El Salvador: Proposal to treat HIV and STI exposure as aggravating circumstance in cases of sexual assault

Automatic Google translation. For original article in Spanish, please scroll down.

Consciously transmitting diseases and drugging the victims should be an aggravating circumstance in crimes of rape, the Criminal Magistrate recommends to deputies

Judge Sandra Luz Chicas arrived this Friday at the Women’s Commission of the Assembly, to give her contributions for the amendment to Articles 158 and 162 of the Penal Code, proposed by the ruling party.

On March 8, within the framework of International Women’s Day, the New Ideas caucus presented a piece of correspondence containing a proposal to reform articles 158 and 162 of the Penal Code.

The objective of the initiative is to increase the sentence from 8 to 12 years in prison for rapists. Currently, the Penal Code punishes this crime with imprisonment from 6 to 10 years.

The motion of the Nuevas Ideas party contemplates aggravating circumstances that increase the penalty detailed in article 162 of the aforementioned regulations.

The pro-government deputies propose adding an aggravating circumstance when the violations are against older adults.

The modifications began to be studied within the Women’s Commission of the Assembly. In order to know her point of view, this Friday the presiding magistrate of the Criminal Chamber, Sandra Luz Chicas de Fuentes, was summoned.

At this point, the magistrate observed that the ruling party’s proposal does not take into account as a qualified aggravating circumstance, when the active subject of the crime, knowing that they have a contagious sexually transmitted disease or that they are carriers of AIDS or HIV, sexually assault a his victim.

“We have had many cases that at the time of the rape they have transmitted a venereal disease or AIDS or HIV, I do not see this as a qualified aggravating circumstance and many countries have it,” recommended Chicas de Fuentes.

Likewise, it specified that it has not been considered an aggravating circumstance when the aggressor intoxicates the person or the drug to facilitate the rape.

In addition, the magistrate observed that the typical behavior itself is not being touched. In this aspect, Chicas de Fuentes explained that there is rape if there is vice in consent, for example, she mentioned that there are cultural patterns that in some circumstances “re-victimize” the victim, wanting to make it appear that she was guilty of the rape.

“A person can be a sex worker, but if that person at the time of carnal access says no, and the (other) person continues, there is rape, care must be taken that there is no vice in consent,” he clarified.

Even, he said, someone can agree to have sex with another person, but suddenly regrets it and says no, they could even be naked, but if the other person continues, it is also rape.

Rape is also considered when the forced penetration occurs in one of the two cavities, be it the vagina or the anus, it is enough for it to be in one of them to constitute the crime, he added and said that in other countries a third is opened possibility, and it is the oral route.

He also spoke of other cases in which more than one person could participate in the act of rape.

“A person may be having carnal access with a woman, another holding her lower limbs and another the upper ones, even if they do not have carnal access, they are co-authors of the crime of rape,” he exemplified.

The magistrate was in favor of reforming the Penal Code, as she pointed out that sexual crimes occupy one of the first places in statistical data.

The president of the commission, Alexia Rivas, stated that within the aggravating circumstances, the fact that the victim becomes pregnant as a result of sexual assault could also be contemplated.

The magistrate gave a favorable opinion, because not only would the legal right of sexual freedom be violated, but it is “multi-offensive”, including the violation of other rights by forcing the victim to become a mother, a consequence that must be carried by all his life.

Despite the reforms, when looking at comparative law, according to information that Justice Chicas de Fuentes revealed in the commission, El Salvador would be one of the countries in the region with fewer years in prison for crimes of rape, only above from Guatemala.

Costa Rica applies a sentence of 10 to 16 years; in its article 156 of the Penal Code; Honduras between 9 to 13 years according to article 240 of the Penal Code; in Guatemala the sentence is from 5 to 8 years, stipulated in article 173 bis of the Penal Code; and in Mexico, there is a prison of 8 to 20 years, according to article 265 of the Federal Penal Code.

“In principle, I do support the reform proposal, but always inviting the issue of proportionality to be studied,” advocated the magistrate.

Transmitir enfermedades conscientemente y drogar a las víctimas debe ser agravante en delitos de violación, recomienda a diputados magistrada de lo Penal

La magistrada Sandra Luz Chicas llegó este viernes a la comisión de la Mujer de la Asamblea, a dar sus aportes para la enmienda a los Artículos 158 y 162 del Código Penal, propuesto por la bancada oficialista.

El pasado 8 de marzo en el marco del Día Internacional de la Mujer, la bancada de Nuevas Ideas presentó una pieza de correspondencia conteniendo una propuesta para reformar los artículos 158 y 162 del Código Penal.

El objetivo de la iniciativa es incrementar la pena de entre 8 a 12 años de cárcel para los violadores. Actualmente, el Código Penal sanciona ese delito con prisión de 6 a 10 años.

La moción del partido Nuevas Ideas contempla agravantes que aumentan la pena detalladas en el artículo 162 de la normativa en mención.

Los diputados oficialistas proponen que se agregue una agravante cuando las violaciones sean en contra de personas adultas mayores.

Las modificaciones comenzaron a ser estudiadas en el seno de la Comisión de la Mujer de la Asamblea. Con el objetivo de conocer su punto de vista, este viernes fue citada la magistrada presidenta de la Sala de lo Penal, Sandra Luz Chicas de Fuentes.

En este punto, la magistrada observó que la propuesta del oficialismo no toma en cuenta como agravante cualificada, cuando el sujeto activo del delito, a sabiendas de que tiene una enfermedad contagiosa de transmisión sexual o que son portadores del SIDA o del VIH agreden sexualmente a su víctima.

“Hemos tenido muchos casos que al momento de la violación le han transmitido una enfermedad venérea o el SIDA o VIH, esta no la veo como una agravante cualificada y muchos países lo tienen”, recomendó Chicas de Fuentes.

Asimismo, especificó que no se ha considerado como agravante cuando el agresor embriaga a la persona o la droga para facilitar la violación sexual.

Además, la magistrada observó que no se está tocando la conducta típica en sí. En este aspecto Chicas de Fuentes detalló que hay violación si hay vicio en el consentimiento, por ejemplo, mencionó que hay patrones culturales que en algunas circunstancias “revictimizan” a la víctima, queriendo hacer ver que la culpable de la violación fue ella.

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.”

Cyprus: Decision to deport HIV positive student on the grounds of “carrying an infectious disease” is reversed

Deportation of HIV student halted after uproar

The civil registry and migration department on Saturday responded to being lambasted for ordering the deportation of a third-country student because he was HIV positive, saying they would be issuing him a residence permit under certain health conditions.

The Aids Solidarity Movement earlier in the day condemned the deportation order, labelling it an act of “severe discrimination” and calling for the reversal of the decision.

According to the statement, the student was informed by the civil registry and migration department on March 16 by letter that he would be deported on March 21 on the grounds of “carrying an infectious disease”.

The movement said that this decision completely ignored letters of support from both the Gregorios treatment centre and the Solidarity Movement itself, as well as the guidelines of the World Health Organisation, which state “that when a person living with HIV has an undetectable viral load, due to the effective medication they receive, they cannot transmit the virus, even through unprotected sex”.

“The student has access to medication from his country, does not burden the state in any way in relation to his antiretroviral treatment or medical supervision, and does not pose a risk to public health,” the statement added.

Moreover, with the student’s written consent, the movement sent his medical results, along with a note from Doctor Ioannis Demetriades, the head of the Gregorios Clinic and the head of the ministry of health’s HIV and Aids programme, to the migration department’s acting director, asking that the student be allowed to complete his studies.

“We denounce this serious discrimination based on the HIV status of an individual and demand the immediate change of the decision from all the competent bodies of the state that support human rights,” the statement concluded.

Later on Saturday a statement from the migration department said it would in the end be issuing the residence permit after receiving a confirmation from the competent medical services of the state that the student was not contagious.

The condition of the permit is that the student receive regular health checks at the Gregorios Clinic.

It added that it had only been following the law, which “prohibit entry into the country, or carry out deportations for those persons who are carriers or suffer from communicable or infectious diseases and which are a danger to public health”.

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:

Section 79 is vague, overly broad and open to unjust application.
HIV criminalisation violates human rights and increases HIV stigma.
HIV criminalisation laws are unscientific.
HIV criminalisation does not prevent HIV.
HIV criminalisation is a barrier to HIV testing, treatment and prevention.
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.

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.”

Russia: Court overturns decision of the Ministry of Justice to include NGO in “foreign agents” register for commenting on HIV criminalisation law

Court orders Ministry of Justice to remove “Humanitarian Action” charitable foundation from registry of “foreign agents”

St Petersburg City Court has ordered the Russian Ministry of Justice to remove the charitable foundation “Humanitarian Action” from the register of “foreign agents” NGOs. This was reported on the foundation’s Telegram channel.

“This is the first time in Russia that an NPO has been removed from the register under a court ruling without rejecting foreign funding,” the report said.

For now, the foundation remains on the register of “foreign agents” NGOs.

The St. Petersburg-based charity foundation Humanitarian Action works with drug users and people living with HIV. The organisation was declared a foreign agent in December 2020.

The Russian authorities decided that Humanitarian Action was engaged in “political activities”. Comments on amendments to the law “On the prevention of the spread of HIV infection in Russia” sent to the Ministry of Justice as part of an open public debate were cited as such.

According to OVDInfo, 220 non-profit organisations and unregistered public associations have been included in the register of “foreign agents” since 2012. Of these, 99 were removed from the list due to cessation of activities (liquidation or reorganisation), 40 due to cessation of foreign funding or political activities, five after a complaint about the unreasonableness or illegality of their inclusion in the register was satisfied, and one after property was returned to a foreign source.

Суд обязал Минюст исключить благотворительный фонд «Гуманитарное действие» из реестра «иноагентов»

Санкт-Петербургский городской суд обязал Минюст России исключить благотворительный фонд «Гуманитарное действие» из реестра НКО — «иностранных агентов». Об этом сообщили в телеграм-канале фонда.

«Это первое в России исключение НКО из реестра по судебному решению без отказа от иностранного финансирования», — говорится в сообщении.

Пока фонд остается в реестре НКО-«иноагентов».

Петербургский благотворительный фонд «Гуманитарное действие» работает с наркопотребителями и людьми с ВИЧ. Организацию объявили иностранным агентом в декабре 2020 года.

Российские власти решили, что «Гуманитарное действие» занимается «политической деятельностью». В качестве примера таковой, в частности, приводились комментарии о поправках в закон «О предупреждении распространения ВИЧ-инфекции в России», направленные в адрес Минюста в рамках открытых общественных обсуждений.

По данным «ОВД-Инфо», с 2012 года в реестр НКО-«иностранных агентов» включили 220 некоммерческих организаций и незарегистрированных общественных объединений. Из них 99 были исключены из списка в связи с прекращением деятельности (ликвидация или реорганизация), 40 — из-за прекращения иностранного финансирования или политической деятельности, пять — после удовлетворения жалобы на необоснованность или незаконность включения в реестр, одна — после возврата имущества иностранному источнику.

Belarus: Eurasian Women’s AIDS Network submits list of issues on the implementation of CEDAW as it relates to women living with HIV

List of Issues on the implementation of the CEDAW by the Republic of Belarus as it relates to women living with HIV submitted for the consideration at the 83^rd Pre-Sessional Working Group of the UN Committee on the Elimination of Discrimination against Women – Geneva, Switzerland, 28 February – 4 March 2022

Prepared by the Eurasian Women’s Network on AIDS

The Eurasian Women’s Network on AIDS brings together activists and women-led organizations from 12 countries of Eastern Europe and Central Asia to improve access to healthcare services for women living with HIV and vulnerable to HIV, to protect them from violence, and provide inclusive involvement of them in public debate, on which their lives and health depend.
This submission focuses on the following issues – harmful effects of the legally enshrined criminal prosecution of women living with HIV (criminalization of HIV exposure, non-disclosure and transmission), ministerial and inter-agency practices that exacerbate the situation of women living with HIV, women who use drugs, diagnosis disclosure, violence against women.

The full submission is available for download in English and in Russian from the UN Treaty Body Database.

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).