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.

Kenya: Petitioners intend to appeal High Court decision to dismiss challenge to the criminalisation of HIV transmission

KELIN disappointed by High Court judgment in HIV criminalisation case

The Kenya Legal and Ethical Issues Network on HIV & AIDS (“KELIN”) is disappointed with the Nairobi High Court’s decision dismissing Petition 447 of 2018.

The Petition was filed in December 2018. It asked that the Court declare section 26 of the Sexual Offences Act 3 of 2006 to be unconstitutional, void and invalid, and therefore struck from the law. This law criminalises deliberate transmission and or exposure of life-threatening sexually transmitted diseases, including HIV.

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

“We are disappointed with both the outcome and the Court’s process,” said Mr Allan Maleche, the Executive Director of KELIN. “The judgment failed to consider the undisputed expert evidence. That evidence showed how this law, and its application, are not only contrary to international scientific consensus on the nature and risk of HIV transmission, but that it is also harmful to proven strategies to prevent and treat HIV effectively”, he said.

Ms Nerima Were, KELIN’s Head of Programmes, said that in addition, KELIN regretted that the Court elected not to have an oral hearing and instead decided the case on the papers only. It also declined to consider the amici curiae’s submissions, despite that they had previously been admitted as friends of the Court on 27 January 2020. Ms Were said that “For such an important case, where understanding HIV science was critical to ensuring justice, the Court would have benefitted from hearing the Petitioners and counsel, and from considering the international expertise of the friends of the court, UNAIDS and HIV Justice Worldwide.”

Mr Maleche said that while the judgment somewhat narrows the interpretation of the offence, for as long as it remains on the books, it will continue to obstruct an effective HIV response. The Petitioners intend to appeal the judgment.

Who were the parties?

The petitioners were KELIN, people living with HIV and an HIV-negative spouse.

  • The first petitioner was a man living with HIV who had been charged with a crime under section 26 of the Sexual Offences Act for allegedly biting a police officer’s thumb during his arrest.
  • The second petitioner was a woman living with HIV who was on HIV treatment and had an undetectable viral load. She was charged under section 26 of the Sexual Offences Act after being falsely accused of breastfeeding another person’s child.
  • The third petitioner was a woman living with HIV. After she disclosed her HIV-positive status to her spouse, he violently assaulted her and threatened to report her to the police under section 26 of the Sexual Offences Act.
  • The fourth petitioner was a woman living with HIV who was married to the fifth petitioner, who is HIV-negative. The sixth petitioner was similarly a woman living with HIV who was married to an HIV-negative spouse. These petitioners were concerned that the HIV-positive spouses risked prosecution under section 26 of the Sexual Offences Act, even though they were all aware of each other’s HIV-statuses, and that the HIV-positive spouses were on treatment and taking precautions to prevent transmission.

The respondents were the Attorney General, the Director of Public Prosecution (“DPP”).

The National AIDS Control Council (“NACC”) joined as an interested party.

There were two friends of the court (or amici curiae): the Joint United National Programme on HIV and AIDS (“UNAIDS”) and HIV Justice Worldwide (“HJWW”) (“the friends of the Court”).

What were the parties’ arguments?

The Petitioners argued that section 26 of the Sexual Offences Act infringes the principle of legality because it is vague and arbitrarily enforced. They demonstrated that – by virtue of the law’s vague language – it is being applied in circumstances where there is scientifically a minimal or no risk of HIV transmission, and in circumstances where there is no established intent to transmit HIV.

The Petitioners demonstrated that section 26 of the Sexual Offences Act had been used to harass and extort people living with HIV, to test them without informed consent, as a tool of gender-based violence against women living with HIV, to publicise people’s confidential health information unjustifiably, and to advance HIV stigma and misinformation.

The Petitioners argued that the law therefore infringes constitutionally protected rights unjustifiably, including article 28 (the right to inherent dignity), article 29(f) (the right to freedom and security of the person), article 27 (the right to freedom from discrimination), article 49(1)(d) (the rights of arrested persons), article 50(1) (the right to a fair trial), article 31 (the right to privacy), and article 45 (the right to family).

The Petitioners provided undisputed expert evidence to show that the law did not prevent HIV transmission.

The Attorney General, with the support of the DPP, opposed the Petition. He argued that section 26 of the Sexual Offences Act was not unconstitutional and was clear and unambiguous.

The NACC also opposed the Petition. It argued that the law properly aimed to punish people who deliberately infect other people and did not infringe any constitutional rights.

HJWW and UNAIDS were admitted as friends of the Court on 27 January 2020. HJWW provided an international context to HIV criminalisation generally and to section 26 of the Sexual Offences Act specifically. UNAIDS sought to provide the court with information on international standards, policies and recommendations regarding the use of criminal law against HIV non-disclosure, exposure and transmission. The Court declined to consider the submissions of the friends of the court.

What was the court’s decision?

The High Court dismissed the Petition.

It considered that it was beyond its mandate to consider the undisputed evidence that the law undermined public health interventions and efforts to prevent HIV transmission.

The Court did not consider that section 26 of the Sexual Offences Act was unconstitutional. It held that, properly interpreted, an offence is only committed if a person has actual knowledge of their HIV status, and intentionally, knowingly and wilfully does infects a person with HIV or other sexually transmitted disease. It therefore did not consider the provision vague or ambiguous.

It held further that the Petitioners had not shown that section 26 of the Act violated their constitutional rights.

The Court nonetheless acknowledged that the Petitioners had “clearly showcased” that the law had been used to “harass and charge them wrongfully” as people living with HIV. It held that the Petitioners were at liberty to seek redress for any non-compliance by the authorities with the law.

It held that a person’s HIV-positive status should never be announced in open Court or published in order to protect the dignity of the person concerned.

What is the effect of the High Court’s decision?

The Court’s decision means that, unless the judgment is successfully overturned on appeal, section 26 of the Sexual Offences Act remains valid law in Kenya.

The Court has confirmed, however, that the offence should be restrictively applied only where three elements are proved beyond a reasonable doubt:

  • First, the perpetrator must act intentionally and with a specific intention to infect another person;
  • Second, the perpetrator must have actual knowledge of their HIV status; and
  • Third, the prosecution must prove that the perpetrator actually infected the other person with HIV.

The Petitioners have a right appeal the judgment to the Court of Appeal.

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.”

Kenya: High Court dismisses petition challenging the constitutionality of HIV criminalisation

Disappointment as High Court Dismisses Case Challenging Criminalisation of HIV transmission

Nairobi, 20th December 2022. The High Court has dealt a blow to the fight against the HIV response, by dismissing a petition that challenged the criminalisation of all forms of deliberate transmission of HIV. Hon. Lady Justice Hedwig Ong’udi dismissed the petition on the grounds, the petitioners had not met the threshold to have the section declared unconstitutional. Further she noted that Section 26 of the Sexual Offences Act(SOA), does not refer to all people living with HIV, but rather those who deliberately and knowingly transmit HIV.

Had the court upheld the petition Kenya who have been removed from the list of the 30 sub-Saharan nations  and the 92 countries globally, who have enacted and enforced laws that criminalise HIV exposure and infection.

The petition filed by KELIN, and 6 other petitioners, who included people living with HIV, challenged the constitutionality of Section 26 of the SOA. This law criminalizes the deliberate transmission of HIV and other sexually transmitted diseases. The Petitioners had based their petition on the factual and lived experiences of each of the first six petitioners, all of whom have been adversely affected by the discriminatory application of this section yet had not been engaged in any sexual offences.

The Attorney General together with the National AIDS Control Council had opposed the petition arguing the section was constitutional as it was necessary to curb deliberate transmission due to the continued presence of HIV in Africa. It further argued that the rights of persons living or affected by HIV are not absolute, and that these must be weighed and interpreted with limitations provided under the Constitution.

As at the time of publishing this news alert, the court judgment had yet to be released to the parties. We look forward to receiving the court decision to better understand the court’s reasoning as well as determine a way forward.   A further statement will be issued in due course.

Links to pleadings

Petition

Submissions

Supplementary submissions

AG submissions

2022 in review: A turning point for HIV justice?

Looking back on all that happened in 2022, we are cautiously optimistic that 2022 will be seen as a turning point in the global movement to end HIV criminalisation. We celebrated promising developments in case law, law reform and policy in many countries and jurisdictions over the past year, building on the momentum of 2021. Although there is much more work yet to do, it’s clear that progress is being made — thanks primarily to the leadership of people living with HIV.

Continuing a trend that began two years ago, overall there seems to have been a decline in the number of HIV-related prosecutions. This year we identified media reports of 49 new HIV criminalisation cases in 16 countries plus seven US states. This compares to 54 new cases in 20 countries last year (which was still fewer than reported in previous years). This year, the highest number of case reports came from Russia, followed by the United States (with multiple cases in the state of Florida), and France. 

It is possible that we are seeing fewer media reports because there are actually fewer cases, but we must always consider these known cases to be illustrative of what is likely a more widespread, poorly documented use of criminal law against people living with HIV. The media, public health authorities and law enforcement may still be distracted by the global financial crisis precipitated by Russia’s invasion of Ukraine and the impact of COVID-19 — a pandemic that continues to disproportionately impact people living with HIV.

After being near the top in previous years, Belarus has been bumped off the ‘most cases’ list. Last year, the Belarus Investigative Committee reported 34 new HIV-related criminal cases. It’s highly likely that this year there were some (unreported) cases, but it’s also clear that the number of cases has been slowing down since 2020, possibly due to ongoing discussions with the government to limit the use of the criminal law.

Canada used to be a global leader in HIV criminalisation, but no new cases were reported this year. In fact, the only case reports from Canada were about the overturning of a conviction by the Ontario Court of Appeal after it accepted there was no realistic possibility of transmission as the accused woman had an undetectable viral load, and another Ontario Court of Appeal acquittal based on the accused man’s elite controller status. These positive rulings follow many years of sustained advocacy, which has also led to the federal government opening a public consultation on reforming the criminal law. The Canadian Coalition to Reform HIV Criminalization has welcomed this consultation as a first step to concrete action on law reform.

Earlier this year, Taiwan’s Supreme Court also recognised the prevention benefit of treatment by upholding the acquittal of a man with an undetectable viral load who was accused of alleged HIV exposure. But elsewhere in Asia, Singapore continues to unjustly prosecute gay men living with HIV under draconian laws, despite being celebrated for recently repealing their colonial-era law that criminalised sex between men. Singapore is also the world leader in prosecuting gay men for not disclosing a possible HIV risk before donating blood. That’s why we issued our Bad Blood report in September, which concludes that the criminalisation of blood donations by people with HIV is a disproportionate measure — the result of both HIV-related stigma and homophobia, and not supported by science.

In the United States, we continued to see a reduction in the number of states with HIV-specific criminal laws thanks to the ongoing advocacy by networks of people living with HIV supported by human rights and public health organisations. In 2022, Georgia modernised its law and New Jersey became the third US state to fully repeal its HIV-specific criminal law. President Biden again highlighted HIV criminalisation in his World AIDS Day proclamation stating that “outdated laws have no basis in science, and they serve to discourage testing and further marginalize HIV-positive people.” In October, the Presidential Advisory Council on HIV/AIDS unanimously passed an historic resolution on molecular HIV surveillance that will be critical to protecting the human rights and dignity of people living with HIV. But problematic new laws continue to be enacted despite strong opposition from civil society. In November, Pennsylvania’s Governor, Tom Wolf, signed into law an overly broad, unscientific statute that makes it a felony to pass on a communicable disease, including HIV, when someone “should have known” they had the disease.

There was also mixed news from the African continent. In March, Zimbabwe became the second African country to repeal its HIV-specific law (the Democratic Republic of Congo repealed its law in 2018). This victory is testament to the effectiveness of a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honourable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care. She began pushing for a change in the law in 2018, having previously been in favour of the provision which she thought protected her female constituents. And in October, the Central African Republic also enacted a new HIV law that focused primarily on social protections for people living with HIV, without any criminalising provisions.

Also in October, the Lesotho High Court issued a positive judgment following a constitutional challenge to sections of the Sexual Offences Act that impose a mandatory death sentence on persons convicted of sexual offences if they were living with HIV.  Following interventions from members of the HIV JUSTICE WORLDWIDE coalition and others, the Court ruled that people living with HIV have the same right to life as all others — and commuted the sentence.

The news elsewhere on the continent, however, wasn’t so positive. After six years of waiting, a constitutional challenge to some of the most problematic, criminalising sections of Uganda’s HIV/AIDS Prevention and Control Act was dismissed outright in November. We are anxiously awaiting the ruling in a similar challenge in neighbouring Kenya. It was filed five years ago and has since been postponed several times. This year, we also lost Ugandan nurse and HIV criminalisation survivor, Rosemary Namubiru, who was a posthumous recipient of the Elizabeth Taylor Legacy Award at this year’s International AIDS Conference.

Women — who were accused in around 25% of all newly reported cases this year — also face criminal prosecution in relation to breastfeeding or comfort nursing, mostly across the African continent. In addition, women living with HIV continue to be threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries. That’s why this year we created the short film, Mwayi’s Story, to highlight the injustice and facilitate discussion about HIV and breastfeeding. We also worked with our HIV JUSTICE WORLDWIDE coalition partners to publish a paper in the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases to highlight these problematic and unjust approaches to women with HIV who breastfeed or comfort nurse.

This year, we learned from the Eurasian Women’s Network on AIDS, working with the Global Network of People Living with HIV, about how women living with HIV are both disproportionately impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region and also leaders in research, advocacy and activism against it. Their report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. Case studies include a woman in Russia who was prosecuted for breastfeeding her baby and several women in Russia who were blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.

The disproportionate impact of HIV criminalisation on women was also the focus of a World AIDS Day statement by the Organization of American States (OAS) calling on Member States to end HIV criminalisation. Earlier in the year, Argentina had enacted a new, comprehensive and non-punitive HIV, STI and TB law. 

Nevertheless, there is still so much more to do to reach the global target of fewer than 10% of countries with punitive laws and policies that negatively impact the HIV response. To keep up the momentum, we continued to produce reports and analysis — including our flagship Advancing HIV Justice 4: Understanding Commonalities, Seizing Opportunities — as well as contributed to peer-reviewed journal articles, such as So many harms, so little benefit in the Lancet HIV and Punishing vulnerability through HIV criminalization in the American Journal of Public Health. We’re also doing our best to ensure we change the media narrative on HIV criminalisation, including by contributing to The Guardian’s World AIDS Day podcast on HIV criminalisation.

Our greatest achievement this year was the creation of the HIV Justice Academy. We are very proud of this online platform for e-learning and training which we believe will be a catalyst in building the wider movement to end punitive laws and policies that impact people living with HIV in all their diversity. Already available in English and French, we’ll be launching in Spanish and Russian early next year.

Did we turn the corner in 2022? Only time will tell, but if there is one thing we know for sure it is that changing hearts and minds with respect to HIV criminalisation is a long road with many ups and downs along the way. We know that important progress was made in 2022 and that we begin 2023 with fresh analysis, new tools and a renewed spirit of solidarity.

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.