Australia: Campaign against Victoria’s HIV-specific criminal law launched to tie in with Melbourne Declaration for AIDS 2014

Living Positive Victoria, the organisation representing people living with HIV in the Australian state of Victoria, has launched a campaign for community and cross-party political support to reform the state’s HIV-specific criminal law, the only such law in Australia.

Section 19a of the Crimes Act 1958,’ Intentionally causing a very serious disease’ states

A person who, without lawful excuse, intentionally causes another person to be infected with a very serious disease is guilty of an indictable offence.

In subsection (1) very serious disease means HIV within the meaning of section 3(1) of the Public Health and Wellbeing Act 2008 .

The statute, which treats HIV as exceptional and applies a uniquely higher penalty than for other crimes of violence, carries a 25 year maximum penalty.

The call for law reform is a response to the release of the Melbourne Declaration in advance of the 20th International AIDS conference, also known as AIDS 2014, to be held in Melbourne in late July.

“Leading into AIDS 2014 is a highly opportune moment to grasp the issue of law reform so that HIV is treated as a public health matter,” says Ian Muchamore, President of Living Positive Victoria.

The Melbourne Declaration focuses on the need to address multiple legal barriers in the global HIV response, in order “to defeat HIV and achieve universal access to HIV prevention, treatment, care and support”.

In line with the Oslo Declaration on HIV Criminalisation, it explicitly states that “nobody should be criminalized because they are living with HIV.” And elsewhere the Declaration “expresses concern at the continued enforcement of discriminatory, stigmatizing, criminalizing and harmful laws which lead to policies and practices that increase vulnerability to HIV.”

HIV criminalisation is set to be a major focus of international attention at AIDS 2014. Living Positive Victoria is one of the hosts of the Beyond Blame pre-conference (along with Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and Australian Federation of AIDS Organisations) which is supported by the AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.

Read and sign the Melbourne Declaration here

Read and sign the Oslo Declaration here

Read the Living Positive Victoria press release here

Register for Beyond Blame: Challenging HIV Criminalisation (July 20th, Melbourne) here

Canada: More than 70 scientific experts sign on to consensus statement on HIV transmission risks in the context of criminal law

More than 70 scientific experts Canada-wide have today released a consensus statement confirming when there is a low-to-zero possibility of a person living with HIV transmitting the virus in various situations.

The statement was developed out of a concern that “a poor appreciation of the scientific understanding of HIV and its transmission” is contributing to the overly broad use of criminal charges against people for alleged non-disclosure of HIV status in Canada.

It concludes that “HIV physicians and scientists have a professional and ethical responsibility to assist those in the criminal justice system to understand and interpret the science regarding HIV. This is critical to prevent miscarriage of justice and to remove unnecessary barriers to evidence-based HIV prevention strategies.”

According to a press release issued today

The Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), la

Coalition des organismes communautaires québécois de lutte contre le VIH/sida (COCQ-SIDA) and the Ontario Working Group on Criminal Law and HIV Exposure applaud this consensus statement. Grounded in a comprehensive review of the most recent and relevant scientific evidence, the statement confirms that current Canadian law is going too far and ignoring the science. We welcome scientific experts speaking out against the many unjust prosecutions against HIV-positive people that we are seeing in Canada, which have too often resulted in draconian sentences for conduct that posed no significant risk of transmitting the virus.

In 2012, we expressed our deep disappointment with the decisions of the Supreme Court of Canada in the cases of R. v. Mabior and R. v. D.C. Under these rulings, people living with HIV can be sent to jail and registered as sexual offenders for life for not disclosing their status even if they have used a condom or had an undetectable or low viral load, had no intent to harm and indeed did not transmit HIV. We characterized these decisions as being unfair, harmful to both individual and public health, and at odds with the science. Since these rulings, we have witnessed trial judges struggling with the difficulties they pose, particularly when this overly broad approach contradicts the scientific evidence.

Today, scientists themselves have detailed their concerns with the continued overuse of some of the most serious charges in the Criminal Code in circumstances in which prosecutions are entirely unjustified. In the consensus statement released today, scientists have sent a strong message to Crown prosecutors and judges calling for restraint.

Indeed, scientists’ assessment of the evidence supports our long-standing call for, at most, an extremely limited use of the criminal law. Among other things, the science supports the position that people who practice safer sex (e.g., by using a condom) or who are under effective antiretroviral therapy should not be prosecuted or convicted for HIV non-disclosure. Prosecuting people in such circumstances runs counter to available scientific evidence showing that the risk of transmission is negligible or even nil. Such misuse of the criminal law does nothing to help curb the HIV epidemic and drives people further away from effective HIV prevention, care, treatment and support services.

We welcome the stand taken today by medical experts and scientists from all across Canada and endorsed by the Association of Medical Microbiology and Infectious Disease Canada. It is time for the Canadian criminal justice system to take into account what the science tells us about HIV and its transmission; this evidence cannot be legitimately disregarded.

Read the full consensus statement below or download (for free) from Canadian Journal of Infectious Diseases & Medical Microbiology at http://www.pulsus.com/cjidmm

Loutfy M et al. Canadian consensus statement on HIV and its transmission in the context of criminal law.

US: Iowa modernises its HIV-specific law, SF 2297 passes unanimously

(Press release from One Iowa.  Further detailed analysis will be available soon)

DES MOINES–After a series of negotiations, a historic bill passed through the Iowa House early this morning that will modernize Iowa’s discriminatory HIV law. Iowa’s current law, 709c, is based on outdated science and beliefs that actually discourages testing and disclosure because of severe penalties associated with simply knowing one’s status. The new bill, Senate File 2297 (SF2297), will change the law so that it is no longer HIV specific, and converts sentencing into a tiered system instead of the “one size fits all” approach used in 709c. The bill unanimously passed the Iowa Senate in February, and moved to the House for debate this morning. The bill, which also passed unanimously in House chambers, will now head to Governor Terry Branstad’s desk for his signature.

The proposed changes to the law are supported by One Iowa, the state’s leading lesbian, gay, bisexual and transgender (LGBT) organization, and by Community HIV/Hepatitis Advocates of Iowa Network (CHAIN), an organization that has spent the last 5 years trying to reform Iowa’s HIV law. Iowa currently has one of the harshest laws in the nation that targets people living with HIV and AIDS.

“After 5 long years of fighting to change Iowa’s law, those of us living in Iowa with HIV and AIDS can finally breathe a sigh of relief,” said Tami Haught, Community Organizer with CHAIN. “We commend the leadership in the Senate and the House for understanding the importance of this bill and the need to modernize Iowa’s draconian 709c law. None of this would be possible without the bipartisan support of Senators Matt McCoy, Steve Sodders, Charles Schneider and Rob Hogg; in addition to Representatives Beth Wessel-Kroeschell, Chris Hagenow and Chip Baltimore. The changes in this new bill are a step in the right direction.

“While the bill that passed today will have a lasting and positive effect on the lives of many Iowans who currently live with HIV and AIDS in our state, our work is far from over,” Haught added. “We must continue our outreach and education within the public sphere about the realties of those living with HIV, to dispel the harmful stereotypes, stigma and misinformation often associated with the disease. Our hope is that by beginning to modernize the laws in Iowa, it will signal other states with similar legislation to do the same. HIV is not a crime; our laws here in Iowa and across the country need to reflect this fact.”

“We are pleased to see Iowa’s policy makers move this bill forward,” said Donna Red Wing, Executive Director for One Iowa. “The changes proposed in this bill will have a profound impact on the lives of Iowans living with HIV and AIDS. This bill will send an important message across the nation, most significantly to those states that still operate under the misinformation of the past. We applaud CHAIN’s efforts, but especially the work of Community Organizer Tami Haught. Tami has fearlessly and passionately shared her story with legislators and community members alike. She has changed hearts and minds, and should be commended as one of the many unsung heroes of this movement. After 5 years of conversations and perseverance, today we celebrate a victory for Iowa’s HIV community.”

US: Second attempt to modernise Iowa's HIV-specific criminal law during current legislative session

A new bill, introduced Monday by Senator Rob Hogg, along with bi-partisan support, seeks to reform Iowa’s 709c HIV law. Iowa’s 709c law states a person has committed criminal transmission of HIV if that person knowingly engages in intimate contact without disclosing his or her positive status, whether infection occurs or not. If passed, the new law would no longer be specific to HIV, and would rely on a tiered sentencing system, rather than the current “one size fits all” approach.

Tami Haught of Community HIV/Hepatitis Advocates of Iowa Network (CHAIN) explains the tiered system of sentencing, “If someone intends to transmit and transmission takes place it is still a class B felony, if there is intent but no transmission it is a [class] D felony and if there is no intent but transmission takes place it is a class D felony.”

Haught also goes on to explain that under the new bill, Iowans would no longer be sentenced as sex offenders and a retroactive clause in the bill would remove anyone sentenced under 709c from the sex offender registry. Prosecutors would also have to prove substantial risk, rather than the current law which simply requires non-disclosure.

CHAIN along with One Iowa, the state’s leading lesbian, gay, bisexual and transgender organization, are both supportive of the changes proposed in the bill, and CHAIN has worked hard to reform the law, which they describe as discriminatory.

“This bill is a step in the right direction and will have a profound impact on the lives of Iowans living with HIV and AIDS,” says Haught. “This bill, if passed through the Senate and the House, will be a significant victory for Iowa and Iowans living with HIV. Our work is far from over, however. We must continue to dispel the stigma and misinformation that surrounds HIV and those who live with it each and every day. HIV is not a crime, and this bill would reflect that. It would lift a burden from Iowans living with HIV and AIDS, and is a vast improvement from the current law.”

“We commend Senator Hogg for his efforts and we support this important move forward,” says One Iowa Executive Director Donna Red Wing. “In addition, we thank Senators Matt McCoy, Charles Schneider and Steve Sodders for bringing much-needed public attention to this important issue. We congratulate members of CHAIN on this victory, and are sincerely grateful for Community Organizer Tami Haught’s tireless efforts. Tami is one of the many unsung heroes of this movement. None of this would have been possible without her passion and perseverance, but more importantly her willingness to share her personal story with legislators and community members. Today is a step forward for Iowa, as we continue to work with the state legislature on both sides of the aisle to ensure equality and justice for all Iowans.”

The bill will be up for discussion Tuesday afternoon in a judiciary subcommittee hearing at 4:30.

Moving from potential complainant to anti-criminalisation advocate

Dee Borrego is a 30-year-old woman, who since being diagnosed with HIV at the age of 20 has been on the forefront national HIV/AIDS activism. For Visual AIDS, Borrego has written an essay in which she talks about the anger and frustration she had towards her ex upon learning about her status, and how she has come to learn that HIV Criminalization is wrong for everyone – especially people living with HIV. The essay is part of the Visual AIDS Play Smart program, an honest and straightforward approach to promote dialogue and action around harm reduction, HIV testing, PEP & PrEP, and other contemporary issues such as HIV Criminalization and No Condoms as Evidence. To learn more: Play Smart

US: Will Donald Bogardus be the last person to be convicted under Iowa’s overly draconian HIV-specific law?

Earlier this month, Donald Bogardus, 42, was given the lightest-ever sentence for HIV non-disclosure in Iowa.  He had faced up to 25 years in prison but was given a suspended sentence with two to five years of probation. However, he will also have to register as a sex offender and will likely lose his job as a certified nursing assistant as a result.

Watch Donald tell his story to the SERO Project.

Donald, who was diagnosed in 2007, was arrested in 2009 for having consensual unprotected sex three times with a male partner (who remained HIV-negative) without disclosing that he was HIV positive.

He was charged under Iowa Code § 709C.1, which states: “a person commits criminal transmission of [HIV] if the person, knowing that the person’s [HIV] status is positive … [e]ngages in intimate contact with another person.” The statute defines “intimate contact” as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV].”

As recently as July 2013, the Eighth Circuit Court of Appeals ruled that Iowa’s HIV law was not unconstitutionally vague and upheld the conviction of Adam Musser, who was sentenced to 50 years for not disclosing his HIV-positive status to four women.

Donald was supported through this ordeal by fellow criminalisation survivor, Nick Rhoades, who used a condom, had an undetectable viral load and did not transmit HIV but was sentenced to 25 years by an Iowa court for not disclosing his HIV-positive status to his male partner.  Later reduced to a year served, he now must register as a sex offender for the rest of his life.

(Nick’s story has been covered sympathetically by mainstream news outlets, including CNN, and formed the basis of a major ProPublica investigation, published last December 1st.)

Last September, the Iowa Court of Appeals upheld Nick’s conviction, finding that because he did not use a condom during oral sex there was stll a chance of transmission.

However, Rhoades and his attorneys at Lambda Legal will have another opportunity to argue that the charge and conviction is not based on current science, and the case will soon be heard at the Iowa Supreme Court.

These three cases are the tip of the iceberg, however. There are only 2000 people living with diagnosed HIV in Iowa and yet

Between January 1999 and June 2011, 25 people were charged and 15 were convicted. In 2012, Iowans were paying for the prison sentences of eight Iowans because of this law.

This quote comes from one of two editorials published this week in Iowa newspapers that are supporting a change in the law. The Des Moines Register‘s editorial, entitled ‘Lawmakers should correct Iowa’s HIV mistake‘ begins

During an election year, Iowa lawmakers are reluctant to do anything that could be construed as remotely controversial. it should not be controversial for them to fix a mistake they made 15 years ago that is ruining the lives of innocent Iowans. Lawmakers and Gov. Terry Branstad should repeal a statute that criminalizes the actions of Iowans who are HIV-positive when they have harmed no one.

Meanwhile the Press-Citizen argues that there is ‘Still time to fix Iowa’s HIV law this session’. It covers both Nick’s appeal and the law reform process.

We can only hope the Iowa Supreme Court will be more inclined than the lower court to take new scientific evidence into consideration and move away from past rulings. But whatever the state Supreme Court decides, it’s time for state lawmakers to fix the law. At the very least, lawmakers need to clarify that both intention to transmit and actual transmission is needed for prosecution. They also should specify that the type of sex act, condom usage and the defendant’s viral load need to be taken into account for decisions on prosecution and sentencing. At best, they could repeal the misguided law completely.

These editorials are the result of extremely hard work undertaken by a broad coalition of local and national advocates, and were timed to coincide with yesterday’s “Day on the Hill” when HIV advocates in Iowa visited the Capitol in Des Moines to talk with State legislators about modernising Iowa’s HIV specific legislation.

According to Tami Haught, of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) they were able to speak with half of all state Representatives and nearly two thirds of all Iowa Senators.  This may create the final push for law reform this legislative session (which ends in April).

Immediately following Donald Bogardus’ sentencing, according to the Waterloo Cedar Falls Courier

Sen. Steve Sodders, a Democrat from State Center, proposed changes to “modernize the draconian law.” The bill has been referred to the Senate Judiciary Committee, causing a ripple of Capitol support. “It’s important that we decriminalize some of the effects of this old law. It’s just outdated, and we have to keep up with modern medicine,” Sodders said.

Sen. Charles Schneider, a Republican from West Des Moines and ranking member on that committee, said GOP members in both chambers agree there should be changes to the law. “What I think we need to do is just educate people that the current penalty is more punitive than it needs to be for people who are treating effectively the transmittable disease that they have,” he said.

Attorney General Tom Miller, who supported changes to the law last year, reaffirmed his support this session. Miller said he’s “firmly convinced the statute needs to be changed” and that his office is working with lawmakers to update the statute.

The full text of Senate File 2086, which would create a new law, The Contagious or Infectious Disease Transmission Act, can be found here.

This is a summary what they are proposing.

The proposed Contagious or Infectious Disease Transmission Act would try people who transmit diseases like HIV, Hepatitis C and tuberculosis under the same statute.

It aims to delineate between someone with a criminal intent to infect and simply failing to disclose their status, taking into account whether an infected person used protection or is taking medications to limit the risk of transmission.

Under the new law, a person does not act with criminal intent necessary for a conviction simply by knowing their status and having sex.

Offenders who knew their status would get up to 10 years incarceration — a class C felony — for intentionally transmitting a disease. If they didn’t infect their partner, the sentence would drop to a class D felony or 5 years in prison.

If a person who knew their status and didn’t intend to infect their partner, but acted with a reckless disregard for their health, the violation becomes an aggravated misdemeanor.

The bill eliminates the requirement to register as a sex offender.

With a groundswell of support for modernisation, it seems very likely that Iowa will soon become the first state in the United States to achieve HIV criminalisation law reform.

Uganda: ‘Trial by media’ of nurse accused of exposing a child to HIV via injection sets a ‘dangerous precedent’

The ongoing case of Rosemary Namubiru, the Ugandan nurse accused of exposing a child to HIV during the course of administering an injection, is highlighted in a powerful press release issued yesterday by AIDS Free World.  Fortunately, Ms Namubiru is being supported by several advocacy and human rights organisations as well as by individual HIV advocates in Uganda.

The inflammatory media coverage (an example of which is this horribly invasive TV news story, above) not only increased HIV-related stigma and violated Ms Namubiru’s right to a fair trial, but is also being used to help justify the passing of the draft HIV Prevention and AIDS Control Bill 2010 which includes a number of problematic provisions including mandatory HIV tests for pregnant women and their partners, and forced disclosure of HIV status to a newly diagnosed person’s partner by a medical practitioner. In addition, the Bill contains two overly broad and problematic HIV-specific criminal statutes.

In late 2009, a group of more than 50 Ugandan and international organisations and individuals released a report criticising many of the provisions of an earlier draft. That early advocacy resulted in the removal of a criminal penalty for the transmission of HIV from mother to child through breastfeeding.

Advocacy co-ordinated by the Uganda Network on Law, Ethics and HIV/AIDS (UGANET), continues to argue that the unfavourable clauses must be completely removed and that Uganda must assent to the East African Community (EAC) HIV & AIDS Prevention and Management Act which contains provisions meant to supersede Ugandan law.

Read the entire press release below and download the PDF version here.

HIV-Positive Nurse Tried by Media

––Uganda’s first court case dealing with criminalization of HIV transmission could have far-reaching consequences––

February 11, 2014 (Kampala, Uganda)––Rosemary Namubiru, a Ugandan nurse, stands accused of exposing a child to HIV during the course of administering an injection. The incident incited a media firestorm, leading to Namubiru’s arrest and trumped-up charges of attempted murder. That these were baseless charges was confirmed at the opening of the trial today when the charge was changed to criminal negligence; charges that could still carry up to seven years in prison. As the trial begins, it is clear that the damage has already been done. Namubiru was tried and convicted in the public eye by the media, violating her rights and presumption of innocence.

The implications of this case are far-reaching: the Namubiru case appears to be the first in Uganda’s courts dealing directly with HIV exposure and transmission. Efforts to criminalize HIV transmission, and the failure of both the media and the prosecutors office to act responsibly, set a dangerous precedent and could have grave consequences for the fundamental rights of people living with HIV and AIDS in Uganda and beyond.

Case Summary

Rosemary Namubiru, 64, a nurse with 35 years of experience, was working at the Victoria Medical Centre in Kampala, Uganda. On January 7, 2014, Namubiru was attempting to give an injection to an ill 2-year-old patient. Neither she nor the mother could calm the distraught child. With the child writhing and kicking, the needle accidentally pricked Namubiru’s finger; she stopped what she was doing, washed and bandaged her pricked finger, and returned to the child. She was eventually able to administer the injection.

Uncertain about whether the same needle was used throughout, the mother became concerned about the possibility that her child had been exposed to HIV. It was confirmed that Namubiru is HIV-positive and is on anti-retroviral drugs. The child was given an HIV test; the results were negative. A precautionary 2-month post-exposure prophylaxis regimen was initiated, after which the child will be re-tested.

Rosemary Namubiru was arrested in front of a bevy of journalists. She was held by the Criminal Investigations Department for four days before her first appearance in court. She was charged with attempted murder, which carries a sentence of up to life imprisonment, and remanded to Luzira National Prison to await trial. On February 7, 2014, she was denied bail and returned to prison to await trial.  Minutes before the trail began on February 11, 2014, the prosecutor announced the charge would be changed to “negligent act likely to spread infection of disease.”  With this new charge in place, the prosecutor began to call its witnesses, and the trial is ongoing.

Trial by media

Since the moment of her arrest, Rosemary Namubiru has been found guilty in the court of public opinion. Even though research has shown that the likelihood of HIV transmission from a needle puncture is miniscule––only 0.32% of those exposed to HIV through a subcutaneous puncture became infected––Namubiru has been singled out and vilified in the press because of her HIV-positive status.

Here are just a few of the libelous accusations that appeared in the media reports in the immediate aftermath of her arrest:

* An article with the headline “Killer nurse charged with attempted murder” went on to accuse Namubiru of “maliciously infecting her patients, mainly the children with her HIV positive blood.”

* Another claimed that she “drew her own HIV-infected blood and injected it into a two-year old child.”

* Shortly after Namubiru’s arrest, one article stated that police were “investigating allegations that the woman has been engaging in the act for a pretty long time.”

* An article that appeared in The Africa Report speculated about Namubiru’s mental state, calling her “the fiendish nurse” and claiming “the baby’s incessant cries drove her mad.”

* One journalist opined that “as police struggled to find an appropriate charge to punish such an evil act, it became clearer that our laws are inadequate to cover such emerging but deadly crimes.”

* An editorial about the case declared, “The majority of our doctors and nurses may well be great professionals, but it’s also true that among them are many people who do not harbour good intentions for one reason or another. These could be inherently evil-minded, bitter or mentally unstable.”

False and sensational accounts by irresponsible media can prejudice the outcomes of trials and violate the fundamental human rights of people living with HIV and AIDS. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be presumed to be innocent until proved guilty.”

A miscarriage of justice

Even before the trial began, serious questions surfaced regarding Rosemary Namubiru’s ability to receive a fair hearing. From the spectacle of her arrest—recorded by media who were clearly alerted in advance–-to the baseless original charge of attempted murder, and the rush to trial before the defense could prepare, it is clear that this is a sensationalized case.

Throughout the process, there have been numerous violations of Rosemary Namubiru’s rights:

* According to Section 23(4)(b) of the Ugandan constitution, an accused person can only be held for up to 48 hours before a hearing. Namubiru was held for four days before her first court appearance.

* The prosecution argued against granting bail, stating that Namubiru poses a grave risk to the public, even though there is no evidence of intent to commit any crime.

* Namubiru had no lawyer present when police extracted a statement from her; she was unable to access legal counsel until she had been in detention for a week.

* The Prosecutor claimed on February 7, 2014 that the State had completed its investigation and was ready to proceed to trial. Namubiru’s lawyers had not yet seen the State’s evidence, and were informed that they would receive the file the day before the trial was slated to begin. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be given adequate time and facilities for the preparation of his or her defence.”

What are the broader implications of this case?

HIV advocates fear that the Namubiru case could set a dangerous precedent, in terms of both the criminalization of HIV transmission and the treatment of people living with HIV and AIDS.

Many advocates worry that the case could be used to justify passing the proposed HIV Prevention and AIDS Control Bill 2010. The bill includes two overly-broad sections on the criminalization of HIV, as well as a number of other troubling provisions that would restrict the rights of persons living with HIV and AIDS. If the government moves to legislate the criminalization of HIV, specific groups—including pregnant women, who are easily identified within the chain of transmission—could be targeted for criminal charges. (For more on the proposed bill and its implications, please visit www.uganet.org).

AIDS-Free World unequivocally disagrees with the notion of having a separate criminal code for people who are HIV-positive. If a person attempts to do bodily harm to another, regardless of the means, the existing laws should apply. By creating laws that specifically criminalize HIV transmission, the courts place the emphasis on the person, rather than the crime.

The media frenzy created by this case illustrates the degree to which HIV stigma still exists. Many advocates warn that the introduction of HIV-specific laws would be a dramatic setback in efforts to eliminate discrimination, particularly in the workplace.

Expert global guidance on the criminalization of HIV transmission

In its landmark report, the Global Commission on HIV and the Law recommended that:

“To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV…exposure. Where such laws exist, they are counterproductive and must be repealed.

2.2. Law enforcement authorities must not prosecute people in cases of HIV…exposure where no intentional or malicious HIV transmission has been proven to take place.

2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.

—–

Rosemary Namubiru is being supported by several advocacy and human rights organizations, including the International Community of Women Living with HIV, Eastern Africa (ICWEA), Uganda Network on Law, Ethics and HIV/AIDS (UGANET), The National Forum of People Living with HIV in Uganda and AIDS-Free World (NAFOPHANU), and by individual HIV advocates including Canon Gideon Byamugisha, Milly Katana, Major Rubaramira Ruranga.

 

Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried

A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response.

Aimed at parliamentarians, ‘Effective Laws to End HIV and AIDS: Next Steps for Parliaments’ (aussi disponible en français) is a practical handbook showing which types of laws are helpful and unhelpful in the HIV response, and provides examples of legislation from around the world that have been effective in limiting new HIV infections.

It also includes case studies and interviews with some of the parliamentarians involved in law reform, most notably with Swiss MP Alec Von Graffenried whose last minute amendment resulted in the new Law on Epidemics containing a clause that only criminalised intentional disease transmission.

Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.

The Swiss Law on Epidemics was finally passed, following a national referendum, in September 2013.  However, it won’t come into effect until January 2016.

Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference.  It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.

Switzerland: Decriminalisation of unintentional HIV transmission and exposure

Alec Von Graffenried, MP, Switzerland, 2013. “I am delighted my amendment was successful. We can still prosecute for malicious, intentional transmission of HIV. But I expect those cases will be very rare. What has changed is that now people living with HIV – which these days is a manageable condition – will be able to go about their private relations without the interference of the law. They can access medical services without fear. All the evidence suggests that this is a better approach for public health.”

Name of act

The Epidemics Act 2013

Summary

Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).

Why the law is important for HIV

Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.

How and why was decriminalization of HIV transmission and exposure introduced in parliament?

In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.

In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.

Was cross-party support secured and, if so, how? How was a majority vote secured?

The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.

During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.

How long did it take to pass the law?

It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.

 

Read and/or download the entire publication below.

Effective Laws to End HIV and AIDS: Next Steps for Parliaments. Inter-Parliamentary Union, 2013