Canada: Over 150 Canadian organisations call on Federal Government to reform the Criminal Code

Time to act: Over 150 organizations across Canada call on Federal and Provincial Governments to end unjust criminalization of HIV

For The First Time, The HIV Community And Other Concerned Organizations Are Calling On The Federal Government To Reform The Criminal Code.

TORONTO, November 27, 2017 — With World AIDS Day just a few days away, the Canadian Coalition to Reform HIV Criminalization (CCRHC) has released a joint Community Consensus Statement endorsed by over 150 organizations across the country, from the HIV sector and beyond. Developed through several months of cross-country consultation, the statement shows clear consensus against the current overly broad use of the criminal law against people living with HIV and the urgent need for action from federal, provincial and territorial governments.

For the first time, the HIV community and other concerned organizations are calling on the federal government to reform the Criminal Code. They are also calling on federal and provincial Attorneys General to develop sound prosecutorial guidelines to prevent further miscarriages of justice, and for training of police, prosecutors and judges.

A year ago, on World AIDS Day 2016, federal Justice Minister Jody Wilson-Raybould acknowledged that the “over-criminalization of HIV non-disclosure” contributes to stigma and undermines public health, and that the criminal justice system has not caught up to the existing science. Indeed, Canadian scientists have repeatedly expressed their concern about the misuse of the criminal law.

“That was a welcome statement by the Justice Minister,” said Chad Clarke, a member of the Coalition who has spoken publicly about the toll on him and his family of being prosecuted and imprisoned. “People living with HIV in Canada continue to be singled out for prosecution and sent to jail for allegedly not disclosing their status to a sexual partner even if they have no intent to harm their partners, take precautions to protect their partner and do not transmit the virus. People are being prosecuted even when there is little or no possibility of transmission.”

After a year of study, it is time to act.

The Community Consensus Statement declares that, in accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.

“With more than 200 prosecutions to date, Canada has the third-largest total number of recorded prosecutions for alleged HIV non-disclosure in the world, and one of the highest rates of prosecution in the world. This is simply not acceptable,” said Cécile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, a member of the Coalition. “People accused of HIV non-disclosure most often face charges of aggravated sexual assault, one of the most serious charges in the Criminal Code. Conviction carries a maximum penalty of life imprisonment and mandatory designation as a sex offender. This approach has been criticized both domestically and internationally, including by United Nations expert bodies.”

“People living with HIV in Canada deserve better and demand better,” said Alex McClelland, a member of the Coalition’s steering committee and a researcher at Concordia University whose current project documents the first-hand experience of people who have faced charges for allegedly not disclosing their HIV status. “Right now, lives are being ruined by an outdated and stigmatizing approach to criminal justice.”

“We can’t ignore how the misuse of the criminal law, including sexual assault charges, is harming some of those people living with HIV who are most vulnerable,” said Muluba Habanyama, a member of the Coalition who was born with HIV. “It is time that the federal and provincial ministers of justice take action and work with stakeholders—people living with HIV, HIV organizations and service providers, women’s rights advocates and scientific experts—to limit the unjust use of criminal law which discriminates against people living with HIV.”

The Community Consensus Statement comes shortly before the UNAIDS Executive Director arrives in Ottawa for an official visit in conjunction with World AIDS Day (from November 29 – December 1). UNAIDS has previously recommended much narrower limits on the use of the criminal law than is currently the case in Canada.

The Community Consensus Statement, including the full list of endorsers, is available online.

About The Canadian Coalition To Reform HIV Criminalization

The Canadian Coalition to Reform HIV Criminalization (CCRHC) is a national coalition of people living with HIV, community organizations, lawyers, researchers and others formed in October 2016 to progressively reform discriminatory and unjust criminal and public health laws and practices that criminalize and regulate people living with HIV in relation to HIV exposure, transmission and non-disclosure in Canada. The Coalition includes individuals with lived experience of HIV criminalization, advocates and organizations from across the country. It includes a steering committee on which a majority of members are people living with HIV.

 

Malawi: Human Rights Activists celebrate adoption of amended HIV Law that removes rights-infringing provisions (Press Release)

PRESS RELEASE 28 November 2017

HUMAN RIGHTS ACTIVISTS CELEBRATE MALAWI’S ADOPTION OF AMENDED HIV LAW THAT REMOVES RIGHTS-INFRINGING PROVISIONS

Lilongwe – On Tuesday, 28 November, Malawi Members of Parliament voted to reject coercive and criminalising provisions that threatened human rights in a long-deliberated HIV (Prevention and Management) Bill.

Activists and people living with and affected by HIV celebrated outside Parliament after having protested for months against rights-infringing provisions in the HIV Bill, tabled earlier this year. The Bill, which had its origins in a 2008 Law Commission Report, included provisions to make HIV testing and treatment mandatory for select populations on a discriminatory basis, and provisions that would criminalise HIV exposure and transmission, amongst others.

Civil society and activists argued that these provisions would violate the Malawi Constitution, be at odds with international best practice, and compromise the country’s efforts to advance HIV treatment and prevention.

On Tuesday, Members of Parliament debated amendments to the Bill advanced by Members and its HIV Committee. Minister of Health, Hon. Atupele Muluzi, urged Members to endorse these amendments when adopting the Bill, emphasizing that criminalising HIV had negative public health implications. Parliament voted to support all the amendments proposed by the HIV Committee and, in addition, voted to delete a contentious provision relating to “deliberate infection” with HIV. After a second reading, the Bill was passed subject to these amendments.

Activists celebrate the passing of the amended HIV/AIDS Bill today in Lilongwe.
Activists celebrate the passing of the amended HIV Bill today in Lilongwe. (Source SALC)

“It is thanks to women activists who fought to have their voices heard that Parliament has recognised that abandoning human rights protections will only drive vulnerability to HIV,” said Sarai-Chisala Tempelhoff of the Women Lawyers Association (WLA Malawi). “When the evidence tells us women and girls should be at the forefront of our response to HIV, it is important to understand the criminalisation would only increase the risk of violence and abuse that Malawian women face; strengthen prevailing gendered inequalities in healthcare and family settings; and further drive stigma, fear and discrimination around HIV.”

“Mandatory testing and treatment and criminalization of HIV transmission and exposure are counter-productive to reaching the goals of the HIV response in Malawi. We are glad our voices have been heard through the work of organisations like ICW Malawi, the Coalition of Women Living with HIV/AIDS (COWLHA), the Female Sex Workers Association, the Women Farmers Coalition and others. Human rights have prevailed today in Malawi.” said Clara Banya of the International Community of Women Living with HIV (ICW) Malawi.

“We are elated that Parliament has chosen to endorse a law based on evidence and reason and not on stigma and fear. It is people who are most marginalized in our society who would suffer most under coercive and criminalising laws – these are people who need society’s support, not punishment.” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).

Gift Trapence, Executive Director of the Centre for the Development of People (CEDEP), agreed, “While we urgently need to embrace key populations to advance human rights and the HIV response in Malawi, the Bill was proposing to create further barriers. While the amended version adopted by Parliament does not speak to key populations directly, we must celebrate that at least it hasn’t added to the legal barriers as initially proposed.”

MacDonald Sembereka, Executive Director of the Mango Key Populations Network said, “As actors in the sector we urge for the prompt assent and implementation of the Act as it is long overdue.”

“We commend and support the incredible advocacy of Malawian civil society and women activists in particular who have refused to be silenced into accepting compromises on punitive laws and policies,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The role of human rights in an effective HIV response is as important now as it has always been.”

“While some provisions remain that are perplexing and of which we should remain wary (such as those placing duties on people living with HIV to adhere to treatment), Parliament’s acceptance of the amendments in the Act is a victory for citizens and supporters of human rights in Malawi who resisted efforts to enact the Bill in its original form at all costs,” said Annabel Raw, health rights lawyer at the Southern Africa Litigation Centre (SALC).

Laurel Sprague, Executive Director of Global Network of People Living with HIV (GNP+) said, “GNP+ applauds the remarkable community effort that focused on education, current science and best practices. Women living with HIV, sex workers, and women lawyers led the way in explaining why punitive laws harm the HIV response and ensuring that a human rights approach is at the centre of Malawi’s HIV response.”

Statement by:

The AIDS and Rights Alliance for Southern Africa (ARASA)

The Centre for the Development of People (CEDEP)

The Centre for Human Rights Education, Advice and Assistance (CHREAA)

The Global Network of People Living with HIV (GNP+)

The International Community of Women Living with HIV (ICW) Malawi

The MANGO Key Populations Network

The Southern Africa Litigation Centre (SALC)

Women Lawyers Association, Malawi

 

ENDS

 

FOR MORE INFORMATION:

Lesley Odendal (Communications Lead, AIDS and Rights Alliance for Southern Africa) Email: communications@arasa.info; Tel: + 27 72 960 8991.

Annabel Raw (Health Rights Lawyer, Southern Africa Litigation Centre) Email: AnnabelR@salc.org.za; Tel: +27 10 596 8538.

 

 

Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results

In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.

The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.

As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).

In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.

In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “.  Thanks to quick action by local activists, the proposed reforms did not pass.

In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison.  A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.

In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections.  Only the states of Aguascalientes and San Luis Potosí do not have this law.

According to data from Letra S, at least 39 people have been prosecuted under this law between 2000 and 2016 on suspicion of having transmitted a sexual infection and / or HIV. The state with the highest number of registered cases is Veracruz, with 15; Sonora follows, with nine; Tamaulipas and State of Mexico, with five; Chihuahua, with three, and Mexico City and Nuevo León with a case.

Last year, the Veracruz Multisectoral Group on HIV / AIDS and STIs and the National Commission on Human Rights challenged the Veracruz law on unconstitutionality grounds at the Supreme Court of Justice of the Nation. The challenge was supported by HIV JUSTICE WORLDWIDE in a widely reported press conference last year.  However, the Supreme Court has yet to rule.

As a result of the meeting, the Mexican Network of organisations against the criminalisation of HIV was formed, bringing together 29 organizations from all over the country. During, and immediately following the meeting, the Network drafted an 11-point Declaration addressed to various governmental agencies in charge of responding to the epidemic, as well as to society in general.

Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.

The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.

With two weeks of the meeting, Network representatives met with Congresswoman Laura Beristain, who had proposed the new unjust, overly broad HIV criminal law in Quintana Roo. She listened to their arguments, read the Declaration, and immediately gave a firm commitment to repeal Quintana Roo’s problematic provisions in Article 113.

Watch and share short video below about the meeting and the Network’s immediate advocacy win.

Canada: Endorse the Consensus Statement by the Canadian Coalition to Reform HIV Criminalization

Endorse the CCRHC Consensus Statement: End Unjust Prosecutions for HIV Non-disclosure

Posted on October 27, 2017

We find ourselves at a crucial moment in our efforts to reform discriminatory and unjust laws and practices that criminalize people living with HIV.

The Canadian Coalition to Reform HIV Criminalization (CCRHC) has developed a Community Consensus Statement on actions federal, provincial and territorial governments must take to address the overly broad use of the criminal law in cases of alleged HIV non-disclosure.

In developing this statement, the CCRHC consulted with people living with HIV, service providers, communities affected by HIV and over-criminalization, scientific experts and others, through multiple rounds of in-person and electronic consultation throughout Canada.

We are now seeking wide endorsement by organizations in Canada involved in human rights and the response to HIV with the aim of building a common advocacy agenda aimed at limiting unjust and harmful prosecutions.

Please read and sign on to the Community Consensus Statement on behalf of your organization today using this link:  https://www.surveymonkey.com/r/CCRHCstatement.

 

Mexico: Lawmakers and civil organisations commit to reform HIV criminalisation law in Quintana Roo

They will reform Penal Code to protect people with HIV

Lawmakers and civil organizations agree to push for changes to article 113

Saturday, October 21, 2017

Considering that article 113 of the Criminal Code of Quintana Roo may violate the human rights of people suffering from diseases such as HIV / AIDS, members of the 40th Legislature committed themselves to progress the analysis of a reform to modify it, or as the case may be, repeal it.

This Friday, Deputy Laura Esther Beristain Navarrete, president of the Commission on Health and Social Welfare and Deputy Alberto Vado Morales, president of the Culture Commission, met with civil organizations dedicated to issues such as HIV prevention and Human Rights of the LGBTQI Community, as well as representatives of the National Human Rights Commission and the Human Rights Commission of the State of Quintana Roo.

After looking at the drafting proposals with respect to the reform of article 113 of the Criminal Code of the State and listening to the arguments of the civil organizations and human rights organizations, it was agreed to push before the Justice Commission of the Congress this article that has been in force since 1991, they said.

It should be noted that Article 113 in its current wording, according to the organizations, criminalizes people living with HIV, implying that people suffering from this disease can be subject to a criminal trial solely because of their health condition, which is a matter of brevity, said the deputies.

During the meeting, topics such as the need to avoid legislative lag and to advance in the opinion of issues that have already been presented by the president of the Health Commission, Laura Beristain and the deputy Alberto Vado, such as reforms to the Civil Code for equal marriages and rights of affiliation of the LGBTTTI community; to the Criminal Code to deal with hate crimes against this sector of the population; the HIV Prevention and Treatment Act and reforms to promote gender identity of transgender people.

For his part, the president of the organization Círculo Social Igualitario, Edgar Mora Ucan, indicated that the repeal of article 113 of the Criminal Code is a watershed moment to legislate with a vision for human rights.

“This is a transcendental fact for the state, is creating the precedent of legislating with a vision for human rights. Only two states in the country do not have this legislation and in Quintana Roo it is being done. The door is being opened to legislate on other human rights issues, “he said.

Published in La Jornada Maya on October 21, 2017

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Reformarán Código Penal para proteger a personas con VIH

Acuerdan legisladores y organizaciones civiles impulsar cambios al artículo 113

La Jornada Maya

Sábado 21 de octubre, 2017Por considerar que el artículo 113 del Código Penal de Quintana Roo puede ser violatorio de los derechos humanos de las personas que padecen enfermedades como VIH Sida, diputados integrantes de la 40 Legislatura se comprometieron a avanzar en el análisis de una reforma para modificarlo y, en su caso, derogarlo.

Este viernes la diputada Laura Esther Beristain Navarrete, presidente de la Comisión de Salud y Asistencia Social y el diputado Alberto Vado Morales, presidente de la Comisión de Cultura, se reunieron con organizaciones civiles dedicadas a temas como la prevención del VIH y promotores de los derechos humanos de la Comunidad LGBTTTI, así como con representantes de la Comisión Nacional de Derechos Humanos y la Comisión de Derechos Humanos del Estado de Quintana Roo.

Luego de un análisis de las propuestas de redacción con respecto a la reforma del artículo 113 del Código Penal del Estado y con los argumentos de las organizaciones civiles y de los organismos de Derechos Humanos se acordó impulsar ante la Comisión de Justicia del Congreso, la derogación de dicho artículo que se encuentra vigente desde 1991, según señalaron.

Cabe destacar que el Artículo 113 en su redacción actual, de acuerdo con las organizaciones, criminaliza a las personas que viven con VIH, lo que implica que las personas que padecen esta enfermedad pueden estar sujetas a un juicio penal únicamente por su condición de salud, tema que es de atenderse a la brevedad, consideraron los diputados.

Durante el encuentro se abordaron temas como la necesidad de evitar el rezago legislativo y que se avance en el dictamen de temas que ya han sido presentados por la presidente la de la Comisión de Salud, Laura Beristain y el diputado Alberto Vado, tales como reformas al Código Civil para los matrimonios igualitarios y derechos de filiación de la comunidad LGBTTTI; al Código Penal para la atender los crímenes de odio hacia este sector de la población; la Ley de Prevención y Tratamiento del VIH y reformas para impulsar la identidad de género de las personas transgénero.

Por su parte el presidente de la organización Círculo Social Igualitario, Edgar Mora Ucan, indicó que la derogación del artículo 113 del Código Penal es parte-aguas para legislar con visión hacia los derechos humanos.

“Este es un hecho trascendental para el estado, está creando el precedente de legislar con visión hacia los derechos humanos. Solo dos estados en el país no cuentan con esta legislación y en Quintana Roo se está haciendo. Se está abriendo la puerta para que se legisle sobre otros temas en materia de derechos humanos” aseguró.

US: California Governor signs landmark bill reforming outdated HIV criminalisation laws

Governor Signs Bill Modernizing California HIV Laws

October 6, 2017

CONTACT: Naina Khanna, naina.khanna.work@gmail.com, 510.681.1169

or Jennie Smith-Camejo, jsmithcamejo@pwn-usa.org, 347.553.5174

Sacramento, Calif.— Governor Jerry Brown today signed into law landmark legislation to reform outdated laws that unfairly criminalized and stigmatized people living with HIV. Senate Bill (SB) 239 was authored by Sen. Scott Wiener (D-San Francisco) and Asm. Todd Gloria (D-San Diego) and cosponsored by Equality California, the ACLU of California, APLA Health, Black AIDS Institute, Lambda Legal and Positive Women’s Network – USA. These organizations are part of Californians for HIV Criminalization Reform (CHCR), a broad coalition of people living with HIV, HIV and health service providers, civil rights organizations and public health professionals dedicated to ending the criminalization of people living with HIV in California.

“Today California took a major step toward treating HIV as a public health issue, instead of treating people living with HIV as criminals,” said Senator Wiener. “HIV should be treated like all other serious infectious diseases, and that’s what SB 239 does. We are going to end new HIV infections, and we will do so not by threatening people with state prison time, but rather by getting people to test and providing them access to care. I want to thank Governor Brown for his support in helping to put California at the forefront of a national movement to reform these discriminatory laws.”

“State law will no longer discourage Californians from getting tested for HIV,” said Asm. Gloria. “With the Governor’s signature today, we are helping to reduce the stigma that keeps some from learning their HIV status and getting into treatment to improve their health, extend their lives, and prevent additional infections. I want to thank Governor Brown for signing SB 239. This action keeps California at the forefront in the fight to stop the spread of HIV.”

SB 239 updates California criminal law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It also brings California statutes up to date with the current understanding of HIV prevention, treatment and transmission. The bill fulfills a key goal of the National HIV/AIDS Strategy and is consistent with guidance from the U.S. Department of Justice and with California’s “Getting to Zero” HIV transmission reduction strategy.

“The passage of SB239 marks tremendous progress for Californians living with HIV. Laws that criminalize HIV positive status are not based on science–they are based solely on hysteria and fear–and essentially create an underclass of people diagnosed with a disease, placing us at risk for discrimination and even violence,” said Naina Khanna, executive director of Positive Women’s Network, a national membership body of women living with HIV and a proud co-sponsor of SB 239. “Today, California has proved once again that is a national leader on protecting safety, dignity and human rights for all its residents.”

Beginning in the late 1980s and at the height of the HIV epidemic, lawmakers passed several laws criminalizing otherwise legal behaviors of people living with HIV and added HIV-related penalties to existing crimes. These laws were based on fear and the limited medical understanding of the time. When most of these laws were passed, there were no effective treatments for HIV and discrimination against people living with HIV was rampant. Research now demonstrates that people living with HIV on effective treatment cannot transmit the virus to their partners. HIV-negative individuals can now take medication, known as PrEP (pre-exposure prophylaxis), to reduce the risk of acquiring HIV by up to 99 percent. SB 239 ensures that these advances inform our laws and the manner in which we address our public health response to HIV.

“With his signature, Governor Brown has moved California’s archaic HIV laws out of the 1980s and into the 21st century,” said Rick Zbur, executive director of Equality California. “SB 239 will do much to reduce stigma and discrimination against people living with HIV – it is not only fair, but it’s good public health. When people are no longer penalized for knowing their status, it encourages them to come forward, get tested and get treatment. That’s good for all Californians.”

In addition to the organizations sponsoring the bill, SB 239 was supported by CHCR members including the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund (MALDEF), the Free Speech Coalition and the Sex Workers Outreach Project (SWOP).

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Californians for HIV Criminalization Reform (CHCR) is a coalition of organizations and individuals dedicated to ending the criminalization of HIV in California. Our mission is to mobilize a broad coalition, including individuals and communities who are disproportionately impacted by HIV, to replace fear-based, stigmatizing laws that criminalize HIV-status with evidence-based, nondiscriminatory laws that protect public health.

US: New coalition in Texas aims to reform HIV criminalisation laws

Reforming HIV Laws in Texas

Lone Star Justice

A new coalition in Texas aims to reform HIV criminalization & find a united voice for people living with HIV

by Chip Alfred

It’s called the Lone Star State to commemorate a single white star that signifies Texas’ battle for independence from Mexico. Now Texans living with HIV are waging another war—fighting a legal system that locks people up for decades for behavior that poses no risk of HIV transmission.

“We need to stop criminalizing people living with HIV,” says Venita Ray, public policy manager at Houston’s Legacy Community Health. Ray, fifty-eight, an African-American attorney, was diagnosed with HIV in 2013. “There’s no evidence to show that criminalization deters behavior, or that it stops transmission. It’s just to punish us for being HIV-positive,” she adds. “If we really want to end the epidemic, we can’t prosecute our way to zero.”

Texas ranks number two in the nation in number of AIDS diagnoses. It’s also the second largest state in the country in both area and population. Unlike most states, however, Texas has no HIV-specific criminal laws. Therefore, the data on the number of HIV criminalization cases and convictions is hard to gather. It also has effectively given prosecutors wide latitude in using general criminal laws to charge HIV-positive defendants with attempted murder and aggravated assault. Texas’ aggravated assault statute makes it a second-degree felony (two to twenty years in jail and a possible fine of $10,000) “to cause serious bodily injury to another or to use or exhibit a deadly weapon in the commission of an assault.” If an aggravated assault is committed against someone the perpetrator knows is a security officer, it’s a first-degree felony (punishable by five to ninety-nine years in prison and a possible fine of $10,000).

What I found most disturbing in researching this article is that the Court of Appeals and the Supreme Court of Texas have consistently upheld aggravated assault convictions in which HIV was considered “a deadly weapon”—even in cases where the only body fluid exchanged was saliva, which has never been documented to transmit HIV.

An HIV-positive man from Texas who spat at a police officer during his 2006 arrest for being drunk and disorderly was sentenced to thirty-five years behind bars by a Dallas court. The Court of Appeals affirmed the verdict, which mandates that the defendant serve at least half of his sentence before being eligible for parole. This was because the jury found that his saliva was a deadly weapon.

In the Texas legislature, there have been recent efforts to enact laws that would make it easier for prosecutors to invade the privacy of HIV-positive defendants and build criminal cases against them for no-risk behavior like spitting. Thanks to advocates like Venita Ray, none of this legislation has passed. “When I’m standing up in front of the legislature, I’m not speaking of a hypothetical person. I’m saying, ‘What you just did impacts me.’ That has power.” Ray, with the support of The Sero Project’s Assistant Director Robert Suttle and Organizing and Training Coordinator Tami Haught under the umbrella of Sero’s Network Empowerment Project, created Texans Living with HIV (TLHIV), the first statewide network of its kind in the U.S. “This network enables Texans with HIV to determine their own priorities, select and hold accountable leadership of their own choosing and to speak with a collective voice,” says Sean Strub, executive director of Sero. “Texas now has the organizational infrastructure to be better prepared to mobilize and advocate on a whole range of issues that affect people living with HIV.”

Venita Ray tells A&U the new coalition of about twenty advocates will focus on ending isolation for PLHIV and eliminating stigma. “The same communities that are already disproportionately impacted by the criminal justice system are the same people impacted most by HIV criminalization—black people, brown people, people living in poverty.”

TLHIV will take on issues that impact the quality of life for people with HIV and criminalization will be one of those. “We want to be that collective voice for people living with HIV in the state of Texas,” Ray explains. “We’re building power amongst ourselves.” The key, she says, is creating an environment where individuals feel safe to stand up, show up and speak up. “We’re building an army and we need them all. I’m a grandmother; I’m an auntie; I’m a yoga teacher. The more people see people like me or your Bible school teacher, the more we humanize this disease. The best thing I ever did was deciding not to be invisible and not be silent anymore.”

Published in A&U on Sept 21, 2017

US: Gael Adrien Mbama explores why California HIV laws are antiquated and must be modernised

Gael Adrien Mbama: HIV laws must be modernized to prevent further stigmatization

More than 119,589 people diagnosed with the human immunodeficiency virus live in California. That diagnosis alone has allowed these people to be stigmatized and receive unfair treatment under the law.

Under the California Code, Health and Safety section 120291, HIV-positive individuals who knowingly expose their partners to the disease risk up to eight years in prison. Because of this law, HIV patients have been singled out and treated as felons, instead of as individuals dealing with a serious disease.

Some lawmakers seem to understand this. California State Senator Scott Wiener introduced Senate Bill 239, which lowers the offense of intentionally exposing others to HIV from a felony to a misdemeanor. While numerous lawmakers have supported the implementation of the bill, others have voiced strong disagreement.

For instance, Republican State Senator Joel Anderson is on record stating that intentionally transmitting any life-altering diseases should require jail time. This stance is shared by other Republican state senators, such as Jeff Stone, who insisted that transmitting HIV should remain a significant crime, as reclassifying this offense to a misdemeanor would be a “miscarriage of justice.”

Despite this harsh opposition, Californians must support SB 239. Passing this bill will help decrease HIV’s prevalence by encouraging people to get tested for the disease, instead of remaining clueless about their health condition, as only those aware of their HIV status can be charged. The bill would ensure that those who are HIV-positive arenot grossly persecuted with felony charges, and would place HIV on the same standardas other communicable diseases.

California’s HIV transmission laws were written in the 1980s, when HIV’s hysteria was at its pinnacle and medication for the disease was nonexistent. These laws allowed law enforcement to prosecute HIV-positive people who exposed the virus to others, even if those exposed ended up not being HIV positive. Ayako Miyashita, director of the Los Angeles HIV Law and Policy Project at UCLA School of Law, said that while scientific advancements over the past three decades have made the eradication of the HIV epidemic possible, the law has not caught up and continues to perceive HIV as an instant, life-ending disease.

Consequently, HIV is treated in California as a criminal issue, rather than a public health problem. And the results are devastating.

Like in too many criminal justice systems throughout the nation, minorities are unfairly targeted by California’s HIV laws. Black and Latino people make up an overwhelming 67 percent of individuals prosecuted for exposing others to HIV despite only representing 51 percent of HIV/AIDS cases in California.

Hussain Turk, a UCLA law alumnus who is HIV-positive, said he thinks California’s current laws promote violence and domestic abuse. Turk said people have used HIV transmission laws as a way to seek revenge against their HIV-positive partners.

This sentiment is echoed by Dr. Edward Machtinger, a UC San Francisco professor of medicine and director of the Women’s HIV Program at UCSF. Machtinger said people can be held hostage in abusive relationships because of their fear of prosecution for being HIV positive.

Machtinger said current criminalization laws written before the existence of effective HIV medications scare people away from being tested and beginning treatment. These laws also increase the risk of more infections by shaming individuals who are HIV positive.

Indeed, because of these laws and the stigmatization that they create, HIV remains a tough disease to disclose.

Today’s HIV medications, if taken regularly, allow people to have undetectable HIV viral loads in their bloodstream and thus, lead lives without the risk of transmitting the virus to their partners.

It is clear SB 239, which is awaiting Gov. Jerry Brown’s approval, must be signed into law given the egregious problems resulting from California’s antiquated legislation.Threatening HIV patients with felonies has never been the appropriate means to tackle the HIV epidemic. HIV-positive individuals will continue to live with the fear that a felony is running through their veins, so long as the archaic laws from the 1980s continue to be enforced.

Of course, many SB 239 opposers believe that decreasing the offense of exposing partners to HIV from a felony to a misdemeanor will lead to a resurgence of new HIV infections. But, as Weiner points out, HIV is the only communicable disease being treated as a felony. Other life-altering diseases, like syphilis for instance, only lead to misdemeanor charges. As such, those who purposely infect their partners will still be prosecuted but on the charge of a misdemeanor, which is the standard for all other serious communicable diseases.

California ranks among the highest number of HIV cases in the nation, so it is crucial to acknowledge the indisputable failures of the current law and support SB 239. This bill can put an end to the discrimination experienced by those who are HIV positive and encourage people to get tested, therefore decreasing infections.

It is time to modernize these laws that promote racial injustice and stigmatization. And ultimately, people who are HIV positive are not felons; they just have an illness.

Australia: Amendment to New South Wales Public Health Act, with its punitive focus on STIs transmission, risks undermining the Act intent

Is one person to blame if another gets a sexually transmissible infection (STI)? In most Australian states, if you have certain STIs, you have a legal responsibility to notify your potential sexual partners.

The NSW government last week passed an amendment to the state’s Public Health Act that increased the associated penalties by doubling the maximum fines and adding potential jail time.

Section 79 (1) of the Act now reads:

A person who knows that he or she has a notifiable disease, or a scheduled medical condition, that is sexually transmissible is required to take reasonable precautions against spreading the disease or condition.

Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.

In addition to increasing potential penalties, the amendment removed an earlier provision mandating disclosure of STI status, replacing it instead with the need for “reasonable precautions”.

This is a positive change for the law that reflects the best available research on STIs and transmission. Yet its coupling with increased penalties has sent a mixed message about sexual health in the state.

Further, the idea that punishing STI exposure or transmission will decrease rates of infection is not supported by global research on HIV, and there is no reason to believe this would be any different for other STIs.

Laws across Australia

Health law is pretty complex and mainly left up to each state and territory. Generally speaking, across Australia you risk some kind of punishment for knowingly infecting another person with what are often referred to as “notifiable diseases”. This list covers a range of infections but STIs include chlamydia, gonorrhoea, syphilis, HIV, shigella, donovanosis, and hepatitis a, b and c.

In some states, notably New South Wales, Tasmania and Queensland, it’s an offence just to knowingly expose someone to an infection, even if they don’t actually become infected. While in other states, like Victoria and South Australia, health acts do not specify penalties for exposure or transmission, referring instead to the respective crime acts. For the most part, curable STIs do not rank as serious enough for criminal prosecution.

What is unique about NSW is that it uses the Public Health Act to single out STIs and describe specific punishments above and beyond other infections.

Although laws in NSW seem unusually fixated on STIs, the move away from mandated disclosure in favour of “reasonable precautions” is a positive step. While disclosure may seem sensible on the surface, it’s not the most effective at preventing transmission. This is because disclosure requires that someone be aware of an infection and many people with an STI don’t realise they are infected. For example, it’s estimated nearly three quarters of chlamydia infections in young people in Australia go undiagnosed every year. Relying on disclosure can, therefore, give people a false sense of security.

There are other more effective strategies than disclosure for protecting someone from infection. With HIV, for example, successful treatment means the risks of transmitting the virus to another person are virtually nonexistent. Under the amended NSW law, treatment could quite rightly be considered a reasonable precaution to avoid transmitting HIV.

But the state’s Public Health Act is relevant to all STIs, not just HIV. For other infections, it’s less clear what precautions might be seen as reasonable. Condoms can offer protection from some infections, but not all, and they are rarely used for oral sex. Given more and more chlamydia and gonorrhoea cases are identified in the throat, this is potentially problematic.

Punishment doesn’t help

Every year, there are over 100,000 STI diagnoses across Australia, the vast majority of which can be cured using antibiotics. Ultimately, public health initiatives aim to reduce new cases and lower the overall amount of infection.

It’s been suggested by public health experts that criminalising transmission can undermine public health efforts by reinforcing stigma and causing people to delay accessing testing, treatment and care.

And in a review of legal conditions around the world, researchers found that there was no link between laws criminalising HIV transmission and lower infection rates. The review also found such laws disproportionately impacted those who may experience marginalisation, such as young people and women.

In reality, situations where an individual recklessly or wilfully places another at risk of an STI are incredibly rare and health officials have many options besides punishment.

As part of their core work, doctors and clinics counsel on and work with people to prevent onward transmission, and in some cases public health orders can be used to compel people to, among other actions, attend counselling and refrain from activities that might spread an infection. In the most extreme situations, criminal charges can be brought on the basis of grievous bodily harm.

Overall, a special and punitive focus to STIs risks further entrenching stigma and undermining the Act’s intent, which is to manage and reduce infection. If there is any hope of reducing STIs in Australia, laws must aim to foster an environment where people feel comfortable, able and willing to get tested and engaged with their sexual health.

While it seems unlikely a rush to prosecute those who expose others to STIs will spring up from this amendment, the law as it is currently written leaves open that rather serious possibility. In NSW and across Australia, health law consistently places the burden of prevention on one partner. In an ideal world, all parties to a sexual encounter take “reasonable precautions” to protect themselves and each other from infection.

Canada: COCQ-SIDA to request a moratorium on criminal prosecutions of HIV non-disclosure in Quebec

Moratorium requested on prosecutions for non-disclosure of HIV (Translation of article in French below)

The Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA) will ask the minister of Justice of Quebec on Tuesday to impose a moratorium on the use of criminal prosecutions against people living with HIV who do not disclose their medical status to their sexual partner, learned The Duty.

This moratorium is called ” right now “, and this, until the end of the consultation undertaken by the federal government in order to reform this regulation. “We hope to give more information on our progress at the end of the year “, has written for Le Devoir a spokesman for the federal department of Justice on Monday evening about this.

Currently, the supreme Court ruled that an HIV-positive person must disclose his/her HIV status to his partner prior to any sexual relationship, unless you meet two requirements, either wear a condom and have a low viral load or undetectable.

“The scientific studies show that the viral load decreases drastically [with the most recent treatments], to a point where HIV is no longer transmitted“, explains a lawyer at COCQ-SIDA, Liz Lacharpagne. That is why the coalition believes that only one of the two criteria should be taken into account.

Since 2010, the COCQ-AIDS has multiplied advances to review the regulation, considered as being discriminatory and outdated, but without success. “The guidelines we asked for were never adopted,” said Ms. Lacharpagne.

“Currently, people living with HIV are the subject of allegations of severe sexual abuse […] even in the absence of intent to cause harm, even when HIV is not passed to the partner, and even when the risk of transmission is negligible, or even zero,” writes COCQ-SIDA in a press release that will be published on Tuesday.

These criminal prosecutions contribute to stigmatize people living with HIV, states the coalition. Ms. Lacharpagne cites the example of high-profile cases where accused persons have been identified publicly as a sex offender. “It does not give a nice image of these people.”

“There is a confusion between the fact of not disclosing [their HIV status] and a sexual assault “, she says.

More lawsuits

COCQ-SIDA is particularly concerned since the beginning of the year, because it has observed a substantial increase in prosecutions for non-disclosure in Quebec. The Devoir reported on this situation in August.

Faced with the refusal of the minister of Justice of Quebec, Stéphanie Vallée, to meet with COCQ-SIDA, and in the context of the increase in lawsuits, the coalition believes that they has no other recourse but to ask for a moratorium. “It is at a political level,” explains Ms. Lacharpagne.

The cabinet of Mrs Valley did not tell le Devoir if it will impose or not such a moratorium. The case depends on the federal government, has reminded the press officer for the minister, Isabelle Married St-Onge, in a reply sent by e-mail.

“Quebec is favourable to the minimization of the stigma of people living with HIV and focuses on the approach set out by the jurisprudence of the supreme Court which provides for a fair balance between the protection of society, victims and the respect for the dignity of people living with HIV “, she adds.

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La Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA) demandera mardi à la ministre de la Justice du Québec d’imposer un moratoire sur les poursuites criminelles contre les personnes vivant avec le VIH qui ne divulguent pas leur statut médical à leur partenaire sexuel, a appris Le Devoir.

Ce moratoire est demandé « dès maintenant », et ce, jusqu’à l’issue de la consultation menée par le gouvernement fédéral dans le but de réformer cette réglementation. « Nous espérons donner de plus amples renseignements sur nos progrès à la fin de l’année », a écrit au Devoir un porte-parole du ministère fédéral de la Justice lundi soir à ce sujet.

Actuellement, la Cour suprême établit qu’une personne séropositive doit divulguer son statut sérologique à son partenaire avant toute relation sexuelle, à moins de remplir deux exigences, soit porter un condom et avoir une charge virale faible ou indétectable.

« Les études scientifiques montrent que la charge virale diminue de façon drastique [avec les plus récents traitements], à un point où le VIH ne se transmet plus », explique l’avocate de la COCQ-SIDA, Liz Lacharpagne. C’est pourquoi la coalition estime qu’un seul des deux critères devrait être pris en compte.

Depuis 2010, la COCQ-SIDA multiplie les démarches afin de revoir la réglementation, jugée discriminatoire et désuète, mais sans succès. « Les directives qu’on demandait n’ont jamais été adoptées », déplore Mme Lacharpagne.

« Actuellement, des personnes vivant avec le VIH font l’objet d’accusations d’agressions sexuelles graves […] même en l’absence d’intention de causer un préjudice, même lorsque le VIH n’est pas transmis au partenaire et même lorsque le risque de transmission est négligeable, voire nul », écrit la COCQ-SIDA dans un communiqué qui sera publié mardi.

Ces poursuites au criminel contribuent à stigmatiser davantage les personnes séropositives, soutient la coalition. Mme Lacharpagne cite en exemple des cas médiatisés où des personnes accusées ont été identifiées publiquement comme des délinquants sexuels. « Ça ne donne pas une belle image de ces personnes ».

«Il y a une confusion entre le fait de ne pas dévoiler [son statut sérologique] et une agression sexuelle », déplore-t-elle.

Plus de poursuites

La COCQ-SIDA est particulièrement inquiète depuis le début de l’année, car elle observe une augmentation importante des poursuites pour non-divulgation au Québec. Le Devoirrapportait d’ailleurs cette situation au mois d’août.

Devant le refus de la ministre de la Justice du Québec, Stéphanie Vallée, de rencontrer la COCQ-SIDA, et dans le contexte d’augmentation des poursuites, la coalition estime qu’elle n’a d’autre recours que de demander un moratoire. « C’est à un niveau politique », explique Mme Lacharpagne.

Le cabinet de Mme Vallée n’a pas précisé au Devoir s’il imposera ou non un tel moratoire. Le dossier relève du gouvernement fédéral, a rappelé l’attachée de presse de la ministre, Isabelle Marier St-Onge, dans une réponse transmise par courriel.

« Le Québec est favorable à la minimisation de la stigmatisation des personnes atteintes du VIH et privilégie l’approche définie par la jurisprudence de la Cour suprême qui prévoit un juste équilibre entre la protection de la société, des victimes et le respect de la dignité des personnes atteintes du VIH », ajoute-t-elle.