US: Jacob Anderson-Minshall from HIV Plus mag reacts to the latest biting case in Marlyand

When will law enforcement get the message? HIV is neither a death sentence nor transmittable through saliva. So why do they keep arresting HIV-positive people for spitting and or biting and, as in the latest case, charging them with attempted murder?

According to the Baltimore, Maryland-based Capital Gazette, 46-year-old Jeffery David Crook, has been charged with attempted murder for allegedly biting an Anne Arundall County police officer during a tussle.

Crook is being held on half a million dollar bond and has reportedly been charged with multiple counts related to an alleged burglary and the assault on the officer. Crook was reported to the cops after “banging” on the outside of the home of Crook’s ex-boyfriend. Refused entry into the home, Crook allegedy “forced his way” into the house through a sliding glass door and was punched in the face by another man who was in the house.

Officers reported that they located Crook “rambling and incoherent” in an upstairs bedroom and he refused to obey their commands. When they attempted to forcedly arrest him, he resisted so a scuffle ensued. Police say that Crook was then Tasered, which, they allege, had no effect on him, and Crook bit an officer’s arm.

Police stated that the bite broke the officer’s skin, but it was Crook who was immediately transported to a local hospital center for “minor injuries,” the Gazette reported, citing local court records. “While there, he indicated that he was HIV-positive and bit the officer knowing the risk of transmitting the infection.”

Police spokesman Lt. Ryan Frashure said he couldn’t recall another incident where an officer was exposed to a “highly infectious disease,” especially “where it was done intentionally.”

Crook was charged with attempted second-degree murder, home invasion, second-degree assault, third-degree burglary, and reckless endangerment, according to court records.

From a public and mental health perspective, there are so many things wrong with this story, it’s hard to know where to begin. Crook’s mumbling, incoherent demeaner should have been a sign he may have been suffering from mental health issues. After entering his former partner’s house (through an unlocked sliding glass door, mind you), he was assaulted and his lip was cut. But instead of calling mental health professionals, officers tried to cuff him. When he struggled, they tased him. Although they reported that Tasing “had no effect,” he was taken to a hospital. Since few suspects are taken to a medical center for “minor injuries” before being interogated, it seems likely they realized he could not give clear answers because of his condition.

More to the point, once at the hospital, Crook disclosed his HIV status. His indication that he bit the police officer “knowing the risk of transmitting the infection,” could have been him simply acknowledging he was aware of his HIV status before he bit the man, or even that he knew there was little or no risk of transmitting HIV through saliva.

The Centers for Disease Control and Prevention is clear “HIV isn’t spread through saliva.”

According to the CDC, biting, spitting, and throwing body fluids all carry “negligible” risk of infection. It is particularly disheartening for activists fighting the criminalization of HIV when poz individuals are convicted of felony crimes for having spat at, bit, or thrown fluids at an officer when it is nearly impossible to transmit HIV that way.

In this specific case, no doubt the argument is that Crook was bleeding from the mouth when he bit the officer hard enough to break skin. But breaking skin and having a small amount of each person’s blood comingling is still highly unlikely to transmit HIV.

Even if a person with HIV gets hurt playing tackle football or boxing at the gym, it’s “highly unlikely that HIV transmission could occur in this manner,” according to the University of Rochester Medical Center. “The external contact with blood that might occur in a sports injury is very different from direct entry of blood into the bloodstream, which occurs from sharing needles or works.”

Even if the officer in question did defy all odds and turn up HIV-positive, there’s no way to be sure it was transmitted in this occassion. Moreover, there’s still a significant problem with the charge of attempted murder. Like many laws that criminalize behavior like sex work or add sentencing penalties only for those who are HIV-positive, charging someone with attempted murder instead of assault is based entirely on the outdated equation that HIV equals death. It’s based on an outdated view of the HIV-positive body not as a human being but as a “deadly weapon.”

These offensive tropes are decades out of date, have been out-and-out discredited by modern science, and rendered obsolete by the development of highly active antiretroviral medications that have transformed HIV from a terminal disease to a manageable chronic condition.

And yet, when confronted with even the tiniest of bodily fluid of HIV-positive individuals, police officers continue to overreact with fear (the officer in the Crook case “remained out of work” days after the incident) and arrest people for actions that cannot transmit HIV, simply because they discover their alleged perp also has HIV.

Around the country, district attorneys in these cases continue to charge HIV-positive individuals with crimes for things that are not criminal, continue bumping up simple charges from misdemeanors to felonies just because the individuals involved are poz, and continue to claim that exposure to HIV is a death sentence when it isn’t. Judges continue to accept these arguments, and continue handing down these overblown sentences, often without the abiility for parole.

Most of the law and order representatives who embrace HIV criminalization do so out of ignorance, but some are aware of the facts and proceed anyway because the law was written in such a way that facts, medical findings, and scientific proof simply have no bearing on the case.

Many of those who are serving extended prison terms have not even transmitted HIV to another person (think Michael Johnson in Missouri and Kerry Thomas in Idaho, both serving 30 year sentences). Yet they often face sentences higher for spitting or having sex without disclosure than if they had actually murdered the person they are accused of “infecting.”

How flawed is this system? And what kind of lesson does this teach people about those living with HIV? For one thing, it teaches that knowing one’s status is a legal liability. In Crook’s case — as in most other cases — the determining factor of guilt is often based on whether the individual knew they were HIV-positive at the time. Spit on a police office without knowing you’re poz, it’s a misdemeanor assault. Spit on an officer once you know have HIV? It’s attempted murder. Neither one can actually transmit HIV.

To us, it’s just insane.

HIV JUSTICE WORLDWIDE releases ‘HIV IS NOT A CRIME’ training academy video documentary

Today, HIV JUSTICE WORLDWIDE releases a 30-minute video to support advocates on how to effectively strategise on ending HIV criminalisation, filmed at the second-ever ‘HIV IS NOT A CRIME’ meeting, co-organised by Positive Women’s Network – USA and the Sero Project and held earlier this year at the University of Alabama, Huntsville.

This advocacy video distils the content of the three-day training academy into four overarching themes: survivors, victories, intersectionality and community.

Filmed, edited and directed by HIV Justice Network’s video advocacy consultant, Nicholas Feustel, of georgetown media, it features interviews conducted by Mark S King of MyFabulousDisease.com.

“The idea,” says HIV Justice Network’s Global Co-ordinator Edwin J Bernard, who wrote, narrated and produced the video, “is that it can be used as a starting point for discussions at HIV criminalisation strategy meetings around the world, to help advocates move forward with their own state or country plans to achieve HIV justice.”

The video was produced by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE, and supported by a grant from the Robert Carr civil society Networks Fund provided to the HIV Justice Global Consortium.

You can share, embed or download the full-length video at: https://youtu.be/B433fMElc_c The video is also being hosted at http://www.hivisnotacrime.com.

HIV IS NOT A CRIME Training Academy (HINAC2)
Huntsville, Alabama

(33 min, HJN, USA, 2016)

HIV JUSTICE WORLDWIDE presents a video documentary on the second-ever ‘HIV IS NOT A CRIME’ training academy held in Huntsville, Alabama.

To support advocates on how to effectively strategise on ending HIV criminalisation, this 30-minute video distils the content of this unique, three-day training academy into four overarching themes: survivors, victories, intersectionality and community.

We hope this video can be used as a starting point to help advocates move forward in their own state or country plans to achieve HIV justice.

For more information about the training academy visit: http://www.hivisnotacrime.com/

Canada: Stigma and HIV criminalisation deter people from getting tested

Stigma remains a major problem that discourages people from getting tested

Two studies released last month show the tools exist to potentially end the more than three-decades-old scourge of HIV/AIDS, but activists and front-line public health workers in Canada say we simply aren’t using them effectively.

The first study found it’s nearly impossible for an HIV-positive person to transmit the virus if they’re undergoing effective antiretroviral therapy (ART).

The other showed the impressive ability of a drug called Truvada — if taken properly — to protect HIV-negative people who would otherwise be at high risk of contracting the virus.

“I think there’s a real frustration of those of us on the ground, those of us working in public health and epidemiology who know absolutely that the tools are out there and we’re not seeing the support,” says Joshua Edward, a program manager at Vancouver’s Health Initiative for Men(HIM).

High-profile figures in the global fight against HIV/AIDS, including Bill Gates at last month’s World AIDS Conference in Durban, South Africa, have suggested talk of “the end of AIDS” is perhaps premature given its continued spread in much of the developing world, particularly Africa.

Such talk also seems premature in Canada.

Two big problems

Edward says there are two major problems in Canada that deny the promise described in the two studies.

First, there remains a powerful stigma around HIV that discourages people from getting tested.

The second problem is Truvada, approved as a pre-exposure prophylaxis or PrEP, is very expensive, up to $1,000 a month, and isn’t widely available to those who don’t have generous private insurance plans.

The PARTNER study looked at couples where only one partner had HIV but with a viral load suppressed by medication. Out of nearly 60,000 condomless sex acts, not a single HIV transmission occurred.

But HIV infection rates in Canada remain relatively steady, with an estimated 2,500-3,500 new transmissions every year, in part because one in five HIV-positive Canadians don’t even know they have the virus, and so they aren’t receiving the treatment that will keep them healthy and prevent further spread.

Activists argue stigma is a big reason why so many Canadians don’t get tested, and it’s fuelled by the fact that our laws criminalize the non-disclosure of one’s HIV-positive status, even if no transmission occurs and despite the latest evidence that shows viral suppression makes it virtually impossible to transmit the virus.

Stigma encourages spread

Sandra Ka Hon Chu, director of research and advocacy with the Canadian HIV/AIDS Legal Network (CHALN), says criminal sanctions of HIV-positive people encourage the spread of the virus.

“People who might not know their status won’t get tested because you would have the knowledge of your HIV status, which is a requirement of a conviction,” she says. “That then deters open discussions with health-care providers and creates a lot of stigma that prevents people from getting on ART.”

HIV non-disclosure charges not science-based, doctors say

More than 180 people to date in Canada have been charged for not disclosing their HIV status, according to CHALN. In most cases, they were charged with aggravated sexual assault, which carries a maximum life sentence and a possible sex offender designation.

In 2011, for example, an HIV-positive woman north of Toronto had oral sex with a man and unprotected vaginal sex with two others. She didn’t disclose her HIV status and was charged with three counts of aggravated sexual assault.

Though she was acquitted for the oral sex based on the unlikelihood of transmission, the trial judge convicted her for one of the counts related to vaginal sex — even though she was taking her medication, had an undetectable viral load and no transmission occurred — because the victim was “exposed to a significant risk of the transmission of HIV and that risk endangered his life.”

Law is a ‘blunt instrument’

Chu says the law needs to be updated given the recent scientific evidence that shows even condomless vaginal sex with an HIV-positive-but-undetectable partner carries very low risk of transmission.

Criminal law, she says, is too much of a “blunt instrument” to regulate a moral problem with so many grey areas. She says most people fail to disclose their status because they fear rejection, physical violence, or, for example, because they fear the disclosure may be used against them later.

“A woman who might be living in an abusive relationship who is positive might decide to go to the police to charge their partner with violence and that partner might threaten to say they didn’t disclose their HIV status to them,” Chu says.

She sees many possible solutions.

The provinces enforce the Criminal Code, so they have the power to rewrite prosecutorial guidelines on what should and should not be pursued by the Crown.

The federal government could also change the Criminal Code to match international guidelines put forward by UNAIDS, the Global Commission on HIV and the Law and others. This would include limiting criminalization to cases where a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact infect the negative partner with the virus.

More education and testing

Edward says Canada also needs to invest more in HIV education and testing outside of the major cities, where the stigma is greatest and HIV rates are often higher, including in some First Nations communities.

“If you live outside of a metro area, those barriers can be significant.”

He also says Canada needs a national HIV strategy that includes investing in PrEP for HIV-negative people who are at higher risk of contracting the virus.

“We need broader access,” he says. “We need insurance companies to be more generous in their support. You have to have a really high degree of privilege to be able to access it,” he says.

“You have to know how the medical system works. Mine is covered by insurance. It took probably a good two, three weeks of back and forth with my insurance company to access it, including being able to advocate for myself, able to speak from my perspective with righteous indignation.”

Delays

Health Canada expedited the process for approving Truvada as PrEP. It signed off in February, months before many expected, and emphasized Truvada should be used along with condoms.

But Quebec is the only province to publicly fund the drug, while the rest wait for the results of the Common Drug Review (CDR), which is expected to be complete in the fall. From there, the provinces will make their own decisions on whether to cover it, which could take months.

Michael Fanous, a Toronto-based pharmacist who specializes in HIV medications, thinks there should be an expedited process to get the drug listed for provincial drug plans.

“We’ve run into this problem for 30 years in treatment as new HIV drugs take much longer to get approved in Canada and then even longer to get covered.”

Edward’s organization in Vancouver, HIM, isn’t waiting around for government action. Instead, it launched getpreped.ca to get more people educated about PrEP.

“It gets back to almost every day in this province, someone is going to receive an HIV diagnosis … and at least for some of them, PrEP could have prevented that diagnosis,” he says.

“If you want to talk criminality, that’s criminal to me.”

Canada: Advocates call for change to HIV disclosure law

Canada’s HIV disclosure law ‘unfair,’ say advocates calling for change

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair,” said an advocate from the Canadian HIV/AIDS Legal Network.

The recent arrests of two men accused of failing to disclose their HIV status to their sexual partners have led to renewed calls for changes to legislation that advocates say contributes to the fear and stigma surrounding the disease.

Canadians with HIV are legally required to disclose their status to their partner before engaging in sexual activity. Those who fail to do so can be charged with aggravated sexual assault, whether the virus is transmitted or not.

If convicted, they are automatically added to the sex-offenders registry and face a maximum sentence of life in prison.

But advocates say Canada’s HIV disclosure law has never been shown to deter unsafe sexual practices. Rather, they argue, it has made patients feel more isolated and fearful.

“People living with HIV tend to come from many marginalized groups already,” said Sandra Chu, of the Canadian HIV/AIDS Legal Network. “(The law is) adding a further layer of marginalization and fear.”

Chu said she would like Canada to adopt HIV legislation proposed by the United Nations Programme on HIV/AIDS (UNAIDS), which would prosecute only people who knowingly and intentionally transmit the HIV virus to their partner.

There is a lack of definite evidence on whether criminalization deters HIV patients from exposing others, UNAIDS said in a report released in 2012. It also said that studies from Canada and the U.S. show few people with HIV are aware of the legal requirements pertaining to their illness, and those who are probably already disclose their status to partners.

The Public Health Agency of Canada (PHAC) has said people with HIV/AIDS report increased feelings of fear and stigma as a result of high-profile non-disclosure criminal cases.

“Stigma has a negative impact on prevention efforts by contributing to secrecy and HIV non-disclosure, reinforcing HIV risk and discouraging condom use in some communities,” the agency said in a 2015 report.

A spokesman for the Department of Justice said the Canadian government is “aware of some of the criticisms of non-disclosure laws and appreciates the difficult circumstances individuals face” with regards to HIV disclosure.

In 2012, UNAIDS reported that Canada had convicted more people in connection with HIV non-disclosure, exposure and transmission than any country in the world except the United States.

The Canadian HIV/AIDS Legal Network says there have been at least 180 people charged with HIV non-disclosure-related offences in Canada — with five new cases in 2015.

Earlier this month, Toronto police charged a man with sexual assault and aggravated sexual assault for allegedly having unprotected sex with a woman multiple times over the course of 18 months without telling her he had HIV.

A few days later, Canadian Forces investigators charged a civilian cadet instructor with four counts of aggravated sexual assault for allegedly failing to disclose his HIV status before engaging in a relationship with a member of the military.

In a 1998 ruling, the Supreme Court of Canada said a legal requirement to disclose HIV will, “through deterrence … protect and serve to encourage honesty, frankness and safer sexual practices.”

The court clarified its stance in 2012, ruling that a person with HIV does not have to disclose it to a partner as long as a condom is used and the person has a “low viral load.” A viral load measures the number of copies of the HIV virus per millilitre of blood — the lower a viral load, the lower the chance of transmitting HIV.

However, a group of more than 50 Canadian doctors and researchers released a statement in 2014 saying that “a poor appreciation of the science related to HIV contributes to an overly broad use of the criminal law against” individuals living with the virus.

Using a condom during sexual intercourse is enough to render the risk of transmission negligible, the group said, regardless of viral load.

The fact that people can be charged with mere exposure when there’s “a negligible risk” of transmission is unjust, said Chu.

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair.”

Originally published in The Star

Uganda: ABC Radio interviews HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi

Listen to Natasha Mitchell compelling interview with HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi on the challenge to the problematic HIV criminalisation statutes within Uganda’s HIV/AIDS Prevention and Control Act.

This seven minute audio report from AIDS 2016 in Durban is excerpted from ABC Radio’s longer podcast, The brutal politics of a virus that won’t go away, by reporter Natasha Mitchell for Background Briefing.

Listen to and/or download the full podcast and read the transcript on ABC Radio’s website.

The transcript of Natasha’s HIV criminalisation-related report is below.

Natasha Mitchell: In Uganda, around 7% of people are infected, and while the country is recognised for taking decisive action against HIV, the government’s harsh attitude and laws is dramatically undermining that progress.

Rosemary Namubiru is a 66-year-old nurse, mother and grandmother. She found out she had the virus just three years ago, and she thinks she got it from a patient.

Rosemary hadn’t yet disclosed her status at work, but when she was wrongly accused of intentionally infecting a patient, before she knew it the full force of the law was thrown at her.

Rosemary Namubiru: I saw the police coming, and they were holding me, ‘You are under arrest for murder.’ Then they called the media, so when I was in that room they called and told me, ‘Come out.’ I came out and I found a crowd of cameramen, media people.

Natasha Mitchell: Outside the police station?

Rosemary Namubiru: Yes.

Natasha Mitchell: Rosemary was charged with attempted murder after she accidentally pricked herself with a needle while treating a child. The mother watching on was worried and reported Rosemary. While the child wasn’t infected, thankfully, all hell broke loose when Rosemary’s HIV positive status was confirmed and made public. Rosemary was arrested and paraded in front of the media, who labelled her a ‘killer’ and a ‘murderer’.

Rosemary Namubiru: They were trying to manhandle me. They were taking photographs of me. They were calling me all sorts of names, ‘Murderer, killer. Look at this woman, a killer, a murderer.’ And it went all over the country in the national newspapers, in the English newspapers. ‘That murderer, the murderer. If we see her we shall beat her, we shall kill her.’ It was the talk of town. Even my village. Initially, they labelled it as ‘murder’. Then it was reduced, ‘attempted murder’, and then it was eventually changed into ‘negligence’.

Natasha Mitchell: Rosemary was publicly shamed, and sentenced to three years in prison for negligence.

Lawyer Dora Kiconco Musinguzi is the executive director of Uganda Network on Law, Ethics and HIV/AIDS or UGANET.

Dora Kiconco Musinguzi: Rosemary’s story sent so many chills across the country amongst people living with HIV. She was the headline of the news. ‘Killer nurse’. ‘Monster nurse’. She was treated so cruelly at the police, she was beaten, her hair was pulled, right, left, and centre, and that caused a lot of fear among people living with HIV. So we see discrimination written on walls, written in political statements, discrimination is still real, so that is where we are. That’s Uganda’s story currently.

Natasha Mitchell: Rosemary Namubiru was released at the end of 2014 after her case received international attention.

In the same year, Uganda introduced the HIV Prevention and Control Act. At face value it’s about controlling HIV, promoting testing and treatment, and preventing discrimination. Uganda’s not alone here, HIV specific criminal laws are on the increase worldwide, and also exist in America and Europe.

But Dora Kiconco Musinguzi and colleagues are leading a legal challenge in the Ugandan Constitutional Court against key parts of the law, including certain provisions that demand disclosure of your HIV status, and criminalise those who transmit the virus intentionally.

Dora Kiconco Musinguzi: The question is at what point do you establish intention. In a circumstance where we have so many people that have not yet tested, how do you know that a person infected another? So anybody could blame the other for infecting them, and what should be a human condition, a disease, then becomes a criminal object and lives break, and families break, and you know how the media picks on this, and totally takes it out of context. We believe it’s going to be really dangerous.

Natasha Mitchell: At least half of the Ugandan population still don’t know their HIV status. And Dora Kinconco Musinguzi believes the HIV Prevention and Control Act will exacerbate their reluctance to get tested and treated and so cause the virus to spread.

Dora Kiconco Musinguzi: So if people fear, relate HIV testing with obligation, with imprisonment, with undue power of the law, we believe this is going to create a bigger barrier to testing, and that fails the objective of prevention and control because then we shall have more people left out of the treatment area.

Natasha Mitchell: And because pregnant women have to be tested for HIV, they’re at greater risk under this law.

Dora Kiconco Musinguzi: They are going to be found to be HIV positive fast, and if they don’t disclose then they are in the ambit of attempting to transmit, so that makes the women criminals. So there’s lots of unanswered questions. And yet on the other side science has given us hope that people who test and take their medicines very well, they become less infectious, so they don’t transmit HIV. The law neglects this science. The law does not consider what public health specialists are saying, but the Ugandan government has not put this into consideration.

Natasha Mitchell: The experience of Rosemary Namubiru is a cautionary lesson about why laws that criminalise HIV positive people can be so bad for public health.

Dora Kiconco Musinguzi: You shouldn’t be criminalised. These cases could be handled in another way. We are really asking the Constitutional Court to find out whether this is the law that will present and control HIV, and still afford dignity and non-discrimination for living with HIV.

Natasha Mitchell: Based on your experience, Rosemary, what do you feel about the criminalisation law in Uganda against people with HIV?

Rosemary Namubiru: It hurts. Ignorance kills, but it hurts when people just carry on, and people keep on saying, ‘Oh, that one, that one.’ Me, I didn’t get it sexually. It was during the course of saving lives of human beings, so it is not something to laugh about. I wouldn’t wish anybody to go through what I went through.

Natasha Mitchell: Rosemary Namubiru. She’s now retired from nursing.

USA: New report shows LGBTQ minorities face discriminatory laws and arrests

These Stats Prove LGBTQ Minorities Face ‘Unjust’ Treatment in US Criminal Justice Systems

A new report released Monday on LGBTQ people and the U.S. criminal justice system shows the community is overrepresented in jails and prisons. Additionally, LGBTQ people who are young and of color face disproportionate levels of homophobia and transphobia, and are subject to discriminatory laws and arrests that lead to their incarceration.

Analyzed data from U.S. Department of Justice, public polling and a U.S. inmate population survey shows that one in five people in juvenile justice detention facilities identifies as lesbian, gay, bisexual, transgender orquestioning. Among them, 85% are racial minorities, according to the study, released by the Center for American Progress.

The report, titled “Unjust: How the Broken Criminal Justice System Fails LGBT People of Color,” pegs the overrepresentation of LGBTQ people of color in the criminal justice system to three major factors — racism and anti-LGBTQ stigma in their communities, drug and HIV criminalization laws, and local policing priorities that result in racial profiling.

“Whether they are interacting with law enforcement, going to court, confined in prisons or jails, or preparing for reentry into society, the story is the same: LGBT people of color face an extraordinarily high risk of discriminatory treatment and abuse in our criminal justice system,” Ineke Mushovic, executive director of the Movement Advancement Project, said in a statement about the data analysis. MAP and seven other criminal justice reform and LGBTQ advocacy organizations partnered with the Center for America on the report.

The report’s focus on LGBTQ people of color was deliberate, given the most recent polling on this population and what federal data reveals. A 2012 Gallup survey of U.S. adults revealed that 33% of adults who identified as LGBTQ were people of color. People of color and women were also more likely than whites to identify as such, according to the survey results.

LGBTQ overrepresentation in the criminal justice system — they accounted for 7.9% of the U.S. jail and prison population in 2011-2012, but just 3.4% of the overall U.S population — is a reflection of laws that criminalize their identity and behaviors, stated the report.

For example, HIV criminalization laws, which penalize behaviors of LGBTQ and non-LGBTQ people living with HIV, even if their behavior carries no risk of transmitting or exposing the uninfected to the virus, were a response to the health crisis in the 1980s and 1990s. More recent laws, such as North Carolina’s 2016 bathroom bill restricting public bathroom access to the gender marked on an individual’s birth certificate, also present a threat of incarceration for those who are transgender or gender nonconforming.

Uganda: Uganda Network on Law, Ethics, and HIV (UGANET) leads call to repeal some provisions of the HIV/Aids Prevention and Control law as discriminatory and unconstitutional

Uganda: Activists Go to Court As Call Raises for Equal Rights for People With HIV/Aids

By Mercy Nalugo

HIV/Aids activists delegations comprising policy makers, medical practitioners, researchers, sex workers and other key stakeholders converged in Durban, South Africa, last month for this year’s International Aids Conference.

The conference was geared towards forging ways and sharing knowledge on new developments and what ought to be done to reduce new infections as well as sharing experiences and analysing statistics related to the HIV/Aids trend.

The five-day conference, which kicked off on July 18, was marked under the theme “Access Equity Rights Now”.

Back in the country, in a bid to step up activism and rhyme with this year’s theme, HIV/Aids activists called on the government to implement the right to equity.

Taking to court

More than 100 civil society groups led by the Uganda Network on Law, Ethics, and HIV (UGANET) reiterated calls to have some of the clauses in the controversial HIV/Aids Prevention and Control law repealed saying they are discriminatory and unconstitutional.

This time they did not petition President Museveni, or other implementing agencies having been frustrated several times before, but the Constitutional Court.

They are asking the court to quash some provisions in the HIV/Aids law they say are unconstitutional and promote discrimination and stigmatisation of those with the disease.

One of the contested clauses allows medical practitioners to disclose a client’s HIV status to others.

The law would according to activists contravene the right for HIV positive people to keep their status confidential and would in essence promote stigma while criminalisation of the spread would keep away people from testing.

The same activists in May 2014 strongly opposed certain sections days after Parliament had passed the Bill into law.

They included the Human Rights Watch, Health Global Advocacy Project and the Uganda Network on Law and Ethics and HIV/Aids (UGANET) who said it is “deeply flawed” and promotes “discrimination”.

They later sought the attention of President Museveni asking him not to assent to the law although this did not stop him from doing so. However, the President assented to the law on July 31, 2014.

According to statistics released by the ministry of Health last year, the number of people starting anti-retroviral treatment (ART) in Uganda stood at 713,744.

In just three months, between June and September 2014, a total of 33,744 people enrolled for HIV/Aids treatment, raising the overall number from the previous 680,000 to the above-mentioned number (713,744).

The drugs suppress HIV multiplication in the body.

Activists, however, say that the hardline approach to prevention of HIV/Aids spread has instead discouraged those living with HIV from voluntary testing for fear of victimisation.

Infringment on rights

According to the activists, some clauses were passed without the amendments sought by an all-encompassing network.

Prosper Byonanebye, UGANET head of programmes, says: “The petition among others challenges section 18 (e), on ‘Disclosure of one’s HIV status to undisclosed parties. This is overly-broad, vaguely worded and thus unclear.

It also raises legality questions and infringes on the right to privacy. Same as Section 41 of the HIV prevention and Control Act on attempted transmission which is subject to misuse and can be a ticket to punish innocent Ugandans by self-seekers because it is not specific and it’s difficult to define.

According to Byonanebye, some of the clauses infringe on the right to equality and right to dignity and worsens discrimination hence pushing people living with HIV into hiding instead of the intended policy objective of supporting more of them to disclose as has been the case.

Chapter four of the Constitution emphasises the promotion and protection of several human rights and freedoms by the state including equality and freedom from discrimination (Article 21), right to dignity (Article 24) and right to privacy ( Article 27) among others.

Arguments for the Act

On disclosure of one’s status to other people, Maj (Rtd) Rubaramira Ruranga, a leading HIV/Aids advocate, however tows a different line.

He stresses the need for HIV positive people to open up about their status if solutions are to be found.

“Methodology is what we need to look into to find solutions to the wide spread of HIV/Aids and stigma, which is closely related to HIV/Aids. If we had a method of going house to house and educate the masses about the dangers of HIV and the need to know their status, the infection rate would be reduced. If we test from house to house, we would get rid of stigma,” he says.

“I no longer believe in confidentiality because people have continued to sleep with each other without bothering about the need to test. We should stop hiding something which can be served better Let us fight the conspiracy of the unknown.”

Commenting about the intentional spread of HIV/Aids, Maj Ruranga backs the proposal saying it will go a long way in protecting innocent Ugandans from selfish offenders who knowingly conceal their results away from their partners and infect them with HIV/Aids.

He noted: “Not everybody is bad but there are those spreading HIV intentionally. We do work with a team of young people but we have discovered that some health workers are giving false results at a request.

People know that they are reactive but ask for non-reactive results. I have arrested some and we are still arresting many. What other method is workable other than the law? Let the activists prove beyond reasonable doubt that this law will not work.”

Maj Ruranga adds that the country has lived with the deadly disease for over two decades and it has continued to spread.

“We have become so negligent as a result of pampering certain things. Why should the virus continue spreading? My coming out helped so many. Why do people continue hiding? We need to get out of this and find a solution.”

He emphasises the use of condoms as a preventive measure to guard against HIV/Aids as he opposed calls from the South African conference pushing for PEP to be given to the youth free of charge as a way of guarding against the spread of HIV.

Analysis: How is Russia’s HIV-specific law being used to prosecute women living with HIV?

(For Russian version, please, scroll down)

At the beginning of 2016, a military officer from Moscow discovered that he was HIV-positive during routine testing. Later, his wife Natalia, who had tested positive for HIV several years ago, admitted that she had been afraid to disclose her HIV-positive status because she feared violent reprisals from her husband. The officer went to the police to commence criminal proceedings against Natalia, and the investigation continues. The media – as in most countries, our only source of information on cases like this – has not yet provided much more information about the case, so we do not know how long Natalia was forced to hide her HIV-positive status from her husband because of fear of violence.

This is not the only case started against a woman for alleged HIV transmission in 2016.

In January, 24-year-old Nadezhda, who lives in the Amur Oblast in the Russian Far East, was found guilty of charges of alleged HIV transmission to three men, under part 1, Art. 122, and part 3, Art. 122 of the Criminal Code (‘infecting others with HIV, knowing about the presence of this disease). She was sentenced to four years in a penal colony. Nadezhda appealed the verdict, but the panel of judges upheld both the verdict and her sentence.

More recently, in the summer of 2016, a 33-year-old woman from Bryansk, 379 kilometers southwest of Moscow, was prosecuted for allegedly infecting her male partner with HIV. The court used evidence that she was registered at an AIDS centre since 2007 against her, since she met the man in 2014. However, the court was relatively lenient, and she was given a three year suspended sentence followed by a three year probation period. In addition, consistent with best practice, her name was not disclosed in the media, in contrast to Nadezhda’s whose name was published in the news release by the Press Service of the Prosecutor’s Office.

At AIDS 2016 in Durban last month, the HIV Justice Network revealed new data showing that Russia now tops the global HIV criminalisation league table. We found reports of at least 115 arrests, prosecutions and/or convictions in Russia during the 30-month period: April 2013 to October 2015.

We have now collected eleven stories from the Russian media about women convicted under Article 122.

Since 2007, at least three of these women were sentenced to more than four years in prison for alleged HIV transmission to one or more partners. Another woman received a sentence of one year, seven months in prison, and a further two women had a suspended one-year and three-year sentence. In one case the court gave a 20 year-old woman 6-month’s probation. Verdicts for three cases are unknown.

It not just alleged HIV transmission that is being prosecuted; we also know of a 2013 case of a woman from the town of Kungur in the Perm Oblast, who was sentenced to spend one year and three months in a penal colony for potential or perceived HIV exposure: her partner was not infected.

Of particular concern is that in all of the above cases, evidence of prior knowledge of HIV-positive status came from medical records. In Russia, each newly-diagnosed person must sign an informed consent form indicating that he or she is informed of their potential criminal liability under Article 122 for HIV exposure and transmission. This informed consent is attached to their medical history, ready for an official request.

Furthermore, in cases of alleged HIV transmission, the public prosecutor did not adequately investigate the causal link between the accused and the complainant, because there is no test that can establish the timing and direction of transmission without any doubt. It is possible, for example, that some of the male complainants were infected before they had relationships with their female partners and before they themselves were diagnosed HIV-positive.

Article 122 was introduced into the Criminal Code, in particular, to protect women from HIV infection, but it is clear from our research that the law has been applied against women in Russia.

There are many reasons why women are vulnerable when HIV criminalisation intersects with gender inequality and violence. These include, but are not limited to, the following:

Women often do not make decisions about when to have sex, with whom, and whether or not to use condoms.
Women are often economically dependent on their partner, which increases the inequality in their relationships.
Unfortunately, there is evidence that intimate partner violence often occurs when a woman discloses her HIV status.
Fear of prosecution prevents women from getting tested, knowing their status, and getting HIV treatment, because many laws are applied precisely against those who know about their diagnosis.

There is a hope that shedding light on what is going on in Russia will help mobilize people around these unjust prosecutions. As new cases emerge we will continue to report on them on the HIV Justice Network website.

Evgenia Maron is the HIV Justice Network’s EECA Consultant

В начале 2016 года военный из Москвы во время регулярного обследования обнаружил, что инфицирован ВИЧ . Позднее его жена Наталья, которая получила положительный результат на ВИЧ за несколько лет до этого, пояснила, что боялась рассказать о своем ВИЧ-позитивном статусе из-за страха насилия и возмездия со стороны своего мужа. Военный обратился в полицию, чтобы возбудить дело против Натальи, расследование продолжается. СМИ – во многих странах наш единственный источник информации о таких делах, как это, – не дают много данных об этом деле, поэтому мы не знаем, сколько лет Наталья вынуждена была скрывать свой ВИЧ-позитивный статус от мужа из-за страха насилия.

Это не единственное дело против женщин за передачу ВИЧ-инфекции в 2016 году.

В январе 24-летняя Надежда, которая живет в Амурской области на Российском Дальнем Востоке, была признана виновной в передаче ВИЧ трем мужчинам по части 1 ст. 122 и части 3 ст. 122 Уголовного Кодекса (“заражение другого лица ВИЧ-инфекцией лицом, знавшим о наличии данного заболевания”). Ей было назначено наказание в виде четырех лет лишения свободы с отбыванием в исправительной колонии общего режима. Надежда обжаловала приговор, но судебная коллегия оставила его в силе.

Совсем недавно, летом 2016 года, против 33-летней женщины из Брянска, что в 379 километрах к юго-западу от Москвы, было возбуждено уголовное дело за предположительное заражение своего друга ВИЧ. Суд использовал против нее тот факт, что женщина состояла на учете в СПИД-центре с 2007 года, а этого мужчину она встретила в 2014 году. Однако, решение суда было относительно мягким, женщине назначили условное лишение свободы на три года с таким же испытательным сроком. Кроме того, как и полагается в лучших практиках, ее имя и фамилию в СМИ не указывали, в отличие от Надежды из предыдущей истории, чье имя было опубликовано в релизе пресс-службы прокуратуры.

На конференции AIDS 2016 в прошлом месяце в Дурбане, Сеть «Правосудие и ВИЧ» сообщила о новых данных, которые показывают, что Россия возглавляет топ лиги глобальной криминализации ВИЧ. Мы нашли сообщения о по меньшей мере 115 арестах, преследованиях и/или обвинениях в России в течение 30 месяцев с апреля 2013 года по октябрь 2015 года.

Мы собрали одиннадцать историй российских СМИ о женщинах, обвиняемых по статье 122.

Начиная с 2007 года, по меньшей мере трое из этих женщин были приговорены к более, чем четырем годам в тюрьме предположительно за заражение ВИЧ одного или более партнеров. Еще одна женщина получила oдин год семь месяцев тюрьмы, еще две женщины – условный срок продолжительностью один год и три года. В одном случае суд приговорил 20-летнюю женщину к 6-месячному условному сроку. Вердикты по трем случаям не известны.

Преследуется не только предположительное заражение ВИЧ; мы также знаем о деле 2013 года против женщины из города Кунгур в Пермской области, которую приговорили к одному году трем месяца в исправительной колонии за потенциальное или предположительное поставление в опасность заражения ВИЧ: ее партнер не заразился.

Особую обеспокоенность в этих рейсах вызывают доказательства, что обвиняемые знали о своем ВИЧ-позитивном статусе, были основаны на медицинских историях. В России каждый вновь диагностированный человек должен подписать информированное согласие, где указано, что он или она проинформированы о возможной уголовной ответственности по статье 122 за постановку в угрозу заражения и заражение ВИЧ. Это информированное согласие хранится вместе с медицинской историей пациента, готовое для официального запроса.

Более того, в случаях предположительной передачи ВИЧ, прокурор не исследовал адекватно причинно-следственную связь между подозреваемым и потерпевшим, потому что не существует теста, который может установить время и направление передачи без всякого сомнения. Например, возможно, что некоторые потерпевшие мужчины были заражены ВИЧ до того, как у они вступили в отношения с их партнерами-женщинами, и перед тем, как они сами получили ВИЧ-позитивный диагноз

Статья 122 была введена в Уголовный Кодекс, в частности, чтобы защитить женщин от ВИЧ-инфекции, но из нашего исследования станосится ясно, что в России этот закон применяется против женщин.

Существует много причин, почему женщины более уязвимы, когда криминализация ВИЧ пересекается с гендерным неравенством и насилием. Это касается, но не ограничивается, следующим:

Женщины часто не принимают решения о том, когда и с кем заниматься сексом, использовать презервативы или нет.
Женщины часто зависимы экономически от своего партнера, что усиливает неравенство в их отношениях.
К сожалению, есть данные, что насилие со стороны интимного партнера часто следует за тем, когда женщина раскрывает свой ВИЧ-статус.
Страх уголовного преследования мешает женщинам тестироваться, знать свой статус и получать лечение ВИЧ, потому что многие законы применяются исключительно против тех, кто знает о своем диагнозе.

Мы надеемся, что если пролить свет на то, что происходит в России, это поможет мобилизации людей против этого несправедливого преследования. Так как появляются новые кейсы, мы продолжим информировать о них на сайте Сети “Правосудие и ВИЧ”.

US: Mainstream criminal justice website uses quiz format to highlight how unjust HIV criminalisation is in the United States

Is It Time to Roll Back the Laws on Spreading HIV?

Take our quiz on which criminal penalties remain in force.

In the wake of the HIV epidemic that began in the early 1980s, lawmakers throughout the country moved to criminalize behavior that threatened to spread the virus, enacting laws that imposed sometimes heavy fines and jail terms for infected individuals who failed to tell sex partners about their illness.

Florida, Tennessee and Washington were the first states to enact HIV-related criminal laws, in 1986. A 1988 report from the Presidential Commission on the HIV Epidemic recommended that states establish such laws and many did. At present, more than 30 have HIV-related criminal laws.

But now that new therapies have greatly lowered the risks of transmission, advocates for those with HIV say these laws are too harsh and should be revised to reduce penalties, or be repealed.

While the laws were initially intended to help lower the rate of transmission and deter “risky behavior,” according to the commission report, recent studies have shown that the laws discourage testing, reduce disclosure and otherwise work against public health efforts. The Department of Justice in 2014 issued a guide for states to reform HIV-specific laws so that they are informed by current knowledge of HIV transmission, in addition to help prevent and treat HIV. While the number of new cases of HIV has remained stable (about 50,000 per year) between 2005 and 2014, gay and bisexual men as well as African-Americans continue to be most affected. The incidence of HIV among black and Latino men who have sex with men increased over the same period, the result being that the laws disproportionately affect them.

See how much you know about laws that potentially make living with HIV a crime.

Take the quiz here