US: Rep. Tracy McCreery plans to file new bill again next year to change Missouri’s HIV criminalisation statute

Next Steps: ‘Decriminalizing’ HIV in Missouri

As elected officials vacate Jefferson City and return to their families and jobs, The Missouri Times is bringing you updates on big initiatives that didn’t quite make it through before May 17. The “Next Steps” series will showcase progress made on certain legislative issues and a look ahead to what could come.

Missouri’s statute regarding people living with HIV do not reflect “current reality,” according to lawmakers and advocates working to “decriminalize” the disease.

Missouri statute mandates an individual who is knowingly infected with HIV not act in a “reckless” way that could expose another person to the disease without his or her knowledge or consent. Violating the statute could result in a Class A or B felony, depending on if another individual contracted HIV.

The way the statute is written deters people from finding out his or her status and seeking appropriate treatment, advocates say. The statute also suggests an HIV diagnosis is equivalent to a death sentence — but with modern science and medicine, that’s not necessarily the case.

“We need to make sure our laws reflect our current reality,” Rep. Tracy McCreery, a Democrat from the St. Louis area, told The MIssouri Times. “Now, people who are living with HIV live very full, healthy lives. We feel like the statutes need to be updated to be medically accurate so prosecutors have tools to use at their disposal that reflect the current reality of that disease.”

Both McCreery and GOP Rep. Holly Rehder filed bills in the 2019 legislative session that would have changed the state’s statute regarding people with HIV to base prosecution more on an “intent” basis. Although their bills had minor differences, McCreery said the fact both women filed and supported the legislation is indicative that the need for change is bipartisan.

What happened to legislative efforts this year?

Rehder’s HB 167 made it to the House floor where it was debated before it eventually stalled. The bill sought to tweak the criminal statute for someone who exposed another individual to HIV. It would have also ensured protections for someone who took “practical means” to prevent the transmission of the disease such as through compliance with medical treatment or the use of a condom, for some examples.

“Right now, Missouri laws are medically inaccurate and stand as a disincentive to know your status if you have HIV, even though with proper treatment, a person’s life expectancy is almost equal to someone without the virus,” Rehder previously told The Missouri Times.

McCreery’s HB 166 made it through the House Health and Mental Health Policy Committee but did not progress further.

Both bills would apply the law to all serious infectious or communicable diseases instead of just HIV.

Stil, McCreery said the legislative efforts saw success — particularly from an educational standpoint as lawmakers were especially engaged in debate on the House floor before the session ended — and has set them up in a better position for the upcoming session.

“Although we ran out of time with this session with the bill … I think we’re in a much better place starting out in January because now that we’ve had a debate on this bill on the floor, I feel like a lot more colleagues are more supportive of the legislation now and had an ‘aha’ moment on the floor when they realized current statutes were written so long ago and are not based on accurate science,” McCreery said. “I feel like that was a victory.”

“Ultimately we’re both trying to get at the same things: We both think HIV should be decriminalized because if we do that, Missourians would be encouraged to know their status, and then they wouldn’t be facing the possibility of criminal charges by knowing their status,” she added.

So what’s next?

The momentum is there; they just need to capitalize on it, McCreery said of herself and Rehder for the upcoming session. She said she plans to file a similar bill again next year and doesn’t doubt Rehder will too. (Rehder did not respond to a request for comment for this story.)

“We feel we have done a great job of not only getting the conversation started, but we now believe we truly have started to break down the stigma surrounding HIV,” McCreery said.

Ahead of next session, members of the nonprofit Empower Missouri plan to grow the Missouri HIV Justice Coalition as well as meet with prosecuting attorneys and lawmakers — particularly those who sit on committees that might hear the legislation. The organization is also seeking a Senate sponsor for the legislation in the coming session.

“What we have does not work, and it’s important that we change it,” Jeanette Mott Oxford, executive director of Empower Missouri, told The Missouri Times.

Oxford maintained there is still a stigma surrounding HIV that has fueled laws like the one currently on the books in Missouri.

“There are certain things where the public perception works against good public policy, and this is one of those areas where our current law actually rewards ignorance,” Oxford said. “We want to create a world in which everybody is anxious to know their status, will go be tested, and trust that the public health officials won’t go help prosecute them.”

‘Show-Me’ statistics

More than 12,000 people in Missouri are living with HIV, according to data from AIDSVu, a product of Emory University’s Rollins School of Public Health. Caldwell, Jackson, and Mississippi Counties reported the most number of cases per 100,000 people in 2016.

It affects mostly men and minorities in Missouri: More than 46 percent of people living with HIV in Missouri in 2016 are Hispanic or Latinx, nearly 44 percent are black, and more than 5 percent are white. Additionally, more than 82 percent of people living with HIV in Missouri are men.

The Centers for Disease Control and Prevention (CDC) designated Missouri as one of seven states with a “substantial rural burden” for people living with HIV. Within the state, the nation’s health protection agency flagged more than a dozen counties considered vulnerable or at-risk for outbreaks: Bates, Cedar, Crawford, Hickory, Iron, Madison, Ozark, Reynolds, Ripley, St. Francois, Washington, Wayne, and Wright.

Kaitlyn Schallhorn

Kaitlyn Schallhorn is a reporter with The Missouri Times. She joined the newspaper in March 2019 after working as a reporter for Fox News in New York City. Throughout her career, Kaitlyn has covered political campaigns across the U.S. and humanitarian aid efforts in Africa. She is a native of Missouri who studied journalism at Winthrop University in South Carolina. Contact Kaitlyn at kaitlyn@themissouritimes.com.

Canada: Justice Committee report recommends wide-ranging reforms to HIV criminalisation, including removing HIV non-disclosure from sexual assault law

Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.

The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:

But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.

However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.

Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.

Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — Ontario, British Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.

A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.

Other positive recommendations in the report include:

An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission.

The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.

The report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status’ that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.

Canada: Criminalisation of HIV non-disclosure to be addressed if government is reelected

Liberals hope to deal with HIV non-disclosure issue if re-elected: Lametti

TORONTO — The Liberals hope to address the if re-elected in the fall, the federal justice minister said Friday as advocacy groups pushed the government to make changes to the law.

HIV non-disclosure has led to assault or sexual assault charges because it’s been found to invalidate a partner’s consent — the rationale being that if someone knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.

Advocates say the justice system lags behind the science on the issue, with a growing body of evidence saying there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.

A parliamentary committee has been examining the issue for months and is expected to release a report with recommendations next week. Justice Minister David Lametti said the Liberals want to address the matter but won’t have time to act before the October election.

“Our legislative runway is over,” Lametti said after speaking at a symposium on HIV criminalization in Toronto. “The house will rise at some point, perhaps as early as next week … I hope that our government will be re-elected so we’ll be able to hit the ground running.”

Lametti said the Liberals, if returned to power, could explore options that include drafting a criminal law provision that targets intentional transmission of HIV.

“We need to look at the criminal law … and look at what’s within our jurisdiction … and trying to achieve that balance, as a number of people in the room have stated, in trying to draft a criminal law provision which targets only intent and not criminalize everything else,” he said.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, said he’s concerned that the timing of the committee’s report — so close to the federal election — could mean its recommendations get lost.

“It’s unfortunate that it’s taken this long, several-year process since the last election, to get to the point of actually having a committee report with some recommendations that could then inform possible legislation,” he said. “The issue, however, isn’t going to go away for people living with HIV … we will continue to press for Criminal Code reform.”

In 2017, then-federal justice minister Jody Wilson-Raybould said she would examine how the criminal justice system dealt with people who do not disclose their HIV status to sexual partners.

Late last year, the government instructed federal prosecutors in the North that they should no longer prosecute anyone for not disclosing their HIV status to a sex partner where there is no risk of transmitting the virus. The rules apply only in the territories where federal prosecutors have jurisdiction.

Elliott said he’s hopeful that the Justice and Human Rights committee’s report will include a recommendation to establish a consistent policy for prosecutors at the provincial level.

Agencies advocating for de-criminalization of HIV non-disclosure agree that the law needs to change and it is a public health issue, not something that should be dealt with as sexual assault, he said.

“There is just a vast overreach in the Criminal Code as it’s been interpreted and applied,” he said. “Parliament needs to fix that and that will remain the case after the coming election.”

UNAIDS welcomes the decision of the Constitutional Court of Colombia to remove HIV criminalisation article

GENEVA, 13 June 2019—UNAIDS welcomes the decision of the Constitutional Court of Colombia to remove the section of the criminal code that criminalizes HIV and Hepatitis B transmission. Overly broad criminalization of HIV transmission is ineffective, discriminatory and does not support efforts to prevent new HIV infections.

“Public health goals cannot be pursued by denying people their individual rights. The decision by the Constitutional Court of Colombia is a concrete step to ensure the law works for the HIV response, and not against it,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS will continue to advocate for a protective legal environment and the removal of punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV.”

The Constitutional Court of Colombia established that the law violated the principles of equality and non-discrimination, as it singled out people living with HIV, stigmatising them and limiting their rights. The Court established that the law created a differential treatment that is not reasonable —and therefore constituted discrimination. The Court further established that such law violated the sexual rights of people living with HIV and it was ineffective to meet any public health objectives.

Overly broad and inappropriate application of criminal law against people living with HIV remains a serious concern across the globe. Nine jurisdictions in South and Central America and at least 77 others worldwide still criminalize HIV non-disclosure, exposure and transmission.

UNAIDS filed an intervention before the Constitutional Court of Colombia indicating that no data support the broad application of criminal law to HIV transmission to prevent HIV transmission. Rather, such application risks undermining public health goals and human rights protections. UNAIDS strongly commends the decision taken by the Constitutional Court to restore the dignity and rights of people living with HIV in Colombia.

In 2018, UNAIDS, the International Association of Providers of AIDS Care and the International AIDS Society convened an expert group of scientists who developed an Expert Consensus Statement on the Science of HIV in the Context of Criminal Law. The statement calls on the criminal justice system to ensure science informs the application of the law in criminal cases related to HIV.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram andYouTube.

Colombia: Constitutional Court overturns HIV criminalisation law

Court strikes down article criminalising the spread of HIV

Google translation, for article in Spanish, scroll down.

Among the reasons for the decision, the high court stated that the rule “stigmatized” a population.

Three reasons led the Constitutional Court on Wednesday to overturn Article 411 of Law 599 of 2000, which penalized the spread of the Acquired Immunodeficiency Virus, HIV, and of Hepatitis B.

A first reason was that this rule was not a necessary and proportional measure. Second, it stigmatized a population. And the third is that there is another rule in the Penal Code that already typifies the spread of epidemics.

The Court’s decision accepted several of the plaintiff’s arguments. According to the plaintiff, the rule violated the rights to equality and restricted the free development of personality, in particular sexual freedom.

The norm established that there would be a prison term of 6 to 12 years for those who, knowing they are HIV positive or sick with hepatitis B, “carry out practices by means of which they can contaminate another person, or donate blood, semen, organs or, in general, anatomical components”.

According to the lawsuit, this penalized the fact that a person living with these diseases had sex, and made it a crime regardless of whether that person took the preventive measures that make the transmission of diseases unlikely, such as antiretroviral treatments and others.

The plaintiff argued that, although the purpose of this measure was to protect public health, this did not justify prohibiting a population group from freely expressing its sexuality, and stressed that there would be no effect when there were consensual relationships in which measures were taken to prevent contagion.

Regarding the violation of equality, the lawsuit held that the article only referred to and penalized people with HIV or hepatitis B, and not others with potentially contagious and delicate diseases.

Other views

As part of the debate on this law, the Court received 15 statements from different organizations, ministries, universities, and even from the Constitutional Court of South Africa – against it – to take into consideration. And there were almost as many arguments in favour as against.

The Colombian League for the Fight against AIDS supported the lawsuit because it considered that the law did violate rights, added that laws that penalize exposure to HIV leave the entire burden of prevention on people living with it and said that the real challenges were more education and better access to medical testing and counseling services.

The statement sent by the Ministry of Justice gave reason to the plaintiff that the rule was discriminatory because it was addressed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B. It also argued that there was no justification for the rule being for people with these two diseases and not for others who are aware of having different risks of infectious-contagious diseases.

However, faced with the restriction of sexual freedom, the Ministry of Justice considered: the rule “does not violate the right to the free development of the personality, but is limited to establishing the penal consequences that its abusive and harmful exercise entails with respect to the rights of others and the community”.

The Ministry of Health indicated, on the contrary, that the article did not violate either the right to equality or the free development of the personality and asked to leave it as it was.

The Attorney General’s Office agreed with the plaintiff that the rule punished the fact of having sex even when there was no transmission of the disease, which, says the Public Prosecutor’s Office, is not true. For the Attorney General’s Office, the rule was clear that in order for the crime to be configured there must be an intention to cause harm by engaging in practices that could end in contagion. The Public Prosecutor’s Office asked the Court to declare itself inhibited.

Corte tumba artículo que penalizaba la propagación del VIH

Entre las razones, el alto tribunal dijo que la norma “estigmatizaba” a una población.

Tres razones llevaron este miércoles a la Corte Constitucional a tumbar el artículo 411 de la ley 599 del 2000 que penalizaba la propagación del Virus de Inmunodeficiencia Adquirida, VIH, origen al sida, y la Hepatitis B.

Una primera razón es que esta norma no era una medida necesaria y proporcional. La segunda, estigmatizaba a una población. Y la tercera es que hay otra norma en el Código Penal que tipifica ya la propagación de epidemias.

La decisión de la Corte acoge varios argumentos del demandante. Según este, la norma vulneraba los derechos a la igualdad y restringía el libre desarrollo de la personalidad, en particular, la libertad sexual.

La norma establecía que habría prisión de 6 a 12 años para quien, sabiéndose portador del VIH o enfermo de hepatitis B, “realice prácticas mediante las cuales puedan contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.

De acuerdo con la demanda, esto penalizaba el hecho de que una persona que viviera con estas enfermedades tuviera sexo, y lo convertía en delito sin importar si se esa persona tomaba las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.

El demandante sostenía que, aunque el fin de esta medida era proteger la salud pública, esto no justificaba prohibirle a un grupo poblacional expresar libremente su sexualidad, y resaltaba que no habría afectación cuando se tuvieran relaciones consensuadas en las que se tomaran medidas para prevenir contagios.

Sobre la vulneración a la igualdad, la demanda sostenía que el artículo solo se refería y penalizaba a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.

Otras voces

Como parte del debate sobre esta norma, la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica- en contra-, para alimentar sus consideraciones. Y hubo casi tantos argumentos a favor como en contra.

La Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que con la norma sí se vulneraban los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.

El concepto enviado por el Ministerio de Justicia le dio la razón al demandante en que la norma es discriminatoria pues estaba dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B. También argumentó que no se advertía justificación para que la norma fuera para personas con esas dos enfermedades y no para otras que conscientes de tener enfermedades infectocontagiosas riesgosas distintas.

Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró: la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”.

El Ministerio de Salud indicó, al contrario, que la norma demandada no vulneraba ni el derecho a la igualdad ni el libre desarrollo de la personalidad y pidió dejarla como estaba.

La Procuraduría coincidió con el demandante en que la norma castigaba el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma era clara en que para que se configurara el delito debía existir una intención de causar daño realizando prácticas que podían terminar en contagio. El Ministerio Público pidió a la Corte declararse inhibida.

Canada: B.C.’s improved HIV prosecution guidelines remain out of step with scientific evidence and international guidance

Richard Elliott: B.C.’s improved HIV prosecution guidelines don’t go far enough

Opinion: B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Last month, the B.C. Prosecution Service changed its approach to HIV criminalization.

A new policy provides direction to prosecutors in cases where someone is accused of not telling their sexual partner they are HIV-positive.

While the Prosecution Service has taken an important step toward limiting misuse of criminal charges in these cases, overall this new policy remains out of step with scientific evidence and extensive international guidance. The result is that people living with HIV in B.C. continue to live under the shadow of unjust prosecution.

No other medical condition has been criminalized as HIV continues to be. Just imagine being told you are HIV-positive. The news is overwhelming at first, but you take on board the medical advice given to you and you learn that thanks to modern medicine you can live a fulfilling, healthy and long life.

You go on to meet someone and have consensual sex. You use a condom, which is the safer sex practice recommended as a cornerstone of HIV prevention since the virus was identified decades ago.

But, because you didn’t tell your sexual partner you have HIV, you can be charged with aggravated sexual assault. Even though HIV cannot pass through an intact condom, you could spend years in jail and be designated a “sex offender” for the rest of your life.

The Prosecution Service has refused to clearly rule out prosecuting people who use condoms. Instead, its new policy only says that using a condom is a factor that “may” weigh against prosecuting someone.

This flies in the face of evidence-based recommendations given by advocacy and human rights groups around the world. These include the international expert consensus statement published last year by leading HIV experts — including three leading Canadian scientists (two of them from B.C.) — concerned that criminal prosecutions in cases of alleged HIV non-disclosure are often based on a poor appreciation of the science.

People living with HIV and advocates across Canada had hoped B.C. would prove itself to be a leader and go even further toward justice than the federal government has done.

In December, Canada’s attorney general issued a directive to limit HIV non-disclosure prosecutions. But it only applies in the territories, where federal prosecutors handle criminal prosecutions. It was disheartening to learn that B.C.’s new policy does not reflect the longstanding scientific knowledge we have about condoms and their effectiveness.

B.C.’s policy shows minor progress in limiting the overly broad use of the criminal law against people living with HIV. It is a positive step, for instance, that it now states there will be no prosecution in cases where the person living with HIV has a “suppressed viral load” for at least four months — this means they have had treatment to suppress the virus in their body to ensure there’s no risk of transmission.

The new policy also says there should be no prosecution for having just oral sex, although with the caveat there must be “no other risk factors present.”

These positive updates reflect current scientific understanding, so it’s perplexing the Prosecution Service maintains an antiquated stance on condom use and persists in potentially prosecuting people who practice safer sex.

B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network

US: Nevada advisory task force to review antiquated laws on HIV exposure and issue recommendations

Panel to take on reforming Nevada’s antiquated HIV criminalization laws

During the height of the HIV/AIDS epidemic in the late 1980s, more than 67 laws were enacted across the country to criminalize and prosecute people living with HIV.

“The majority of these laws were passed before antiretroviral therapies, which can reduce the HIV transmission risk to zero, were developed,” said Democratic state Sen. David Parks. “In case you’re not aware, it is possible to be HIV positive and have no detectable presence of the virus.”

Senate Bill 284 mandates an examination of Nevada’s HIV laws. It passed both the Senate and Assembly and is headed to Gov. Steve Sisolak’s desk. The legislation creates the Advisory Task Force on HIV Exposure Modernization to review laws and punishments, and make recommendations ahead of the 2021 Legislative session.

With more understanding around HIV, states like California are taking steps to amend antiquated statutes. Parks said he has been trying to move legislation to tackle HIV criminalization in Nevada for three sessions without any progress.

Calls for states to consider HIV decriminalization come as science and medical advancements develop.

Organizations such as the Centers for Disease Control and Prevention note that those on medications who achieve an undetectable viral load — when the copies of HIV per milliliter of blood are so low, it can’t be detected on a test — have no risk of transmitting the virus. A recent study by The Lancet medical journal further confirmed that the risk of passing on the virus is eliminated when people living with HIV are on effective drug treatments.

Yet, many laws still don’t reflect the medical advancements.

In a statement of support for the legislation, Nevada Attorneys for Criminal Justice add that current laws are discriminatory and counterproductive.

“NACJ would particularly like to highlight one such law, NRS 212.189, which imposes a life sentence on a person with HIV in lawful custody who exposes another person to their bodily fluids,” the group wrote. “This is dramatically overbroad – a person with HIV who spits on a police officer as they are being arrested faces a life sentence, because HIV is sometimes present in saliva even though there is no actual risk of transmission.”

SB284 passed the Senate unanimously April 16 and the Assembly 37-3 on Thursday — Republican Assemblymen Chris Edwards, John Ellison and Jim Wheeler were opposed.

Colombia: Constitutional court to examine whether the law criminalising HIV transmission is discriminatory

Source: El Tiempo, April 27, 2019 – Google translation, for article in Spanish, please scroll down.

Is Penalising HIV infection discriminating?

Should a person who transmit HIV or hepatitis B go to jail for 6 years? That is the debate that the Constitutional Court will have to settle in the coming days, by resolving a lawsuit against the law that criminalizes the transmission of these diseases.

The plaintiff considers that Article 370 of the Criminal Code violates the rights to equality and restricts the free development of personality, in particular, sexual freedom. This law establishes that there will be imprisonment of 6 to 12 years for those who, knowing that they have HIV or hepatitis B, “perform practices through which they may contaminate another person, or donate blood, semen, organs or, in general, anatomical components”

According to the lawsuit, this penalizes the fact that a person living with these diseases has sex, and makes it a crime regardless of whether preventive measures, such as antiretroviral treatments and others, are taken that make the transmission of diseases unlikely.

Thus, the plaintiff says that although the purpose of this mechanism is to protect public health, this does not justify prohibiting a population group from freely expressing their sexuality, and adds that there would be no harm when there are consensual relationships in which measures are taken to prevent infections.

On the violation of equality, the plaintiff says that the article only refers and penalizes people with HIV or hepatitis B, and not others with potentially contagious and sensitive diseases.

The debate is broad, in total the Court received 15 statements of opinion from different organizations, ministries, universities, and even the Constitutional Court of South Africa, to feed its considerations. And there are almost as many arguments in favour as there are against.

For example, the Colombian Anti-AIDS League supported the demand because it considered that rights were violated, adding that laws that criminalize exposure to HIV leave the burden of prevention to the people who live with it and said that the real challenges are more education and better access to medical testing services and counselling

The statement sent by Edwin Cameron, magistrate of the Constitutional Court of South Africa and who lives with HIV since 1985, points out the harm of criminalizing people living with HIV, as it increases the stigma and makes it harder for them to dare to seek medical help and prevention information

He also said that to resort to norms that criminalize HIV, the UN recommends to governments that they address only those who intentionally spread the virus and concluded that if the goal is to safeguard public health, it is more effective to have better prevention and care programmes.

The statement sent by the Ministry of Justice gives the plaintiff reason that the rule is discriminatory because it is directed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B and adds that there is no justification for the rule to be for people with these two diseases and not for others who are aware of having different infectious-contagious diseases

However, with regard to the restriction on sexual freedom, the Justice Department considered that the rule “does not violate the right to the free development of personality, but is limited to establishing the criminal consequences resulting from its abusive and harmful exercise against the rights of other people and the community “ For all this, it asks the Court to study the lawsuit and decide.

The Ministry of Health indicated, on the contrary, that the rule does not violate either the right to equality or the free development of the personality, but rather that the demand is based on an inference from the plaintiff that this restricts sexual freedom, and therefore asks to leave the rule as it is.

The Attorney General agrees that the plaintiff interpretation is that the law punishes the fact of having sex even when there is no transmission of the disease, which, says the Public Ministry, is not true. For the Attorney General’s Office, the rule is clear that in order for the offense to be established there must be an intention to cause harm by carrying out practices that could end in transmission. Because of this, the reasons for the claim are not valid and the Court is being asked not to study it and declare itself inhibited

In any case, the decision will be made by the Court, the lawsuit was handed over to Judge Cristina Pardo, who has already made a presentation that will be debated in the next few days by the Court’s full chamber.

¿Penalizar el contagio de VIH es discriminar?

Demanda dice que tipificar la propagación del virus discrimina a personas con VIH o hepatitis B.

Por: María Isabel Ortiz Fonnegra

27 de abril 2019 , 08:00 p.m.

¿Debe ir a la cárcel por 6 años una persona que contagie a otra de VIH o hepatitis B? Ese es el debate que deberá zanjar la Corte Constitucional en los próximos días, al resolver una demanda contra la ley que penaliza la propagación de estas enfermedades.

El demandante considera que el artículo 370 del Código Penal vulnera los derechos a la igualdad y restringe el libre desarrollo de la personalidad, en particular, la libertad sexual. Esta ley establece que habrá prisión de 6 a 12 años para quien, sabiendo que tiene VIH o hepatitis B, “realice prácticas mediante las cuales pueda contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.

De acuerdo con la demanda, esto penaliza el hecho de que una persona que viva con estas enfermedades tenga sexo, y lo convierte en delito sin importar si se toman las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.

Así, el demandante dice que aunque el fin de esta media es proteger la salud pública, esto no justifica prohibirle a un grupo poblacional expresar libremente su sexualidad, y agrega que no habría afectación cuando se tienen relaciones consensuadas en las que se toman medidas para prevenir contagios.

Sobre la vulneración a la igualdad, dice que el artículo solo se refiere y penaliza a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.

El debate es amplio, en total la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica, para alimentar sus consideraciones. Y hay casi tantos argumentos a favor como los hay en contra.

Por ejemplo, la Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que sí se vulneran los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.

El concepto enviado por Edwin Cameron, magistrado de la Corte Constitucional de Sudáfrica y quien vive con VIH desde 1985, señala los perjuicios de criminalizar a las personas que viven con esa enfermedad, pues incrementa el estigma y hace más difícil que se atrevan a buscar ayuda médica e información sobre prevención.

También dijo que de recurrir a normas que criminalicen el VIH, la ONU recomienda a los gobiernos que estas se dirijan solo a quienes intencionalmente propagan el virus y concluyó que si el objetivo es salvaguardar la salud pública, es más efectivo tener mejores programas de prevención y atención.

El concepto enviado por el Ministerio de Justicia le da la razón al demandante en que la norma es discriminatoria pues está dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B y agrega que no se advierte justificación para que la norma sea para personas con esas dos enfermedades y no para otras que son conscientes de tener enfermedades infectocontagiosas riesgosas distintas.

Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró que la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”. Por todo esto, le pide a la Corte que estudie la demanda y decida.

El Ministerio de Salud indicó, al contrario, que la norma demandada no vulnera ni el derecho a la igualdad ni el libre desarrollo de la personalidad, sino que la demanda se basa en una inferencia del accionante de que esto restringe la libertad sexual, por lo que pidió dejar la norma tal y como está.

La Procuraduría coincide en que el demandante interpreta que la norma castiga el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma es clara en que para que se configure el delito debe existir una intención de causar daño realizando prácticas que podrían terminar en contagio. Por esto, las razones para la demanda se caen y le pidió a la Corte no estudiarla y declararse inhibida.

En todo caso, la decisión será de la Corte, la demanda le correspondió por reparto a la magistrada Cristina Pardo, quien ya hizo una ponencia que será debatida en los próximos días por la sala plena de la Corte.

Canada: Advocates recommend amending the criminal code to limit the overcriminalisation of non-disclosure and the inconsistency of provincial prosecutorial policies

Criminal Code changes needed to curb HIV non-disclosure prosecutions, experts say

The chair of the federal government’s justice committee is hoping input from various stakeholders will lead to Criminal Code changes limiting prosecutions of HIV non-disclosure across Canada.

On April 9, the House of Commons Standing Committee on Justice and Human Rights began inviting medical professionals, advocates and those living with the immunodeficiency virus to submit briefs on how to deal with the overcriminalization of non-disclosure and a “patchwork” of prosecutorial policy among the provinces.

The committee’s study comes almost five months after Canada’s Department of Justice directed its Crowns to limit their prosecutions of HIV non-disclosure in light of evolving science around risk of transmission.

But the Dec. 1 directive applies only to Crowns in Canada’s territories. Provincial prosecutors, on the other hand, follow their own set of prosecutorial policies.

Soon after this, Ontario directed its Crowns to limit non-disclosure prosecutions. And on April 16, British Columbia brought forth a revamped policy.

Most other provinces lack directives.

Defence lawyers and advocates have long been said that criminal law dealing with non-disclosure has lagged scientific findings that the risk of transmission can be quite low, depending on individual circumstances and sexual practices.

The committee will be hearing from stakeholders on the adequacy of the federal directive, how the justice system can work with the health sector to better understand the science of transmission and how to attain a uniform policy across the land.

As of April 17, the committee had heard from the Ontario AIDS Network and the Canadian HIV/AIDS Legal Network, as well as other organizations and several experts.

All submissions are due April 30 and a report will go before Parliament sometime in May, according to the committee’s chairman, Liberal MP Anthony Housefather.

“We’re looking at how do you create a system that can apply across the country, and, for me, that would only be through adjustments to the Criminal Code itself,” Housefather told The Lawyer’s Daily.“Now, we could come out with recommendations, theoretically, to the minister of justice to meet with his provincial and territorial counterparts to try to agree on a directive that would be applied in every province and territory. But, from what I understand right now, the best approach would be amendments to the Criminal Code.”

Housefather spoke of different policies currently in existence.

“Right now, we only have a federal directive that applies to very few Canadians,” said Housefather. “We have an Ontario directive that is slightly different from the federal directive. There is a directive in B.C. that was quietly put forward. And then most [other] provinces have no such directive. So, people are being prosecuted differently depending on the province or territory that they live in right now.”

Canadian HIV/AIDS Legal Network executive director Richard Elliott said the consultations will drive home the need for consistency.

“It should make clear that, in so far as it goes, the [federal] directive … issued in December, is OK,” said Elliott. “In our view — and [in] the view of other advocates with whom we work across the country on this — it doesn’t go far enough, but it is a step forward. What I think it should also make clear is even if the directive at the federal level went as far as it should go, and even if every provincial [attorney general] were to adopt an equally satisfactory directive applicable in their jurisdiction … we would still need an additional part of the solution here, which … is to amend the Criminal Code.”

Elliott noted differences in the federal, Ontario and B.C. directives and said uniform, coast-to-coast policy would “sweep away a patchwork of different policies in different jurisdictions.”

None of the policies is quite where it should be when it comes to limiting criminalization, said Elliott, who, like many, is calling for sexual assault and aggravated sexual assault charges to be taken off the table as charges for HIV non-disclosure.

Criminal charges, he said, should be limited to intentional transmission.

Criminal lawyer Cynthia Fromstein has been approached by people “frightened [and] concerned about their legal jeopardy and wanting to know what is and is not lawful behaviour.”

“These are people who have no intention of harming others by their actions,” said Fromstein, a sole practitioner in Toronto. “That is one reason it is truly necessary for there to be consistency across the country in policy and application of the criminal law.”

Like Elliott, Fromstein hopes the consultations will kick-start change.

“Amending the Criminal Code is going to be complex,” she said. “I think there is wide support for taking any kind of prosecution of non-disclosure out of the sex assault provisions. I think there is broad agreement [this] needs to be done. But then there are real questions: Should there be a specific law for HIV transmissions? Should there be a specific law for ‘causing a person to be infected with a serious illness,’ which is not necessarily [classified as] HIV? There are a lot of questions that have to be fine-tuned.”

US: Bipartisan list of lawmakers sponsor bill to modernise HIV laws in Georgia

Georgia lawmaker wants to decriminalize HIV

A Republican lawmaker introduced a bill that would modernize Georgia’s HIV laws, which activists say are outdated and stigmatize people living with HIV.

Under House Bill 719, a person charged with exposing someone to HIV — whether through sex or sharing needles — would have to show an “intent to transmit” the virus in order to be prosecuted, according to the bill. Current Georgia law makes it a crime for people living with HIV to have sex without disclosing their status.

The bill would also downgrade the punishment for people found guilty of the offense to a misdemeanor punishable by up to a year in prison. It’s currently a felony punishable by up to 10 years in prison.

“[The bill] moves these archaic laws created out of the HIV panic of the 1980s and brings them up-to-date with our current understanding of HIV,” Eric Paulk, HIV policy field organizer for Georgia Equality, told Project Q Atlanta. “Additionally, this bill will aid in reducing stigma and discrimination against people living with HIV, which it is not just fair, but good for public health.”

“Lastly, reforming these laws is an important step to health and HIV prevention justice, especially for black gay, bisexual, and transgender Georgians, who are disproportionately impacted by HIV and prosecutions under these laws,” he added.

HB 719 would also make employees of syringe services programs immune from being charged with possession, distribution or exchange of needles or syringes as part of the program. The measure would also remove a provision in state law that makes it a crime for people living with HIV to spit on people.

Rep. Deborah Silcox (photo), a Republican from Sandy Springs who sponsored the measure, introduced HB 719 on April 2, the final day of this year’s legislative session. It will come back up for consideration during the 2020 session.

HB 719 has a bipartisan list of co-sponsors. The Republicans include Reps. Sharon Cooper of Marietta and Mark Newton of Augusta. The Democrats who signed on to the measure are Reps. Michele Henson of Stone Mountain and Karla Drenner of Avondale Estates. Drenner is one of the five openly LGBTQ members of the legislature.

Cooper sponsored a measure that created a study committee to examine the state’s HIV criminalization laws in 2017.

The committee published its findings in December 2017, and some of those recommendations became part of HB 719. The committee found that “criminal exposure laws had no effect on detectable HIV prevention” and that these laws should be eliminated unless there was a clear intent to transmit the virus, according to the report.

Cooper, Silcox and Rep. Houston Gaines are the group of Republicans who introduced a package of HIV legislation during the 2019 session.

Cooper’s bill to create a pilot program to provide PrEP to people at high risk of contracting HIV passed both chambers and awaits Gov. Brian Kemp’s signature. Gaines’ bill to create a needle exchange program to help reduce HIV rates passed both chambers, and Kemp signed it into law on April 2. Silcox’s bill to make it easier for HIV-positive Medicaid recipients to receive the most effective medications passed unanimously in the House but got held up in the Senate over cost issues. It will return in 2020.

Georgia is one of three-dozen states that criminalize a lack of HIV disclosure. HIV criminalization laws are one of the reasons Georgia ended up in the lowest-rated category on the Human Rights Campaign’s annual State Equality Index.