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.

US: Bill to modernise Indiana HIV laws advances to the full House

Legislation to modernize Indiana’s HIV laws clears House committee

People with HIV would no longer be subject to harsher criminal penalties under legislation that advanced out of a House committee Wednesday.

If you put your bodily fluid or waste on someone – like, say, spitting on them – it’s a misdemeanor in Indiana. But laws passed decades ago said that if you know you have HIV, it becomes a felony.

Carrie Foote said such laws reflect an outdated understanding of how HIV spreads. Foote, who was diagnosed with HIV in 1988, leads the state’s HIV Modernization Movement.

“HIV is not transmitted that way,” Foote said. “HIV is transmitted in very specific ways: sexually or if you share intravenous drugs with somebody.”

The measure, HB 1198, initially got rid of harsher penalties for putting bodily fluid on a law enforcement officer when you have HIV.

The statewide police union, represented by Ed Merchant, didn’t like that. He said police prefer the law the way it is – even if officers aren’t at risk from contracting HIV from things like spit.

“This provides our officers with better cover,” Merchant said. “It penalizes – it makes a felony for doing that.”

Rep. Wendy McNamara (R-Evansville) attempted a compromise – the bill now leaves in a felony if a person with HIV puts blood on a public safety official.

Other parts of the bill completely eliminate criminal penalties for donating blood or semen when you know you have HIV. Advocates said testing has eliminated the risks of such donations – and people with HIV can even be organ donors now.

More importantly, Dr. David Welsh said, those criminal penalties cause people to avoid getting tested for HIV in the first place – if they don’t know they have the virus, they can’t get charged.

Welsh represents the Indiana State Medical Association.

“Outdated laws can interfere with how we interact with our patients and can cause patients to distrust their physicians,” Welsh said.

The bill does make it a felony if a person with HIV isn’t following a treatment plan provided by a doctor and shares a needle or makes sexual contact with someone else without telling them they have HIV.

The measure is headed to the full House.

US: New bill in Indiana would remove sentence enhancements and criminal offences related to HIV

Indiana has harsher legal penalties for those living with HIV. A bill would change that.

Getting diagnosed with HIV was a death sentence in 1988, when Carrie Foote was 18 years old.

Thirty-five years later, the sociology professor at IUPUI has only the normal quirks of aging to worry about. Her chronic disease, with advancements in medicine, is entirely manageable with treatment.

But Indiana’s laws haven’t caught up to this reality. Laws on the books since the 1980s single out people living with HIV and give them stiffer penalties for certain acts, from donating blood or semen to spitting on another individual, despite advancements in scientific knowledge on how HIV is transmitted. Lawmakers are attempting for the fourth year to rectify the disparity, and have gained more support than in previous years.

“All we’re saying is just treat us fairly,” Foote told IndyStar after House Bill 1198’s first hearing Wednesday.

The bill, written by Rep. Wendy McNamara, R-Evansville, proposes eliminating the part of Indiana law that says those who know they have HIV and donate blood or semen can be punished with a felony. Clinical studies since this law was written have shown that people who undergo treatment can achieve an undetectable amount of HIV in their blood stream, which means they aren’t able to transmit HIV to other people. The U.S. Food and Drug Administration tests all donated blood and throws out any with traces of infectious disease.

Under existing law, purposefully spitting or putting some other bodily fluid, like feces, on another person is a misdemeanor. But it’s a felony for those who have HIV. The bill proposes removing the enhanced sentence for people living with HIV, as the modern scientific consensus shows these kinds of fluids do not transmit HIV, according to the CDC.

This is the fourth session where such a bill has been introduced. After hearing testimony Wednesday, the Courts and Criminal Code committee held the bill for a vote next week.

Foote, who chairs the statewide HIV Modernization Movement, said progress has been made every year in the Statehouse, starting with the removal or modernization of some language in the law that stigmatized people living with HIV ― changing “carrier” into “person with a communicable disease,” for example. The movement is a coalition of health providers, public health authorities, community leaders, legal experts and people living with HIV that formed in 2016 to work toward changing state laws.

This year, the bill gained new support from the Indiana Prosecuting Attorneys Council. The council was swayed by testimony from Indiana Department of Health and Eskinazi Hospital officials during a summer study committee on the advancements in medical knowledge of how HIV is transmitted, assistant executive director Courtney Curtis said.

The council then researched how often it files charges related to these parts of the law. Indiana prosecutors haven’t filed any charges related to HIV-positive blood donors since at least 2015, and have only done so ten times in the law’s history, she said. They charge more cases relating to assault with bodily fluids, but this charge is not “clogging up our system,” she said.

Lawmakers do plan to work with the council to tighten up language in a section of the bill to ensure it meshes cleanly with Indiana code before next week’s vote.

In a study of court case filings from 2015 to 2022 by IUPUI and the UCLA School of Law, 98% of the 130 cases of battery by bodily fluid involved acts that cannot transmit HIV. The other 2% involved sex, which carries the risk of transmission if a person has a detectable amount of HIV in their system.

The persistent stigma affects people of color more. Though Black people made up 13% of the U.S. population in 2019, they made up 40% of the population of people living with HIV, according to the CDC. Only 9% of Black people who were eligible for HIV prevention treatment actually got it in 2020, compared to 65% of white people.

Tony Gillespie, vice president of the Indiana Minority Health Coalition, remembers a time when the city of Gary, where he’s from, had no services for Black gay men living with HIV. Having now lived with HIV for 30 years, he said he’s encouraged by the progress made in both Gary and with this legislation.

“I’m encouraged because this is such a move in the right direction in making science-based decisions and not fear-based,” he said.

The bill is met with skepticism from the Indiana state police union. Legal representative Ed Merchant said the Fraternal Order of Police is opposed to eliminating the enhanced charge for people with HIV who, for example, spit on an officer. The bill would keep in place the part of the law that says those with an intent to harm someone else can be charged with a felony, but Merchant said the FOP believes existing law gives officers “better cover.”

Indiana remains one of 35 states that have laws criminalizing HIV exposure as of late 2022, according to the CDC.

McNamara attributes this to a generational stigma rooted in fear-mongering from the 1980s and 90s. Anyone growing up at that time remembers turning on the TV and hearing about people dying from HIV/AIDS, she said.

“That fear predominates a lot of the mindset of my generation,” she said. “And I think that’s what makes it hard.”

Democratic Republic of Congo: Decriminalisation can be achieved when all stakeholders, including people with HIV, are included in the process

The AIDS epidemic and the justice system: Fighting against the criminalisation of HIV in the DRC

Translated from French with Deepl.com – Scroll down for original article.

By Ms MUJINGA BIMANSHA Marie-Josée, Conseiller à la Cour de Cassation, Country Focal Point, HIV and Human Rights

It has been observed that 3 decades after the appearance of HIV infection and despite all the efforts undertaken and the progress made in scientific and medical terms, particularly through the production of ARVs, this epidemic continues to resist.

This resistance is linked to certain major obstacles that render the response ineffective. These include the violation of human rights through discrimination and stigmatisation of people living with HIV/AIDS, vulnerable people such as women, young girls, children and key populations.

In the Democratic Republic of Congo, Article 45 of Law No. 08/11 of 14 July 2008 on the protection of the rights of people living with HIV and those affected, criminalised anyone who deliberately transmitted HIV infection.

4 years after the promulgation of the aforementioned law, several cases were brought to court on the basis of the aforementioned provision, but most of the perpetrators were acquitted for lack of evidence to prove that they had committed the offence.

It was subsequently observed that the public had begun to stigmatise the victims who brought their complaints before the courts, who began to live in hiding.

This situation raised the question of the criminalisation of HIV because, on the one hand, people living with HIV (PLHIV) and their perpetrators (AP) began to go underground for fear of being stigmatised and discriminated against and, on the other hand, because the judges hearing these cases were finding it difficult to establish the offences in the cases brought before them.
This law had a negative impact on the national response, because PLHIV and IP had difficulty accessing justice and all HIV-related services.

To remedy this situation, a national dialogue was organised under the aegis of the Ministry of Justice through the country’s HIV and Human Rights Focal Point and all the components of the response, at the end of which a number of recommendations were made that led to the reform of the aforementioned law. In particular, the dialogue facilitated the drafting of the National Strategic Plan for the fight against AIDS, a review of the legal framework, and a study on the stigma index for PLHIV and key populations. In addition, training materials, pleas and arguments for the non-discrimination of key populations were developed at national level.

Around 3,500 magistrates and 6,000 court officers (OPJs, lawyers, IPJs, clerks) have been trained in rights and HIV and in the criminalisation of HIV. Forums have also been organised with members of parliament, who have been made aware of HIV issues and the need to revise provisions that criminalise HIV. Religious leaders have also been made aware of HIV-related issues.

As a result, in 2016 we were able to get Parliament to repeal Article 45, which penalised HIV.

We must remember that to achieve this reform of the law we based ourselves on the realities of the country, given the negative consequences of penalising provisions in the response to HIV. We have held many discussions with parliamentarians on the issue of criminalising HIV. We have identified the right allies among parliamentarians to bring the issue before the National Assembly. We have also involved the judiciary, HIV and human rights associations and the media in the discussions.

So it was by combining our efforts with all the players mentioned above, including the government through the Ministry of Justice, and technical and financial partners, in particular the UNDP, and by organising training and awareness-raising activities that we achieved the desired result.

In conclusion, the process of decriminalisation is certainly a long one, but it is necessary to involve all the components mentioned above through training and awareness-raising, including people living with HIV themselves, and vulnerable groups to achieve a good result.

While mobilisation in the DRC led to the reform of the law on HIV, the process was not without its difficulties in a context of stigmatisation and homophobia that is still present.

Legislative reform can take time, and can even discourage certain allies and partners. We believe, however, that efforts still need to be made to ensure greater ownership of non-penalising laws on HIV, including by building the capacity of those involved in the justice system.

Epidémie de sida et le système de justice: Lutter contre la criminalisation du VIH au RDC

Par Mme MUJINGA BIMANSHA Marie-Josée, Conseiller à la Cour de Cassation, Point Focal Pays, VIH et Droits Humains

Il a été constaté que 3 décennies après l’apparition de l’infection à VIH Sida et malgré tous les efforts entrepris et les progrès enregistrés sur les plans scientifique et médical notamment par la production des ARV, cette épidémie continue à résister.

Cette résistance est liée à certains obstacles majeurs qui rendent la riposte inefficace. Il s’agit notamment de la violation des droits humains qui se traduit par la discrimination et la stigmatisation à l’égard des personnes vivant avec le VIH sida, les personnes vulnérables telles que les femmes, les jeunes filles, les enfants et les populations clés.

S’agissant de la République Démocratique du Congo, la loi n° 08/11 du 14 juillet 2008 portant sur la protection des droits des personnes vivant avec VIH et personnes affectées, criminalisait en son article 45, toute personne qui transmettait volontairement l’infection de VIH.

4 ans après la promulgation de ladite loi, plusieurs cas ont été portés en justice, sur base de la disposition précitée mais la plupart des auteurs poursuivis ont été acquittés faute des preuves d’établir cette infraction à leur charge.

Il a été constaté par la suite, que la population avait commencé à stigmatiser les victimes qui se plaignaient en justice, qui ont commencé à vivre en clandestinité.

Cette situation a remis sur la table la question de la pénalisation en matière de VIH car d’une part, la personne vivant avec le VIH (PVVH) ainsi que leurs auteurs (PA) ont commencé à vivre en clandestinité par crainte de la stigmatisation et de la discrimination à leur égard et d’autre part, parce que les juges saisis de ces cas rencontraient des difficultés à retenir les infractions pour les cas qui leur étaient soumis.
Cette loi, a joué négativement sur la riposte nationale parce que les PVVH et PA avaient du mal à accéder à la justice et à tous les services liés au VIH.

Pour remédier à cette situation, un dialogue national a été organisé sous l’égide du Ministère de la Justice à travers le Point Focal pays VIH et Droits HUMAINS ainsi que toutes les composante à la lutte à l’issue duquel ont été prises certaines recommandations qui ont milité à le réforme de la loi précitée. Notamment, le dialogue a facilité l’élaboration du Plan Stratégique National de lutte contre le sida, une revue du cadre légal, une étude sur l’index stigma des PVVH et population clé. De plus, l’élaboration des supports de formation et des plaidoyers, des argumentaires pour la non-discrimination des populations clés ont été tenus au niveau national.

Environ 3.500 magistrats, 6.000 auxiliaires de justice (OPJ, avocats, IPJ, Greffiers) ont été formés sur les questions des droits et VIH et sur la problématique de la criminalisation du VIH. Des forums ont été également organisés avec les parlementaires qui ont été sensibilisés sur les questions du VIH et sur la nécessité de réviser les dispositions pénalisantes en matière de VIH. Les leaders religieux ont été aussi sensibilisés sur les questions liées au VIH.

C’est ainsi qu’en 2016 nous avons pu obtenir du parlement l’abrogation de l’article 45 qui était pénalisant pour le VIH.

Nous devons retenir que pour réussir cette réforme de la loi nous nous sommes basés sur les réalités du pays eu égard aux conséquences négatives des dispositions pénalisantes dans la riposte contre le VIH. Nous avons multiplié les échanges sur la question avec les parlementaires sur la question de la pénalisation du VIH. Nous avons identifié les bons alliés parmi les parlementaires pour porter la question devant l’Assemblée nationale. Nous avons également associé aux échanges, les acteurs judiciaires, les associations de lutte contre le VIH et de défense des droits de l’homme ainsi que les médias.

Ainsi donc, c’est en conjuguant les efforts avec toutes les composantes précitées y compris le gouvernement à travers le ministère de la Justice, ainsi que les partenaires techniques et financiers, notamment le PNUD, et en organisant des activités, des formations et de sensibilisation que nous sommes parvenu au résultat escompté.

En conclusion, le processus de la dépénalisation est certes long mais il faut associer toutes les composantes précitées par la voie de formation et sensibilisation, y compris les personnes vivant avec VIH elles-mêmes, et les groupes vulnérables pour parvenir à un bon résultat.

Si la mobilisation en RDC a conduit à la réforme de la loi sur le VIH le processus n’a pas été sans difficulté dans un contexte de stigmatisation et d‘homophobie toujours présente.

Les reformes législatives peuvent prendre du temps et entrainer même le découragement des certains alliés et partenaires. Nous estimons cependant que les efforts restent à faire pour une meilleure appropriation des lois non pénalisantes sur le VIH et cela en passant également par le renforcement des capacités des acteurs de justice.

Mexico: LGBTQ+ community calling for the repeal of HIV criminalisation statute in Quintana Roo Public Health Law

LGBTQ+ community calls for changes to Quintana Roo Health Law

Translated via Deepl.com. Please scroll down for original article in Spanish.

The LGBTQ+ community is calling for the repeal of the criminalisation of HIV transmission in the Quintana Roo Health Law.

The LGBTQ+ community, in a working meeting with local Congresswoman Estefanía Mercado Asencio, requested the repeal of Article 113 of the Quintana Roo Health Law, which criminalises the transmission of sexually transmitted diseases, specifically HIV.

The repeal of this article, found in Title Eight, Chapter II, Communicable Diseases, has been requested for several Legislatures, but has been ignored, said Omar Ortiz, the President of the Civil Association “Información y Educación Sexual”.

At the meeting, which was attended by people representing sexually diverse populations, people involved in the HIV response and mothers of various sexually diverse populations, a request was made to encourage municipalities to have a Sexual Diversity Unit, as in Solidaridad, which is the only municipality with such a unit, and for the State Government to have a Secretariat for Sexual Diversity.

“We were attending to the pending legislative agenda, with respect to what is already advanced and what is pending in the matter, at the local level; we talked about article 113 of the Health Law, which criminalises the issue of HIV, as well as the fact that Solidaridad is the only municipality that has a Unit for the Attention to Sexual Diversity, and she, as a deputy, has the possibility of presenting an initiative so that all municipalities have this position,” he pointed out.

“The article criminalises the fact of transmission, when it is an issue that cannot be scientifically proven; I cannot prove that you have transmitted HIV to me because there is no scientific or laboratory mechanism that allows us to know that it was you and not another partner or my sexual contacts, nor at what moment it happened. There is no way to apply that article, it is basically up to interpretation and that cannot be in the law.

Another issue they asked the Congresswoman to address is the creation of the Unit for Comprehensive Care of Sexually Diverse Populations and Children and Adolescents who require specialised endocrinology care, which responds to the needs of social minorities, such as the transgender population, in order to carry out their transition process under medical supervision, without endangering their lives and health.

Exige comunidad LGBTQ+ cambios a Ley de Salud de Quintana Roo

La comunidad LGBTQ+ pide derogar la criminalización del hecho de la transmisión del VIH en la Ley de Salud de Quintana Roo.

La comunidad LGBTQ+, en reunión de trabajo con la Diputada local, Estefanía Mercado Asencio, solicitó derogar el artículo 113 de la Ley de Salud de Quintana Roo ya que, criminaliza el hecho de la transmisión de enfermedades venéreas, en específico del VIH.

El citado artículo, ubicado en el Título Octavo, Capítulo II, Enfermedades Transmisibles, se ha pedido su derogación desde hace varias Legislaturas, pero ha sido ignorado, apuntó el Presidente de la Asociación Civil “Información y Educación Sexual”, Omar Ortiz.

En el encuentro donde participaron personas de la diversidad sexual, de respuesta del VIH y madres de poblaciones de la diversidad, se solicitó la promoción de una iniciativa para que los Ayuntamientos tengan una Unidad de la Diversidad Sexual, como en Solidaridad, que es el único con esta instancia, y que el Gobierno del Estado tenga una Secretaría de la Diversidad Sexual.

“Estuvimos atendiendo la agenda Legislativa pendiente, respecto a lo ya avanzado y lo pendiente que tenemos en la materia, en el terreno local; hablamos del artículo 113 de la Ley de Salud, que criminaliza el tema del VIH, así como que Solidaridad es el único Ayuntamiento que tiene una Unidad para la Atención a la Diversidad Sexual, y ella, como diputada, tiene la posibilidad de presentar una iniciativa para que todos los municipios cuenten con esta figura”, señaló.

“El artículo criminaliza el hecho de la transmisión, cuando es un tema que científicamente no se puede probar; yo no puedo probar que tú me hayas transmitido el VIH porque no existe un mecanismo científico, de laboratorio, que permita saber que fuiste tú y no otra pareja o mis contactos sexuales, ni en qué momento se dio. No hay manera de aplicar ese artículo, está básicamente a interpretación y eso no puede ser en la ley”.

Otro tema que pidieron a la Congresista es la creación de la Unidad de Atención Integral a Poblaciones de la Diversidad Sexual y Niños, Niñas y Adolescentes que requieran atención especializada en endocrinología, que responda a la necesidad de las minorías sociales, como la población trans, a fin de realizar su proceso de transición bajo vigilancia médica, sin poner en peligro su vida y salud.

US: Presidential Advisory Council on HIV/AIDS (PACHA) issues resolution on Molecular HIV Surveillance and Cluster Detection

PACHA Unanimously Approves Resolution to Create Safeguards for People Living with HIV

PACHA UNANIMOUSLY APPROVES RESOLUTION TO CREATE SAFEGUARDS FOR PEOPLE LIVING WITH HIV

Directs CDC to Adapt Surveillance Activities to Better Protect Human Rights for Vulnerable Communities

October 18, 2022–PWN commends and applauds the Presidential Advisory Council on HIV/AIDS (PACHA) for their leadership in unanimously passing an historic resolution that is critical to protecting the human rights and dignity of people living with HIV, the Resolution on Molecular HIV Surveillance and Cluster Detection Response.

This resolution responds to concerns raised by public health officials and community advocates, especially networks of people living with HIV and human rights and data privacy experts, and urges the Centers for Disease Control and Prevention (CDC) to change their guidance on cluster detection and response (CDR) activities. Specifically, the resolution clearly and forcefully recommends that the CDC direct jurisdictions funded for such activities adapt their implementation of CDR to account for local conditions, including health data privacy protections and laws criminalizing people living with HIV.

“Basically, PACHA told the CDC that local context matters: if jurisdictions do not have adequate safeguards to protect the human rights and privacy of people living with HIV, the CDC must allow for a moratorium on CDR activities,” said Kelly Flannery, policy director at Positive Women’s Network-USA. “There is still room to create more robust protections for people living with HIV, such as informed consent standards. Going forward, we must ensure that there are no further developments and integration of new public health surveillance technologies impacting people living with HIV absent community input, oversight, and specifically involvement from networks of PLHIV.”

In the resolution, PACHA also urged CDC to work in partnership with networks of people living with HIV to create a stronger system of informed consent around the use of molecular HIV surveillance data. U.S.-based networks of PLHIV have been sounding the alarm about molecular HIV surveillance (MHS) since 2018, when the federal government first required that states and jurisdictions scale up the use of molecular surveillance technologies and activities as a condition of HIV prevention funding. By 2019, MHS was named one of the core pillars of the federal “End the HIV Epidemic” (EHE) Plan.

“As a result of massive mobilization and outcry by networks of people living with HIV and our allies, yesterday, we finally saw a response addressing community concerns,” said Venita Ray, co-executive director of Positive Women’s Network-USA. “Now it’s time for the CDC to take swift action to implement the recommendations from PACHA and networks of PLHIV.”

This resolution is a tremendous step forward for communities that are dually most impacted by HIV and by surveillance and policing – especially Black, Indigenous and People of Color, migrants, queer and transgender people, people who use drugs, those who work in in the sex trade, and those with the least access to quality, affordable healthcare. We are deeply appreciative to PACHA leadership and to the PACHA Stigma and Disparities Subcommittee for their tremendous efforts in response to concerns from networks of people living with HIV.

Now that it has now been unanimously approved by PACHA, what happens next will speak to the character and integrity of the CDC. Failing to implement these recommendations would represent an egregious breach of public trust. We will be closely monitoring the adoption of these important recommendations throughout the federal response.

The full PACHA resolution is available here.

Canada: Federal government opens its promised public consultation on HIV criminalisation law reform

Ottawa launches public consultation on reforming the criminal law on HIV non-disclosure

The federal government has opened its promised public consultation to help develop a policy roadmap for reforming the criminal law on HIV non-disclosure.

After reading the newly posted consultation paper on HIV non-disclosure, lawyers and other members of the public are invited to share their views until Nov. 20, via an online survey.

“HIV is first and foremost a public health matter and non-disclosure of HIV status is a complex issue,” Justice Minister David Lametti said in an Oct. 20 announcement. “Our government recognizes that the criminalization of people living with HIV can lead to stigmatization and significant hardships. This is why we are consulting Canadians on the best approach to reform the criminal law regarding HIV non-disclosure. It will help us find solutions, and will lead to better outcomes for affected populations.”

The government estimates 63,000 people live with HIV in Canada and 10 per cent may be unaware of their status.

“HIV non-disclosure” refers to criminal cases where a person living with HIV, who is aware of their status and knows they are infectious, does not disclose their HIV status before otherwise consensual sexual activity that poses a realistic possibility of transmission.

Questions asked in the consultation paper include:

Whether charges under the Criminal Code’s sexual assault provisions are appropriate in HIV non-disclosure cases;
Whether an intention to transmit, or actual transmission, should be requirements for criminal charges to be laid;
Whether criminal law should apply in cases where an accused has taken precautions to protect their sexual partner(s) from transmission; and
Whether a new HIV, sexually transmitted infection (STI), or infectious-disease-specific offence should be created to address HIV non-disclosure cases.

Right now those living with HIV, who don’t disclose their status prior to sexual activity that poses a risk of transmission, can be charged with various offences, including aggravated sexual assault — the most serious sexual assault offence in the Criminal Code.

However, criminalization can lead to the stigmatization of people living with HIV, which can often discourage individuals from being tested or seeking treatment, the Department of Justice (DOJ) says in a press release.

The DOJ notes that there has been considerable progress made in treating HIV and in the scientific evidence on rates of transmissibility.

The consultation is among the Liberal government’s commitments in its 2SLGBTQI+ Action Plan, launched last August. “Reforming the criminal law regarding HIV non-disclosure is an essential step in ensuring that Canadian justice policy advances the dignity and equality of 2SLGBTQI+ people,” the DOJ said.

In 2020, 1,639 newly diagnosed cases of HIV were reported in Canada, with most receiving appropriate treatment, the government noted.

On Dec. 1, 2017, the DOJ published a report, the Criminal Justice System’s Response to Non-Disclosure of HIV, that included a summary of the scientific evidence on sexual transmission of HIV and that was produced by the Public Health Agency of Canada.

On Dec. 8, 2018, the Attorney General of Canada also issued a directive related to the prosecution of HIV non-disclosure cases under federal jurisdiction which specifies, among other things, that prosecutions should not occur when an individual takes appropriate measures to prevent transmission of HIV (such as taking appropriate treatment to maintain a suppressed viral load), and that prosecutors must consider whether criminal charges are in the public interest.

Canada: Federal government must review past criminal cases of HIV nondisclosure for possible wrongful convictions

Ottawa urged to review past HIV cases for wrongful convictions

Canada has been described as a “global hot spot” by advocacy groups for HIV nondisclosure prosecutions. One lawyer hopes to change that.

The federal government must review past criminal cases of HIV nondisclosure for possible wrongful convictions, says the president of Ontario’s Criminal Lawyers’ Association.

Such a review would highlight the pressing need for a permanent commission to proactively review wrongful convictions in all cases, said Daniel Brown — something that a panel of retired judges recommended to the government, but which has yet to take shape.

“Yes, we want the government to carefully consider how this commission should be established, but they’ve had more than enough time to get this commission off the ground,” Brown said, “and if the government was motivated to see a wrongful conviction commission, it would exist already.”

Brown was speaking in the wake of the recent successful appeal of his firm’s client, Jennifer Murphy.

She had been convicted of aggravated sexual assault in 2013 for not disclosing her HIV-positive status in a consensual sexual encounter, despite having a low viral load due to antiretroviral medication which made it impossible for her to transmit the virus.

Canadian law requires an individual living with HIV to disclose their status to a sexual partner if there is a realistic possibility of transmission. At the time of Murphy’s conviction, it was generally understood within the legal system that disclosure was not necessary if the individual had both a low viral load and used a condom. No condom was used in the Murphy case.

The federal government says it wants to reform the law around nondisclosure, recognizing that a low viral load alone means there can be no realistic possibility of transmission. Consultations with advocacy groups are set to take place this month.

Canada has been described as a “global hot spot” by advocacy groups for HIV nondisclosure prosecutions, with more than 220 by the end of last year. Individuals are usually convicted of the crime of aggravated sexual assault, which carries a prison sentence and mandatory registration on the sex offenders registry.

Brown said there needs to be a plan to review those cases for circumstances similar to Murphy’s, where individuals had been convicted of a serious criminal offence despite being unable to transmit the virus — in other words, convicted because the law had not caught up with the science.

Reviewing wrongful convictions is also one of the four main demands put to the government in a statement released this year by the Canadian Coalition to Reform HIV Criminalization and signed by dozens of organizations.

Without commenting on specific cases, a spokesperson for Justice Minister David Lametti pointed out that individuals can appeal their case if they believe there has been an error. “Many errors and miscarriages of justice are corrected by appeal courts across the country,” said Chantalle Aubertin.

But Brown said that’s an “exhaustive and expensive” process, even more so for individuals convicted for HIV nondisclosure, who may already face stigma along with barriers to employment due to having a criminal record. It’s not a process they can navigate on their own, he said.

In the Murphy case, Brown said she had to file a formal motion seeking an extension of time to bring her appeal, retain an infectious diseases expert, and have lawyers spend multiple days arguing over admissibility of evidence.

“It was a lengthy process that lasted well over three years and an expensive one as well, even with lawyers who were prepared to donate their time for free,” Brown said.

“Simply saying that people can take their case before the appeal courts fails to recognize those barriers that exist, and that’s why it’s important that a wrongful conviction review be created to address these concerns.”

Under the current wrongful conviction review process, once an individual convicted of any crime has exhausted all of their rights to appeal, they can request that their case be reviewed by a special group at the justice department — a process that can take years. The minister then ultimately decides whether the application should be granted or dismissed.

“This is the process now, and it is one we accept needs to be improved,” Aubertin said.

Last year, a report to the government from former judges Harry LaForme and Juanita Westmoreland-Traoré recommended the creation of an independent commission to proactively review cases that might have resulted in wrongful convictions, saying such a body was “urgently required.”

Aubertin said Lametti is “fully committed” to the creation of a commission, and that the policy work necessary to create it is underway.

“Minister Lametti would like the commission ready to launch by the end of his mandate — but it is important that we take the time to do this properly. Too much is at stake,” she said.