Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women

Tomorrow, Zimbabwe’s HIV-specific criminal statute, Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 will be on trial itself, facing its first-ever challenge in the Constitutional Court.

The Court will hear arguments on behalf of two applicants – Pitty Mpofu and Samukelisiwe Mlilo – both of whom were unfairly convicted of “deliberate transmission of HIV” in 2012, and who are now represented by Zimbabwe Lawyers for Human Rights (ZHLR).

“The provision is too wide, arbitrary and therefore violative of the protection of the law guarantee. It is submitted that the legislature has created an offence which is as scary as the evil that it seeks to redress.” Applicants head of arguments (1.1)

Law on trial

Although the ‘crime’ in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.

It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.”

This, argues the applicants, is overly broad and unconstitutionally vague.

(Scroll to the bottom of the page, or click the link, to read the entire Applicants heads of arguments.)

Since 1996, International Guidelines on HIV and Human Rights have recommended that:


”Criminal and/or public health should not include specific offences against the deliberate and intentional transmission of HIV but rather should apply general criminal offences to these exceptional cases. Such application should ensure that the elements of foreseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.”

It is eminently clear that Section 79 does not ensure that “elements of foreseeability, intent [or] causality” are adequately provided for, although there is a defence of informed consent via disclosure. (It is not clear, however, exactly what needs to be disclosed, given that it is possible to be prosecuted for anything that might be a risk even if you haven’t been tested).

Although the Zimbabwe law predates other African laws based on the flawed N’Djamena model law, funded and disseminated with US international aid money, it contains many of the same problems. (Zimbabwe passed the first version of Section 79 in 2001 and updated it in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.)

‘UNAIDS recommendations for alternative language to some problematic articles in the N’Djamena legislation on HIV (2004)’, specifies the kind of language that could be used, should Zimbabwe still deem to find an HIV-specific criminal statute necessary.

Notably, it recommends defining ‘deliberate transmission of HIV’ as “transmission of HIV that occurs through an act done with the deliberate purpose of transmitting HIV”.

It further recommends that no criminal liability should be imposed upon:

  • an act that poses no significant risk of HIV infection.**
  • a person living with HIV who was unaware of his or her HIV infection at the time of the alleged offence.
  • a person living with HIV who lacked understanding of how HIV is transmitted at the time of the alleged offence.
  • a person living with HIV who practised safer sex, including using a condom.**
  • a person living with HIV who disclosed his or her HIV-positive status to the sexual partner or other person before any act posing a significant risk of transmission.
  • a situation in which the sexual partner or other person was in some other way aware of the person’s HIV-positive status.
  • a person living with HIV who did not disclose his or her HIV status because of a well-founded fear of serious harm by the other person.
  • the possibility of transmission of HIV from a woman to her child before or during the birth of the child, or through breastfeeding of an infant or child.

**The issues of significant risk and safer sex (along with the difficulties of proving timing and direction of transmission) are further expounded upon in UNAIDS expanded and updated 2013 guidance.

However, Zimbabwe could also decide to do away with Section 79 altogether, and implement a new law based on a model law developed for the Southern African Development Community (SADC; www.sadc.int), which comprises Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

This model law, which was unanimously adopted by the SADC Parliamentary Forum in 2008, integrates the protection of human rights as a key element of an effective response to HIV and has no specific provisions allowing for the criminalisation of potential or actual HIV exposure or transmission.

Alone But Together

Zimbabwe Lawyers for Human Rights are using the Constitutional Court hearing as a springboard for a campaign against overly broad HIV criminalisation, highlighting the case of Samukelisiwe Mlilo who features in a powerful 15 minute documentary produced by ZLHR, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

Today, they will launch the documentary in Harare under the banner; ‘HIV on Trial – a threat to women’s health’.

Ms Mlilo was found guilty of ‘deliberately’ infecting her husband with HIV and faces up to 20 years in jail despite there being no proof that she had infected her husband. She claims she had disclosed her status to him following her diagnosis during pregnancy, and that her husband only made the complaint in revenge for her own complaint of gender-based violence following the breakdown of their marriage.

“At this point we do not know who infected who,” ZLHR’s Tinashe Mundawarara told Voice of America News in August 2012. “This is an example of the violation of women’s rights. Women are likely to know of their status first. Mlilo might have been infected by her husband, no one knows, and got charged and convicted.”

The other applicant, Pitty Mpofu, was also found guilty of ‘deliberate’ transmission of HIV a month after Ms Mlilo.

It was alleged that he infected his wife sometime between October 2009 and June 2011 , although he wasn’t diagnosed until “sometime in 2010.”  No proof regarding timing nor direction of transmission was provided during the trial.

Highest number of reported criminal prosecutions in Africa

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.

In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.

A further five men and three women have since been prosecuted, along with a 2010 case where a man was fined for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV.

The most recent court case, from November 2014, involved a man who was found guilty “based on a single witness” and sentenced to 15 years in prison.

Mpofu/Mlilo vs State, Constitutional Court of Zimbabwe, Harare (Case SC96/12 and 340/12 by HIV Justice Network

US: In depth interview with Ken Pinkela whose change.org campaign to review his unjust court-martial has more than 73,000 signatures

Bob Leahy: Thank you for talking to PositiveLite.com about your case. Now before we get in to that, I want you to tell me first your background. Ken Pinkela: Sure! Ken Pinkela is still a card-carrying Lieutenant Colonel in the (US) army.

China: Warranted fears of stigma and discrimination in healthcare settings resulting in people with HIV not disclosing their status

“I was so desperate, and I could not imagine the future if I was really infected,” Fu Yi (pseudonym), a maternity doctor at Sichuan Provincial People’s Hospital in Chengdu, recalled her feelings when she was exposed to HIV-infected blood during a birth in 2010.

Fu accidentally exposed her injured foot to the blood of the HIV-positive patient who was delivering a baby – Fu did not know the patient was HIV-positive, until the blood test results came out the next day.

Fu immediately started to take anti-AIDS emergency prevention pills. She suffered from the  side effects, vomit and nausea, for a month, and lived in an abyss of fear for over half a year until she was eventually declared HIV free, she told the Global Times.

This incident was made public recently when the media began to report on the danger of exposure to infectious diseases that medical professionals face.

“We call [what Fu experienced] ‘occupational exposure,'” Xiang Qian, with the healthcare associated-infections division at Sichuan Provincial People’s Hospital, told the Global Times.

Occupational exposure for medical staff can be defined as coming into contact with infectious virus or toxic substances at work, which can pose health risks, according to Xiang.

Fu was not the only medical worker who has been exposed to infectious diseases at work. As of press time, there are no national statistics available, but in the hospital where Fu works a total of 122 medical staff reported being exposed to infectious diseases in 2013, including AIDS, hepatitis B and syphilis, according to Xiang.

From January to November this year, 88 medical workers, 43 percent of them nurses and 29 percent of them doctors, were exposed to infectious diseases at work. Hepatitis B topped the list, with 45 percent of the incidents of exposure involving the disease, followed by syphilis with 14 percent and HIV with 7 percent.

Among those infectious diseases that medical staff are exposed to, HIV is the most serious.

The risk is heightened as many patients do not disclose their HIV infection to physicians when being treated for other conditions. Meanwhile, many physicians do not take the kinds of precautions necessary to avoid becoming infected.

Concealment

Pregnant women usually go through a full blood test for possible infectious diseases before the delivery, and the result comes the day of the birth.

But in Fu’s case, the patient’s critical condition meant that she had to perform the delivery immediately, Fu said.

The patient’s family concealed her medical history and told Fu the patient had no infections. Fu, who had no time to take extra precautions, went into the operating room with an injured foot.

“From the doctor’s perspective, concealing infectious diseases is unfair,” Fu said.

But in some HIV patients’ eyes, disclosing their disease would jeopardize their access to healthcare as some hospitals may transfer them to designated infectious disease hospitals that offer inferior treatment.

Bi De, (pseudonym), 26, an AIDS patient who organized a debate in Shenzhen in November on whether HIV carriers should disclose their disease to doctors not treating their HIV, said he understood the ethical necessity to disclose one’s infections.

“But after my experience, I would not tell them [doctors] again,” Bi said. He first learnt he was HIV positive was two years ago when he went to a hospital in Henan Province to receive treatment for facial paralysis, and the hospital told him about his disease and transferred him to a designated hospital in Zhengzhou.

“But the infectious disease hospital did not have enough resources, and I finally recovered [from his paralysis]after visiting a Traditional Chinese Medicine doctor,” Bi said.

In another high-profile case that came to light last year, an HIV-positive cancer patient sued a Tianjin hospital that refused to treat his cancer due to his HIV. The case was the first well-known case of an HIV carrier suing a hospital for discrimination.

After hearing of the case, then vice-premier Li Keqiang [now premier] immediately called for better treatment of HIV/AIDS patients.

But the Tianjin Hexi District Court last week rejected the case as the plaintiff failed to provide a legal basis for his claims, according to Beijing-based newspaper The Mirror.

Chinese media has reported many cases of hospitals delaying or refusing treatment to HIV carriers despite the regulation issued by the State Council in 2006 which stipulates that clinics and hospitals should not refuse or delay treatment for HIV/AIDS patients.

According to Xiang, hospitals should only transfer patients to designated infectious disease hospitals when their conditions could pose public health risks, such as if they have SARS or bird flu.

Shao Yiming, an AIDS expert at the Chinese Center for Disease Control and Prevention, told the Global Times that hospitals are obliged to treat the diseases of HIV carriers.

“The HIV virus has a lower transmission level than many other infectious diseases such as hepatitis B. Why can they [doctors] treat [the disease] of hepatitis B carriers but not those of HIV carriers?” Shao said.

By the end of 2013, the number of people infected with HIV/AIDS hit 810,000 in China, according to the National Center for AIDS/STD Control and Prevention.

Shao suggested the country should put the related laws into practice while making more effort to promote knowledge of HIV/AIDS among medical staff and society.

Safety protection awareness

Xiang’s hospital laid out protection guidelines for medical staff to minimize their exposure to infectious diseases, but many are reluctant to adopt them.

“For example, some doctors following extra safety protection guidelines have to wear two sets of gloves, which they believe affect their surgical performance,” Xiang said.

Who should pay for the safety protection equipment in a long run is another headache for Xiang.

As the government subsidy does not cover it, hospitals that make an insufficient profit find it difficult to afford the equipment, he said.

“Some hospitals would not even pay for their medical workers to have a hepatitis B vaccine,” He said.

But Fu, who has performed gynecological surgeries on two HIV carriers after she was exposed, has been extra careful since the exposure.

“I wear special masks to prevent the blood splashing, safety protection suits, shoes and other extra safety protection equipment when I perform surgeries,” she said.

South Africa: Forced or involuntary disclosure in healthcare settings disproportionately affecting women resulting in discrimination and gender-based violence, despite constitutional protections

Editor’s note: This story is part of a Special Report produced by The GroundTruth Project called “Laws of Men: Legal systems that fail women.” It is produced with support from the Ford Foundation. Reported by Tracy Jarrett and Emily Judem.

An HIV diagnosis is no longer a death sentence, thanks to advances in medicine and treatment in the last 30 years. But stigma against HIV/AIDS and fear of discrimination still run strong in South Africa, despite legal protections, as well as drastically improved treatment, prevention techniques and education. Today an estimated 19 percent of South African adults ages 15-49 are living with HIV.

And women, who represent about 60 percent of people living with HIV in South Africa, face a disproportionately large array of consequences, including physical violence and abuse.

“Upon disclosure of women’s HIV positive status,” reads a 2012 study by the AIDS Legal Network on gender violence and HIV, “women’s lives change, due to fear and the continuum of violence and abuse perpetrated against them.”

Although forced or involuntary disclosure of one’s HIV status — along with any discrimination that may result from that disclosure — was made illegal by South Africa’s post-apartheid constitution, experts and advocates say that public knowledge of these laws is limited and the legal system is not equipped to implement them.

Not only are women disproportionately affected by HIV, but they are also more likely to know their status. More women get tested, said Rukia Cornelius, community education and mobilization manager at the NGO Sonke Gender Justice, based in Johannesburg and Cape Town, because unlike men, women need antenatal care.

And often, she said, clinics give women HIV tests when they come in for prenatal visits.

The way hospitals and clinics are set up also are not always conducive to protecting privacy, said Alexandra Muller, researcher at the School of Public Health and Family Medicine at the University of Cape Town.

“People who provide services in the public system, at the community level, are community members,” said Muller. “This is an important dynamic when we think about stigma and disclosure.”

Doctors and nurses can see 60 to 80 patients per day in an overcrowded facility with shared consultation rooms, Muller said.

“There’s not a lot of consideration for how is a clinic set up,” added Cornelius, so that “a health care worker who has done your test and knows your status doesn’t shout across the room to the other health care worker, ‘okay, this one’s HIV-positive, that file goes over there.’”

Once HIV-positive women disclose their status, willingly or not,they are disproportionately affected by stigma because of the direct link between HIV and gender violence.

 

The Criminalization of HIV in Canada

(32 mins, BearPaw Media, Canada, 2014)

The Canadian Aboriginal population is one of the fastest growing groups being diagnosed with HIV today. Due to a lack of education, people living with HIV continue to face fear and discrimination. Court and legislator involvement in their lives makes matters even more complicated. This video features four Aboriginal Canadians diagnosed with HIV. In hearing their stories, the viewer will learn how they cope with the stigma surrounding their illness and live within the new rules governing the most intimate part of their lives.

See more at: http://ncsa.libguides.com/bearpawvideos

Canada: Social media campaign ‘Think Twice’ uses video to ask gay men to reconsider pressing charges for HIV non-disclosure

Last week saw the launch of a new phase of a targeted social marketing campaign by AIDS ACTION NOW! (AAN) that features 42 short videos from members and allies of Toronto’s LGBTQI community.

‘Think Twice’ asks HIV-negative and untested gay, bi, queer and trans men to reconsider pressing charges for HIV non-disclosure (where there was no alleged HIV transmission) when they discover that a sexual partner has not disclosed their HIV-positive status before sex.

In October 2012, the Supreme Court of Canada confirmed that non-disclosure of known HIV status can be charged as aggravated sexual assault – with up to life imprisonment and sex offender registration – even if the person with HIV uses a condom: in order to avoid legal liability, they must also have a low viral load.

‘Think Twice’ is an AAN campaign originally launched just prior to the Supreme Court’s ruling aimed at decreasing the number of criminal prosecutions related to HIV non-disclosure. AAN want people involved in the criminalisation of HIV non-disclosure—people living with HIV, their sexual partners, police, Crown prosecutors, health care providers and others—to consider the complexity and uncertainty of Canada’s overly broad approach to HIV criminalisation, and the implications of their role in criminal prosecutions for HIV non-disclosure.

The first part of their campaign targeted Crown prosecutors since they play a pivotal role in driving criminal prosecutions.

Since December 2012, the ‘Think Twice’ campaign has also focused on another key advocacy target – potential complainants.

This new phase of the ‘Think Twice’ campaign focuses specifically on gay, queer, and trans men and other men who have sex with men, due a change in community norms in the past few years that has resulted in an increase in the numbers of men going to the police to lay charges against other men living with HIV.

According to the Canadian HIV/AIDS Legal Network, while the majority of cases in Canada are against men who had sex with women, an increasing number of gay men and other men who have sex with men are being charged and prosecuted in Canada. Whereas there were only five known cases prior to 2006, a further 25 cases have been tracked up to December 2013.

In 2014, there has been at least one new case against a gay man. Another – where two men met in a Montreal sauna – dating back to 2005, is due to be heard by the Supreme Court of Canada next month.

For this latest phase of the ‘Think Twice’ campaign, AAN placed an open call for gay, queer, bi and trans men, and their allies, to make a video that answered the question: ‘In 45 seconds what would you say to gay men to convince them to think twice before going to the police when a sex partner hasn’t disclosed to them.’

Although they only expected to make 25, a total of 42 individuals made videos, in a project organised by Jordan Bond-Gorr, Lauryn Kronick, Tim McCaskell and Eric Mykhalovskiy and filmed by multi-disciplinary artist, John Caffery, in Toronto over one weekend in August.

The videos – along with the website www.thinktwicehiv.com – were launched on 18th November at Toronto’s Buddies in Bad Times theatre.

This compilation of 18 of the videos, produced by the HIV Justice Network, highlights the breadth of messages and the range of stakeholders involved.

It features (in order of appearance):

Tim McCaskell

Michael Erickson

Cecile Kazatchkine

Nik Redman

Alan Li

JP Kane

Ryan Peck

Eric Mykhalovskiy

David Udayasekaran

John Caffery

Nedal Sulaiman

Ayden Scheim

Chy Ryan Spain

Richard Fung

Max Mohenu

Rodney Rousseau

Twysted Monroe

and John Greyson.

For more information about this campaign, visit the ‘Think Twice’ FAQ page.

HIV Criminalization: A Physician's Perspective

This essay is an excerpt from the LGBT/HIV criminal justice report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV. His name was Paul. I slid into the chair next to him in my examination room to console him as he cried.

HIV is not a Crime 2014 – the first HINAC aka The Grinnell Gathering (My Fabulous Disease, US, 2014)

Mark S. King (My Fabulous Disease) reports from the first HIV is Not a Crime conference, held in Grinnell, Iowa in 2014 in a moving video that includes interviews with people living with HIV who have been prosecuted.