Zimbabwe: The persecution and prosecution of Harare model highlights reasons why HIV should not be criminalised

For the past few weeks, social and conventional media have been awash with the most heinous of headlines — “Harare model injects lover’s son with HIV.”

BY BELLINDA CHINOWAWA & ELIZABETH MANGENJE

An outraged public bayed for her blood, denouncing the model and calling for her immediate incarceration. After an invasive HIV test, it emerged that the allegations against the model were false, and that she is just another victim of the poorly crafted section 79 of the Criminal Law (Codification and Reform) Act, which in part reads as follows;

“ Any person who

(a) Knowing that he or she is infected with HIV; or

(b) Realising that there is a real risk or possibility that he or she is infected with HIV

Intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.”

The wording of this provision is objectionable because:

It criminalises sexual intercourse

Under this section, any person who has had sexual intercourse can be arrested and prosecuted, as with every sexual encounter, there is a risk or possibility of infection with HIV. Scientific research shows that no one method is 100% effective in protecting against the risk of infections. Having safe sexual intercourse is, strictly speaking, irrelevant for the purposes of this provision. A dangerously wide offence has been created.

It creates conditions for false incrimination

It is currently not possible in this country to tell who was infected first. Thus, the story which carries the day is that of the person who reports to the police first. This disadvantages women, who by reason of their reproductive health needs invariably get to know their status first as antenatal care services make HIV-testing compulsory for women. The only option for women to avoid prosecution under section 79 is to avoid antenatal care services or to opt out of HIV-testing, notwithstanding the danger that these decisions present for their own health, the health of their unborn babies and the community at large.

It does not reduce the spread of HIV

There is no evidence that applying criminal law to HIV risk behaviour incapacitates, rehabilitates, or deters offenders.

It promotes fear and stigma

Prosecution under section 79 is typically accompanied by inflammatory and ill-informed media coverage and this only serves to reinforce stigma against people living with HIV.

It penalises a conjectural likelihood

In terms of section 79, one does not actually have to have infected someone with HIV for a court to find that there has been “deliberate transmission of HIV”. Where a person facing charges under this section is tested and found positive, then a court must convict them, whether or not any transmission took place!

It disproportionately affects the already marginalised

Due to the persistence of deep-rooted prejudice against groups such as commercial sex workers, there is a real possibility that criminal prosecution will disproportionately affect them, as they are easy targets for such a witch hunt.

Data and evidence collected in 15 years (1986-2001) on prosecution for HIV transmission or exposure in the United States as well as several studies conducted around Europe revealed that most of the individuals convicted for HIV transmission or exposure were in vulnerable social and economic positions, including, commercial sex workers and prisoners.

Thus, it is arguable that section 79 of the Criminal Law (Codification and Reform) violates section 56 of the Constitution which guarantees non-discrimination and equal protection of the law. A law that puts people at risk of prosecution and 20 years imprisonment for a crime whose elements are not sufficiently clear for them to regulate their conduct cannot be said to be in line with the protection guarantee under the Constitution. As Edwin Cameron, a Judge of the Supreme Court of Appeal of South Africa, has noted, “prosecutions for HIV transmission and exposure, and the chilling content of the enactments themselves, reinforce the idea of HIV as a shameful, disgraceful, unworthy condition.”

The persecution and prosecution of the Harare model is proof of all the reasons why HIV should not be criminalised. The general criminal law is sufficient to deal with instances where a person maliciously and deliberately infects others with HIV, and in other jurisdictions, such persons are charged with assault, or attempted murder. There is no proof that criminalising HIV transmission will achieve either criminal justice or prevents HIV transmission.

The sentiment behind section 79 is understandable — it is grounded in the belief that, given the deleterious nature of HIV, any person living with it, has a moral duty to avoid infecting others. In this instance, however, the criminal law is a blunt instrument, imprecise and heavy-handed, leaving a trail of destruction in its wake. The criminalisation of HIV transmission threatens a human rights response to HIV that empowers people to avoid infection or live successfully with HIV. As UNAIDS has noted, instead of applying criminal law to HIV transmission, governments should expand programmes which have been proven to reduce HIV transmission and strengthen and enforce laws against rape and other forms of sexual violence against women and children.

The events of the past few weeks have shown that Section 79 of the Criminal Law (Codification and Reform) Act is overly-broad, and open to abuse. It only serves to entrench stigma and discrimination, and has no place in a society ostensibly founded on recognition of the inherent dignity and worth of each human being.

l Bellinda Chinowawa and Elizabeth Mangenje are project lawyers with Zimbabwe Lawyers for Human Rights

 Originally published in The Standard

 

US: Landmark statement from State Prosecutor calling for modernisation of HIV criminal law in Illinois

Cook County State’s Attorney Anita Alvarez, representing the second largest prosecutor’s office in the nation, recently conducted an interview with the Windy City Times where she spoke about the work that needs to be done to modernize HIV criminal laws in Illinois. Alvarez, an inaugural member of CHLP’s National Prosecutor’s Roundtable on HIV Law and Policy, a joint project with the Association of Prosecuting Attorneys, shared this reply:

Windy City Times: Are you in favor of criminal penalties for transmission of HIV/failure to truthfully disclose HIV status?

Anita Alvarez: Frankly, the Illinois law entitled “Criminal Transmission of HIV” is a relic of the now debunked notions of HIV infection from the 1980s. This law, if we are going to keep it, is in need of a serious revision. For example, as it stands, it is a defense to the charge if an individual can show that a condom was used during the sex act but it is not a defense if the individual was currently taking anti-retroviral drugs. The CDC estimates that condoms are 80% effective at reducing the risk of transmission of HIV while a modern drug regimen will render an HIV positive person “undetectable” and reduce the risk of transmission by more than 95%. Furthermore, with modern medical intervention, HIV, while still a serious health issue for people, has become a manageable condition that can be treated without serious impairment to living a normal, healthy and active life. There are many other diseases nowadays that are far more life impairing than HIV and are transmittable through sexual contact yet we don’t specifically criminalize those conditions. That simply makes no sense and is clearly out of date and out of line with modern science. I have been actively engaged in discussions with Catherine Hanssens, the Director of the Center for HIV Law and Policy, on ways that we can address this issue that make sense and balance the need to protect people from someone who might wish to intentionally transmit a serious disease while not unjustly targeting people who are HIV positive. I am hopeful that we can create best practices for prosecutors across the nation on this subject and that, in Illinois, we can move to statutory revision that makes sense on this issue.

 Interview originally published in The Center for HIV Law and Policy

 

US: Missouri Supreme Court upholds overly broad HIV non-disclosure law following second constitutional challenge

The Missouri Supreme Court has upheld the conviction of a woman (known as ‘S.F.’) who did not tell her sexual partner that she was living with HIV before engaging in sex.

At her original trial she was found guilty of exposing another to HIV under Mo. Rev. Stat. §191.677 and sentenced to seven years’ imprisonment.  The law does not require actual transmission or even actual exposure, and there is no condom use or viral load defence.

Yesterday, the Court issued an unanimous opinion written by Judge Mary Russell (pictured) dismissing the woman’s challenge which argued that the law infringes on her right to privacy and to free speech.

The Court opined that

Although the statute may compel individuals with HIV to disclose this information under certain circumstances, the burden on speech is incidental to the conduct the statute seeks to prohibit and does not violate constitutional provisions protecting the freedom of speech. Furthermore, the right to privacy does not permit Defendant to expose others to HIV in the course of sexual activities without first securing their knowing consent to such exposure.

The full judgement can be downloaded from the Missouri Supreme Court website.

This is the second time that Missouri statute has been unsuccessfully challenged on constitutional grounds.

In State v. Mahan (971 S.W.2d,Mo. 1998), the Missouri Supreme Court consolidated the appeals of two men who were convicted under the Missouri statute for failing to inform their sexual partners that they were HIV-positive. One of the men, Sykes, was sentenced to ten years imprisonment for having sex with two women, including his live-in girlfriend, and failing to disclose his HIV status. The other man, Mahan, was sentenced to five years imprisonment for failing to tell his sexual partner that he was HIV-positive.

The appellants argued that the statute was overly broad and criminalized behavior such as an HIV-positive mother giving birth to her child. The court held that the appellants lacked standing on this matter because their behavior directly fell within the language of the statute and, as such, they could not challenge hypothetical scenarios that were not reflective of their behavior. The appeal by one of the defendants, Mahan, also argued that the statute was overly vague, as the phrase “grave and unjustifiable risk” did not provide enough notice as to what acts can be prohibited under the statute.

Specifically, Mahan reasoned that because the risk of transmitting HIV was not quantitatively known to scientists, a person would have no way of knowing when one’s conduct would rise to a “grave and unjustifiable risk.” The court found because Mahan was counseled that HIV could be transmitted through unprotected sex, including anal sex, and he continued to have anal sex without disclosing his HIV status, the statute was not vague as applied to him, and he had full notice that his actions could result in the transmission of HIV. The court upheld both of the convictions.

Excerpted from: Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (updated May 2015).

US: Republican Senator highlights Florida’s “archaic” HIV-specific criminal law, advocates for law reform in 2017

Last Thursday, March 10th Senator Rene Garcia introduced an amendment in the Florida Senate to an amendment of a bill he was co-sponsoring (SB 314) to highlight the damage done to the HIV response by the state’s overly broad HIV criminalisation law.

Senator Garcia, a Republican, withdrew the amendment following his three minute intervention, but noted that he intends to work with the Senate in the next legislative session, 2017, in order to reform Florida’s overly broad HIV non-disclosure law.

In order words, the amendment was presented strategically in order to give the issue of HIV criminalisation some exposure to his colleagues.

Tami Haught of the Sero Project, who is working closely with colleagues in Florida to modernise the law, noted:

“We are delighted that Senator Garcia is taking leadership on this issue and look forward to an ongoing dialogue. Sero and our Florida partners will be soliciting comments and a legal review of what Senator Garcia has proposed as well as continuing to organize statewide to build support for change. We have a lot of work to do between now and next year’s legislative session.”

Watch Senator Garcia speak about why it is crucial to reform Florida’s HIV criminalisation law below.

US: Hillary Clinton: "We should call on states to reform outdated and stigmatizing HIV criminalization laws."

Yesterday, at Nancy Reagan’s funeral, I said something inaccurate when speaking about the Reagans’ record on HIV and AIDS. Since then, I’ve heard from countless people who were devastated by the loss of friends and loved ones, and hurt and disappointed by what I said. As someone who has also lost friends and loved ones to AIDS, I understand why. I made a mistake, plain and simple.

I want to use this opportunity to talk not only about where we’ve come from, but where we must go in the fight against HIV and AIDS.

To be clear, the Reagans did not start a national conversation about HIV and AIDS. That distinction belongs to generations of brave lesbian, gay, bisexual, and transgender people, along with straight allies, who started not just a conversation but a movement that continues to this day.

The AIDS crisis in America began as a quiet, deadly epidemic. Because of discrimination and disregard, it remained that way for far too long. When many in positions of power turned a blind eye, it was groups like ACT UP, Gay Men’s Health Crisis and others that came forward to shatter the silence — because as they reminded us again and again, Silence = Death. They organized and marched, held die-ins on the steps of city halls and vigils in the streets. They fought alongside a few courageous voices in Washington, like U.S. Representative Henry Waxman, who spoke out from the floor of Congress.

Then there were all the people whose names we don’t often hear today — the unsung heroes who fought on the front lines of the crisis, from hospital wards and bedsides, some with their last breath. Slowly, too slowly, ignorance was crowded out by information. People who had once closed their eyes opened their hearts.

If not for those advocates, activists, and ordinary, heroic people, we would not be where we are in preventing and treating HIV and AIDS. Their courage — and their refusal to accept silence as the status quo — saved lives.

We’ve come a long way. But we still have work to do to eradicate this disease for good and to erase the stigma that is an echo of a shameful and painful period in our country’s history.

This issue matters to me deeply. And I’ve always tried to do my part in the fight against this disease, and the stigma and pain that accompanies it. At the 1992 Democratic National Convention, when my husband accepted the nomination for president, we marked a break with the past by having two HIV-positive speakers — the first time that ever happened at a national convention. As First Lady, I brought together world leaders to strategize and coordinate efforts to take on HIV and AIDS around the world. In the Senate, I put forward legislation to expand global AIDS research and assistance and to increase prevention and education, and I proudly voted for the creation of PEPFAR and to defend and protect the Ryan White Act. And as secretary of state, I launched a campaign to usher in an AIDS-free generation through prevention and treatment, targeting the populations at greatest risk of contracting HIV.

The AIDS crisis looks very different today. There are more options for treatment and prevention than ever before. More people with HIV are leading full and happy lives. But HIV and AIDS are still with us. They continue to disproportionately impact communities of color, transgender people, young people and gay and bisexual men. There are still 1.2 million people living with HIV in the United States today, with about 50,000 people newly diagnosed each year. In Sub-Saharan Africa, almost 60 percent of people with HIV are women and girls. Even though the tools exist to end this epidemic once and for all, there are still far too many people dying today.

That is absolutely inexcusable.

I believe there’s even more we can — and must — do together. For starters, let’s continue to increase HIV and AIDS research and invest in the promising innovations that research is producing. Medications like PrEP are proving effective in preventing HIV infection; we should expand access to that drug for everyone, including at-risk populations. We should call on Republican governors to put people’s health and well-being ahead of politics and extend Medicaid, which would provide health care to those with HIV and AIDS.

We should call on states to reform outdated and stigmatizing HIV criminalization laws. We should increase global funding for HIV and AIDS prevention and treatment. And we should cap out-of-pocket expenses and drug costs—and hold companies like Turing and Valeant accountable when they attempt to gouge patients by jacking up the price of lifesaving medications.

We’re still surrounded by memories of loved ones lost and lives cut short. But we’re also surrounded by survivors who are fighting harder than ever. We owe it to them and to future generations to continue that fight together. For the first time, an AIDS-free generation is in sight. As president, I promise you that I will not let up until we reach that goal. We will not leave anyone behind.

Australia: New campaign launched by state PLHIV organisation to amend HIV disclosure requirement in New South Wales’ Public Health Act

Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review.

The Public Health Act is a key piece of NSW legislation which impacts the lived experience of people living with HIV. For many years, Positive Life has advocated for a number of key changes to the Act to reflect the current reality of HIV as a chronic manageable health condition, to better support efforts to end HIV transmission and to acknowledge prevention of HIV transmission is a shared responsibility regardless of sero-status. With charges under the Crimes Act laid against a man relating to the alleged infection of another man in January, now unrelated accusations against a sex worker extradited to Western Australia, Positive Life will again advocate for change to the Public Health Act as part of a required review of the legislation.

Despite an update in 2010, Positive Life argues some sections of the Public Health Act need change, and even removal from the Act to protect the interests of people living with HIV, reduce stigma and discrimination and enhance HIV prevention and testing in the broader community. A key example is the removal of Section 79, known as the ‘disclosure provision’.

Section 79 requires anyone who knows they have a sexually transmissible infection (STI) including HIV to inform a person before they have sex, and for that person to voluntarily accept the risk of acquiring that infection. In NSW, if you are HIV-positive and don’t disclose your status before sex you are guilty of an offence under the Act. The requirement to disclose your HIV status before sex hasn’t changed from the 1991 version of the Act, except for the inclusion of a ‘reasonable precautions’ provision.

This provision provides a defence to prosecution if ‘reasonable precautions’ have been taken during sex to prevent transmission. However, the definition of ‘reasonable precautions’ remains unclear and this amendment falls short of the current reality of HIV. Removing Section 79 will provide a more comprehensive approach to the rights and responsibilities of the community regardless of sero-status.

With today’s HIV treatments, if a HIV-positive person is on treatments and has an ‘undetectable viral load’, the chances of condomless sex resulting in HIV infection are extremely low. However under the current Section 79, without change to the law or a court deciding that an undetectable viral load is a ‘reasonable precaution’, a person with HIV could still be committing an offence under the Act for not disclosing their status before sex.

Under Section 79, criminalising HIV discourages testing and encourages anonymous sex. Put simply, if you don’t know you have HIV you cannot be found guilty of an offence under the Act for not disclosing your status. Equally, anonymous sex reduces your chances of being identified for prosecution. In an era where more than 90% of people with HIV are on treatment and have an undetectable viral load, people who are infected with HIV but unaware of their status are more of a risk for transmission than people on treatment with a suppressed viral load.

Fear of prosecution inhibits honesty with sexual partners and medical providers, so Section 79 may actually increase the transmission of HIV and other STIs, rather than decrease it. An honest and open relationship with our doctor is crucial to maintain good health regardless of our sero-status. For example, contracting an STI such as gonorrhoea is a risk for anyone who is sexually active, and if the symptoms are hidden, we don’t know we’ve picked up an STI. If we can’t speak openly about the sex we have, it’s likely we won’t be tested for STIs and instead transmit any unknown infection to others.

Under Section 79, forced disclosure of our status as a person with HIV can encourage HIV-related stigma and discrimination, both real and perceived. Disclosure of our status as a person with HIV can, in rare circumstances, lead to violence. More often forced disclosure leads to rejection, loss of control over who knows of our status, discrimination on the basis of our status, or the premature ending of relationships.

Section 79 as it stands does not account for PrEP. Today, many HIV-negative people are already importing pre-exposure prophylaxis or ‘PrEP’, and following the announcement on World AIDS Day last year of an expanded trial of the HIV-prevention medication, many more will be taking PrEP as the trial is rolled out in coming months. A benefit of PrEP is it encourages HIV-negative people to take control of their own health and reduce their own risk of acquiring HIV. Reducing HIV transmission is a shared responsibility and Positive Life believes this principle should be reflected in the Public Health Act.

With the coming review of the Public Health Act, Positive Life will share more about other changes we believe should be made to the Act to reflect the modern reality of HIV as an ongoing manageable health condition. In the meantime, if you have questions or comments about our proposed changes to HIV disclosure requirements in the Act, please make contact on 1800 245 677 (freecall) or by email.

Originally published on Gay News Network

Mexico: Human Rights Commission files motion before Supreme Court arguing Veracruz law criminalising 'wilful transmission' of HIV and STIs is unconstitutional

Because the amendment to Article 158 of the Criminal Code of Veracruz, called “contagion” criminalizes the transmission of sexually transmitted infections, and establishes a sentence ranging from 6 months to 5 years in prison and a fine of up to 50 days’ pay for those who “willfully” infecting another person sexually transmitted disease, a contravention of Article 1 of the Constitution of the United States Mexicans, at 24 of the American Convention on Human Rights and 26 of the International Covenant on Civil and Political Rights, the National Commission on Human Rights (CNDH) filed a motion before the Supreme Court of Justice of the Nation.

That article, which provides between these infections to HIV and human papillomavirus, he was published in the Official Journal of Veracruz on 1 December and, according to the CNDH, is discriminatory because it “generates    a    differentiation    unnecessary    and unjustified that becomes discriminatory. ”

This, because, argues the CNDH, the new content of the article “generates a discriminatory treatment in Subject to the people, and that criminalize putting willful in danger of disease transmission, generates two assumptions: that it is sexually transmitted infections and cases of serious disease. ”

According to the document, this situation leads to “different treatment for sexually transmitted infections with respect any other illness, by the than is rock specifically the condition health perpetrator when he suffers STDs, generating    so    a    distinction    legal    between    Who    suffer    a    disease acquired by sexually transmitted Y those with any other disease acquired through diverse. ”

In addition, it is emphasized that the amendment does not meet the objective of preventing argued transmission of STIs against women and girls, finding themselves in vulnerable situations, but caused a differentiation based on the condition of true kind from infections, in East case from sexually transmitted, and describe them as serious, a fact that is not real, because not all infections of this court are serious.

Thus, the declaration of unconstitutionality of the article is requested and all those rules than are related.

Thus, the CNDH responded to the request of the Multisectoral Group on HIV / AIDS and STIs of Veracruz and other civil society organizations, which have stated that “the international guidelines on HIV and Human Rights based on evidence scientific point to legislate and punish not prevent new infections or reduce women’s vulnerability and what we do accomplish is a negative impact on public health and human rights. ”

It is expected that in the coming weeks the Supreme Court of Justice of the Nation attracts unconstitutionality for discussion and analysis.

Czech Officials Launch Criminal Investigation Into 30 Gay Men Over HIV Exposure

Czech Republic: Prague Public Health Authority initiates criminal prosecutions of 30 gay men living with HIV following an STI diagnosis

Late last month, Prague’s Public Health Authority initiated criminal investigations against 30 gay men living with HIV that had been diagnosed with a sexually transmitted infection (STI) during the previous year.

The Public Health Authority appear to believe that since these men acquired an STI this is proof that they must have practiced condomless sex and have therefore violated Sections 152 and 153 of the Czech Criminal Code, which a 2005 Supreme Court ruling confirmed could be used to prosecute any act of condomless sex (including oral sex) by a person living with HIV as “spread of infectious diseases”.

There are no individual complainants in these cases.

The Czech AIDS Society responded to the publication of initial media reports on January 26th, with a press release that highlighted:

  • They have already begun to provide legal counseling to several of these men.
  • Most of them have an undetectable viral load and/or only have sex only with other men living with HIV (known as ‘serosorting’).
  • Being diagnosed with an STI does not, in and of itself, prove that condomless sex took place because most STIs can be acquired even when condoms are used.
  • Fear of punishment will lead to people living with HIV and at risk of a sexually transmitted infection not getting tested or treated.

“Czech AIDS Society has long struggled against the criminalisation of the private life of people living with HIV in cases where there is no HIV transmission. We believe that the HIV epidemic must be fought not through repression, but through the treatment which, in most cases, reduces the viral load of HIV-positive patients to undetectable levels thus eliminating the risk of transmission.”

They went on to make a number of media appearances pointing out that applying criminal law to potential HIV exposure does not reduce the spread of HIV, undermines HIV prevention efforts, promotes fear and stigma, punishes behaviour that is not blameworthy and ignores the real challenges of HIV prevention in the Czech Republic.

They also published a second press release, entitled “Professional failure of public health officials” on February 10th that was strongly critical of the actions of Prague’s Public Health Authority, noting that they have greatly undermined trust in the confidentiality of the public health system which will likely lead to an increase in new HIV infections.

On February 12th, the head of Prague’s Public Health Authority, Ms. Zdenka Jagrova (pictured above), issued a statement in response, suggesting that the Authority is legally obliged to initiate such criminal complaints and that “it would be a professional failure if [we] did not do so…

[We] did not check sexual orientation of HIV-positive people who got infected with another contagious, sexually transmitted disease. It is not an attack on the gay community, but in 2014 no HIV-positive woman in Prague was diagnosed with a sexually transmitted disease. A public health authority is obliged to protect the public health of the population and must act in the same manner as in case of other infectious diseases, for instance TB….This campaign aiming at questioning our practices is clearly intended to assert alleged rights of a minority at the expense of the rights of the majority, i.e. in particular the right to health, irrespective of who and how threatens the health. We consider attempts to create a privileged group that would be excluded from generally defined responsibilities very dangerous.”

A number of organisations representing communities of people living with and affected by HIV are now working together with UNAIDS to support the Czech AIDS Society, including the circulation of a Change.org petition.

It appears that none of the cases have yet been passed to the Public Prosecution office for formal prosecution.  However, the investigation has set a dangerous precedent and we understand that public health departments in other regions of the Czech Republic are now considering following the Prague example.