Zimbabwe: Activists call for HIV criminalisation law to be scrapped as it reversed public health gains in national HIV response

Paidamoyo Chipunza: Senior Health Reporter

On November 19, 2014, then Chinhoyi regional magistrate Mr Never Katiyo sentenced 39-year-old Nyengedzai Bheka to 15 years in prison for willfully transmitting HIV to a 17-year old pupil. In his ruling, Mr Katiyo said infection of that nature was tantamount to a death penalty on the girl since she was an immature minor. “This is a very rare case that we have had to deal with as the courts and we have to set a precedent that is deterrent to would-be offenders,” said Mr Katiyo.“Although it was a matter involving a single witness the court is convinced that there was deliberate infection.” Bheka’s case serves as both a template for discussion on aptness of wilful transmission of HIV as a law and as precedence to the 1,4 million Zimbabweans estimated to be living with HIV who by virtue of them being HIV positive are ‘‘potential criminals’’.

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 14 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.

To end Aids by 2030, Zimbabwe adopted the United Nations goals popularly referred to as the 90-90-90 targets. These targets entail that at least 90 percent of people living with HIV must be tested by the year 2020. For those diagnosed with HIV, at least 90 percent of them must be on antiretroviral treatment and a further 90 percent of those on treatment must have their viral load fully suppressed by the year 2020.

“How do you get tested when you know that you risk being a criminal?” said Ms Tholanah. She said while science has proved that taking antiretroviral drugs (ARVs) actually reduced the risk of one transmitting HIV to another person, the law drew conclusions on deliberate HIV transmission from the fact that one was on ARVs — a direct contradiction of science.

Zimbabwe Lawyers for Human Rights HIV and Law Unit project manager Mr Tinashe Mundawarara said HIV involved science and it was therefore difficult to ascertain the direction of infection even in developed countries where there is sophisticated equipment.

“It is still difficult to point out the direction of infection and also people might have acquired the same HIV genotype from a common source, which might also dismiss infection from the concerned partners,” said Mr Mundawarara.

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.”

Mr Mundawarara said this law was too broad and that the accompanying defence on informing the other person and ‘‘appreciating the nature of HIV’’ was also vague making it difficult to prosecute and convict someone of committing a crime. He said the law itself was not clear on what understanding the nature of HIV meant.

“Does it mean the scientific or genetic make-up of the HIV virus or does it mean how HIV impacts on the immune system,” he said. Mr Mundawarara said the law also criminalised sex by people living with HIV and Aids, hence it infringed on their rights and promoted stigma and discrimination around HIV.  “One can still be charged even if transmission has not occurred because it says ‘ . . . real risk or possibility of infecting another person with HIV’. So, if you engage in unprotected sex which involves a real risk of transmitting HIV to another person, you risk being charged, thus making everyone living with HIV a potential criminal,” said Mr Mundawarara.

Mr Mundawarara said this legislation should therefore be scrapped as it reversed public health gains in national HIV and Aids response.He said the law can still punish people who willfully transmit HIV through other provisions such aggravated indecent assault.

Katswe Sisterhood director Ms Talet Jumo said the law was unfair on women who in most cases knew of their status first through antenatal care or voluntary testing, hence risked being charged of having infected their spouses. “Sometimes women may delay to inform their partners of their status due to fear of gender based violence and using that law, their partners may still drag them to the courts for deliberately transmitting HIV,” said Ms Jumo.

National Aids Council board chairman Mr Everisto Marowa said in line with the UNAIDS 90-90-90 targets, Zimbabwe must reduce new HIV infections from the current 64 000 a year to about 6 000 — a figure he described as a huge considering that HIV was preventable.He said NAC was aiming to have less than 1000 new infections by the year 2020.“NAC is geared for the task ahead and ready to provide the needed leadership with guidance from Government,” said Dr Marowa.

HIV remains a major public health threat in Zimbabwe with a prevalence rate of about 15 percent.

Mexico: HIV Justice Worldwide supports Mexican organisations' constitutional challenge against law criminalising HIV transmission in the State of Veracruz

English translation (para la versión en español,  ver más abajo)

International organisations support the constitutional challenge against the law criminalizing HIV transmission in Veracruz

Before the amendment to Article 158 of the Criminal Code of Veracruz, entitled “Contagion”, which added the term Sexually Transmitted Diseases to the article, and was adopted on August 4, 2015 by the Congress of the State, the National Commission on Human Rights, in response to the request of the Multisectoral Group on HIV / AIDS and STIs of the State of Veracruz and other organisations of civil society, brought the constitutional challenge 139/2015 against the amendment to the Supreme Court of Justice of the Nation this past December.

This is because the legal reform indicates that among these infections, HIV and human papilloma virus are outlined and a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days salary is established for those “deceitfully” infecting another person of any sexually transmitted disease.

The reform presented by Deputy Monica Robles Barajas from the Ecologist Green Party of Mexico, was intended to “try to prevent the transmission of these infections, mainly to women and girls who are in a vulnerable position…”.

Unconstitutionality

For the CNDH, the new content of Article 158 of the Criminal Code of the State of Veracruz “generates a discriminatory treatment to the detriment of the people, and that criminalising the willful endangerment of disease transmission, generates two assumptions: that it concerns sexually transmitted infections and that it concerns serious diseases. “

In addition, he said the agency does not meet its objective of preventing the spread of sexually transmitted infections against women and girls, finding themselves in vulnerable situations, but that it create a differentiation based on the condition of certain types of infections, in this case of sexual transmission, and that it casts them as serious, a fact that is not real, because not all infections of this type are serious.

International support

A little after half a year after the appeal, organisations of international civil society such a HIV Justice Worlwide have delivered a letter to the Supreme Court of Justice of the Nation for the legal challenge to be considered as “there is no evidence that criminalising perceived or potential exposure to HIV or STI benefits prevention; however, there are serious concerns that criminalisation can cause considerable damage. “

The document submitted to the Court, reminds us that various international bodies such as UNAIDS, the Special Rapporteur on the right to health to the United Nations, the Global Commission on HIV and the Law and the World Health Organization, have recommended to governments to limit the use of criminal law to the extremely exceptional cases of intentional transmission of HIV (for example, when the person knows their own HIV positive status, acts with the intention to transmit HIV, and in fact transmit it).

The letter also notes that laws criminalizing HIV affect the rights of people with HIV because they cause confusion and fear about their duties under the law; they generate failures in the justice system, often as a result of inadequately informed and competent legal representation;  they risk triggering prosecutions as a means of abuse or retaliation against a current or former partner; Police investigations are disproportionate and insensitive and can cause stigma and discrimination, and they promote sentences and disproportionate penalties.

In addition, fear of prosecution may discourage people, especially those belonging to those populations highly vulnerable to HIV, to get tested and know their status, because many laws apply only to those who are aware of their HIV status and thus prevent access to care and treatment because medical records can be used in evidence against them in the courts.

Worrying situation

Patricia Ponce, researcher at the Center for Research and Studies on Social Anthropology and member of the Multisectoral Group on STI and HIV / AIDS of the State of Veracruz, stated that the situation in the state is worrying because it is the region with the third highest number of cumulative cases of AIDS throughout Mexico, the second in HIV cases, the second in the number of women living with the virus and the second in the number of children affected by HIV.

Meanwhile, Edwin J. Bernard, global coordinator of the HIV Justice Network Worldwide, said that the fight against the epidemic requires the eradication of stigma and discrimination, not to add further through the legal system.

For the specific case of Veracruz, he explained that “if you want to protect women and girls from HIV, what should be done is to strengthen and empower women”.

Sean Strub, CEO of the Sero Project of the United States, explained that the existence of laws that criminalize HIV transmission is a public health issue because sanction reduces the possibility of new diagnoses.

“The best way to combat the criminalization of HIV is that people with the virus raise their hands to eradicate the situation,” he added.

Alejandro Brito, director of the civil organization Letra S, warned that if this situation is allowed to pass, “this can become a domino effect and similar changes could be approved in other states.”

In this regard, Ricardo Hernandez Forcada, director of the Programme for HIV AIDS and Human Rights at CNDH said that practically in every state, and even in federal criminal codes, there is a penalty for the transmission of sexually transmitted infections, and it is known that in Baja California Sur people have been jailed under that criterion.

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Organizaciones internacionales respaldan acción de inconstitucionalidad contra la ley que criminaliza transmisión del VIH en Veracruz

Ante la modificación al artículo 158 del Código Penal de Veracruz, denominado “Del Contagio”, a fin de adicionar el término Infecciones de Transmisión Sexual, aprobada el 4 de agosto de 2015 por el congreso de la entidad, la Comisión Nacional de Derechos Humanos, en respuesta a la petición del Grupo Multisectorial en VIH/sida e ITS del estado de Veracruz y otras organizaciones de la sociedad civil, interpuso la acción de inconstitucionalidad 139/ 2015 en contra de la reforma en la Suprema Corte de Justicia de la Nación en diciembre pasado.

Eso, debido a que la reforma legal señala que entre dichas infecciones se contempla al VIH y al virus del papiloma humano y se establece una pena que va de los 6 meses a los 5 años de prisión y multa de hasta 50 días de salario para quien “dolosamente” infecte a otra persona de alguna enfermedad de transmisión sexual.

La reforma, presentada por la diputada Mónica Robles Barajas del Partido Verde Ecologista de México, tenía la finalidad de “tratar de prevenir la transmisión de dichas infecciones, principalmente a las mujeres y las niñas que se encuentren en condición de vulnerabilidad…”.

Acción de inconstitucionalidad

Para la CNDH, el nuevo contenido del artículo 158 del Código Penal del Estado de Veracruz “genera  un  trato discriminatorio  en  perjuicio de las personas, ya que al tipificar como delito la  puesta  dolosa en peligro de contagio de enfermedades, genera dos supuestos: que se trate de  infecciones de transmisión sexual y que se trate de enfermedades graves”.

Además, señaló el organismo, no cumple su objetivo de prevenir la transmisión de infecciones sexuales hacia mujeres y niñas, por encontrarse en condiciones de vulnerabilidad,  sino que provocó una diferenciación basada en el padecimiento de  cierto  tipo  de  infecciones,  en  este  caso  de  transmisión sexual, y calificarlas como graves, hecho que no es real, pues no todas las infecciones de este corte son graves.

Respaldo internacional

A poco más de medio año de haberse presentado el recurso, organizaciones de la sociedad civil internacionales como Red Justicia por VIH en todo el Mundo entregaron una carta a la Suprema Corte de Justicia de la Nación para solicitar la admisión del recurso legal tomando en cuenta que “no hay evidencia de que criminalizar la exposición potencial o percibida al VIH o ITS beneficie la prevención; sin embargo, hay serias preocupaciones de que la criminalización puede causar un daño considerable”.

En el documento entregado a la Corte, se recuerda que diversos organismos internacionales como el Programa Conjunto de las Naciones Unidas sobre el VIH/Sida, el Relator Especial del derecho a la salud de las Naciones Unidas, la Comisión Global de VIH y la Ley y la Organización Mundial de la Salud han recomendado a los gobiernos limitar el uso del derecho penal a situaciones extremadamente excepcionales casos de transmisión intencional de VIH (por ejemplo, cuando la persona conoce su propio estatus seropositivo, actúa con la intención de transmitir el VIH, y de hecho lo transmite).

La misiva también señala que las leyes que criminalizan al VIH afectan los derechos de las personas con VIH porque provocan confusión y miedo sobre obligaciones en virtud de la ley; generan fallas en los sistemas de justicia, a menudo como resultado de una representación legal inadecuadamente informada y competente; surgen amenazas que desencadenan el enjuiciamiento como medio de abuso o represalia contra una pareja actual o anterior; las investigaciones policiales son desproporcionadas e insensibles, pudiendo provocar estigma y discriminación, y propicia condenas y sanciones desproporcionadas.

Además, el miedo al procesamiento judicial puede desalentar a las personas, especialmente a aquellas pertenecientes a poblaciones altamente vulnerables al VIH, de examinarse y conocer su estatus, porque muchas leyes se aplican sólo a quienes son conscientes de su estatus seropositivo e impide el acceso a la atención y tratamiento porque las historias clínicas pueden ser usadas como evidencia en su contra en las Cortes.

Situación preocupante

Para Patricia Ponce, investigadora del Centro de Investigaciones y Estudios sobre Antropología Social Unidad Golfo e integrante del Grupo Multisectorial en ITS y VIH/sida del Estado de Veracruz, la situación en el estado es preocupante debido a que es la entidad con el tercer número más alto de casos acumulados de sida de toda la República Mexicana, el segundo de casos de VIH, el segundo en número de mujeres viviendo con el virus y el segundo con niños afectados por VIH.

Por su parte, Edwin J. Bernard, coordinador global de la Red Justicia por VIH en todo el Mundo, consideró que el combate contra la epidemia requiere erradicar el estigma y la discriminación, no añadirle aún más a través del orden jurídico.

Para el caso concreto de Veracruz, explicó que “si se quiere proteger a las mujeres y niñas del VIH, lo que se debe hacer es fortalecerlas y empoderarlas”.

Sean Strub, director ejecutivo de Sero Project de los Estados Unidos, explicó que la existencia de leyes que penalizan la transmisión del VIH son un asunto de salud pública porque sancionar reduce la posibilidad de realizar nuevos diagnósticos.

“La mejor manera de combatir la criminalización del VIH es que las personas con el virus alcen la mano para erradicar la situación”, añadió.

Alejandro Brito, director de la organización civil Letra S, advirtió que si se deja pasar la situación, “esta se puede convertir en un efecto domino y podrían aprobarse modificaciones similares en otros estados”.

Al respecto, Ricardo Hernández Forcada, director del Programa de VIH SIDA y Derechos Humanos de la CNDH, señaló que, prácticamente, en todos los códigos penales estatales, e incluso el federal, hay alguna penalización por la transmisión de  infecciones de transmisión sexual, y se tiene conocimiento de que en Baja California Sur se ha encarcelado gente bajo dicho criterio.

Fuente: Notiese

 

HIV IS NOT A CRIME Training Academy (HINAC2)
Huntsville, Alabama

(33 min, HJN, USA, 2016)

HIV JUSTICE WORLDWIDE presents a video documentary on the second-ever ‘HIV IS NOT A CRIME’ training academy held in Huntsville, Alabama.

To support advocates on how to effectively strategise on ending HIV criminalisation, this 30-minute video distils the content of this unique, three-day training academy into four overarching themes: survivors, victories, intersectionality and community.

We hope this video can be used as a starting point to help advocates move forward in their own state or country plans to achieve HIV justice.

For more information about the training academy visit: http://www.hivisnotacrime.com/

Uganda: Uganda Network on Law, Ethics, and HIV (UGANET) leads call to repeal some provisions of the HIV/Aids Prevention and Control law as discriminatory and unconstitutional

Uganda: Activists Go to Court As Call Raises for Equal Rights for People With HIV/Aids

By Mercy Nalugo

HIV/Aids activists delegations comprising policy makers, medical practitioners, researchers, sex workers and other key stakeholders converged in Durban, South Africa, last month for this year’s International Aids Conference.

The conference was geared towards forging ways and sharing knowledge on new developments and what ought to be done to reduce new infections as well as sharing experiences and analysing statistics related to the HIV/Aids trend.

The five-day conference, which kicked off on July 18, was marked under the theme “Access Equity Rights Now”.

Back in the country, in a bid to step up activism and rhyme with this year’s theme, HIV/Aids activists called on the government to implement the right to equity.

Taking to court

More than 100 civil society groups led by the Uganda Network on Law, Ethics, and HIV (UGANET) reiterated calls to have some of the clauses in the controversial HIV/Aids Prevention and Control law repealed saying they are discriminatory and unconstitutional.

This time they did not petition President Museveni, or other implementing agencies having been frustrated several times before, but the Constitutional Court.

They are asking the court to quash some provisions in the HIV/Aids law they say are unconstitutional and promote discrimination and stigmatisation of those with the disease.

One of the contested clauses allows medical practitioners to disclose a client’s HIV status to others.

 

The law would according to activists contravene the right for HIV positive people to keep their status confidential and would in essence promote stigma while criminalisation of the spread would keep away people from testing.

The same activists in May 2014 strongly opposed certain sections days after Parliament had passed the Bill into law.

They included the Human Rights Watch, Health Global Advocacy Project and the Uganda Network on Law and Ethics and HIV/Aids (UGANET) who said it is “deeply flawed” and promotes “discrimination”.

They later sought the attention of President Museveni asking him not to assent to the law although this did not stop him from doing so. However, the President assented to the law on July 31, 2014.

According to statistics released by the ministry of Health last year, the number of people starting anti-retroviral treatment (ART) in Uganda stood at 713,744.

In just three months, between June and September 2014, a total of 33,744 people enrolled for HIV/Aids treatment, raising the overall number from the previous 680,000 to the above-mentioned number (713,744).

The drugs suppress HIV multiplication in the body.

Activists, however, say that the hardline approach to prevention of HIV/Aids spread has instead discouraged those living with HIV from voluntary testing for fear of victimisation.

 
 

Infringment on rights

According to the activists, some clauses were passed without the amendments sought by an all-encompassing network.

 

Prosper Byonanebye, UGANET head of programmes, says: “The petition among others challenges section 18 (e), on ‘Disclosure of one’s HIV status to undisclosed parties. This is overly-broad, vaguely worded and thus unclear.

It also raises legality questions and infringes on the right to privacy. Same as Section 41 of the HIV prevention and Control Act on attempted transmission which is subject to misuse and can be a ticket to punish innocent Ugandans by self-seekers because it is not specific and it’s difficult to define.

According to Byonanebye, some of the clauses infringe on the right to equality and right to dignity and worsens discrimination hence pushing people living with HIV into hiding instead of the intended policy objective of supporting more of them to disclose as has been the case.

Chapter four of the Constitution emphasises the promotion and protection of several human rights and freedoms by the state including equality and freedom from discrimination (Article 21), right to dignity (Article 24) and right to privacy ( Article 27) among others.

Arguments for the Act

On disclosure of one’s status to other people, Maj (Rtd) Rubaramira Ruranga, a leading HIV/Aids advocate, however tows a different line.

He stresses the need for HIV positive people to open up about their status if solutions are to be found.

“Methodology is what we need to look into to find solutions to the wide spread of HIV/Aids and stigma, which is closely related to HIV/Aids. If we had a method of going house to house and educate the masses about the dangers of HIV and the need to know their status, the infection rate would be reduced. If we test from house to house, we would get rid of stigma,” he says.

 

“I no longer believe in confidentiality because people have continued to sleep with each other without bothering about the need to test. We should stop hiding something which can be served better Let us fight the conspiracy of the unknown.”

Commenting about the intentional spread of HIV/Aids, Maj Ruranga backs the proposal saying it will go a long way in protecting innocent Ugandans from selfish offenders who knowingly conceal their results away from their partners and infect them with HIV/Aids.

He noted: “Not everybody is bad but there are those spreading HIV intentionally. We do work with a team of young people but we have discovered that some health workers are giving false results at a request.

People know that they are reactive but ask for non-reactive results. I have arrested some and we are still arresting many. What other method is workable other than the law? Let the activists prove beyond reasonable doubt that this law will not work.”

Maj Ruranga adds that the country has lived with the deadly disease for over two decades and it has continued to spread.

“We have become so negligent as a result of pampering certain things. Why should the virus continue spreading? My coming out helped so many. Why do people continue hiding? We need to get out of this and find a solution.”

He emphasises the use of condoms as a preventive measure to guard against HIV/Aids as he opposed calls from the South African conference pushing for PEP to be given to the youth free of charge as a way of guarding against the spread of HIV.

USA: Clinton commits to work with advocates and HIV and AIDS organizations to reform outdated HIV criminalization laws

By Karen Ocamb

The history books will record that the 2016 presidential race produced the first woman and the first Reality TV star as nominees from the two major political parties. But while the world stares agog at the American political process following the Republican and Democratic conventions last month, a critical national issue is being depressingly overlooked—the dire impact of HIV on young gay and bisexual men of color.

In keeping with the spirit of her meeting with HIV/AIDS activists last May, Hillary Clinton’s campaign included Georgia HIV/AIDS activist Daniel Driffin on the roster of speakers at the DNC convention on Wednesday, July 27.

“Together with more than 1 million Americans, I’m living with HIV,” said Driffin, 30, the first HIV-positive speaker at the DNC since 2004. “Who is most at risk? Young, gay black men. Men like me. In fact, one in two black gay men will be diagnosed in their lifetime if the current rates continue. And if we had enough data, I’m sure black transgender women are more at risk, too.”

Stop. Think about that: “one in two black gay men will be diagnosed in their lifetime if the current rates continue.” Driffin did not speak in primetime so it is unclear how many were moved by his words.

But his was not a slap-dash rhetorical comment crafted for effect. These are statistics from the Centers for Disease Control. Last February, the CDC reported: “If current HIV diagnoses rates persist, about 1 in 2 black men who have sex with men (MSM) and 1 in 4 Latino MSM in the United States will be diagnosed with HIV during their lifetime.”

In fact, evidence presented at the 2016 International AIDS Conference in Durban, South Africa July 18-22 (during the Republican Convention) suggests that HIV is becoming a young person’s disease—worldwide.

“While all other demographics are in decline, more and more young people are being diagnosed with the disease. Globally, 11.8 million people ages 15-24 are currently living with HIV/AIDS, with this demographic also accounting for more than half of new infections. In the U.S., young Black, gay and bisexual men make up the largest population of people who are infected, and young women of color bear the largest burden of the disease among women in the U.S. Globally, adolescent and young women are fast becoming the most at risk: in Sub Saharan Africa, women ages 15 to 19 make up two thirds of the population of infected adolescents,” reports Kali Villarosa for The Black AIDS Institute.http://www.aids2016.org

Stigma is the key to the ongoing infections.

“Even among young gay and bisexual men, who initially bore the brunt of the disease and its associated deaths, discussion remains unsophisticated and un-textured. My friend Wen, an openly gay 20-year-old from Brooklyn, told me: ‘The disease is seen as a joke, but those diagnosed are shamed. There still remains a lot of stigma around the disease and people are scared to get tested,’” Villarosa wrote.

“But this stigma often perpetuates the risk of these already vulnerable communities,” she continued. “A study of over 15,000 high school boys released [at the IAC] by the Centers for Disease Control and Prevention earlier this week found that gay and bisexual teen males were no more likely than their straight peers to engage in risky sexual behavior, but still had a higher chance of contracting HIV. It was actually homophobia, bullying and violence that spread the disease—not promiscuity, alcohol and drugs and avoiding condom use.”

That CDC report also reveal what many suspected but could not verify—the invisible gay/bi drug crisis and its connection to HIV infection. “Overall, MSM – including those who inject drugs – account for 60 percent of the 1.2 million people living with HIV in the United States. In 2014, 13- to 24-year-olds accounted for more than one in five (22 percent) HIV diagnoses. Among the 13- to 24-year-olds diagnosed with HIV in 2014, 80 percent were gay and bisexual males.”

Gasps, anyone?

Having a long history of involvement with both young people and the AIDS crisis— including losing friends to AIDS such as Los Angeles-based Bob Hattoy who spoke at Bill Clinton’s nominating convention in 1992—Hillary Clinton may be starting to feel like an AIDS Movement mother herself after hearing Driffin and learning of the new International AIDS statistics.

Clinton’s Republican opponent Donald Trump, meanwhile, had an early history with AIDS, attending fundraisers thrown by his beloved socialite sister-in-law Blaine Trump, actively on the board of New York City’s “God’s Love We Deliver.” It is unknown if Donald Trump ever actually gave money or only showed up for appearances. He has not, however, offered any plans for ending the HIV/AIDS epidemic during his presidential campaign nor does he announce a position on his website.

Clinton, however, has a detailed AIDS platform on her website and added to her “comprehensive agenda” in a post-convention press release. She committed to:

•    Convene an “End the Epidemic” working group to adopt aggressive and attainable timelines for ending AIDS as an epidemic in the United States and globally. Clinton’s Office of National HIV/AIDS Policy will immediately begin to engage a wide range of experts, advocates, and stakeholders to adopt timelines for ending AIDS as an epidemic in the United States and globally.

•    Work to fully implement and strengthen the National HIV/AIDS Strategy to meet these timelines. Clinton’s Office of National HIV/AIDS Policy will work to fully implement the National HIV/AIDS Strategy, and strengthen it to align with the timelines developed for ending AIDS as an epidemic. Particular emphasis will be placed on expanding evidenced-based prevention, treatment, and community outreach initiatives for at-risk groups, including black men who have sex with men (MSM), transgender individuals, African American women, and injection drug users. She will also account for regional variations, like the particular needs of the southeast corridor of the United States.

•    Launch a campaign to end the stigma and discrimination associated with HIV and AIDS. Nearly 40 years have passed since the HIV/AIDS crisis first began, and yet even with everything we have learned, intolerance and stigma still exist. This stigma manifests itself in our criminal laws, and also serves as a barrier to effective prevention and treatment. That’s why, as president, Clinton will launch a campaign to end stigma associated with HIV/AIDS. She will work to reform outdated HIV criminalization laws, aggressively enforce the Americans with Disabilities Act, and partner with advocacy groups and community organizations to conduct public education.

Indeed, stigma is like a boulder dropped in the middle of a lake—the ripple effects are large and possibly dangerous, especially to young black men and women “wrestling with the idea that people think you’re a threat . . . from the beginning,” says writer Kai Wright. “So that’s your starting point for many inside institutions. The harsh discipline that we’ve seen scale up in schools has been uniquely reserved for black students. We know that the harsh police policies have been uniquely reserved for black neighborhoods. So we know what it means for the system: this cultural idea that young black men, and again for women too, that they are disruptive threats, that people see you as a monster.”

Adding to the context of the real and perceived criminalization of black bodies and resulting internalized stigma that might inhibit HIV testing is the fact that two-thirds of American states and territories have laws criminalizing HIV.

“[P]eople with HIV are potentially subject to prosecution for non-disclosure, potential exposure or transmission in every jurisdiction under general criminal statutes,” including Texas and New York, that do not have HIV-specific statutes, says the Sero Project. That means that for people who are HIV positive, “a contentious relationship, a personal misunderstanding or even a minor infraction of the law can lead to a long jail sentence, public shaming and registration as a sex offender. HIV-specific criminal charges have been filed more than 1,000 times.”

A 2011 analysis by the CDC and Department of Justice researchers found that the laws vary by state, behavior and penalties. But the majority of laws were passed before antiretroviral therapy reduced HIV transmission and before studies indicated the success of pre-exposure prophylaxis (PrEP). According to an extensive, detailed 2013 ProPublica investigation, at least 35 states have laws that criminalize exposure of HIV or failure to disclose HIV status. That’s a felony crime in 29 states and 25 states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission.

“People with HIV have even done time for spitting, scratching or biting. According to the federal Centers for Disease Control and Prevention, spitting and scratching cannot transmit HIV, and transmission through biting “is very rare and involves very specific circumstances” — namely, “severe trauma with extensive tissue damage and the presence of blood.” Many law enforcement officials and legislators defend these laws, saying they deter people from spreading the virus and set a standard for disclosure and precautions in an ongoing epidemic,” ProPublica reports.

ProPublica found and scoured a record 1,352 HIV-related criminal cases from 2003 to 2013, with 541 cases resulting in conviction.

The real shocker for those unaware of HIV criminalization laws is that most laws don’t require an actual transmission of or even an exposure to HIV for someone to be arrested, charged, prosecuted, convicted and receive a harsh sentence. Additionally, it isn’t a requirement for the HIV-negative partner to even file a complaint. According to a PBS report, “there have been cases of HIV-negative partners who go to the ER for PEP, don’t file charges, and their partner is still prosecuted under HIV criminalization laws.”

The issue of HIV criminalization came to national LGBT attention inJuly 2015 after Michael Johnson, a 30-year old, Black Missouri college student and star wrestler, was sentenced to 30 ½ years for the felony of having sexual contact without documenting that he had disclosed his HIV status.

“The criminal statute that Michael Johnson was convicted of violating was originally passed in 1988, at a time when HIV was considered a ‘death sentence.’ Today, with proper treatment, HIV is a chronic, manageable disease and those with HIV can expect to live a full, healthy life. Yet violation of the Missouri law is a class A felony, with a sentencing range of 10-30 years or life imprisonment. Other class A felonies include murder or child abandonment resulting in death.  Punishing Michael Johnson as if he is a murderer because state officials have failed to address a severely outdated, irrational criminal law is not only fundamentally unfair, it is barbaric,” said Mayo Schreiber, Deputy Director of The Center for HIV Law and Policy.

“HIV should be treated as a public health issue not as a criminal one. Legally requiring disclosure privileges the lives of White people not living with HIV over Black people who are living with HIV,’ wrote 89 Black gay men from The Counter Narrative Project.

A 2013 study by the National Institutes of Health in Nashville, Tennessee found that most of those convicted under prostitution and HIV criminalization laws were more likely to be black than white. “We conclude that enforcement of US HIV-specific laws is underestimated. Fifty-two arrests over 11 years were recorded in one jurisdiction. Over half of the arrests involved behaviors posing minimal or no HIV transmission risk. Despite concerns about malicious, intentional HIV transmission, no cases alleged malice or intention,” the abstract says.

New data indicate that the US is second only to Russia in HIV criminalization cases from April 2013 to Oct 2015. Additionally, a new report issued Thursday, Aug. 4, entitled Unjust: How the Broken Criminal Justice System Fails LGBT People of Color, examines “how racism and anti-LGBT discrimination combine to make LGBT people of color particularly vulnerable to entering the system and facing unfair and abusive treatment once they are in it,” according to a press release from lead authors the Movement Advancement Project (MAP) and the Center for American Progress.

“Whether they are interacting with law enforcement, going to court, confined in prisons or jails, or preparing for re-entry into society, the story is the same: LGBT people of color face an extraordinarily high risk of discriminatory treatment and abuse in our criminal justice system,” said MAP Executive Director Ineke Mushovic.

In another startling statistic, the report says that “one in five young people in U.S. juvenile justice facilities identify as LGBTQ, and 85% of these individuals are youth of color.” The report also points out being treated unjustly by law enforcement, courts, immigration authorities and other programs puts LGBT people of color at grave risk.

“Statistically, it is quite clear that the criminal justice system has prospered from the disproportionate impact it has had on black and brown people. As LGBT people of color, this impact is twofold as our multiple identities too often represent threats and garner disrespect,” said Isaiah Wilson, External Affairs Manager of the National Black Justice Coalition. “If we are not resolute to acknowledge and address this reality, we will lose a generation of unapologetic, young LGBT people of color to the flaws of our justice system.”

The Unjust report specifically identifies three factors in creating the overrepresentation of LGBT people of color in the system: “racism combined with pervasive anti-LGBT stigma and discrimination in communities, schools and families; discriminatory enforcement of drug laws and HIV criminalization laws; and policing strategies and tactics that increase the likelihood of LGBT people of color being subject to police stops, arrest and incarceration.”

The report also focuses on the issues LGBT youth of color face at home, in school, or in their communities that result in them “spending some or all of their time living on the street, putting them at increased risk of encountering law enforcement and having their lives criminalized.”

The inequities of the criminal justice system regarding race, sexuality and HIV are stark—and political.

Through his appearance at the DNC and his work for LGBT equality and HIV awareness in Georgia, Driffin works hopes to help his peers.

“We know how to prevent the virus now. We know how to diagnose the virus now. We know how to treat it. We know how to suppress it,” Driffin said to millions watching the convention. “So as an organizer, as an advocate, as a black man, as a gay man, as a man living with HIV, I ask you: Go get tested, and then go vote.”

Originally published in EQ CA

Uganda: Civil societies challenge HIV criminalisation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The law when enacted will drive people underground

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

2. It shall be counter-productive

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

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

4. It will indiscriminately harass women

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

5. May breakdown families who are already vulnerable

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

6. Is not situation-specific or realistic

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

7. Selective prosecution

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

8. Increased stigma and discrimination

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

Originally published in New Vision

AIDS 2016: UNAIDS reports on HIV JUSTICE WORLDWIDE's Beyond Blame pre-conference

On 17 July, some 200 people living with HIV, human rights activists and representatives of key populations gathered for a one-day meeting on challenging HIV criminalization under the title “Beyond blame: challenging HIV criminalization.” The event, a preconference meeting before the 21st International AIDS Conference, being held in Durban, South Africa, was organized by HIV Justice Worldwide, an international partnership of organizations, including the AIDS and Rights Alliance for Southern Africa, the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV, the HIV Justice Network, the International Community of Women Living with HIV, the Positive Women’s Network USA and the Sero Project.

The event was an opportunity for people working to end unjust HIV criminalization in all regions of the world to share recent developments, successful approaches and challenges. It also mobilized participants on the urgency to address unjust HIV criminalization as a violation of human rights and serious barrier to efforts to scale up HIV prevention, treatment and care services.

The meeting heard individuals who have face HIV criminalization recount the far-reaching personal, social and legal impacts of unjust prosecution on their lives and that of their families. Lawyers and civil society activists who have led successful efforts against HIV criminalization, including in Australia, Canada, Kenya, Sweden and the United States of America, shared their experiences and approaches. HIV scientists and clinicians were called upon to become more involved in efforts to ensure that the application of the criminal law is consistent with best available evidence relating to risk, harm and proof in the context of HIV. Similarly, members of parliament and the judiciary were highlighted as key stakeholders whose understanding and engagement is central to efforts to end unjust HIV criminalization.

QUOTES

“HIV-RELATED PROSECUTIONS ARE BECOMING INCREASINGLY COMMONPLACE. THE EVIDENCE THAT CRIMINALIZATION AS A PUBLIC HEALTH STRATEGY DOES NOT WORK IS TOO PLAIN TO CONTEST. IT IS OUR RESPONSIBILITY TO END IT.”

PATRICK HERMINIE SPEAKER OF THE NATIONAL ASSEMBLY OF SEYCHELLES

“HIV CRIMINALIZATION IS PROFOUNDLY BAD POLICY. IT IS BASED ON FEAR AND OUTDATED UNDERSTANDING OF HIV RISK AND HARM. CRIMINALIZATION MAGNIFIES STIGMA AND DISCRIMINATION TOWARDS PEOPLE LIVING WITH HIV. PEOPLE LIVING WITH HIV HAVE BEEN AT THE FOREFRONT OF EFFORTS TO END UNJUST CRIMINALIZATION AND SHOULD BE COMMENDED FOR THEIR COURAGE AND COMMITMENT TO JUSTICE.” 

JUSTICE EDWIN CAMERON JUDGE OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA

“MY LIFE WILL NOT BE THE SAME AFTER FACING HIV CRIMINALIZATION. MY 30 YEARS WORKING AS A NURSE AND DEDICATED TO SAVING LIVES HAVE BEEN ERASED. I HAVE SPENT ALMOST A YEAR IN PRISON. I HAVE BEEN BRANDED A CRIMINAL AND A KILLER EVEN THOUGH I HAVE HARMED NO ONE.”

ROSEMARY NAMUBIRU UGANDAN NURSE

Originally published by UNAIDS

BEYOND BLAME
Challenging HIV Criminalisation @ AIDS 2016, Durban

(29 min, HJN, South Africa, 2016)

On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on the global effort to combat the unjust use of the criminal law against people living with HIV.

Attendees at the convening hailed from at least 36 countries on six continents (Africa, Asia, Europe, North America, Oceania, and South America).

Beyond Blame was convened by HIV Justice Worldwide, an initiative made up of global, regional, and national civil society organisations – most of them led by people living with HIV – who are working together to build a worldwide movement to end HIV criminalisation.

The meeting was opened by the Honourable Dr Patrick Herminie, Speaker of Parliament of the Seychelles, and closed by Justice Edwin Cameron, both of whom gave powerful, inspiring speeches. In between the two addresses, moderated panels and more intimate, focused breakout sessions catalysed passionate and illuminating conversations amongst dedicated, knowledgeable advocates

US: Democratic Party pledges to "address HIV criminalization laws" in its 2016 draft party platform

Democratic Party Comes Out Strong for LGBTQ Equality in 2016 Party Platform

HRC Blog by post by Stephen Peters

Today, the Democratic Party released its draft 2016 party platform, including key provisions that focus on improving the lives of LGBTQ people and advocating for full equality.

“This is the most LGBTQ-inclusive platform of any major U.S. party,” said JoDee Winterhof, HRC’s Senior Vice President for Policy and Political Affairs. “We will continue to work with the Democratic Party to ensure the most robust platform for LGBTQ Americans. From protecting LGBTQ young people to ending the epidemic of violence against transgender people to passing an explicit and comprehensive federal non-discrimination law to bringing about an AIDS-free generation, the platform addresses many of the major challenges facing our community today.”

Here are some of the highlights:

LGBT Rights

Democrats applaud last year’s decision by the Supreme Court that recognized LGBT people— like every other American—have the right to marry the person they love. But there is still much work to be done. LGBT kids continue to be bullied at school, a restaurant can refuse to serve a transgender person, and a same-sex couple is at risk of being evicted from their home. That is unacceptable and must change. Democrats will fight for comprehensive federal non- discrimination protections for all LGBT Americans and push back against state efforts to discriminate against LGBT individuals. We will combat LGBT youth homelessness and improve school climates, and we will protect transgender individuals from violence. We will promote LGBT human rights and ensure America’s foreign policy is inclusive of LGBT people around the world.

Civil Rights

Democrats will always fight to end discrimination on the basis of race, ethnicity, national origin, language, religion, gender, sexual orientation, gender identity, or disability. We need to promote civility and speak out against bigotry and other forms of intolerance that have entered our political discourse. It is unacceptable to target, defame, or exclude anyone because of their religion, race, ethnicity, national origin, or sexual orientation.

HIV and AIDS

Democrats believe an AIDS-free generation is within our grasp. But we know far too many Americans still suffer, which is why we will implement the National HIV and AIDS Strategy, increase research funding for the National Institutes of Health, cap pharmaceutical expenses for people living with HIV and AIDS, address HIV criminalization laws, and expand access for HIV prevention medications, particularly for the populations most at risk of infection. Abroad, we will make the President’s Emergency Plan for AIDS Relief more effective and increase global funding for HIV and AIDS prevention and treatment. Democrats will always protect those living with HIV and AIDS from stigma and discrimination.

Supporting our Troops

[…]Democrats welcome and honor all Americans who want to serve and will continue to fight for their equal rights and recognition. We are proud of the repeal of Don’t Ask, Don’t Tell and the opening of combat positions to women. Our military is strongest when people of all races, religions, sexual orientations, and gender identities are honored for their service to our country.

Racial Justice

Democrats will fight to end institutional and systemic racism in our society. We will challenge and dismantle the structures that define lasting racial, economic, political, and social inequity. Democrats will promote racial justice through fair, just, and equitable governing of all institutions serving the public and in the formation of public policy. We will push for a societal transformation to make it clear that black lives matter and there is no place for racism in our country.

Gun Violence Prevention

With 33,000 Americans dying every year, Democrats believe that we must finally take sensible action to address gun violence. While gun ownership is part of the fabric of many communities, too many families in America have suffered from gun violence. We can respect the rights of responsible gun owners while keeping our communities safe. We will expand background checks and close dangerous loopholes in our current laws, hold irresponsible dealers and manufacturers accountable, keep weapons of war—such as assault weapons—off our streets, and ensure guns do not fall into the hands of terrorists, domestic abusers, other violent criminals, and those with severe mental health issues.

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

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

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

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

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

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

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

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

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

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

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