Uganda: Mapping of the legal environment shows how the current criminal justice system discriminates against people living with HIV

Published in the Daily Monitor on Febraury 22, 2019

Report shows how laws discriminate against HIV positive people

KAMPALA- Various existing laws criminalise people living with HIV/ Aids, according to a new report released in Kampala on Thursday.

The report is titled: “Draft report on the assessment and mapping of the legal environment on provisions of HIV and TB services to let populations, persons living with HIV and tuberculosis”

“The existing legal framework is not favourable for some categories of the key, vulnerable and priority populations to freely access health services in Uganda. Specifically, the lifestyles sex workers, men who have sex with men, transgender persons and makes them most affected by the existing legal framework in Uganda,” read part of the report

It adds: “The laws criminalise sex work, same sex relationships and drug use. This results into violence, harassment, disappointment of sex workers and their legal recourse to address injustice against them.” “The other law, the HIV and Aids prevention and Control Act although not specifically targeting key vulnerable and priority populations, has implications for both the general affected by HIV in Uganda.”

The report indicates that the HIV and Aids Prevention and Control Act 2014 provides for voluntary HIV testing in Sub Section 9. However, the voluntarism is not considered if a person commits a sexual offense as part of the criminal proceedings and yet Section 8 provides for identity of a person tested with HIV not to be disclosed or released to any person except in accordance with the law and medical standards.

The report was carried out by civil society organisation Center for Health, Human Rights and Development (CEHURD) in conjunction with Aids and Rights Alliance for South Africa (ARASA).

The current criminal justice system is also discriminative as it hands down more deterrent jail terms to those suspects found to be living with HIV than their counterparts that are not.

Reacting to the aforementioned finding, a law professor at Makerere University, Prof. Ben Twinomugisha, explained that sometimes it’s prudent for the prosecution to take an HIV test of a suspect accused of committing a sexual offense for purposes of securing a conviction.

However, he was also quick to say that this compulsory HIV testing will lead to violation of their human rights and that this will drive those infected away instead of going to hospital to get medication.

“But a civil society organisation and I, have since petitioned court challenging Section 43 of the HIV Prevention and Control Act about criminalization of HIV,” Prof. Twinomugisha said

“Why is it that a person suffering from Hepatitis B, which is more deadly than HIV are not subjected to a test when they commit a crime,” he wondered.

The study was carried out in three districts of Gulu, Mbarara and Tororo.

The study was mainly about the extent to which laws and policies protect and promote the rights of persons living with HIV/ Aids, let populations like sex workers, truck drivers and fishermen can access health care and services.

The HIV prevalence in Uganda stands at 6.2%. In 2016, approximately 1.4 million people were living with HIV and 28,000 Ugandans were estimated to have died of Aids-related illness.

The PJP Update – February 2019

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

Webinar: Media Strategy in HIV Criminalization Reform Efforts: After HIV Is Not a Crime III Series (PWN-USA, 2019)

For advocates working on campaigns to repeal or reform HIV criminalization laws in their states, the question about when it is and isn’t a good idea to seek press coverage, how to talk about the campaign to the press, and what options are available for controlling the message are all fundamental strategic questions. Positive Women’s Network-USA Communications Director Jennie Smith-Camejo talks strategy and best practices in this webinar based off the in-person breakout session at HIV Is Not a Crime III Training Academy in 2018 as part of the After HINAC III webinar series.

Webinar: Molecular HIV Surveillance (PWN-USA, 2019)

PWN’s Barb Cardell’s webinar on Molecular HIV Surveillance and its implications for marginalized communities living with HIV, including intersections with HIV criminalization.

Canada: Review undertaken as part of government’s examination of HIV nondisclosure laws confirms risk of sexual transmission when viral load is suppressed is virtually zero

Risk of sexual transmission of human immunodeficiency virus with antiretroviral therapy, suppressed viral load and condom use: a systematic review

Abstract

Background: The Public Health Agency of Canada reviewed sexual transmission of HIV between serodiscordant partners to support examination of the criminal justice system response to HIV nondisclosure by the Department of Justice of Canada. We sought to determine HIV transmission risk when an HIV-positive partner takes antiretroviral therapy, has a suppressed viral load or uses condoms.

Methods: We conducted an overview and systematic review update by searching MEDLINE and other databases (Jan. 1, 2007, to Mar. 13, 2017; and Nov. 1, 2012, to Apr. 27, 2017, respectively). We considered reviews and studies about absolute risk of sexual transmission of HIV between serodiscordant partners to be eligible for inclusion. We used A Measurement Tool to Assess Systematic Reviews (AMSTAR) for review quality, Quality in Prognosis Studies (QUIPS) instrument for study risk of bias and then the Grading of Recommendations, Assessment, Development and Evaluation (GRADE) approach to assess the quality of evidence across studies. We calculated HIV incidence per 100 person-years with 95% confidence intervals (CIs). We assigned risk categories according to potential for and evidence of HIV transmission.

Results: We identified 12 reviews. We selected 1 review to estimate risk of HIV transmission for condom use without antiretroviral therapy (1.14 transmissions/100 person-years, 95% CI 0.56–2.04; low risk). We identified 11 studies with 23 transmissions over 10 511 person-years with antiretroviral therapy (0.22 transmissions/ 100 person-years, 95% CI 0.14–0.33; low risk). We found no transmissions with antiretroviral therapy and a viral load of less than 200 copies/mL across consecutive measurements 4 to 6 months apart (0.00 transmissions/100 person-years, 95% CI 0.00–0.28; negligible risk regardless of condom use).

For full study see: http://www.cmaj.ca/content/190/46/E1350

US: PJP update – November 2018

The November 2018 edition of the Positive Justice Project newsletter is available here.

Update of global database on HIV specific travel and residence restrictions shows 49 countries restrict long-term stays and 13 have punitive laws

The Global Database on HIV-specific Travel & Residence Restrictions, a useful online tool regarding the cross-border mobility of people living with HIV/AIDS, was recently updated.

This is a joint collaboration between the International AIDS Society (IAS), the European AIDS Treatment Group (EATG), the German AIDS Federation (DAH) and Positive Council Switzerland.

Below you can find an update by the International AIDS Society, as it was shared with its members:

The global database was updated in July 2018 and shared at the 22^nd International AIDS Conference, Amsterdam, The Netherlands.

The good news:

Taiwan and South Korea have abolished all existing restrictions
Singapore has eased its laws and is now allowing short-term stays
Canada is making it easier for people living with HIV to obtain a residence permit
No country has introduced new legislation or punitive laws affecting people living with HIV
New information from several countries indicates they are “free of restrictions” (Belarus, Bosnia Herzegovina, Germany, Hungary, Indonesia, Rwanda and Turkmenistan)

The bad news:

Entry bars, restrictions for short-term and long-term stays persist, and many countries continue to deport people living with HIV.

Countries with entry bars:

Brunei, Equatorial Guinea, Iran, Iraq, Jordan, Solomon Islands, United Arab Emirates, Yemen. Russia is listed because a factual entry bar applies to multiple entry visa

Countries deporting people living with HIV:

Bahrain, Brunei, China, Egypt, Equatorial Guinea, Iran, Iraq, Jordan, Kuwait, Lebanon, Malaysia, Oman, Russia, Saudi Arabia, Solomon Islands, United Arab Emirates, Yemen

Thirteen countries have punitive laws affecting stays below 90 days. Forty-nine countries restrict long-term stays of more than 90 days. Laws and practices are unclear in 24 countries, while 143 countries have no restrictions. An overview on all restriction categories is available here.

Published on EATG website on October 9,2018

US: PJP Update – September 2018

The September 2018 edition of the Positive Justice Project newsletter is available here.

Bringing Science to Justice: End HIV Criminalisation Now

News Release

Networks of people living with HIV and human rights and legal organisations worldwide welcome the Expert Consensus Statement on the Science of HIV in the Context of Criminal Law

Amsterdam, July 25, 2018 — Today, 20 of the world’s leading HIV scientists released a ground-breaking Expert Consensus Statement providing their conclusive opinion on the low-to-no possibility of a person living with HIV transmitting the virus in various situations, including the per-act transmission likelihood, or lack thereof, for different sexual acts. This Statement was further endorsed by the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and 70 additional experts from 46 countries around the world.

The Expert Consensus Statement was written to both assist scientific experts considering individual criminal cases, and also to urge governments and criminal justice system actors to ensure that any application of the criminal law in cases related to HIV is informed by scientific evidence rather than stigma and fear. The Statement was published in the peer-reviewed Journal of the International AIDS Society (JIAS) and launched at a critical moment during the 22nd International AIDS Conference, now underway.

“As long-time activists who have been clamouring for a common, expert understanding of the current science around HIV, we are delighted with the content and widespread support for this Statement,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network, secretariat to the HIV JUSTICE WORLDWIDE campaign. “Eminent, award-winning scientists from all regions of the world have come together to provide a clarion call for HIV justice, providing us with an important new advocacy tool for an HIV criminalisation-free world.”

The Statement provides the first globally-relevant expert opinion regarding individual HIV transmission dynamics (i.e., the ‘possibility’ of transmission), long-term impact of chronic HIV infection (i.e., the ‘harm’ of HIV), and the application of phylogenetic analysis (i.e., whether or not this can be used as definitive ‘proof’ of who infected whom). Based on a detailed analysis of scientific and medical research, it describes the possibility of HIV transmission related to a specific act during sexual activity, biting or spitting as ranging from low to no possibility. It also clearly states that HIV is a chronic, manageable health condition in the context of access to treatment, and that while phylogenetic results can exonerate a defendant when the results exclude them as the source of a complainant’s HIV infection, they cannot conclusively prove that one person infected another.

“Around the world, we are seeing prosecutions against people living with HIV who had no intent to cause harm. Many did not transmit HIV and indeed posed no actual risk of transmission,” said Cécile Kazatchkine, Senior Policy Analyst with the Canadian HIV/AIDS Legal Network, a member and key partner organisation of the HIV JUSTICE WORLDWIDE campaign. “These prosecutions are unjust, and today’s Expert Consensus Statement confirms that the law is going much too far.”

Countless people living with HIV around the world are currently languishing in prisons having been found guilty of HIV-related ‘crimes’ that, according the Expert Consensus Statement, do not align with current science. One of those is Sero Project Board Member, Kerry Thomas from Idaho, who says: “I practiced all the things I knew to be essential to protect my sexual partner: working closely with my doctor, having an undetectable viral load, and using condoms. But in terms of the law, all that mattered was whether or not I disclosed. I am now serving a 30-year sentence.”

While today’s Statement is extremely important, it is also crucial to recognise that we cannot end HIV criminalisation through science alone. Due to the numerous human rights and public health concerns associated with HIV criminalisation, UNAIDS, the Global Commission on HIV and the Law, the UN Committee on the Elimination of Discrimination against Women, and the UN Special Rapporteur on the Right to Health, among others, have all urged governments worldwide to limit the use of the criminal law to cases of intentional HIV transmission. (These are extremely rare cases wherein a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit the virus.)

We must also never lose sight of the intersectional ways that — due to factors such as race, gender, economic or legal residency status, among others — access to HIV treatment and/or viral load testing, and ability to negotiate condom use are more limited for some people than others. These are also the same people who are less likely to encounter fair treatment in court, within the medical system, or in the media.

“Instead of protecting women, HIV criminalisation places women living with HIV at increased risk of violence, abuse and prosecution,” says Michaela Clayton, Executive Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The scientific community has spoken, and now the criminal justice system, law and policymakers must also consider the impact of prosecutions on the human rights of people living with HIV, including women living with HIV, to prevent miscarriages of justice and positively impact the HIV response.”

HIV criminalisation is a pervasive illustration of systemic discrimination against people living with HIV who continue to be stigmatised and discriminated against on the basis of their status. We applaud this Statement and hope it will help end HIV criminalisation by challenging all-too-common mis-conceptions about the consequences of living with the virus, and how it is and is not transmitted. It is indeed time to bring science to HIV justice.

To read the full Expert Consensus Statement, which is also available in French, Spanish and Russian in the Supplementary Materials, please visit the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161

VIsit the HIV JUSTICE WORLDWIDE website to read a short summary of the Expert Consensus statement here: http://www.hivjusticeworldwide.org/en/expert-statement/

To understand more about the context of the Expert Consensus Statement go to: http://www.hivjusticeworldwide.org/en/expert-statement-faq/

HIV JUSTICE WORLDWIDE is a growing, global movement to shape the discourse on HIV criminalisation as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration. It is run by a Steering Committee of ten partners – AIDS Action Europe, AIDS-Free World, AIDS and Rights Alliance for Southern Africa (ARASA), Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV (GNP+), HIV Justice Network, International Community of Women Living with HIV (ICW), Southern Africa Litigation Centre (SALC), Sero Project, and Positive Women’s Network – USA (PWN-USA) – and currently comprises more than 80 member organisations internationally.

Beyond Blame symposium highlights intersectionality of issues related to HIV criminalisation at AIDS 2018

Strategies to oppose the unscientific criminalisation of HIV transmission received a high profile at events in advance of the 22nd International AIDS Conference (AIDS 2018) in Amsterdam this week.

These included the launch by the Global Commission on HIV and the Law of a Supplement to its 2012 Report, Risks, Rights & Health, and the HIV Justice Worldwide symposium, Beyond Blame: Challenging HIV Criminalisation.