Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women

Tomorrow, Zimbabwe’s HIV-specific criminal statute, Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 will be on trial itself, facing its first-ever challenge in the Constitutional Court.

The Court will hear arguments on behalf of two applicants – Pitty Mpofu and Samukelisiwe Mlilo – both of whom were unfairly convicted of “deliberate transmission of HIV” in 2012, and who are now represented by Zimbabwe Lawyers for Human Rights (ZHLR).

“The provision is too wide, arbitrary and therefore violative of the protection of the law guarantee. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.” Applicants head of arguments (1.1)

Law on trial

Although the ‘crime’ in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.

It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.”

This, argues the applicants, is overly broad and unconstitutionally vague.

(Scroll to the bottom of the page, or click the link, to read the entire Applicants heads of arguments.)

Since 1996, International Guidelines on HIV and Human Rights have recommended that:

 ”Criminal and/or public health should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”

It is eminently clear that Section 79 does not ensure that “elements of foreseeability, intent [or] causality” are adequately provided for, although there is a defence of informed consent via disclosure. (It is not clear, however, exactly what needs to be disclosed, given that it is possible to be prosecuted for anything that might be a risk even if you haven’t been tested).

Although the Zimbabwe law predates other African laws based on the flawed N’Djamena model law, funded and disseminated with US international aid money, it contains many of the same problems. (Zimbabwe passed the first version of Section 79 in 2001 and updated it in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.)

‘UNAIDS recommendations for alternative language to some problematic articles in the N’Djamena legislation on HIV (2004)’, specifies the kind of language that could be used, should Zimbabwe still deem to find an HIV-specific criminal statute necessary.

Notably, it recommends defining ‘deliberate transmission of HIV’ as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”.

It further recommends that no criminal liability should be imposed upon:

an act that poses no significant risk of HIV infection.**
a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.
a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.
a person living with HIV who practised safer sex, including using a condom.**
a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.
a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.
a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.
the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.

**The issues of significant risk and safer sex (along with the difficulties of proving timing and direction of transmission) are further expounded upon in UNAIDS expanded and updated 2013 guidance.

However, Zimbabwe could also decide to do away with Section 79 altogether, and implement a new law based on a model law developed for the Southern African Development Community (SADC; www.sadc.int), which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

This model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008, integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission.

Alone But Together

Zimbabwe Lawyers for Human Rights are using the Constitutional Court hearing as a springboard for a campaign against overly broad HIV criminalisation, highlighting the case of Samukelisiwe Mlilo who features in a powerful 15 minute documentary produced by ZLHR, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

Today, they will launch the documentary in Harare under the banner; ‘HIV on Trial – a threat to women’s health’.

Ms Mlilo was found guilty of ‘deliberately’ infecting her husband with HIV and faces up to 20 years in jail despite there being no proof that she had infected her husband. She claims she had disclosed her status to him following her diagnosis during pregnancy, and that her husband only made the complaint in revenge for her own complaint of gender-based violence following the breakdown of their marriage.

“At this point we do not know who infected who,” ZLHR’s Tinashe Mundawarara told Voice of America News in August 2012. “This is an example of the violation of women’s rights. Women are likely to know of their status first. Mlilo might have been infected by her husband, no one knows, and got charged and convicted.”

The other applicant, Pitty Mpofu, was also found guilty of ‘deliberate’ transmission of HIV a month after Ms Mlilo.

It was alleged that he infected his wife sometime between October 2009 and June 2011 , although he wasn’t diagnosed until “sometime in 2010.” No proof regarding timing nor direction of transmission was provided during the trial.

Highest number of reported criminal prosecutions in Africa

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.

In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.

A further five men and three women have since been prosecuted, along with a 2010 case where a man was fined for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV.

The most recent court case, from November 2014, involved a man who was found guilty “based on a single witness” and sentenced to 15 years in prison.

Mpofu/Mlilo vs State, Constitutional Court of Zimbabwe, Harare (Case SC96/12 and 340/12 by HIV Justice Network

Nigeria passes law to stop discrimination related to HIV | UNAIDS

The President of Nigeria, Goodluck Jonathan, has signed a new antidiscrimination bill into law that protects the rights and dignity of people living with HIV.

The HIV/AIDS Anti-Discrimination Act 2014 makes it illegal to discriminate against people based on their HIV status. It also prohibits any employer, individual or organization from requiring a person to take an HIV test as a precondition for employment or access to services.

It is hoped that the new law will create a more supportive environment, allowing people living with HIV to carry on their lives as normally as possible. More than three million people are living with HIV in Nigeria.

Quotes

“This is good news coming from the President to Nigerians living with HIV. We appreciate this unprecedented development, as it will help halt all HIV-related stigma and discrimination in the country and improve the national response.”

Victor Omoshehin, National Secretary, Network of People Living with HIV in Nigeria

“The signing of the antidiscrimination law by the President of the Federal Republic of Nigeria is a much welcome action in the fight against AIDS. It will help more Nigerians to seek testing, treatment and care services without fear of facing stigma and discrimination.”

John Idoko, Director-General, National Agency for the Control of AIDS

“By signing the antistigma bill into law, the Government of Nigeria, under the leadership of President Jonathan, has given to all Nigerians living with or affected by HIV a guarantee to access justice and to regain their human rights and dignity in society while enjoying productive lives. Zero discrimination is the only environment conducive to ending the AIDS epidemic by 2030.”

Bilali Camara, UNAIDS Country Director for Nigeria and UNAIDS Focal Point for the Economic Community of West African States

UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process

This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair – will conclude its scoping consultation of the reform the Offences Against The Person Act, the law that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.

The deadline for responses is this Wednesday 11 February 2015.

The consultation is a scoping review – it is looking at the scope of whether a further full review of the existing law should take place, rather than examining what the law should be.

The consultation asks six key questions (out of 38) specifically relating to HIV (and STI) criminalisation:

We consider that future reform of offences against the person should take account of the ramifications of disease transmission. Do consultees agree?
We also consider that in such reform consideration should be given to: (1) whether disease should in principle fall within the definition of injury in any reforming statute that may be based on the draft Bill; (2) whether, if the transmission of sexual infections through consensual intercourse is to be excluded, this should be done by means of a specific exemption limited to that situation. This could be considered in a wider review; alternatively (3) whether the transmission of disease should remain within the offences as in existing law. Do consultees agree?
If the transmission of disease is to be included in any future reform including offences causing injury, it will be necessary to choose between the following possible rules about the disclosure of the risk of infection, namely: (1) that D should be bound to disclose facts indicating a risk of infection only if the risk is significant; or (2) that D should be bound to disclose facts indicating a risk of infection in all circumstances; or that whether D was justified in exposing V to that risk without disclosing it should be a question for the jury in each particular case. Do consultees have any preference as to these possible rules?
We consider the reform of offences against the person should consider the extent to which transmission of minor infections would be excluded from the scope of injury offences. Do consultees agree?
Do consultees consider that future reform should pursue the possibility of including specialized offences of transmission of infection, endangerment or non-disclosure?
Do consultees have observations on the use of ASBOs, SOPOs or other means of penalizing non-disclosure?

Responses to the scoping consultation, including those from the HIV Justice Network, will be published soon. Following the consultation, the Law Commission will decide on their recommendations for the scope of reform in this area and present them to Government in the form of a scoping report.

In the meantime, the summary of key findings and outputs from the Economic and Social Research Council’s seminar series ‘Criminalizing Contagion: legal and ethical challenges of disease transmission and the criminal law’, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014, provides a comprehensive legal and academic overview regarding how the law should treat a person who transmits, or exposes others to the risk of, a serious infection such as HIV.

Written jointly by David Gurnham, Catherine Stanton and Hannah Quirk, the report provides a detailed overview of the discussions in the seminars as well as the numerous publications arising from them, and acknowledges contributions made by various groups and individuals.

Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis

Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV. Although the reports do not state under which general law he was prosecuted, it is likely to be Article 149 of the Criminal Code, grievous bodily harm.

According to a recent analysis of all previous cases that reached Provincial or Supreme Courts (1996-2012), Article 149 has used for similar cases, using the ‘state of mind’ of ‘dolus eventualis’ similar to concept of ‘recklessness.’ The nine year sentence is similar to two previous cases for alleged HIV transmission during otherwise consensual sex in Spain. (Sixteen sentences and 9 writs belonging to 19 cases were included in the analysis; 17 judged by criminal and two by civil jurisdictions – full text at the bottom of the page).

The Court’s judgment, dated December 4, 2014 but published last week, noted that that the Cantabria Provincial Court’s ruling was “sufficiently motivated” and dismissed ABM’s appeal which cited a violation of his right to the presumption of innocence and lack of credibility of his accuser, with whom he maintains a dispute over ownership of property.

The Supreme Court upheld the Provincial Court’s sentence of nine years in prison. He also has to pay his former partner compensation of 70,000 euros.

According to the judgment, cited in several Spanish language media reports (the most detailed of which was in 20 minutos), ABM was diagnosed in April 2000. In 2007 he began a romantic relationship with the complainant which lasted until 2012. It was alleged that ABM did not disclose to her that he was living with HIV despite having condomless sex. In 2011, she began to suspect that her partner may be living with HIV.

The Court found there was nothing to suggest that she was already HIV-positive when she arrived in Spain (from Peru), based on her own testimony, her medical history and her GP, although there is no mention of phylogenetic analysis being used to attempt to show a link between the viruses. The Court also noted that the woman is asymptomatic and on antiretroviral treatment.

BBC report and analysis

On Friday, BBC Mundo (the BBC’s Spanish language BBC World website) published a longer analysis of the implications of overly broad HIV criminalisation in Spanish-speaking countries. I was interviewed for the piece, and am delighted to report that the journalist, Leire Ventas, produced a very good, balanced report.

Below is an approximate English translation of the Spanish language original.

Should knowing transmission of HIV be a crime?

January 30, 2015

A jail sentence in Spain rekindles debate over whether criminal law should apply to people who transmit the human immunodeficiency virus.Spain’s Supreme Court upheld the sentence of nine years in prison for a man who hid his HIV positive status from partner, infecting her with HIV.

The Court did not admit the appeal filed by the defendant.

This appeal had alleged violation of the right to presumption of innocence and lack of credibility of the victim, who maintains a dispute over ownership of a property.

According to the facts in the case, the convicted man was diagnosed HIV-positive in April 2000 and began a relationship with the woman in 2007.

They were together until 2012.

According to the Court, during those five years the defendant hid that he was HIV-positive from his partner and had sex without protection.

In 2011, woman began to suspect that her partner may have the virus and subjected to analysis, which confirmed infection.

“Intentional transmission”

Given this statement of facts, the Court found that the defendant had deliberately concealed his condition and that was the reason it upheld the ruling.

In the same vein, intentional transmission is the only case in which the Joint United Nations Programme on HIV / AIDS, UNAIDS, considers appropriate to apply the criminal law to people who transmit HIV or expose others to the virus.

“That is, when the person knows their HIV-positive serostatus and acts with intent to transmit or indeed does transmit,” says the report Criminalization of HIV Transmission, 2008 and its revision in 2013 the agency told the BBC.

“If a person known to be HIV-positive acts with the intention of transmitting the virus and transmits it (…), the damage justifies punishment,” it adds.

“In other cases, legislators, prosecutors and judges should reject the application of criminal law”.

Other cases

According to UNAIDS, the law should not apply to cases where there is no “significant risk” of transmission or where the person did not know they were HIV-positive, did not understand how HIV is transmitted, disclosed their status to the person at risk, or did not for fear of violence.

And neither should the law be used against someone who took “reasonable steps” of protection to reduce the risk of transmission or who previously agreed with the other person “a level of mutually acceptable risk”.

Thus, the agency recommends that governments legislate specifically to prevent HIV and only apply general criminal law to cases of intentional transmission.

They should also “develop guidelines to limit the discretion of the police and prosecutors in the application” of criminal law.

And UNAIDS believes that the latter creates “a real risk” of increasing stigma and discrimination.

“It is very likely that prosecutions and convictions fall on members of marginalized groups such as sex workers, men who have sex with men and people who inject drugs,” it says.

Obligation to disclose

For that reason, the agency also recommends repealing the legal obligation to disclose one’s HIV status or that of others, in the case of health workers, that exist in some countries.

“Everyone has the right to privacy regarding their health and should not be required by law to disclose such information, especially when it may cause serious stigma and discrimination and possible violence.”

It considers inappropriate to enact laws criminalising mother-to-child transmission of the virus.

“Everyone has the right to have children, including women living with HIV,” said UNAIDS.

It adds: “When pregnant women are advised on the benefits of antiretroviral therapy, almost all access treatment”.

The position of Edwin Bernard, co-ordinator of HIV Justice Network, a network of advocates providing information and international legal policy advice on HIV criminalisation, is not far from the recommendations of the UN programme.

“The only cases where it is appropriate to apply the criminal law is when there has been intent and these are usually very rare,” he tells the BBC.

He stressed that “not disclosing you have the virus, and keeping it a secret is not the same as wanting to spread it.”

There are several reasons not to tell, according to the activist: stigma, violence, even denying the condition itself.

Awareness, not persecution

Therefore he believes that laws around HIV in countries should be aimed at raising awareness and support for the eradication of the disease, and not the prosecution.

Latin America is a region particularly aware of this, he says.

“It has a good record of understanding that with regard to HIV the law should support and not persecute”.

“There have been very few known cases of prosecution for HIV transmission in Latin America. Most have taken place in Brazil and under a general, not specific, criminal law”.

In Spain, by contrast, between 1996 and 2012, 19 legal [or civil] cases were recorded.

This is registered in the report Temporal trends, characteristics and evidence of scientific progress in legal complaints for alleged sexual HIV transmission: 1996-2012.

However, the country with the most prosecutions is the United States, where 30 states have specific legislation on HIV.

“After eight years following up the issue, I can say that judicial systems, prosecutors and judges do not understand how the science has advanced, how the life expectancy of those with the virus has increased. They should know that the risk of transmission is very low “, says Bernard.

For the activist, the ideal situation would be to only have one or two lawsuits per year related to the topic.

“The law should be used, for example, in cases of rape. But when sex is consensual and those involved are aware of the risks, responsibility should also be shared.”

F. Bolúmar-Montero, M.J. Fuster-Ruiz de Apodaca, M. Weait, J. Alventosa & J. Del Amo (2015) Time trends, c…

US: In depth interview with Ken Pinkela whose change.org campaign to review his unjust court-martial has more than 73,000 signatures

Bob Leahy: Thank you for talking to PositiveLite.com about your case. Now before we get in to that, I want you to tell me first your background. Ken Pinkela: Sure! Ken Pinkela is still a card-carrying Lieutenant Colonel in the (US) army.

South Africa: Forced or involuntary disclosure in healthcare settings disproportionately affecting women resulting in discrimination and gender-based violence, despite constitutional protections

Editor’s note: This story is part of a Special Report produced by The GroundTruth Project called “Laws of Men: Legal systems that fail women.” It is produced with support from the Ford Foundation. Reported by Tracy Jarrett and Emily Judem.

An HIV diagnosis is no longer a death sentence, thanks to advances in medicine and treatment in the last 30 years. But stigma against HIV/AIDS and fear of discrimination still run strong in South Africa, despite legal protections, as well as drastically improved treatment, prevention techniques and education. Today an estimated 19 percent of South African adults ages 15-49 are living with HIV.

And women, who represent about 60 percent of people living with HIV in South Africa, face a disproportionately large array of consequences, including physical violence and abuse.

“Upon disclosure of women’s HIV positive status,” reads a 2012 study by the AIDS Legal Network on gender violence and HIV, “women’s lives change, due to fear and the continuum of violence and abuse perpetrated against them.”

Although forced or involuntary disclosure of one’s HIV status — along with any discrimination that may result from that disclosure — was made illegal by South Africa’s post-apartheid constitution, experts and advocates say that public knowledge of these laws is limited and the legal system is not equipped to implement them.

Not only are women disproportionately affected by HIV, but they are also more likely to know their status. More women get tested, said Rukia Cornelius, community education and mobilization manager at the NGO Sonke Gender Justice, based in Johannesburg and Cape Town, because unlike men, women need antenatal care.

And often, she said, clinics give women HIV tests when they come in for prenatal visits.

The way hospitals and clinics are set up also are not always conducive to protecting privacy, said Alexandra Muller, researcher at the School of Public Health and Family Medicine at the University of Cape Town.

“People who provide services in the public system, at the community level, are community members,” said Muller. “This is an important dynamic when we think about stigma and disclosure.”

Doctors and nurses can see 60 to 80 patients per day in an overcrowded facility with shared consultation rooms, Muller said.

“There’s not a lot of consideration for how is a clinic set up,” added Cornelius, so that “a health care worker who has done your test and knows your status doesn’t shout across the room to the other health care worker, ‘okay, this one’s HIV-positive, that file goes over there.’”

Once HIV-positive women disclose their status, willingly or not,they are disproportionately affected by stigma because of the direct link between HIV and gender violence.

Uganda: HIV Prevention and Management Act should be seen in context with Anti-Pornography Act, Anti-Homosexuality Act and Narcotics Law says OSF

On November 20, Uganda’s parliament passed the Narcotic Drugs and Psychotropic Substances (Control) Bill, also known as the Narcotics Law. A draconian piece of legislation, the law purports to deter drug abuse by imposing inhumanely long prison sentences-a conviction for simple possession can land a person in a cell for 25 years.

Sex, criminal law & HIV non-disclosure: What is wrong with Canada’s approach to HIV non-disclosure? (Canadian HIV/AIDS Legal Network, 2014)

This is the second of two short videos from the Canadian HIV/AIDS Legal Network explaining what the law currently is relating to HIV non-disclosure (covered in Part 1) and what is wrong with this approach. Watch Part 1 here: http://bit.ly/1oMs1DM

The Criminalization of HIV in Canada

(32 mins, BearPaw Media, Canada, 2014)

The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, people living with HIV continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.

See more at: http://ncsa.libguides.com/bearpawvideos

Canada: Social media campaign ‘Think Twice’ uses video to ask gay men to reconsider pressing charges for HIV non-disclosure

Last week saw the launch of a new phase of a targeted social marketing campaign by AIDS ACTION NOW! (AAN) that features 42 short videos from members and allies of Toronto’s LGBTQI community.

‘Think Twice’ asks HIV-negative and untested gay, bi, queer and trans men to reconsider pressing charges for HIV non-disclosure (where there was no alleged HIV transmission) when they discover that a sexual partner has not disclosed their HIV-positive status before sex.

In October 2012, the Supreme Court of Canada confirmed that non-disclosure of known HIV status can be charged as aggravated sexual assault – with up to life imprisonment and sex offender registration – even if the person with HIV uses a condom: in order to avoid legal liability, they must also have a low viral load.

‘Think Twice’ is an AAN campaign originally launched just prior to the Supreme Court’s ruling aimed at decreasing the number of criminal prosecutions related to HIV non-disclosure. AAN want people involved in the criminalisation of HIV non-disclosure—people living with HIV, their sexual partners, police, Crown prosecutors, health care providers and others—to consider the complexity and uncertainty of Canada’s overly broad approach to HIV criminalisation, and the implications of their role in criminal prosecutions for HIV non-disclosure.

The first part of their campaign targeted Crown prosecutors since they play a pivotal role in driving criminal prosecutions.

Since December 2012, the ‘Think Twice’ campaign has also focused on another key advocacy target – potential complainants.

This new phase of the ‘Think Twice’ campaign focuses specifically on gay, queer, and trans men and other men who have sex with men, due a change in community norms in the past few years that has resulted in an increase in the numbers of men going to the police to lay charges against other men living with HIV.

According to the Canadian HIV/AIDS Legal Network, while the majority of cases in Canada are against men who had sex with women, an increasing number of gay men and other men who have sex with men are being charged and prosecuted in Canada. Whereas there were only five known cases prior to 2006, a further 25 cases have been tracked up to December 2013.

In 2014, there has been at least one new case against a gay man. Another – where two men met in a Montreal sauna – dating back to 2005, is due to be heard by the Supreme Court of Canada next month.

For this latest phase of the ‘Think Twice’ campaign, AAN placed an open call for gay, queer, bi and trans men, and their allies, to make a video that answered the question: ‘In 45 seconds what would you say to gay men to convince them to think twice before going to the police when a sex partner hasn’t disclosed to them.’

Although they only expected to make 25, a total of 42 individuals made videos, in a project organised by Jordan Bond-Gorr, Lauryn Kronick, Tim McCaskell and Eric Mykhalovskiy and filmed by multi-disciplinary artist, John Caffery, in Toronto over one weekend in August.

The videos – along with the website www.thinktwicehiv.com – were launched on 18th November at Toronto’s Buddies in Bad Times theatre.