AIDS 2016: Criminal laws need to be reformed for the sake of populations most vulnerable to HIV

Durban – The war on HIV and Aids could be stymied by the unequal application of criminal laws.

This was the consensus of a group of researchers at a session at the International Aids Conference titled “Beyond blame: A feminist dialogue on criminalisation of HIV transmission, exposure and non-disclosure”, which looked at misapplication of the laws of certain countries and their impact on the epidemic.

“The law is a critical tool for creating an enabling environment for effective responses to HIV and to provide access to justice for those affected by HIV. While some have argued in favour of laws criminalising HIV exposure, transmission or non-disclosure as protective of women, they in fact leave them more vulnerable to persecution and increased violence,” said organisers in their introduction.

Marama Pala, a New Zealand activist who was infected 24 years ago, said when the trial against the man who had infected her began, she was painted as the victim. And because she was seen as “criminalising” the spread of HIV, she was ostracised by those living with the virus.

“I was only 22. I didn’t have an education. People would look at me and say: ‘Poor girl’. Everyone called me a victim. But I’m not.”

She said that experience, and many more, had convinced her that this approach did not work and instead became another way to abuse human rights.

“As an indigenous woman (she is Maori) I know how people of colour are always the ones to be disproportionately affected by laws like this one.”

Members of the LGBTI community and prostitutes were also targeted. This point was raised by Jules Kim, a prostitute at Scarlet Alliance, an Australian association, who said that a trans-woman prostitute was now facing charges and was being held in a men’s maximum security prison.

“No white men have been arrested under these laws, unless they are sex workers. Even if a person has been on ARVs for years (meaning that their viral load has been suppressed and they cannot pass on the virus), they are still arrested and face criminal charges.”

She said everyone had a responsibility to protect their sexual health.

Ruth Morgan Thomas, global co-ordinator of the Global Network of Sex Work Projects, said these laws were based on “family values”.

“The custodians of the law – the police – are the ones who are sometimes perpetrators of the violence. If you report a rape, they tell you that that can’t be possible, because you’re a whore.”

Men who had sex with men also bore the brunt of those laws.

Originally published on iol

Uganda: Civil societies challenge HIV criminalisation

KAMPALA  – “Whereas the law might have potential to positively contribute to the current HIV/AIDS response efforts in Uganda, there are some contentious clauses that could deter all the benefits realized in the fight against the scourge.”

This is what activists and people living with HIV are saying.

The HIV and AIDS Prevention and Control Act came into effect on July 31, 2014 when President Yoweri Museveni assented to it. But people living with HIV, together with civil society organizations, say it presents a challenge for the human rights of infected people and also undermines several critical issues.

The salient features that are scanned out in the law are: Clauses 41 and 43 of the Act that provide for prosecution on grounds of attempted and intentional transmission of HIV, respectively. Among the provisions of the piece of legislation is criminal penalty for risk and intentional transmission of the virus.

The Act would require mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus.

Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

The Civil Society HIV/AIDS Bill Coalition has been lobbying members of parliament to change the clauses in the Act that are construed to create negative effects in the national response to HIV/AIDS, but lawmakers have been  adamant about the issue.

It is against this background that people living with HIV under their umbrella organization the National Forum of People Living with HIV & AIDS Networks in Uganda (NAFOPHANU) together with Uganda Network on Law Ethics and HIV/AIDS (UGANET) and the International Community of Women living with HIV Eastern Africa (ICWEA recently petitioned the constitutional court to review the Act and amend the contentious clauses (41, 43 and 18).

“Honestly, if proven, such behavior cannot go unpunished. The question however is ‘How can it be proven that indeed the HIV of the accuser was got from the accused?’ There is fear that public knowledge of one’s HIV positive status would be used against them due to personal differences,” says Lillian Mworeko (pictured immediately below), regional coordinator for ICWEA.

She argues that this will ultimately discourage people from testing to know their status fearing that if found positive, their status could be used against them in courts of law at any point in time.

It should thus be noted that one who does not know their status cannot be held liable under this law.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as criminals or potential criminals,” warns Dora Musinguzi, executive director of UGANET.

Eventually, she adds, people will inadvertently live with the virus without accessing treatment and by the time they get to know their status it will be too late.

Stella Kentutsi, the executive director of NAFOPHANU, regrets that these clauses seem to target those already openly living with HIV and as such will affect disclosure, fuel stigma and discrimination thus increasing new infections and affecting access to already available services.

“To this effect, HIV infections and deaths will escalate thus watering down all the achievements so far attained in the fight against HIV. Partner and third party notification in clause 18(2) (e) is likely to breed domestic violence as a health worker is given a right to disclose to a partner without a client’s consent. It also infringes on the right to privacy as per our constitution- Article 27,” Kentutse. –

n their petition, the concerned groups give eight strong points on which they base their ground.

1. The law when enacted will drive people underground

In the face of possible prosecution and forced disclosure, most people will hide away; there would be no reason to take an HIV test in fear of prosecution.

2. It shall be counter-productive

As people shun HIV services and treatment for all possible fears that arise with the provisions of the law, prevention and control cannot be achieved.

3. Taking an HIV test is the beginning point for both control and prevention, however the ACT will deter this effort by empowering medical practitioners to release test results to third parties.

4. It will indiscriminately harass women

Most women get to know their HIV status before their male counterparts as they interface with medical facilities more often. Giving them an extra burden to disclose their status mandatory as a blanket requirement may subject them to violence, abandonment and abuse as they are usually blamed for bringing the virus.  In our societies, women cannot easily negotiate sex nor condom use, yet failure to use one while they know their status will warrant such a woman punishment for intentional transmission of the HIV virus.

5. May breakdown families who are already vulnerable

Opening a window for prosecution will encourage family breakdowns where one partner who gets to know their status, blames it on the other and files a case in court.  Intentional transmission may never get proved, but the family structure will have been distorted, partners desert each other with the consequent burden born by the poor orphans. HIV status is bad enough for the children but humiliating and sometimes vicious litigation between parents tears their lives apart.

6. Is not situation-specific or realistic

The conditions for this ACT to operate are not realistic, it is extremely difficult to prove who infected the other and therefore it is to no effect. The judiciary in this country is very much strained and it takes long to pass judgment.  How many lives would be destroyed if it takes an average five to seven years to get judgment?  Worse, the Police force is ineffective and is known to fail to comprehend and prosecute cases of this nature.

7. Selective prosecution

The ACT targets the 20% of Ugandans that have tested and know their status and presumes that some of those knowingly and intentionally transmit HIV. What about the rest of the population who do not know their status yet transmit and cannot be found in the ambit of this ACT? This is unfair, obnoxious and unreasonable and cannot possibly be regarded as an efficacious law.

8. Increased stigma and discrimination

The moment HIV is construed with criminalization and then people go into hiding, those living with HIV will suffer societal victimization since they would now be regarded as threats to public health. As a nation, we can still do better since on this one, we are all in it together.

Originally published in New Vision

AIDS 2016: Justice Edwin Cameron addresses delegates at Durban AIDS conference

I owe my life to you, says judge

By

“The fact that I am here today at all is a tribute to the activists, researchers, doctors and scientists in the audience,” Judge Edwin Cameron told delegates to the Durban Aids conference, delivering the Jonathan Mann memorial address. He asked sex workers and transgender people to join him on stage. His godson Andy Morobi also addressed the conference.

It is a great privilege and an honour to be here. At the start of a very busy conference, with many stresses and demands and anguishes, I want to start by asking us to pause quietly for just a few moments.

It has been 35 years since the Western world was alerted to Aids. The first cases of a baffling, new, terrifying, unknown syndrome were first reported in the northern summer of 1981. The reports were carried in the morbidity and mortality weekly reports of the CDC on 5 June 1981.1

These last 35 years, since then, have been long. For many of us, it has been an arduous and often dismaying journey.

Since this first report, 35 million people have died of Aids illnesses2 – in 2015 alone, 1.1 million people. 3

We have felt the burden of this terrible disease in our bodies, on our minds, on our friends and colleagues, on our loved ones and our communities.

Aids exposes us in all our terrible human vulnerability. It brings to the fore our fears and prejudices. It takes its toll on our bodily organs and our muscles and our flesh. It has exacted its terrible toll on our young people and parents and brothers and sisters and neighbours.

So let us pause, first, in remembrance of those who have died –

  • those for whom treatment didn’t come in time
  • those for whom treatment wasn’t available, or accessible
  • those denied treatment by our own failings as planners and thinkers and doers and leaders
  • those whom the internal nightmare of shame and stigma put beyond reach of intervention and help.
  • These years have demanded of us a long and anguished and grief-stricken journey.
  • But it has also been a journey of light – a journey of technological, scientific, organisational and activist triumph.

So we must pause, second, to celebrate the triumphs of medicine, science, activism, health care professional dedication and infrastructure that have brought ARVs to so many millions.

Indeed, the fact that I am here today at all is a tribute to the activists, researchers, doctors and scientists in the audience.

Many of you were responsible for the breakthroughs that led to the combination anti-retroviral treatment that I was privileged to start in 1997 – and which has kept me alive for the last 19 years.

I claim no credit and seek no praise for surviving. It felt like an unavoidable task.

All of us here today who are taking ARVs – let us raise our hearts and humble our heads in acknowledgement of our privilege – and often plain luck – in getting treatment on time. That treatment has given us life.

So let us pause, third, to honour the doctors – the scientists – the researchers – the wise physicians and strong counsellors who have saved lives and healed populations in this epidemic.

As important, fourth, let us pause to honour the activists, whose work made treatment available to those who would not otherwise have received it.

We pause to honour the part, in treatment availability and accessibility, of angry, principled and determined activists, in South Africa’s Treatment Action Campaign and elsewhere. For millions of poor people, their anger brought the gift of life.

Without their courage, strategic skill and passion, medication would have remained unimaginably expensive, out of reach to most people with HIV. They led a successful campaign that saved millions of lives.

The fact that many millions of people across the world are, like me, receiving ARV treatment, is a credit to their work.

They taught us an important lesson. Solidarity and support are not enough. Knowledge and insight are not enough. To save lives, we need more. We need action – enraged, committed, principled, strategically ingenious action.

They refused to acquiesce in a howling moral outrage. This was the notion that life-saving treatment – treatment that was available, and that could be cheaply manufactured – would not given to poor people, most of them black, because of laws protecting intellectual property and patent-holders’ profits.

The Treatment Action Campaign and their world-wide allies frontally tackled this. They changed the way we think about healthcare and essential medicines access.

What is more, without the Treatment Action Campaign, President Mbeki’s nightmare flirtation with Aids denialism between 1999 and 2004 would never have been defeated.

Instead, the TAC took to the streets in protest. They demanded treatment for all. And when President Mbeki proved obdurate, they took to the courts.

Because of my country’s beautiful Constitution, they won an important victory. Government was ordered to start making ARV treatment publicly available.

Today my country has the world’s largest publicly provided anti-retroviral treatment program.4 More than 3.1 million people, like me, are receiving ARVs from the public sector.5

I am particularly proud that when someone with HIV registers for treatment in South Africa, they should not be asked to show an identity document or a passport or citizenship papers. That is as it should be. The imperatives and ethics of public health know no artificial boundaries.

In the sad history of this epidemic, the triumphs of Aids activists, on five continents, are a light-point of joy.

So there is much to celebrate. I celebrate the joy of life every day with the medication – which keeps a deadly virus effectively suppressed in my arteries and veins, enabling me to live a life of vigour and action and joy.

But we must not forget that Aids continues to inflict a staggering cost on this continent and on our world.

What is more important than my survival, and that of many millions of people in Africa and elsewhere on successful ARV treatment, is those who are not yet receiving it.

There still remains so much that should be done. More importantly, there still remains so much that can be done.

Too many people are still denied access to ARVs. In South Africa, despite our many successes, well over six million people are living with HIV. And, though about half of South Africans with HIV are still not on ARVs,6 from September this year ARVs will be provided to all with HIV, regardless of CD4 count.

Globally, of the 36.7 million people living with HIV at the end of 2015, fewer than half had access to ARVs.7

Worse, the pattern of ARV availability is one that reflects our own weaknesses and vices as humans – our prejudices and hatreds and fears, our selfish claiming for ourselves what we do not grant to others.

Most of those still in need of ARVs are poor, marginalised and stigmatised – stigmatised by poverty, sexual orientation, gender identity, by the work they do, by their drug-taking and by being in prison.

Dr Jonathan Mann, to whom this lecture is dedicated, did pioneer work in recognising the links between health and human rights. He stressed that to address Aids, “we must confront those particular forms of inequity and injustice – unfairness, discrimination – not in the abstract, but in its specific and concrete manifestations which fuel the spread of Aids.”8

He recognised that the perils of HIV are enormously increased by laws that specifically criminalise transmission of HIV and exposure of another to it. This was also confirmed by the wonderful and authoritative work the Global Commission on HIV and the Law has recently done.

​These laws are vicious, ill-considered, often over-broad and intolerably vague. By criminalising undefined “exposure”,9 they ignore the science of Aids, which shows how difficult HIV is to transmit.10 Apart from driving those at risk of HIV away from testing and treatment, they enormously increase the stigma that surrounds HIV and Aids.

Across this beautiful continent of Africa, men who have sex with men (MSMs) remain chronically under-served. They lack programs in awareness, education, outreach, condom provision and access to ARVs. As a recent study by Professor Chris Beyrer and others has shown, we have the means to end HIV infections and Aids deaths amongst men having sex with men. Yet “the world is still failing”.11

For this, there is one reason only – ignorance, prejudice, hatred and fear. Theworld has not yet accepted diversity in gender identity and sexual orientation asa natural and joyful fact of being human.

Seventy eight countries in the world continue to criminalise same-sex sexual conduct. Thirty four of them are on this wide and wonderful continent of Africa.

It is a shameful state of affairs. As a proudly gay man I have experienced the sting of ostracism, of ignorance and hatred. But I have also experienced the power of redeeming love and acceptance and inclusiveness.

We do not ask for tolerance, or even acceptance. We claim what is rightfully ours. That is our right to be ourselves, in dignity and equality with other humans.

Discrimination on the ground of sexual orientation or gender identity is a colossal and grievous waste of time and social energy.

As our beautiful Archbishop Desmond Tutu has said, when we face so many devastating problems – poverty, drought, disease, corruption, malgovernance, war and conflict – it is absurd that we waste so much time and energy on sexual orientation (“what I do in bed with whom”.)12

The sooner we accept the natural fact that gender and orientation diversity exists naturally between us, the quicker we can join together our powers of humanity to create better societies together.

The same applies to sex workers. Sex workers are perhaps the most reviled group in human history – indispensable to a portion of mostly heterosexual males in any society, but despised, marginalised, persecuted, beaten up and imprisoned.

Sex workers work.13 Their work is work with dignity.

Why do people do sex work? Well, ask a sex worker –

  • To buy groceries, and pay their rent, to study, to send their children to school, and to send money to their parents and extended family.
  • It is hard work. Perilous work. Sex workers have a tough, dangerous job. They deserve our love and respect and support – not our contempt and condemnation.

They deserve police protection, not exploitation and assault and humiliation.

More importantly, they deserve access to every bit of HIV knowledge and power that can protect them from infection and can help them to protect others from infection. 14

Pre-exposure prophylaxis (PrEP) works for sex workers.15 It should be made available to them, as a matter of urgent priority, as part of all national Aids treatment programs.

In September 2015, the World Health Organization, recognizing PrEP’s efficacy, recommended that PreP be provided to all “people at a substantial risk of HIV,” including sex workers. 16

When we in South Africa launched our three-year National Sex Worker HIV Plan in March 2016, we proposed providing PrEP to sex workers. WHO recognized South Africa as the “first country in Africa to translate this recommendation into national policy.”17

Beginning last month (June 2016), the first programs began providing daily PrEP to sex workers in South Africa.18

Criminalising sex workers is a profound evil and a distraction from the important work of building a humane society.19

Especially vulnerable too are injecting drug users. Upon them are visited the vicious consequences of perhaps the most colossal public policy mistake of the last 80 years – the war on drugs.

The vulnerability of injecting drug users is evident in the high percentage of injecting drug users with HIV. Throughout the world, of about 13 million injecting drug users, 1.7 million (13%) are living with HIV. 20

They are denied elementary life-saving services. This is not on the supposedly “dark” continent of Africa – but in the United States of America. If you want an example of evidence-ignoring public policy, that causes loss of life and injury, and spread of HIV, do not look complacently to President Mbeki’s South Africa twelve years ago – look to the United States of America, now, and the federal government’s refusal to make needle substitution available to IDUs . While the US government’s decision to partially lift this ban on federal funding for needle exchange programs earlier this year is a welcome development, this decision was only spurred by an outbreak of new HIV cases among drug users in the United States, 21 and the delay has undoubtedly resulted in preventable HIV infections. 22

Injecting drug users living with HIV are further denied access to treatment. And the United States and Canada, healthcare providers are less likely to prescribe ARVs for injecting drug users, because they assume that IDUs are less likely to adhere to treatment and/or will not respond to it. This is in spite of research showing similar responses and survival rates for those who do have access to ARVs. 23

We know exactly what we have to do to tame this epidemic.

We have to empower young people and especially young girls, to make health seeking choices when thinking about sex and when engaging in it. 24

We have to redouble our prevention and education efforts.

Prevention remains a key necessity in all our strategies about Aids.

Second, we have to test, test, test, test, test, test and test. We cannot promote consensual testing enough. Testing is the gateway to knowledge, power, understanding and action.

Without testing there can be no access to treatment. The more we test, the more we know and the more we can do.

Testing must always be with the consent of the person tested. But we have to be careful that we do not impose unnecessarily burdensome requirements for HIV testing.

HIV is now a fully medically manageable disease. Consent to testing should be capable of being implied and inferred. We must remove barriers to self-testing.

I speak of this with passion – because, by making it more difficult for health care workers to test, we increase the stigma and the fear surrounding HIV.

We must make it easier to test, not harder. Gone are the terrible days when testing was a gateway only to discrimination, loss of benefits and ostracism.

In all this, we must be attentive to the big understated, underexplored, under-researched issue in the epidemic. That is the effect of the internalisation of stigma within the minds of those who have HIV and who are at risk of it.

Internalised stigma has its source in outside ignorance, hatred, prejudice and fear.

But these very qualities are imported into the mind of many of us with HIV and at risk of it.

Located deeply within the self, self-blame, self-stigma and self-paralysing fear are all too often deadly. 25

We must recognise internalised stigma. I experienced its frightening, deadening effects in my own life. Millions still experience it. We must talk about it. And we must find practical ways to reduce its colossally harmful effects.

And, most of all, we must fix our societies. As my friend and comrade, Mark Heywood, has recently written, we have medically tamed Aids. But we have not tamed the social and political determinants of HIV, particularly the overlapping inequalities on which it thrives – gender, education, access to health care, access to justice. That is why prevention strategies are not succeeding.

A better response to HIV, Mark rightly says, needs a better world. Governments must deliver on their human rights obligations. Activists and scientists must join struggles for meaningful democracy, gender equality and social justice. Activists must insist on equal quality education, health and social services; investment in girls and plans backed by money to stem chronic hunger and malnutrition.26

But, to end, I want to return to the light points in our struggle against the effects of this disease over the last 30 years.

I want to end with a thrilling fact – this is that, unexpectedly, joyously, beyond our wildest dreams, perinatal and paediatric ARVs have proved spectacularly and brilliantly successful.

First, let us rejoice that perinatal transmission of HIV can be completely eliminated. It was about this that the Treatment Action Campaign fought President Mbeki’s government all the way to the Constitutional Court, the Court in which I am now privileged to sit.

Now we know how effectively we can protect babies at birth and before birth from infection with HIV.

In South Africa, the rate of mother-to-child transmission of HIV is now reduced to 4%.27 Worldwide, in 2015, 77% of all pregnant women received treatment to prevent perinatal transmission of HIV.28

Last year, Cuba became the first country to eliminate mother to child transmission of HIV entirely. 29 In 2016, Thailand, Belarus, and Armenia have also reached this milestone. 30

More even, fifteen years ago we didn’t know how well babies and toddlers would tolerate ARVs.

We didn’t know just a decade ago how young children born with HIV would thrive on ARVs.

And would they take their ARVS? Would they grow to normalcy?

Instead of this uncertainty, we now know, triumphantly, that ARVs work wonderfully for children born with HIV.

I want to rejoice in the beauty and vigour of my godson Andy Morobi. Andy and I became family twelve years ago, at the end of 2004.

He is young, energetic, ambitious and enormously talented. He was born with HIV. He has been on ARVs for the last eight years. Like me, he owes his life to the medical and social miracle of anti-retroviral treatment.

I want to end on another light point. I want to honour the treatment activists from Africa, Europe, North America, South America, Australasia and Asia, who fought for justice in this epidemic.

I want to honour them, like Dr Jonathan Mann, to whom this lecture is dedicated. Like my mentor, Justice Michael Kirby of Australia, for their energy and courage and determination and sheer resourceful and resilience in fighting for justice in this epidemic.31

And I want to end by celebrating the fact that we have sex workers here this morning. They are wearing the T-shirts in the slide a few minutes ago. The T-shirts say: “THIS IS WHAT A SEX WORKER LOOKS LIKE”.

And, most of all, as a gay white man who has lived a life privileged by my race and my profession and my maleness, I ask that we celebrate the astonishing courage of transgender activists, of lesbians and gay men across the continent of Africa and in the Caribbean.

They are claiming their true selves. They do so often at the daily risk of violence, attack, arrest and imprisonment.

They have the right to be their beautiful selves. They are claiming a right to be full citizens of Africa, the Islands and the world. They have done so at extraordinary risk.

They know that they cannot live otherwise.

It is to these brave people that this conference should be dedicated: to the sex workers, injecting drug users, migrants, lesbian, gays and transgendered people, the children, the activists, those in prison, the poor and the vulnerable.

It lies within our means to do everything that will ensure whole lives and whole bodies for everyone with HIV and at risk of it.

All it requires is a passion and a commitment and a courage starting within ourselves. Starting within each of ourselves. Starting now.

Thank you very much.

For footnotes please see original articles in GroundUp

US: Second HIV is not a crime training academy creates an important intersectional shift in the US anti-HIV criminalisation movement

The second HIV Is Not a Crime Training Academy, which took place in May at the University of Alabama, Huntsville, brought together more than 300 advocates from 34 US states, as well delegations from Canada and Mexico.

Organised jointly by two of our HIV JUSTICE WORLDWIDE partners, the Sero Project and Positive Women’s Network–USA, the meeting was a unique opportunity for the people most affected by HIV criminalisation to take centre stage and have their voices be heard.

As Mark S King’s blog post highlighted in his blog and video produced the week following the meeting:

The intersections of race, gender, and sexuality were given as much weight as strategy sessions on working with legislators and lawyers, and the program repeatedly drove home the fact that criminalizing behaviors related to specific groups of people is as American as apple pie. Plenary speakers included advocates for women (including transgender women), current and former sex workers, immigration reform and drug legalization advocates, and, most powerfully, people who have been prosecuted under HIV criminalization statutes.

The theme of intersectionality and what it means for HIV criminalisation advocacy was further explored in this thoughtful analysis from Olivia Ford at The Body.com.

At the first HIV Is Not a Crime gathering in Grinnell, Iowa, in 2014, the sessions focused largely on unpacking the process of mounting a legislative campaign. Huntsville attendees also received training on important skills such as using data and collaborating with attorneys. The dominant theme, however, was the mandate to understand and combat HIV criminalization as a component of the system of over-policing and mass incarceration that disproportionately and unjustly impacts black people, queer folks, immigrants, drug users, sex workers, transgender individuals and those living with and without HIV at the intersections of this constellation of experiences.

The meeting was also an opportunity to celebrate the recent modernisation of Colorado’s HIV criminalisation statutes by the Colorado Mod Squad and their political allies, notably Senator Pat Steadman; and to hear from HIV criminalisation survivors and their families about what the HIV criminalisation – and the movement to end it – means for them personally.

The biggest political coup of the meeting was a welcome video from Hilary Clinton who said that if she wins the Presidential election, she will work to “reform outdated, stigmatising” HIV criminalisation laws.

Aside from those highlighted above, a number of other blog posts and articles have been produced since the meeting.  As well as a fantastic Storify compilation by PWN-USA of social media produced during the four days, these include pieces from:

In addition, the HIV Justice Network was there with our video advocacy consultant, Nicholas Feustel of georgetown media, capturing the entire event on video, and we will be releasing a film providing a detailed overview of the entire meeting, as well as lessons learned, in the next few weeks.

Bangladesh: Communicable Disease Prevention, Control and Elimination Act, 2016 which includes jail time and a fine for not being screened and/or treated for many communicable diseases, including HIV, is approved by cabinet

The cabinet yesterday approved a proposed law aiming at preventing and controlling communicable diseases in the country.

The proposed law titled Communicable Disease Prevention, Control and Elimination Act, 2016 has a provision of jail term and fine for a person who is affected with such a disease but does not undergo medical tests for detection.

Briefing reporters after a cabinet meeting at the Secretariat, Cabinet Secretary M Shafiul Alam said the affected persons concerned would also have to be examined in related and specified institutes to detect the types of their diseases.

If a patient avoids medical tests to detect presence of diseases considered as transmittable, they would face one-year imprisonment or Tk 2 lakh fine, he added.

Alam said one of the goals of the draft law is to protect people from communicable diseases as well as taking proper measures to create mass awareness about germs related diseases like Kala-Azar, HIV, Influenza, Nipah, Ebola and Typhoid.

Under the proposed law, a patient or the affected persons would have to be screened and isolated to protect common people from being affected, he observed.

Experts have termed the proposed law a “landmark and a milestone.”

“It’s a landmark decision of the government. With enactment of the law, Bangladesh’s health sector will move one step forward,” said Prof Dr AKM Shamsuzzaman, director of Communicable Disease Control of the Directorate General of Health Services (DGHS).

He told The Daily Star that communicable diseases would be eliminated more quickly with the implementation of the law.

Communicable diseases like malaria, dengue, Filariasis, Kala-azar, all types of influenza, Nipah, HIV, viral hepatitis, among others, would be brought under the legal framework of the law, he added.

Prof Shamsuzzaman further said, “We used to face difficulties in dealing with diseases which appear suddenly on any part of the country. With the enactment of the law, the health department will be able to involve other government bodies concerned including the law-enforcement agencies for controlling such outbreaks.”

Emerging threats of diseases like Zika and communicable diseases which transmit frequently on bordering areas would be dealt under legal framework, he said, thanking the government for approving the proposed law.

The health ministry moved to enact the law in 2014 but couldn’t do so due to various bureaucratic tangles, according to insiders.

The draft law was prepared in line with and replacing the Bangladesh Malaria Eradication (Repeal) Ordinance, 1977 and the Prevention of Malaria (Special Provisions) Ordinance, they said.

As per the proposed law, the authorities concerned will create quarantine facilities for affected persons. The law also creates a scope for the government to take all kinds of assistance from other countries to prevent communicable diseases.

Australia: New campaign launched by state PLHIV organisation to amend HIV disclosure requirement in New South Wales’ Public Health Act

Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review.

The Public Health Act is a key piece of NSW legislation which impacts the lived experience of people living with HIV. For many years, Positive Life has advocated for a number of key changes to the Act to reflect the current reality of HIV as a chronic manageable health condition, to better support efforts to end HIV transmission and to acknowledge prevention of HIV transmission is a shared responsibility regardless of sero-status. With charges under the Crimes Act laid against a man relating to the alleged infection of another man in January, now unrelated accusations against a sex worker extradited to Western Australia, Positive Life will again advocate for change to the Public Health Act as part of a required review of the legislation.

Despite an update in 2010, Positive Life argues some sections of the Public Health Act need change, and even removal from the Act to protect the interests of people living with HIV, reduce stigma and discrimination and enhance HIV prevention and testing in the broader community. A key example is the removal of Section 79, known as the ‘disclosure provision’.

Section 79 requires anyone who knows they have a sexually transmissible infection (STI) including HIV to inform a person before they have sex, and for that person to voluntarily accept the risk of acquiring that infection. In NSW, if you are HIV-positive and don’t disclose your status before sex you are guilty of an offence under the Act. The requirement to disclose your HIV status before sex hasn’t changed from the 1991 version of the Act, except for the inclusion of a ‘reasonable precautions’ provision.

This provision provides a defence to prosecution if ‘reasonable precautions’ have been taken during sex to prevent transmission. However, the definition of ‘reasonable precautions’ remains unclear and this amendment falls short of the current reality of HIV. Removing Section 79 will provide a more comprehensive approach to the rights and responsibilities of the community regardless of sero-status.

With today’s HIV treatments, if a HIV-positive person is on treatments and has an ‘undetectable viral load’, the chances of condomless sex resulting in HIV infection are extremely low. However under the current Section 79, without change to the law or a court deciding that an undetectable viral load is a ‘reasonable precaution’, a person with HIV could still be committing an offence under the Act for not disclosing their status before sex.

Under Section 79, criminalising HIV discourages testing and encourages anonymous sex. Put simply, if you don’t know you have HIV you cannot be found guilty of an offence under the Act for not disclosing your status. Equally, anonymous sex reduces your chances of being identified for prosecution. In an era where more than 90% of people with HIV are on treatment and have an undetectable viral load, people who are infected with HIV but unaware of their status are more of a risk for transmission than people on treatment with a suppressed viral load.

Fear of prosecution inhibits honesty with sexual partners and medical providers, so Section 79 may actually increase the transmission of HIV and other STIs, rather than decrease it. An honest and open relationship with our doctor is crucial to maintain good health regardless of our sero-status. For example, contracting an STI such as gonorrhoea is a risk for anyone who is sexually active, and if the symptoms are hidden, we don’t know we’ve picked up an STI. If we can’t speak openly about the sex we have, it’s likely we won’t be tested for STIs and instead transmit any unknown infection to others.

Under Section 79, forced disclosure of our status as a person with HIV can encourage HIV-related stigma and discrimination, both real and perceived. Disclosure of our status as a person with HIV can, in rare circumstances, lead to violence. More often forced disclosure leads to rejection, loss of control over who knows of our status, discrimination on the basis of our status, or the premature ending of relationships.

Section 79 as it stands does not account for PrEP. Today, many HIV-negative people are already importing pre-exposure prophylaxis or ‘PrEP’, and following the announcement on World AIDS Day last year of an expanded trial of the HIV-prevention medication, many more will be taking PrEP as the trial is rolled out in coming months. A benefit of PrEP is it encourages HIV-negative people to take control of their own health and reduce their own risk of acquiring HIV. Reducing HIV transmission is a shared responsibility and Positive Life believes this principle should be reflected in the Public Health Act.

With the coming review of the Public Health Act, Positive Life will share more about other changes we believe should be made to the Act to reflect the modern reality of HIV as an ongoing manageable health condition. In the meantime, if you have questions or comments about our proposed changes to HIV disclosure requirements in the Act, please make contact on 1800 245 677 (freecall) or by email.

Originally published on Gay News Network