[update]US: Bill aiming to modernise HIV legislation in Florida clears its second hurdle

Source: South Florida Gay News, Published on March 25, 2019

HIV Modernization Bill Continues to Make Progress in Florida House

An HIV modernization bill, the (HB 79), cleared its second hurdle this week passing the Florida House’s Appropriations Committee overwhelmingly 26-3.

This is the second committee to give the bill a favorable recommendation. It recently passed the House’s Criminal Justice Subcommittee, 10-3.

“We’re really excited by the bipartisan momentum that we’ve seen for this HIV modernization legislation,” said Jon Harris Maurer, Equality Florida’s Public Policy Director. “This is long overdue and it’s exciting to see this being addressed as a criminal justice reform issue and a public health issue.”

Michael Rajner, an HIV rights activist, attributes the newfound support to advocates, stakeholders and people living with HIV meeting with lawmakers to tell their stories.

Rajner said he’s been working toward a bill like this for at least 8 years.

This is the third year this bill has been introduced and there’s been a surge in support. This is also the furthest an HIV modernization has gotten in the Florida Legislature.

“Regardless of which side of the aisle you sit on people want better public safety and better health outcomes and that’s what this bill does,” said Justin Klecha, Deputy Director of SAVE and a member of the Florida HIV Justice Coalition. “This is a fantastic bill that takes a huge step forward reducing stigma around HIV.”

Klecha said most of the opposition comes from a lack of knowledge.

“Legislators don’t know the current science around HIV, or how far we’ve come with the treatments,” Klecha said.

HB 79 must now pass through the Judiciary Committee. While in the Senate, Jason Pizzo (D – Miami), has filed similar legislation (SB 846), but no hearings have been scheduled as of yet.

“This is the first year the legislature is actually taking any actions and votes. We have a tremendous bill sponsor this year, Nick Duran out of Miami, who is incredibly passionate about this,” Rajner said. “We also owe a great deal of thanks to Dr. Hansel Tookes and the medical students at the University of Miami who have been doing a tremendous job of advocating for needle syringe exchange programs statewide and in that process have been educating legislators on HIV.”

The current law does not take into account whether a person actually transmitted HIV. Nor does it matter if a condom was used, or if the person with HIV is on treatment and undetectable.

This new bill would revise the existing law such as defining “Substantial risk of transmission” as “a reasonable probability of disease transmission as proven by competent medical or epidemiological evidence.” The bill would also update outdated language such as changing “sexual intercourse” to “sexual conduct.”

“I think the most profound change is that there would have to be actual intent and transmission of HIV to another individual during sex,” Rajner said.

Other changes include allowing a person who has HIV to donate blood, plasma, organs, skin, or other human tissue as long as a medical professional deems it appropriate. Currently, there are no exceptions so if someone did make such a donation they would be committing a third-degree felony. HB 79 would downgrade the penalty to a first-degree misdemeanor.

“This bill would help modernize Florida’s HIV laws that were written in the mid-80s at the height of the HIV epidemic and haven’t been updated to align with current science on treatment and prevention for HIV,” Maurer said. “I think most strikingly is that the law currently doesn’t account for whether in fact there is any transmission of HIV. So under the current law, a person could be incarcerated for up to 30 years with a third-degree felony, even though there is no transmission of HIV, and scientifically there is no risk of transmission.”

Source: South Florida Gay News, published on March 7, 2019

HIV Modernization Bill Moves Forward In Florida House

An HIV modernization bill, the HIV Prevention Justice Act (HB 79), cleared its first hurdle passing 10-3 in the Florida House’s Criminal Justice Subcommittee.

Five Republicans and five Democrats voted for the bill.

The current law does not take into account whether a person actually transmitted HIV. Nor does it matter if a condom was used, or if the person with HIV is on treatment and undetectable.

The bill must also pass through the Appropriations Committee and Judiciary Committee.

Senator Jason Pizzo (D – Miami) has filed similar legislation (SB 846) in the Florida Senate.

Nicholas Duran bill aims to modernize HIV law

Equality Florida applauds legislation catching law up to modern science.

Count it a leftover of the AIDS scare in the 1980s: Florida law treats those who knowingly transmit HIV different than any other sexually transmitted disease.

But a bill advancing through the Florida House could de-stigmatize HIV without decriminalizing irresponsible transmission entirely.

“There’s a longstanding stigma with respect to this based on a years-ago understanding as opposed to current health and medical science on the disease,” state Rep. Nicholas Duran said.

He credits it to law written in a time when people worried spitting or sharing a toilet seat with an HIV-positive individual.

This year, the Miami Democrat filed the HIV Prevention Justice Act (HB 79) in hopes of reforming the law. The bill already has favorably passed through the House Criminal Justice Subcommittee.

If it becomes law, the legislation will reclassify a failure to notify a sexual partner of HIV-positive status as a misdemeanor, instead of a felony.

“This legislation will save lives and take care of the whole community,” said Alejandro Acosta, coordinator for Equality Florida’s HIV Advocacy Project. “It will help decrease HIV stigma, encourage people to get tested, and get into treatment.”

Acosta, who is HIV-positive, said Florida “has a responsibility to match our law with current science.”

That means acknowledging HIV, far from the death sentence it was in the 1980s, can be treated as a chronic condition more on par with asthma or diabetes.

While there are 115,000 people living with HIV in Florida, there were less than 900 deaths from HIV-related causes in the state in 2016.

But the spread of the virus remains a concern, particularly in Florida. The state saw 4,957 documented new transmissions in 2016, according to Equality Florida.

But the impact of the disease remains demographically uneven. Only 22 percent of new transmissions in Florida were for women. Meanwhile, 42 percent were for black individuals and 32 percent were Latino.

And date from the Centers for Disease Control shows the condition still impacts the LGBTQ more than the public as a whole. Gay and bisexual men make up 55 percent of Americans living with HIV.

At current rates, a quarter of all gay and bisexual Latino men will get HIV at some point in their life. Half of gay and bisexual black men will contract the virus.

All this may indicate an importance in being open with sexual partners about having the virus, and Duran doesn’t want failure to disclose information completely decriminalized.

But the severe legal consequence for failing to share information has led to a high number of individuals refusing to get tested for HIV. CDC data suggests 20,000 Floridians have contracted HIV but remain unaware of their status.

In an interview with HIV Plus Magazine in 2017, Acosta declined to say how long he’d had HIV, noting the current laws in Florida open individuals up to legal risk for years.

HIV-positive people can face up to 30 years in prison for failure to disclose their status with a consensual partner, and that risk comes whether the virus gets transmitted or not.

Further, current medical treatments can make HIV medically undetectable, and in turn can make the virus virtually non-transmittable.

It raises the question what obligation should exist for an individual employment safe sex practices has to a partner when there’s virtually no risk of catching HIV from an encounter.

Duran’s bill also addresses some specific issues, like acknowledging the low risk of ever transmitting HIV through oral sex.

States like California have already reduced the penalties for HIV-positive individuals withholding their status.

Efforts to change the law failed in Florida in the past. But Duran hopes a conversation based on current science can catch the law up with modern knowledge.

He notes Hepatitis C poses a greater risk and threat to public health today than HIV. Treating HIV patients as criminals at this point does more harm than good.

“We are going to create smart policy with HIV and STDs,” he said.

Published in FLAPOL on Feb 25, 2019

Zimbabwe: Government plans to repeal overly broad, vague HIV-specific criminal law

Sources: New Zimbabwe and ZimEye – Published on March 20, 2019

Ziyambi: Government to decriminalise wilful transmission of HIV (New Zimbabwe)

JUSTICE Minister Ziyambi Ziyambi has revealed plans by government to repeal clauses in the Sexual Offences Act which criminalise the deliberate transmitting of HIV by positive sexual partners.

Addressing backbenchers during parliament’s question and answer session on Wednesday, Minister Ziyambi said the law has not served its intended purpose of reducing the spread of the virus.

“…Indeed when the legislation came into effect, the thinking there was that, we need to control the spread of HIV by criminalising those who transmit it to partners willingly.

“But global thinking is that the law stigmatises people living with HIV and AIDS. Studies have shown that it does not produce the intended results that it is intended to achieve and so what the ministry is going to do is repeal that section of the law,” said Ziyambi.

The Minister was responding to a direct question by Zengeza West MP Job Sikhala who had asked what government was doing in terms of decriminalising the deliberate spread of HIV by sexual partners.

The MDC legislator had also asked if the government was willing to reverse the law arguing it stigmatises people living with HIV and AIDS.

Minister Ziyambi said the envisaged changes could come through the Marriage Bill Act.

“We are looking at perhaps introducing that amendment through the Marriage Bill Act that is due to come,” he said.

Zimbabwe in 2001 introduced the Sexual Offences Act which came with criminalisation on deliberate transmission of HIV either through rape cases or by those who do not inform their sexual partners about their HIV positive status in cases of unprotected sex.

Government Repeals Law On Intentional Transmission Of HIV (Zim Eye)

The Minister of Justice, Legal and Parliamentary Affairs Ziyambi Ziyambi has revealed that Government is working on repealing the willful HIV transmission law.

Section 79 (1) of the Criminal Codification and Reform Act on deliberate transmission of HIV reads: “Any person who knowingly that he or she is infected with HIV, or realising that there is a real risk or possibility that he or she is infected with HIV, intentionally does anything or permits the doing of anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person and shall be liable to imprisonment for a period not exceeding twenty years.

“It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned knew that the accused was infected with HIV and consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.”

Ziyambi, during a Question and Answer session in Parliament today, said the law will be repealed.

Calls for the law to be repealed have been made since about 3 years ago. In 2016, Elizabeth Tailor Human Rights Award winner and HIV activist, Ms Martha Tholanah said this law must be scrapped because it stigmatised and discriminated against people living with HIV.

Ms Tholanah, who has been living with HIV for the past 17 years, said criminalisation of wilful HIV transmission was done a long time ago on the advent of the disease, when no one wanted to be associated with it.

She, however, said owing to developments in the medical field, HIV is now just like any other disease hence the law must be informed by science trends.

“Evidence has shown that chances of transmitting HIV to another person if you are on treatment are slim. The law must then speak the same language with science to achieve our national and global goals and targets,” said Ms Tholanah.

She said the current law discouraged people from getting tested thereby delaying them from accessing treatment early, reversing global efforts to end Aids by 2030.

Kazakhstan: Women living with HIV submit report to CEDAW, recommending repeal of HIV criminalisation provision in Kazakhstan penal code

Source: EWNA, published on March 11, 2019

For the first time, HIV+ women in Kazakhstan submitted a shadow report to CEDAW

Today in Geneva, at the pre-sessional working group of the 74th meeting of the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) , representatives of the community of women living with HIV, women who use drugs and sex workers from Kazakhstan presented for the first time a shadow report from civil society on rights situations for women from key groups.

In July 2018, civil society organizations submitted the Shadow Civil Society Report on Discrimination and Violence against Women Living with HIV, Women Using Drugs, Sex Workers and Women from Prisons, to the UN Committee on the Elimination of All Forms of Discrimination against women. The report is based on studies of cases of violation of rights registered by non-governmental organizations in 2015-2017. The full report is available on the EZSS website, in Russian and English .

Here is the text of the oral statement presented by Lyubov Vorontsova, Kazakhstan Union of People Living with HIV (english text below):

“Thank you, Madam Chair.

I am a woman living with HIV from Kazakhstan and I represent the voices of women from my community.

We consider it extremely important to solve the problems of institutionalized discrimination that violates the rights of women and impedes access to health and social services, as well as contribute to social and economic vulnerability.

Women living with HIV have limited access to residential services in existing crisis centers designed to help women affected by violence. In the capital of Kazakhstan, a young girl with a child who was abused by her husband in winter is refused to be placed in an orphanage, since there is such a law and she has HIV. Article 118 of the Criminal Code of Kazakhstan provides for criminal penalties for putting people at risk of HIV infection, which has the opposite effect – this contributes to a higher risk of HIV infection, violence and gender inequality in the family, in the health care system, in society.

According to a study of the Stigma Index, 24.2% of women living with HIV, medical workers forced to terminate a pregnancy (abortion), 34% of women living with HIV never received advice on reproductive opportunities.

We recommend:

Revise Article 118. “Infection with Human Immunodeficiency Virus (HIV / AIDS)” of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014 No. 226-V SA-RC to abolish the provision criminalizing the risk of acquiring HIV
To set up offices in crisis centers to work with drug addicts and HIV-positive women. Mobilize state efforts to expand the network of crisis centers and other emergency services for women who have experienced domestic violence, and to ensure adequate public funding for these institutions.
Introduce changes to the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated December 21, 2016 No. 1079 “On approval of the standard for providing special social services to victims of domestic violence”, limiting the possibility of women living with HIV in crisis centers.

Women who use drugs report the extreme prevalence of police brutality. Due to stigmatization, pregnant drug-addicted women cannot take advantage of necessary medical services, including drug treatment, antenatal care and post-natal care. Opioid substitution therapy is not available for women when they are hospitalized in any medical institution (including maternity hospitals, tuberculosis dispensaries, etc.).Immediately after childbirth, women are forced to travel independently to the substitution therapy program in order to receive drug support with methadone.

The rights of sex workers by medical personnel are violated, in particular, the humiliation of dignity, the infliction of physical and psychological violence, and the disclosure of HIV-positive status to third parties. For this reason, sex workers refuse timely diagnosis in medical institutions.

We recommend:

Develop and adopt a humanization policy for women who use drugs, laws and practices based on respect for human rights, which will protect and eliminate any discrimination and violence against women.
Include in the complex of preventive programs to combat HIV and AIDS at the local and national levels, training for police officers to reduce stigma and discrimination against women from vulnerable groups.
Actively investigate incidents of violence and any unlawful acts committed by law enforcement officers against sex workers, women who use drugs, and reported by public organizations.
Develop mechanisms for ensuring personal security and confidentiality that will allow women to report incidents of violence without fear for their safety.
Provide government funding for the provision of free family planning services, in particular contraception for marginalized and vulnerable women.
Provide training for medical personnel in providing quality sexual and reproductive health services for women living with HIV, sex workers and women who use drugs.
Include a substitution therapy program in the national health care system and drug practice, with further expansion and scaling in Kazakhstan, as well as develop mechanisms for access to treatment of opioid substitution therapy in hospitals (tub dispensary, maternity hospitals and others)

In Kazakhstan, there are no studies and disaggregated data in open sources regarding women prisoners. In the fifth periodic report, the state provides data on legislation that provides access to medical services for female prisoners. But this does not answer the question of whether it meets the needs of female prisoners.

We recommend:

Conduct research on the degree of satisfaction with women’s sexual and reproductive health services in places of detention, including data on women living with HIV and drug addicts, characterizing their access to antiretroviral treatment and drug treatment, including opioid substitution therapy. ”

ВПЕРВЫЕ ВИЧ+ ЖЕНЩИНЫ КАЗАХСТАНА ПРЕДСТАВИЛИ ТЕНЕВОЙ ОТЧЕТ В КЛДЖ

Сегодня в Женеве, на предсессионной рабочей группе 74 заседания Комитета ООН по ликвидации всех форм дискриминации в отношении женщин (CEDAW), представительницы сообщества женщин, живущих с ВИЧ, женщин употребляющих наркотики и секс-работниц из Казахстана, впервые представили теневой отчёт от гражданского общества о ситуации с нарушением прав в отношении женщин из ключевых групп.

В июле 2018 г. организациями гражданского общества был подан «Теневой отчет гражданского сообщества о дискриминации и насилии в отношении женщин, живущих с ВИЧ, женщин, употребляющих наркотики, секс — работниц и женщин из мест лишения свободы» в Комитет ООН по ликвидации всех форм дискриминации в отношении женщин. Отчет основан на исследованиях, случаях нарушения прав, зарегистрированных неправительственными организациями в 2015-2017 гг. С полным отчетом можно ознакомиться на сайте ЕЖСС, на русскоми английском языках.

Приводим текст устного заявления, которое представила Любовь Воронцова, Казахстанский Союз Людей, Живущих с ВИЧ (english text below):

«Спасибо, госпожа Председатель.

Я женщина, живущая с ВИЧ из Казахстана, и представляю голоса женщин из своего сообщества.

Мы считаем крайне важным решить проблемы институционализированной дискриминации, которая нарушает права женщин и препятствует доступу к медицинским и социальным услугам, а также способствуют социальной и экономической уязвимости.

Женщины, живущие с ВИЧ, имеют ограниченный доступ к услугам проживания в существующих кризисных центрах, предназначенных для помощи женщинам, пострадавшим от насилия. В столице Казахстана молодая девушка с ребенком, которая зимой подверглась насилию со стороны мужа, получает отказ быть помещенным в приют, поскольку существует такой закон и у нее ВИЧ. Cтатья 118 Уголовного Кодекса Казахстана предусматривает уголовное наказание за постановку в риск заражения ВИЧ, что имеет обратный эффект — это способствует более высокому риску заражения ВИЧ, насилия и гендерного неравенства в семье, в системе здравоохранения, в обществе.

По результатам исследования Индекс Стигмы 24,2% женщин, живущих с ВИЧ, медицинские работники принуждали к прерыванию беременности (аборту), 34% женщин, живущих с ВИЧ, никогда не получали консультацию по репродуктивным возможностям.

Мы рекомендуем:

Пересмотреть Статью 118. «Заражение вирусом иммунодефицита человека (ВИЧ/СПИД)» Уголовного кодекса РК от 3 июля 2014 года № 226-V ЗРК, чтобы отменить норму, устанавливающую уголовную ответственность за риск заражения ВИЧ.
Создать отделения в кризисных центрах для работы с наркозависимыми и ВИЧ-положительными женщинами. Мобилизовать усилия государства по расширению сети кризисных центров и других служб экстренной помощи женщинам, пережившим домашнее насилие, гарантировать адекватное государственное финансирование для этих учреждений.
Внести изменения в Приказ Министра здравоохранения и социального развития Республики Казахстан от 21 декабря 2016 года № 1079 «Об утверждении стандарта оказания специальных социальных услуг жертвам бытового насилия», ограничивающий возможность пребывания в кризисных центрах женщин, живущих с ВИЧ.

Женщины, употребляющие наркотики, сообщают о крайней распространенности жестокости полиции. Из-за стигматизации беременные наркозависимые женщины не могут воспользоваться необходимыми медицинскими услугами, в том числе наркологической, дородовой и послеродовой помощью. Опиоидная заместительная терапия не доступна для женщин при госпитализации в любые медицинские учреждения (включая родильные дома, противотуберкулезные диспансеры и т.д.). Сразу после родов женщины вынуждены самостоятельно добираться до программы заместительной терапии, чтобы получить лекарственную поддержку метадоном.

Нарушаются права секс-работниц со стороны медицинского персонала, в частности, унижение достоинства, причинение физического и психологического насилия, раскрытие ВИЧ-положительного статуса третьим лицам. По этой причине секс-работницы отказываются от своевременной диагностики в медицинских учреждениях

Мы рекомендуем:

Разработать и принять политику гуманизации в отношении женщин, употребляющих наркотики, законов и практик, основанных на уважении прав человека, которые обеспечат защиту и исключают любую дискриминацию и насилие в отношении женщин.
Включить в комплекс профилактических программ по противодействию ВИЧ и СПИД на местном и национальном уровнях обучающие мероприятия для полицейских о снижении стигмы и дискриминации по отношению к женщинам из уязвимых групп.
Активно расследовать случаи насилия и любых незаконных действий, совершенных сотрудниками правоохранительных органов против секс-работниц, женщин, употребляющих наркотики, зарегистрированных и сообщенных общественными организациями.
Разработать механизмы обеспечения личной безопасности и конфиденциальности, которые позволят женщинам сообщать о случаях насилия без страха за свою безопасность.
Обеспечить государственное финансирование на предоставление бесплатных услуг по планированию семьи, в частности контрацепции для маргинализированных и уязвимых женщин.
Обеспечить подготовку медицинского персонала по предоставлению качественных услуг по сексуальному и репродуктивному здоровью для женщин, живущих с ВИЧ, секс-работниц и женщин, употребляющих наркотики.
Включить программу заместительной терапии в национальную систему здравоохранения и наркологическую практику, с дальнейшим расширением и масштабированием в Казахстане, а так же разработать механизмы для доступа к лечению опиоидной заместительной терапии в условиях стационаров (тубдиспансер, родильные дома и другие)

В Казахстане отсутствуют исследования и дезагрегированные данные в открытых источниках в отношении женщин-заключенных. В пятом периодическом докладе государство приводит данные о законодательных актах, которые обеспечивают доступ к медицинским услугам для женщин-заключенных. Но, это не отвечает на вопрос о том, удовлетворяет ли это потребности женщин-заключенных.

Мы рекомендуем:

Провести исследования о степени удовлетворения услугами по сохранению сексуального и репродуктивного здоровья женщин в местах лишения свободы, включая данные о женщинах, живущих с ВИЧ и наркозависимых, характеризирующие их доступ к антиретровирусному лечению и наркологической помощи, включая опиоидную заместительную терапию.»

Mexico: Local congressman calls for the repeal of legislation criminalising people with HIV in Mexico City Federal District

Published in 20 minutos on March 12, 2019 (Google translation, for article in Spanish, please scroll down)

Local deputy calls for repeal of criminalization of HIV patients

Local Congressman Temístocles Villanueva Ramos considered that the authorities of Mexico City are obliged to provide adequate information, education and support, to guarantee access to means of prevention and treatment, as well as to eradicate the criminalization of those suffering from HIV and other sexually transmitted infections.

Presenting an initiative that reforms Article 76 and repeals Article 159 of the Criminal Code of the Federal District, the legislator for Morena indicated that criminalizing diseases such as the Human Immunodeficiency Virus (HIV) hinders the duty of the authorities to guarantee public health while respecting human rights.

“The criminalization of HIV generates more harm than benefits in public health and human rights, so this initiative aims to repeal the article and reform the other to eliminate sentencing and the type of transmission risks” said the legislator.

He explained that currently Article 159 of the Criminal Code treats sexually transmitted infections differently from any other diseases since it specifically penalizes the health condition of the active subject, which causes a discriminatory distinction between people who live with a disease acquired by sexual infection and those who have some other disease acquired by other means,

“The penalty for exposure to infection is based on the risk of harm, not on the harm itself, which overstates the responsibilities of people with HIV, limiting their adequate access to justice,” he lamented.

Villanueva Ramos said that in Mexico, as well as in other countries around the world, people with HIV are subject to criminal law when they expose other people to the virus. However, according to UNAIDS, there is no evidence that these measures generate justice or prevent the transmission of the virus.

“If penalties for people with HIV and sexually transmitted infections (STIs) are eradicated, discrimination is reduced and cultural barriers to timely detection and prevention are eliminated,” he said.

Villanueva Ramos warned that the main problem with the classification of “exposure to infection”, both in the Federal Criminal Code and in local codes, is the ambiguity of the definition of incriminating behaviours, so that the jurisdictional authority is the one who decides in most cases which diseases are considered serious or which behaviours are punishable.

This type of measures that end up violating the human rights of people with HIV without contributing to the eradication of the epidemic can also be observed in other countries,” he said.

Pide diputado local pide derogar criminalización de enfermos de VIH

El diputado local Temístocles Villanueva Ramos consideró que las autoridades de la Ciudad de México están obligadas a suministrar información, educación y apoyo adecuados, así como garantizar el acceso a los medios de prevención y tratamientos, así como erradicar la criminalización de quienes padecen VIH y otras infecciones de transmisión sexual.

Al presentar una iniciativa que reforma el Artículo 76 y se deroga el Artículo 159 del Código Penal del Distrito Federal, el legislador por Morena indicó que criminalizar las enfermedades como el Virus de la Inmunodeficiencia Humana (VIH) obstaculiza el deber de las autoridades para garantizar la salud pública respetando los derechos humanos.

“La criminalización del VIH genera más daños que beneficios en la salud pública y los derechos humanos, por lo que la presente iniciativa tiene como objeto derogar el artículo y reformar el que le hace referencia para eliminar la pena y el tipo de Peligro de Contagio”, dijo el legislador capitalino.

Explicó que actualmente el Artículo 159 del Código Penal da un trato distinto a las infecciones de transmisión sexual respecto a cualquier otra enfermedad, ya que se penaliza específicamente la condición de salud del sujeto activo, lo que provoca una distinción discriminatoria entre las personas que viven con una enfermedad adquirida por contagio sexual y quienes tienen alguna otra enfermedad adquirida por otros medios.

“La pena por Peligro de Contagio se basa en el riesgo de daño, no en el daño mismo, lo cual sobredimensiona las responsabilidades de las personas con VIH, limitando su acceso adecuado a la justicia”, lamentó.

Villanueva Ramos manifestó que en México, así como en otros países del mundo, a las personas con VIH se les aplica el derecho penal cuando exponen a otras personas, no obstante, de acuerdo con Onusida, no hay datos que comprueben que estas medidas generen justicia o que se prevenga la transmisión del virus.

“Si se erradican las penalizaciones a las personas con VIH e infecciones de transmisión sexual (ITS) se disminuye la discriminación y se eliminan las barreras culturales para la detección oportuna y la prevención”, aseguró.

Villanueva Ramos alertó que el principal problema de la tipificación de “Peligro de Contagio”, tanto en el Código Penal Federal como en los códigos locales es la ambigüedad de la definición de las conductas incriminatorias, por lo que la autoridad jurisdiccional es quien decide en la mayoría de las ocasiones qué enfermedades se consideran graves o qué conductas son las punibles.

“Este tipo de medidas que terminan violentando los derechos humanos de las personas con VIH sin aportar a la erradicación de la epidemia también se pueden observar en otros países”, refirió.

US: Indiana considers bill modernising laws related to HIV to reflect current science

HIV Modernization Legislation Considered By Lawmakers

A bill to modernize Indiana laws related to HIV, or human immunodeficiency virus, was heard by lawmakers Wednesday. The proposal would update laws to reflect current science and medicine.

Indiana laws related to the transmission of HIV were written in the ’90s. Rep. Ed Clere (R-New Albany), who authored the bill, says a lot has changed since then.

“When I was in high school HIV was a death sentence and it’s not today, thankfully,” says Clere. “Today it’s a chronic condition.”

IU School of Liberal Arts at IUPUI Associate Professor Dr. Carrie Foote leads Indiana’s HIV Modernization movement. She has lived with the virus for 30 years.

“Thanks to the advances in modern medicine, I am here with a very successful career and my husband and teenage son do not have HIV,” says Foote.

The bill removes stigmatized legal language, changes penalties and updates duty to warn laws. Dr. Bree Weaver, HIV expert at Indiana University’s School of Medicine, says people don’t get tested for fear of prosecution.

“Outdated and stigmatizing laws are negatively affecting our ability to bring people with HIV into care and thereby bring the HIV epidemic to an end,” says Weaver.

HIV modernization legislation can encourage testing, reduce stigma and eliminate barriers to effective treatment.

Amendments will be made to the bill before a committee vote.

Canada: Advocacy groups call on provinces to follow the Justice Department's directive to limit prosecutions for HIV non-disclosure

Published in The Canadian Press on February 4, 2019

Groups want provinces to have consistent policies on limiting HIV prosecutions

VANCOUVER — Advocacy groups are calling on provinces to follow the Justice Department’s directive to stop unjustly prosecuting HIV-positive people for not disclosing their status if there is no chance they could transmit the virus to their sexual partners.

The directive to limit prosecutions involving people who are on HIV treatment was issued in December but applies only to federal Crown attorneys in the three territories.

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said international scientific consensus on HIV transmission was reviewed by the Public Health Agency of Canada and informed the federal decision.

Ontario had already amended its policies but in a limited way to no longer prosecute people with a suppressed viral load and Elliott said Alberta has said in a letter to the network it has done the same but without stating that in a policy.

The federal directive goes further in saying people who also use a condom or engage in oral sex should generally not face serious charges such as aggravated sexual assault.

“We’ve written to all provincial attorneys general following the federal directive to say ‘Here’s the federal directive. We reiterate to you what the science is telling us and public-interest reasons for you to appropriately limit the use of criminal law.’ ”

Inconsistent policies mean that HIV-positive people in most provinces may fear being threatened with prosecution by partners who have no basis for a complaint and could even shun treatment based on stigma and discrimination, Elliott said.

In July 2018, scientists from around the world, including Canada, published a consensus statement on HIV transmission in relation to criminal law in the Journal of International AIDS Society. It said correct use of a condom prevents transmission and that possibility is further decreased or eliminated when someone has a viral load that is low or undetectable.

The Canadian HIV/AIDS Legal Network and other organizations are currently pushing Attorney General David Eby to limit HIV prosecution in British Columbia.

“There is not a single circumstance identified in the current BC Prosecution Service policy where they say we will not prosecute even though both Ontario and the feds and Alberta, in a letter, have somehow been able to clearly state that no, we will not prosecute in our jurisdiction someone who has a suppressed viral load.”

Eby was not available for comment.

Dan McLaughlin, spokesman for the prosecution service, said the province is reviewing its policy and has been considering amendments to incorporate the directive of the federal attorney general.

The review will endeavour to ensure B.C.’s policy “addresses both public safety concerns and the issues of fairness and equity in a manner consistent with the law,” he said in a statement.

Elliott, who will be one of the speakers on the issue Tuesday at Simon Fraser University, said about 210 people across the country have been prosecuted for alleged HIV non-disclosure, the second-highest number in the world, after the United States.

Valerie Nicholson of Vancouver has been HIV-positive since 2004 and said her viral load has been negligible since 2008 because of the antiretroviral medication she takes.

Nicholson, who is a member of the Canadian Coalition to Reform HIV Criminalization, said B.C. is “behind the times” with its disclosure policy.

She said she always reveals her status to sexual partners but that information was used against her by a man who informed her a year and a half after their relationship ended that she transmitted the virus to him and he would call police.

“I lived in fear for six months waiting for that knock on the door for the cops to be there,” she said. “I work in this field and if that can do that to me what does it do for someone (else)? Do they stay in an abusive relationship?”

Her big worry was that she had no way to prove she’d had a conversation with the man about her HIV status at the beginning of their relationship, Nicholson said.

Angela Kaida, a Simon Fraser University global health epidemiologist with an interest in the links between HIV and sexual and reproductive health, said the evolving conversation around the virus that is treatable needs to include the latest scientific evidence.

“People can live a normal life expectancy, they can have babies, those babies can be HIV-negative and healthy. People can have sex without a condom and not transmit HIV,” said Kaida, who will also be a featured speaker at the university on Tuesday.

“We have that science but what we haven’t resolved is the stigma, the discrimination and misinformation about HIV. What the evidence tells us that even if we criminalize people it’s not serving a public health goal.”

[Update] US: Missourians living with HIV testify in House committee hearing in support of proposals to modernise HIV criminalisation laws

Published in Houston Herald on Feb. 4, 2019

By Alexis Allison

Proposals to reduce criminal HIV exposure penalties encourage prevention

JEFFERSON CITY — LaTrischa Miles doesn’t spit when she runs.

A mother of three, the treatment adherence supervisor at Kansas City Health Center was diagnosed with HIV in 1995. She remembers the day like her birthday, and she remembers it when she’s running.

“Running is not a pretty sport. You see a lot of things when you’re running. You smell a lot of things when you’re running,” Miles said. “A lot of runners get dry mouth, and they spit, a lot. But I dare not. Because if I spit … I may get arrested at the finish line.”

Current Missouri law makes it a felony for a person knowingly infected with the human immunodeficiency virus to “recklessly” expose someone else without their knowledge or consent — whether or not the person meant to do so, and whether or not the victim contracted HIV. The law lists sex, needle-sharing and biting as methods of transfer.

It’s not clear whether spitting during a half-marathon violates the law, but that uncertainty is part of the problem. “As a person living with HIV,” Miles said, “I’ve lived in the shadow of these criminal laws.”

But for the second year in a row, Reps. Tracy McCreery, D-St. Louis, and Holly Rehder, R-Sikeston, have filed separate but similar bills to modernize what some call the “criminal HIV exposure” law.

Each proposal would apply penalties currently reserved for exposing someone to HIV to other “communicable diseases,” such as hepatitis C or HPV, and minimize the punishment for those convicted. The proposals also update the law’s language to reflect current understanding about how HIV is transmitted.

Miles and a slew of public health advocates, students and Missourians living with HIV testified in a House committee hearing Monday in support of the proposals. The witnesses emphasized the need for a revised bill that would reduce stigma, encourage people to know their status and reflect modern science.

“So much has changed. HIV is no longer a death sentence. It’s a chronic disease. It’s a human disease,” Miles said. “Persons living with HIV that once took 16 pills a day … now have the option to take one pill a day.”

Lawmakers passed the original bill in the late ‘80s, an era when the rampant spread of AIDS through sex made lovers into killers, and the law ensured they would be punished accordingly. Mere exposure can lead to a class B felony conviction. If the victim contracts HIV, the charge bumps up to a class A felony, punishable by up to 30 years or life in prison. It’s the same consequence in Missouri for murder.

Both proposals would consider whether the person with a communicable disease intended to transmit it to someone else, and the consequences would be less severe. Rehder’s bill makes knowingly exposing another person to a communicable disease a class C felony; if transmission occurs, the charge becomes a class B felony.

“For comparison’s sake, if you’re driving while intoxicated and hurt someone but don’t kill them in Missouri, it’s a class C felony,” Rehder said. “If you’re driving while intoxicated and in an act of criminal negligence you cause the death of someone, then it’s a class B felony, so that makes it more consistent.”

McCreery’s bill offers a less severe punishment, diminishing the consequences for exposing another person to a communicable disease to a class B misdemeanor — or a class A misdemeanor if the victim contracts the disease.

The severity of the current law also serves as a disincentive for people to know their HIV status, Rehder said. If a person doesn’t know they have HIV, they can’t be convicted of exposing the virus to another person.

And, Rehder said, people who are unaware of their positive status are responsible for 90 percent of HIV transfer — and that ignorance is a public health issue.

“The bottom line is, we want people to get tested and know their status and get treatment,” she said.

Another strategy the proposals encourage is prevention. Under the current law, condom use — which the Centers for Disease Control and Prevention recommends as a preventative strategy — is not a defense. The new proposals note that using science-based, preventive measures (including condoms) could serve as evidence that the person with the disease did not intend to expose or transmit it.

The proposals offer a few more updates based on the scientific advancements that have happened in the last 30 years. For one, they’ve removed “biting” from the list as a way to transfer HIV. In fact, transmitting HIV via biting is extremely rare — so rare that the CDC notes it’s only happened when the bite led to “severe trauma with extensive tissue damage and the presence of blood.”

McCreery’s bill removes the current law’s enhanced punishments for HIV-positive sex workers; Rehder’s does not address it. McCreery’s bill also eliminates punishments for a person with HIV or hepatitis who endangers a correctional or mental health employee.

The current law lists exposure to feces, urine or saliva as a means for transmission. Rehder’s version no longer specifically penalizes HIV or hepatitis and applies only in the case of exposure to “bodily fluids … scientifically shown to be a known means of transmission of a serious infectious or communicable disease.”

Rehder acknowledged that neither proposal is perfect, and the final product may lie somewhere between the two.

“We’re working closely together to present Missouri-specific options to update Missouri’s antiquated HIV laws,” McCreery said in an interview after the hearing. “We wanted to send a strong message to Missourians that this is a nonpartisan issue.”

Published in Fox2Now on December 1, 2018

Lawmakers, health officials push Missouri HIV law rewrite

JEFFERSON CITY, Mo. – Some Missouri legislators and public health professionals are calling for a rewrite of the state’s HIV laws, which they say are outdated and medically inaccurate.

The St. Louis Post-Dispatch reports that Republican Rep. Holly Rehder and Democratic Rep. Tracy McCreery proposed bills in the last legislative session to reduce the state’s penalties for exposing someone to HIV. They plan to present the same bills in the 2019 session.

Missouri’s roughly 30-year-old law states that an HIV-positive individual could be convicted of a felony if he or she exposes a partner to the disease without the partner’s knowledge or consent. The law gives a minimum 10-year sentence for transmitting HIV and minimum five-year sentence for knowingly exposing someone to HIV.

Advocates say such laws result in questionable prosecutions and negative public health outcomes.

US: Oklahoma State House representative files bill that would amend the law criminalising the transmission of STIs

Legislation would change STD criminal statutes

OKLAHOMA CITY – An Oklahoma lawmaker filed a bill that would amend the state’s criminal statutes regarding sexually transmitted diseases. Specifically, the bill would increase the number of behaviors considered criminal but reclassify all of the crimes as misdemeanors.

Oklahoma already has a law that criminalizes the knowing and deceptive transmission of infections, such as syphilis, smallpox and HIV. If a person keeps the diagnosis a secret from a partner and gives the partner the disease, the resident could face a felony.

Newly elected Rep. Andy Fugate, D-Oklahoma City, filed the measure that would add a slew of diseases to the list and expound on the kind of behavior considered criminal, but it would drop the maximum penalty.

House Bill 1858 would add about half a dozen diseases to the state statute on STDs. That includes some household names, such as genital herpes and chlamydia. However, it also includes several diseases that aren’t common in the United States or other developed countries, such as chancroid and granuloma inguinale.

Under current law, residents are culpable if they are infected and intentionally or recklessly spread their infections. Fugate’s bill would change that standard. The proposal would affect residents who know they are infected and either intentionally spread it or engage in conduct that poses a substantial risk of transmission while the other person is unaware the resident is infected.

The bill creates an exemption for residents who are undergoing treatment and have displayed good faith in complying with their physician’s prescribed regimen. It also exempts residents who are following behaviors recommended by a public health official, such as using condoms.

Current law makes these crimes a felony and punishable by at least two but up to five years in state prison. The new law would drop that to a misdemeanor, which could carry a sentence of up to one year in county jail or a fine of $1,000.

Fugate did not respond to requests for comment.

The Oklahoma State Department of Health reported in August that the state saw 31,779 cases of chlamydia, gonorrhea and syphilis diagnosed in 2017, an increase from 29,716 reported in 2016. The most significant increase was found in the number of syphilis cases, with an increase of 36.5 percent in one year. Reports indicate an increase of nearly 20 percent in the number of gonorrhea cases.

The United Health Foundation released America’s Health Rankings in December, in which it ranked Oklahoma 47th in overall health. The same data showed that Oklahoma’s rate of chlamydia far outpaced the nation’s. Oklahomans were diagnosed at a rate of 548.4 per 100,000, whereas nationally the rate was 497.3 per 100,000. Oklahoma came in at 38th in terms of chlamydia diagnoses. Alaska came in at 50th with 771.6 cases per 100,000.

Nicole McAfee is the Smart Justice Campaign manager for the American Civil Liberties Union of Oklahoma. She said Oklahomans on each side of the aisle are working to reform the criminal justice system, and that will require approaching issues like this one differently.

“What we ultimately need to do is decarcerate our prisons and jails,” her written statement says in part. “That requires thinking twice about our immediate reaction to use carceral punishment as a response to a public health crisis.”

Canada: The Women’s Legal Education and Action Fund (LEAF) publishes a position paper proposing a feminist approach to law reform on HIV non-disclosure

The Women’s Legal Education and Action Fund (LEAF) has written a position paper proposing a feminist approach to law reform on HIV non-disclosure.

LEAF supports the federal government’s recent prosecutorial directive intended to reduce the over-criminalization of those living with HIV/AIDS. Canadian law currently criminalizes HIV non-disclosure where a person who is HIV-positive exposes their sexual partner to a significant risk of serious bodily harm—which in law includes a realistic possibility of HIV transmission. Most cases are prosecuted as aggravated sexual assaults, which is punishable by a maximum life sentence. As of December 2018, the Attorney General of Canada will not prosecute charges of HIV non-disclosure if a person living with HIV has maintained a suppressed viral load, used condoms, or engaged only in oral sex.

Women’s rights are also engaged by this area of law. Women are often complainants in these cases—nearly 20% of women with HIV report having acquired the virus through sexually coercive experiences. And HIV non-disclosure prosecutions have led to an increase in women, particularly marginalized women, being convicted of aggravated sexual assault. Almost 80% of women living with HIV are Indigenous or racialized, and they already face serious over-criminalization. Prosecuting HIV non-disclosure as a sexual offence has distorted concepts about sex and consent that are foundational to women’s equality – in an attempt to fit HIV non-disclosure into sexual assault law, courts have narrowed the scope of sexual activity that requires consent in law and risked introducing discriminatory myths and stereotypes into the criminal trial.

This is why LEAF is recommending further reforms that will ensure meaningful protections for women’s equality rights—especially for marginalized women. Most importantly, HIV non-disclosure should not be treated as a sexual offence. This would protect the equality-enhancing purpose of sexual assault law by affirming a concept of consent that is rooted in sexual autonomy. Where HIV non-disclosure results in actual transmission of the virus, prosecution may be appropriate under non-sexual Criminal Code offences. This would reduce the punitive over-criminalization of people living with HIV, while protecting women who contract HIV from partners who take no care to prevent transmission. There are no Canadian cases where an accused responsibly used a condom or had an undetectable viral load and the virus was nonetheless transmitted. Finally, prosecutorial guidelines should ensure that HIV positive women who are victims of violence, coercion or sexual assault are not prosecuted for their failure to disclose their HIV status when that failure is a result of the violence or threats of violence committed against them.

“In addition to raising significant concerns for the equality and dignity of those living with HIV, the law of HIV non-disclosure also impacts women’s equality rights,” says Karen Segal, LEAF Counsel. “LEAF seeks to ensure that women’s equality is specifically attended to in any future law reform initiatives, so that women are protected from sexual violence and from punitive over-criminalization, and so that the right to bodily and sexual autonomy remains the foundational concept in the law of sexual offences.”

Read LEAF’s position paper here

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.

For media inquiries, please contact:

Karen Segal, Counsel

Women’s Legal Education and Action Fund

416.595.7170 x2003

k.segal@leaf.ca

US: New legislation updates Michigan's HIV disclosure law, reflecting advances in HIV science

Source Michigan Coalition for HIV Health and Safety – Press release January 9, 2019

MICHIGAN MAKES STRIDES IN MODERNIZING HIV DISCLOSURE LAW

January 8, 2019 — LANSING, MI. After five years of work by the Michigan Coalition for HIV Health and Safety with the Michigan Department of Health and Human Services (MDHHS), advocates living with HIV and other national and local partners, Michigan’s HIV disclosure law has been modernized.

The new legislation, HB 6020 and HB 6021, was introduced by State House Representative Jon Hoadley (D-Kalamazoo) and was supported by the Republican majorities in the House and Senate. After passing both chambers, the bill was presented to Governor Snyder who signed the bill December 27, 2018.

Previously, a person living with HIV (PLHIV) could face a felony up to 4 years in prison for not disclosing their HIV status prior to any type of sexual penetration. The degree of risk of HIV transmission was not a factor in the statute; including circumstances where there was no HIV transmission, nor even any risk of HIV transmission.

The amended law removes those living with HIV who are on treatment and virally suppressed-posing no risk of transmitting HIV-from being subject to prosecution. It also narrows the scope of sexual activities subject to prosecution, from “any type of sexual penetration to only “vaginal and anal sex.” Oral sex, which poses no or negligible risk of transmission regardless of whether the person with HIV is on treatment or virally suppressed, is no longer subject to prosecution.

For PLHIV who are not on treatment and not virally suppressed, it remains a felony if they do not disclose and do transmit HIV sexually. If they do not disclose and do not transmit, the penalty has been reduced to a misdemeanor in the amended statute. Any person with a “specific intent” to infect another person also remains subject to prosecution.

“The Michigan Coalition for HIV Health and Safety (The Coalition) salutes and applauds Rep. Hoadley’s effort in progressing a decades old law and thanks our partners in the coalition, the Sero Project for their guidance and MDHHS for leading the effort,” states Kelly Doyle, Executive Director of CARES (Community AIDS Resource and Education Services of Southwest Michigan). “Rep. Hoadley has worked with coalition partners to seek advice and leadership from PLWH and those who provide care for PLWH throughout the state.”

“I’m encouraged that the legislature understands the advances in HIV science and look forward to continuing efforts that support PLWH,” states Pat Clark, advocate living with HIV.

“The previous law needed immediate attention and updating from its inception 30 years ago,” said Curtis Lipscomb of LGBT Detroit. “As a partner of The Coalition, modernizing Michigan’s HIV disclosure law significantly impacts our state’s residents who are affected by HIV and AIDS. Although the new law doesn’t wave the magic wand to solves all immediate concerns, we have made progress that makes Michigan safer and smarter.”

The new law reflects the significant advances in HIV science, particularly concerning how viral suppression impacts transmission risks. Viral load tests measure the amount of HIV in the blood of a person living with HIV; effective HIV treatment can suppress the level to below the limits of detectability by contemporary technology. When the viral load cannot be detected, the person with HIV is not at risk of transmitting HIV to their sexual partners.

“My hope is that The Whitmer Administration invests in educating Michiganders living with HIV about the modernized law and the importance for getting tested for HIV,” Lipscomb adds. “The work of The Coalition will continue to modernize and improve this bill to include PrEP and condom usage as well as work towards eliminating racial disparities in HIV healthcare.

Contact Kelly Doyle for further information at (269) 806-3970.

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The Michigan Coalition for HIV Health and Safety, founded in 2013, works to modernize Michigan’s HIV response to increase the health outcomes and safety of all Michiganders. The Coalition includes more than 30 Michigan non-profit organizations.

CARES was founded in 1985 and supports 10 counties in Michigan. Its mission is to maximize the quality of life for people living with HIV and to minimize the transmission.

LGBT Detroit, founded in 1994, commits to furthering its mission, increasing the prominence and visibility of Detroit’s LGBT culture, and building a strong, healthy and vibrant community, with a focus on youth and young adult development, sexual orientation and gender identity education and advocacy, and emotional and physical well-being.