rather than subject them to extortion, arbitrary arrest and violence; and to inform women, girls and others most affected by disease and violence about their rights and access to legal support. In the last three years, over US$120 million have gone to these and other programs to reduce stigma and discrimination and increase access to justice, an unprecedented investment in human rights as a critical component of our efforts to end HIV, TB, and malaria.

But more needs to be done. In its new partnership with the Global Fund, the Thomson Reuters Foundation will facilitate legal services and support for civil society partners in key countries, including development of “know your rights” training, capacity-building for health practitioners, services providers and their clients, plus guidance for NGOs and civil society groups working in challenging social contexts. The Thomson Reuters Foundation will also train journalists on human rights and health issues, and support awareness-raising on human rights-related barriers to health. Our hope is that by combining forces, we can achieve real impact.

Access to healthcare is a right, not a luxury. We have an historic opportunity to rid the world of HIV, TB and malaria. Let’s seize that opportunity.

On Human Rights Day, please endorse the EECA Statement against HIV Criminalization

Today, December 10, 2019, Human Rights Day, National and Regional Networks and Civil Society Organizations on HIV Criminalization in the EECA Region are asking you to support the movement against HIV criminalization by endorsing the following Statement.

Download a pdf of the Statement in English or Russian.

Endorse the Statement in English here.  EПодпишите заявление на русском языке здесь.

On November 25-26, 2019, the “Decriminalization of HIV transmission in the EECA region: the role of civil society and advocacy tools” meeting was held in Minsk, Belarus, by the Eurasian Women’s Network on AIDS (EWNA), the Global Network of People Living with HIV (GNP+) and CO “100 PERCENT LIFE”. Activists representing national, regional and international networks discussed the current situation with HIV criminalization in the EECA region and options available to strengthen the movement in order to counter that HIV criminalization in the EECA region.

HIV criminalization is a global issue that undermines human rights and impedes the development of public health and, as a result, weakens the efforts to eradicate the HIV epidemic. An analysis of recent HIV criminalization cases shows that they do not reflect the demographics of local epidemics, and the likelihood of persecution is compounded by discrimination against marginalized groups on the basic of drug use, ethnicity, gender identity, immigration status, sex work and sexuality.

The Global Commission on HIV and the Law, the United Nations Development Program (UNDP) and the Joint United Nations Program on AIDS (UNAIDS), among others, declare that any use of criminal law against people living with HIV should be strictly limited to exceptional cases of intentional and malicious HIV transmission to another person and only where real harm occurred. However, the law and law enforcement practice go beyond this limitation in many countries.

According to HIV Justice Worldwide, Europe and Central Asia is the region with the second highest number of laws criminalizing HIV exposure, non-disclosure and transmission. 18 of the 19 countries where such laws have been adopted are in the EECA region. Many of them allow criminal prosecution for actions that do not pose a risk of HIV or pose a low risk only. These laws do not recognize condom use or low viral load as a means of protection against prosecution. They criminalize oral sex, individual breastfeeding cases, as well as bites, scratches, bites, or spitting. Such laws were developed in the times when efficient ARV therapy was not yet available and the HIV diagnosis was equated with a death sentence. The implementation of such laws is most often informed by myths, misconceptions on HIV transmission ways, and stigma against people living with HIV and vulnerable communities.

The laws of the EECA countries criminalizing the HIV transmission vary in their severity and in specific sanctions. The Russian Federation and Belarus are global and regional leaders in terms of the number of criminal cases related to HIV6. In Uzbekistan, a person living with HIV can be prosecuted regardless of whether his/her partner wants to initiate a criminal case. In 2019, a punishment was introduced in the law in Tajikistan for those who refuse to receive HIV therapy7. In many EECA countries, the punishment for any crime involving an HIV-positive person is exacerbated by the positive HIV status.

Concerned by the fact that prosecutions are not always informed by the best available scientific and medical evidence, 20 of the world’s leading HIV scientists have presented the Expert consensus statement on the science of HIV in the context of criminal law.

The criminalization of HIV transmission is a growing human rights issue in Eastern Europe and Central Asia. This fact is also confirmed by the first regional report, prepared in 2017 using the data of the communities of women living with HIV. The study was organized and conducted by EWNA with the support of GNP+ and HIV Justice Worldwide.

The study has shown that HIV criminalization is a gender issue10. The stories and cases documented in the report and other recently conducted studies illustrate that women are more likely to be persecuted, as they are often the first to become aware of their status through regular HIV testing during pregnancy, but they are less likely to safely disclose their HIV positive status to their partner due to gender inequality in the family, economic dependence and high levels of violence. In addition, women living with HIV are less likely to receive adequate legal assistance and to have competent representation in court. In their stories, women talk about violence, threats, and blackmail associated with their HIV-positive status. The laws adopted were designed to protect women from HIV. Unfortunately, this is not the case in the reality as HIV criminalization makes women more vulnerable to violence and structural disparities. HIV criminalization increases the vulnerability of women to deprivation of parental rights, property loss, and poverty.

EECA activists make essential efforts to advocate for the decriminalization of HIV infection. Thus, the active advocacy work conducted by the community of people living with HIV pushed Belarus to adopt an important legislative amendment: the HIV-positive partner should be exempt from criminal liability if he or she has timely warned the HIV-negative partner about HIV and the latter has voluntarily agreed to take actions, which created a risk of infection. However this step alone is not sufficient to solve the issue of HIV criminalization.

We call attention of the EECA countries to the fact that in a society with low stigma and discrimination, people are more likely to be voluntarily tested for HIV and, learning about their status, begin ARV treatment.

We urge communities of people living with HIV and other criminalized and marginalized communities, in particular sex workers, LGBT people, people who use drugs, to unite and take a consolidated position to counter HIV criminalization, presenting a united front against HIV stigma and discrimination embedded in the law.

We urge governments and parliamentarians to use general law to prevent HIV transmission in the harm to health context and, instead of applying criminal law in any cases other than actual infection transmission by malicious intent, take steps to encourage people to be tested, take ARV treatment, communicate their HIV status and have safe sex without fear of stigma, discrimination and violence. This can be achieved by adopting and applying anti-discrimination laws and organizing public information campaigns to dispel myths about HIV, as such campaigns are evidence-based and are led by people living with HIV.

We urge prosecution agencies and prosecutors, to use scientific evidence and evidence-based medicine, in particular the evidence included in the Expert consensus statement on the science of HIV in the context of criminal law, in pre-trial and trial proceedings, in order to limit or prevent abuse of criminal prosecution in cases of allegations of HIV transmission or exposure or in cases of non-disclosure of HIV status.

We urge the media to stop demonizing people living with HIV, presenting us as criminals and as sources of infection. We request the media to consider HIV related issues from the perspective of human rights and use facts and evidence-based medicine while covering such issues.

We encourage donors to invest in communities and advocates opposing HIV criminalization, which undermines human rights and public health.

HIV JUSTICE WORLDWIDE fully supports HIV2020; no Beyond Blame at AIDS 2020

The nine organisations comprising the HIV JUSTICE WORLDWIDE Steering Committee have today (September 18, 2019) announced that they have unanimously agreed to support HIV2020, the international meeting that will take place in Mexico City between July 5-7, 2020.  

HIV2020, which is being led by people living with HIV (PLHIV) and other key populations, will be an alternative meeting for individuals who are unable to enter the United States or unwilling to attend the International AIDS Society’s conference in San Francisco next year.

HIV JUSTICE WORLDWIDE is a coalition of global, regional and national PLHIV networks and human rights defenders that campaigns to end HIV-related criminalisation.

Last week, two HIV JUSTICE WORLDWIDE Steering Committee members, the Global Network of People Living with HIV (GNP+) and the International Community of Women Living with HIV (ICW), issued a joint endorsement for this community-led event.

“We know that it was not an easy decision for GNP+ and ICW, the only two global networks of people with HIV, to lend their support to an alternative conference rather than the San Francisco conference,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network which serves as the secretariat for HIV JUSTICE WORLDWIDE.

“GNP+ and ICW have partnered with the International AIDS Society (IAS) for years to ensure that the voices of those most affected by policies and research are at the tables where decisions are made. However, it has become increasingly clear that not only does the IAS not view key population groups as equal partners, but also that entering the United States at this time poses grave danger to our communities.

“As a global coalition working to end HIV-related criminalisation, we are choosing not to place our communities, who are at particular risk for surveillance, policing, and violence, in harm’s way. As a consequence, Beyond Blame, our biennial pre-conference usually held prior to IAS international conferences will not take place in San Francisco, but instead will be incorporated into the HIV2020 programme in Mexico City.”

Beyond Blame: Challenging HIV Criminalisation is HIV JUSTICE WORLDWIDE’s flagship meeting for activists, advocates, judges, lawyers, scientists, healthcare professionals and researchers working to end HIV criminalisation. Previous meetings were held in Melbourne (2014), Durban (2016), and Amsterdam (2018).

In Amsterdam, more than 150 attendees from 33 countries attended the one-day meeting. Participation was extended to a global audience through livestreaming of the meeting on the HIV JUSTICE WORLDWIDE YouTube Channel.

Registration for HIV2020 in Mexico City will start on September 23, 2019. Please visit www.hiv2020.org for more information.

We are proud to be joining with others who have issued HIV2020 solidaridy statements in recent days:

ABOUT HIV JUSTICE WORLDWIDE

HIV JUSTICE WORLDWIDE aims to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV positive status. We are working to shape the discourse on HIV criminalisation and to share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration. This work is based on an understanding that:

  • HIV criminalisation is discriminatory, a violation of human rights, undermines public health, and is detrimental to individual health and well-being;
  • HIV criminalisation is part of a larger problem of scapegoating, targeting, harassing and policing of vulnerable and marginalised communities;
  • efforts to end HIV criminalisation should be led by those most affected, including people living with HIV and organisations, networks, and institutions led by people living with HIV and/or those most impacted by these laws and prosecutions;
  • the knowledge and perspectives of those most impacted by an issue should be central to the decision-making processes; and
  • regional differences matter, and we respect local knowledge and local leadership.

The HIV JUSTICE WORLDWIDE Steering Committee currently comprises:

In June 2017, HIV JUSTICE WORLDWIDE invited organisations from around the world who share our values and principles to join the movement. Today, more than 100 organisations have joined the vibrant global community of advocates fighting to abolish HIV-related criminalisation.

HIV JUSTICE WORLDWIDE is supported by a grant from the Robert Carr Fund for civil society networks

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US: It’s time Ohio’s laws reflected our new understanding of the science of HIV

Ohio’s HIV laws should be based on science, not hysteria

Even if you weren’t a fan of the National Basketball Association in 1991, you probably remember the day in November that Earvin “Magic” Johnson, the dazzling point-guard of the Los Angeles Lakers announced he was retiring from the game after testing HIV-positive. How many more years did you give Magic? Three, four, maybe five?

Over the last 28 years, we’ve watched Magic briefly return to the NBA, coach the Lakers, announce NBA games, host a talk show, open movie theaters and coffee shops, buy a stake in the L.A. Dodgers and serve as Lakers president.

It would have been impossible in 1991 to conceive of Magic cycling through all those career choices because we couldn’t have imagined him having the time. But now, it’s fairly common to hear of people who’ve lived for decades after a positive diagnosis.

Their longevity shouldn’t be used to minimize the seriousness of the virus. If left untreated, HIV will cause AIDS, and AIDS will kill. But the advancements in treatment and prevention are reason enough to reconsider some of the decades-old laws that were drafted to punish people who sleep with others without informing them that they’re HIV-positive. Those laws were largely based on the belief that there was nothing on the other side of an HIV diagnosis but sickness and death.

In Ohio, a person who is HIV-positive can be sentenced up to eight years in prison and made to register as a sex offender for engaging in sexual conduct without disclosing their status.

What if that person uses a condom?

It doesn’t matter.

What if the person is faithfully taking pre-exposure prophylaxis, or PReP, which, according to the Centers for Disease Control and Prevention, “reduces the risk of getting HIV from sex by about 99%”

That doesn’t matter, either.

What if long after the fact, the partner tests negative for the virus?

Not even that matters. The offense, according to the law, is not telling. The crime isn’t the transmission. The crime isn’t even the likelihood of transmission. Just the not telling. Even if the person is reasonably trusting the science that says transmitting the virus is virtually impossible.

Greg Cote told Columbus radio station WOSU last month that he has made himself into a walking billboard proclaiming that he’s HIV-positive. As a policy, everybody should be as honest as he is. Even so, Cote hasn’t been intimate with anybody, he said, because if a bitter lover claims they weren’t informed, it can be difficult for people with HIV to prove to the satisfaction of jurors that they were, indeed, honest and forthcoming about their status.

A 2004 episode of The Chappelle Show included a sketch about “The Love Contract,” which was described as a way that people engaged in casual sex could prove in court that their partners consented. As absurd as the idea of a pre-coital contract sounds, advocates for Ohio’s HIV-positive residents say that or something close to that is required for them to prove that they haven’t been dishonest with their partners.

The Ohio Health Modernization Movement advises sexually active HIV-positive people to do one of the following things: save email or text messages that indicate that a potential partner has been informed of the person’s status; take that potential partner to a doctor’s visit or a caseworker’s visit so a third-party can confirm a disclosure was made; discuss one’s status in front of a third-party who can attest that a disclosure was made; video a conversation of a disclosure or, lastly, do what Chappelle did in that comedy sketch and have a potential partner sign a document. This document would acknowledge the partner’s awareness of the positive person’s status.

The best way for a HIV-positive people to protect themselves from criminal prosecution for consensual sex is to not getting tested. After all, Ohio law doesn’t allow people who don’t know that they’re HIV-positive to be charged with not telling their partners that they are. And this, advocates say, provides a regrettable incentive for people to avoid finding out if they’re carrying the virus.

The advocates’ position lines up with the federal government’s. In a 2014 report, the Civil Rights Division of the U.S. Department of Justice cited a CDC finding that the stigma associated with an HIV diagnosis discourages many from learning their status. That DOJ report notes that “intentional HIV transmission is atypical and uncommon” and suggests that states rewrite their laws to focus on two types of offenders: HIV-positive rapists whose crimes put their victims at risk of contracting the virus and people who intend to transmit HIV through behavior that carries a “significant risk of transmission.”

Such a focus is warranted. Prosecutors shouldn’t be pursuing those who aren’t trying to infect their partners, especially those who’ve been made to believe that they can’t. The American Medical Association has called for a complete repeal of HIV criminalization laws, but the Ohio Health Modernization Movement favors changing a failure to disclose one’s status from a felony to a misdemeanor.

After retiring in 1991, Magic tried to return to the court in 1992, but many players expressed a fear of playing against him. But in 1996, Magic did return with hardly anybody objecting. Players had a better understanding, then, about how the virus is transmitted. And we have an even better understanding of things in 2019. It’s time our laws reflected that new understanding.

Jarvis DeBerry is a columnist at Cleveland.com and a member of the editorial board. Reach him at jdeberry@cleveland.com or on Twitter at @jarvisdeberry.

Kenya: Advocates argue that HIV criminalisation law is impeding progress in Kenya’s response to the epidemic

Group criticises sexual offences law in war against HIV

In Summary

  • Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.
  • But the state argues that the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights

The government could be shooting itself in the foot in the ongoing efforts to contain the spread of HIV and Aids by allowing the Director of Public Prosecutions (DPP) to arrest and commence criminal trial against those suspected of spreading the virus.

The state has been calling on the public to come out openly and seek testing and treatment.

However, recent events where the DPP wants a 42-year-old woman in Nakuru jailed for breastfeeding and infecting her neighbour’s nine-month-old baby with HIV last year, could undo the gains already made in containing the spread of the virus.

It is feared that such prosecution may discourage others from going public about their status and seeking treatment among other state interventions aimed at curbing the virus.

The law under which the woman was charged, Section 26 of the Sexual Offences Act, is also the subject of litigation at the High Court by HIV positive persons (PLWHA) who want it repealed.

The woman’s lawyer, Ms Jenifer Mugweru, is appealing the orders issued by a magistrate on October 18, requiring her to provide her blood samples to be tested for HIV.

INFORMED CONSENT

The woman who is out on a Sh50,000 bond is said to have committed the offence on September 18, 2018 at Gichobo area in Njoro Sub-County.

The HIV and Aids Prevention and Control Act (Hapca), which has been in force since 2009, provides at Section 14 that, “No person shall undertake an HIV test in respect of another person except: (a) with the informed consent of that other person.”

Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available.

“Informed consent for HIV testing means that the person being tested for HIV agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed,” the HIV and Aids Tribunal ruled in one of its decisions.

In their application challenging Section 26 of the Sexual Offences Act, and its subsections, people living with HIV and Aids argue that it could undermine government efforts to eradicate or contain HIV and Aids spread.

They have interpreted section 26 of the Sexual Offences Act to imply that a person living with the disease is a potential criminal, who needs to be prosecuted and jailed, should it be established that he or she is “spreading” HIV/Aids.

POTENTIAL CRIMINAL

Section 26(1) of the Sexual Offences Act provides that “any person who, having actual knowledge that he or she is infected with HIV or any other ‘life threatening’ sexually transmitted disease, intentionally, knowingly and wilfully does anything or permits the doing of anything which he or she knows ….

“ … (a) Will infect another with HIV or any other ‘life threatening’ sexually transmitted disease … Shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life.”

The effect of this section and its subsidiary sections is that it perpetuates discrimination, stigma and fear against persons with HIV/Aids.

Living with the disease makes a person a criminal waiting to be arrested, prosecuted and visited with a lengthy jail term.

“It therefore discourages people from testing for HIV, seeking treatment and disclosing their status,” the litigants said in court papers.

According to people living with HIV and Aids, knowledge of one’s HIV status is important because it allows one to seek treatment and greatly reduces if not eliminates the risk of further transmission.

It also makes it possible to employ a range of other transmission prevention strategies and can improve expansion of HIV diagnosis and treatment, therefore a necessary condition for a successful HIV response.

“Section 26 of the Act thereby threatens progress gained and severely constrains further progress in Kenya’s response to the HIV epidemic,” the PLWHA argue.

PRIVACY

The section, according to the group, also intrudes on the privacy of marriage between consenting parties, it creates stigma and discrimination against couples in which one partner has HIV and the other does not (discordant couples).

It criminalises consensual physical intimacy between partners, threatens to separate families by removing a parent or partner from the family to be incarcerated (it criminalises procreation between discordant couples).

The group says the section creates stigma and discrimination against breastfeeding whereas this is the means by which most people in Kenya nourish their infants, and the only practical means by which to do so for many as well as the medically suggested means including people with HIV.

“And in that it threatens to separate children from their parents by removing the parent from the child to be incarcerated for lengthy periods on the basis of their HIV status, whereas it is in the presumptive interest of the child to be raised by both parents,” said PLWHA in court papers.

The group also takes issue with the meaning of the term “life-threatening sexually transmitted disease” or what constitutes it, saying it has not been explained in the Act, and the law is therefore vague in that respect.

VICTIM’S INTENTION

The state in defending the law disagrees with the arguments being advanced by the group, saying the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights.

The group wants the court to declare Section 26 of the Sexual Offences Act unlawful. The case is still pending in the high court.

Further, that it is important to appreciate why section 26 of the Sexual Offences Act was enacted.

“While examining whether a particular law is unconstitutional, the court must have regard not only to its purpose but also its effect. The purpose of section 26 of the Sexual Offences Act was to address the intentional spread of HIV and Aids,” state counsel Anne Wanjiku Mwangi in court papers.

Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.

US: Growing number of Ohio public health experts and advocates call for reform of HIV criminalisation law

Experts: Ohio law on HIV status disclosure hurts public health

COLUMBUS, Ohio — A growing number of Ohio public health experts and advocates are now working to stop what they call the criminalization of HIV.

Daphne Kackloudis, Chief Public Policy Officer at Equitas Health, told News 5 Ohio’s current law charging someone who fails to disclose their HIV status with a felony in all cases is hurting public health.

Kackloudis said the threat of up to eight years in prison is causing too many people to avoid getting tested, because according the current law if someone doesn’t get tested, and isn’t aware of their status they can’t be prosecuted.

“It is a disincentive for someone to get tested, and that’s not good for an individuals health and the public health,” Kackloudis said.

“We want them to get on antiretroviral therapy to get as healthy as possible, and be virally suppressed so they can not transmit HIV.”

Kackloudis believes the potential penalty should be moved back to a misdemeanor in cases where those charged are on HIV medication and are a far less infection risk.

She said the current law allows someone to file charges against an HIV-positive partner, even if they didn’t get the virus from that partner.

Kackloudis is a member of the Ohio Health Modernization Movement , which is also making an effort to change Ohio law.

She also made it clear she fully understands why the law was created, and said the proposed change in the law would still allow for full prosecution of those who willingly give others HIV.

Graig Cote of Columbus, who has been HIV positive for 33 years, told News 5 changes in the law are needed because it’s too difficult to prove if someone made proper disclosure of their status or not, unless there was a witness or if it was in writing or recorded.

“If we don’t change the laws, people don’t get tested, if they don’t get tested they don’t know if they’re HIV positive,” Cote said.

“We’re not asking for a free ride, we’re just asking that the laws catch up with the science.”

Cote said he hopes the proposed change in Ohio law is ready to present at the statehouse in the first quarter of 2020, and again made it clear the effort would not keep those who willingly spread HIV from facing full prosecution.

“People who want to infect somebody need to be stopped, there’s no dispute about that,” Cote said.