Zambia: Network of people living with HIV react to last week’s prosecution of a Zambian man in Wales for reckless HIV transmission, say HIV criminalisation is unworkable and unjust

THE Network of Zambian People Living with HIV and AIDS says criminalizing HIV transmission cannot work in a country like Zambia which has a high prevalence rate of the disease. Commenting on a story in Swansea, Great Britain where a Zambian man has been jailed for seven years after infecting two women with HIV, NZP+ programme manager Kunyima Banda in an interview described the situation as unfortunate.

According to the South Wales Evening Post, Mweetwa Muleya, 28, had unprotected sex with two women knowing he had HIV and he failed to tell them about his HIV condition before having sex with them. A court heard the women were “devastated” to find out they had caught the life changing illness after going for blood tests.

Asked if Zambia could also introduce a law to criminalize HIV infection, Banda said criminalizing HIV infection would becomes a barrier for people to access HIV/AIDS services.

“It is not right to willfully infect another person but it would be difficult for Zambia because you have to establish whether willful infection did take place, whether the person at a time that they had intercourse, the other person never knew that the partner was infected, that has to be determined as well. You also have to determine that the person actually did want to infect on purpose,” Banda said.

She said Zambia’s current system could not allow the criminalization of HIV because the country was putting interventions where more people could go for be testing.

“If we have a law which criminalizes HIV infection, it means that a lot of people will not go for HIV testing. What it will mean is that if people do not want to know their status, chances of them infecting other people then becomes higher because then they do not know that they are infected with HIV,” Banda said.

“Just imagine if a pregnant woman who has no access to medical facilities then gives birth and the baby gets infected, what do you call that? So all those are issues that we need to consider to make that law in Zambia which will not work for us because we are looking at getting to the 90- 90 target where 90 per cent of the people knowing their status, 90 per cent of people getting their treatment,” she said.

Banda said her organization could not support the criminalization of HIV infection.

She however said NZP+ did not encourage people to go out and infect other people willfully.

Kenya: Mandatory HIV reporting directive challenged as unconstitutional and a violation of people's rights

A directive by President Uhuru Kenyatta requiring the compilation of a report on all school children living with HIV and Aids has been challenged in court. The petitioners: Kenya Legal and Ethical Issues Network (Kelin), Children of God Relief Institute (Nyumbani) and two other parties, are apprehensive that compiling such a list violates the law and stigmatises the people living with HIV. High Court judge Mumbi Ngugi certified the matter as urgent and directed that the parties file and serve the relevant documents before the matter is heard tomorrow. The directive issued by the President on February 23 requires county commissioners and the ministries of Health, Education and Interior to collect up to date data and prepare a report on all school children living with HIV and information on their guardians. The directive further calls for information on expectant women and breastfeeding mothers who are HIV-positive. The petitioners stated that the Government agencies had proceeded to implement the directive without consulting people living with the virus, which they say contradicts Article 10 of the Constitution. See also: Leaders dismiss claims of ‘Kiambu-mafia’ machinations “The method of data collection under the said directive is prejudicial to the rights of the people living with HIV,” said Allan Maleche, the executive director at Kelin. He also said the National Aids Control Council (NACC) are holding the names illegally while implementing the president’s directive. Achesa stated in a sworn affidavit that the ministries had continued implementing the directive despite numerous advisory notes from his organisation, constitutional commissions and networks of people living with HIV. He added that a letter sent to the President on March 11 and a follow-up letter two weeks later were yet to be responded to. They now want the court to declare the directive unconstitutional and a violation of people’s rights. They also want the ministries and NACC to be compelled to destroy or codify all data in their possession collected as a result of the directive.

International Community of Women Living with HIV (ICW) publish updated position statement on overly broad HIV criminalisation

The International Community of Women Living with HIV (ICW) have published an updated position statement on the criminalisation of women living with HIV for non-disclosure, potential or perceived exposure, and transmission.

The statement highlights many problems with overly broad HIV criminalisation, but is notable for singling out issues that specifically relate to women living with HIV:

Critically, rather than reducing transmission of HIV, fear of prosecution may deter women from accessing needed treatment care and support, discourage disclosure, and increase vulnerability of women to violence…

Criminalization is often framed as a mechanism to protect women who are experiencing intimate partner violence or sexual assault. However, in practice there same laws intended to protect women often place them in increased risk for violence and increasing stigma surrounding HIV…

The criminalization of mothers for HIV transmission and/or exposure serves to further increase stigma for positive women who want to have children or who are pregnant, by blaming women for transmission.

ICW recommends the following:

Repeal laws that criminalize non-intentional HIV exposure or transmission, particularly those that single out women living with HIV or people living with HIV for prosecution or increased punishment solely based on their HIV status.
Empower women to know about the criminal context of HIV transmission and exposure.
Enact legislation that promotes gender equality in the criminal justice system.
Remove all laws that disproportionately target women living with HIV and marginalized groups.
Promote community based awareness campaigns to address criminalization as a human rights violation.
Train health care providers, and other support workers to ensure that confidentiality for women living with HIV is protected.
Increase legal support for women living with HIV facing prosecution under these harmful laws.

Read the full position statement below.

ICW Position Statement 2015 CRIMINALIZATION OF WOMEN LIVING WITH HIV: NON-DISCLOSURE, EXPOSURE, AND TRANSMI…

Alone But Together
Women and Criminalisation of HIV

(15 min, Zimbabwe Lawyers For Human Rights, Zimbabwe, 2014)

This video explains why overly broad HIV criminalisation harms women, and highlights the issue with an interview with a woman who is fighting her conviction for allegedly infecting her husband.

Australia: Victoria’s HIV-specific criminal law, Section 19A, finally repealed today

In a joint media release, Living Positive Victoria and the Victorian AIDS Council have welcomed the passage of the Crimes Amendment (Repeal of Section 19A) Act 2015 by the Victorian Parliament. The Act repeals Australia’s only HIV-specific law criminalising the intentional transmission of HIV, section 19A of the Crimes Act 1958, which has been criticised for unfairly targeting and stigmatising people with HIV.

View the story “19A Repeal – Live Tweets from @paulkidd” on Storify

Live Tweets from Victoria’s Parliament today. To find out more about the five year campaign to repeal the law, read this blog post written for the HIV Justice Network by Paul Kidd, Chair of the HIV Legal Working Group.

The two organisations had called for the repeal of section 19A in the lead-up to the 2014 International AIDS Conference, held in Melbourne, as part of an advocacy effort designed to reduce the incidence of HIV-related criminal prosecutions in Victoria.

“Victoria has the unfortunate distinction of having had more HIV-related prosecutions than any other state, and until today had the only HIV-specific criminal law,” said Simon Ruth, Chief Executive Officer, Victorian AIDS Council. “Our organisations strongly believe that HIV should be treated as a health issue, and that criminal prosecutions should only be used in cases where transmission occurs and there is evidence the alleged perpetrator acted with intent.”

The use of the criminal law to control HIV has been roundly criticised by legal theorists, HIV experts and international agencies. The Joint United Nations Program on HIV/AIDS has called for HIV-specific criminal laws, like section 19A, to be repealed.

“Today we can be proud that Victoria has repealed its HIV-specific criminal law, and in doing so, reaffirmed its commitment to treating HIV as a public health issue and not a criminal justice issue. Government, community and industry need to work together if we are to meet our goal of eliminating HIV transmissions by 2020, and the multi-party support for repealing section 19A shows our legislators are listening and prepared to enact evidence-based policies,” said Brent Allan, Chief Executive Officer, Living Positive Victoria.

The repeal of section 19A will not legalise the intentional transmission of HIV, but will ensure that any allegation of intentional transmission is dealt with under general laws, the same as for other forms of injury. The campaign to repeal the laws highlighted the stigmatising effect of HIV criminalisation.

“Criminalising HIV transmission and exposure isn’t just ineffective as a method of prevention, it is actually counterproductive to our efforts because it perpetuates stigma,” said Paul Kidd, Chair of the HIV Legal Working Group. “We know the stigma around HIV is one of the biggest barriers to increasing testing and treatment, and enabling voluntary disclosure of HIV. Section 19A sent a false message that people with HIV are a danger to the community, and todays repeal shows the Parliament accepts that we are not.

“This is a law that was never needed, and should never have been enacted. It has not made Victorians safer, and in fact may have led to an increase in the number of people living with HIV. The whole Victorian community should be happy to see it go.”

The HIV Legal Working Group has been the recipient of GLOBE, VAC and Living Positive Victoria awards for its work on the repeal of section 19A. A community celebration of the repeal of section 19A is being planned and will be announced shortly.

In a blog post written exclusively for the HIV Justice Network, Paul Kidd highlights that although this battle has been won, the work against unjust prosecutions in Victoria is yet not over.

“Now that section 19A is gone, our work continues, he writes. “We still need to address the unacceptably high number of prosecutions for ‘HIV endangerment’ that occur in Victoria. We strongly believe we have a model that will deliver the right public health outcomes while safeguarding the public, without the use of expensive, ineffective and highly stigmatising criminal prosecutions. With the repeal of section 19A, our state government has recommitted itself to a health-based response to HIV, and we believe that gives us the best possible platform to continue our campaign for prosecutorial guidelines.”

Repealing Section 19A: How we got there, by Paul Kidd, Chair of the HIV Legal Working Group

Australia’s only HIV-specific criminal law, section 19A of the Crimes Act in the state of Victoria, has now been repealed. This is an exciting step forward for those of us working to turn around Victoria’s poor record on criminalisation of HIV. This blog entry outlines the process we used to achieve this historic reform.

This story starts just before the 2010 International AIDS Conference in Vienna, at the first-ever HIV criminalisation pre-conference meeting, co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV (GNP+) and NAM (who host the HIV Justice Network). Attending this meeting and hearing about the incredible work being done in this area was the inspiration for starting a joint advocacy project to address the issue here in Victoria. The partners in that project are the two largest HIV organisations in our state, Living Positive Victoria and the Victorian AIDS Council.

Our objectives were to achieve a set of prosecutorial guidelines, on a similar model to those adopted by the Crown Prosecution Service for England and Wales, and the repeal of s 19A. Although our initial focus was on the guidelines, with the announcement that Melbourne would host the 2014 International AIDS Conference, we decided to shift our focus to the repeal of s 19A. We felt that by focusing on a law that was manifestly out of step with best practice, we could use the conference to embarrass our legislators into action. With a state election due three months after AIDS 2014, we felt confident we could make political headway with the issue.

Section 19A makes it a criminal offence to intentionally transmit a ‘very serious disease’, which is defined to mean only HIV. It carries a maximum 25-year prison sentence, making it one of the most serious crimes on the Victorian statute book. It was enacted in 1993, following a high-profile case in which a prison officer in NSW was stabbed with a hypodermic syringe, and a number of cases in which blood-filled syringes were used in armed robberies.

Although the law was passed, supposedly, to deal with this kind of ‘syringe bandit’ assault, in practice it has been applied exclusively against people accused of sexual transmission of HIV. Although only a handful of cases have ever been prosecuted (and none successfully), s 19A has often been charged, or used as a threat against people accused of reckless transmission or endangerment. Its presence on the statute book has sent an unwelcome and false signal that people with HIV are a danger to public safety.

Additionally, we were armed with a solid evidence base – particularly the reports of UNAIDS and the Global Commission on HIV and the Law, which specifically criticise HIV-specific laws like s 19A.

We made a point of telegraphing our intentions to the government and opposition political parties well ahead of the conference. We developed a policy brief setting out the case for repeal of the section, and sought dialogue with both parties in the months before the conference. We wanted to give them every opportunity, at a time when the eyes of the world would be on us, to take action that would generate international attention and goodwill.

Our approach to the government was initially rebuffed, with a curt reply that they had no intention of changing the law. The Labor opposition, which had opposed the law in 1993, was more welcoming and we were able to explain our position at a number of meetings leading up to the conference. We were unable to get a commitment for action, but we were confident that both sides knew what we were asking for.

We gathered together a strong coalition of supporting organisations who agreed to back our call. As well as the HIV sector, we had support from the broader civil sector (organisations focused on human rights, mental health, gay and lesbian rights) and from the legal sector, particularly the criminal bar. We had the backing of the AIDS 2014 chairs. We spent a good deal of time before the conference drafting talking points that enabled us to get our media messaging clear, and thinking about ways to get our message out to conference delegates already being showered with slogans, messages and leaflets.

As the conference approached, however, we had no commitment from either party. We were taken by surprise when the health minister used a speech opening the ‘Beyond Blame’ HIV criminalisation pre-conference to make a commitment to ‘amend section 19A to make it non-discriminatory.’ Given the blunt ‘not interested’ we had received a couple of months earlier, this was a stunning turnaround, but still fell short of what we wanted – full repeal of section 19A. Worse, the way the announcement was phrased suggested the scope of the law could in fact be widened to include other diseases like hepatitis C – the last thing we wanted.

As the conference week progressed, we continued to press our case and to highlight the need for repeal. We garnered positive press coverage following a media conference held on the opening day (even the tabloid press gave us a sympathetic hearing). The sight of thousands of protesters marching through the streets of Melbourne with signs reading ‘#REPEAL19A’ made the evening news. We publicly called on the government to clarify why they were saying ‘amend’ rather than ‘repeal’. Behind the scenes, we used every social event and reception to buttonhole politicians and push our case, highlighting the goodwill that an announcement would generate for them on the international stage. It was an exhausting week, but with each passing day we knew our opportunities were diminishing.

Finally, on the last full day of the conference, the opposition Labor Party committed to full repeal of section 19A, within one year, if they won the election in November. The word came though via text message while I was sitting in a conference session on criminalisation advocacy, and I felt close to tears as I told the room what had happened. We now had commitments from both major parties, meaning reform of the law was almost assured.

Following the conference, we continued to push the government to explain how they intended to ‘amend’ section 19A and pressed our case for full repeal further. We never got an answer to our question, because the government didn’t bring the legislation forward before the expiry of the parliamentary term, then at the election there was a change of government.

The Labor Party, which had unambiguously promised to repeal s 19A, was now in government, and one of the most pleasing things about the last five months has been seeing them stick to their guns around 19A. Seeing government ministers on gay pride day carrying a banner saying ‘repeal section 19A’ was amazing.

I think the key message from our experience is that if you have an opportunity and you plan well, you can make tremendous use of it. I realise most activists won’t have the luxury of having the international AIDS conference come to their city, but hopefully other opportunities exist where local and global attention can be used to highlight inequities in the law. Building collaborations and learning from what has worked elsewhere is vital, but develop a strategy that suits your local needs and capacities.

Don’t be deterred if others disagree with your strategy – I’ve lost count of the number of times I’ve been told that criminalisation isn’t a first-order issue, or that by advocating for change we risk ‘making things worse’, or that by advocating too hard we risk getting nothing in return and pushing the issue off the agenda.

Now that s 19A is gone, our work continues. We still need to address the unacceptably high number of prosecutions for ‘HIV endangerment’ that occur in Victoria. We strongly believe we have a model that will deliver the right public health outcomes while safeguarding the public, without the use of expensive, ineffective and highly stigmatising criminal prosecutions. With the repeal of section 19A, our state government has recommitted itself to a health-based response to HIV, and we believe that gives us the best possible platform to continue our campaign for prosecutorial guidelines.

Paul Kidd (@paulkidd) chairs the Victorian HIV Legal Working Group.

Malawi: High Court rules that mandatory HIV testing is unconstitutional

By Anneke Meerkotter, Southern Africa Litigation Centre (SALC) and Ian Southey-Swartz, Open Society Initiative for Southern Africa (OSISA)

In 2009, a group of women, presumed to be sex workers, was as part of a police sweeping exercise in Mwanza, Malawi. The women were taken to the Mwanza District Hospital where they were tested for HIV without their knowledge or consent, and in contravention of Malawi’s HIV policy. The women were then taken to the Mwanza Magistrates’ Court where some were charged with and convicted of “spreading venereal disease (HIV)”.

In 2011, eleven of these women filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests and the public disclosure of their HIV status in open court. The women argued that these actions by government officials violated their constitutional rights. Justice Dorothy nyaKaunda Kamanga handed down judgment on 20 May 2015.

Reading her judgment in court, Justice nyaKaunda Kamanga, said that forced HIV testing amounted to a violation of the applicants’ constitutional rights, including their right to privacy; their right to non-discrimination; their right to freedom from cruel, inhuman and degrading treatment; and their right to dignity. Justice Kamanga went a step further and requested a copy of the criminal court records in order to review the sentence the magistrate imposed on the applicants.

The case is illustrative of how the criminal justice system often impedes on accused persons’ rights to dignity, a fair trial and access to justice. In the present case, the matter was repeatedly delayed, including due to high caseloads and industrial action by judiciary personnel.

The judgment comes in the context of other important developments in Malawi. Civil society activists have increasingly voiced their concerns about the manner in which sex workers are treated by the police. Police often arbitrarily arrest women presumed to be sex workers during sweeping exercises and misguidedly and unlawfully charge them with offences such as being a rogue and vagabond or living off the earnings of prostitution, when there is no evidence of such offences having been committed. Such arrests inevitably involve a range of human rights violations.

The attitudes displayed by police towards alleged sex workers also extend to how some policy-makers view sex workers in Malawi. The HIV and AIDS (Prevention and Management) Bill of 2013, currently prohibits compulsory HIV testing, but allows forced HIV testing for specific groups of people, including commercial sex workers. In contrast, this case highlights the human rights violations caused by mandatory HIV testing and the importance of having legislation which prohibits this. This is an important message at a time when the Malawi government engages in final deliberations on the proposed Bill.

The case shows that it is possible for vulnerable groups to hold the government accountable when their rights have been violated. It is hoped that the judgment, once available, will be used as a resource by other marginalized groups to assert their rights and will contribute to improving constitutional jurisprudence in the region.

Canada: Mainstream magazine covers the problematic link between 'treatment as prevention' and overly broad HIV criminalisation

Transmission Control

HIV non-disclosure laws do more harm than good

By Miranda Elliott

From the June 2015 magazine

Testing HIV positive is no longer a death sentence—a fact that stands as one of the great medical achievements of the twentieth century. The United Nations aims to diagnose 90 percent of all HIV infections worldwide by 2020, deliver antiretroviral therapy to 90 percent of those who test positive, and suppress the virus in 90 percent of those treated. If these goals are met, the AIDS epidemic could be over by 2030.

The UN strategy owes a significant debt to Canadian research—particularly that of Julio Montaner, who was among the first scientists to establish highly active antiretroviral therapy as the standard of care for HIV, back in the mid-1990s. Sustained use of HAART suppresses the virus’s ability to replicate, eventually decreasing the concentration of HIV cells in the blood to undetectable levels and delaying the onset of symptoms and eventual progression to AIDS.

Regrettably, our legal system has not kept pace with these advances.

Montaner conducts his research in Vancouver, which was among the hardest-hit communities in North America in the early ’90s. The British Columbia government soon became an enthusiastic supporter of HAART and quickly rolled out antiretroviral-therapy coverage across the province. Between 1996 and 2009, the number of people taking HAART increased more than sixfold. Accordingly, the rate of AIDS-related deaths in the province plummeted 80 percent.

In their efforts to treat the virus, the researchers had stumbled upon a way to control its spread, too: when antiretroviral treatment reduces the virus in a patient’s bloodstream, it also reduces the virus to undetectable levels in sexual fluids and dramatically decreases the risk of transmission. Studies indicate that, among gay men, an undetectable viral load decreases the risk for unprotected receptive anal sex from 1.4 percent to almost zero. When it comes to the spread of HIV, a low viral load (between zero and 0.05 viral copies per millilitre) is more effective at preventing transmission than wearing a condom is.

Once the epicentre for new cases, BC has been enormously successful at controlling the HIV epidemic, using this Treatment as Prevention strategy, or TasP. The rate of new infections is now below the Canadian average. For the past decade, Montaner has been calling for national and international prevention strategies modelled on BC’s success with TasP. But what seems like sound medical advice could inadvertently put Canadian patients at legal risk. This is because we have one of the most aggressive legal approaches to HIV non-disclosure in the world. We are second only to the US in prosecutions.

HIV-positive Canadians who don’t reveal their status before they have intercourse can be charged with aggravated sexual assault. Conviction carries with it a maximum sentence of life in prison and a mandatory listing on the national registry of sex offenders. Between 1989 and early 2015, 176 people, in 188 separate cases, were prosecuted for non-disclosure, and more than half of the cases led to conviction.

Yet many of those convicted did not transmit the virus to the plaintiff. To be found guilty, a defendant need only have knowingly exposed his or her partner to what the courts deem a “realistic possibility” of transmission. Since there are no prosecutorial guidelines that define a low viral load, interpretations vary widely from case to case. And so it is possible that a properly medicated HIV-positive sexual partner might be convicted under the law, even if his viral load is so low as to reduce the possibility of transmission to a statistically negligible level.

The non-disclosure law originated with the 1998 Supreme Court decision in R v. Cuerrier, at a time when death rates were skyrocketing and policy-makers were scaling up testing and treatment. Proponents of the law argue that it helps protect people from malicious exposure to HIV.

The feeling on the ground is very different: since the law punishes only those who knowingly put partners at risk, it might encourage some at-risk Canadians to remain ignorant about their medical status. Evidence is sparse when it comes to this chilling effect, but even researchers such as Montaner agree that the law “creates a counterproductive environment.”

There is also a growing number of allegations that health authorities have not been forthcoming when it comes to informing patients of the legal risks associated with being HIV positive. Though BC’s 2014 testing guidelines lay out explicitly the requirement for informed consent, they don’t advise practitioners to address the issue of non-disclosure criminalization before testing. The province’s public-health officer, Perry Kendall, says this is intentional. Public-health practitioners are not legal experts, he says, noting that the longer and more complex the preliminary conversation, the less likely the patient will be to go through with testing.

While there is little systematic collection of information about testing experiences, Micheal Vonn of the BC Civil Liberties Association says she has received a number of complaints from patients, particularly pregnant women, who claim they were tested without consent. Vonn, alarmed by these allegations, plans to investigate further.

Another human-rights advocate, Richard Elliott of the Canadian HIV/AIDS Legal Network, believes clearer guidelines are essential to ensuring that those who are tested are sufficiently aware of the legal risks. He notes that physicians’ records have been subpoenaed in court to support convictions for non-disclosure.

The unfortunate irony here is that the very laws intended to prevent further transmission of HIV may actually promote its spread—by discouraging testing and, by extension, impeding the work of the successful TasP program. Seventeen years after the Supreme Court’s 1998 decision, Canadian lawmakers must ensure that our policy of criminalizing non-disclosure does not serve to punish those who opt for life-saving HIV therapy and treatment.

US: Alabama lawmaker's proposal to increase 'knowing' HIV/STI transmission to a felony likely to resurface in 2016

People with sexually transmitted diseases who knowingly spread infection to their partners could face prison time, if a bill now in the Legislature becomes law.

Proposed by Rep. Juandalynn Givan, D-Birmingham, the bill would make knowingly transmitting an STD a Class C felony if passed; it’s currently a misdemeanor. Some advocates worry, though, that the bill might have unintended consequences that make it harder to fight the spread of disease.

Givan said her goal was to target those who intentionally put the lives of others at risk. The bill was inspired by calls Givan received following a case involving Montgomery pastor Juan McFarland. “This gentleman knew he had HIV and decided to engage in sexual relationships with multiple women, which could lead to their deaths,” she said.

Some of those women were reluctant to speak out because the charge McFarland could have faced was only a misdemeanor, she said.

“They said ‘I might want to come forward, but there’s not enough strength in the current law. I would have made myself a public spectacle for no reason,’” Givan said the women told her.

AIDS Alabama policy chief Lauren Banks worries that the proposed law could do more harm than good, though.

“By and large this law is not helpful. It stigmatizes HIV or a person with an (sexually transmitted infection) even more,” Banks said. “It would police the bedroom.”

Under current law, those convicted of the misdemeanor offense would face no more than 90 days in jail, Givan said. Offenders might get out on time served.

“That’s absolutely ridiculous,” said Givan.

Banks, who has worked with Givan to modify the bill, worries that the original version does not specify which STDs would be included in the law. Some infections, she noted, can be spread even when using condoms, such as human papilloma virus and herpes.

“So even safe sex could be criminalized,” Banks said.

Banks also said if the bill passes it could cause fewer people to get tested for STDs.

“Other states that have enacted these laws have seen negative fallout because once you know your status, you are culpable. But we want people to know their status. We don’t want people to be afraid of what could happen to them.”

Banks suggested another way to counteract rising STD rates.

“If anything, we should focus on creating sexual health education curricula for our schools that is age-appropriate and medically accurate,” she said. “Let’s be preventative and not punitive.”

Eric Guster, a Birmingham attorney who frequently comments on criminal issues, said the consequences of tougher sentencing should be considered.

“If a person is found guilty, a first-time offender would receive a possible sentence of a year and day to 10 years in prison,” he said.

Guster said he’d want the bill to specify the diseases mentioned. He pointed out several problems with enforcing the law.

“The misdemeanor is rarely used because people don’t want to put their sexual history on display,” he said. “When you’re speaking of STDs, people go to the doctor, get treated and then move on with their lives.”

Also, the burden of proof would be steep.

“The affected person has to prove beyond a reasonable doubt that that partner gave them the disease and that’s the only sexual partner they’ve had who could’ve done it,” he said.

Making knowingly transmitting an STD a felony without creating stiffer penalties for certain types of diseases also raised concerns for Guster.

“When you have cases where younger people have a disease that is easily transferable, that puts a lot of students at risk for felonies for just doing things teenagers do,” Guster said.

Givan said she has received calls of support from colleagues on both sides of the aisle. She and Banks also discussed possible changes to the bill.

“Juandalynn tried to meet us halfway with amendments such as transmission has to occur, and a disclaimer that if you tell your partner you have HIV, you would be exempt from prosecution if they were infected,” said Banks.

The bill, however, has not moved since the beginning of the legislative session in March, and appears to be running out of time for passage this year.

Givan said she changed the bill late last week and expected it to be the first one “in the hopper to go out for sponsorship next year.”

“I want safeguards in place,” she said. “I think it’s a piece of legislation that is needed. I just want to be sure we do it the right way.”

Kenya: Detailed analysis of recent High Court ruling on Kenya’s HIV-specific law by Annabel Raw, head of Health Rights Programme at the Southern Africa Litigation Centre

On 18 March 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act (“Act”) unconstitutional. I applaud the impetus of the decision but I want to argue that the narrow focus of the Court’s judgment reduces its potential to advance rational health policies and laws.

Section 24(1) of the Act requires a person aware of being HIV-positive to “take all reasonable measures and precautions to prevent the transmission of HIV to others” and to “inform, in advance, any sexual contact or persons with whom needles are shared” of their HIV-positive status. Subsection (2) prohibits “knowingly and recklessly, placing another person at risk of becoming infected with HIV”. Contravention of these provisions is a criminal offence punishable by imprisonment for up to seven years, and/or a fine. Under section 24(7), a medical practitioner who becomes aware of a patient’s HIV-status may inform anyone who has sexual contact with that patient of their HIV-status.

In 2010, the AIDS Law Project sought a declaration that section 24 of the Act was unconstitutional and “unacceptable discrimination” on the basis of health status. It argued that the undefined terms of “inform”, “in advance” and “sexual contact” renders section 24 vague and overbroad, contrary to the principle of legality. It submitted that the provision violates the right to a fair hearing, equality, non-discrimination, and sexual privacy. The petitioner was supported by an amicus curiae, the Centre for Reproductive Rights, which made submissions on the disproportionate impact that the provision would have on women, exacerbating stigma and undermining public health interventions.

In a unanimous judgment of a sitting of three judges of the High Court, Lenaola HJ held that the central issue was the provision’s vagueness and overbreadth. Focussing solely on the absence of a definition for “sexual contact”, the Court held that it is impossible to determine what acts are prohibited. Further, given that section 24 places no obligation on sexual contacts who have been informed of another’s HIV-status to keep that information confidential, the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

Similar criminal provisions exist in a number of countries. The Constitutional Court in Zimbabwe is, for example, currently considering the constitutionality of Zimbabwe’s HIV criminalization law. The Kenyan judgment must be applauded to the extent that it emboldens the human rights critique of these laws and compels the Kenyan government to reconsider the provision.

It is disappointing, however, that the privacy violations were constructed so narrowly, with the Court failing to appreciate the risks of criminalizing non-disclosure more broadly, particularly for vulnerable groups, as raised by the amicus. Furthermore, by framing the vagueness and overbreadth ruling so strictly, the inhibiting effects of criminalization on effective public health interventions remain legally unscathed.

Insofar as the courts may be a useful forum to advance health rights and public health, perhaps a better legal foundation would be a rationality review of legislation. In a number of common law jurisdictions, this entails testing conduct or law against the ends that it claims to achieve. The standard typically requires that conduct needs to be rationally connected to a legitimate government interest or purpose in order to be lawful.

As made clear by the Act’s long title, its purpose is to prevent, control and manage HIV and AIDS, promote public health, and deliver appropriate care for persons living with HIV. The criminalization of HIV transmission and non-disclosure has come under heavy criticism by leading international experts and bodies for failing to protect human rights in a way that promotes public health initiatives for the effective treatment and control of HIV. If the argument against criminalization of HIV transmission is found persuasive in court, the legislation should be found irrational because it employs a strategy that is harmful to its purported ends.

It is in this sense that we might consider rationality review when using the courts in similar jurisdictions as fora to insist on public health policies and laws that are founded in scientific evidence and not fear and stigma.