Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results

In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.

The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.

As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).

In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.

In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “. Thanks to quick action by local activists, the proposed reforms did not pass.

In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison. A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.

In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections. Only the states of Aguascalientes and San Luis Potosí do not have this law.

According to data from Letra S, at least 39 people have been prosecuted under this law between 2000 and 2016 on suspicion of having transmitted a sexual infection and / or HIV. The state with the highest number of registered cases is Veracruz, with 15; Sonora follows, with nine; Tamaulipas and State of Mexico, with five; Chihuahua, with three, and Mexico City and Nuevo León with a case.

Last year, the Veracruz Multisectoral Group on HIV / AIDS and STIs and the National Commission on Human Rights challenged the Veracruz law on unconstitutionality grounds at the Supreme Court of Justice of the Nation. The challenge was supported by HIV JUSTICE WORLDWIDE in a widely reported press conference last year. However, the Supreme Court has yet to rule.

As a result of the meeting, the Mexican Network of organisations against the criminalisation of HIV was formed, bringing together 29 organizations from all over the country. During, and immediately following the meeting, the Network drafted an 11-point Declaration addressed to various governmental agencies in charge of responding to the epidemic, as well as to society in general.

Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.

The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.

With two weeks of the meeting, Network representatives met with Congresswoman Laura Beristain, who had proposed the new unjust, overly broad HIV criminal law in Quintana Roo. She listened to their arguments, read the Declaration, and immediately gave a firm commitment to repeal Quintana Roo’s problematic provisions in Article 113.

Watch and share short video below about the meeting and the Network’s immediate advocacy win.

UK: Avon and Somerset Police apologise after being accused of spreading misinformation over the use of spithoods and HIV transmission

Avon and Somerset Police apology over spit hood statement

Avon and Somerset Police has apologised after announcing officers would wear spit hoods to prevent the transmission of diseases.

In a statement last week it said: “Each day we face being spat at, putting us at risk of HIV, hepatitis and tuberculosis”.

However several HIV and AIDS organisations have accused the force of spreading misinformation.

NHS guidelines state that HIV cannot be transmitted through saliva.

In a statement on Twitter, the force said: “We did not mean to cause any offence to people living with HIV or Hepatitis B or Hepatitis C, and we are very sorry if this has been the case.

“It was never our intention to reinforce stigma for people living with those conditions.

“Our aim has never been to focus attention on people living with health conditions, but to provide officers with means of protection from people who use spit as a weapon.”

‘Fuels misconceptions’

The British HIV Association said: “To be spat at is frightening and degrading and we really do empathise. But spitting does not, under any circumstances, transmit HIV.

“Suggesting that it might only fuels the misconceptions and stigma people with HIV face daily. Please don’t use HIV as justification for spit guards.”

Bristol-based HIV charity Brigstowe Project added: “We understand and sympathise with the need for police protection but implore Avon and Somerset Police to justify this using facts, not fiction.”

Avon and Somerset Police plans to introduce controversial spit hoods from January.

The transparent mesh fabric hoods are used to prevent those arrested from spitting or biting officers.

Published in the BBC on Nov 22, 2017

Africa: Civil society organisations deliver statement condemning HIV criminalisation at African Commission on Human and People's Rights

MEDIA RELEASE: Civil society statement on the criminalisation of HIV at the 61st Ordinary Session of the African Commission on Human and People’s Rights

6 November 2017

BANJUL, The Gambia—Civil society organisations working on HIV and human rights, delivered a statement at the 61^st Ordinary Session of the African Commission on Human and People’s Rights condemning the disturbing trend of the enactment of repressive HIV specific laws which often contain provisions that criminalise HIV, transmission, non-disclosure and exposure. These laws also often provide for compulsory HIV testing, disclosure of HIV status and involuntary partner notification.

“These provisions are overly broad and disregard the best available scientific evidence. They fail to pass the human rights test of necessity, proportionality and reasonableness; rather, they have the effect of exacerbating stigma, discrimination and prejudice against people living with HIV. These measures undermine both an effective public health response to the HIV epidemic, as well as the human rights of people living with HIV,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA).

In sub-Saharan Africa, while there were no HIV-specific criminal laws at the start of the 21st century, 31 countries have since then enacted overly broad or vague HIV-specific criminal statutes. These laws and policies provide, inter alia, for the criminalisation of HIV transmission, exposure and non-disclosure despite the fact that in all of these countries there are existing penal provisions which can be invoked in those rare cases of intentional HIV transmission. The number of prosecutions continues to rise at an alarming rate in countries where HIV specific criminal laws have been promulgated. To date, prosecutions have been documented in 16 countries.[1]

“We are concerned that the current advancements in the HIV response in Africa are being threatened by the misguided use of criminal sanctions by States, to – as they argue – ‘control the spread of the HIV epidemic’. These laws, policies and practices violate the rights of people living with HIV and of all healthcare users to informed consent, bodily integrity, dignity, freedom from inhuman and degrading treatment, and fair trial rights, amongst others. The protection of these rights is specifically provided for in Article 4 (bodily integrity), Article 5 (dignity), Article 7 (fair trial), and Article 16 (right to health) of the African Charter,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre.

Women living with HIV face surveillance and state control in terms of their reproduction, family planning, childbirth, child feeding, and child raising choices. In many contexts, HIV criminalisation laws, policies, and practices have a disproportionately punitive effect on women, as evidenced by recent cases. For example, in Malawi a woman living with HIV was prosecuted for breastfeeding. In addition, there are numerous examples of prosecutions of people living with HIV in Zimbabwe, Uganda, and Nigeria, particularly women. In our patriarchal societies, it is women who already disproportionately face the burden of the HIV epidemic due to their inability to negotiate protective sexual intercourse in relationships, and are often the first to be tested for HIV.

“We, however, would like to recognise the positive developments made by some African countries due to consistent advocacy on the part of civil society. Two countries have strongly rejected HIV criminalisation: Mauritius in 2007 and Comoros in 2014. Furthermore, Mozambique revised its HIV law in 2014 to remove HIV criminalisation, and in Kenya the High Court has ruled that section 24 of HIV Prevention and Control Act 2006, which forced people with HIV to disclose their status to any ‘sexual contacts’, was found to contravene the Kenyan constitution that guarantees the right to privacy,” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).

As HIV and human rights organisations we call on the African Commission on Human and People’s Rights to take leadership in protecting the rights of people living with and affected by HIV, including women living with HIV by:

Encouraging and reminding member states about their obligations under the African Charter and the Maputo Protocol, including Resolutions adopted by the Commission;
Reminding states of their duties and mandates to protect and promote the rights of people living with and affected by HIV, including women and girls who are vulnerable to HIV, by prioritising the urgent needs for access to justice and the upholding of the rights to bodily integrity, autonomy, and health;
Calling on states to repeal laws that unjustly criminalise HIV transmission, exposure, and non-disclosure.

The full statement can be found here: HIV_Criminalisation_statement__African_Commission_SALC_ARASA.pdf

Signed:

AIDS and Rights Alliance for Southern Africa http://www.arasa.info

Centre for Human Rights Education, Advice and Assistance http://chreaa.org

Centre for the Development of People http://www.cedepmalawi.org

Coalition of Women Living with HIV in Malawi https://cowlhamalawi.wordpress.com

Southern Africa Litigation Centre https://southernafricalitigationcentre.org

Women Lawyers Association of Malawi https://womenlawyersmalawi.com

Zambia Network of Religious Leaders Living With or Affected by HIV and AIDS http://zanerela.weebly.com

[ENDS]

US: Trevor Hoppe, author of Punishing Disease, talks about HIV criminalisation and homophobia

Last week, the Missouri trial of Michael Johnson ended when Johnson pled guilty to HIV exposure to get 10 years in prison, rather than the maximum of 96 years he might face if his case went to trial.

For many people who are diagnosed with HIV today, it is a chronic manageable disease, and more and more health officials agree that people who are HIV-positive and undetectable don’t transmit the virus. But, in the eyes of the law in many states, an HIV-positive person’s sexuality is something to be handled by the criminal justice system.

For National Gay Men’s HIV/AIDS Awareness Day, INTO spoke with Trevor Hoppe, author of Punishing Disease: HIV and the Criminalization of Sickness, due out November 14th, about HIV criminalization laws. Hoppe enlightens us on why they’re bad, why they’re homophobic and why they should be tossed out.

One of the arguments you bring up in your book is that a lot of these HIV criminalization laws that we live with now were never really, when they were written, they were framed as fighting HIV, but they came from a place of “mortality” rather than trying to combat the spread of the virus.

Definitely. So that’s one of the points that I’ve been making in my research is that from day one, criminal justice officials and police have been lobbying for these laws on the basis that they wanted to punish people living with HIV. In particular, in the early days, police were very frustrated with prostitutes who were living with HIV who they couldn’t put behind bars for more than a couple of months because prostitution was a misdemeanor.

So they were seeking a felony penalty so they could keep these mostly women behind bars for longer periods of time. Then it transitioned from a kind of fear of sex work to a fear of gay sex and homophobia. It’s never been about public health. It’s always been about punishment and irrational fears — using punishment to police irrational fears of HIV.

When AIDS hit in the 1980s, the people that were most likely to be affected were people who Americans thought were already criminals — drug users, prostitutes, homosexuals. Highly denigrated groups of people whose behaviors were thoroughly criminalized under existing law already. It wasn’t a stretch to move from blaming these groups from spreading the disease to calling for them to be punished using the criminal law.

One of the things you mention in the book is that HIV transmission became a felony because sodomy was already a felony and they didn’t want to allow people to get away with sodomy to talk about an HIV transmission charge.

There was all this fear, particularly in Nevada, but in other places as well, that if we repealed the sodomy laws in place at the time, there would be this massive outbreak of HIV because if you made gay sex legal, it would be more permissive and people would go out and infect each other.

There was this great anxiety that this would happen. So one of the deals that got struck in many states was, OK if we decriminalize sodomy, at the same time we have to find a way to criminalize people living with HIV because we’re scared without a law criminalizing their behavior, the epidemic is going to run rampant.

One of the things I noticed in your chapter was that these HIV criminalization laws, you mention them being poorly written. They really remind me of the religious freedom acts now, where state legislatures kind of copy one another and lawmakers look at one another’s paper. It really just makes these easy McBills that are copied from state to state.

We have this idea that all state lawmakers get together and craft this individual, well thought out piece of legislation. Really, the way it works is that we have these lobbying groups like the American Legislative Exchange Council that create model statutes and then shop them out to legislatures across the United States. So we have a copy and paste situation for most states and that’s part of the reason we have so many messed up laws with HIV because most states didn’t take the time to think about the issues, they just copied what neighboring states were doing and said, “Well that’s good enough!”

I’m really interested in this parallel that you draw between HIV criminalization laws and early 20th century eugenicists and the ways these laws are about controlling a population. Can you elaborate on that?

There’s a long history of using the criminal law, but also the civil law and public health to control to populations that we think are dangerous, and often times that determination is based on prejudice. We have quarantine laws being more strictly enforced against Chinese populations in San Francisco. We have sex workers being rounded up in World Wars I and II because they were seen as vectors of syphilis and other diseases.

All these efforts frail from a public health perspective because they’re not aimed at controlling disease, they’re aimed at controlling stigmatized populations and controlling them because they’re members of that social group.

A lot of people don’t know there was a movement in the United States for a time to quarantine people living with HIV. You show in this chapter that one of the architects of the early HIV criminalization laws was also a fan of quarantining people with HIV.

These things went lock and step. You had people like William F. Buckley arguing that people diagnosed with HIV should be tattooed immediately upon diagnosis. You had public health experts publishing articles in the American Journal of Public Health arguing for what they called an “HIV parole system” which was effectively quarantine with the possibility of jail time if you didn’t shape up and act in a way they deemed appropriate.

There was a really widespread effort to try to regulate people living with HIV and it was really AIDS activists that we have to thank for the fact that many of those laws never came to fruition and that we don’t have quarantine for people with HIV.

Most of these laws, as we talked about earlier, end up punishing heterosexual people, but we know that one of the most high profile cases of HIV criminalization is Michael Johnson and HIV still disproportionately affects queer people. So these laws can end up criminalizing queer sexuality still.

Absolutely. We can’t just look at who is being punished under the law, we also have to think about those other effects of how the law creates or reinforces the symbolic stigma against people living with HIV.

I know plenty of people living with HIV who live in fear that their partners will turn on them or a one-night stand can land them in jail even though they did everything they could to protect that person and, in many cases, even if they disclose. There’s still this concern that their partner, whether a one night stand or a partner, can at one point wish revenge on them. That fear is really a dangerous thing.

It’s not productive, certainly from a public health perspective. It’s emotionally draining and interesting. Really, it’s not the way to live. I think these laws are more likely to do the opposite of what they’re supposed to do. These laws are poorly written, badly construed, bad for public health, and, most importantly, bad for social justice.

What would you say to another gay man who felt like these laws actually did protect them from people living with HIV?

I think many gay men have an idea of who is being prosecuted under these laws. They imagine it to be a kind of bogeyman intentionally trying to spread the disease to their partners. They have this scary image in their mind of who is being targeted.

When I went out to research these laws, I did not know who the average person being convicted under these laws was. What I found is that the vast majority of defendants are not this scary bogeyman. They’re someone who slipped up once and they owned up to the mistake and expressed regret about it or they’re someone who was in a relationship and was struggling with how to disclose in the beginning of that relationship. There are a lot of scenarios that are far more likely to play out instead of this bogeyman scenario that most people have in their heads.

I would ask people to take a moment and not just think about the worst case scenario but think about who is being punished under these laws. They’re people like a defendant in Tennessee who attempted suicide, woke up in a hospital distressed and bit a hospital attendant and was prosecuted under Tennessee law. If you really get down to brass tacks, those are not the people they think should be punished.

And yet that’s exactly who those laws are being used to punish. There’s a disconnect between how we think the law works and how the law actually does.

People still believe that HIV is an illness of personal responsibility. When HIV-negative people imagine these laws, they imagine an HIV-positive person who in the first place must have done something wrong to get it, and then they imagine that this person might do something wrong again because they’re already morally flawed. They don’t understand that HIV is a disease of poverty, racism, homophobia, and stigma and that they themselves can one day be on the other side of the law very easily. And in America, if you do something bad, you deserve to be behind bars!

These laws are based on the idea that telling someone you’re HIV positive will surely cause them to have a different kind of sex with you or no sex at all. And really at the end of the day we have so many prevention technologies now — PrEP, treatment as prevention — that can stop transmission in its tracks when you have sex with someone living with HIV.

The evidence really suggests that the best way to get HIV is to avoid having sex with HIV-positive people and only have sex with people who think they’re HIV negative. If you think you’re keeping yourself safe by relying on people to disclose your status to you, you have another thing coming. The people most likely to transmit are people who don’t know they’re positive because their viral loads are high because they’re not on treatment.

It’s a false security blanket for many HIV-negative gay men and that’s what I guess at the end of the day, for our day to day lives, is the most important point. Have sex with someone who’s positive. That’s your best prevention strategy given the technologies that are available today!

Published in September 28, on Into

Australia: Amendment to New South Wales Public Health Act, with its punitive focus on STIs transmission, risks undermining the Act intent

Is one person to blame if another gets a sexually transmissible infection (STI)? In most Australian states, if you have certain STIs, you have a legal responsibility to notify your potential sexual partners.

The NSW government last week passed an amendment to the state’s Public Health Act that increased the associated penalties by doubling the maximum fines and adding potential jail time.

Section 79 (1) of the Act now reads:

A person who knows that he or she has a notifiable disease, or a scheduled medical condition, that is sexually transmissible is required to take reasonable precautions against spreading the disease or condition.

Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.

In addition to increasing potential penalties, the amendment removed an earlier provision mandating disclosure of STI status, replacing it instead with the need for “reasonable precautions”.

This is a positive change for the law that reflects the best available research on STIs and transmission. Yet its coupling with increased penalties has sent a mixed message about sexual health in the state.

Further, the idea that punishing STI exposure or transmission will decrease rates of infection is not supported by global research on HIV, and there is no reason to believe this would be any different for other STIs.

Laws across Australia

Health law is pretty complex and mainly left up to each state and territory. Generally speaking, across Australia you risk some kind of punishment for knowingly infecting another person with what are often referred to as “notifiable diseases”. This list covers a range of infections but STIs include chlamydia, gonorrhoea, syphilis, HIV, shigella, donovanosis, and hepatitis a, b and c.

In some states, notably New South Wales, Tasmania and Queensland, it’s an offence just to knowingly expose someone to an infection, even if they don’t actually become infected. While in other states, like Victoria and South Australia, health acts do not specify penalties for exposure or transmission, referring instead to the respective crime acts. For the most part, curable STIs do not rank as serious enough for criminal prosecution.

What is unique about NSW is that it uses the Public Health Act to single out STIs and describe specific punishments above and beyond other infections.

Although laws in NSW seem unusually fixated on STIs, the move away from mandated disclosure in favour of “reasonable precautions” is a positive step. While disclosure may seem sensible on the surface, it’s not the most effective at preventing transmission. This is because disclosure requires that someone be aware of an infection and many people with an STI don’t realise they are infected. For example, it’s estimated nearly three quarters of chlamydia infections in young people in Australia go undiagnosed every year. Relying on disclosure can, therefore, give people a false sense of security.

There are other more effective strategies than disclosure for protecting someone from infection. With HIV, for example, successful treatment means the risks of transmitting the virus to another person are virtually nonexistent. Under the amended NSW law, treatment could quite rightly be considered a reasonable precaution to avoid transmitting HIV.

But the state’s Public Health Act is relevant to all STIs, not just HIV. For other infections, it’s less clear what precautions might be seen as reasonable. Condoms can offer protection from some infections, but not all, and they are rarely used for oral sex. Given more and more chlamydia and gonorrhoea cases are identified in the throat, this is potentially problematic.

Punishment doesn’t help

Every year, there are over 100,000 STI diagnoses across Australia, the vast majority of which can be cured using antibiotics. Ultimately, public health initiatives aim to reduce new cases and lower the overall amount of infection.

It’s been suggested by public health experts that criminalising transmission can undermine public health efforts by reinforcing stigma and causing people to delay accessing testing, treatment and care.

And in a review of legal conditions around the world, researchers found that there was no link between laws criminalising HIV transmission and lower infection rates. The review also found such laws disproportionately impacted those who may experience marginalisation, such as young people and women.

In reality, situations where an individual recklessly or wilfully places another at risk of an STI are incredibly rare and health officials have many options besides punishment.

As part of their core work, doctors and clinics counsel on and work with people to prevent onward transmission, and in some cases public health orders can be used to compel people to, among other actions, attend counselling and refrain from activities that might spread an infection. In the most extreme situations, criminal charges can be brought on the basis of grievous bodily harm.

Overall, a special and punitive focus to STIs risks further entrenching stigma and undermining the Act’s intent, which is to manage and reduce infection. If there is any hope of reducing STIs in Australia, laws must aim to foster an environment where people feel comfortable, able and willing to get tested and engaged with their sexual health.

While it seems unlikely a rush to prosecute those who expose others to STIs will spring up from this amendment, the law as it is currently written leaves open that rather serious possibility. In NSW and across Australia, health law consistently places the burden of prevention on one partner. In an ideal world, all parties to a sexual encounter take “reasonable precautions” to protect themselves and each other from infection.

FCAA Philanthopy Summit: Growing the Global Movement to End Criminalization (Funders Concerned About AIDS, 2017)

This session aimed at philanthropic funders discussed the growing global movement to end HIV criminalization – overly broad and/or vague criminal laws, that unjustly regulate, control, and/or punish people living with HIV solely based on their HIV status. The panel’s participants exemplify the uniqueness of the Robert Carr Fund model of incentivizing collaborative and joint efforts of networks across movements – who join into consortia of, for example, people living with HIV and human rights defenders/lawyers – and the model of linking activities at global, regional and national levels, which catalyzes a more aligned and impactful effect in resisting and fighting HIV criminalization.

Moderator: Sergey Votyagov, Robert Carr Fund for Civil Society Networks (RCF)
Introduction: Luisa Cabal, Joint United Nations Programme on HIV/AIDS (UNAIDS)
Panelists:
• Edwin Bernard, HIV Justice Network (HJN)
• Laurel Sprague, Global Network of People Living with HIV (GNP+)
• Lynette Mabote, AIDS and Rights Alliance for Southern Africa (ARASA)

Brazil: Activists celebrate as ‘deliberate HIV transmission’ law amendment is withdrawn

Yesterday, news broke that populist Congressman, Pompeo de Mattos, has withdrawn an amendment originally proposed in 2015 to make ‘deliberate’ HIV transmission a ‘heinous crime’.

The amendment, Bill No. 198, 2015, would have added to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – those who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

According to Brazil’s AIDS News Agency

In Brazil, intentional transmission, that is, with intent, is already considered a crime. Articles 130 and 131 of the Penal Code already provide for imprisonment for those who infect others. Anyone who exposes someone to a venereal disease through sexual intercourse can be jailed for three months to a year or receive a fine. If the person intentionally wants to transmit the disease, the penalty is imprisonment, from one to four years, and fine.

“The initiative to criminalize HIV-positive people does not contribute to the fight against prejudice and discrimination, and it also throws the responsibility of prevention on the infected person,” says a statement released on Thursday by Foaesp Of the State of São Paulo).

In this same document, the Forum thanked Mr Pompeo for his request to withdraw from the PL. “We are now waiting for the House Board to abide by the request and file the bill, and we will also be careful that no other parliamentarian has a similar initiative.”

Activists from all over Brazil have celebrated the Bill’s withdrawal. Any new proposal cannot be considered by the current parliament and now must wait until after elections, scheduled for October 2018.

Since 2015, PLHIV networks, civil society organisations, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health, and a number UN agencies – includng UNAIDS and UNFPA – had all pressured Congress to withdraw the bill.

Update (September 4th). A press release by the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health notes:

The director of the Department of STDs, AIDS and Viral Hepatitis (DIAHV), Adele Benzaken, called the federal MPs Érica Kokay (PT-DF), member of the Family Social Security Commission (CCSF) and Coordinator of the Joint Parliamentary Front to Combat STDs, HIV , and AIDS – and Laura Carneiro (PMDB-RJ) and Deputy Pompeo de Mattos to thank them for their support against the procedure of PL 198/15. ““The effort of these parliamentarians was essential to educate their colleagues in the House to reassess that Brazil is a reference in the treatment of HIV / AIDS and that this will not help the Brazilian response at all.“ The director of DIAHV also highlighted the mobilisation made by civil society and the support of the Brazilian Office of the Joint United Nations Program on HIV / AIDS (UNAIDS) that she said were key to the outcome achieved with the filing request.

On July 3rd, the United Nations Expanded Thematic Group on HIV / AIDS (WG / UNAIDS) chaired by UNFPA, met to articulate opposition to the Bill.

For the UNFPA representative in Brazil, Jaime Nadal, the bill goes against the ideals and proposals of the United Nations regarding the HIV / AIDS epidemic. Criminalizing HIV transmission, in addition to reinforcing the stigmatization of people living with the virus, may discourage people from undergoing testing and treatment, since they would be under threat of becoming criminals, he said.The bill ignores the scientific advances in HIV / AIDS, which prove that antiretroviral treatments reduce the chances of transmitting the virus in sexual intercourse by up to 96%. “Many countries around the world are reforming their laws criminalising HIV transmission,” said Nadal, adding that the bill goes against the global trend.

UNAIDS Director in Brazil, Georgiana Braga-Orillard, reinforced the speech of the UNFPA representative. According to her, the bill further vulnerabilises populations with a positive serological status, since “it considers the more than 800 thousand people living with HIV in Brazil as potential criminals.”

In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favours the selective application of the law; it disregards the scientific evidence on HIV; it compromises privacy and confidentiality, and it will make Brazil lose its leading role in the response to HIV / AIDS.

A public meeting with the Congressman, scheduled for July 4th, was cancelled at the last minute. However, the letter of withdrawal, although only publicly released yesterday, was dated May 11th.

I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which "makes a heinous crime the deliberate transmission of the AIDS virus." — Translation: I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which “makes a heinous crime the deliberate transmission of the AIDS virus.”

Nevertheless, prosecutions under general laws continue.

In July, a newspaper reported that a 43 year-old heterosexual man was charged with serious bodily injury in a Rio de Janeiro court for ‘attempting to infect two women with HIV’ by having sex without a condom.

In an interview with the Rio newspaper Extra , the man admitted that he was HIV-positive and [allegedly] transmitted HIV to the women, but denied that he had had sex without a condom with the intention of infecting his partners.

The case continues.

US: PWN-USA gives an overview of HIV criminalisation and its impacts

HIV Criminalization: A Concept That Has to Be Talked About

by Emili Ema Sedlar

The topic of HIV is an issue many people are uneducated in, especially when bringing up different complex fragments that are connected with HIV and how they influence the lives of people living with HIV. Unfortunately, most people today lack knowledge, understanding and curiosity in the basic information on HIV, thus many don’t know how understand how laws and policies impact people living with HIV. This is where the issue of HIV criminalization comes in–a topic that many, unfortunately, don’t think about these days, since many don’t know it exists or do not understand its impacts. But it has become one of the most crucial issues for HIV/AIDS activists today.

According to the Center for HIV Law and Policy, in 36 US states, people living with HIV have been arrested, accused and prosecuted against for having consensual sex, biting and spitting. In addition to this, since 2008, there have been more than 260 cases reported of HIV criminalization under states in which there are HIV specific laws and in states where there were broad terms for bodily fluids or sex work. Because of these gruesome and unjust laws, people living with HIV are a specific target, living in fear and stigmatized for their status. Also, many people are illiterate about these prejudiced laws, which break the basic principles of human rights and instead of asking questions; many ignore the issue of HIV criminalization that is present in their country. This kind of mentality has to be stop, and an open educational and informational dialogue has to begin.

Unfairness in the justice system

Monique Howell is a veteran who served in the US army. She is now a stay-at-home mom of three boys and a motivational speaker. “I have been criminalized for living with HIV for nondisclosure by having unprotected sex with another soldier. I was put on trial. The other soldier did not get the virus,” Howell explained.

Furthermore, Howell described that if convicted, she was looking at 8 to 12 years. “They moved me out of my house and into a single soldier barracks where I was monitored day in and out while on trial. They ended up dropping all my charges and released me out the military,” Howell further illustrated.

Howell knows many others fighting today against HIV criminalization and pointed out how this is a long, challenging road to bringing justice to many today who are accused of criminal acts for living normal lives with HIV. “The SERO Project has been working countless hours trying to make these laws accurate and up to date. Not only the SERO Project, but others have started campaigns and partner up, including PWN-USA with the SERO Project, to come together with ideas on how we can continue to head in the right direction with HIV criminalization,” she finally added.

Hope to Educate About HIV Criminalization

Toward the end of the conversation, Howell depicted how she still has hope of creating a society in which people will be educated about HIV and changing the laws that stigmatize and create fears for those living with HIV. “My hopes is that we are treated fairly and not treated based off society’s ignorance. We must educate one another.”

Ken Pinkela was in the US army for 29 years. He is currently working with the SERO Project as the Military Policy Director and runs communications/social media for the project. Pinkela was falsely accused and prosecuted for HIV exposure by an Army Lieutenant. “With no investigation or evidence of any kind (physical or medical), I was courtmartialed and convicted of then an aggrevated assault (which was later dropped to assault and battery via an important US Air Force HIV case).”

The US military does not have authorization nor do they have a congressinally authorized charge related to anything HIV, Pinkela revealed. Pinkela emphasized how he has received unfair and unjust treatment from the Army, in which he was stopped from being deployed and having overseas assignments. Even though there has been slow progress in the military, the changes have still been valuable; one of them is the US Air Force case, “US vs. Gutierrez,” in which the court has recognized the benefits of advanced medicine and science. However, even though this kind of recognition exists, there are issues that still negatively impact service members who are HIV positive.

“HIV positive service members are singled out and given an order that is known as the Safe Sex Order, which threatens that any sexual contact with or without a condom is subject to prosecution, even if the service member discloses their HIV status,” clarified Pinkela.

Moreover, Pinkela illustrated how service memebers living with HIV are seen as sexual deviants; thus there is a big gap between those who are HIV negative and those who are positive. In the end, Pinkela described how he hopes that the HIV Discrimination Act will be passed. Just this year in March, the bill (HR 1739) was re-introduced in the US House of Representatives.

Perspectives from advocates and activists

In the last couple of years, there has been significant progress and work into modernizing HIV specific laws. For example, in 2016, Colorado modernized their STI codes, which included the repeal of HIV specific status. Their coalition effort was spearheaded by Positive Women’s Network – USA Colorado.

In 2014, Iowa modernized their HIV specific laws. Tami Haught is one of the activists who helped change those laws, where she led community forums to educate communities, lobby legislators and organized CHAINS’s state lobby day. This kind of initiative started way back in 2004 and was active in 2009, when many activists and advocates gathered and realized they needed to bring a change.

Currently, Haught is the SERO Project’s Organizing and Training Coordination and is helping and supporting different states to modernizes their HIV specific status. Haught explained that one of the greatest issues of HIV criminalization is the lack of knowledge about this problematic issue. “People living with HIV are generally aware of these laws. The general public is very unaware about basic HIV facts. People are still unaware of how HIV is transmitted so a lot of misinformation is still available to people.”

Haught described that with HIV criminalization can come another horrific factor that deeply impacts a person’s life: sex offender registration. One of the worst case scenarios of an HIV criminalization case came from Iowa. “One-time sexual encounter, protection was used, person living with HIV was medically adherent ad virally suppressed, so there was no exposure to HIV–zero risk of harm. However, Iowa’s law was a disclosure law, the person living with HIV was unable to prove disclosure, so he was charged, convicted, and sentenced to 25 years of jail and lifetime sex offender status. This was consensual sex between two adults,” explained Haught.

However, the judge reconsidered his case and he was released from prison. Once the law was modernized in 2014, people accused of HIV criminalization were removed from the sex offender registry list.

Everyone matters to us

Haught explained how today, the SERO Project is doing everything they can to help not only modernize the laws, but to help people impacted by HIV criminalization laws. They have their own Survivor’s Network which offers different programs to support those who need the most. “Cindy Stine communicates with people and runs the Christmas Card project to send greeting to people currently incarcerated to let them know they matter and are not forgotten, offering hope and hopefully comfort to a group of people other would ignore or throw away. Everyone matters to us,” said Haught.

Kamaria Laffrey is currently fighting against HIV criminalization as the Florida Community Organizer for The SERO Project. Laffrey mentioned how more and more people today are aware of the problematic issue of HIV criminalization, since there are many networks collaborating together in the fight against HIV criminalization. “The SERO Project, PWN, The Center for HIV Law & Policy, HIV Justice Worldwide and many others are instrumental in building skills for advocates to go into their communities and educate other people living with HIV, public health experts, legislators, law enforcement entities, and even trauma center response facilities,” explained Laffrey.

However, Laffrey also revealed the situation in Florida when it comes to HIV criminalization. “The laws in Florida were passed in 1986. Between the years of 1988-2016, Florida has convicted 99 people under HIV criminalization laws. These laws differ by region, demonstrating differences in behavior, prosecutor attitudes or local political culture. Of those 99 cases, 53 of them were women. As of 2014, women accounted for 28% of all people living with HIV; however made up 54% of those convicted under the laws,” explained Laffrey.

A future to collaborate with different activists

Laffrey’s future plan is to help out people that are victims of HIV criminalization; she will organize and collaborate with different networks working to eradicate HIV criminalization laws. “I personally plan to continue to conduct the workshop Be the Change You Seek: Engaging in a Resistant Community to challenge people to understand that the vagueness of our laws is intentional, and that we don’t have to accept them just because they are on the books when they are used to wrongfully prosecute a group of people,” explained Laffrey.

In the same way, one of her greatest hopes for other activists and advocates is to fight for education, so that people will become more aware and conscious about the unfairness of HIV criminalization laws and the way they impact people’s lives. That way, people will be able to fight together to change these outdated, discriminatory laws.

Africa: Moving towards revolutionising approaches to HIV criminalisation

“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr Ruth Labode, a member of Parliament from Zimbabwe opening remarks at a two-day global meeting co-hosted by the AIDS and Rights Alliance for Southern Africa (ARASA) and HIV Justice Worldwide (HJWW) on 24 and 25 April 2017 in Johannesburg, South Africa, which focused on “Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission”.

The meeting was attended by advocates, civil society organisations, lawyers, judges, national human rights institutions and Members of Parliament from all over Africa and with some delegates from North America. Central to these deliberations was the draconian provisions within numerous HIV-specific laws being developed as government responses to the prevention and control of the HIV epidemic. The good intentions inherent in these pieces of legislation are often marred with provisions, which criminalise people based on their HIV status. Punitive provisions relating to ‘compulsory testing’, ‘involuntary partner notification’, ‘non-disclosure’ and ‘transmission’ of HIV are often cited, fueling stigma against people living with HIV.

The common theme binding these deliberations, was the negative impact of HIV criminalisation and the stories that were shared by colleagues. The increasing trend of imposing criminal sanctions against people living with HIV, had resulted in adverse impact on public health outcomes for certain populations, especially women. While reinforcing stigma, HIV criminalisation impedes access to sexual and reproductive health services such as condoms, HIV testing and treatment. Further, HIV criminalisation discourages HIV-positive women from accessing ante-natal care, which leads to increased maternal and child mortality. The overly broad and vague nature of most HIV specific laws, accompanied by the imposition of criminal sanctions without empirical or scientific support, further underpins the rift between public health goals and the protection of human rights.

Representing the AIDS Legal Network, one of the partners who led the development of the 10 Reasons Why Criminalisation Harms Women, Johanna Kehler mentioned the fact that, “HIV criminalisation and HIV specific laws are often set against a social milieu that is patriarchal, heteronormative and perpetuates gender inequalities and utilises punitive approaches to “correct” imbalances.” She went on to add that these laws ultimately maintain and widen the divide between public health needs and human rights obligations.

“Most prosecutions globally involve no or negligible risk of transmission. Among the thousands of known prosecutions, cases where it was clear, much less proven beyond reasonable doubt, that an individual planned on or wanted to infect another person with HIV, are exceedingly rare. People are being convicted of crimes contrary to the best public health advice, but also contrary to scientific and medical evidence”, said Dr Laurel Sprague of the HIV Justice Network, who has since become the Executive Director of the Global Network of People Living with HIV (GNP+).

During the meeting, various organisations shared their experiences around litigating these matters and community advocacy mounted to reform problematic laws or specific draconian provisions. Cases from Zimbabwe, Nigeria and Niger showcased that challenges were experiences in most contexts.

The Uganda Network on Law, Ethics & HIV/AIDS (UGANET), together with other advocates and activists, continue to challenge the Ugandan law and constitutionality of the criminalisation provisions contained in the HIV Prevention and Control Act of 2014. The Southern Africa Litigation Centre (SALC) spoke to the extensive work that they furthered in Malawi, which included a focus on arbitrary arrests and dentition. Malawi has taken the centre stage where HIV criminalisation is concerned, as they are currently in the process of tabling a decade-old Draft HIV and AIDS (Prevention and Management) Bill, which contains draconian provisions around HIV criminalisation.

Amplifying the voice of survivors of HIV criminalisation, the meeting was privileged to engage with Kerry Thomas via telephone from a state correctional facility in Boise, Idaho in the United States of America. Mr Thomas, who was prosecuted for HIV non-disclosure and the sentence that he is serving, reinforced the unjust nature of these laws. Mr Thomas is currently serving his eighth year out of a 30-year sentence for non- disclosure to his ex-partner, despite there being no proof of transmission and the fact that he had consensual and protected sex. His appeal on the unconstitutionality of Idaho’s non-disclosure law, was overturned in the District courts in 2016.

The meeting concluded with very strong calls for everyone to joining the global HIV JUSTICE WORLDWIDE movement and organisations committed to utilise their existing resources to galvanise advocacy focusing on ending HIV criminalisation.

Participants agreed that there was a need to focus on the inter-sectionalities within the HIV criminalisation discourse, as well as a need for coordination and collaboration amongst legislators, members of the judiciary, parliamentarians, health care workers and civil society organisations to further advocacy related to this issue.

The participants also agreed that transformative approaches to HIV criminalisation, require both legal and social reforms, such as sensitisation of community members and the media. ARASA has committed to working with colleagues in developing a timeline of key events and advocacy opportunities, at which colleagues could participate.

Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission was supported by a grant from the Robert Carr civil society networks Fund.

Since its inception, ARASA has played an active role in addressing HIV criminalisation in the region and globally. ARASA has strengthened the capacity of civil society on the issue and supported partners to work with the media, parliamentarians, members of the judiciary and lawyers to address HIV criminalisation.

To read more about the meeting, follow #Decrim4Health on Facebook and Twitter. You can also view a gallery of photos taken during the meeting here.

South Korea: Women living with HIV reluctant to report sexual assault, because of prejudices against people with HIV in the legal system and HIV criminalisation law

Discrimination against people with HIV rampant: UN study

Korean people with HIV still face rampant discrimination, over 30 years since the first case was discovered here, a study released Thursday by UNAIDS has found.

According to initial findings from the People Living With HIV Stigma Index in South Korea, 37 percent of respondents reported suicidal thoughts, and a similar proportion had cut themselves off from family and friends.

In addition, 71 percent of people with HIV said they had been insulted or threatened because of their status.

Although almost all respondents said they were receiving anti-retroviral treatment for HIV, 70 percent said they had still avoided going to a clinic when it was needed.

The economic difficulties faced by respondents were also serious. Although most were college educated and around two-thirds were aged between 30 and 50, only 37 percent were employed full-time.

Less than 1 in 10 full-time workers had told their employees they had HIV and more than half of respondents said they had quit school or work because of their HIV status.

A separate report released by the National Human Rights Commission on Wednesday found 91 percent of people with HIV said they faced discrimination at work and 83 percent were discriminated against at school.

Asked about sources of negative attitudes, the UNAIDS report found media to be no better than general internet comments, with both cited by three-quarters as a source of negative views toward people with HIV. Religious groups were cited by 64 percent.

Citing a lack of funding and government support, the authors of the report conceded the limitations of the survey due to small sample size, noting particularly that women were not properly represented. Just one woman with HIV was surveyed, partly because only 7.6 percent of people with HIV are women and there is a lack of networks for them.

Kwon Mi-ran, a consultant for Korean Network for People living with HIV/AIDS (KNP+), which conducted the research with UNAIDS’ support, said more research was required into women with HIV, who faced some specific issues.

“Women with HIV face serious stigma and the government’s policies have nothing that addresses women with HIV specifically,” she said. “There are no communities for women to share their experiences and support each other and they are isolated.”

Kwon said it was more difficult for women to report sexual assault, partly because of the attitudes of people in the legal system toward people with HIV and partly because of a law that criminalizes acts that can spread the virus.

Another growing form of discrimination against people with HIV was that nursing homes were refusing to accept them as an increasing number reached old age.

“Antiretroviral treatment is widely available in South Korea, and so most people living with HIV can keep their health. But when they need long-term care because of old age or other HIV-related diseases, there is no place they can go,” said Seo Bo-kyung of KNP+.

Only 27 percent said they were confident their medical records would be kept private and 17 percent said doctors had disclosed their HIV status to other people without permission.

Despite UNAIDS and World Health Organization recommendations to avoid testing without informed consent, the majority of respondents found they had HIV after being tested without their knowledge.

The NHRC report also found discrimination in health care, with 26 percent saying treatment had been refused, and a similar number saying their status was indicated on their bedside charts.

“Health care settings should be stigma-free environments to ensure people living with HIV not only stay healthy, but their loved ones and community are also protected from HIV,” Steve Kraus, director of the UNAIDS Regional Support Team for Asia and the Pacific, said in a news release accompanying the report. “It is imperative that we have protective laws and empowered communities.”

The report recommends consideration of HIV as a disability to bring it under existing discrimination protections, and for a comprehensive discrimination law. It also calls for NGOs to work with the government.

The respondents’ most favored policy is public education on HIV, but Seo Bo-kyung of KNP+ stressed that the quality of that education was important.

“In many cases, HIV education is conveyed as a means to deliver homophobic messages and tends to describe people living with HIV as pathogens, and not as humans,” he said. “That is the reason that we emphasize a human rights-centered approach.”

By Paul Kerry (paulkerry@heraldcorp.com)