Russia: Chechen parliamentarian proposes mandatory HIV testing prior to marriage; has been policy in Chechnya since 2011

The lower house of the Russian parliament is considering legislation that would force couples wishing to get married to agree to mandatory HIV testing. The bill was submitted to the Duma by Magomed Selimkhanov, a Chechen deputy from the ruling United Russia party.

The legislation’s memorandum states that such a law would help identify cases of HIV infection that are currently going unrecorded, allow people get medical attention earlier, reduce the number of children infected with the disease, and contribute to the fight against the spread of HIV in Russia.

The Duma’s committee on health has supported mandatory HIV testing as a requirement for marriage. Anna Popova, the head of Russia’s Federal Service for Supervision of Consumer Rights Protection and Human Well-Being, has also signaled her support for such regulations.

According to Popova’s agency, more than 160,000 cases of HIV infection have been recorded in Russia over the past two years. Almost half of these cases are among Russians between the ages of 30 and 40. Roughly 20,000 HIV-infected people in Russia die every year.
Ramzan Kadyrov, the head of Russia’s Chechen Republic, is appealing on Instagram to Russian lawmakers, asking them to back the legislation. Chechnya has enforced such a policy since 2011, testing more than 95,000 people and discovering 94 cases of HIV infection, Kadyrov says.

Coalition Pushes To Soften HIV Laws In California

A coalition including the American Civil Liberties Union and Equality California have joined together in an effort to change certain state laws they say criminalize people living with HIV. At a forum held in Fresno last week, a dozen activist and medical professionals talked about a number of goals including reducing the penalty for intentionally spreading HIV from a felony to a misdemeanor.

“We believe the punishment is not proportionate to the crime,” says Craig Pulsipher, with the AIDS Project Los Angeles.

“I would just point to similar offenses that are felony in California statutes. This puts intentional transmission of HIV on par with voluntary manslaughter and so we really believe a misdemeanor is sufficient consequence,” he says.

The group also wants to repeal a handful of laws including being charged with a felony for soliciting sex while knowingly having HIV. In this case, the law doesn’t require any sexual contact or transmission of HIV just the act of soliciting while being positive. Other laws make it a felony for HIV positive people to donate blood or breast milk. In many cases, people convicted under these laws could face jail time.

Dr. Simon Paul with Community Regional Medical Center specializes treating those with HIV and AIDS in the Central Valley. He says these laws aren’t up to date with modern science.

“A lot of these things are crime even if no harm was done,” Paul says. “The fact that if you have HIV, and if you sleep with someone you’re practically at zero risk if you’re on treatment. The way the laws are written now it’s just as bad as if the person had HIV in the 80’s and had no treatment. That’s the part to me seems the craziest.”

Today people living with HIV can take a pill on a daily basis to reduce the amount of the virus in their body to minimal levels. Paul says this makes the patient highly unlikely to pass the virus to someone else.

With the current state laws dealing with HIV, a person can only be convicted of charges if they are aware of their status. Paul says this creates unintended consequences.

“These laws make people less likely to get tested and into care which is the way you’ll actually get HIV to decrease. I think the laws are passed out of fear and not helpful at this point,” he says.

In Fresno County alone, only around half of those living with HIV are linked intro treatment. And there many that don’t know their status.

Many advocates like Pulsipher say these laws actually discourage people from getting tested.

“Some of these sites that specifically talk about HIV criminalization laws, one of the pieces of advice they give is: the best way to not be prosecuted under these statutes is to not know their HIV status. So that’s the exact opposite of what we would like to do. We want to encourage people to know their status.”

The coalition is hosting forums throughout the state and they’re working on a bill they plan to introduce next year in Sacramento.

Uganda: Community Health Alliance Uganda (CHAU) board chairman, Dr Stephen Watiti calls for repeal of clauses on disclosure, mandatory testing and transmission in HIV and AIDS Prevention and Control Act

Community Health Alliance Uganda (CHAU) board chairman, Dr Stephen Watiti, has called for an amendment of the 2014 HIV and AIDS Prevention and Control Act.

Watiti, who was speaking at the launch of CHAU’s 2016-2020 Strategic Plan last week in Kampala, wants clauses on disclosure, mandatory testing and intentional transmission repealed.

CHAU is one of the local non-governmental organizations (NGOs) involved in anti-HIV/Aids campaigns in the country. Enacted last year amidst protests from civil society and activists, the HIV and AIDS Prevention and Control Act criminalizes intentional transmission of HIV, enforces mandatory testing and requires spouses to disclose results to their partners, among others.

“In most of our communities if a woman tested positive and told her husband as stipulated in this law, it sparks domestic violence and stigmatization. So, my appeal is to review and scrap such clauses,” said Watiti, also plans to join elective politics in his bid to push for the aforesaid changes in parliament next year.

He also noted that it would be difficult to prove whether someone set out to intentionally infect their partners in a love affair.

“Preventing new infections should be a responsibility of both HIV positive and negative people,” Watiti argued, adding that testing should be voluntarily because making it mandatory is a violation of human rights.

His comments were directed to chief guest at the function, Dr Chris Baryomunsi, the state minister for health in charge of general duties and also MP for Kinkiizi East.

In response, Baryomunsi assured guests the parliamentary health committee would consider such appeals upon reviewing the HIV/Aids Act and also address concerns about the NGO Bill, which many civil society activists claim is intended to curtail their work.

Noting that some NGOs such as CHAU have done a good job as government partners in the battle against HIV/Aids, Baryomunsi said they would consider progressive provisions to ensure work is not stifled.

Baryomunsi explained that the law is intended to clamp down on NGOs that registered to health-related work but deviate from their mandate along the way.

Baryomunsi lauded the organization for its work of supporting people living with HIV in 20 districts including Kayunga, Luweero, Nakasongola, Mukono, Wakiso, Kamuli, Mayuge, Mityana, Gulu and Mbarara.

CHAU also provides family planning and sexual reproductive health education services.

Prison time for HIV?

Prison time for HIV? It’s possible in Veracruz

El Daily Post, August 6th 2015

New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women.

 

The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.

The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.

But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.

The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.

“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.

The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.

But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.

“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”

A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.

Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.

One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)

A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”

González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.

The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s  virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.

“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”

Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.

“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”

Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.

“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”

UNAIDS Reference Group on HIV and Human Rights updates statement on HIV testing to include the “key trend” of “prolific unjust criminal laws and prosecutions”

The UNAIDS Reference Group on HIV and Human Rights has updated its statement on HIV testing  — which continues to emphasise that human rights, including the right to informed consent and confidentiality, not be sacrifced in the pursuit of 90-90-90 treatment targets — in the light of “three key trends that have emerged since the last statement regarding HIV testing was issued by the UNAIDS Reference Group (in 2007).”

One of these is “prolific unjust criminal laws and prosecutions, including the criminalization of HIV non-disclosure, exposure, and transmission.” The other two involve the recognition that HIV treatment is also prevention, and policies that aim to “end the AIDS epidemic as a public health threat by 2030.”

This statement is an important policy document that can be used to argue that public health goals and human rights goals are not mutually exclusive.

The Reference Group was established in 2002 to advise the Joint United Nations Programme on HIV/AIDS (UNAIDS) on all matters relating to HIV and human rights. It is also fully endorsed by by the Global Fund to Fight AIDS, Tuberculosis and Malaria Human Rights Reference Group.

This statement is issued at a time when UNAIDS and the Global Fund are renewing their strategies for 2016–2021 and 2017–2021, respectively.

To support these processes, the Reference Groups offer the following three key messages:

1. There is an ongoing, urgent need to increase access to HIV testing and counselling, as testing rates remain low in many settings. The Reference Groups support such efforts unequivocally and encourage the provision of multiple HIV testing settings and modalities, in particular those that integrate HIV testing with other services.

2. Simply increasing the number of people tested, and/or the number of times people test, is not enough, for many reasons. Much greater efforts need to be devoted to removing barriers to testing or marginalized and criminalized populations, and to link those tested with prevention and treatment services and successfully keep them in treatment.

3. Public health objectives and human rights principles are not mutually exclusive. HIV testing that violates human rights is not the solution. A “fast-track” response to HIV depends on the articulation of testing and counselling models that drastically increase use of HIV testing, prevention, treatment, and support services, and does so in ways that foster human rights protection, reduce stigma and discrimination, and encourage the sustained and supported engagement of those directly affected by HIV.

The section on HIV criminalisation is quoted below.

The criminalization of HIV non-disclosure, exposure, and transmission is not a new phenomenon, but the vigour with which governments have pursued criminal responses to alleged HIV exposures — at the same time as our understanding of HIV prevention and treatment has greatly advanced, and despite evidence that criminalization is not an effective public health response — causes considerable concern to HIV and human right advocates. In the last decade, many countries have enacted HIV-specifc laws that allow for overly broad criminalization of HIV non-disclosure, exposure, and transmission. This impetus seems to be “driven by the wish to respond to concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts.” In some instances, particularly in Africa, these laws have come about as a response to women being infected with HIV through sexual violence, or by partners who had not disclosed their HIV status.

Emerging evidence confrms the multiple implications of the criminalization of HIV non-disclosure, exposure, and transmission for HIV testing and counselling. For example, HIV criminalization can have the effect of deterring some people from getting tested and finding out their HIV status. The possibility of prosecution, alongside the intense stigma fuelled by criminalization, is good reason for some to withhold information from service providers or to avoid prevention services, HIV testing, and/or treatment. Indeed, in jurisdictions with HIV-specific criminal laws, HIV testing counsellors are often obliged to caution people that getting an HIV test will expose them to criminal liability if they find out they are HIV-positive and continue having sex. They may also be forced to provide evidence of a person’s HIV status in a criminal trial. This creates distrust in relationships between people living with HIV and their health care providers, interfering with the delivery of quality health care and frustrating efforts to encourage people to come forward for testing.

The full statement, with references, can be downloaded here and is embedded below.

HIV TESTING AND COUNSELLING: New technologies, increased urgency, same human rights

Sweden: HIV activists call for the abolition of the duty to disclose in line with scientific progress

The new knowledge we have today about the transfer risks, should contribute to a change in infectious disease control law design.

The duty to disclose for people living with HIV should be abolished as soon as possible, writes representatives from RFSL, RFSU and HIV Sweden.

HIV was included in the Swedish Communicable Diseases legislation in 1985. The purpose was to provide support for the measures it considered necessary to slow down the transmissions of HIV, an infection, they were convinced, that could become an epidemic out of control.

Despite the limited knowledge then available on HIV the Government noted in its preparatory work to the Act that: “If a cure is discovered meaning that infected people can become free of infection,  the perception of infectiousness willl obviously change. It would also be the same if one could find that the infection, whether a cure is available or not, is not contagious in some periods “(Prop. 1985/86: 13).

In October 2013 the Public Health Agency launched its knowledge base “Infectiousness in treated HIV infection.” The Authority concluded that the risk of transmitting HIV through sexual contact when a condom is used, is almost non-existent.

The risk is also considered as very small if a condom is not used.

In Sweden, over 90 percent of those who received a hiv diagnosis are on effective treatment today. In accordance with the intentions that were in the preparatory work to the country legislation in 1985, the knowledge we now have about transmission risks, should contribute to a change in infectious disease control law design.

One of the positions that RFSL, RFSU and HIV Sweden usually get to explain is precisely why we believe that the so-called disclosure duties should be removed for people living with HIV.

The duty to disclose is one of several precautions that people living with HIV must follow under the current disease control legislation. The duty to disclose requires that people living with HIV must inform their sex partners of their HIV.

he duty to disclose takes the focus away from what is hiv prevention most central message: that all people in sexual encounters should take responsibility to protect themselves and their partners.

So under the legislation this responsibility rests with the party who knows about his/her HIV as the duty to disclose. This despite the fact that over 90 percent of those currently living with HIV are taking effective treatment and are exposing a sexual partner to an almost non-existent risk of HIV transmission.

It stands in stark contrast to the fact that in most cases, it is those who do not know they have HIV who transmit the virus to others. The highest risk of transmission comes from this undiagnosed population.

This group is of course under no obligation to disclose information about which they know nothing, and therefore does not have anything to tell. The duty to disclose is therefore counterproductive and contributes to the stigmatization of people living with HIV who know about their status.

RFSL, RFSU and HIV Sweden are calling for a revision of regulations of the 2004 Infectious Diseases Act and the abolition of the duty to disclose.

We have met with opposition within the authorities, medical officers, their lawyers and policymakers. Often we are subjected to the view that we do not fully understand how the law works and a belief that we want to bring HIV out of the Communicable Diseases Act. That is not the case.

We believe that HIV must be included in the Communicable Diseases Act from a prevention and treatment perspective. But we believe that the law can easily be designed in such a way that HIV, and any other relevant diseases, are excluded from a conduct that is counter-productive, which departs from Prevention key messages, which stigmatizes people living with HIV, and is not in line with the knowledge we have today about transmission risks.

To make it easier for policy makers and officials, we have in collaboration with lawyers developed an example of how Diseases Act may be formulated to overcome the misconceptions there may seem to be about our position. The example can be downloaded here.

It is now our hope that the government ensures that the revision of the Infectious Diseases Act be implemented promptly and that the duty to disclose for people living with HIV can thus be abolished in the near future.

Christian Antoni Möllerop

Vice ‘Union

RFSL

 

Kristina Ljungros

Chairman of the Federation

RFSU

 

Christina Franzen

President

HIV Sweden

—————————————–

Den nya kunskap vi i dag har om överföringsrisker, bör bidra till en förändring av smittskyddslagstiftningens utformning.

Informationsplikten för personer som lever med hiv bör avskaffas snarast, skriver representanter från RFSL, RFSU och Hiv-Sverige.

1985 inkluderades hiv i den svenska smittskyddslagstiftningen. Syftet var att ge stöd till de åtgärder man ansåg nödvändiga för att bromsa överföringarna av hiv, en infektion man då var övertygad om att kunde bli en epidemi utom all kontroll.

Trots den begränsade kunskap som då fanns om hiv konstaterade regeringen i förarbetena till lagen att: ”Om något botemedel upptäcks som innebär att den smittade kan bli smittfri, kommer detta självklart att ändra synen på när smittsamhet föreligger. Detsamma blir förhållandet om man skulle finna att infektionen, oavsett om något botemedel finns att tillgå eller ej, inte är smittsam i vissa perioder” (Prop. 1985/86:13).

I oktober 2013 lanserade Folkhälsomyndigheten kunskapsunderlaget “Smittsamhet vid behandlad hivinfektion”. Där slår myndigheten fast att risken för att överföra hiv genom sexuell kontakt vid välfungerande behandling, när kondom används, är närmast obefintlig.

Risken bedöms även som mycket liten om kondom inte används.

I Sverige har över 90 procent av de som fått en hivdiagnos en välfungerande behandling i dag. I enlighet med de intentioner som fanns i förarbetena till smittskyddslagstiftningen från 1985, måste därför den kunskap vi nu har om överföringsrisker, bidra till en förändring av smittskyddslagstiftningens utformning.

 

Ett av de ställningstaganden som RFSL, RFSU och Hiv-Sverige oftast får förklara är just varför vi anser att den så kallade informationsplikten borde tas bort för personer som lever med hiv.

Informationsplikten är en av flera förhållningsregler som personer som lever med hiv måste följa enligt den gällande smittskyddslagstiftningen. Informationsplikten kräver att den som lever med hiv ska informera sina sexpartners om sin hiv.

Informationsplikten tar bort fokus från det som är hivpreventionens mest centrala budskap: att samtliga personer i det sexuella mötet bär ansvaret för att skydda sig själv och sin partner.

Så som lagstiftningen är utformad vilar ansvaret på den av parterna som vet om sin hiv att informera. Detta trots att över 90 procent av dem som i dag lever med hiv har en välfungerande behandling och därmed utsätter sexpartners för en närmast obefintlig risk för hivöverföring.

Det står i stark kontrast till det faktum att det är de som inte vet om att de bär på hiv som överför viruset i de flesta fall till andra. Det är alltså dessa odiagnostiserade det finns en stor risk att få viruset överfört från.

För denna grupp gäller förstås ingen informationsplikt då de inget vet och därför heller inte har något att berätta. Informationsplikten är därför kontraproduktiv och den bidrar till att stigmatisera personer som lever med hiv och vet om sin status.

 

RFSL, RFSU och Hiv-Sverige har sedan informationsplikten lagreglerades 2004 jobbat för en översyn av smittskyddslagen och ett avskaffande av informationsplikten.

Vi har stött på patrull inom myndigheter, smittskyddsläkare, deras jurister och bland beslutsfattare. Ofta bemöts vi av en uppfattning om att vi inte helt har förstått hur lagen fungerar eller en övertygelse om att vi vill ta hiv ut ur smittskyddslagen. Så är inte fallet.

Vi anser att hiv måste ingå i smittskyddslagen ur ett preventions- och behandlingsperspektiv. Men vi anser att lagen enkelt kan utformas på så sätt att hiv, och eventuellt andra relevanta sjukdomar, undantas från de förhållningsregler som är kontraproduktiva, som frångår det som är preventionens centrala budskap, som stigmatiserar personer som lever med hiv, och som inte ligger i linje med den kunskap vi numera har om överföringsrisker.

För att underlätta för beslutsfattare och tjänstemän har vi i samarbete med jurister tagit fram ett exempel på hur smittskyddslagen kan formuleras för att råda bot på de missuppfattningar om vårt ställningstagande som kan synas finnas. Exemplet kan laddas ner här.

Det är nu vår förhoppning att regeringen ser till att en översyn av smittskyddslagen sker skyndsamt och att informationsplikten för personer som lever med hiv därmed kan avskaffas inom en nära framtid.

Christian Antoni Möllerop

Vice förbundsordförande

RFSL

Kristina Ljungros

Förbundsordförande

RFSU

Christina Franzén

Ordförande

Hiv-Sverige

Nigeria: The Ondo State government has announced the commencement of the implementation of its HIV Anti-stigma law which prescribed a 10 year jail term, fine of N500,000 or both for any person who by whatever means transmits HIV to another person

Akure – The Ondo State government has announced the commencement of the implementation of its HIV Anti-stigma law which prescribed a 10 year jail term, fine of N500,000 or both for any person who by whatever means transmits HIV to another person.

Giving details of the law, which was signed last year, the Secretary to the State Government and Chairman, Ondo State Agency for the Control of AIDS, Dr. Aderotimi Adelola, said stigmatization and discrimination discourages people infected with and affected by HIV from accessing health and social services.

The law stipulates further that anybody who discriminates against people living with HIV commits an offence and is liable to fine of N100,000.00 or imprisonment of six months or both.

He spoke in Akure while delivering a keynote address at a sensitization programme to facilitate and ensure the enforcement of a law for the prevention of the spread of HIV and AIDS, elimination of discrimination and stigmatization of people living with HIV and “other matters incidental thereto or connected therewith.”

Adelola said most times the rights of people living with HIV are violated, causing them to suffer both the burden of the disease and the consequential loss of other rights.

World Health Organization publishes analysis of impact of overly broad HIV criminalisation on public health

A new report from the World Health Organization, Sexual Health, Human Rights and the Law, adds futher weight to the body of evidence supporting arguments that overly broad HIV criminalisation does more harm than good to the HIV response.

Drawing from a review of public health evidence and extensive research into human rights law at international, regional and national levels, the report shows how each country’s laws and policies can either support or deter good sexual health, and that those that support the best public health outcomes “are [also] consistent with human rights standards and their own human rights obligations.”

The report covers eight broad areas relating to sexual health, human rights and the law, including: non-discrimination; criminalisation; state regulation of marriage and family; gender identity/expression; sexual and intimate partner violence; quality of sexual health services; sexuality and sexual health information; and sex work.

The authors of the report note that it provides “a unique and innovative piece of research and analysis. Other UN organizations are examining the links between health, human rights and the law: the United Nations Development Programme’s (UNDP’s) Global Commission on HIV and the Law published its report in 2012, and the Office of the High Commissioner for Human Rights (OHCHR) and United Nations Special Rapporteurs regularly report to the Human Rights Council on the impact of laws and policies on various aspects of sexual health. Nevertheless, this is the first report that combines these aspects, specifically with a public health emphasis.”

The points and recommendations made relating to overly broad HIV criminalisation (italicised for ease of reference) are included in full below.

Executive Summary: The use of criminal law (page 3)

All legal systems use criminal law to deter, prosecute and punish harmful behaviour, and to protect individuals from harm. However, criminal law is also applied in many countries to prohibit access to and provision of certain sexual and reproductive health information and services, to punish HIV transmission and a wide range of consensual sexual conduct occurring between competent persons, including sexual relations outside marriage, same-sex sexual behaviour and consensual sex work. The criminalization of these behaviours and actions has many negative consequences for health, including sexual health. Persons whose consensual sexual behaviour is deemed a criminal offence may try to hide it from health workers and others, for fear of being stigmatized, arrested and prosecuted. This may deter people from using health services, resulting in serious health problems such as untreated STIs and unsafe abortions, for fear of negative reactions to their behaviour or health status. In many circumstances, those who do access health services report discrimination and ill treatment by health-care providers.

International human rights bodies have increasingly called for decriminalization of access to and provision of certain sexual and reproductive health information and services, and for removal of punishments for HIV transmission and a wide range of consensual sexual conduct occurring between competent persons. National courts in different parts of the world have played an important role in striking down discriminatory criminal laws, including recognizing the potentially negative health effects.

3.4.5 HIV status (pages 22-23)

Although being HIV-positive is not itself indicative of sexual transmission of the infection, individuals are often discriminated against for their HIV-positive status based on a presumption of sexual activity that is often considered socially unacceptable.

In addition, in response to the fact that most HIV infections are due to sexual transmission, a number of countries criminalized transmission of, or exposure to, HIV, fuelling stigma, discrimination and fear, and discouraging people from getting tested for HIV, thus undermining public health interventions to address the epidemic.

Even where persons living with HIV/AIDS may be able, in principle, to access health services and information in the same way as others, fear of discrimination, stigma and violence may prevent them from doing so. Discrimination against people living with HIV is widespread, and is associated with higher levels of stress, depression, suicidal ideation, low self-esteem and poorer quality of life, as well as a lower likelihood of seeking HIV services and a higher likelihood of reporting poor access to care.

HIV transmission has been criminalized in various ways. In some countries criminal laws have been applied through a specific provision in the criminal code and/or a provision that allows for a charge of rape to be escalated to “aggravated rape” if the victim is thought to have been infected with HIV as a result. In some cases, HIV transmission is included under generic crimes related to public health, which punish the propagation of disease or epidemics, and/or the infliction of “personal injury” or “grievous bodily harm”.

Contrary to the HIV-prevention rationale that such laws will act as a deterrent and provide retribution, there is no evidence to show that broad application of the criminal law to HIV transmission achieves either criminal justice or public health goals. On the contrary, such laws fuel stigma, discrimination and fear, discouraging people from being tested to find out their HIV status, and undermining public health interventions to address the epidemic. Thus, such laws may actually increase rather decrease HIV transmission.

Women are particularly affected by these laws since they often learn that they are HIV-positive before their male partners do, since they are more likely to access health services. Furthermore, for many women it is either difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences, and they may therefore face prosecution as a result of their failure to disclose their status. Criminal laws have also been used against women who transmit HIV to their infants if they have not taken the necessary steps to prevent transmission. Such use of criminal law has been strongly condemned by human rights bodies.

Various human rights and political bodies have expressed concern about the harmful effects of broadly criminalizing the transmission of HIV. International policy guidance recommends against specific criminalization of HIV transmission. Human rights bodies as well as United Nations’ specialized agencies, such as UNAIDS, have stated that the criminalization of HIV transmission in the instance of intentional, malicious transmission is the only circumstance in which the use of criminal law may be appropriate in relation to HIV. States are urged to limit criminalization to those rare cases of intentional transmission, where a person knows his or her HIV-positive status, acts with the intent to transmit HIV, and does in fact transmit it.

Human rights bodies have called on states to ensure that a person’s actual or perceived health status, including HIV status, is not a barrier to realizing human rights. When HIV status is used as the basis for differential treatment with regard to access to health care, education, employment, travel, social security, housing and asylum, this amounts to restricting human rights and it constitutes discrimination. International human rights standards affirm that the right to non-discrimination includes protection of children living with HIV and people with presumed same-sex conduct. Human rights standards also disallow the restriction of movement or incarceration of people with transmissible diseases (e.g. HIV/AIDS) on grounds of national security or the preservation of public order, unless such serious measures can be justified.

To protect the human rights of people living with HIV, states have been called on to implement laws that help to ensure that persons living with HIV/AIDS can access health services, including antiretroviral therapy. This might mean, as in the case of the Philippines, for example, explicitly prohibiting hospitals and health institutions from denying a person with HIV/AIDS access to health services or charging them more for those services than a person without HIV/AIDS (167).

International guidance also suggests that such laws should be consistent with states’ international human rights obligations and that instead of applying criminal law to HIV transmission, governments should expand programmes that have been proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative.

3.6 Legal and policy implications (pages 29-30)

5. Does the state consider that establishing and applying specific criminal provisions on HIV transmission can be counter-productive for health and the respect, protection and fulfilment of human rights, and that general criminal law should be used strictly for intentional transmission of HIV?

The full report can be downloaded from the WHO’s Sexual and Reproductive Health website.

US : Mississippi lawmakers pass law mandating HIV testing for anyone arrested for sexual assault

Updated by Paul Boger at Law enforcement officers will soon be able to do mandatory AIDS testing on those arrested for sexual assault. House Bill 2-57 was passed by lawmakers with nearly unanimous support in Mississippi’s House and Senate. The measure gives law enforcement the right to test individuals arrested for sexually assaulting a minor for diseases such as HIV and AIDS.

Under current Mississippi law, testing can only be conducted after a person has been convicted of a crime. Proponents say the new law will help young victims know if they’ve been exposed to a terrible disease. Republican Representative Mark Formby of Picayune helped draft the law. He says the test would become part of the intake process.

“If you’re arrested and you get photographed; it is not any additional evasive behavior,” says Formby. “We are documenting that you were arrested, which means that there was some degree of evidence that implicated you in a crime.”

Despite the measure’s popularity among lawmakers, some groups like the ACLU of Mississippi believe the law is a slippery slope.

Keia Johnson is the organization’s legislative strategist. She says the law amounts to an unreasonable search and seizure.

“We believe that when you mandate that DNA is to be collected for HIV testing purposes or anything like that upon arrest, that you are violating the due process of law,” Johnson says.

According to Representative Formby, both the suspect and the victim will be given the results of the test 24 hours after it was taken. At that time, all other DNA samples would be destroyed.

Antigua & Barbuda: 'Intentional HIV spread' rumours lead to calls for HIV-specific criminal law

The head of a local HIV/AIDS advocacy group is calling for residents to be more mindful of their sexual behaviour amidst rumors that people are intentionally spreading the HIV virus to others. The advice comes from Executive Director of the Antigua & Barbuda HIV/AIDS Network Inc (ABHAN) Eleanor Frederick.

“We cannot stop sending the message out there that HIV is alive and well and that we have to protect ourselves,” she said.

“Each person must take responsibility. First know their status and know their partner’s status. Use protection.”

An email to OBSERVER media from the Attorney General’s office stated that the Minster, Steadroy “Cutie” Benjamin, was recently presented with information to suggest that several residents have been intentionally infecting others with HIV.

In light of the allegations, an anonymous group of concerned citizens have called on Benjamin to enact laws to hold the culprits accountable.

“The group said that such vicious actions, in their estimation, is a matter of national security, and many lives are at risk and action needs to be taken soonest,” the missive read.

Benjamin, who is the country’s national security minister said he has promised that further research will be done to see what laws can be introduced to deal with the situation.

He is calling on members of society to protect themselves.

Frederick said she would support any move to criminalise the intentional spread of HIV/AIDS.

“I think it’s something that needs to be looked at. It’s not always a deterrent because when people are intent they couldn’t care less. There are those that decide they’re going to infect someone no matter what and there are others who will think twice about it, so we have to put something there,” she said.

Several countries across the world already have legislation condemning the intentional or reckless infection of another person with the HIV virus.

Some areas of the US have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV.

Others, including the United Kingdom, charge the accused under existing laws with crimes such as murder, manslaughter, attempted murder, or assault.