Year in review: Celebrating successes, highlighting the many challenges ahead

This past year has shown us what happens when one pandemic –  HIV – is overshadowed by another pandemic, COVID-19.  Despite the many lessons learned from our collective advocacy against HIV criminalisation that we and our HIV JUSTICE WORLDWIDE partners highlighted in March, these lessons were mostly ignored by policymakers around the world.

The result was a series of knee-jerk legal, policy and police responses leading to the overzealous policing of people living with HIV and other key and inadequately served populations already subject to existing inequalities in law and policy, which we have been highlighting in our HIV Justice Weekly newsletter since March.

This latest pandemic overshadowed, and in some cases undermined, the work we and others have been doing to ensure a fair, just, rational and evidence-based response towards people living with HIV by the criminal justice system.

This past year we documented at least 90 cases of unjust HIV criminalisation in 25 countries, with Russia and the United States being the worse offenders.  Women living with HIV were accused in 25% of those cases. Three of these cases were for breastfeeding.  In the United States, more than 50% of those accused in HIV criminalisation cases were people of colour.  

2020 also saw Poland passing a new law against COVID-19 that also increased the criminal penalty for HIV exposure, and number of disappointing HIV criminalisation higher court appeals in the US (Ohio), and Canada (Ontario and Alberta) that appeared to ignore science over stigma.

And yet, despite the many difficulties of 2020, the movement to end unjust HIV criminalisation has continued to gain momentum.

In the United States, Washington State modernised its HIV-specific criminal law in March, reducing the ‘crime’ from a felony to a misdemeanour, adding in a number of defences, and eliminating the sex offender registration requirement.  Earlier this month, legislators in Missouri published plans to modernise its HIV-specific criminal law next year.

In Europe, Sweden abolished the legal requirement to disclose HIV status in March, the Spanish Supreme Court set an important precedent for HIV criminalisation cases in May, and in June, Scottish police ended the stigmatising practice of marking people living with HIV as ‘contagious’ in their database.

In Francophone Africa, HIV-specific criminal law reform in Benin and across the region is looking likely thanks to a recognition that existing laws do not reflect up-to-date science.

And in Eastern Europe and Central Asia, a process to completely abolish the draconian HIV-specific criminal law in Belarus has begun.

There is still so much more to do, however.  Despite these successes, as well as the many milestones the HIV JUSTICE WORLDWIDE movement has achieved since its launch in 2016, we will not rest until everyone living with HIV in all their diversity is treated equally, fairly and justly by all actors of the criminal justice system.

China: Southwest Yunnan Province to roll out new regulation making HIV non-disclosure a criminal liability

HIV-hit Yunnan mulls legal punishment for HIV/AIDS patients who conceal conditions from spouses, sex partners

Southwest China’s Yunnan Province, a region most affected by HIV in China, will roll out a new regulation next year where HIV/AIDS patients who conceal their condition from their partners will be prosecuted for criminal liability. The regulation has immediately sparked heated discussions. 

Yunnan recently issued the strict measures to prevent and control AIDS in the province, which would come into effect next March. The rules specify that medical institutions have the right to inform HIV/AIDS patients’ spouses and sex partners if the patients themselves fail to do so. 

It also said that those who conceal the information from their spouses or sex partners would be held accountable under the law. 

For residents who live in AIDS-prevalent areas, the regulation said, there would be free HIV screening for couples before marriage. In addition, it ordered all government bodies, organizations and companies to include HIV tests in physical examinations, and civil servants to take the test every half a year. 

As soon as the rules came out, they drew controversy on social media platforms, where citizens argued over whether the rules have tilted the balance between personal privacy and public health. The topic garnered on Monday 230 million views and nearly 9,000 comments as of press time. 

While some citizens supported the regulation and called for pre-marriage HIV-screening to be promoted nationwide, some asked if the rules will intrude on HIV-infected patients’ privacy.

Liu Wei, director of the Chinese Association of STD and AIDS Prevention and Control, told the Global Times on Monday that the rule on medical institutions’ right to inform patients’ sex partners requires further clarification. 

To diagnose an AIDS patient requires two steps – initial screening and confirmation. Only when a person gets positive results in both tests can he or she be confirmed, which means that medical institutions that have the right to inform must be those with AIDS confirmation qualifications, such as the local disease control and prevention center or other authorized units,” Liu explained. 

With these clarifications given, observers believe that the rule will prioritise the right to health, while guaranteeing patients’ privacy to the largest extent. 

If the AIDS patients choose to engage in sexual activities with another person, then the right to health of the people exposed should be placed above the patients’ privacy, analysts said. Since the rule only grants the institutions the right to inform partners rather than the general public, the patients’ privacy can also be protected, analysts noted.

They noted that many cases showed that AIDS patients who chose to inform their spouses or sex partners with courage usually won more respect, rather than discrimination.

Liu said the new measures should also take into consideration patients’ mental well-being, by allowing a “buffer period” for them to accept the devastating news and prepare themselves to inform their close contacts.

Medical institutions should also provide patients with psychological counseling and consulting services. 

Yunnan is the most affected area by HIV. The province reported 8,723 new cases in 2019, bringing the total to 111,700. Sex transmission remained the major cause, which accounted for 97.5 percent of the total in 2020. Needle injection and mother-to-child transmission continued to drop, the local government announced on December 1. 

Mexico: Green party in State of Mexico (Edomex) proposes law to increase prison sentences for “deliberate transmission” of communicable diseases, including HIV

Green Party seeks to establish prison sentences for deliberate HIV transmission

Automatic translation via Deepl.com. For article in Spanish, please scroll down.

The Green Ecologist Party in the LX Legislature, seeks to establish up to 4 years jail sentences for anyone who deliberately infects another person with a transmissable disease such as Acquired Immunodeficiency Syndrome (AIDS) and at this time of Covid-19 Coronavirus pandemic. 

In this sense, the legislator María Luisa Mendoza Mondragón proposes a reform to the article 252 of the Penal Code of the State of Mexico, which already contemplates the crime of Danger of Infection, and which currently only reaches a privative sentence of up to two years; the initiative contemplates an aggravating circumstance of up to one third, if the active subject is a medical professional. In addition, the initiative, which is currently in committee, proposes to raise this type of action for malice from 60 to 140 units of measurement and to update it.

“The action taken by a sick person who knowingly infects another person must be considered a crime and therefore be punished with a more severe penalty considering the atypical and extraordinary circumstance we face,” said the deputy,

This parliamentary faction also wants to modify the terms of the prosecution of the crime by the state authorities so that the investigation is no longer only by denunciation of the person or persons affected, but rather by office with the intention of punishing whoever commits these acts that attempt against the life of the Mexicans.

This crime is defined in the local law as follows: “Whoever, knowing that he suffers from a serious illness during the infectious period, puts himself in danger of infecting another person, by any means of transmission”.


Partido Verde busca establecer penas de cárcel a quien deliberadamente contagie el SIDA

En este sentido, la legisladora María Luisa Mendoza Mondragón propone una reforma al artículo 252 del Código Penal del Estado de México, en el que ya se contempla el delito de Peligro de Contagioy que actualmente solo alcanza una pena privativa de hasta dos años; la iniciativa contempla una agravante de hasta un tercio, si el sujeto activo es personal médico. Además, la iniciativa que se encuentra en comisiones, propone elevar de 60 a 140 unidades de medida y actualización este tipo de acciones por dolo.  

“La acción desplegada por un sujeto enfermo que contagie a otro con conocimiento de causa tiene que ser considerado como delito y por ende ser castigado con una pena más grave por la circunstancia atípica y extraordinaria que enfrentamos”, dijo la diputada,  

Esta fracción parlamentaria también quiere modificar los términos de la persecución del delito por parte de las autoridades estatales para que la investigación ya no sea solo por denuncia de la o las personas afectadas, sino que más bien sea por oficio con la intención de castigar a quien cometa estos actos que atentan contra la vida de los mexiquenses.  

Este delito en la norma local se define así: “A quien sabiendo que padece una enfermedad grave en período infectante, ponga en peligro de contagio a otro, por cualquier medio de transmisión”.  

Belarus: Process to abolish HIV criminalisation statutes in Belarus criminal code has been launched

On improvement of the Criminal Code of the Republic of Belarus and the exclusion of Article 157 “HIV infection”

Translation via Deepl.com – For article in Russian, please scroll down.

People PLUS in action

The legal environment for HIV-positive people will be further improved. The process has been launched. On the eve of December 1 a letter from the Deputy Chairman of the Permanent Commission on National Security of the House of Representatives of the National Assembly of the Republic of Belarus A.V. Dubov was received by the Public Association “PLUS People”.

“I would like to inform you that the proposals to make amendments to the Criminal Code of the Republic of Belarus in the part of abolishment of articles 157 and 158 that were received from the Ministry of Health of the Republic of Belarus in my address have been considered together with interested state bodies. Proposals to repeal Articles 157 and 158 have been sent for consideration and taken into account in the course of finalizing the draft laws.

Proposals to amend the Criminal Code were formed at the Round Table “Maintenance of the status of elimination of HIV transmission from mother to child. Amendments to the Criminal Code of the Republic of Belarus in the part of abolition of articles 157 and 158”, which was held on September 28, 2020 with the participation of Deputies of the House of Representatives of the National Assembly of the Republic of Belarus, the Deputy Minister and heads of departments of the Ministry of Health of the Republic of Belarus, country offices of UNAIDS and WHO, the Republican associations of the Belarusian Red Cross Society and Public Association “PLUS People”.

In their presentation, “PLUS People” RSO told the participants of the Round Table about the benefits that the improvement of legislation will bring to society.

“The qualification of crimes related to HIV infection, not according to a special article, but according to the articles for harm to health and how the cases of private and public prosecution will develop in the society a culture of caring about each person’s own health and measures to prevent HIV infection and other diseases”.

People will no longer be afraid to know their HIV status and will be bravely tested for HIV.

People living with HIV:

After learning the diagnosis, they will not avoid being registered at the dispensary.
be able to exercise their right to establish a family and have children without fear
will not be victims of blackmail, extortion and intimidation
We express our gratitude to the brave people who dared to tell the audience of the Round Table their life stories about how they faced stigma and discrimination, thereby confirming and strengthening the arguments for the exclusion of Article 157 from the Criminal Code of RB, cited by ROO “PLUS People”.


О совершенствовании Уголовного кодекса РБ и исключении ст. 157 «Заражение ВИЧ»

Правовая среда в отношении ВИЧ-положительных людей будет дальше совершенствоваться. Процесс запущен. Накануне 1 декабря в адрес РОО “Люди ПЛЮС” пришло письмо от Заместителя председателя Постоянной комиссии по национальной безопасности  Палаты представителей Национального собрания Республики Беларусь А.В. Дубова.

«Информирую о том, что поступившие из Министерства здравоохранения Республики Беларусь в мой адрес предложения о внесении изменений в Уголовный кодекс Республики Беларусь в части отмены статей 157 и 158 рассмотрены совместно с заинтересованными государственными органами.Принимая во внимание, что в Министерстве юстиции Республики Беларусь создана межведомственная рабочая группа по подготовке проектов кодексов об уголовной ответственности, в рамках деятельности которой предполагается изучение основных направлений совершенствования Уголовного, Уголовно-процессуального и Уголовно-исполнительных кодексов. Предложения в части отмены статей 157 и 158 направлены для рассмотрения и учета их в ходе доработки законопроектов».

Предложения о внесении изменений в Уголовный кодекс были сформированы на Круглом столе «Поддержание статуса элиминации передачи ВИЧ от матери ребёнку. Внесение изменений в УК РБ в части отмены статей 157 и 158», прошедшем 28 сентября 2020 г. с участием Депутатов Палаты представителей Национального собрания Республики Беларусь , Заместителя Министра и руководителей управлений Министерства здравоохранения РБ, страновых офисов ЮНЭЙДС и ВОЗ, Республиканских объединений «Белорусского Общества Красного Креста» и РОО «Люди ПЛЮС».

РОО «Люди ПЛЮС» в своей презентации рассказывали участникам Круглого стола о том, какую пользу совершенствование законодательства принесёт обществу.

«Квалификация преступлений в связи с заражением ВИЧ , не по специально выделенной статье, а по статьям за причинение вреда здоровью и, как дела частного и частно-публичного обвинения будут развивать в обществе культуру заботы каждого человека о собственном здоровье и мерах профилактики заражения как ВИЧ-инфекции, так и других заболеваний».

Люди перестанут боятся узнать свой ВИЧ-статус и будут смело тестироваться на ВИЧ. 

Люди, живущие с ВИЧ:

  • узнав диагноз, не станут избегать постановки на диспансерный учёт
  • без страха смогут реализовывать право на создание семьи и рождение детей 
  • не станут жертвами шантажа, вымогательства и запугиваний

Выражаем благодарность смелым людям, которые решились рассказать аудитории Круглого стола свои жизненные истории, о том как они столкнулись со стигмой и дискриминацией, тем самым подтверждая и усиливая аргументы за исключение ст. 157 из УК РБ, приведённые РОО “Люди ПЛЮС”.

 

US: Advocates in Nevada work to repeal or amend laws that criminalise the behaviour of People living with HIV

Civil Rights Groups Look To Modernize Nevada’s HIV Laws

Today is World AIDS Day.  

An international day dedicated to raising awareness of the AIDS pandemic and remembering those who have died from the disease.

Civil and LGBTQ+ rights groups across Nevada are pushing for the state to modernize laws concerning people living with HIV.  

Nevada is one of 32 states that criminalizes the behavior of people living with HIV, making it a class-B felony for someone knowingly having HIV to engage in behavior that could transmit the virus to someone else.

But groups in the state want to change those laws so the disease is treated like other communicable diseases where people who knowingly spread it can face misdemeanor charges, not a felony. 

“We have a lot of work to do to modernize our laws so that people living with HIV are faced with stigmas, and also so that these HIV laws that criminalize behavior aren’t having a negative effect on public health goals,” said Andre Wade, state director for Silver State Equality. 

Wade explained that the state and the nation have plans to help end the HIV/AIDS epidemic but people who have the disease need to be engaged to execute those plans and to get them to be engaged they need to not feel stigmatized when they reveal their status.

“If we are stigmatizing them and criminalizing them, it is hard to engage them in plans to help end the epidemic,” he said.

Wade said the laws like the ones in Nevada were passed when less was known about the disease, and people were looking for ways to take HIV positive people out of society.

“These laws were created when we knew very little about HIV and AIDS and there was a lot of fear about homosexuality and a lot of misinformation,” he said.

In addition, Wade said someone is more likely to transmit the disease if they don’t know their status than if they do. 

Stephan Page is the co-chair of NV HIV Modernization Coalition. He said there have been a few instances around the country of someone knowingly and intentionally spreading the disease, and there have been more cases of innocent people being charged with spreading the disease. 

“Across the country, tons of people living with HIV got convicted for engaging in behavior where they truly can’t transmit HIV,” Page said.

Page said some people have been convicted under these kinds of laws even though they are on anti-viral medication and have a very low viral load in their bodies, and therefore, can’t transmit. There are also cases of people using protection during sex but still getting convicted because the judge didn’t believe them. 

Plus, bad information about how the virus is transmitted still hurts innocent people. Page said there are cases of people who have been convicted of knowingly spreading HIV because they spit on someone. HIV cannot be transmitted through saliva. 

Governor Steve Sisolak last year signed a bill that will review Nevada’s HIV laws.

Page said his coalition went through Nevada statutes and found 13 laws impacting HIV positive people that they want to be repealed or amended. Four of those statutes are the main ones the coalition is focusing on.

Besides the part of the law that makes transmitting HIV a felony, the coalition wants to change the part of the law that covers intent. 

“We recommend that this law be amended so that actual intent is truly required,” he said, “We want to ensure that yes true criminals who are intentionally, willingly and knowingly going around transmitting HIV are still getting convicted, but we want to ensure that innocent people do not fall through the cracks and get wrongfully convicted.”

They also want to see a change to the laws around sex work. Legal sex workers in Nevada cannot work in brothels if they have an HIV positive diagnosis.

Illegal sex workers will get a felony enhancement if they are HIV positive. The coalition wants to get rid of that enhancement for people who are living with HIV and performing illegal sex work.

Much of the effort to reform or repeal Nevada laws impacting people living with HIV is to change the stigma around the disease.

Connie Shearer is the co-chair of the NV HIV Modernization Coalition. She also lives with the virus. In 1996, she contracted HIV from her husband when she was 19. She was 21 when she was diagnosed. 

Now, years later, Shearer still faces a stigma.

“The stigma is – I don’t want to say it’s as bad as 1996 – but it’s almost just as bad,” she said.

Shearer said she’ll share up-to-date information about HIV, like the fact that someone using anti-HIV medication with undetectable levels of the virus means he or she can’t transmit it, online and people won’t believe her.  

“What’s important for me today is making sure people have access to the science around HIV so they know that whenever they’re diagnosed they don’t have to give up anything. Your life does not have to change at all, except that you take some medication now and that’s it,” she said.

Guests

Andre Wade, State Director, Silver State Equality; Connie Shearer, Co-Chair, NV HIV Modernization Coalition; Stephan Page, Co-Chair, NV HIV Modernization Coalition

Australia: Mandatory Disease Testing Bill is an “inappropriate criminalisation of a health issue”

ACON Condemns Introduction of Mandatory HIV Testing Laws in NSW

ACON has condemned the introduction of legislation by the NSW Government that will enforce mandatory testing of individuals whose bodily fluids come into contact with frontline workers.

On 11 November, the NSW Government introduced the Mandatory Disease Testing Bill (2020) into NSW Parliament.

ACON, along with many other expert and qualified stakeholders strongly oppose mandatory testing as it is ineffective in reducing harm or risk to people involved in potential exposure incidents. Further, such policy will cause different actual harm – particularly to marginalised communities – cost money and add to system pressures.

ACON CEO Nicolas Parkhill said: “We strongly believe in the importance of wellbeing and safety of frontline workers in NSW. We agree they must be protected as much as is reasonably possible in a high-level occupational risk environment.

“We believe that those putting forward this Bill to mandatorily test people are doing so as a well-meaning but misguided gesture of care for emergency services personnel.

“The concern for frontline workers is commendable and shared by all of us. However, this Bill does not afford real protections for our frontline workers – our current policies and procedures do, as evidenced by the fact that there has not been an incidence of occupational transmission of HIV for emergency service workers in more than 15 years.

“This Bill is not in line with evidence, not consistent with multiple state, national and international policies and guidelines, it exacerbates unfounded fear and it does nothing to educate and inform our workers about the real risks associated with bodily fluids,” Parkhill said.

“Our existing laws, policies and procedures work: there are other ways to reduce fear, risk and concern about this issue among frontline workers. We did not resort to mandatory testing in the height of the HIV/AIDS pandemic in the 1980s and 1990s, we certainly don’t need to now, noting the excellent progress we are making in driving down transmissions, and irrefutable evidence that effective treatment prevents onward transmission.

“NSW has every reason to feel incredibly proud of its efforts to contain epidemics and pandemics. We have seen this in NSW’s world-leading HIV response and, more recently, in the way NSW has responded to COVID-19. And we have done this by following the evidence, trusting people with information, and supporting frontline workers while they did their job – not by ignoring science, inciting fear and enacting policy that marginalises already vulnerable people,” Parkhill said.

“This Bill is the antithesis of evidence-based policy, and counter to our experience with pandemics and epidemics long brought under control by NSW using evidence, education, and a supportive approach. Force, criminalisation, misinformation, and fear is not the answer.”

Parkhill said the Bill, in its current form, presents significant concerns such as the lack of clarity in key areas and definitions, inappropriate age of application, and ambiguity around grounds for refusal or review.

“The Bill does not provide clarity on when the transfer of fluids from a third party is a ‘deliberate action’,” Parkhill said. “Medical procedures against the will of the person should not occur on the subjective opinion of a frontline worker and their senior officer, who are unlikely to understand the contemporary evidence around blood borne virus transmission.

“Extraordinarily, this Bill does not require medical advice of an infectious disease expert to be included in the application for a mandatory test,” Parkhill added.

Under the proposed legislation, a person who has appealed a decision made by a senior officer must still undergo venepuncture under threat of a fine or gaol. A person who is detained can have force used against them to ensure this occurs.

Parkhill said: “This is a denial natural justice, a violation of civil liberties and is unacceptable”.

The Bill will also apply to children aged between 14 and 18, which Parkhill labelled as “extremely worrying”.

“NSW reported only three infections among children in this age group in the previous year. On any assessment of risk, that minors are included in the Bill is an overreach and unconscionable.

“Mandatory testing orders for young people will further increase pressures on the Children’s Court and increase the distress of this vulnerable group of people.

“The handful of people likely to have any risk of HIV infections in this age group – and the likelihood these young people will be on treatment – represents perhaps the most egregious aspect of this Bill,” Parkhill said.

“We believe that this Bill is based on fear and ignorance, and flies in the face of decades of evidence-based practice and policy in relation to HIV and other blood borne virus transmission.

“The Bill will increase stigma and discrimination experienced by people living with HIV and other blood borne viruses.

“It also presents risks and harms for many thousands of marginalised people in this state – the overwhelming majority of whom pose no blood borne virus risk to our emergency workforce.

“Homeless people, people who experience mental illness, people struggling with addiction issues, Aboriginal and Torres Strait Islander people and others who are more likely to come into contact with frontline workers, particularly police officers – they also deserve our care and protection,” Parkhill said.

“Fundamentally this Bill is an inappropriate criminalisation of a health issue, one which has been dealt with through world-leading, evidence-based, bipartisan policy.

“Further work is needed on this Bill, and we strongly recommend that an Inquiry is formed to investigate the potential harm of the Bill before its passage through the Parliament,” Parkhill said.

Details of the Mandatory Disease Testing Bill (2020) can be found here.

Benin: Expert Consensus Statement on the Science of HIV in the Context of Criminal Law frames discussions on HIV criminalisation law reform in Benin and across Francophone Africa

UNDP brings together experts to review Law 2005-31 of 10 April 2006 on HIV/AIDS

The United Nations Development Programme (UNDP) organized, this Tuesday, November 10, 2020 at L’Infosec in Cotonou, a workshop to exchange and share information on scientific data on HIV in the context of criminal law.

This meeting which brought together several experts, has the main objective of exchanging and sharing information on issues and reforms inherent to the criminalization of HIV in the world in general and Benin in particular with regard to the consensus statement of experts.

Specifically, the aim was to make the participants familiar with and take ownership of the experts’ consensus statement, understand the issues of HIV criminalization, and analyze the impact of this statement on HIV laws around the world, in particular in francophone Africa and Benin.

On the agenda of the meeting was the law N° 2005- 31 of April 10, 2006 on the prevention, care and control of HIV and AIDS in the Republic of Benin.

On this occasion, the Deputy Coordinator of the Health Program for the Fight against AIDS, Dr. Bachabi Moussa was delighted to start the process of revising the law on HIV prevention and care in Benin.

For him, this law deserves to be updated in view of the evolution of HIV/AIDS.

For her part, Joséphine Kanakin, UNDP Gender, Human Rights and HIV/AIDS Program Officer, said that the law needs to be reviewed through exchanges and sharing of important and scientific information in order to adapt it to reality.

Opening the workshop, the Executive Secretary of the National Council for the Fight against AIDS (CNLS), Tuberculosis and Hepatitis, Melchior Aïssi insisted on the fruitful exchanges between the experts.

He specified that the consensus of the experts in the context of positive criminal law is calmed down to the Beninese positive law.  “Our wish and the wish of the government is to humanize HIV/AIDS because in the existing laws are the crucibles of stigmatization and discrimination.

“AIDS should be considered like any other disease that can be treated anywhere and anytime, it would be much more humanized. Let the health facilities be able to welcome them everywhere and in all services. Giving a specific place for their treatment is already a stigma,” he suggested.

UNDP Deputy Resident Representative José Herman Wabo expressed his organization’s expectations.
“We want to fill a gap in the existing legal framework to provide a comprehensive legal framework to support people affected by HIV/AIDS. Beyond a simple workshop, these are exchanges that will affect the lives of some people by providing solutions.

Gatien ELEGBEDE


Le PNUD réunit des experts pour la révision de la Loi 2005-31 du 10 avril 2006 sur le VIH/Sida

Le Programme des Nations Unies pour le Développement (PNUD) a organisé, ce mardi 10 novembre 2020 à L’Infosec de Cotonou un atelier d’échanges et de partage d’informations sur les données scientifiques relatives au VIH dans le contexte du droit pénal.

Cette rencontre qui a réuni plusieurs experts, a pour objectif principal de d’échanger et de partager les informations relatives aux enjeux et réformes inhérents à la pénalisation du VIH dans le monde en général et au Bénin en particulier au regard de la déclaration de consensus des experts.

De façon spécifique, il s’est agi d’amener les participants à prendre connaissance et s’approprier la Déclaration de consensus des experts, comprendre les enjeux de la pénalisation du VIH, analyser l’impact de cette déclaration sur les lois sur le VIH dans le monde en l’occurrence en Afrique francophone et au Bénin en particulier.

Au menu des échanges de la rencontre, la loi N° 2005- 31 du 10 Avril 2006 portant prévention, prise en charge et contrôle du VIH Sida en République du Bénin.

À l’occasion, le Coordonnateur adjoint du Programme Santé de Lutte contre le Sida, Docteur Bachabi Moussa se réjouit de démarrage du processus de révision de la loi portant prévention et prise en charge du VIH au Bénin.

Pour lui, cette loi mérite d’être actualisée au vue de l’évolution du VIH/Sida.

Pour sa part, la chargée de programme Genre, Droits humains et VIH/Sida du PNUD, Joséphine Kanakin précise qu’il s’agit d’examiner la loi par des échanges et le partage des informations importantes et scientifiques pour l’adapter à la réalité.

Procédant à l’ouverture de l’atelier, le Secrétaire Exécutif du Conseil National de Lutte contre le SIDA (CNLS), la tuberculose, les hépatites, Melchior Aïssi a insisté sur les échanges fructueux entre les experts.

Il précise que le consensus des experts dans le contexte du droit pénal positif soit calmé au droit positif béninois.  » Notre souhait et le souhait du gouvernement est d’humaniser le VIH/Sida parce que dans les lois existantes se trouvent les creusets de la stigmatisation et des discriminations.

« Il faut considérer le SIDA comme toute autre maladie qui peut être traitée partout et à tout moment, ce serait beaucoup plus humanisé. Que les formations sanitaires soient capables de les accueillir partout et dans tous les services. Le fait de donner un endroit spécifique pour leur traitement est déjà une stigmatisation » a t-il laissé entendre.

Le représentant résident adjoint du PNUD, José Herman Wabo, a fait part des attentes de son organisation.
« Nous souhaitons combler un vide noté dans le cadre légal existant afin d’en offrir un cadre légal complet afin d’apporter un appui à ces personnes affectées par le VIH /Sida. Au delà d’un simple atelier, ce sont des échanges qui vont affecter la vie de certaines personnes en leur apportant des solutions ».

Gatien ELEGBEDE

Australia: “Coercive responses like forced testing and detention should only ever be a last resort”, if at all

Forced testing a last resort

With the COVID-19 pandemic persisting for much longer than expected, particularly in Victoria where rolling lockdowns have affected us all, it’s understandable that there might be calls for legislative reform. But I was saddened to read a call for implementation of widespread coercive testing under the Public Health and Wellbeing Act 2008 (PHW Act) (“Flattening the curve – Why the law should allow for compulsory testing in a pandemic”, LIJ October 2020).

Threats to public health do sometimes require drastic measures, but where human rights are impacted, the legal profession should be the first to question whether such measures are proportional and justified. Existing provisions within the PHW Act allow for testing orders in strictly limited circumstances – as is appropriate given the extreme intrusion into human rights
that those orders can represent. The history of the response to HIV in Australia has frequently seen calls for curtailment of individual rights in the pursuit of the public good, and the current PHW Act was developed in part through consultation with the HIV-affected community. Notwithstanding that, there are powers to detain and test people in the Act and, while rarely used, they can be highly coercive.

The case of Lam Kuoth is an example. Accused of placing a woman at risk of HIV, Mr Kuoth, a young Sudanese man, was placed in public health detention for almost 16 months before his trial. On appeal, the Court of Appeal accepted that that period “amount[ed] to a term of imprisonment”1 in a matter where, ultimately, only a community- based order was imposed.

There is a well-developed international discourse about the most effective ways to protect the health of communities while also safeguarding rights. The Ottawa Charter for Health Promotion is globally recognised as a foundational document.2 The Charter sets out a framework of developing healthy public policy, creating supportive environments, and empowering and educating individuals, as the foundation to effective public health responses.

Victorians have been tested in huge numbers (more than 2.8 million tests). Our second wave wasn’t due to low testing, but emerged from outbreaks in workplaces – aged-care homes, abattoirs, and quarantine hotels – where low-paid workers, often with limited education and training, have been on the frontline of the pandemic. Better safeguards for their health and employment would have limited or prevented those outbreaks without the need for forced testing. Coercive responses like forced testing and detention should only ever be a last resort, if they are used at all. 

Paul Kidd, director, HIV Justice Network (Amsterdam), lawyer, Fitzroy Legal Service.

1. Kuoth v TheQueen[2010]VSCA103.
2. World Health Organisation,The Ottawa Charter for Health Promotion (21 November 1986) http://www.who.int/healthpromotion/ conferences/previous/ottawa/en/.

Canada: New article examines the damaging impact of the Supreme Court of Canada decision in R. v. Cuerrier

The Complex Legacy of R. v. Cuerrier: HIV Nondisclosure Prosecutions and Their Impact on Sexual Assault Law

ABSTRACT

This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around sex are only criminalized where they cause a significant risk of serious bodily harm. It is argued that legislatively removing HIV nondisclosure prosecutions from the scope of sexual assault offences, and making corresponding changes to the definition of consent, is the only way to remedy the harm done to people with HIV and to sexual assault law more generally.

The full article can be downloaded here: https://www.albertalawreview.com/index.php/ALR/article/view/2609/2569

Uzbekistan: While people with HIV are still criminalised, there is hope for change with the the country’s entry into the UN Human Rights Council

Punishment for illness: why HIV is still a crime in Uzbekistan

Google translation. For article in Russian, please go to: https://uz.sputniknews.ru/analytics/20201028/15275804/Nakazanie-za-bolezn-pochemu-VICh-v-Uzbekistane-do-sikh-por-prestuplenie.html

Unfortunately, people living with HIV in Uzbekistan are victims of a discriminatory legal system. But there is hope that with the country’s entry into the UN Human Rights Council, the situation with obsolete norms will begin to change.

 

TASHKENT, October 28 – Sputnik, Anna Zhelikhovskaya. Shortly before the introduction of quarantine in Tashkent, an investigation began on the case of 52-year-old Natalya (name has been changed. – Editor’s note), a single mother who works as a hairdresser and colourist. The woman is a professional master all-rounder with over 20 years of experience in this field. She was charged under article 113, part 4 of the Criminal Code of the Republic of Uzbekistan “The spread of a venereal disease or HIV infection / AIDS” – knowingly endangering or getting infected with HIV / AIDS.  

Positive result

In 2014, the List of professional activities prohibited for persons infected with the human immunodeficiency virus was updated. It included, in particular, the profession of a hairdresser associated with cutting and shaving. Natalya’s story began in 2017, when the director of the beauty salon where she worked sent employees to undergo, as it turned out, mandatory HIV testing.   

“My test turned out to be positive. I realised that it was impossible, and retaken the analysis. I don’t know how I got through these days of waiting … The answer was again yes. The first thing I experienced was shock. Before that, I did not know anything about this disease I never came across him. Of course, the doctors talked to me, I registered at the Tashkent City AIDS Center, leaving all my data there, “the woman recalls.

She immediately started taking antiretroviral therapy (ART). This specific treatment helps patients block the virus, which means they do not put others at risk, live a full life, have a family and healthy children. For the next two years, she continued to work in the service industry, realising every day that management should know about her illness. Natalya explained the lack of a certificate to the director by the fact that she could not pay for the test at the moment.

“With the best of intentions, of course, he called the SES and asked if I could still not take the test, since I’m not a beautician, I don’t do tattoos and make-up, neither do manicure. I work with paints and cut my hair, mainly with a machine. replied that in this case, the test can not be taken, “- says the woman.

According to her, she did not report the test results to the director because she was afraid of losing her job. Raising a teenage child alone, a woman treasured her only source of income. In addition, Natalia had already learned enough about her illness and understood that with an undetectable viral load (the amount of virus in the blood), she was safe for others.

“Of course, I do not justify myself in any way. I had to report everything to the management and leave the profession. But I was scared, I was lost and did not understand what to do next, how to live now …”

In March 2020, a few days before quarantine, police officers came to the beauty salon with a purposeful check. According to the woman, one of them took her into a separate room and said that with such a diagnosis she was not allowed to work as a hairdresser. It was explained to Natalia’s colleagues and her management that the problem was in the medical book. At the same time, according to her, one of them reassured her, assuring her that there would be no trial, and she would limit herself only to a fine. However, an investigation soon began and the first court hearing was scheduled. Before the trial began, none of her colleagues and the director knew about the real reason for the audit.

“In a conversation with an operative, a doctor in the AIDS center, in the makhalla committee indirectly, not directly, but it was felt that I was suspected of indecent behaviour. To say that I was mentally and psychologically crushed is to say nothing. I am a believer, I walk to the church. For the trial, even my positive characteristics were provided from there, “recalls Natalya.

Today in the minds of people there is still a deep conviction that this is a disease of the marginalised. And if a woman has it revealed, then she will certainly receive the stigma of the fallen. Antiquated HIV legislation also hinders the fight against this stigma.

A new look at old laws

Uzbekistan’s Criminal Code was approved in 1994, and article 113 has its roots in the 1980s. Then the diagnosis was really a sentence, there was no treatment or diagnosis, and criminal prosecution was considered almost the only type of prevention. Several years ago, the World Health Organization officially recognised HIV as a chronic, not fatal, disease. People who regularly take therapy live long and healthy lives. Therefore, the list of permitted professions and the justice system for positive ones should be revised.

“To date, not only has the status of the disease changed, but there is also a lot of data that make it possible to unequivocally assert that criminal prosecution does not prevent the spread of the virus in any way. The existence of criminal liability for endangering and transmitting HIV, on the contrary, leads to the fact that people who practice risky behaviour, avoid testing. After all, while they do not know about their status, they are not subject to responsibility, “says lawyer Timur Abdullaev.

Natalia’s public defender at the trial was Evgenia Korotkova, coordinator of the Positive Women program “Ishonch va hayot”. She says that they monitored the list of prohibited professions for people with HIV in the CIS countries, and nowhere is the profession of a hairdresser.

“At the very first court session, we petitioned for the appointment of a forensic medical examination with the involvement of an experienced infectious disease expert working with HIV. The investigation established that the accused had zero viral load. danger. The indictment states that in order to prevent infection of third parties, she did not work with cutting tools, but used a typewriter. That is, by her actions, she tried to protect clients from HIV transmission, “says Evgenia.

In world medicine, the thesis “Undetectable = Untransmittable” (the principle “U = U”) has been finally proved. Experts and legislators of Uzbekistan have more than 10 years of their own observations and statistics, confirming international data. This already allows us to revise the list of prohibited professions for people with HIV, the relevant law and decriminalise Article 113.

You can already start by looking at the list of prohibited occupations that people with HIV can do.

“Amendments to this list can be achieved if the convict in question does not stop and continues to defend her rights up to the Constitutional Court and the UN Human Rights Committee,” the lawyer said.

According to him, the UN Special Rapporteur on the Right to Health and representatives of other structures of the organisation spoke about the harm of HIV criminalisation, as well as the fact that it violates a number of rights enshrined in international pacts ratified by Uzbekistan. However, so far no action has been taken in this direction.

According to human rights activists, there is a serious flaw in Article 113, which is found in almost all the criminal codes of the Central Asian countries: it contains the word “knowingly”.

“What is” knowingly “and how it relates to intent, the Code itself does not explain. As a result, such a” trifle “becomes a secondary circumstance. Whether intent or not can affect only the severity of punishment, but responsibility does not cancel out. depending on whether a person wanted to infect someone with HIV or not, the article “shines” in any case, “Timur Abdullaev explained.

Usually such inaccuracies in the legislation are eliminated either by bylaws or by Resolutions of the Plenum. But with regard to Art. 113 there is neither one nor the other. There are only Criminal and Criminal Procedure Codes, and everything else is at the discretion of the court. If the judge does not understand what HIV is and how it is transmitted, then the defendant will have a difficult time.

Moreover, even among scientists there is no consensus on whether the presence of intent is mandatory for the onset of responsibility. If so, what should this intent be? After all, it can be direct – “malicious” or indirect.

We need to talk about it

Evgenia also talks about the low level of awareness of representatives of law enforcement agencies and the judiciary about HIV transmission and treatment. She is convinced that to a greater extent this is what influences the sentencing. In her opinion, the application of modern scientific evidence in criminal cases can limit unfair prosecutions and acts of justice.

“When making a diagnosis, doctors do not tell patients about the ‘N = N’ strategy, but take a receipt of criminal responsibility for infecting others with them. Also, activists have difficulty access to the accused, and most lawyers have a prejudiced attitude towards such clients,” the human rights activist adds …

According to the law of Uzbekistan “On the protection of the health of citizens”, the patient has the right not only to keep confidential information about the diagnosis, but also to choose the persons to whom information about the patient’s health can be transferred in the interests of the patient.

Natalia and HIV activists ask themselves: where did the law enforcement agencies get the information about her diagnosis and why did they come to work, inflicting severe moral and psychological damage on the woman? Thus exposing her to the risk of disclosing the diagnosis. At the request of the editorial office, this question was answered at the Republican AIDS Center. We publish the text in full.

The Republican Council for the Coordination of Citizens’ Self-Government, the Committee on Religious Affairs and the Youth Union of Uzbekistan, the Tashkent AIDS Center provided information to the Criminal Investigation Department of the Ministry of Internal Affairs on February 10, 2020 at the request of citizens who are diagnosed with HIV and who work in salons of personal services. At the same time, the center’s specialists ensure the confidentiality of information about people living with HIV and medical secrets in accordance with Article 45 of the Law “On the Protection of Citizens’ Health” dated August 29, 1996, “the letter says. It was not possible to drop the charges against Natalia. But she escaped real imprisonment and received a two-year suspended sentence.

“A large role in our case was played by the competence and interest in the details of the case, as well as in the topic of HIV and the ways of its transmission on the part of the judge and the prosecutor. But this is more a special case than a rule. The judge gave recommendations to lobby for a revision of the list of prohibited professions for HIV – positive, to exclude the position of a hairdresser from it, “says Evgenia Korotkova.

The media should also participate in the formation of a competent public opinion about HIV, but today this topic is almost never raised in the press, and specialised structures do not interact well with journalists. 

Now Natalia has no official job. Several times the makhalla provided her with material assistance, both in connection with the pandemic and with her current situation. But there is no regular, even minimal, earnings.

On October 15, 2020, Uzbekistan adopted a law “On the Rights of Persons with Disabilities.” It lists the basic principles that ensure their rights and protection against discrimination on health grounds. People living with HIV should have similar guarantees. Uzbekistan recently joined the UN Human Rights Council. Perhaps this status will speed up the revision of Article 113 of the Criminal Code. Lawyers are convinced that the punishment should follow exclusively for willful malicious infection or its attempt. Reforms in this area will significantly strengthen the position of the republic in the field of human rights protection.