US: House Appropriations Committee passes amendment that would fund review of HIV-specific criminal laws

The United States is closer than ever before in ensuring that their HIV-specific laws are reviewed and amended in order to be consistent with current medical and scientific knowledge.

Earlier this week, the U.S. House Appropriations Committee passed an amendment proposed by Congresswoman Barbara Lee to the FY2014 Commerce-Justice-Science Appropriations Act that would require the Attorney General to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV.

This wording is very similar to the content of Lee’s REPEAL HIV Discrimination Act, which was re-introduced in May with bi-partisan support, and which currently has 32 co-sponsors.

“HIV criminalization laws breed, discrimination, distrust, and hatred. These laws are based on fear, not science. This is an important first step in ensuring that our laws reflect current scientific understandings of HIV.” notes Congresswoman Lee in a press release. This amendment passed on a voice vote as part of the manager’s amendment.

The amendment reads as follows:

Modernizing laws with respect to people living with HIV/AIDS.

The Committee is aware of the position of the President’s Advisory Council on AIDS (PACHA) that current criminal laws require modernization, should be consistent with current medical and scientific knowledge and avoid imposition of unwarranted punishment based on health and disability status.  The Committee directs the Attorney General, within 90 days following enactment of this Act, to initiate a review of Federal and State laws, policies, and regulations regarding criminal and related civil commitment cases involving people living with HIV/AIDS. The Committee further directs the Attorney General, no later than 180 days from initiating the review, to make best practice recommendations to ensure such policies do not place unique or additional burdens on individuals living with HIV/AIDS and reflect contemporary understanding of HIV transmission routes and associated benefits of treatment.

The Appropriations Act (officially titled ‘S.1329 : An original bill making appropriations for Departments of Commerce and Justice, and Science, and Related Agencies for the fiscal year ending September 30, 2014, and for other purposes’) has now been placed on Senate Legislative Calendar.

The Sero Project has issued a press release welcoming the amendment and explaining what it means for advocacy against overly-broad HIV-specific criminal laws in the United States.

SERO. Appropriations Amendment Release

Uganda: Advocates oppose mandatory HIV testing, disclosure of status to partners, of pregnant women in draft HIV law

Civil society organisations have opposed a proposal in the HIV Prevention and Control Bill providing for mandatory testing of pregnant women and others. The proposal of the coalition of civil society organisations, led by the Uganda Network on Law, Ethics and HIV/AIDS, was presented during a dialogue on the Bill with members of the Uganda Parliamentary Women Association at Protea Hotel in Kampala yesterday.

The meeting aimed at assisting the legislators in coming up with a common position on the Bill to be forwarded to the committee on HIV/AIDS under whose docket the Bill falls for onward submission to Parliament for approval. The civil society organisations and activists contended that international standards require HIV/AIDS testing to be confidential accompanied by counselling and to be conducted with voluntary and informed consent.

They further argued that mandatory testing of drug users and workers would discourage them from seeking treatment and care. The civil society organisations are also against a provision that allows a medical practitioner to disclose HIV test results without the consent of the affected person. “Mandatory disclosure obligations run the risk of deterring people, especially women, from getting tested,” they stated, arguing that where due caution is not exercised, informing a woman’s partner of her HIV status may expose her to the risk of violence, eviction, disinheritance and severe abuses.

The MPs agreed to do further consultations on the Bill and to study the law enacted by the East African Community assembly on the subject. The Bill has also been heavily criticised by international human rights organisations.

Uganda: Female lawmakers propose compulsory couples testing to counter proposal for mandatory testing and disclosure to partners of pre-natally tested women in draft HIV law

Female lawmakers have proposed amendments to the controversial 2010 Prevention of HIV/Aids Bill, which if adopted, will make it compulsory for male partners to test for HIV/Aids with their spouses during antenatal care visits. The MPs also proposed that negligent health workers who cause the transmission of HIV/Aids to others while in their line of duty be liable to a five-year jail penalty. The Bill, which seeks to criminalise people who intentionally infect others with HIV/Aids, is before the Parliamentary Aids Committee for consideration.

The Committee began fresh consultations on the proposed law yesterday after the 8th Parliament failed to pass it. The MPs, in consultation with the hospices of the Uganda Network on Law, Ethics and HIV/Aids , during a workshop yesterday said women have always fallen victims of sexual offences. They say many men have not been going for routine HIV/Aids counselling and testing with their spouses.

Ms Betty Amongi, the Uganda Women Parliamentary Association chairperson, said the proposed law mandates health workers to disclose the status of tested pregnant women to their husbands. “In order to prevent domestic violence and ensure stable marriages, we are proposing that both couples must test together so that they jointly receive the results,” Ms Amongi said.

Ms Amongi said women shy away from attending antenatal clinics for fear of losing their marriages if their status is disclosed to their spouses without them testing together. Ms Noreen Kareeba, the founder of The Aids Support Organisation, urged the government to invest in voluntary testing and purchase of ARVs. Currently, the Ministry of Health programme for prevention of Aids requires that tests are conducted for pregnant women to reduce the risk of being abused.

Greece: Scientists and human rights campaigners condemn the reinstatement of Provision 39A allowing forced HIV testing of suspected sex workers, drug users and undocumented migrants

Reinstatement of controversial Health Provision slammed by HIV and Human Rights Groups, by Zoe Mavroudi

[Republished from the radiobubble blog, with thanks to Zoe Mavroudi]

A legal provision that led to mass arrests of HIV-positive women in Greece in 2012 has been reinstated, causing widespread condemnation by local and international organizations and human rights advocates.

Provision No 39A was voted by former socialist Health Minister Andreas Loverdos in April 2012 and led to an unprecedented case of HIV criminalization a few weeks later when the Greek police in cooperation with the country’s Center for Disease Control and Prevention, KEELPNO, rounded up hundreds of women from the center of Athens and force-tested them for HIV inside police stations. A total of 30 who tested positive were imprisoned on charges of felony and prostitution, in spite of a lack of significant evidence that they had been working as prostitutes or that they had infected anyone with the virus. Their mug-shots and personal data were then published upon order by a prosecutor on the Greek police website as well as on major TV channels.

The arrests prompted an international backlash against the Greek government when organizations like Amnesty International, Human Rights Watch, the European AIDS Treatment Group and UNAIDS called for the withdrawal of laws that enabled the targeting of HIV-positive people labeling them unproductive and in violation of international conventions.

The women were held in prison for a months-long detention period under inhumane conditions. The charges have since been dropped or reduced in the courts. After months of negotiations following Loverdos’ exit from the government and socialist PASOK party, non-governmental organizations and activist groups in Greece scored a victory in May 2013, when former Deputy Health Minister Foteini Skopouli finally repealed the provision.

The move was welcomed as a step toward correcting the damage inflicted on the country’s medical services by the 2012 arrests. Drug rehabilitation groups, which have been hit hard by austerity cuts, have repeatedly complained that the arrests had serious implications in the exercise of their outreach work among vulnerable groups.

But last Tuesday, newly-appointed health minister Adonis Georgiadis (pictured above), formerly a member of the far-right LAOS partly and currently a New Democracy majority party MP, reinstated the provision unexpectedly, the day after his swearing-in ceremony that followed a cabinet reshuffle of the country’s coalition government. In a short announcement, KEELPNO welcomed the reinstatement citing a necessity to “cover the country” until revisions to the provision were agreed on. Georgiadis addressed the reinstatement on twitter, saying the repeal by Skopouli had left a “legal void.”

But the legal grounds upon which the provision was voted into law were questionable. Last year, Loverdos signed 39A alone, in spite of a legal requirement for a minimum of four official signatures in order for a provision to be enacted into law.

At the time, he claimed that its content had originated in a 1940 regulation, which allowed for sanitation measures in public places for the protection of public health. However, new language included in 39A, pointed at immigrants, homeless people, intravenous drug users and sex workers as possible sources of epidemics. 39A also cited a need to perform mandatory tests on individuals from these groups as part of controlling diseases that are currently not endemic in Greece, such as malaria, polio and sexually transmitted diseases, including HIV.

Greece has seen a spike in HIV infections among injecting drug users during the crisis, mostly in the country’s capital, although there is no official data on a significant rise among sex workers or undocumented immigrants. Men who have sex with men remain the main population group that suffers most of the country’s new HIV infections.

In spite of citing a need for mandatory testing, the provision is also unclear about the nature of measures that the police and health authorities should take in order to test individuals without their informed consent. A law-suit has been brought by some of the women arrested in 2012 and by Greek NGOs against police officers present in the arrests as well as KEELPNO doctors for sharing test results with the police and violating patient confidentiality.

Calls to take back the measure came from abroad almost immediately after the reinstatement was announced. In her closing speech at the annual convention of the International Aids Society in Kuala Lumpur on Wednesday, French Nobelist Françoise Barré-Sinoussi, the scientist accredited with co-discovering the HIV virus, expressed her “strong disappointment.”

“As President of the IAS I strongly condemn this move and urge the Greek Government to rethink its position. HIV infections are already increasing in Greece due to the economic crisis and a mandatory policy of detainment and testing will only fuel the epidemic there.” Barré-Sinoussi added: “As we keep repeating over the years, there will be no end to the HIV epidemic without advancing human rights in parallel.”

Sinoussi’s concerns were echoed in a damning announcement by Human Rights Watch, which called the reinstatement “a big step backward for human rights and public health.“

“Addressing infectious diseases such as HIV, hepatitis, and tuberculosis requires investing in health services, not calling the police. If the government is serious about addressing HIV and other infectious diseases, it should focus on access to health care and public information,” wrote HRW in a statement earlier this week. “Any detention for public health reasons must have a lawful basis, be demonstrably necessary and proportionate, and be nondiscriminatory. Anyone detained, irrespective of the grounds, is entitled to guarantees of due process.”

On their part, local Greek NGOs and human rights initiatives saw the reinstatement as a betrayal of their year-long battle for its repeal. HIV NGOs and LGBT and human rights initiatives chided the new leadership in a joint statement, for ignoring the unanimous decision that prompted its repeal as well as the recent report by the Greek Ombudsman citing the provision’s unconstitutionality.

“We cannot allow the implementation of practices that lead our society to the Middle Ages,” the statement by Positive Voice, Center for Life and Praksis, among other groups, said. “Access to free and public health services, access to medical coverage and a respect for human rights are non-negotiable for us. Since the leadership of the Health Ministry obviously does not share this view, we have a responsibility to make it clear with our actions.”

Protests against the reinstatement of 39A are continuing with a gathering outside the Ministry of Health in Athens [on Monday July 8th].

Latest update July 16th:  Greek Health Minister says he will not repeal health provision that led to forced HIV tests, says he welcomes proposals.

In a Parliamentary question to Minister Georgiadis on Friday July 12, SYRIZA opposition party MP Vassiliki Katrivanou asked for a new repeal of the provision. On the same day, four Greek NGOs (Positive Voice, Praksis, Act Up Hellas and Center for Lsife) said in a joined announcement that they requested that a health committee assigned by Georgiadis with negotiating changes to the provision provide them with documentation that substantiates the urgency of the provision’s recommendations to protect public health, before they can return to the negotiations.
Read more here

A new documentary produced by radiobubble about the 2012 arrests called “Ruins: Chronicle of an HIV witch-hunt,” is due for release this September. It features interviews by women who were arrested and their families. You can watch a trailer here:

Global Commission newsletter highlights recent developments on HIV and the law around the world

Dear subscribers, We are delighted to share issue 2 of the Global Commission on HIV and the Law Newsletter – Issue 2 for 2013. Since the last Newsletter was released, there have been a number of significant developments on HIV and the law some of which are briefly described below in digest format.

United States Conference of Mayors calls for “the elimination of HIV-specific criminal laws”

Today, the U.S. Conference of Mayors passed a resolution calling for “the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks.”

It goes on to support the REPEAL HIV Discrimination Act and endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.

Full text below.

HIV DISCRIMINATION AND CRIMINALIZATION

WHEREAS, The U.S. Conference of Mayors has been a national leader on strategies to address HIV/AIDS for three decades, establishing in 1984 an HIV/AIDS Program and implementing a HIV/AIDS Prevention Grants Program with funding from the Centers for Disease Control and Prevention (CDC); and

WHEREAS, The National HIV/AIDS Strategy (NHAS) released by the White House includes a statement on the problem and public health consequences of HIV criminalization and notes that many state HIV-specific criminal laws reflect long-outdated misperceptions of HIV’s modes and relative risks of transmission; that criminal law has been unjustly used in the United States to prosecute and disproportionately sentence people with HIV; and that legislators reconsider whether these laws further the public interest and support public health approaches to preventing and treating HIV; and

WHEREAS, nearly all HIV-specific criminal laws do not consider correct and consistent condom use and effective antiretroviral therapy that reduces the risk of HIV transmission to near-zero as evidence of a lack of intent or ability to harm; and behaviors that according to the Centers for Disease Control and Prevention (CDC) have negligible risk of transmitting HIV, such as spitting and biting, have resulted in sentences as long as 35 years: and

WHEREAS, sound criminal justice and public health policy toward people living with HIV is consistent with an evidence-based approach to disease control and research demonstrates that HIV-specific laws do not reduce transmission or increase disclosure and may discourage HIV testing; and

WHEREAS, The Presidential Advisory Council on HIV AIDS, the Centers for Disease Control, and the United Nations Global Commission on HIV and the Law have conducted extensive scientific research and evidence reviews, finding that public health is endangered by HIV discrimination and criminalization and calling for comprehensive revision of state and federal laws and regulations,

NOW, THEREFORE, BE IT RESOLVED, that the U.S. Conference of Mayors calls for the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks; and supports legislation, such as the REPEAL HIV Discrimination Act, that advances these objectives: and

BE IT FURTHER RESOLVED, that the U.S. Conference of Mayors endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments.

Projected Cost: Unknown

US Conference of Mayors HIV Criminalization Resolution, June 25 2013

US: Congress passes amendment allowing for review of US military policy on HIV non-disclosure/exposure prosecutions

A bipartisan amendment to the National Defense Authorization Act approved by the House Thursday evening requires the Department of Defense to conduct an internal review of policies and prosecutions related to military members living with HIV. Currently the military can try service-members with HIV under a variety of charges, including failing to obey an order for having unprotected sex, not disclosing an HIV-positive status, or for aggravated assault, wherein HIV is the factor for the more serious charge.

The amendment by Reps. Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.) is the first time Congress has voted on HIV-criminalization matters since the passage of the 1990 Ryan White CARE Act, which required states to certify they had a process to prosecute deliberate transmission of HIV. Rep Lee issued the following statement on the adoption of the amendment:

I’m so pleased that this is a bi-partisan effort and am proud that my colleague Congresswoman Ileana Ros-Lehtinen has joined me in this effort. Modernizing laws when it comes to our military is essential, and the laws that dictate the lives of our service members should reflect contemporary understanding of the science of HIV. I’m proud that the House has recognized this essential piece of working towards an AIDS-free generation, and my amendment would take an important first step in ensuring that our laws reflect current scientific understandings of HIV.

The two lawmakers are also co-sponsors of the Repeal HIV Discrimination Act, which would push states to repeal HIV-specific statutes in favor of laws that would only allow prosecution against HIV-positive persons if there is evidence of intent to infect and/or actual harm caused.

The amendment requires the Defense Department to issue a report no later than 180 days after the bill is signed into law. This report would have to demonstrate that prosecutions related to HIV exposure and transmission are based on a medically accurate understanding of the infection and treatment. It would also require the U.S. Military to review all recent prosecutions and make recommendations to improve the system to ensure that prosecutions are based on scientifically accurate risks.

US: LA Times publishes editorial in favour of REPEAL Act, highlights spitting and biting prosecutions

A bipartisan bill introduced in the House calls for a review of state laws that criminalize behavior by people with HIV, including many laws that seem anachronistic or inappropriate given what has been learned during the last three decades about the transmission and treatment of the virus that causes AIDS. The bill should be passed.

The Repeal HIV Discrimination Act of 2013, introduced by Reps. Barbara Lee (D-Oakland) and Ileana Ros-Lehtinen (R-Fla.), would not by itself repeal any state laws. The federal government can’t do that. But the bill would encourage state governments to repeal laws that are based on outdated fears. It is backed by the Presidential Advisory Council on HIV/AIDS and is in line with the UN’s stand that criminalization should be limited to cases in which a person knows he or she has HIV, intends to transmit it and successfully does so.

There are HIV-specific criminal statutes on the books in 32 states, and some are fairly common sense. In California, which has one of the better laws, people who know they are HIV positive must disclose that fact to their sex partners before having unprotected sex. If they do not, and if they “act with intent to infect,” they may be charged with a felony.

But 13 states have laws that make it a crime for an infected person to spit at, bite or throw their blood on others. That might have seemed reasonable at the height of the panic over AIDS, but we now know it is not. According to the Centers for Disease Control and Prevention, only blood, semen, vaginal secretions and breast milk can transmit the virus. And to do so, they must come in contact with a mucous membrane or damaged tissue or be injected into the bloodstream. Saliva does not transmit HIV. It is extraordinarily rare for a human bite to transmit HIV.

In the last few years, there have been dozens of cases documented by the Center for HIV Law and Policy in which people have been charged with criminally transmitting HIV by biting or spitting (even though no transmission occurred) or convicted of failing to disclose to a sexual partner that they were HIV positive (even if the virus was not transmitted). In some states, people with these convictions have to register as sex offenders.

Though treatment has come a long way, HIV is still an extremely serious and basically incurable virus, and the House bill would not stop the prosecution of people who deliberately (and successfully) infect others. It is certainly wrong for infected people to cavalierly or maliciously have sex without disclosing their HIV-positive status and without taking precautions against transmitting the virus. But there is no reason to keep the laws against spitting and biting on the books. They are based on fears that have since been disproved by science.

GNP+ and the HIV Justice Network release ‘Advancing HIV Justice: a progress report of achievements and challenges in global advocacy against HIV criminalisation’

A new report released today by the Global Network of People Living with HIV (GNP+) and the HIV Justice Network highlights the tireless work of advocates around the world challenging inappropriate criminal laws and prosecutions for HIV non-disclosure, potential or perceived exposure and transmission.

Advancing HIV Justice shows that advocates around the working to repeal, modernise or otherwise limit laws and policies that inappropriately regulate and punish people living with HIV have achieved considerable success.  This is especially the case when policymakers or criminal justice system actors are open to learning more about scientific and medical advances in HIV prevention, treatment, care and support, and involve civil society – led by people living with HIV – to ensure that critical criminal law and human rights principles are followed.

“That is why we welcome the new, detailed guidance on limiting overly broad HIV criminalisation that was released last week by UNAIDS,” says Kevin Moody, International Coordinator and CEO of GNP+. “The guidance will help to continue advancing HIV justice, serving as a powerful new tool for people living with HIV, and those advocating on our behalf, in our work with policymakers and criminal justice system actors.”

Writing in the foreword, Susan Timberlake, Chief, Human Rights and Law Division, UNAIDS Secretariat, notes that Advancing HIV Justice “powerfully demonstrates that civil society advocacy on this issue is not only alive – it goes from strength to strength.”

In the 18-month period covered by the report (September 2011 to March 2013), significant advances were made in terms of:

  • building the global evidence base in order to better understand the ‘who, what, where, when and why’ of laws and prosecutions around the world;
  • generating persuasive social science that shows exactly why overly broad HIV criminalisation does more harm than good, often achieving exactly the opposite of what law- and policymakers intend in terms of public health and human rights;
  • challenging inappropriate or overly broad new laws in Africa, Asia, the Caribbean, Latin America and the United States;
  • advocating for law reform in Europe and the United States, including successful repeal in Denmark and modernisation of one of Switzerland’s two laws used to prosecute potential or perceived HIV exposure; and
  • addressing legal processes and enforcement, including the creation of prosecutorial guidelines in Scotland.

However, the report also highlights that the road to law and policy reform is not always straightforward or easy, due not only to complex intersections of laws, policies and practices, but also because of each country’s unique social, epidemiological and cultural contexts.

“Despite the many incremental successes of the past 18 months, more work and more funding is required to strengthen advocacy capacity,” says the HIV Justice Network’s co-ordinator, Edwin J Bernard, who co-authored the report with Sally Cameron. “HIV criminalisation is a complex issue. It entails a detailed understanding of diverse aspects of the criminal justice system; collection and analysis of evidence of the scope and impact of prosecutions across local and national boundaries; articulation and argument about complex moral and ethical issues of trust, blame and responsibility; and inclusion of HIV prevention and human rights priorities. Development of strategies against HIV criminalisation relevant to each individual jurisdiction requires time, effort, and the involvement of multidisciplinary experts.”

Advancing HIV Justice: A progress report of achievements and challenges in global advocacy against HIV criminalisation is available as a 52 page pdf that can be read or downloaded at: http://www.advancing.hivjustice.net

UNAIDS launches first-ever Judicial Handbook on HIV, Human Rights and the Law: Interview with UNDP's Mandeep Dhaliwal

The meeting also looked at specific actions that can be taken by Judges, to create a more supportive environment for people with HIV and key populations that are at-risk. UNAIDS also launched the first-ever Judicial Handbook on HIV, Human Rights and the Law at the meeting.