(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.
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.
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 The Joint United Nations Program on HIV/AIDS has called for HIV-specific criminal laws, like section 19A, to be repealed.
“Today we can be proud that Victoria has repealed its HIV-specific criminal law, and in doing so, reaffirmed its commitment to treating HIV as a public health issue and not a criminal justice issue.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.”
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.
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.
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.
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.
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.”
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.
The past month or so has seen a huge amount of activity around overly broad HIV criminalisation in the United States, culminating the reintroduction of the REPEAL HIV Discrimination Act by Congresswoman Barbara Lee.
As well as on-going arrests and prosecutions of individuals for alleged non-disclosure (and some excellent reporting on certain cases, such as that of Michael ‘Tiger Mandingo’ Johnson in Missouri or of two new cases on the same day in Michigan) new problematic HIV-related criminal laws have been proposed in Alabama, Missouri, Rhode Island and Texas.
Fortunately, most of these bills have been stopped due to rapid responses from well networked grass roots advocates (many of whom are connected via the Sero Project’s listserv) as well as state and national HIV legal and policy organisations, including the Positive Justice Project.
REPEAL HIV Discrimination Act
On March 24th, Congresswoman Barbara Lee reintroduced a new iteration of the REPEAL HIV Discrimination Act (H.R.1586), “to modernize laws, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes”.
The full text of the bill can be found here.
The last time the REPEAL Act was introduced, in 2013, it had 45 co-sponsors before dying in committee. The first iteration, introduced in 2011, achieved 41 co-sponsors.
As of April 15th, the 2015 iteration has three co-sponsors, two Democrats – Jim McDermott and Adam B Schiff – and one Republican, Ileana Ros-Lehtinen.
As in 2011 and 2013, the bill has been referred to three House Committees: Judiciary, Energy and Commerce, and Armed Services.
Back in 2013, the Positive Justice Project produced an excellent toolkit that provides advocates with resources which “can be used in outreach efforts, including a guide for letter writing campaigns, calling your representative’s state and Washington D.C. offices, or meeting with your representative or the representative’s legislative staff.”
If you’re in the US, you can also show Congress that you support this bill at: https://www.popvox.com/bills/us/114/hr1586
Alabama
On April 1, 2015 the House Judiciary Committee of the Alabama Legislature held a hearing on HB 50, proposed by Democrat Representative Juandalynn Givan, that would increase the penalty for exposure or transmission of a sexually transmitted infection from a class C misdemeanour (punishable by up to 3 months in jail and a $500 fine) to a class C felony (punishable by up to 10 years in prison).
Representative Givan was apparently inspired to propose the bill after reading about a pastor in Montgomery, Alabama, who admitted in an October 2014 sermon that he was living with HIV and engaging in sex with women in his congregation without having disclosed his status. (He wasn’t prosecuted, but appears to have lost his job, as of the last news report in December 2014.)
In an interview in March 2015, she told AL.com that Alabama is one of only 16 states in the nation where it is a misdemeanour rather than a felony to ‘knowingly expose another person to a sexually transmitted disease’.
“What this bill is about is responsibility and accountability…The aim of this bill is not to punish those people with a sexually transmitted disease but to hold those people accountable,” that knowingly transmit dangerous illnesses to other people.
Some of the testimony before the House Judiciary Committee – most of it against the bill – is reported (rather poorly) in the Alabama Political Reporter.
Before the hearing began, the Positive Justice Project Steering Committee sent a powerful letter to the members of the House Judiciary Committee, voicing their strong opposition to the bill.
Medical experts and public health officials agree that criminalizing the conduct of people living with HIV does nothing to decrease the rates of infection, and may actually deter conduct and decisions that reduce disease transmission. Consequently, the American Medical Association, HIVMA, ANAC, and NASTAD have issued statements urging an end to the criminalization of HIV and other infectious diseases. Notably, the U.S. Department of Justice recently issued “Best Practices Guide to Reform HIV-Specific Criminal Laws,” which counsels states to end felony prosecutions of people living with HIV as contrary to the relevant science and national HIV prevention goals.
The bill remains with the House Judiciary Committee, but seems unlikely to be passed given that there are no co-sponsors.
Missouri
On March 10th, Republican Representative Travis Fitzwater introduced HB 1181, which proposed adding ‘spitting whilst HIV-positive’ to Missouri’s (already overly draconian) current HIV-specific criminal statute.
It is unclear what caused Rep Fitzwater to introduce the bill. However, advocacy against it was swift, with the local chapters of both ACLU and Human Rights Campaign, and Missouri-based HIV advocate, Aaron Laxton, planning to testify against it within days of it being introduced.
Although the bill was scheduled for a public hearing before the Civil and Criminal Proceedings Committee on April 7th, the community’s quick response meant the bill was not heard. According to Laxton, “within a matter of hours every member of the Civil and Criminal Proceedings Committee has received calls, emails, tweets and messages from many people” against the bill.
The proposed bill now appears to be dead, and advocacy in Missouri is now focused on modernising the existing HIV-specific law (which includes criminalising biting whilst HIV-positive) to take into account the latest science around HIV risk and harm.
Rhode Island
On February 24th, Republican Representative Robert Nardolillo introduced a new HIV-specific criminal law (H 5245) that would have criminalised HIV non-disclosure in the state for the first time.
In an interview with Zack Ford on thinkprogress.org, Rep Nardolillo said that as a survivor of sexual abuse he was surprised to discover that Rhode Island law does not allow for harsh enough penalties if HIV is passed on during a sexual assault.
However, although his proposed bill created a felony when someone with HIV “forcibly engages in sexual intercourse,” it also criminalised when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”
The entire hearing before the Rhode Island House Judiciary Committee was captured on video, and an excellent blog post by Steve Ahlquist on RIFuture.org highlighted both Rep Nardolillo’s ignorance of the potential harms of the bill, and the sustained and powerful testimonies against the bill from public health experts, people living with HIV and HIV NGOs alike.
Ahlquist concludes, “In the face of such strong opposition, it seems extremely unlikely that this legislation will advance out of committee.”
All testimonies are available to view in short video clips on the blog. You can also read the written testimony of the AIDS Law Project of the Gay & Lesbian Advocates & Defenders (GLAD) here.
Texas
On February 25, Republican Senator Joan Huffman introduced SB 779, which would essentially have created an HIV-specific criminal law by the back door.
Texas repealed its previous HIV-specific criminal law in 1994 and uses general criminal statutes, including attempted murder and aggravated assault, for potential or perceived HIV exposure and alleged HIV transmission cases.
According to the Advocacy Without Borders blog, “SB 779 proposes to amend the state Health and Safety Code to allow for HIV test results (which are currently confidential) to be subpoenaed during grand jury proceedings – and for a defendant’s medical records to be accessed without their consent to establish guilt/innocence and also potentially to be used to determine sentencing. Essentially, this bill proposes to criminalize having HIV.”
The proposed law, and a number of other proposed HIV-related laws, was also critiqued in a Dallas Voice article highlighting the opinion of Januari Leo, who works with Legacy Community Health Service.
Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem…These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”
Although it was considered in a public hearing before the State Affairs Committee on April 16, it now appears to be dead.
The Czech Health Ministry is pushing a proposed amendment to the law on public health which would make HIV testing compulsory for some people in high risk groups. While the ministry argues that this is to curb the spread of the disease and ensure early treatment, human rights advocates say it would mean a serious breach of human rights.
HIV testing in the Czech Republic is conducted anonymously and is free of charge. In its prevention programmes the Czech AIDS Help Society highlights the importance of getting tested in order to enable early treatment of the disease and protect others in the event of a positive outcome. Still many people who engage in what is seen as high-risk behaviour do not want to undergo testing. The Czech Health Ministry now wants to change that and force people who are considered to be at high risk to undergo testing or face a tall fine.
The proposed amendment to the law has already passed without opposition through the health committee of the Chamber of Deputies and is due to go into a third reading in the lower house. However it has stirred controversy among human rights advocates, and is strongly opposed both by the Czech AIDS Help Society and the government’s committee for the rights of sexual minorities.
Robert Hejzák, photo: Czech Television Robert Hejzák from the Czech AIDS Help Society says repression is not the way to go –even in the interest of protecting public health.
“Human rights are universal and we do not accept the argument that in the case of HIV they should be violated in the interest of public health. Moreover HIV positive people are not a direct threat to the public – this is not ebola, it is not tuberculosis or even the flu.”
The country’s chief hygiene officer Vladimír Valenta refuses to hear this argument saying that the health authorities have a duty to protect the public from an epidemic.
“We are talking about individuals who are at the centre of a high-risk environment and there is a higher probability of infection. From an epidemiological point of view HIV is no different from other diseases that put the population at risk. There is a danger off the virus spreading and this danger merits the same kind of protective measures as in other potential epidemics.”
Vladimír Valenta, photo: Filip Jandourek At present the Czech Republic (with over 10 million inhabitants) has over 2,000 people registered HIV positive, and over 200 people have died of AIDS. Each year brings on average around 230 new cases. Under the present legislation testing is only compulsory for pregnant women in order to enable heightened protection of the unborn child. If the newly-proposed amendment passes through both chambers of Parliament and is signed into law by the president pretty much anyone considered high risk could be forced to undergo a test for HIV. How this would prevent them from spreading the disease further or even encourage them to act responsibly with regard to their own health is not clear and the answer to those questions may be decisive in whether lawmakers allow this particular amendment to pass through a third and final reading in the lower house.
Women in the country have condemned the law criminalising the willful transmission of HIV claiming that women always feel the brunt of the law. Criminalisation of willful or deliberate transmission has become controversial in a county. Willful transmission is defined in the Zimbabwean law as the failure to disclose one’s status or to take precautions for preventing the transmission of HIV/ AIDS.
Speaking during a TweetT@ble discussion held by the Netherlands Embassy and 263Chat, Martha Tholanah the Director of International Community of Women living with HIV Zimbabwe said the legislation is unlawful.
“HIV/AIDS has always carried the face of a woman and women always carry burden the HIV pandemic. The criminalisation of willful transmission also has a woman face which is unlawful as women always end up being victims of the provision,” said Tholanah.
She also said, “Women are always accused of bringing the HIV virus into marriages and the justice system has not done enough to protect women who end up being imprisoned for 20 years.”
While it is difficult to detect who infected the other in a relationship women have always been labeled as the culprits.
Cases of willful transmission are on the rise mainly based on HIV positive people who have had sex with the primary intent of transmitting the virus to their partner.
Several cases have been brought before the courts where individuals claim to have deliberately infected with HIV by their partners with many occasions pointing the woman as the one who infected the men.
Tamara Jonsson, the Program Officer of UNAIDS Zimbabwe said, “the provisions of the criminal law are problematic especially the criminalisation of non disclosure.
“Criminalisation of non disclosure has negative implications on women as it does not guarantee safety after disclosure.”
She went on to say that stories told always climax with the younger women eventually being summoned to the courts for allegedly infecting the male counterpart.
Tinashe Mudawarara a lawyer with ZLHR, said the law is overbroad and it’s the provision are wide, dangerous, and unlawful and thereby infringing on the right to protection of the law.
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