Uganda: Legal Environment Assessment recommends changes to the penal code to address HIV and sex work criminalisation, stigma, discrimination and gender-based violence

Ugandan Laws Constraining Fight against HIV/AIDS – Report

 

A report titled “Legal Environment Assessment (LEA) for HIV/AIDS in Uganda” released by the Uganda AIDS Commission on Friday has revealed that some Ugandan laws, regulations and policies constrain effective HIV response in the country.

The Report is based on data collected during the period of July 2021 to February 2022.

The main objective of the Report was to assess the extent to which existing laws, regulations, and policies enable or constrain key protections for people affected by HIV in Uganda.

The Report also aimed to identify all relevant laws, policies, and strategies that affect, positively or adversely, the successful, effective, and equitable delivery of HIV prevention, treatment, care, and support services to people living with HIV and HIV-affected persons; to assess the key human rights issues affecting people living with HIV; to assess the availability, accessibility, and affordability of interventions that promote rights of people living with HIV and other people affected by or at risk of HIV in Uganda.

The Report also aimed to analyse the extent to which people living with HIV and those affected by or at risk of HIV in Uganda are aware of existing legal frameworks and support systems to access services; and to provide recommendations for the creation of an enabling legal, social, and policy framework to eliminate HIV-related stigma, discrimination, and violence against people living with, affected by or at risk of HIV in Uganda.

KEY FINDINGS

HIV Prevention and Control Act; Sections 41 and 43 criminalises attempted transmission of HIV, and intentional transmission of HIV respectively, thus discouraging HIV testing and the disclosure of positive test results. Intention to transmit HIV is difficult to prove in situations where people may not know their HIV status.

HIV Prevention and Control Act; Section 18 (2) allows a health worker to disclose HIV test results to a third party without the consent of the affected person, thus violating their right to privacy and potentially discouraging people from testing for HIV if they think their results may be disclosed to third parties without their consent.

Releasing HIV test results to another person without the consent of the client may also result in stigma or violence against the client.

HIV Prevention and Control Act Section 13 (b) provides for routine HIV testing of a pregnant woman, and Section 13 (c) provides for routine HIV testing of a partner of a pregnant woman.

However, health workers routinely make it appear mandatory for pregnant women and their partners to be tested for HIV, with or without their consent. This has the effect of violating their right to privacy and autonomy and discourages people from visiting health facilities.

Uganda’s Penal Code Act (PCA) Sections 136-139 criminalise sex work and other activities associated with prostitution with the effect of unfairly targeting key and vulnerable populations and exposing them to arbitrary arrest and mistreatment by law enforcement, while male clients rarely receive the same treatment.

The harassment of sex workers has the effect of increasing societal stigma towards them, denying them the livelihood, which is their only source of income, driving them and keeping them away from health and justice support services.

The Director General of the Uganda AIDS Commission, Dr Nelson Musoba, said that while the Government of Uganda is committed to the goal of ending AIDS as a public health threat by 2030, there is also increasing recognition that this goal cannot be achieved unless the country addresses structural barriers such as legal impediments, and issues such as human rights, stigma, discrimination, gender inequality and gender-based violence.

The President of the Uganda Law Society, Pheona Nabasa Wall said that although Uganda has HIV Prevention and Control Act (2014) and other regulations, prosecution under this law has been challenging partly due to its discriminative nature and challenges associated with proving most of the provisions under it.

Persons charged with HIV related offences are instead often subjected to public humiliation and bail applications, mandatory tests upon arrests, and in cases of defilement of children, maximum penalties are pleaded and recommended by prosecutors even in the absence of scientific evidence of transmission of HIV she said.

She added that HIV victims have a number of issues which include among others; stigma nutritional needs, denial of justice and palliative care, forced HIV testing, discrimination in gaining access to medical care, education, employment, and violation of right to medical privacy.

RECOMMENDATIONS

Review and repeal sections 136 & 139 of the Penal Code Act to decriminalise sex work.

Harmonise the legal provisions on abortion and decriminalise abortion in order to give women access to safe abortion services, guarantee autonomy and decision-making power over their reproductive lives (Provisions in Sections 142 and 143 of the Penal Code Act and Article 22 of the Constitution of Uganda present contradictions on the issue of abortion. Ministry of Health guidelines on abortion were suspended).

Repeal sections 167 to 169 of the Penal Code Act because they are archaic, out-dated, and no longer serve the purpose for which they were created. Uganda Police Force and the DPP should desist from charging and prosecuting individuals with these provisions.

Prosecute HIV-related cases such as those relating to intentional transmission of HIV under general criminal law, not HIV. specific laws.

Reform the law to make it explicit that pregnant mothers should be tested upon giving consent, after receiving full information from health care providers.

Reform the law to remove the provision for a health worker to disclose results to a third party without the consent of the client; instead support the process of disclosure by the client himself/herself.

The Report was launched by the Acting Minister of Justice and Constitution Affairs, Muluri Mukasa who applauded Uganda AIDS Commission and development partners for conducting the assessment.

The Report, he said, shades light on the impact of Ugandan laws in response to HIV/AIDS

Minister Muluri added that the Report findings will provide policy makers with evidence to carryout good legislation and develop policies and laws that will ensure that government does not default on its commitment to end HIV as a public health threat by 2030.

The full report can be downloaded here

US: Indiana to undertake a review of its criminal code for laws concerning HIV

Laws criminalizing HIV to be reviewed by legislative interim study committee

Heeding a call from a bipartisan group of legislators, Indiana will undertake a review of its criminal code for laws concerning HIV, with the focus on modernizing state statutes and helping to end the HIV epidemic.

Ten Republicans and six Democrats sent a letter in late March to Speaker Todd Huston, highlighting the bills that had been passed in previous sessions that updated and revamped Indiana’s laws as more became known about HIV. However, the legislators noted, the state’s criminal code still needs to be amended to reflect the research and biomedical advancement regarding the disease.

“During the early years of the epidemic, states enacted HIV-specific criminal laws based on the perception of HIV at that time — a time of fear and stigma when much less was known about HIV and there were no effective treatments,” the legislators wrote in their letter. “Many of these laws, including Indiana’s, criminalize behaviors that cannot transmit HIV — such as biting or spitting — and apply regardless of intent or whether HIV was actually transmitted.”

The Indiana General Assembly’s Legislative Council approved the review of HIV laws Tuesday morning as part of Resolution 22-06, which assigned study topics to legislative interim study committees.

The HIV study proposal was among the more than 110 topics suggested, according to George Angelone, executive director of the Legislative Services Agency. However, the list was narrowed to 32 topics spread across 11 interim study committees, one subcommittee and five special committees.

The Interim Study Committee on Corrections and Criminal Code will conduct the review of HIV laws.

Also, the group will take a look at efforts and programs to ensure patients and offenders released from Indiana’s psychiatric hospital and the Indiana Department of Correction are connected to the appropriate care. Sixteen Representatives, mostly Democratic, sent a letter to the Legislative Council leaders asking for this review.

Both letters are available online.

In addition, Indiana will again take a look at marijuana-related products.

The Interim Study Committee on Public Health, Behavioral Health, and Human Services has been charged with examining Delta 8, Delta 9 and other THC products regarding potential health benefits, possible decriminalization and other consequences.

After the Legislative Council hearing, Senate President Pro Tem Rodric Bray downplayed the possibility that Indiana would make any dramatic changes to prohibitions on marijuana. Still, he said the study would be helpful because many in the General Assembly are likely not familiar with the pros and cons of the products.

“We in Indiana have been slower to go in that direction than states surrounding us,” Bray said. “… I think this is going to be an important conversation to have this summer for where Indiana moves in the coming years.”

Senate Minority Leader Greg Taylor, D-Indianapolis, said he was glad to see his colleagues on the other side of the aisle looking at THC. However, he also said he was disappointed that an examination of veterans’ issues was not included as a study topic.

“We could make sure that our veterans are having adequate access to all the benefits that are available to them,” Taylor said. “It’s our responsibility to actually provide that pathway for people to get their benefits that they deserve.”

 

US: Georgia’s Governor signs Senate Bill 164 to modernize state’s HIV laws

Press Release: Georgia makes strides in modernizing HIV disclosure law

May 11, 2022 (ATLANTA, GA.) — After more than five years of work by the Georgia HIV Justice Coalition, Georgia Equality, and advocates living with HIV, Georgia’s HIV disclosure law has been modernized with the signing of SB 164 this week. This legislation was introduced by State Senator Chuck Hufsteler and supported in the House by Rep. Sharon Cooper leading to almost unanimous support in both chambers.

Previously, a person living with HIV (PLHIV) could face a felony and up to 10 years in prison for not disclosing their HIV status prior to any type of sexual act. The degree of risk of HIV transmission was not a factor in the statute; including circumstances where there was no HIV transmission, nor even any risk of HIV transmission.

Under the revised law, a PLHIV who knows their status but fails to disclose it only commits this felony if they engage in a sexual act where there is “a significant risk based on scientifically supported levels of risk of transmission” and they have the specific intent to transmit the disease. Any person with a “specific intent” to transmit HIV to another person also remains subject to prosecution.

“The Georgia HIV Justice Coalition salutes and applauds Sen. Hufstetler’s and Rep. Cooper’s efforts to modernize a decades-old law and thanks our partners in the coalition for their hard-work” states Eric Paulk, Coalition Co-Chair and Deputy Director of Georgia Equality. “Today we affirm that no one should be singled out for punishment solely on the basis of their HIV status and the Coalition will continue to advance efforts to dismantle a culture that seeks to utilize the criminal legal system to address public health issues instead of addressing social determinants of health.”

“As a person living with HIV, I’m encouraged that the legislature understands the advances in HIV science. Ending the stigma around HIV is a necessity to ending the HIV epidemic and I look forward to continuing efforts that support PLWH,” states Malcolm Reid, Coalition Co-chair and Federal Policy Chair for the People Living With HIV Caucus.

The new law reflects the significant advances in HIV science and will bolster the efforts to end the HIV epidemic in Georgia. “This historic legislation is the product of years of work from community members, movement advocates, and elected officials. I am inspired and grateful for the tireless efforts of my colleagues and peers. Though I recognize there is still much work left to  be done, I am pleased with what we have achieved, ” said Charles Stephens, Executive Director of the Counter Narrative Project.

Kamaria Laffrey, Project Director at the Sero Project, states that, “this effort is the  product of the power of the people; the PLHIV whose lives will have a lessened layer of stigma. The mobilization and centering of the voices that are most impacted by these laws in partnership with the strategic relationship building with legislative champions is the key piece to how people living in Georgia have made this amazing achievement possible.”

Today we affirm that no one should be singled out for punishment solely on the basis of their HIV status and the Coalition will continue to advance efforts to dismantle a culture that seeks to utilize the criminal legal system to address public health issues instead of addressing social determinants of health.

ABOUT

Founded in 1995, Georgia Equality is the state’s largest advocacy organization working to advance fairness, safety, and opportunity for Georgia’s LGBTQ communities and our allies. 

Argentina: New HIV law seeking to provide comprehensive response to HIV approved

The Chamber of Deputies gave half sanction to the new HIV law with a large majority

Automated Google translation. For article in Spanish, please scroll down.

The initiative was approved with 241 affirmative votes; the project seeks -among other issues- to guarantee universal and free access to treatment for HIV, viral hepatitis, tuberculosis and sexually transmitted infections (STIs)

With a large majority, the Chamber of Deputies today approved the bill that seeks to provide a comprehensive response to HIV , viral hepatitis, tuberculosis and sexually transmitted infections (STIs) . The initiative proposes, as a central axis, universal and free access to the treatment of these diseases, guaranteed by the public health system, social works and private health throughout the country.

The average sanction was achieved with 241 affirmative votes and 8 negative ones. The initiative – the result of the work of different civil society organizations – was promoted by the pro-government deputy Carolina Gaillard and had the support of the entire political spectrum.

The bill, in addition to guaranteeing universal and free access to treatment for HIV, viral hepatitis, tuberculosis and sexually transmitted infections (STIs), proposes that all tests to detect these pathologies should be voluntary, free, confidential and universal. In addition, it promotes the creation of a special retirement regime, of an exceptional nature for those who experience HIV and hepatitis B or C diseases, as well as a non-contributory pension for life, for those who are in a situation of social vulnerability. In this way, those who prove at least ten years since the diagnosis of the disease and twenty years of retirement contributions, can request retirement from the age of 50.

The pro-government parliamentarian Mara Brawer celebrated the half sanction with social organizations. “With the organizations in the street celebrating the half-sanction of the new #HIV , tuberculosis and viral hepatitis law,” she wrote.

For her part, the libertarian deputy Victoria Villaruel was one of the eight people who rejected the initiative . “With Javier Milei we voted not to hold lobbying” , he justified on Twitter, and continued: “Instead of guaranteeing rights, privileges increase, an HIV observatory is created within INADI, that is, we continue with the spending party, payment to the militancy and public office to people like [Victoria] Donda. With my NO vote.

The eight parliamentarians who voted against the project were: José Luis Espert (Liberty Advances), Carolina Píparo (Liberty Advances), Javier Milei (Liberty Advances), Victoria Villarruel (Liberty Advances), Ricardo López Murphy (Together for Change ), Pablo Torello (Together for Change), Paula Omodeo (Together for Change) and Francisco Sánchez (Together for Change).

The project that now awaits its session in the Senate of the Nation also promotes training, research, the dissemination of massive campaigns, and the formation of a National Commission for HIV, Viral Hepatitis, other STIs and Tuberculosis , integrated interministerially and intersectoral by representatives of state agencies, scientific societies, civil society organizations working on these pathologies, whose integration must be determined by regulation, guaranteeing federal and gender representation; and a National Observatory on Stigma and Discrimination, in order to make visible, document, dissuade and eradicate the violations of the human rights of the affected people.

La Cámara de Diputados le dio media sanción a la nueva ley de VIH con amplia mayoría

La iniciativa fue aprobada con 241 votos afirmativos; el proyecto busca -entre otras cuestiones- garantizar el acceso universal y gratuito al tratamiento de VIH, hepatitis virales, tuberculosis e infecciones de transmisión sexual (ITS).

Con amplia mayoría, la Cámara de Diputados aprobó hoy el proyecto de ley que que busca dar una respuesta integral al VIH, hepatitis virales, tuberculosis e infecciones de transmisión sexual (ITS). La iniciativa propone, como eje central, el acceso universal y gratuito al tratamiento de esas enfermedades, garantizado por el sistema de salud público, las obras sociales y la salud privada en todo el país.

La media sanción se consiguió con 241 votos afirmativos y 8 negativos. La iniciativa -fruto del trabajo de distintas organizaciones de la sociedad civil- fue impulsado por la diputada oficialista Carolina Gaillard y contó con el respaldo de todo el arco político.

El proyecto, además de garantizar el acceso universal y gratuito al tratamiento de VIH, hepatitis virales, tuberculosis e infecciones de transmisión sexual (ITS), propone que toda prueba para detectar esas patologías deberá ser voluntaria, gratuita, confidencial y universal. Además, promueve la creación de un régimen de jubilación especial, de carácter excepcional para quienes transiten las enfermedades de VIH y hepatitis B o C, así como una pensión no contributiva de carácter vitalicio, para quienes se encuentren en situación de vulnerabilidad social. De este modo, quienes acrediten al menos diez años desde el diagnóstico de la enfermedad y veinte años de aportes jubilatorios, pueden solicitar la jubilación a partir de los 50 años de edad.

La parlamentaria oficialista Mara Brawer celebró la media sanción con organizaciones sociales. “Con las organizaciones en la calle celebrando la media sanción de la nueva ley de #VIH, tuberculosis y hepatitis virales”, escribió.

Por su parte, la diputada libertaria Victoria Villaruel fue una de las ocho personas que rechazó la iniciativa. “Con Javier Milei votamos no a mantener lobbys”, justificó en Twitter, y siguió: “En vez de garantizar derechos aumentan los privilegios, se crea un observatorio de VIH dentro del INADI, o sea seguimos con la fiesta del gasto, pago a la militancia y cargos públicos a gente como [Victoria] Donda. Con mi voto NO”.

Los ocho parlamentarios que votaron en contra del proyecto fueron: José Luis Espert (Avanza Libertad), Carolina Píparo (Avanza Libertad), Javier Milei (La Libertad Avanza), Victoria Villarruel (La Libertad Avanza), Ricardo López Murphy (Juntos por el Cambio), Pablo Torello (Juntos por el Cambio), Paula Omodeo (Juntos por el Cambio) y Francisco Sánchez (Juntos por el Cambio).

El proyecto que ahora le espera su sesión en el Senado de la Nación también promueve la capacitación, la investigación, la difusión de campañas masivas, y la conformación de una Comisión Nacional de VIH, Hepatitis Virales, otras ITS y Tuberculosis, integrada de forma interministerial e intersectorial por representantes de los organismos estatales, sociedades científicas, organizaciones de la sociedad civil con trabajo en estas patologías, cuya integración debe ser determinada por vía reglamentaria garantizando representación federal y de géneros; y un Observatorio Nacional sobre Estigma y Discriminación, con el fin de visibilizar, documentar, disuadir y erradicar las vulneraciones a los derechos humanos de las personas afectadas.

 

US: Tennessee Senate votes to remove sex offender registry requirement for HIV related offences

Lawmakers Seek to Reduce Penalties for HIV Criminal Exposure Law

The Tennessee Senate voted Wednesday to reform one aspect of a decades-old law that makes it a crime to not disclose an HIV diagnosis to a sexual partner.

At the height of the HIV epidemic in the ‘80s and early ‘90s, many states created these criminal penalties, although activists have long said they are harmful because of their punitive nature.

Tennessee’s own exposure law, passed in 1994, labels non-disclosure a class C felony that can result in three to 15 years in prison and a $10,000 fine. The law additionally punishes blood transfusions and donations.

Tennessee is also one of just six states that add people to a sex offender registry for HIV related offences. More than 70 people are currently on Tennessee’s registry for an exposure charge.

A new bill – approved by a wide margin in the senate with bipartisan support this week – does away with this sex offender registry requirement and retroactively allows for the removal of those already on it, provided they are not listed for any additional offenses.

Republican Rep. Bob Ramsey, who is sponsoring the house version of the measure, says HIV laws are outdated and need to be updated to reflect modern treatment for the virus.

The goal, he says, is “to look at this disease in a more realistic light and try to de-stigmatize it so that we could actually identify it and treat it, more so than trying to punish it.”

While there is still no cure for HIV, modern antiretroviral drugs now allow for a near normal lifespan and can reduce the level of virus in the body so low that it’s effectively impossible to spread. It is now considered a chronic condition people can manage rather than a fatal diagnosis.

Ramsey, who is also a dentist, calls the registry requirement a “misguided overreaction to the disease.”

Violent sex offenders have to register for life and check in with authorities three times a year to keep their addresses up to date. They are not allowed to live or work near schools, daycares or parks, which advocates say can make it extremely hard to find housing or employment and even seek treatment.

Amna Osman, head of the advocacy organization Nashville CARES, told lawmakers last month that parents on the registry can face barriers such as an inability to attend their children’s school functions and that the stigma can create mental health issues.

“Nobody should be on a sex registry by virtue of having a manageable illness,” she said during testimony. “I’ve heard people who have tried to commit suicide, post-traumatic stress disorder, depression, anxiety because they’ve been on the sex registry for 14, 15, 16 years.”

The laws have also backfired, she said, because they undermine a need to get tested, which is vital to ending the epidemic.

“There [are] fears about this law…for people that don’t want to get tested because if you don’t know your status, this law does not apply to you,” she said, noting that nationwide one in seven people infected with HIV are unaware.

An original version of Ramsey’s bill sought more substantial reform to the state’s current law, including reducing the penalty to a misdemeanor, which would bring it in line with other communicable diseases such as Hepatitis C and B. The measure also took into account someone’s intent such as if they acted to reduce the risk of transmission through condom use or adherence to antiviral medication.

But after receiving pushback from other lawmakers, it was amended to just address the sex offender registry requirement, which Ramsey called a “baby step” in the right direction.

Rep. Bruce Griffey spoke out against the measure during debate in committee.

“This bill is going to expose potential future Tennesseans to HIV unnecessarily,” he said.

Ramsey disagrees and points out that the current law creates instances where disgruntled individuals can allege they were not informed of a partner’s positive status, and the accused will often lack hard evidence to dispute them in front of a prosecutor or judge.

“It became a ‘he said,’ ‘she said’ kind of situation,” Ramsey says.

The Centers for Disease Control and Prevention say HIV-specific laws “have been shown to increase stigma, exacerbate disparities and may discourage HIV testing.” In recent years, several states have passed reforms, saying the laws unnecessarily target some of the most vulnerable.
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“There needs to be an overhaul to this whole state annotation altogether,” says Dewayne Murrell, a member of the Tennessee HIV Modernization Coalition, which is pushing for broad changes to Tennessee’s statues.

His organization is backing a complaint that says the state’s HIV laws violate federal law. He says lawmakers also need to eliminate a crime known as aggravated prostitution, a felony affecting those who are sex workers and are HIV positive.

Rep. Ramsey expresses confidence that his amended legislation will pass the House next week. Although he’d like to see more action in the future, he says this stride is an opportunity to bring public awareness to a condition that is too often misunderstood.

“That’s what the aim of this bill was to educate and bring a rational, unstigmatized view of the disease and how it affects people’s lives.”

Zimbabwe becomes the second country in Africa to fully repeal its HIV-specific criminal law

Last week, Zimbabwe’s parliament finally agreed to repeal the country’s HIV-specific criminal law, section 79 of the Criminal Code.  The law which contained the provision to repeal section 79 – the Marriages Act – was originally gazetted in July 2019.  It will now be signed into law by the president.

The significance of this cannot be underestimated. Zimbabwe becomes only the second country on the African continent to fully repeal its HIV-specific criminal law after the Democratic Republic of Congo repealed its law in 2018.

Although there have been remarkable advocacy successes elsewhere on the continent in preventing an HIV-specific criminal law being enacted in Malawi in 2017 and the suspension of one of Kenya’s two HIV-specific criminal laws on the grounds of unconstitutionality in 2015, it is rare for a sitting parliament to decide to completely repeal an HIV-specific criminal law.

That it did so is testament to a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honorable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care, who began pushing for a change in the law in 2018 having previously been in favour of the provision in order to protect her female constituents.

However, after attending a number of meetings, notably a November 2018 Symposium convened by Zimbabwe Lawyers for Human Rights and HIV JUSTICE WORLDWIDE partners, ARASA and SALC, along with other civil society organisations, she began to appreciate that HIV criminalisation does not, in fact protect women, but actually harms them.

We all know very well that in Zimbabwe and the world-over, we do not have diagnostic equipment which can tell us who gave HIV to the other and at what time. There is an assumption that whoever has manifested the disease first is the one who transmitted the virus. It can be anybody and it could be the other way round. If you are a woman and suddenly you find yourself positive, you will not tell your partner because of this law yet if the law was not there you would tell your partner and go and access ARVs to live happily ever after.
 
Hon Dr Ruth Labode, 2018

 

Zimbabwe was, in fact, the first African country to enact an HIV-specific criminal law, including it in the Sexual Offences Act of 2001. The law, which was supported by women’s rights groups who sought to address violence against women, made a criminal of anyone diagnosed HIV-positive who “intentionally does anything or permits the doing of anything” which (s)he “knows … will infect another person with HIV”.

The law was further amended in 2006 through the enactment of section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act, 2004. The new law, erroneously titled “Deliberate transmission of HIV”, did not require HIV transmission or for an accused to have an intention to transmit HIV: only that they undertake an act that includes “a real risk or possibility” of transmitting HIV. Further, section 79 was so broad it could be applied to anyone who knows they have HIV or who realises “there is a real risk or possibility” they might have HIV. The only defence was if the HIV-negative partner knew their partner had HIV and consented.

There were many attempts before the first reported prosecution in 2008.  Since then, there have been at least 18 further HIV criminalisation cases, making Zimbabwe the country with the highest known rate of HIV prosecutions in Africa.

As prosecutions continued, it became apparent that Zimbabwe’s HIV-specific criminal law did not protect women. Numerous cases accused women, including where it was likely that the accused was infected by her accuser spouse (although she was diagnosed first) and where men have made allegations as revenge for complaints about domestic violence.

The disproportionate impact of the law on women was highlighted in a 2015 campaign, ‘HIV on Trial – a threat to women’s health’ by Zimbabwe Lawyer’s For Human Rights (ZLHR) at the same time that they – ultimately unsuccessfully – challenged the law at the Constitutional Court. The campaign highlighted the case of Samukelisiwe Mlilo, who features in a powerful 15 minute documentary, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

The focus then turned to repealing the law, and by 2019 the campaign to repeal the law was in full swing, supported by a wide range of stakeholders – including HIV JUSTICE WORLDWIDE, the Zimbabwe Network of People Living with HIV (ZNPP+) and UNDP.  

That year, Zimbabwe Lawyers for Human Rights and HIV JUSTICE WORLDWIDE published a range of policy documents aimed at different stakeholders – including people living with HIV, the media and parliamentarians – highlighting six key messages:

  1. Section 79 is vague, overly broad and open to unjust application.
  2. HIV criminalisation violates human rights and increases HIV stigma.
  3. HIV criminalisation laws are unscientific.
  4. HIV criminalisation does not prevent HIV.
  5. HIV criminalisation is a barrier to HIV testing, treatment and prevention.
  6. HIV criminalisation is harmful to women.

Now that Zimbabwe has repealed its law, it’s surely only a matter of time before the other 30 countries on the African continent with HIV-specific laws follow suit.  Advocates in Kenya – where the other HIV-specific criminal law is being challenged – and in Uganda – where the HIV-specific law is also being challenged – will be especially encouraged, as should all of us fighting for HIV justice around the world.

 

Argentina: Fourth attempt to debate bill on HIV, hepatitis, TB and STIs fails again, despite widespread support

The HIV Bill lost parliamentary status for the fourth time: what is it about and what approach does it seek to change?

For original article in Spanish, please scroll down.

More than 40 organisations are seeking to update a key law for people living with HIV, hepatitis, TB and STIs.

Two years ago, in 2020, the bill to update the law on HIV, Hepatitis, Tuberculosis and STIs was presented in the Chamber of Deputies, seeking to replace the old National AIDS Law (23.798) passed in 1990. The 24-page document was presented several times, after four failed attempts in 2016 and 2018, 2021 and 2022, it lost parliamentary status four times; it was agreed through a network of 40 organisations. What are the reasons why, despite its importance in health matters and despite presidential promises, it has not been debated in Congress? What changes does it propose?

The bill on HIV, Sexually Transmitted Infections (STIs), Viral Hepatitis and Tuberculosis is a proposal drafted by civil society organisations and networks of people with HIV and viral hepatitis, together with the Ministry of Health and academic and scientific societies, which seeks to update the current National AIDS Law (23.798) of 1990.

For the past few years they have been working collectively to give this legislation a comprehensive approach. It was not taken into account by the President despite the consensus of all political forces during the extraordinary sessions to deal with it.

The 6 central points that the HIV law seeks to introduce

1- The change of perspective: the 1990 law has a biomedical approach, and the current bill has a gender and human rights approach. It seeks to focus on the social determinants of health and the elimination of stigma.

2- Prohibition of testing for HIV, Hepatitis, TB and STIs in order to enter a job, in pre-employment medical examinations.

3- Non-contributory pensions for people with HIV and Hepatitis B or C who have unmet needs. Provision of treatment for those who have acquired the virus through vertical transmission and for other key populations such as women, transgender people, transvestites and non-binary people, etc.

4- Creation of a National Commission on HIV, Hepatitis, TB and STIs made up of different ministries, scientific societies and civil society organisations working on the issue.

5- Extension of the provision of formula milk for up to 18 months (previously only up to 6 months) for babies born to positive mothers.

6- Creation of the National Observatory of Stigma and Discrimination in the orbit of INADI, in order to ensure that HIV infection, Hepatitis B or C, TB or any other STI cannot be used to prevent the exercise of rights.

Why is the HIV law not being dealt with by Congress?

In an interview with A24.com, Dr Gustavo López, legal coordinator of Nexo Asociación Civil, said: “The law has already had several presentations and has never been as close to being dealt with as this time. The bill passed the health and budget commissions for the first time in history, considering that it is a bill drafted by civil society organisations working on the issue, with the signatures of legislators, and the approval of Anses and the Ministry of Health. But it has not been dealt with. There always seems to be something urgent that leaves aside what is important.

The bill is the result of the collective, plural and participatory work of more than 40 organisations and networks from all over the country (in which NEXO participates), who have been working since 2014.

According to López, “the last presentation with modifications and improvements to the previous presentations was in September 2020 with signatures of deputies from the UCR, Frente de Todos, the left, the PRO, the Cívica, that is to say, we achieved a good project without rifts”.

“But it was not possible, it lost its parliamentary status and was added to the list of extraordinary sessions. But it was not dealt with in the extraordinary session either. So we are going back with a similar bill, with very small tweaks that do not modify the previous bill but make it clearer,” he lamented.

Access to prevention and diagnostic tools

Meanwhile, consulted by A24. com, Leandro Cahn, political scientist, Master in Administration and Public Policy and Executive Director of Fundación Huésped, said: “We believe it is important that the bill guarantees a legal framework for timely and uninterrupted access to prevention tools against sexually transmitted infections (STIs), especially for those who have a higher exposure to HIV; treatment to ensure the highest quality of life for people living with HIV and thus make progress so that more people have undetectable viral load and therefore do not transmit the virus sexually to others”.

According to Cahn, the new HIV law would help break down barriers and limitations to accessing newer technologies such as post-exposure prophylaxis, HIV self-testing and pre-exposure prophylaxis (PrEP).

Limitations of the current AIDS law

For Lopez, the current law (23.798), passed in 1990, is still an excellent law, but it is time to improve it after more than 30 years. It has a basically biomedical perspective, unlike the bill that has been presented now, which has a gender and human rights approach with the aim of ensuring rights and guarantees for people with HIV. But not only HIV, it also includes people with viral hepatitis (hepatitis B and C for example, perhaps the best known along with A), tuberculosis (TB) and other sexually transmitted infections (STIs), which until now have not been specifically regulated.

The idea is that comprehensive care and prevention should be guaranteed free of charge regardless of health coverage. It puts the elimination of stigma, discrimination and criminalisation of people living with HIV centre stage.

In fact, the new submission, which has already been made, has already attracted 56 signatures from different parties. “We need them to give some time to see and read the project that would help many people not only to be supported and have their health is guaranteed, but also would ensure that their rights are respected, that it is fundamental, and that they do not suffer stigma and discrimination because of it. In INADI, where I also advise, we receive complaints from time to time about people being excluded from access to work due to their HIV positive status, for example”, asked the coordinator of Nexo AC’s legal department.

“The loss of parliamentary status on four occasions has to do on the one hand with different situations that have arisen over the years, political-partisanship in some cases, where consensus could not be reached to bring together all the blocks; The same with civil organisations and finally, the last time it had to do with circumstances unrelated to the law itself and more to do with the functioning of Congress and the need to find a way for the legislature to move towards the treatment and enactment of the law on AIDS, Hepatitis and STIs,” concluded Leandro Cahn.

This media learnt that there will be a presentation of the project on Tuesday 29 March at 11 am.

Further reading on HIV Law in Argentina

El proyecto de Ley de VIH perdió estado parlamentario por cuarta vez: ¿de qué se trata y qué abordaje pretende cambiar?

Más de 40 organizaciones buscan actualizar una ley clave para las personas que viven con VIH, Hepatitis, TBC e ITS. Los principales puntos que plantea.

Hace dos años, en 2020, se presentó en la Cámara de Diputados el proyecto de actualización de la ley de VIH, Hepatitis, Tuberculosis e ITS que busca reemplazar la antigua Ley Nacional del Sida (23.798) sancionada en 1990. El escrito de 24 páginas se presentó en varias oportunidades, tras cuatro intentos fallidos en 2016 y 2018, 2021 y 2022, perdió cuatro veces el estado parlamentario; se consensuó a través de una red de trabajo con 40 organizaciones. ¿Cuáles son los motivos por los cuales a pesar de su importancia en materia sanitaria y a pesar de promesas presidenciales no logra ser debatida en el Congreso? ¿Qué cambios plantea?

En el caso puntual del proyecto de ley de VIH, Infecciones de Transmisión Sexual (ITS), Hepatitis virales y Tuberculosis, es una propuesta elaborada por organizaciones de la sociedad civil y redes de personas con VIH y Hepatitis virales, junto con el Ministerio de Salud y las sociedades académicas y científicas, que busca actualizar la actual Ley Nacional de Sida (23.798), de 1990.

Durante los últimos años han estado trabajando de manera colectiva para darle a esta legislación un abordaje integral. No fue tenida en cuenta por el Presidente a pesar del consenso de todas las fuerzas políticas durante las sesiones extraordinarias para tratarlo.

Los 6 puntos centrales que busca introducir la ley de VIH

1- El cambio de perspectiva: la ley de 1990 tiene un enfoque biomédico, y el proyecto actual un enfoque de género y de derechos humanos. Busca poner foco en los determinantes sociales de la salud y la eliminación del estigma.

2- Prohibición del test de VIH, Hepatitis, TBC e ITS para ingresar a un puesto de trabajo, en los exámenes médicos preocupacionales.

3- Pensiones no contributivas para aquellas personas con VIH y Hepatitis B o C que tengan necesidades insatisfechas. Provisión de tratamientos para quienes adquirieron el virus por transmisión vertical y para otras poblaciones clave como mujeres, personas trans, travestis y no binaries, etc.

4- Creación de una Comisión Nacional de VIH, Hepatitis, TBC e ITS integrada por distintos ministerios, sociedades científicas y organizaciones de la sociedad civil que trabajen el tema.

5- Extensión de la provisión de leche de fórmula hasta los 18 meses (antes llegaba sólo a los 6 meses) para bebés de madres positivas.

6- Creación del Observatorio Nacional de Estigma y discriminación en la órbita del INADI, en la búsqueda de que no se pueda utilizar la infección por VIH, Hepatitits B o C, TBC o cualquier ITS para impedir el ejercicio de los derechos.

¿Por qué la ley de VIH no es tratada por el Congreso?

En diálogo con A24.com, el doctor Gustavo López, coordinador área jurídica de Nexo Asociación Civil, expresó: «La ley ha tenido ya varias presentaciones y nunca estuvo tan cerca de tratarse como esta vez, en esta oportunidad. El proyecto pasó comisiones de salud y presupuesto por primera vez en la historia, considerando que es un proyecto confeccionado por las organizaciones de la sociedad civil que trabajan el tema, con la firma de legisladores y legisladoras, y el visto bueno de Anses y Ministerio de Salud. Pero no llegó a tratarse. Siempre parece haber algo urgente que deja de lado lo importante».

Es que el proyecto de ley es resultado del trabajo colectivo, plural y participativo de más de 40 organizaciones y redes de todo el país (donde participa NEXO), que vienen trabajando desde 2014.

Según especificó López, «la última presentación con modificaciones y mejoras a las presentaciones anteriores fue en septiembre de 2020 con firmas de diputados y diputadas de UCR, Frente de Todos, de la izquierda, del PRO, de la C Cívica, es decir, logramos un proyecto bueno y sin grieta».

«Pero no pudo ser, perdió estado parlamentario y pasó a engrosar el listado de extraordinarias. Pero tampoco se trató en extraordinarias. Así que vamos de nuevo con un proyecto similar, con pequeñísimos retoques que no modifican el proyecto anterior sino que le dan mayor claridad», lamentó.

Acceso a herramientas de prevención y diagnóstico

Por su parte, consultado por A24.com, el politólogo, magister en Administración y Políticas Públicas y Director Ejecutivo de Fundación Huésped Leandro Cahn, manifestó: «Creemos que es importante que el proyecto de ley garantice un marco jurídico para el acceso oportuno y sin interrupciones a las herramientas de prevención frente a las infecciones de transmisión sexual (ITS), especialmente para aquellos que tienen una mayor exposición al VIH; de tratamiento para asegurar la mayor calidad de vida a las personas que viven con VIH y de esa manera avanzar en que más tengan carga viral indetectable y por ende no transmitan el virus por vía sexual a otras personas».

De acuerdo a Cahn, la nueva ley de VIH ayudaría a derribar barreras y limitaciones al acceso a tecnologías más modernas como la profilaxis post exposición, el auto test de VIH, la profilaxis pre exposición (PrEP).

Las limitaciones de la actual ley de sida

Para López, la ley vigente (23.798), sancionada en 1990, es aún una excelente ley, pero ya era tiempo de mejorarla luego de más de 30 años. Tiene una perspectiva básicamente biomédica, a diferencia del proyecto que se presentó ahora que tiene un enfoque de género y de derechos humanos con la finalidad de asegurar derechos y garantías de las personas con VIH. Pero no solo VIH, incluye a las personas con Hepatitis virales (hepatitis B y C por ejemplo, las más conocidas acaso junto a la A), Tuberculosis (TBC) y otras infecciones de trasmisión sexual (ITS), que hasta ahora no tienen una regulación específica.

La idea es que se garantice la atención integral y la prevención de manera gratuita independientemente de la cobertura de salud. Pone en el centro de la escena a la eliminación del estigma, la discriminación y la criminalización hacia las personas con VIH.

De hecho, la nueva presentación que ya se hizo, ya sumó 56 firmas de distintos partidos. «Necesitamos que den un rato del tiempo para ver y leer el proyecto que ayudaría a que mucha gente no solo sea atendida y se garantice su salud sino que se respeten sus derechos, eso es fundamental, y que no sufran estigma y discriminación por ello. En INADI, donde también asesoro, se reciben cada tanto denuncias por exclusiones de personas en el acceso al trabajo por serología positiva en VIH, por ejemplo», pidió el coordinador área jurídica de Nexo AC.

«La pérdida de estado parlamentario en cuatro oportunidades tiene que ver por un lado con distintas situaciones que se fueron dando a lo largo de los años, político-partidarias en algunos casos, en donde no se pudo lograr consensos para sumar a todos los bloques; lo mismo con las organizaciones civiles y por último, la última vez tuvo que ver con circunstancias ajenas a la propia ley y más que ver al funcionamiento del Congreso y la necesidad de encontrar la forma de que el Poder Legislativo ahora sí pueda avanzar hacia el tratamiento y la promulgación de la ley de sida, Hepatitis, e ITS», concluyó Leandro Cahn.

Este medio pudo saber que está confirmada la sala en el anexo para el martes 29 de marzo a las 11 horas, donde habría una presentación del proyecto.

Zimbabwe: The Marriages Amendment Bill decriminalising the wilful transmission of HIV to be signed into law

Decriminalisation of HIV transmission a milestone development

From the time the first cases of HIV in Zimbabwe were identified in the mid-1980s, the understanding of the disease, its prevention, management and treatment has improved, so has science.

Today, the number of people acquiring HIV each year is falling in Zimbabwe, although levels are still relatively high, according to an international organisation, AVERT.

In 2018, there were 38 000 new infections (33 000 among adults and 4 800 among children). In comparison, 62 000 people became HIV positive in 2010 (47 000 adults and 15 000 children).

Zimbabwe’s HIV epidemic is generalised and largely driven by unprotected heterosexual sex.

Anti-retroviral drugs have been a game changer. People who are diagnosed early have been accessing them in both rural and urban public and private health facilities across Zimbabwe.

Those like Johana Kasirori, who has been living with HIV for 33 years, others like Tendayi Westerhof, who has had the virus for 20 years, adhere to their prescribed treatment regimen and have lived longer and healthy lives, turning HIV from a death sentence to a chronic condition.

Over the years, the country’s criminal law with regards to decriminalisation of HIV moved at a snail’s pace with debate after debate over the issue.

But today, the law has finally caught up.

Wilful transmission of HIV will be decriminalised once the Marriages Amendment Bill, which sailed through Parliament a fortnight ago, is signed into law by the President as Government and Parliament move to keep abreast with international standards.

Parliament’s moving in will end criminalising transmission through Clause 53 of the Marriages Bill which repeals Section 79 of the Criminal Law (Codification and Reform) which made it an offence to transmit HIV to a partner in certain circumstances.

The section about to be repealed made it an offence for anyone knowing they were infected with HIV or knowing there was a real risk or possibility that they were, and then intentionally did anything or permitted the doing of anything that would infect someone else or involved a real possibility of infecting another person.

Such people were guilty of deliberate transmission of HIV, whether or not they were married to the other person, and were liable for up to 20 years jail.

Convictions were extremely rare.

In his presentation in the National Assembly during the initial stages of the Bill, Justice, Legal and Parliamentary Affairs Minister, Ziyambi Ziyambi, said the new global thinking was that the law criminalising transmission stigmatised people living with HIV.

He said when the law was enacted, the thinking was that it would help to fight the spread of HIV by criminalising those that transmitted it to partners willingly.

“But the global thinking now is that that law stigmatises people living with HIV and studies have shown that it does not produce the intended results,” said Minister Ziyambi. “What the ministry is going to do is to repeal that section of the law and ensure that we keep up to speed with modern trends in the world.”

Welcoming the latest developments, Pan African Positive Women’s Coalition Zimbabwe (PAPWC ZIM) national director,Westerhof, said this was a milestone development, though it had taken so many years when the first HIV case was discovered in Zimbabwe around 1986.

“And we have been battling with this criminalisation of HIV and the stigma to people living with HIV was very rampant and l am glad that this Bill will be signed into law,” said Westerhof, who is also the People Living with HIV representative on the National AIDS Council Board.

She added: “However, whilst we are trying to keep up with international standards we also have to ensure that on the ground people are educated on the laws i.e. communities should be educated on the laws because now the decriminalisation has be put out.”

She urged any potential person living with HIV to continue taking those precautions of safer sexual practices and protect loved ones and not to take advantage of the new law.

“I’m glad that they realised that it is addressing issues of stigma and discrimination because we can never end HIV and AIDS as long as stigma and discrimination is there,” said Westerhof. “Remember we are to end AIDS by 2030, where we are all saying we want zero stigma and discrimination.”

Westerhof hopes that with the decriminalisation, there will be a decrease in gender based violence, especially on women and young women.

“It’s a good law and we uphold it whilst it has taken many years, but l think most of us were involved on debates that were going on through civil society, portfolio committees over many years etc,” she said.

“Finally, those efforts have yielded results. HIV transmission must never be criminalised. The debate over the years and the law makers have seen it fit that HIV must never be criminalised because the law was there.”

She called for the education of communities on it and also scale up efforts of preventing new HIV infections through the convectional means that include delaying early sexual debut by young people, practicing safe sex, making available sexual and reproductive health services such as PrEP.

“Now we hear in South Africa Dapivirine is now available we just hope it will also be available in Zimbabwe so that really we decrease the HIV infection rates and we make marriages safe havens, too, where people can enjoy their conjugal rights without the worry of one infecting the other if one partner is infected,” she said.

“So this is a great development and we are happy with it though a lot more work needs to be done.”

A young Zimbabwean HIV advocate, Anna Sango, said the removal of punitive laws, policies and practices and the promotion of protective legal and policy environment played a critical role in making people feel they can safely access health services.

“Decriminalising HIV is a move in the right direction,” she said. “In Zimbabwe this is progressive for the HIV and AIDS agenda. Now with effective treatment and increased awareness people living with HIV who consistently on treatment are reaching viral load suppressed meaning they cannot pass on the virus.”

She added that Zimbabwe as a country has aligned itself to ongoing and new initiatives that help reduce new infections such as the UNAIDS 90 90 90 targets as well as the 10 10 10 targets that speak to the “removal of punitive, legal and policy environments that deny or limit access to services”

“These all require a co-ordinated response and approach to be achieved. It is important to know that zero discrimination is more than a slogan, it is essential for achieving universal health coverage,” she said.

A representative of people living with diseases who is also a TB Champion for StopTB Partnership Zimbabwe and Global Fund co-ordinating committee, Tariro Kutadza, said criminalisation of HIV and Aids transmission has not produced an fruits anywhere in the world.

She said HIV and Aids transmission remains a puzzle.“HIV is a sexually transmitted infection (STI), which has different facets unlike others like syphilis, gonorrhoea etc,” she said. “HIV has a lot, the cycle, mutilation, the types all those issues and also the impact of HIV — social economic etc.

“It is a whole big issue so to bring about things which cannot be proven becomes very difficult unlike gonorrhoea, syphilis etc where you can point out that I got this from my husband etc.”

Kutadza said she does not know what the issue of wilful transmission brings to someone who was born with HIV and Aids.

“For one to say I have slept with someone and that one incident or so entail to passing HIV to someone is a puzzle,” she said. “When science is silent, sometimes we should also be silent.”

Kenya: Attorney General urges the Court to dismiss petition challenging the constitutionality of HIV criminalisation statute

AG opposes suit seeking to decriminalise deliberate HIV transmission

The law says any person who deliberately infects another with life threatening STD is guilty of an offence.

Attorney-General Paul Kihara Kariuki wants the High Court to dismiss a petition that seeks to decriminalise deliberate transmission of HIV or any other life-threatening sexually transmitted disease.

He says the petition filed by six people living with HIV/Aids lacks merit since the law that is being challenged, Section 26 of the Sexual Offences Act, is necessary to curb the spread of the disease.

“In examining the purpose, effect, historical background behind the enactment of the disputed law, and the intention of the legislature, we urge the court to take judicial notice of the fact that Kenya and in general Africa, continues to be ravaged by the scourge despite the scientific gains that have been made towards reducing the mortality rate,” states the AG.

“By passing the disputed law the Legislature was not acting in a vacuum but responding to a situation in which the State needed to intervene”.

The law says any person who deliberately and intentionally infects another with HIV or any other life threatening sexually transmitted disease is guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than 15 years but which may be enhanced for life.

It also allows the taking and storage of samples, such as blood and urine, from those accused of spreading life threatening sexually transmitted diseases until the finalisation of the criminal case.

The said law also provides that any person who hinders or obstructs the taking of an appropriate samples from the accused is guilty of an offence of obstructing the cause of justice.

Upon conviction, such a person is liable to imprisonment for a term of not less than five years or to a fine of at least Sh50,000

The petitioners argue that the law creates criminal sanctions and punishes persons living with HIV and is thus unconstitutional for violating their rights, such as the right to freedom from discrimination.

Criminal sanctions are not of any use in the reduction of transmission of HIV and are wholly inappropriate where a person does not know he or she is HIV positive or does not understand how HIV is transmitted. Laws such as Section 26 of the Sexual Offences Act merely increases stigma and discrimination of people living with HIV and makes it less likely that they will pursue health affirming behaviour,” state the petitioners.

They also argue that the law limits the right of people living with HIV to consensually start a family with any person of their choice who is not infected with the virus. They said the law is being used to harm persons living with HIV.

Section 26 fails to consider the scientific gains made in the fight against HIV, where there are treatments that suppress the viral load of an infected person to the extent of rendering the chances of transmission to be extremely low or all together nonexistent,” they argue.

But the AG argues that the rights of persons living or affected by HIV are not absolute and that this must be weighed and interpreted with limitations provided under the Constitution.

Mr Kihara says the disputed section of the law only prohibits deliberate transmission of HIV and does not create an obligation to persons who suffer from HIV/Aids to disclose their status to their sexual partners, thereby maintaining their right to privacy.

He states that the law was enacted to protect the vulnerable population of young girls and women.

A declaration of unconstitutionality of the impugned law will undermine public health goals and create a legal vacuum in enforcement of laws protecting persons from deliberate HIV transmission. In light of such legal vacuum, the general public and more particularly the vulnerable population stands to suffer irreparable loss,” says the AG.

We humbly call on this court to breathe life into Section 26 of the Sexual Offences Act and not to stifle the intention of the law maker.

While referring to data from the National Aids Control Council (an Interested Party in the case), state counsel Gracie Mutindi told the court that 21,000 Kenyans (4,333 children and 16,664 adults) die of HIV related causes every year.

It is her position that the disputed law neither constitutes discrimination against people living with HIV simply due to their health status nor does it violate a patient’s right to privacy. Furthermore, the right to privacy is not absolute.

She also denied the petitioners’ allegations that the disputed law violates their right to dignity, freedom from cruel, inhuman and degrading treatment by the manner in which it authorises the taking of blood, urine or tissue samples from persons suspected to have infected another with HIV or any other life threatening sexually transmitted disease.

The taking of blood, urine or any other medical or forensic evidence as provided is not done for sadistic pleasure. It is rather aimed at ensuring that all material is availed to enable the court reach a just determination,” states Ms Mutindi

She contends that the right to privacy cannot be used as a tool for circumventing a just legal process intended to prove an offence. The case will be mentioned on February 10.

By Joseph Wangui

[Update]US: New Jersey Governor signs new law repealing old HIV criminalisation statute

New Jersey Repeals Outdated HIV Crime Laws and Fights Stigma

The new law “is a step in the right direction toward reforming the system” regarding HIV and STI prosecutions in New Jersey.

In January, New Jersey Governor Phil Murphy signed legislation that decriminalizes sexual activity by people living with HIV or a sexually transmitted infection (STI) in specific instances. What’s more, the law tackles HIV stigma because it requires that whenever a person is prosecuted under appropriate circumstances, the names of both the accused and the accuser be kept confidential.

The summary of the legislation—S3707/A5673—reads: “Repeals statute criminalizing sexual penetration while infected with venereal disease or HIV under certain circumstances; requires that in prosecutions for endangering another by creating substantial risk of transmitting infectious disease, name of defendant and other person be kept confidential.”

The legislation’s primary sponsors included Senators Joe Vitale (D–Middlesex) and M. Teresa Ruiz (D–Essex) and Assembly Members Valerie Vainieri Huttle and Joann Downey, according to a press release from Governor Murphy.

“Unfortunately, over the years, there has been a culture of criminally targeting HIV-positive individuals in general, rather than targeting those who intentionally expose others. The criminal code is meant to punish actions that harm others, not discriminate against people living with a chronic health condition,” Senator Ruiz said in the press release. “Signing this piece of legislation into law is a step in the right direction toward reforming the system.”

HIV criminalization refers to the use of laws to target people who have HIV—notably African-American, Latino and LGBTQ populations—and punishing them because of their HIV status, not because of their actions. Under outdated laws, people with HIV can be sentenced to prison in cases where HIV was not transmitted, simply for allegedly not disclosing their status.

Of note, repealing HIV laws does not mean that people can’t be held accountable for intentionally transmitting HIV. Other laws may apply to the situation.

“Hyacinth AIDS Foundation applauds Governor Murphy signing S3707/A-5673, which would repeal New Jersey specific HIV criminalization statute. New Jersey’s HIV criminal law was based on stigma and fear, rather than modern science,” Axel Torres Marrero, Hyacinth’s senior director of public policy and prevention, said in the press release. “In 2022 it no longer reflects the current science of treatment and transmission of HIV. Today we recognize that no one should be singled out and punished solely on the basis of their HIV status. Taken together with the attorney general’s recent guidance that only a clear, successful intent to do harm should be punished, today New Jersey acknowledges that health care policy and the fight to end the AIDS epidemic must be anchored in the updated science of treatment and transmission of HIV.”

Marrero was referring to HIV-related guidance issued in October by Andrew Buck, who was the acting attorney general at the time. When deciding whether to charge someone under the state’s HIV crime laws, Buck directed prosecutors to consider three factors:

  • Whether the individual forced or coerced their partner to engage in sexual activity;
  • Whether the individual engaged in sexual activity for the purpose of transmitting HIV to their partner; and/or
  • Whether the individual was adhering to a medically appropriate HIV treatment plan at the time of the sexual activity.

“It is virtually impossible,” the guidance states, “to imagine a scenario where it would be appropriate for a prosecutor to charge an individual…when that person’s HIV viral load was undetectable at the time of the sexual activity and no aggravating factors existed.”

One of the goals of the new HIV law and the guidance is to base possible prosecutions on updated science, notably that people with HIV who take meds and maintain an undetectable viral load do not transmit HIV sexually, a fact referred to as Undetectable Equals Untransmittable, or U=U.

Another goal is to fight HIV stigma and encourage testing and treatment. “For decades, the HIV epidemic has had devastating effects on New Jersey, particularly in our LGBTQ+ communities and communities of color,” the governor said in the press release. “Repealing the outdated law will eliminate the stigma and fear associated with testing for HIV and other sexually transmitted infections, encouraging more individuals to be proactive in learning about their health. This new law, coupled with advances in modern science and medicine, will bolster our efforts to end the HIV/AIDS epidemic in New Jersey.”

In related news, New Jersey also passed a series of harm reduction laws. One allows more syringe exchanges to open; another makes it legal to possess a syringe; and a third creates a review panel to study overdoses.

New Jersey isn’t the only state to decriminalize HIV. Last year, Illinois became the second state to repeal its discriminatory HIV laws (California did so in 2017). And lawmakers in Missouri, Nevada and Virginia have reformed similar laws. For more, see “Breaking HIV Laws: A Roundup of Efforts to Decriminalize HIV.”

Published in Insider NJ on 11/01/2022

Legislation to modernise criminalisation law passed by New Jersey Senate

Senate Passes Vitale-Ruiz Bill to Modernize NJ Statutes Related to HIV/AIDS Transmission

Trenton – In an effort to modernize New Jersey’s statutes related to the transmission of HIV/AIDS and reduce the stigma suffered by individuals living with HIV/AIDS and other sexually transmitted infections (STI), legislation sponsored by Senators Joe Vitale and M. Teresa Ruiz that would eliminate crimes that are solely applicable to individuals living with HIV/AIDS and STIs was passed by the Senate.

The bill, S-3707, would repeal current statutes that make it a crime for a person to commit an act of sexual penetration under certain circumstances while knowing that he or she is infected with a venereal disease, HIV, or AIDS. The bill maintains and updates the provisions of the statute that criminalizes endangering another person, therefore maintaining an avenue for prosecution in appropriate cases involving the transmission of non-airborne infectious or communicable diseases, without specifically targeting individuals living with HIV/AIDs and sexually transmitted infections.

“While working with advocates to identify areas to improve our harm reduction system of care, they identified updating these statutes to reflect what we now know about the transmission of certain diseases, especially in light in the advances in treatment, as a huge priority,” said Senator Joe Vitale (D- Middlesex). “The current law serves only to criminalize some of our most vulnerable populations, primarily those with HIV, dismissing what we know about the treatment of HIV and how it is and can be transmitted. I am thankful to the advocates who brought this issue to our attention, not only for leading the way on solid public health policy, but also in serving those in need in New Jersey.”

The current laws in place target individuals based on their HIV/AIDS status, rather than their actions. They disproportionately impact certain communities that are more likely to be living with the virus including members of the LGBTQ+ community, Black and Latinx people and transgender women. The new legislation will work to remove the negative stigma and criminalization that these communities and others currently face.

“This legislation is a step in the right direction of inclusivity and removing the stigmatization that surrounds individuals living with HIV. Over the years, there has been criminalization targeting HIV-positive individuals, rather than those who are intentionally harming others,” said Senator Ruiz (D-Essex). “The criminal code is meant to punish actions that harm others, not discriminate against people living with a chronic health condition.”

The bill passed the Senate by a vote of (25-11).