New HIV Justice Academy content: Lessons from the Central African Republic’s HIV law reform success

In the mid-2000s, many countries across Africa adopted HIV laws. Many of these laws contained important protections covering discrimination, privacy, and access to medications. Unfortunately, they also included overly broad and ill-informed HIV criminalisation provisions.

The Central Africa Republic (CAR) adopted an HIV law in 2006 which not only criminalised HIV non-disclosure, exposure or transmission, it also required people living with HIV to undergo treatment as prescribed by a doctor and engage in protected sex and an obligation to disclose their HIV-positive status to sexual partners.

Given the significant problems with these aspects of the law, multiple law reform attempts were made but none were successful until a new law – Law 22-016 on HIV and AIDS in the Central African Republic – was finally enacted on 18 November 2022.

How did it happen? What changed? Why was the law finally reformed?

Christian Tshimbalanga is a lawyer from the Democratic Republic of Congo with many years’ experience working on human rights and HIV in Africa. Through his work with UNAIDS, Christian provided critical support to the law reform process following it through until Parliament voted on the law. Cécile Kazatchkine (Senior Policy Analyst at the HIV Legal Network) asked Christian to share lessons learned to help others working to reform problematic HIV laws.

Their 25 minute, French-language audio conversation is now available as an additional case study in Chapter 5 of the HIV Justice Academy’s free HIV Criminalisation Online Course: How to advocate against HIV criminalisation. A translated transcript of the conversation is also available in the English, Spanish and Russian version of the course.

Christian’s role was to accompany the process until the law was voted on in Parliament. Several elements of Christian’s account stood out for us:

In his role as an UNAIDS representative and technical partner, Christian was able to devote significant time to the law reform process, monitoring what was happening and pushing the bill through each stage of the process. Having a dedicated person on the ground to accompany the legislative process on a day-to-day basis was critical to the success.
Civil society was a key partner. The Central African Network of People Living with HIV (RECAPEV) and the Central African Network on Ethics and Rights (RCED) pushed hard for the law to be revised. UNAIDS provided them with a small amount of financial support which enabled them to increase their capacity to sustain this advocacy.
Local partners and international organisations were also partners in the law reform efforts, including the National AIDS Council (CNLS), the Ministry of Health and the Minister of Justice, as well as UNDP, UNAIDS, and the French Red Cross (the principal recipient of Global Fund funding in CAR).
A memorandum outlining the new bill was drafted by various stakeholders including civil society. It informed parliamentarians about the relevant public health and human rights issues and the scientific evidence related to HIV.
Following the example of a previous forum in Madagascar on a draft law on sexual and reproductive health, a forum was organised for (primarily male) parliamentarians and their (female) spouses. Because issues of this intimate nature are often discussed in the home, involving spouses was strategic. Several people living with HIV opened the forum by talking about their lived realities and the persistence of HIV-related stigma and discrimination in CAR.

While worthy of celebration, the new legislation is not a complete victory. It does not fully decriminalise HIV but it does provide a much narrower definition of the prohibited conduct. Under the 2006 law, a person living with HIV could be prosecuted simply for HIV ‘exposure’ without neither intent nor transmission. The 2022 Act criminalises “intentional transmission of the virus,” defined as, inter alia, the fact that a person who knows his or her status intentionally transmits the virus through unprotected sexual relations without disclosing his or her seropositivity. A list of circumstances where the criminal law should not be applied is also included (e.g., in the case of transmission of the virus from a mother to her child).

For more information on the 2022 Act, see the HIV Justice Network’s Global HIV Criminalisation Database.

To enrol in the HIV Criminalisation Online Course, visit the HIV Justice Academy and sign up. It’s free!

US: Tennessee changes its criminal exposure law

News Release from CHLP: Exposure to HIV Removed from Offenses Requiring Sex Offender Registration in Tennessee

Exposure to HIV Removed from Offenses Requiring Sex Offender Registration in Tennessee

People living with HIV convicted of criminal exposure can request to terminate registration requirements with the Tennessee Bureau of Investigation

(NEW YORK) – On May 17, 2023, Tennessee Governor Bill Lee signed Senate Bill 0807/House Bill 832 into law after it passed the House and Senate in April. The law removes criminal exposure to HIV from the list of violent sexual offenses where a conviction required an individual to register as a sex offender for life. The law will go into effect on July 1, 2023. The bill was sponsored by Republican Rep. Bud Hulsey.

Tennessee is one of 30 states that have HIV-specific criminal laws. Under current Tennessee law, people living with HIV (PLHIV) or hepatitis B or C may still be charged and convicted of a felony for engaging in sexual activities without disclosing their status. While the amended law removes the heightened penalty for exposure, it does not remove aggravated prostitution from the list of violent sexual offenses requiring registration as a sex offender, so there remains a heightened penalty for PLHIV who know their status to engage in sex work.

“This change is a win for people living with HIV in Tennessee who are on the registry for life for an exposure conviction,” said CHLP Staff Attorney Jada Hicks. “Forcing people living with HIV to register as sex offenders for consensual sexual activity further criminalizes them and does nothing to enhance public safety. It is past time that stigmatizing HIV laws in Tennessee and other states catch up with the science of HIV transmission.”

As of April 2022, more than 70 people were on Tennessee’s registry for an HIV exposure charge. With the passage of SB 0807, anyone convicted of criminal exposure to HIV prior to July 1, 2023, may file a request to terminate registration requirements with the Tennessee Bureau of Investigation (TBI).

“The law that Governor Lee signed is about to change my life. For the past 16 years I’ve been depressed, looking over my shoulder, and just being scared of messing up,” said Tennessee advocate Lashanda Salinas. “This law is going to finally let me have my life back. I can see family, my cousins, and attend family reunions and participate in things.”

Republican Rep. Bob Ramsey, who sponsored the House version of the bill, argued that the laws needed to be updated “to look at this disease in a more realistic light and try to destigmatize it so that we could identify it and treat it, more so than trying to punish it.”

Those registered as sex offenders for a conviction of criminal exposure to HIV who wish to have their names removed can do so through a fingerprint-based state and federal criminal history check process to determine whether additional convictions exist for sexual offenses or violent sexual offenses. If the requirements of the amendment are satisfied, TBI will remove the individual from the registry and notify them that they are no longer required to comply with the registration requirements.

If the TBI determines that the person would be required to register even if the offense had been committed on or after July 1, 2023, or that they had been convicted of any additional sexual offenses or violent sexual offenses during the period of registration, then they must remain on the registry. Under the bill, the TBI’s decisions can be appealed, allowing for judicial review by the courts.

US: Bill to reform Indiana HIV criminalisation law fails to clear the state’s Senate

Reform of HIV Criminalization Laws Gaining Traction in Indiana but Not Yet There

By Rasha Aly

The latest attempt to modernize Indiana’s antiquated HIV criminalization law has failed. Though state House representatives passed Indiana House Bill 1198, it did not clear the state’s Senate.

However, this does not stop HIV Modernization Movement-Indiana (HMMI) and other advocates for people living with HIV (PLWH) from fighting for change. As Carrie Foote―who chairs HMMI―told TheBody, these laws “don’t reflect modern science.” Though that is undeniable, she and her colleagues will have to wait until next year’s legislative cycle to see if reform will pass.

Given bipartisan support for HIV criminalization reform―HB 1198’s co-authors are GOP state representatives Wendy McNamara (R-District 76), Edward Clere (R-District 73), Sharon Negele (R-District 13), and Ann Vermillion (R-District 31), with the sponsorship of Republican state Sen. Susan Glick (R-District 13)―their chances appear favorable.

Confronting Flawed HIV Criminalization Laws and Policies

As written, the bill would somewhat mitigate a law that Indiana officials passed in 1988. That law empowers police officers to upgrade the act of placing bodily fluids on another person to a more serious offense when HIV is involved. So, if a PLWH spits on another person, police officers automatically enhance the repercussions, elevating the minor charge to a felony charge. The repercussions become more severe if the person exposed to fluids is a law enforcement officer.

If HB 1198―which died in the state Senate on Thursday―had passed, officials would have done away with the heftier charge for PLWH who spit on other people or put any other bodily fluid on another person except for blood. The bill’s written text reads that it would remove “certain sentencing enhancements for battery and malicious mischief that relate to human immunodeficiency virus (HIV). Repeals certain offenses concerning the donation, sale, or transfer of blood or semen that contains HIV.”

In other words, PLWH would have faced the same charges as people who are seronegative if they spat on a police officer. Although HB 1198 would have eliminated felony enhancements for spit, Foote noted that officials retained the felony enhancements when the bodily fluid involved blood.

HB 1198 would also have changed the legal standard toward PLWH who donate blood. Under the current law, PLWH who donate blood can be charged with a felony offense, even if they have not yet been diagnosed and are, therefore, unaware of their serostatus. As McNamara has noted in her remarks on the matter, under the current law, over the past 20 years, police officers have charged 15 PLWH who donated blood―even though medical officials and blood-safety experts say current testing protocols screen blood and prevent any donations that contain the HIV virus from being used.

HIV Criminalization Laws Are Anti-Science and Likely Violate the ADA

As Memorial Sloan Kettering Cancer Center’s memo on blood draws notes, if blood samples test positive for illnesses such as syphilis, HIV, hepatitis, and the human T-lymphotropic virus, blood bank officials will not use the blood. Furthermore, someone from the organization will notify any donors whose blood tests positive to let them know about their STI status and also inform them that they can no longer donate blood.

Foote, who was diagnosed with HIV in 1988, notes that HIV criminalization laws benefit no one. Most of these laws were passed in the 1980s and 1990s when Americans, including the medical and scientific community until the mid-’80s, did not know much about how HIV was transmitted. “It was a totally different world in the 1980s,” she said. “There was a lot of fear, a lot of stigma.”

Since that time, the Office of Infectious Disease and HIV/AIDS Policy explains, it has become widely known that “people only transmit HIV if a person’s bloodstream comes in contact with certain fluids of a person living with HIV … through a mucous membrane (found in the rectum, vagina, mouth or tip of the penis), through open cuts or sores, or by direct injection (from a needle or syringe).”

So, “why are we stigmatizing these people with the virus?” Foote asked while pointing out that the state’s current law disregards scientific advancements and unfairly targets a historically marginalized population―PLWH.

Melissa Keyes, the executive director for In diana Disability Rights, agrees with this assessment. She wrote and submitted a letter to Indiana’s legislature explaining why the old-fashioned regulations are not needed. Keyes told TheBody that her organization is not a lobbying group and is neutral toward HB 1198, but she wrote its letter to educate lawmakers. She also noted that the state’s current HIV criminalization laws could violate the Americans with Disabilities Act.

As Indiana Disability Rights’ letter explained, “Laws criminalizing people living with HIV without basis in current objective scientific evidence risk violating the Americans with Disabilities Act (ADA). Title II of the ADA prohibits discrimination on the basis of disability by state and local governments. Indiana’s HIV criminalization laws based on this outdated science may constitute disability discrimination because the laws expressly treat people living with HIV differently from others engaging in the same behaviors.”

Attempts at HIV Decriminalization and Reform Are Not Over

Activists looking to improve the lives of PLWH have been trying since 2019 to revise Indiana’s outdated laws. They tried five times, including introducing two House bills in 2022. This year would be the sixth attempt.

Three of those five attempts failed outright, with the first endeavor at eliminating stigmatizing language (HB 1325 in 2019) not even making it out of a Senate committee. The second try―HB 1158, which would have repealed the notification requirement health officers must make if they believe someone has been exposed to HIV―also died, this time in 2022.

These notifications, Foote said, “create mistrust between doctors and patients.” Sharing one’s status is already difficult without facing the added stress that a doctor may be compelled to share that information with others―such as the police.

The third shot, HB 1032, wound its way through the state legislature in 2022 but did not make it to the Senate. If passed, it would have removed “sentencing enhancements for battery and malicious mischief … offenses concerning the donation, sale, or transfer of blood or semen that contains HIV.”

Foote says that when bills related to HIV have made progress, they have usually involved changing the bill’s language. For instance, in March 2020, the state General Assembly passed House Bill 1182, which focused on changing the text in Indiana’s public health code. The new law eliminated the word “carrier” when referring to PLWH and instructed lawmakers to use the phrase “individual with a communicable disease” instead. Additionally, state legislatures substituted the words “dangerous” with “risk” and “spread” with “transmission” and stopped referring to AIDS as HIV. This reference addressed the fact that AIDS is a condition that occurs when HIV is left untreated to the point that one’s immune system is entirely defenseless―and is not a communicable virus unto itself.

Additional progress occurred a year later when Gov. Eric Holcomb signed HB 1340 into law on April 29, 2021. This law concentrated on Indiana’s criminal code and replaced the phrase “dangerous communicable disease” with “serious communicable disease.”

Although HB 1198 did not pass, Foote said that she focuses on the fact that “We’re making progress along the way.”

“Changing laws takes a lot of time,” she continued. “We keep plugging away and coming back. That’s kind of the challenge of lawmaking.” And as time has passed, Foote says that the movement to reform HIV criminalization laws has garnered support from a growing list of organizations, including the Indiana Prosecuting Attorneys Council, Indiana Public Defender Council, Indiana State Medical Association, and the Indiana Minority Health Coalition. One reason why these groups have joined the cause is that Foote and likeminded allies constantly advocate for and educate others on the benefits of reform.

During the summer of 2022, HMMI conducted an interim study session focusing on educating lawmakers and various organizations about HIV transmission, including the fact that saliva does not transmit the virus. The Indiana Prosecuting Attorneys Council’s new support for HB 1198 signaled that the session was successful and that when the next HIV criminalization reform bill is introduced, it will have a greater chance of passing.

TheBody reached out to representatives McNamara, Clere, Negele, and Vermillion and Sen. Glick for comment on what inspired them to support HIV criminalization reform. None of the legislators responded to the request.

Kenya: People living with HIV will continue to lobby for change after disappointing High Court decision

“HIV is not a crime!” – People living with HIV disappointed by High Court judgment in HIV criminalisation case

31 March 2023 – Nairobi, Kenya
Communities of people living with and affected by HIV are disappointed with the Nairobi High Court’s decision dismissing Petition 447 of 2018.

This is a Petition was filed in December 2018, that asked that the Court declare section 26 of the Sexual Offences Act 3 of 2006 to be unconstitutional, void and invalid, and therefore struck from the law. This law criminalises deliberate transmission and or exposure of life-threatening sexually transmitted diseases, including HIV. The manner in which it has been interpreted has caused harm to persons living with HIV.

On 20 December 2022, Justice Ong’udi in the Nairobi High Court dismissed the
Petition, upholding the law’s constitutionality.

“We are disappointed with the judgment. Evidence from across the world shows us that criminalisation does not prevent HIV transmission. It makes effective HIV testing, treatment and disclosure harder and it increases stigma and discrimination”, said Carlin Kizito.

The communities were particularly concerned that the law leaves women living with HIV vulnerable to unjust prosecution. “Women are usually the first to find out about their
HIV status when they test during pregnancy. Because of this, the law makes them vulnerable to prosecution because they will be assumed to be the one who brought HIV into the relationship even when this is not the case,” said Jerop Limo, Executive Director of Adolescent and Youth Reproductive Health Program (AYARHEP)

Maurine Murenga of Lean on Me Foundation said that the State does not have the means to prove scientifically that one person necessarily transmitted HIV to another.
She said further, “Laws like this also spread misinformation about HIV. We’ve seen a number of women living with HIV being prosecuted for breastfeeding, yet breastfeeding guidelines state that breastfeeding is safe for women on HIV treatment. In fact, the World Health Organisation recommends it.” Maurine further added that “HIV is not a crime or a death sentence. With effective treatment, you can live a long and healthy life. Effective treatment also makes HIV undetectable and therefore untransmissible. Testing, treatment and support should be our focus, not punishment,”

Bozzi Ongala of the Adolescent and Youth Reproductive Health Program (AYARHEP) spoke on the need for using science to improve laws on HIV, “We urge that there be a progressive updates in the law in response to Scientific advancements on HIV research.”

“We, the networks of people living with HIV are encouraged that the Petitioners intend to appeal the judgment. We shall continue to lobby the government to change the law. On behalf of people living with HIV, we look forward to positive justice.” said Patricia Asero of ICW Kenya.
Signed:

Adolescent and Youth Reproductive Health Program (AYARHEP)
ICW Kenya
DACASA
Operation Hope Community Based Organization
Network of People Living with HIV (NEPHAK)
Lean on Me
MOYOTE
YPLUS Kenya

Mexico: Civil society urges Supreme Court to rule against the constitutionality of law penalising HIV or STI exposure

Changes to the Penal Code of Querétaro, would endorse “discrimination”.

Translated with www.DeepL.com, please scroll down for English version

Currently, the Penal Code of the State of Querétaro imposes penalties on anyone who “knowing that he or she suffers from a serious illness in an infectious period (…) puts the health of another in danger of contagion”.

Querétaro, 10 March 2023.- The Supreme Court of Justice of the Nation (SJCN) should be careful, since if it were to endorse the constitutionality of the “Garrote Law”, approved by the Congress of Querétaro during the pandemic, it would be endorsing discrimination, emphasised Luis Felipe Zamudio, director of the Centre for Guidance and Information on HIV-AIDS (COIVIHS).

This is in reference to article 127-BIS of the State Penal Code, which establishes penalties, comparable to the crime of injury, for anyone who “knowing that they suffer from a serious illness during an infectious period (…) puts the health of another at risk of contagion through sexual relations or any other transmissible means”.

In this sense, Zamudio warned that Querétaro, like other states in the country, “criminalises with this article in its Penal Code, those who have a sexually transmitted infection or live with HIV, since the Civil Registries also prevent access to marriage for those who live with this health condition.

For this reason, Zamudio stressed that civil organisations are keeping an eye on what happens in the SCJN, as the decision taken by its plenary will have repercussions for all states.

“It would be endorsing discrimination and would lead to a very serious problem. This would also be a catastrophe in terms of human rights, because then we would be talking about the fact that the Supreme Court does not have all the experience it should have, and that is what the ministers are there for,” he argued.
He also stressed that part of the political agenda of COIVIHS is to repeal this reform of the Penal Code and will ask local deputies who are on the Commission on Health, Vulnerable Groups or Human Rights, as well as the Human Rights Ombudsman (DDH), to make a proposal to reform local legislation.

It should be recalled that recently, Minister Yasmín Esquivel Mossa had planned to endorse the constitutionality of the “Garrote Law”, however, after receiving opinions from her colleagues on the Court, she announced that she was withdrawing her proposal.

Reformas al Código Penal de Querétaro, avalaría “discriminación”
Actualmente, el Código Penal del Estado de Querétaro impone penas a quien “sabiendo que padece una enfermedad grave en período infectante (…) ponga en peligro de contagio la salud de otro”.

Querétaro, 10 de marzo del 2023.- La Suprema Corte de Justicia de la Nación (SJCN) deberá de ser cuidadosa, ya que de avalar la constitucionalidad de la “La ley Garrote”, aprobada por el Congreso de Querétaro en la pandemia, estaría avalando la discriminación, enfatizó Luis Felipe Zamudio, director del Centro de Orientación e Información en VIH-Sida (COIVIHS).

Esto al hacer referencia al artículo 127-BIS del Código Penal del Estado y que establece imponer penas, equiparables al delito de lesiones, a quien “sabiendo que padece una enfermedad grave en periodo infectante (…) ponga en peligro de contagio la salud de otro, por relaciones sexuales u otro medio transmisible”.

En este sentido, Zamudio alertó que Querétaro, al igual que otros estados del país” criminaliza con este artículo en su Código Penal, a quien tiene una infección de transmisión sexual o vive con VIH, ya que, también se impide en los Registros Civiles el acceso al matrimonio, a quien vive con esta condición de salud.

Por ello, Zamudio recalcó que las organizaciones civiles están al pendiente de lo que ocurra en la SCJN, pues la decisión que tome su pleno, repercutirá para todos los estados.

“Estaría avalando la discriminación y se metería en un problema muy fuerte. Eso además sería una catástrofe en materia de derechos humanos, porque entonces hablaríamos de que la Suprema Corte no del todo, tiene toda la experiencia, que debería de tener y que para eso están ahí los ministros y las ministras”, argumentó.
Asimismo, subrayó que parte de la agenda política de COIVIHS, es lograr derogar esta reforma del Código Penal y se solicitará tanto a los diputados locales que estén en la Comisión de Salud, Grupos Vulnerables o de Derechos Humanos, al igual que a la Defensoría de los Derechos Humanos (DDH), para que realicen una propuesta y se logré reformar la legislación local.

Cabe recordar que, recientemente, la ministra Yasmín Esquivel Mossa tenía previsto avalar la constitucionalidad de la “Ley Garrote”, sin embargo, tras recibir opiniones de sus compañeros de la Corte, anunció que retiraba su propuesta.

Mexico: Nayarit congress repeals laws criminalising the transmission of HIV and other infectious diseases

Nayarit Congress approves reforms to combat discrimination against people living with HIV

Translated with Deepl.com. Please scroll down for article in Spanish

The Congress of Nayarit approved reforms to the State Penal Code so that people with HIV and diseases transmitted by intimate contact are not discriminated against and enjoy their right to the development of their personality and privacy.

The proposal was presented by the president of the 33rd Legislature, Congresswoman Alba Cristal Espinoza Peña, who endorsed the request of groups of people with these diseases.

“Society and legislators, this is the way to continue searching for a more inclusive and respectful Nayarit, it is once again the result of the combination of society and legislators, we have to break the stigmatising barriers”, declared Espinoza Peña.

By removing the crime of contagion from the Penal Code, this vulnerable sector will no longer have to suffer discrimination for having a sexually transmitted disease.

Nayarit joins the states of Aguascalientes, Jalisco, San Luis Potosí and Tabasco, where their Penal Codes do not provide for a specific crime for the transmission of sexually transmitted diseases through intimate relations; this does not mean that it will not be prosecuted, but that it will be subject to the crime of injury.

In this same session, the deputies reformed the Law on Women’s Access to a Life Free of Violence and the Penal Code, regulating violence by extension (vicarious violence) as a criminal offence, in order to inhibit violence against the partner or ex-partner through manipulation or affecting the children.

Aprueba Congreso de Nayarit reformas para combatir discriminación hacia personas con VIH

El Congreso de Nayarit aprobó reformas al Código Penal del Estado para que personas que padecen VIH y enfermedades transmitidas por contacto íntimo, no sean discriminadas y gocen su derecho al desarrollo de la personalidad e intimidad.

La propuesta fue presentada por la presidenta de la 33 Legislatura, diputada Alba Cristal Espinoza Peña, quien hizo suya la petición de colectivos de personas con estos padecimientos.

“Sociedad y legisladores, ese es el camino para poder seguir buscando un Nayarit más incluyente y más respetuoso, es una vez más el resultado de la combinación de la sociedad y legislador, tenemos que romper las barreras estigmatizantes”, declaró Espinoza Peña.

Al eliminar el delito de contagio del Código Penal, este sector vulnerable ya no tendrá que sufrir discriminación por contar con una enfermedad de transmisión sexual.

Nayarit se suma a los estados de Aguascalientes, Jalisco, San Luis Potosí y Tabasco, lugares donde sus Códigos Penales no tienen previsto un delito en particular para el contagio de enfermedades de transmisión por relaciones íntimas; ello no significa que no será perseguido, sino que se sujetará a través del delito de lesiones.

En esta misma Sesión las y los diputados reformaron la Ley de Acceso a las Mujeres a una Vida Libre de Violencia y el Código Penal, regulando la violencia por extensión (violencia vicaria) como delito penal, ello para inhibir la violencia contra la pareja o expareja a través de la manipulación o afectación de las y los hijos.

US: Bill put forward in Minnesota would repeal HIV criminalisation law

Democrats propose repealing law against knowingly exposing someone to HIV

Five Minnesota House Democrats are proposing eliminating the law that makes it a crime to knowingly expose someone to HIV or other sexually transmitted diseases.

The lawmakers’ bill (HF267) would repeal a 1995 law that allows prosecutors to charge someone who “knowingly harbors an infectious agent” and engages in behaviors that could transfer it to another person, such as through sex, sharing needles or by donating blood, sperm or organs. A person who takes steps to prevent transmission, as advised by health professionals, is not guilty of a crime under the law.

“This is part of a national — really international — movement to repeal laws that criminalize HIV,” said Rep. Leigh Finke, DFL-St. Paul. “These are old, outdated, homophobic statutes.”

Laws criminalizing the spread of HIV are not uncommon. Most were enacted at the height of the AIDS epidemic in the late 1980s and 1990s. Thirty-five states have laws that criminalize exposing others to HIV without their consent, according to the Centers for Disease Control and Prevention.

The laws were enacted before the development of antiretroviral treatments, which can reduce the presence of HIV so much that it is undetectable and untransmittable. Many laws don’t account for those developments or else reflect the limited understanding people had at the time of HIV transmission by criminalizing actions like spitting or oral sex.

The CDC as well as the Department of Justice advise that states repeal those laws or “modernize” them, noting that they have not been shown to be effective in curbing the spread of HIV. The laws may even be counterproductive by disincentivizing people from getting tested and knowing their status.

Minnesota’s current law largely conforms to what the CDC recommends, however. The law applies to all communicable diseases, not just HIV. The law does not apply to people who take preventative measures such as wearing a condom or taking a viral suppression medication. And the law does apply to acts that don’t lead to transmission like spitting or oral sex.

While criminal cases are rare, they do occur. In the past five years, four people have been charged in Minnesota courts with knowingly transferring a disease, one of whom was convicted.

In 2018, Simon Santiago Vicente was charged with two felonies for raping a 20-year-old woman in the restaurant he managed in Lino Lakes. The woman called 911 during the attack and dispatchers reported hearing her say “no” repeatedly.

Police arrived and found Vicente on top of the woman in one of the booths. After being arrested and taken to the Anoka County jail, Vicente reported that he is HIV positive and had not been taking medications to treat it since 2016.

Vicente ultimately pleaded guilty and was sentenced to 62 months in prison for criminal sexual conduct and 55 months for transferring a communicable disease. The sentences were concurrent, so Vicente won’t serve additional time in prison because he transferred HIV.

Asked about that case, Finke said: “I think convicting a rapist for rape is sufficient.”

“I don’t think there’s a meaningful reason for us to have statutes that criminalize a rapist because that rapist has HIV. He’s a rapist and should be criminalized for rape,” she said.

Even if the law were repealed, prosecutors may still be able to seek longer sentences in sexual assault cases that result in victims contracting a communicable disease by arguing it is an aggravating factor.

The bill is co-authored by Democratic Reps. Athena Hollins of St. Paul, Jessica Hanson of Burnsville, Alicia Kozlowski of Duluth and Brion Curran of Vadnais Heights.

US: New bill would repeal Minnesota’s criminal statute on HIV exposure and transmission

HF 267, a bill that would repeal Minnesota’s criminal penalties for “transmission of a communicable disease from one person who knowingly harbors the agent to another”, has been introduced on January 11 and will be sent to the House’s Public Safety Committee for debate.

Current Minnesota law makes it a crime to knowingly engage in behaviour deemed to be a possible mean of transmission of a communicable disease via sexual intercourse, blood, sperm, organ or tissue donation, or sharing of needles or syringes for the purpose of injecting drugs.

Ukraine: New protective HIV law adopted, but criminal liability for HIV exposure or transmission remains

The Parliament of Ukraine has adopted the Bill “On amendments to the Law of Ukraine “On combating the spread of diseases caused by the human immunodeficiency virus (HIV), and on legal and social protection of people living with HIV”, which applies modern approaches to HIV prevention, testing and treatment based on WHO guidelines.

Barriers to HIV testing have been reduced by enshrining in law the long-standing practice that testing can be carried out by non-governmental organisations on a peer-to-peer basis.

The archaic concept of ‘risk groups’ has been abolished, with the law referring instead to practices that may involve some risk. There are also key populations to which the state should direct its efforts to prevent the spread of HIV.

From now on, a person is considered to be “living with HIV” only from the moment of laboratory confirmation of the diagnosis. If a rapid test shows that you have HIV antibodies, you are not yet considered to be living with HIV.

The law guarantees universal access to HIV services regardless of legal status in Ukraine, which is in line with the European Convention on Human Rights.

Pre-exposure prophylaxis, or PrEP, is introduced into the legal sphere

Self-testing is introduced into legislation: you can test yourself for HIV – on your own or with the help of a counsellor.

Minors can get tested on their own initiative from the age of 14 (under 14 – at the request of their parents).

Every blood donation will be subject to an HIV test before it can be used – this is now part of the law.

The law explicitly prohibits the humiliation of people on the basis of belonging to various key populations, such as MSMs.

New progressive regulations will be adopted at the Ministry of Health level, on testing procedures, diagnosis, etc.

All of the above are innovations from draft law 6364, which was adopted as a whole by the Verkhovna Rada at its first plenary session this year.

The new law is the result of many years of efforts by many governmental and non-governmental partners, including the Centre for Public Health of Ukraine, 100% Life – PLWH Network, UNAIDS and many others, as well as community organisations such as the All-Ukrainian Association of People with Drug Addiction, Positive Women, the National LGBTI Consortium, Legalife-Ukraine.

US: New bill in North Dakota aims to modernise outdated HIV-criminalisation law

Letter: North Dakota has a chance to destigmatize HIV and AIDS

Opinion:

“Folks living with HIV/AIDS are valuable contributors to their families, communities, and warrant equal treatment under the law,” Fargo resident Kara Gloe writes.

House Bill 1281 is an opportunity to right a wrong. The current law is discriminatory and codifies stigma faced by people living with HIV/AIDS. Similar laws don’t exist for herpes, hepatitis or other STIs with no cure. Considering there have only been three convictions under this law, it’s a solution to a problem North Dakota has never had. Frankly, it does more harm than good.

As a mental health therapist serving people living with HIV/AIDS in North Dakota, every client discusses the stigma. For many, someone discovering their status without their consent is a fear constantly running through their minds. For many, it is or has been the reason they are isolated, stuck in unhealthy relationships, suffer from substance use disorder, etc. It’s a major contributing factor to depression, anxiety and/or has caused or contributed to trauma. It is the reason they stopped attending church or have lost their community. I have heard how others’ ignorance plagues my clients, either as thousands of paper cuts or as full frontal emotional and psychological assaults.

Medical advances take us further away from the AIDS epidemic and failed health policy of the 1980s. HIV is no longer a terminal illness, but rather a manageable long-term disease not unlike diabetes. People having access to resources needed to heal trauma and develop coping skills for thriving, instead of just surviving, benefits everyone. Folks living with HIV/AIDS are valuable contributors to their families, communities, and warrant equal treatment under the law. I hope North Dakota legislators and their constituents will send the message that North Dakotans agree.