Austria: Care organisations refuse to provide home care for 81-year-old man living with HIV

Just like in the 80s: No 24-hour care for HIV-positive people.

Translated via Deepl.com. For original article in German, please scroll down.

A large care organisation terminated without notice a contract concluded shortly before, because of HIV infection. All others also refused because of HIV.

In this guest blog, lawyer Helmut Graupner describes how an HIV infection can still lead to discrimination in Austria, despite the fact that educational work has been going on for decades and effective HIV therapy is available that prevents the disease, leads to a normal life expectancy and even means that HIV-infected people cannot infect anyone.

In the spring of 2023, an 81-year-old gentleman, let’s call him RS, found that outpatient home care was no longer sufficient and 24-hour nursing care was becoming necessary. RS has been HIV positive for many years. Due to successful treatment, the infection has never caused him to become ill. The Red Cross had provided the previous outpatient home care in an exemplary manner, with commitment and without any reservations regarding the HIV infection.

In mid-April, a contract was concluded with one of the large Austrian nursing organisations for the placement of nursing staff. For this purpose, the regional manager of this organisation was on site at the flat. He had an insight into the care book and the care records that had previously been kept by the Red Cross. In the documentation folder of the Red Cross, the HIV infection was noted on the very first page. The regional officer also spoke for a long time on the phone with the head of the previous care provided by the Red Cross and discussed how to proceed. The HIV infection could also be seen in the findings and diagnoses that were consulted.

The nursing organisation found a nurse who immediately started her first rotation. A week later, the area manager visited the home. One of the things discussed was that RS has to be taken to hospital every three months for HIV status check. This lady also did not express any concerns about HIV infection.

Carers not asked at all

The surprise was all the greater when, four days after this meeting, a (different) representative of the care organisation called to say that the written termination of the contract was already in the mail. She explicitly mentioned the HIV infection as the reason. Pointing out that his status was below the detection limit, i.e. RS was not contagious at all, was of no use. This did not change the fact that no nursing staff would be willing to take over the care. The matter had been discussed internally and the nursing staff could not be told. They would not understand because they all came from Romania and Slovakia and all had this negative attitude. There was no mention of caregivers themselves refusing care.

So the care organisation did not even try to discuss the matter with a single one of the caregivers (who were allegedly so prejudiced) and win them over to care for RS. Even the nurse who was already placed and working at the time only knew that she would not be replaced by the originally intended colleague. She did not know any reason and assumed that she would return in four weeks. In any case, she (coming from Romania) had no problem with the HIV status.

One day after the phone call, the letter from the care organisation arrived. The placement contract was terminated without notice (without observing the period of notice!) at the end of the current caregiver’s rotation. The reason given was succinct: “The care cannot be transferred to the care workers for professional reasons. It is not possible to find new caregivers.

Austrian organisations all refused

Upon lawyer intervention, the care organisation insisted in a written statement on the termination without notice. Even the fact that the Romanian carer who had already been placed was willing to continue the care did not change anything. The care organisation could only guarantee quality assurance if it could cover each rotation with a carer who had a contractual relationship with it. If the Romanian carer who had already been placed wanted to stay and continue caring for RS, the organisation could “gladly accept that”. However, she would then have to leave the contractual relationship with the care organisation (“We do not keep the carer”).

Although the Aidshilfe Wien and the legal committee Lambda stood up for RS, the care organisation remained firm. That was not enough. RS and his relatives then tried to get 24-hour care from the other Austrian care organisations available in the region. All of them explained that this was not possible because the care workers came from countries where people had just such attitudes.

Slovakian agency had no problem

RS considered a complaint of discrimination, but died a few weeks later, now 82 years old. He died knowing that he was discriminated against because of his HIV infection and that nobody could do anything about it. And the discriminators got away with it just fine.

At least he was cared for at home in his last weeks, despite the closed refusal in Austria. An agency from Slovakia had no problem with the HIV status, just like the caregivers they placed. A disgrace for Austria in 2023


Wie in den 80ern: Keine 24-Stunden-Pflege für HIV-Positive

Eine große Pflegeorganisation kündigt den kurz zuvor geschlossenen Vertrag fristlos wegen einer HIV-Infektion. Auch alle anderen lehnen wegen HIV ab

Im Gastblog schildert Rechtsanwalt Helmut Graupner, wie eine HIV-Infektion in Österreich noch immer zu Diskriminierung führen kann, obwohl seit Jahrzehnten Aufklärungsarbeit betrieben wird und eine wirksame HIV-Therapie vorhanden ist, die die Erkrankung verhindert, zu einer üblichen Lebenserwartung führt und sogar bewirkt, dass HIV-Infizierte niemanden anstecken können.

Im Frühjahr 2023 ergibt sich bei einem 81-jährigen Herrn, nennen wir ihn RS, dass die ambulante Hauskrankenpflege nicht mehr ausreicht und eine 24-Stunden-Pflege notwendig wird. RS ist seit vielen Jahren HIV-positiv. Durch die erfolgreiche Behandlung hat die Infektion bei ihm nie eine Erkrankung hervorgerufen. Das Rote Kreuz hatte die bisherige ambulante Hauskrankenpflege vorbildlich, engagiert und ohne jegliche Vorbehalte hinsichtlich der HIV-Infektion erbracht.

Mitte April wurde mit einer der großen österreichischen Pflegeorganisationen ein Vertrag über die Vermittlung von Pflegekräften abgeschlossen. Dazu war der Regionsverantwortliche dieser Organisation vor Ort in der Wohnung. Er hatte Einblick in das Betreuungsbuch und in die Pflegeunterlagen, die bisher vom Roten Kreuz geführt wurden. In der Dokumentationsmappe des Roten Kreuzes war gleich auf der ersten Seite die HIV-Infektion vermerkt. Der Regionsverantwortliche hat überdies lange Zeit mit der Einsatzleiterin der bisherigen Pflege durch das Rote Kreuz telefoniert und dabei die weitere Vorgangsweise abgesprochen. Auch den eingesehenen Befunden und Diagnosen war die HIV-Infektion zu entnehmen.

Die Pflegeorganisation vermittelte eine Pflegerin, die ihren ersten Turnus sogleich angetreten hat. Eine Woche später suchte die Bereichsleiterin die Wohnung auf. Dabei wurde unter anderem besprochen, dass RS alle drei Monate zur Überprüfung des HIV-Status in ein Krankenhaus gebracht werden muss. Auch diese Dame äußerte keine Bedenken bezüglich der HIV-Infektion.

Pflegepersonen gar nicht gefragt

Umso größer war die Verwunderung als vier Tage nach dieser Besprechung eine (andere) Vertreterin der Pflegeorganisation anrief und mitteilte, dass die schriftliche Auflösung des Vertrages bereits mit der Post unterwegs sei. Als Begründung hat sie ausdrücklich die HIV-Infektion genannt. Der Hinweis darauf, dass sein Status unter der Nachweisgrenze liegt, RS also gar nicht ansteckend ist, nutzte nichts. Das ändere nichts daran, dass kein Pflegepersonal bereit wäre, die Pflege zu übernehmen. Die Sache sei intern beraten worden, und man könne das den Pflegekräften gar nicht sagen. Diese würden das nicht verstehen, denn sie kämen alle aus Rumänien und der Slowakei und hätten halt alle diese negative Einstellung. Es war nicht die Rede davon, dass Betreuerinnen oder Betreuer selbst die Pflege abgelehnt hätten.

Die Pflegeorganisation hat also mit keiner einzigen der (angeblich derart vorurteilsbehafteten) Pflegepersonen auch nur versucht, die Sache zu besprechen und sie für eine Pflege von RS zu gewinnen. Auch die damals bereits vermittelte und tätige Pflegerin wusste nur, dass sie nicht von der ursprünglich vorgesehenen Kollegin abgelöst wird. Grund wusste sie keinen und ging davon aus, dass sie in vier Wochen wiederkommt. Sie (aus Rumänien kommend) hatte jedenfalls kein Problem mit dem HIV-Status.

Einen Tag nach dem Telefonat langte das Schreiben der Pflegeorganisation ein. Der Vermittlungsvertrag wurde mit Ende des laufenden Turnus der aktuellen Pflegerin fristlos (ohne Einhaltung der Kündigungsfrist!) aufgelöst. Zur Begründung hieß es lapidar: “Die Betreuung kann aus fachlichen Gründen den Betreuungskräften nicht übertragen werden. Eine Vermittlung von neuen Personenbetreuer*innen ist nicht möglich.”

Österreichische Organisationen lehnten alle ab

Auf anwaltliche Intervention beharrte die Pflegeorganisation in einer schriftlichen Stellungnahme auf der fristlosen Auflösung. Auch der Umstand, dass die bereits vermittelte rumänische Pflegerin zur Fortführung der Pflege bereit war, änderte daran nichts. Die Pflegeorganisation könne die Qualitätssicherung nur gewährleisten, wenn sie jeden Turnus mit einer Pflegekraft abdecken könne, die mit ihr in einem Vertragsverhältnis steht. Wenn die bereits vermittelte rumänische Pflegerin bleiben und die Pflege von RS fortsetzen wolle, könne die Organisation “das gerne akzeptieren”. Sie müsse dann aber aus dem Vertragsverhältnis mit der Pflegeorganisation ausscheiden (“Wir halten die Betreuerin nicht fest”).

Obwohl sich die Aidshilfe Wien und das Rechtskomitee Lambda für RS einsetzten, blieb die Pflegeorganisation hart. Damit nicht genug. RS und seine Angehörigen versuchten dann bei den anderen in der Region verfügbaren österreichischen Pflegeorganisationen eine 24-Stunden-Pflege zu erhalten. Alle erklärten, dass dies nicht möglich sei, weil die Pflegekräfte aus Ländern kämen, in denen die Menschen eben solche Einstellungen hätten.

Slowakische Agentur hatte kein Problem

RS überlegte eine Klage wegen Diskriminierung, ist aber einige Wochen danach, mit mittlerweile 82 Jahren, verstorben. Er starb im Wissen, dass er wegen seiner HIV-Infektion diskriminiert wurde und niemand etwas dagegen tun konnte. Und die Diskriminierenden damit gut durchgekommen sind.

Zumindest wurde er in seinen letzten Wochen dann, trotz der geschlossenen Weigerung in Österreich, doch noch zu Hause gepflegt. Eine Agentur aus der Slowakei hatte, ebenso wie die von ihr vermittelten Pflegekräfte, kein Problem mit dem HIV-Status. Eine Schande für Österreich im Jahr 2023.

IAS 2023: Five-year impact of Expert Consensus Statement – poster published today

Today, 24th July, at the 12th IAS Conference on HIV Science on Brisbane, we presented our research findings on the five-year impact of the ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’.

Click on the image above to download the pdf of the poster

Tomorrow, 25th July, we will publish the full research report and discuss the findings on our live webshow, HIV Justice Live!

Hosted by HJN’s Executive Director, Edwin J Bernard, the show will include a discussion with the report’s lead author, HJN’s Senior Policy Analyst Alison Symington, as well as interviews with Malawian judge Zione Ntaba, Taiwan activist Fletcher Chui, and SALC lawyer Tambudzai Gonese-Manjonjo on the Statement’s impact.

We’ll also hear from some of the Expert Consensus Statement’s authors, including Françoise Barré-Sinoussi, Salim S Abdool Karim, Linda-Gail Bekker, Chris Beyrer, Adeeba Kamarulzaman, Benjamin Young, and Peter Godfrey-Faussett.

Ugandan lawyer and HJN Supervisory Board member Immaculate Owomugisha will also be joining us live from the IAS 2023 conference where she is serving as a rapporteur, to discuss the Statement’s relevance today.

HIV Justice Live! Episode 5: Bringing Science to Justice will be live on Facebook and YouTube on Tuesday 25th July at 3pm CEST (click here for your local time).

Coming soon:
HIV Justice Live! Episode 5: Bringing Science to Justice

Five years ago, twenty of the world’s leading HIV scientists published the ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ to address the misuse of HIV science in punitive laws and prosecutions against people living with HIV for acts related to sexual activity, biting, or spitting.

More than 70 scientists from 46 countries endorsed the Expert Consensus Statement prior to its publication in the Journal of the International AIDS Society (JIAS). The Statement was launched on 25th July 2018 at AIDS 2018, with the press conference generating global media coverage.

Building upon our initial 2020 scoping report, we recently undertook further extensive research to examine the impact of the Expert Consensus Statement in the five years since its publication.

On 25th July 2023 – exactly five years to the day of the original launch – we will not only be presenting our findings at the 12th IAS Conference on HIV Science (IAS 2023), we will also be launching the five-year impact report during our live webshow, HIV Justice Live!

Hosted by HJN’s Executive Director, Edwin J Bernard, the show will include a discussion with the report’s lead author, HJN’s Senior Policy Analyst Alison Symington, as well as interviews with Malawian judge Zione Ntaba, Taiwan activist Fletcher Chui, and SALC lawyer Tambudzai Gonese-Manjonjo on the Statement’s impact.

We’ll also hear from some of the Expert Consensus Statement’s authors, including Françoise Barré-Sinoussi, Salim S Abdool Karim, Linda-Gail Bekker, Chris Beyrer, Adeeba Kamarulzaman, Benjamin Young, and Peter Godfrey-Faussett.

Ugandan lawyer and HJN Supervisory Board member Immaculate Owomugisha will also be joining us live from the IAS 2023 conference in Brisbane, Australia where she is serving as a rapporteur, to discuss the Statement’s legacy and relevance today.

There will be opportunities to let us know the impact the Expert Consensus Statement has had in your advocacy and to ask questions live, so please save the date and time.

HIV Justice Live! Episode 5: Bringing Science to Justice will be live on our Facebook and YouTube pages on Tuesday 25th July at 3pm CEST (click here for your local time).

 

New HIV Justice Academy content: Lessons from the Central African Republic’s HIV law reform success

In the mid-2000s, many countries across Africa adopted HIV laws. Many of these laws contained important protections covering discrimination, privacy, and access to medications. Unfortunately, they also included overly broad and ill-informed HIV criminalisation provisions.

The Central Africa Republic (CAR) adopted an HIV law in 2006 which not only criminalised HIV non-disclosure, exposure or transmission, it also required people living with HIV to undergo treatment as prescribed by a doctor and engage in protected sex and an obligation to disclose their HIV-positive status to sexual partners.

Given the significant problems with these aspects of the law, multiple law reform attempts were made but none were successful until a new law – Law 22-016 on HIV and AIDS in the Central African Republic – was finally enacted on 18 November 2022.

How did it happen? What changed? Why was the law finally reformed?

Christian Tshimbalanga is a lawyer from the Democratic Republic of Congo with many years’ experience working on human rights and HIV in Africa. Through his work with UNAIDS, Christian provided critical support to the law reform process following it through until Parliament voted on the law. Cécile Kazatchkine (Senior Policy Analyst at the HIV Legal Network) asked Christian to share lessons learned to help others working to reform problematic HIV laws.

Their 25 minute, French-language audio conversation is now available as an additional case study in Chapter 5 of the HIV Justice Academy’s free HIV Criminalisation Online Course: How to advocate against HIV criminalisation. A translated transcript of the conversation is also available in the English, Spanish and Russian version of the course.

Christian’s role was to accompany the process until the law was voted on in Parliament. Several elements of Christian’s account stood out for us:

  • In his role as an UNAIDS representative and technical partner, Christian was able to devote significant time to the law reform process, monitoring what was happening and pushing the bill through each stage of the process. Having a dedicated person on the ground to accompany the legislative process on a day-to-day basis was critical to the success.
  • Civil society was a key partner. The Central African Network of People Living with HIV (RECAPEV) and the Central African Network on Ethics and Rights (RCED) pushed hard for the law to be revised. UNAIDS provided them with a small amount of financial support which enabled them to increase their capacity to sustain this advocacy.
  • Local partners and international organisations were also partners in the law reform efforts, including the National AIDS Council (CNLS), the Ministry of Health and the Minister of Justice, as well as UNDP, UNAIDS, and the French Red Cross (the principal recipient of Global Fund funding in CAR).
  • A memorandum outlining the new bill was drafted by various stakeholders including civil society. It informed parliamentarians about the relevant public health and human rights issues and the scientific evidence related to HIV.
  • Following the example of a previous forum in Madagascar on a draft law on sexual and reproductive health, a forum was organised for (primarily male) parliamentarians and their (female) spouses. Because issues of this intimate nature are often discussed in the home, involving spouses was strategic. Several people living with HIV opened the forum by talking about their lived realities and the persistence of HIV-related stigma and discrimination in CAR.

While worthy of celebration, the new legislation is not a complete victory. It does not fully decriminalise HIV but it does provide a much narrower definition of the prohibited conduct. Under the 2006 law, a person living with HIV could be prosecuted simply for HIV ‘exposure’ without neither intent nor transmission. The 2022 Act criminalises “intentional transmission of the virus,” defined as, inter alia, the fact that a person who knows his or her status intentionally transmits the virus through unprotected sexual relations without disclosing his or her seropositivity. A list of circumstances where the criminal law should not be applied is also included (e.g., in the case of transmission of the virus from a mother to her child).

For more information on the 2022 Act, see the HIV Justice Network’s Global HIV Criminalisation Database.

To enrol in the HIV Criminalisation Online Course, visit the HIV Justice Academy and sign up.  It’s free!

  

 

 

 

Transgender Day of Visibility 2023

Honouring the courage of transgender people globally, especially transgender people living with HIV

Today is International Transgender Day of Visibility, held annually on 31st March to celebrate transgender people globally and honour their courage and visibility to live openly and authentically.

This year’s 14th annual celebration is a day to also raise awareness around the stigma, discrimination and criminalisation that transgender people face.

According to the Human Dignity Trust, 14 countries currently criminalise the gender identity and/or expression of transgender people, using so-called ‘cross-dressing’, ‘impersonation’ and ‘disguise’ laws. In many more countries transgender people are targeted by a range of laws that criminalise same-sex activity and vagrancy, hooliganism and public order offences.

Transgender people living with HIV can be further criminalised based on their HIV-positive status, although we know that there are still too many invisibilities around the impact of HIV criminalisation on transgender people.

Cecilia Chung, Senior Director of Strategic Initiatives and Evaluation of the Transgender Law Center, who is also a member of our Global Advisory Panel told our 2020 Beyond Blame webinar that there are not enough data on the impact of HIV criminalisation laws on transgender people. She said such data are not “uniformly collected across the world… The numbers still remain invisible even though we know for sure there are [HIV criminalisation] cases.”

HJN honours the courage of transgender people – especially transgender people living with HIV – to live openly and authentically. We also call for more visibility for transgender people in data collection, as well as reforms of all criminal laws and their enforcement that disproportionately target transgender people.

New principles lay out human rights-based approach to criminal law

New legal principles launched on International Women’s Day to advance decriminalization efforts

The International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR) officially launched a new set of expert jurist legal principles to guide the application of international human rights law to criminal law.

The ‘8 March principles’ as they are called lay out a human rights-based approach to laws criminalising conduct in relation to sex, drug use, HIV, sexual and reproductive health, homelessness and poverty.

Ian Seiderman, Law and Policy Director at ICJ said, “Criminal law is among the harshest of tools at the disposal of the State to exert control over individuals…as such, it ought to be a measure of last resort however, globally, there has been a growing trend towards overcriminalization.”

“We must acknowledge that these laws not only violate human rights, but the fundamental principles of criminal law themselves,” he said.

For Edwin Cameron, former South Africa Justice of the Constitutional Court and current Inspecting Judge for the South African Correctional Services, the principles are of immediate pertinence and use for judges, legislators, policymakers, civil society and academics. “The 8 March principles provide a clear, accessible and practical legal framework based on international criminal law and international human rights law,” he said.

The principles are the outcome of a 2018 workshop organized by UNAIDS and OHCHR along with the ICJ to discuss the role of jurists in addressing the harmful human rights impact of criminal laws. The meeting resulted in a call for a set of jurists’ principles to assist the courts, legislatures, advocates and prosecutors to address the detrimental human rights impact of such laws.

The principles, developed over five years, are based on feedback and reviews from a range of experts and stakeholders. They were finalized in 2022. Initially, the principles focused on the impact of criminal laws proscribing sexual and reproductive health and rights, consensual sexual activity, gender identity, gender expression, HIV non-disclosure, exposure and transmission, drug use and the possession of drugs for personal use. Later, based on the inputs of civil society and other stakeholders, criminalization linked to homelessness and poverty were also included.

Continued overuse of criminal law by governments and in some cases arbitrary and discriminatory criminal laws have led to a number of human rights violations. They also perpetuate stigma, harmful gender stereotypes and discrimination based on such grounds as gender or sexual orientation.

In 2023, twenty countries criminalize or otherwise prosecute transgender people, 67 countries still criminalize same-sex sexual activity, 115 report criminalizing drug use, more than 130 criminalize HIV exposure, non-disclosure and transmission and over 150 countries criminalize some aspect of sex work.

In the world of HIV, the abuse and misuse of criminal laws not only affects the right to health, but a multitude of rights including: to be free from discrimination, to housing, security of the person, movement, family, privacy and bodily autonomy, and in extreme cases the very right to life. In countries where sex work is criminalized, for example, sex workers are seven times more likely to be living with HIV than where it is partially legalized. To be criminalized can also mean being deprived of the protection of the law and law enforcement. And yet, criminalized communities, particularly women, are often more likely to need the very protection they are denied.

UNAIDS Deputy Executive Director for the Policy, Advocacy and Knowledge Branch, Christine Stegling said, “I welcome the fact that these principles are being launched on International Women’s Day (IWD), in recognition of the detrimental effects criminal law can, and too often does have on women in all their diversity.”

“We will not end AIDS as a public health threat as long as these pernicious laws remain,” she added. “These principles will be of great use to us and our partners in our endeavors.”

Also remarking on the significance of IWD, Volker Türk, High Commissioner for Human Rights, said, “Today is an opportunity for all of us to think about power and male dominated systems.”

His remarks ended with, “I am glad that you have done this work, we need to use it and we need to use it also in a much more political context when it comes precisely to counter these power dynamics.”

“Frankly we need to ask these questions and make sure that they are part and parcel going forward as to what human rights means,” he said.

In conclusion, Phelister Abdalla, President of the Global Network of Sex Work Projects, based in Kenya noted: “When sex work is criminalized it sends the message that sex workers can be abused…We are human beings and sex workers are entitled to all human rights.”

2022 in review: A turning point for HIV justice?

Looking back on all that happened in 2022, we are cautiously optimistic that 2022 will be seen as a turning point in the global movement to end HIV criminalisation. We celebrated promising developments in case law, law reform and policy in many countries and jurisdictions over the past year, building on the momentum of 2021. Although there is much more work yet to do, it’s clear that progress is being made — thanks primarily to the leadership of people living with HIV.

Continuing a trend that began two years ago, overall there seems to have been a decline in the number of HIV-related prosecutions. This year we identified media reports of 49 new HIV criminalisation cases in 16 countries plus seven US states. This compares to 54 new cases in 20 countries last year (which was still fewer than reported in previous years). This year, the highest number of case reports came from Russia, followed by the United States (with multiple cases in the state of Florida), and France

It is possible that we are seeing fewer media reports because there are actually fewer cases, but we must always consider these known cases to be illustrative of what is likely a more widespread, poorly documented use of criminal law against people living with HIV. The media, public health authorities and law enforcement may still be distracted by the global financial crisis precipitated by Russia’s invasion of Ukraine and the impact of COVID-19 — a pandemic that continues to disproportionately impact people living with HIV.

After being near the top in previous years, Belarus has been bumped off the ‘most cases’ list. Last year, the Belarus Investigative Committee reported 34 new HIV-related criminal cases. It’s highly likely that this year there were some (unreported) cases, but it’s also clear that the number of cases has been slowing down since 2020, possibly due to ongoing discussions with the government to limit the use of the criminal law.

Canada used to be a global leader in HIV criminalisation, but no new cases were reported this year. In fact, the only case reports from Canada were about the overturning of a conviction by the Ontario Court of Appeal after it accepted there was no realistic possibility of transmission as the accused woman had an undetectable viral load, and another Ontario Court of Appeal acquittal based on the accused man’s elite controller status. These positive rulings follow many years of sustained advocacy, which has also led to the federal government opening a public consultation on reforming the criminal law. The Canadian Coalition to Reform HIV Criminalization has welcomed this consultation as a first step to concrete action on law reform.

Earlier this year, Taiwan’s Supreme Court also recognised the prevention benefit of treatment by upholding the acquittal of a man with an undetectable viral load who was accused of alleged HIV exposure. But elsewhere in Asia, Singapore continues to unjustly prosecute gay men living with HIV under draconian laws, despite being celebrated for recently repealing their colonial-era law that criminalised sex between men. Singapore is also the world leader in prosecuting gay men for not disclosing a possible HIV risk before donating blood. That’s why we issued our Bad Blood report in September, which concludes that the criminalisation of blood donations by people with HIV is a disproportionate measure — the result of both HIV-related stigma and homophobia, and not supported by science.

In the United States, we continued to see a reduction in the number of states with HIV-specific criminal laws thanks to the ongoing advocacy by networks of people living with HIV supported by human rights and public health organisations. In 2022, Georgia modernised its law and New Jersey became the third US state to fully repeal its HIV-specific criminal law. President Biden again highlighted HIV criminalisation in his World AIDS Day proclamation stating that “outdated laws have no basis in science, and they serve to discourage testing and further marginalize HIV-positive people.” In October, the Presidential Advisory Council on HIV/AIDS unanimously passed an historic resolution on molecular HIV surveillance that will be critical to protecting the human rights and dignity of people living with HIV. But problematic new laws continue to be enacted despite strong opposition from civil society. In November, Pennsylvania’s Governor, Tom Wolf, signed into law an overly broad, unscientific statute that makes it a felony to pass on a communicable disease, including HIV, when someone “should have known” they had the disease.

There was also mixed news from the African continent. In March, Zimbabwe became the second African country to repeal its HIV-specific law (the Democratic Republic of Congo repealed its law in 2018). This victory is testament to the effectiveness of a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honourable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care. She began pushing for a change in the law in 2018, having previously been in favour of the provision which she thought protected her female constituents. And in October, the Central African Republic also enacted a new HIV law that focused primarily on social protections for people living with HIV, without any criminalising provisions.

Also in October, the Lesotho High Court issued a positive judgment following a constitutional challenge to sections of the Sexual Offences Act that impose a mandatory death sentence on persons convicted of sexual offences if they were living with HIV.  Following interventions from members of the HIV JUSTICE WORLDWIDE coalition and others, the Court ruled that people living with HIV have the same right to life as all others — and commuted the sentence.

The news elsewhere on the continent, however, wasn’t so positive. After six years of waiting, a constitutional challenge to some of the most problematic, criminalising sections of Uganda’s HIV/AIDS Prevention and Control Act was dismissed outright in November. We are anxiously awaiting the ruling in a similar challenge in neighbouring Kenya. It was filed five years ago and has since been postponed several times. This year, we also lost Ugandan nurse and HIV criminalisation survivor, Rosemary Namubiru, who was a posthumous recipient of the Elizabeth Taylor Legacy Award at this year’s International AIDS Conference.

Women — who were accused in around 25% of all newly reported cases this year — also face criminal prosecution in relation to breastfeeding or comfort nursing, mostly across the African continent. In addition, women living with HIV continue to be threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries. That’s why this year we created the short film, Mwayi’s Story, to highlight the injustice and facilitate discussion about HIV and breastfeeding. We also worked with our HIV JUSTICE WORLDWIDE coalition partners to publish a paper in the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases to highlight these problematic and unjust approaches to women with HIV who breastfeed or comfort nurse.

This year, we learned from the Eurasian Women’s Network on AIDS, working with the Global Network of People Living with HIV, about how women living with HIV are both disproportionately impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region and also leaders in research, advocacy and activism against it. Their report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. Case studies include a woman in Russia who was prosecuted for breastfeeding her baby and several women in Russia who were blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.

The disproportionate impact of HIV criminalisation on women was also the focus of a World AIDS Day statement by the Organization of American States (OAS) calling on Member States to end HIV criminalisation. Earlier in the year, Argentina had enacted a new, comprehensive and non-punitive HIV, STI and TB law

Nevertheless, there is still so much more to do to reach the global target of fewer than 10% of countries with punitive laws and policies that negatively impact the HIV response. To keep up the momentum, we continued to produce reports and analysis — including our flagship Advancing HIV Justice 4: Understanding Commonalities, Seizing Opportunities — as well as contributed to peer-reviewed journal articles, such as So many harms, so little benefit in the Lancet HIV and Punishing vulnerability through HIV criminalization in the American Journal of Public Health. We’re also doing our best to ensure we change the media narrative on HIV criminalisation, including by contributing to The Guardian’s World AIDS Day podcast on HIV criminalisation.

Our greatest achievement this year was the creation of the HIV Justice Academy. We are very proud of this online platform for e-learning and training which we believe will be a catalyst in building the wider movement to end punitive laws and policies that impact people living with HIV in all their diversity. Already available in English and French, we’ll be launching in Spanish and Russian early next year.

Did we turn the corner in 2022? Only time will tell, but if there is one thing we know for sure it is that changing hearts and minds with respect to HIV criminalisation is a long road with many ups and downs along the way. We know that important progress was made in 2022 and that we begin 2023 with fresh analysis, new tools and a renewed spirit of solidarity.

Lesotho high court finds imposition of death sentence solely on the basis of HIV status unconstitutional

Court decision upholds that people living with HIV have the same right to life as all others

Joint news release from the Southern Africa Litigation Centre, AIDS and Rights Alliance for Southern Africa, Lesotho Network of People Living with HIV and AIDS, HIV Legal Network and HIV Justice Network

 

On 25 October 2022, the High Court of Lesotho in the case of MK v Director of Public Prosecutions and Others issued a judgment on a constitutional challenge to certain sections of the Sexual Offences Act that impose mandatory HIV testing on persons accused of sexual offences, and subsequently impose a death sentence on persons convicted of sexual offences solely based on their HIV-positive status.

The case was supported by the Southern Africa Litigation Centre (SALC), AIDS and Rights Alliance for Southern Africa (ARASA), HIV Legal Network – all members of HIV JUSTICE WORLDWIDE (HJWW) Steering Committee coordinated by the HIV Justice Network (HJN) – as well as Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN). Lesotho Network of People Living with HIV and AIDS (LENEPWHA) was admitted as Amicus Curiae. The petitioner and Amicus Curiae were represented by Advocate Molati, Advocate Mokhathali, Advocate Masaeso, Advocate Mohau (K.C) and Advocate Letuka.

The petitioner challenged the constitutionality of section 32(a)(vii) of the Sexual Offences Act which appeared to impose a mandatory death sentence on people convicted of sexual offences who were HIV-positive and were aware of their status. The petitioner also challenged section 30 of the Act, which requires mandatory HIV testing for persons arrested and charged under the Act. The petitioner argued that the imposition of a mandatory death sentence solely on the grounds of HIV status, and mandatory HIV testing upon arrest, breached the constitutional rights to life, equality and non-discrimination, equal protection of the law, privacy, and dignity and that they contribute to stigma against people living with HIV.

In a judgment written by Justice Makara, the High Court, sitting as a Constitutional Court, declared that section 32(a)(vii) of the Sexual Offences Act was unconstitutional to the extent that it imposes a death sentence solely on the basis of a person’s HIV status, as this was discriminatory and amounted to inhumane treatment. The Court said that people convicted of sexual offences should be sentenced according to the mitigating or aggravating circumstances rather than HIV status alone, and that the law should be interpreted so as not to require a mandatory death sentence for a person living with HIV.

“People living with HIV have the right to life, as all people do. Imposing the death penalty based on a person’s HIV-positive status is the most extreme form of discrimination possible. We welcome the Lesotho High Court’s decision to end this terrible human rights violation.” Edwin J Bernard, HIV Justice Network, global coordinator, HIV JUSTICE WORLDWIDE.

“While recognizing the serious impact of sexual violence, the judgment is an acknowledgment that the over-broad use of criminal laws and sanctions solely based on HIV status is unjust and not justified by a scientific and human-rights based approach” Maketekete Alfred Thotolo, Executive Director, LENEPWHA.

 

Download the pdf of the news release here