Czech Republic: Prague Public Health Authority initiates criminal prosecutions of 30 gay men living with HIV following an STI diagnosis
Late last month, Prague’s Public Health Authority initiated criminal investigations against 30 gay men living with HIV that had been diagnosed with a sexually transmitted infection (STI) during the previous year.
The Public Health Authority appear to believe that since these men acquired an STI this is proof that they must have practiced condomless sex and have therefore violated Sections 152 and 153 of the Czech Criminal Code, which a 2005 Supreme Court ruling confirmed could be used to prosecute any act of condomless sex (including oral sex) by a person living with HIV as “spread of infectious diseases”.
There are no individual complainants in these cases.
The Czech AIDS Society responded to the publication of initial media reports on January 26th, with a press release that highlighted:
- They have already begun to provide legal counseling to several of these men.
- Most of them have an undetectable viral load and/or only have sex only with other men living with HIV (known as ‘serosorting’).
- Being diagnosed with an STI does not, in and of itself, prove that condomless sex took place because most STIs can be acquired even when condoms are used.
- Fear of punishment will lead to people living with HIV and at risk of a sexually transmitted infection not getting tested or treated.
“Czech AIDS Society has long struggled against the criminalisation of the private life of people living with HIV in cases where there is no HIV transmission. We believe that the HIV epidemic must be fought not through repression, but through the treatment which, in most cases, reduces the viral load of HIV-positive patients to undetectable levels thus eliminating the risk of transmission.”
They went on to make a number of media appearances pointing out that applying criminal law to potential HIV exposure does not reduce the spread of HIV, undermines HIV prevention efforts, promotes fear and stigma, punishes behaviour that is not blameworthy and ignores the real challenges of HIV prevention in the Czech Republic.
They also published a second press release, entitled “Professional failure of public health officials” on February 10th that was strongly critical of the actions of Prague’s Public Health Authority, noting that they have greatly undermined trust in the confidentiality of the public health system which will likely lead to an increase in new HIV infections.
On February 12th, the head of Prague’s Public Health Authority, Ms. Zdenka Jagrova (pictured above), issued a statement in response, suggesting that the Authority is legally obliged to initiate such criminal complaints and that “it would be a professional failure if [we] did not do so…
[We] did not check sexual orientation of HIV-positive people who got infected with another contagious, sexually transmitted disease. It is not an attack on the gay community, but in 2014 no HIV-positive woman in Prague was diagnosed with a sexually transmitted disease. A public health authority is obliged to protect the public health of the population and must act in the same manner as in case of other infectious diseases, for instance TB….This campaign aiming at questioning our practices is clearly intended to assert alleged rights of a minority at the expense of the rights of the majority, i.e. in particular the right to health, irrespective of who and how threatens the health. We consider attempts to create a privileged group that would be excluded from generally defined responsibilities very dangerous.”
A number of organisations representing communities of people living with and affected by HIV are now working together with UNAIDS to support the Czech AIDS Society, including the circulation of a Change.org petition.
It appears that none of the cases have yet been passed to the Public Prosecution office for formal prosecution. However, the investigation has set a dangerous precedent and we understand that public health departments in other regions of the Czech Republic are now considering following the Prague example.
US: A panel of health experts blasts HIV criminalisation laws as a failure that keep people from getting tested and ignore the current state of science
A panel of health experts blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.
And the laws – in place in Georgia and states across the South – or prosecuting people for HIV exposure using other criminal statues – which happens in Texas and four other states – also ignore that partners in consensual sex acts share responsibility for their sexual health, according to Scott Schoettes, a senior attorney and HIV Project Director at Lambda Legal.
“The story is about the AIDS monster out there trying to infect everyone and that is not the case,” Schoettes said (top photo). “Sexual health is a shared responsibility. It creates a sense of false security for the person who is negative – ‘There is this law in place and I can sit back and wait for someone to tell me.'”
He said the laws keep people with HIV from getting tested and few, if any, of the laws require prosecutors to show that an HIV-positive person had any intent to infect a sex partner. Nevermind, he adds, that it’s difficult to prove that someone did disclose their HIV status before sex and once convicted, some state laws call for them to be labeled as sex offenders.
“It becomes a he said, he said and the person with HIV, when you get into that courtroom, is naturally at a disadvantage. A lot of people think that when you have HIV, you have done something wrong. We are still fighting that misperception,” Schoettes said. “When you have a jury that is deciding the fate of someone, they are disconnected from the culture of the folks that they may be actually adjudicating.”
And that can mean steep sentences for people convicted under HIV criminalization laws. In July, Michael Johnson – a black, gay, HIV-positive college wrestler in Missouri – was sentenced to 30 years in prison for infecting a sex partner and putting four others at risk, though prosecutors didn’t show in court that Johnson was the man who infected him. In South Carolina, former gay Atlanta man Tyler Orr faces two counts of exposing another person to HIV and up to 20 years in prison – though he says he did disclose his HIV status to his sex partner.
Schoettes’ comments came during a panel discussion during the 2015 National HIV Prevention Conference in downtown Atlanta earlier this month. He was joined by Randy Mayer, chief of the HIV, STD and Hepatitis Bureau of the Iowa Department of Public Health; Tami Haught, an activist who led efforts in Iowa to reform its HIV criminalization law; David Knight, a trial attorney with the Civil Rights Division of the U.S. Department of Justice; and Terrance Moore, deputy executive director with the National Alliance of State & Territorial AIDS Directors.
‘It’s not a slam dunk’
Knight said the HIV criminalization laws don’t reflect the current state of science and risk surrounding HIV and pointed to a document released earlier this year by the Justice Department calling on states to reform their HIV criminalization laws.
“Two things that we really want to think about is that intentional transmission is atypical and uncommon, and HIV stigma hampers prevention,” Knight said.
The Justice Department document calls on states to tighten their HIV criminalization laws to scrap HIV-specific criminal penalties with two exceptions – when an HIV-positive person commits a sex crime where there is risk of transmission and when there is clear evidence that an HIV-positive person intended to infect another person and engaged in risky behaviors to do so.
But changing HIV criminalization laws in the three-dozen states that have them is a tough haul, Mayer (second photo) and Haught said. They built coalitions across groups and enlisted public health experts to help revise the law in Iowa, a measure passed in 1998 that carried harsh penalties and 25-year prison terms that were often doled out to those convicted.
“In my experience, almost everyone got the 25 years even though that was the maximum,” Mayer said. “It’s not a slam dunk. It’s not an easy sell. Many people, even people living with HIV find themselves on both sides of this issue.”
Iowa lawmakers revised the state’s HIV criminalization law in 2014 to treat HIV like other communicable diseases such as hepatitis and tuberculosis. The law also requires that prosecutors prove intent to transmit, Mayer said.
“We had to bring in the different coalitions and bring in partners. Lawmakers don’t care what is fair and what is right. But they will listen to the public health side of the law,” Haught said. “Iowa’s law was significantly modernized and everyone is better for it.”
The panelists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, they should be pushed to treatment options. The Centers for Disease Control & Prevention has said getting HIV-positive people tested and connected to care and treatment is key to controlling the disease. Undiagnosed HIV infections fuel the HIV epidemic, Eugene McCray, director of CDC’s Division of HIV/AIDS Prevention, said during the Atlanta conference.
“Getting people into care is a better way to reduce transmission than these laws,” Mayer said.
Originally published in Project Q
UK: Law Commission considers HIV criminalisation in great depth, but recommends no change for HIV/STI prosecutions in England & Wales, pending a wider review
Following a scoping consultation which ran from autumn 2014 to spring 2015, the Law Commission (of England and Wales) has now published its report containing their final recommendations to the UK Government.
It recommends the adoption of a modified version of a 1998 draft Bill to replace the outdated Offences Against the Person Act 1861.
However, whereas the 1998 Bill only criminalised intentional disease transmission, their recommendation is to keep the existing law relating to HIV and other serious diseases ((based on Dica and Konzani and clarified through prosecutorial policy and guidelines) which criminalises reckless as well as intentional disease transmission, pending a wider review.
Both in the scoping consultation paper and in this report, we have considered the criminalisation of disease transmission at great length. Many consultees supported fundamental reform of the law in this area. However, we conclude that the issues were more complex than time or space allowed without delaying the main aim of reforming the law of offences against the person. For this reason, we suggest modifications to the draft Bill to preserve the present position pending a wider review involving more input from healthcare professionals and bodies.
The full report, (chapter six: ‘transmission of disease’ is excerpted in full below), includes a detailed discussion of their proposals and the responses of 35 concerned stakeholders (most of them experts in law, public health and human rights. The HIV Justice Network was one of them, and our opinions are quoted throughout.)
The entire report is of interest not just to those working on this issue in England & Wales, but globally. It rehearses, in great detail, nearly all of the arguments for and against HIV (and other STI) prosecutions, and finds that “there is a strong body of opinion, especially in the medical profession and groups concerned with HIV and sexually transmissible infections, that the transmission of these diseases should never be criminal unless done intentionally.”
The report helpfully summarises the five main arguments against overly broad HIV criminalisation:
(1) an offence of reckless transmission encourages people to choose not to be tested, so as not to have the awareness of risk that might constitute recklessness;
(2) it discourages openness with (and by) medical professionals, because they may have to give evidence against their patients;
(3) it encourages people to think that disclosure of HIV status is always a duty, and that if a potential partner has not mentioned his or her status then he or she is not infected;
(4) because of the difficulty of proving transmission, the existence of the offence leads to very wide-ranging and intrusive investigations affecting a great many people, out of all proportion to the small number who will be found deserving of prosecution; and
(5) the whole topic of HIV/AIDS is affected by an atmosphere of fear (often irrationally so), and there is still an undesirable stigma against people.
Nevertheless, although the report states that “it would be preferable to revert to the law as it stood in 1998” when prosecutions were not possible and to use the draft 1998 Bill as it stands (which would only criminalise the intentional transmisison of disease), it comes to a more conservative conclusion.
The discussion of this issue has almost exclusively concerned the transmission of disease by consensual sexual intercourse, and the transmission of HIV in particular. (Also, most of the evidence for the harmful effects of criminalisation is drawn from countries where there are specific offences concerned with HIV and STIs, and may not be relevant to the use of general offences of causing injury.) The same reasoning may well not apply to other diseases and other means of transmitting them, but the draft Bill excludes disease as a whole.
For these reasons, on the evidence we have we do not feel justified in recommending a change to the position in existing law, in which the reckless transmission of disease is in principle included in an offence of causing harm. If there is to be a change, this should follow a wider review which compares the position in different countries and gives full consideration to the transmission of diseases other than by sexual means.
Of note, and of global relevance, following a great deal of discussion (and a broad range of consultation responses) regarding whether not to create an HIV/STI-specific law and/or broaden the scope of the current law to include non-disclosure and/or potential or perceived exposure, the Law Commission is clear.
We do not recommend the creation of specific offences concerned with disease transmission, either in relation to disease in general or in relation to HIV and STIs in particular: this too would require a wider review of all the available evidence. Nor do we recommend an offence of putting a person in danger of contracting a disease, or an offence of failing to disclose an infection to a sexual partner.
Law Commission Scoping Report: TRANSMISSION OF DISEASE (November 2015)
New IAPAC guidelines to achieving 90-90-90 targets recommend ending HIV criminalisation
New guidelines from the International Association of Providers of AIDS Care (IAPAC) are the first to highlight that HIV criminalisation is a critical barrier to optimising the HIV care continuum.
Currently only half of people living with HIV globally are aware of their status. Of the remaining 50% many are not yet engaged in care, receiving antiretroviral therapy (ART) in a timely manner or – the ultimate goal of HIV treatment and prevention – achieving sustained viral suppression.
These new guidelines are the first to include HIV criminalisation as one of eight key critical barriers that prevent people living with HIV from enjoying both the therapeutic and preventive effects of ART.
In many settings, optimizing the HIV care environment may be the most important action to ensure that there are meaningful increases in the number of people who are tested for HIV, linked to care, started on ART if diagnosed to be HIV positive, and assisted to achieve and maintain long-term viral suppression. Overcoming the legal, social, environmental, and structural barriers that limit access to the full range of services across the HIV care continuum requires multistakeholder engagement, diversified and inclusive strategies, and innovative approaches. Addressing laws that criminalize the conduct of key populations and supporting interventions that reduce HIV-related stigma and discrimination are also critically important. People living with HIV also require support through peer counseling, education, and navigation mechanisms, and their self-management skills reinforced by strengthening HIV literacy across the continuum of care.
The full HIV criminalisation recommendation (Recommendation 2) is below.
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Recommendation 2: Laws that criminalize the conduct of PLHIV based on perceived exposure to HIV, and without any evidence of intent to do harm, are not recommended and should be repealed where they have been enacted. (A IV)
Numerous countries have enacted laws that criminalize behaviors associated with HIV exposure, many of which pose a low or negligible HIV transmission risk. No differences in behavior have been noted between settings that enact such laws and those that do not. Many of these laws do not take into account measures that reduce HIV transmissibility, including condom use, and were enacted before the preventive benefit of ART or antiretroviral (ARV)-based preexposure prophylaxis (PrEP) was fully characterized. Most PLHIV who know their status take steps to prevent transmitting HIV to others.HIV-specific laws thus primarily exacerbate HIV-related stigma and decrease HIV service uptake.
IAPAC Guidelines for Optimizing the HIV Care Continuum for Adults and Adolescents
Canada: Academic article explores problematic police and media practices relating to allegations of HIV non-disclosure, proposes solutions
Kyle Kirkup explores Canadian police and media practices that stigmatize people living with HIV (PLWH) and facilitate the public’s belief that HIV and PLWH are dangerous. In support, Kirkup analyzes the 2010 case of an Ottawa man living with HIV arrested for sexual assault, which involved the public release of the man’s identity, photo, sexual health, and sexual encounters in an article headlined “Have you had sex with this man?”
The ensuing discourse of gay male sexuality using tropes from the HIV epidemic in the 80s illustrates, Kirkup argues, how a lack of police and media regulation and education continue to produce a punitive and isolating environment for PLWH.
Kirkup proposes several strategies for reform, including expanding publication bans and non-disclosure legislation, changing police ethics to keep private information out of the hands of journalists, educating journalists and public officials about the medial realities of HIV transmission risk and medical prognosis, and abandoning the “aggravated sexual assault” charge based on HIV status.
Canada: New film explores the impact of using sexual assault law to prosecute HIV non-disclosure
This week sees the release of an important new short film from the Canadian HIV/AIDS Legal Network.
Consent: HIV non-disclosure and sexual assault law interrogates whether criminalising HIV non-disclosure does what the Supreme Court of Canada believes it does – protect sexual autonomy and dignity – or whether, in fact, it does injustice both to individuals charged and to the Canadian criminal justice system’s approach to sexual violence.
Produced together with Goldelox Productions, with whom the Legal Network also collaborated on their powerful 2012 documentary’ Positive Women: Exposing Injustice, this 28-minute film features eight experts in HIV, sexual assault and law whose commentary raises many questions about HIV-related legal developments in Canada.
At a time when society seems to be taking the prevalence of sexual violence and rape culture more seriously, this film dares to ask some difficult questions about its limits in the law. The law of sexual assault is intended to protect women’s sexual autonomy, equality and dignity, yet as applied with respect to alleged HIV non-disclosure, these values are not necessarily being advanced. Through expert testimonies, Consent shines a light on the systemic obstacles women face in disclosing their HIV status, points to the dangerous health and human rights outcomes of applying such a harsh charge as aggravated sexual assault to HIV non-disclosure, and makes the argument that the law needs to better protect those who are living with and vulnerable to HIV. Consent demonstrates that advocacy efforts opposing the overly broad criminalization of HIV non-disclosure must address the use of sexual assault law and that such efforts must do so alongside feminist allies. From: http://www.consentfilm.org/about-the-film/
The Canadian HIV/AIDS Legal Network has for some time been exploring the implications of using sexual assault law to prosecute HIV non-disclosure cases, given the marked differences between the types of conduct that are typically referred to as sexual assault (including rape) and HIV non-disclosure cases.
In April 2014, the Legal Network convened leading feminist scholars, front-line workers, activists and legal experts for a ground-breaking dialogue on the (mis)use of sexual assault laws in cases of HIV non-disclosure. Consent: HIV non-disclosure and sexual assault law was filmed during this convening.
Their analysis demonstrates that the use of sexual assault law in the HIV non-disclosure context – where the sexual activity is consensual other than the non-disclosure – is a poor fit and can ultimately have a detrimental impact on sexual assault law as a tool to advance gender equality and renounce gender-based violence.
The Consent website ( in English / in French ) also lists future screenings across Canada, which will be accompanied by panels and workshops, as part of an ongoing strategy to build up allies among women’s rights advocates for the longer-term work.
A discussion guide will also soon be available.
Is Louisiana's 'AIDS exposure' statute outdated? Advocates say it needs an update
Richard Covington of Baton Rouge was accused earlier this year of breaking into the house of someone who apparently owed him money and then fighting the resident. During the scuffle, Covington allegedly bit the man’s arm.
Uganda: Community Health Alliance Uganda (CHAU) board chairman, Dr Stephen Watiti calls for repeal of clauses on disclosure, mandatory testing and transmission in HIV and AIDS Prevention and Control Act
Community Health Alliance Uganda (CHAU) board chairman, Dr Stephen Watiti, has called for an amendment of the 2014 HIV and AIDS Prevention and Control Act.
Watiti, who was speaking at the launch of CHAU’s 2016-2020 Strategic Plan last week in Kampala, wants clauses on disclosure, mandatory testing and intentional transmission repealed.
CHAU is one of the local non-governmental organizations (NGOs) involved in anti-HIV/Aids campaigns in the country. Enacted last year amidst protests from civil society and activists, the HIV and AIDS Prevention and Control Act criminalizes intentional transmission of HIV, enforces mandatory testing and requires spouses to disclose results to their partners, among others.
“In most of our communities if a woman tested positive and told her husband as stipulated in this law, it sparks domestic violence and stigmatization. So, my appeal is to review and scrap such clauses,” said Watiti, also plans to join elective politics in his bid to push for the aforesaid changes in parliament next year.
He also noted that it would be difficult to prove whether someone set out to intentionally infect their partners in a love affair.
“Preventing new infections should be a responsibility of both HIV positive and negative people,” Watiti argued, adding that testing should be voluntarily because making it mandatory is a violation of human rights.
His comments were directed to chief guest at the function, Dr Chris Baryomunsi, the state minister for health in charge of general duties and also MP for Kinkiizi East.
In response, Baryomunsi assured guests the parliamentary health committee would consider such appeals upon reviewing the HIV/Aids Act and also address concerns about the NGO Bill, which many civil society activists claim is intended to curtail their work.
Noting that some NGOs such as CHAU have done a good job as government partners in the battle against HIV/Aids, Baryomunsi said they would consider progressive provisions to ensure work is not stifled.
Baryomunsi explained that the law is intended to clamp down on NGOs that registered to health-related work but deviate from their mandate along the way.
Baryomunsi lauded the organization for its work of supporting people living with HIV in 20 districts including Kayunga, Luweero, Nakasongola, Mukono, Wakiso, Kamuli, Mayuge, Mityana, Gulu and Mbarara.
CHAU also provides family planning and sexual reproductive health education services.
Prison time for HIV?
Prison time for HIV? It’s possible in Veracruz
El Daily Post, August 6th 2015
New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women.
The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.
The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.
But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.
The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.
“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.
The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.
The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.
But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.
“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”
A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.
Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.
One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)
A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”
González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.
The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.
“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”
Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.
“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”
Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.
“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”