US: Second attempt to modernise Iowa's HIV-specific criminal law during current legislative session

A new bill, introduced Monday by Senator Rob Hogg, along with bi-partisan support, seeks to reform Iowa’s 709c HIV law. Iowa’s 709c law states a person has committed criminal transmission of HIV if that person knowingly engages in intimate contact without disclosing his or her positive status, whether infection occurs or not. If passed, the new law would no longer be specific to HIV, and would rely on a tiered sentencing system, rather than the current “one size fits all” approach.

Tami Haught of Community HIV/Hepatitis Advocates of Iowa Network (CHAIN) explains the tiered system of sentencing, “If someone intends to transmit and transmission takes place it is still a class B felony, if there is intent but no transmission it is a [class] D felony and if there is no intent but transmission takes place it is a class D felony.”

Haught also goes on to explain that under the new bill, Iowans would no longer be sentenced as sex offenders and a retroactive clause in the bill would remove anyone sentenced under 709c from the sex offender registry. Prosecutors would also have to prove substantial risk, rather than the current law which simply requires non-disclosure.

CHAIN along with One Iowa, the state’s leading lesbian, gay, bisexual and transgender organization, are both supportive of the changes proposed in the bill, and CHAIN has worked hard to reform the law, which they describe as discriminatory.

“This bill is a step in the right direction and will have a profound impact on the lives of Iowans living with HIV and AIDS,” says Haught. “This bill, if passed through the Senate and the House, will be a significant victory for Iowa and Iowans living with HIV. Our work is far from over, however. We must continue to dispel the stigma and misinformation that surrounds HIV and those who live with it each and every day. HIV is not a crime, and this bill would reflect that. It would lift a burden from Iowans living with HIV and AIDS, and is a vast improvement from the current law.”

“We commend Senator Hogg for his efforts and we support this important move forward,” says One Iowa Executive Director Donna Red Wing. “In addition, we thank Senators Matt McCoy, Charles Schneider and Steve Sodders for bringing much-needed public attention to this important issue. We congratulate members of CHAIN on this victory, and are sincerely grateful for Community Organizer Tami Haught’s tireless efforts. Tami is one of the many unsung heroes of this movement. None of this would have been possible without her passion and perseverance, but more importantly her willingness to share her personal story with legislators and community members. Today is a step forward for Iowa, as we continue to work with the state legislature on both sides of the aisle to ensure equality and justice for all Iowans.”

The bill will be up for discussion Tuesday afternoon in a judiciary subcommittee hearing at 4:30.

US: Will Donald Bogardus be the last person to be convicted under Iowa’s overly draconian HIV-specific law?

Earlier this month, Donald Bogardus, 42, was given the lightest-ever sentence for HIV non-disclosure in Iowa.  He had faced up to 25 years in prison but was given a suspended sentence with two to five years of probation. However, he will also have to register as a sex offender and will likely lose his job as a certified nursing assistant as a result.

Watch Donald tell his story to the SERO Project.

Donald, who was diagnosed in 2007, was arrested in 2009 for having consensual unprotected sex three times with a male partner (who remained HIV-negative) without disclosing that he was HIV positive.

He was charged under Iowa Code § 709C.1, which states: “a person commits criminal transmission of [HIV] if the person, knowing that the person’s [HIV] status is positive … [e]ngages in intimate contact with another person.” The statute defines “intimate contact” as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV].”

As recently as July 2013, the Eighth Circuit Court of Appeals ruled that Iowa’s HIV law was not unconstitutionally vague and upheld the conviction of Adam Musser, who was sentenced to 50 years for not disclosing his HIV-positive status to four women.

Donald was supported through this ordeal by fellow criminalisation survivor, Nick Rhoades, who used a condom, had an undetectable viral load and did not transmit HIV but was sentenced to 25 years by an Iowa court for not disclosing his HIV-positive status to his male partner.  Later reduced to a year served, he now must register as a sex offender for the rest of his life.

(Nick’s story has been covered sympathetically by mainstream news outlets, including CNN, and formed the basis of a major ProPublica investigation, published last December 1st.)

Last September, the Iowa Court of Appeals upheld Nick’s conviction, finding that because he did not use a condom during oral sex there was stll a chance of transmission.

However, Rhoades and his attorneys at Lambda Legal will have another opportunity to argue that the charge and conviction is not based on current science, and the case will soon be heard at the Iowa Supreme Court.

These three cases are the tip of the iceberg, however. There are only 2000 people living with diagnosed HIV in Iowa and yet

Between January 1999 and June 2011, 25 people were charged and 15 were convicted. In 2012, Iowans were paying for the prison sentences of eight Iowans because of this law.

This quote comes from one of two editorials published this week in Iowa newspapers that are supporting a change in the law. The Des Moines Register‘s editorial, entitled ‘Lawmakers should correct Iowa’s HIV mistake‘ begins

During an election year, Iowa lawmakers are reluctant to do anything that could be construed as remotely controversial. it should not be controversial for them to fix a mistake they made 15 years ago that is ruining the lives of innocent Iowans. Lawmakers and Gov. Terry Branstad should repeal a statute that criminalizes the actions of Iowans who are HIV-positive when they have harmed no one.

Meanwhile the Press-Citizen argues that there is ‘Still time to fix Iowa’s HIV law this session’. It covers both Nick’s appeal and the law reform process.

We can only hope the Iowa Supreme Court will be more inclined than the lower court to take new scientific evidence into consideration and move away from past rulings. But whatever the state Supreme Court decides, it’s time for state lawmakers to fix the law. At the very least, lawmakers need to clarify that both intention to transmit and actual transmission is needed for prosecution. They also should specify that the type of sex act, condom usage and the defendant’s viral load need to be taken into account for decisions on prosecution and sentencing. At best, they could repeal the misguided law completely.

These editorials are the result of extremely hard work undertaken by a broad coalition of local and national advocates, and were timed to coincide with yesterday’s “Day on the Hill” when HIV advocates in Iowa visited the Capitol in Des Moines to talk with State legislators about modernising Iowa’s HIV specific legislation.

According to Tami Haught, of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) they were able to speak with half of all state Representatives and nearly two thirds of all Iowa Senators.  This may create the final push for law reform this legislative session (which ends in April).

Immediately following Donald Bogardus’ sentencing, according to the Waterloo Cedar Falls Courier

Sen. Steve Sodders, a Democrat from State Center, proposed changes to “modernize the draconian law.” The bill has been referred to the Senate Judiciary Committee, causing a ripple of Capitol support. “It’s important that we decriminalize some of the effects of this old law. It’s just outdated, and we have to keep up with modern medicine,” Sodders said.

Sen. Charles Schneider, a Republican from West Des Moines and ranking member on that committee, said GOP members in both chambers agree there should be changes to the law. “What I think we need to do is just educate people that the current penalty is more punitive than it needs to be for people who are treating effectively the transmittable disease that they have,” he said.

Attorney General Tom Miller, who supported changes to the law last year, reaffirmed his support this session. Miller said he’s “firmly convinced the statute needs to be changed” and that his office is working with lawmakers to update the statute.

The full text of Senate File 2086, which would create a new law, The Contagious or Infectious Disease Transmission Act, can be found here.

This is a summary what they are proposing.

The proposed Contagious or Infectious Disease Transmission Act would try people who transmit diseases like HIV, Hepatitis C and tuberculosis under the same statute.

It aims to delineate between someone with a criminal intent to infect and simply failing to disclose their status, taking into account whether an infected person used protection or is taking medications to limit the risk of transmission.

Under the new law, a person does not act with criminal intent necessary for a conviction simply by knowing their status and having sex.

Offenders who knew their status would get up to 10 years incarceration — a class C felony — for intentionally transmitting a disease. If they didn’t infect their partner, the sentence would drop to a class D felony or 5 years in prison.

If a person who knew their status and didn’t intend to infect their partner, but acted with a reckless disregard for their health, the violation becomes an aggravated misdemeanor.

The bill eliminates the requirement to register as a sex offender.

With a groundswell of support for modernisation, it seems very likely that Iowa will soon become the first state in the United States to achieve HIV criminalisation law reform.

Uganda: ‘Trial by media’ of nurse accused of exposing a child to HIV via injection sets a ‘dangerous precedent’

The ongoing case of Rosemary Namubiru, the Ugandan nurse accused of exposing a child to HIV during the course of administering an injection, is highlighted in a powerful press release issued yesterday by AIDS Free World.  Fortunately, Ms Namubiru is being supported by several advocacy and human rights organisations as well as by individual HIV advocates in Uganda.

The inflammatory media coverage (an example of which is this horribly invasive TV news story, above) not only increased HIV-related stigma and violated Ms Namubiru’s right to a fair trial, but is also being used to help justify the passing of the draft HIV Prevention and AIDS Control Bill 2010 which includes a number of problematic provisions including mandatory HIV tests for pregnant women and their partners, and forced disclosure of HIV status to a newly diagnosed person’s partner by a medical practitioner. In addition, the Bill contains two overly broad and problematic HIV-specific criminal statutes.

In late 2009, a group of more than 50 Ugandan and international organisations and individuals released a report criticising many of the provisions of an earlier draft. That early advocacy resulted in the removal of a criminal penalty for the transmission of HIV from mother to child through breastfeeding.

Advocacy co-ordinated by the Uganda Network on Law, Ethics and HIV/AIDS (UGANET), continues to argue that the unfavourable clauses must be completely removed and that Uganda must assent to the East African Community (EAC) HIV & AIDS Prevention and Management Act which contains provisions meant to supersede Ugandan law.

Read the entire press release below and download the PDF version here.

HIV-Positive Nurse Tried by Media

––Uganda’s first court case dealing with criminalization of HIV transmission could have far-reaching consequences––

February 11, 2014 (Kampala, Uganda)––Rosemary Namubiru, a Ugandan nurse, stands accused of exposing a child to HIV during the course of administering an injection. The incident incited a media firestorm, leading to Namubiru’s arrest and trumped-up charges of attempted murder. That these were baseless charges was confirmed at the opening of the trial today when the charge was changed to criminal negligence; charges that could still carry up to seven years in prison. As the trial begins, it is clear that the damage has already been done. Namubiru was tried and convicted in the public eye by the media, violating her rights and presumption of innocence.

The implications of this case are far-reaching: the Namubiru case appears to be the first in Uganda’s courts dealing directly with HIV exposure and transmission. Efforts to criminalize HIV transmission, and the failure of both the media and the prosecutors office to act responsibly, set a dangerous precedent and could have grave consequences for the fundamental rights of people living with HIV and AIDS in Uganda and beyond.

Case Summary

Rosemary Namubiru, 64, a nurse with 35 years of experience, was working at the Victoria Medical Centre in Kampala, Uganda. On January 7, 2014, Namubiru was attempting to give an injection to an ill 2-year-old patient. Neither she nor the mother could calm the distraught child. With the child writhing and kicking, the needle accidentally pricked Namubiru’s finger; she stopped what she was doing, washed and bandaged her pricked finger, and returned to the child. She was eventually able to administer the injection.

Uncertain about whether the same needle was used throughout, the mother became concerned about the possibility that her child had been exposed to HIV. It was confirmed that Namubiru is HIV-positive and is on anti-retroviral drugs. The child was given an HIV test; the results were negative. A precautionary 2-month post-exposure prophylaxis regimen was initiated, after which the child will be re-tested.

Rosemary Namubiru was arrested in front of a bevy of journalists. She was held by the Criminal Investigations Department for four days before her first appearance in court. She was charged with attempted murder, which carries a sentence of up to life imprisonment, and remanded to Luzira National Prison to await trial. On February 7, 2014, she was denied bail and returned to prison to await trial.  Minutes before the trail began on February 11, 2014, the prosecutor announced the charge would be changed to “negligent act likely to spread infection of disease.”  With this new charge in place, the prosecutor began to call its witnesses, and the trial is ongoing.

Trial by media

Since the moment of her arrest, Rosemary Namubiru has been found guilty in the court of public opinion. Even though research has shown that the likelihood of HIV transmission from a needle puncture is miniscule––only 0.32% of those exposed to HIV through a subcutaneous puncture became infected––Namubiru has been singled out and vilified in the press because of her HIV-positive status.

Here are just a few of the libelous accusations that appeared in the media reports in the immediate aftermath of her arrest:

* An article with the headline “Killer nurse charged with attempted murder” went on to accuse Namubiru of “maliciously infecting her patients, mainly the children with her HIV positive blood.”

* Another claimed that she “drew her own HIV-infected blood and injected it into a two-year old child.”

* Shortly after Namubiru’s arrest, one article stated that police were “investigating allegations that the woman has been engaging in the act for a pretty long time.”

* An article that appeared in The Africa Report speculated about Namubiru’s mental state, calling her “the fiendish nurse” and claiming “the baby’s incessant cries drove her mad.”

* One journalist opined that “as police struggled to find an appropriate charge to punish such an evil act, it became clearer that our laws are inadequate to cover such emerging but deadly crimes.”

* An editorial about the case declared, “The majority of our doctors and nurses may well be great professionals, but it’s also true that among them are many people who do not harbour good intentions for one reason or another. These could be inherently evil-minded, bitter or mentally unstable.”

False and sensational accounts by irresponsible media can prejudice the outcomes of trials and violate the fundamental human rights of people living with HIV and AIDS. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be presumed to be innocent until proved guilty.”

A miscarriage of justice

Even before the trial began, serious questions surfaced regarding Rosemary Namubiru’s ability to receive a fair hearing. From the spectacle of her arrest—recorded by media who were clearly alerted in advance–-to the baseless original charge of attempted murder, and the rush to trial before the defense could prepare, it is clear that this is a sensationalized case.

Throughout the process, there have been numerous violations of Rosemary Namubiru’s rights:

* According to Section 23(4)(b) of the Ugandan constitution, an accused person can only be held for up to 48 hours before a hearing. Namubiru was held for four days before her first court appearance.

* The prosecution argued against granting bail, stating that Namubiru poses a grave risk to the public, even though there is no evidence of intent to commit any crime.

* Namubiru had no lawyer present when police extracted a statement from her; she was unable to access legal counsel until she had been in detention for a week.

* The Prosecutor claimed on February 7, 2014 that the State had completed its investigation and was ready to proceed to trial. Namubiru’s lawyers had not yet seen the State’s evidence, and were informed that they would receive the file the day before the trial was slated to begin. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be given adequate time and facilities for the preparation of his or her defence.”

What are the broader implications of this case?

HIV advocates fear that the Namubiru case could set a dangerous precedent, in terms of both the criminalization of HIV transmission and the treatment of people living with HIV and AIDS.

Many advocates worry that the case could be used to justify passing the proposed HIV Prevention and AIDS Control Bill 2010. The bill includes two overly-broad sections on the criminalization of HIV, as well as a number of other troubling provisions that would restrict the rights of persons living with HIV and AIDS. If the government moves to legislate the criminalization of HIV, specific groups—including pregnant women, who are easily identified within the chain of transmission—could be targeted for criminal charges. (For more on the proposed bill and its implications, please visit www.uganet.org).

AIDS-Free World unequivocally disagrees with the notion of having a separate criminal code for people who are HIV-positive. If a person attempts to do bodily harm to another, regardless of the means, the existing laws should apply. By creating laws that specifically criminalize HIV transmission, the courts place the emphasis on the person, rather than the crime.

The media frenzy created by this case illustrates the degree to which HIV stigma still exists. Many advocates warn that the introduction of HIV-specific laws would be a dramatic setback in efforts to eliminate discrimination, particularly in the workplace.

Expert global guidance on the criminalization of HIV transmission

In its landmark report, the Global Commission on HIV and the Law recommended that:

“To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV…exposure. Where such laws exist, they are counterproductive and must be repealed.

2.2. Law enforcement authorities must not prosecute people in cases of HIV…exposure where no intentional or malicious HIV transmission has been proven to take place.

2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.

—–

Rosemary Namubiru is being supported by several advocacy and human rights organizations, including the International Community of Women Living with HIV, Eastern Africa (ICWEA), Uganda Network on Law, Ethics and HIV/AIDS (UGANET), The National Forum of People Living with HIV in Uganda and AIDS-Free World (NAFOPHANU), and by individual HIV advocates including Canon Gideon Byamugisha, Milly Katana, Major Rubaramira Ruranga.

 

Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried

A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response.

Aimed at parliamentarians, ‘Effective Laws to End HIV and AIDS: Next Steps for Parliaments’ (aussi disponible en français) is a practical handbook showing which types of laws are helpful and unhelpful in the HIV response, and provides examples of legislation from around the world that have been effective in limiting new HIV infections.

It also includes case studies and interviews with some of the parliamentarians involved in law reform, most notably with Swiss MP Alec Von Graffenried whose last minute amendment resulted in the new Law on Epidemics containing a clause that only criminalised intentional disease transmission.

Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.

The Swiss Law on Epidemics was finally passed, following a national referendum, in September 2013.  However, it won’t come into effect until January 2016.

Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference.  It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.

Switzerland: Decriminalisation of unintentional HIV transmission and exposure

Alec Von Graffenried, MP, Switzerland, 2013. “I am delighted my amendment was successful. We can still prosecute for malicious, intentional transmission of HIV. But I expect those cases will be very rare. What has changed is that now people living with HIV – which these days is a manageable condition – will be able to go about their private relations without the interference of the law. They can access medical services without fear. All the evidence suggests that this is a better approach for public health.”

Name of act

The Epidemics Act 2013

Summary

Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).

Why the law is important for HIV

Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.

How and why was decriminalization of HIV transmission and exposure introduced in parliament?

In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.

In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.

Was cross-party support secured and, if so, how? How was a majority vote secured?

The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.

During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.

How long did it take to pass the law?

It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.

 

Read and/or download the entire publication below.

Effective Laws to End HIV and AIDS: Next Steps for Parliaments. Inter-Parliamentary Union, 2013

Global Commission on HIV and the Law Jan 2014 newsletter highlights important legal and policy developments as well as new resources

We are pleased to share this first Newsletter Issue of 2014 containing several important developments. Perhaps most significantly, there have been a number of controversial recent anti-LGBT rulings and legislation around the world. In the same week in December, both Nigeria and Uganda adopted harsh new anti-LGBT related laws, which no doubt will have repercussions on the HIV response in those countries. Also, in December in response to the Supreme Court of India’s overruling of an earlier lower court decision to strike down an anti-sodomy law, effectively recriminalizing same sex behavior, former Commissioners of the Global Commission on HIV and the Law jointly issued a statement expressing dismay at the decision of the country’s top court. On a more positive note, in October Uzbekistan lifted all restrictions on entry, stay and residence for people living with HIV – see this UNAIDS infographic on current travel restrictions for PLHIV.

Several national and local level dialogues on HIV, human rights and the law were held in recent months, including in Brazil (November), China (December), Democratic Republic of Congo (November), and Dominican Republic (June). On 28-31 October, the first Eastern and Southern Africa Regional Judicial Dialogue on HIV and the Law was held in Nairobi. Also in October, UNDP and UNAIDS organized an information session on access to affordable medicines in Nay Pyi Taw, Myanmar, attended by more than 30 parliamentarians. Visit our recently updated interactive map for more information on efforts by UN agencies, including UNDP and UNAIDS, in partnership with governments, civil society and international donors, to support countries in creating enabling legal environments for HIV responses and advance the findings and recommendations of the Global Commission on HIV and the Law.

A number of key knowledge products were published this past quarter, such as: Judging the epidemic: A judicial handbook on HIV, human rights and the law (UNAIDS, 2014); Protecting the rights of key HIV-affected women and girls in health care settings: A legal scan (UNDP, SAARCLAW, WAP+, 2013); HIV and human rights manual for the Democratic Republic of the Congo (French) (UNDP, 2013); Young people and the Law in Asia and the Pacific: A review of laws and policies affecting young people’s access to sexual and reproductive health and HIV services (UNESCO, UNFPA, UNAIDS, UNDP, Youth Lead, 2013); and Compendium of Judgments for Judicial Dialogue on HIV, Human Rights and the Law in Eastern and Southern Africa (UNDP, 2013).

Uganda: Remove mandatory testing, mandatory disclosure and criminalization clauses in draft HIV-specific law, say activists

A coalition of HIV/AIDS activists has asked parliament to amend some clauses in the HIV/AIDS Protection and Control Bill 2010 before enacted into law. The activists said the HIV Prevention and Control Bill 2010 in its current form has clauses that will deter the fight against the epidemic. The amendments they want include removing mandatory testing, mandatory disclosure and criminalization. They also want the title of the Bill changed to HIV/AIDS Prevention and Management Bill.  “Policy makers should treat this matter with urgency,” said Stella Kentutsi the Executive Director, National Forum of People Living with HIV/AIDS Networks in Uganda.

Nigeria's anti-gay law, condemned by US, Britain and Canada, will harm HIV response, says UNAIDS

Local and international groups fighting AIDS warned on Tuesday that a new Nigerian law criminalizing same-sex marriage and gay organizations will jeopardize the fight against the deadly disease. Activist Dorothy Aken’Ova said the new legislation, already dubbed the “Jail the Gays” law, will endanger and even criminalize programs fighting HIV / AIDS in the gay community. Aken’Ova is executive director of Nigeria’s International Center for Reproductive Health and Sexual Rights based in Minna, Niger state.

The UN agency to fight AIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria expressed “deep concern that access to HIV services for lesbian, gay, bisexual and transgender people will be severely affected by the new law in Nigeria, further criminalizing LGBT people, organizations and activities, as well as people who support them.”

UNAIDS said the law could harm Jonathan’s own presidential initiative to fight AIDS, started a year ago. Nigeria has the second largest HIV epidemic globally, with an estimated 3.4 million people living with HIV. The disease affects many more gay men than heterosexuals, with 2010 statistics estimating national HIV prevalence at 4 percent compared to 17 percent among gay men, according to UNAIDS.

President Goodluck Jonathan’s spokesman confirmed Monday that he had signed the Same Sex Marriage Prohibition Act on Jan. 7, providing penalties of up to 14 years in jail for gay marriage and up to 10 years’ imprisonment for membership or encouragement of gay clubs, societies and organizations. The U.S., Britain and Canada have swiftly condemned the law, with Secretary of State John Kerry saying Monday that it “dangerously restricts freedom” of expression and association of all Nigerians.

Human rights activists reported that dozens of gay men were being arrested in northern Nigeria in an apparent response to the law. The law also criminalizes people and groups who support “the registration, operation and sustenance of gay clubs, societies and organizations, processions or meetings in Nigeria.” Those convicted could be jailed for 10 years.

Even before it was the passed, the law was being used to persecute gays, Aken’Ova said. In Bauchi state, she said police entrapped four gay men and tortured them into naming others. She said the police have drawn up a list of 168 wanted gay men, of whom 38 have been arrested recently. An AIDS counsellor told the Associated Press he helped get bail for the men. He spoke on the condition of anonymity for fear he would be arrested as well.

Jonathan, Nigeria’s president, has not publicly expressed his views on homosexuality. But his spokesman, Reuben Abati, told The Associated Press on Monday night, “This is a law that is in line with the people’s cultural and religious inclination. So it is a law that is a reflection of the beliefs and orientation of Nigerian people … Nigerians are pleased with it.”

Uganda: New Anti-Homosexuality Bill a setback for Uganda’s HIV response

The draconian Anti-Homosexuality Bill passed by Uganda’s parliament on 20 December would deliver a major blow to the response to HIV/AIDS if it was enacted by President Yoweri Museveni, activists have warned.

Those found guilty of homosexual acts can be jailed for up to 14 years under the new law, a sentence that increases to life in “aggravated” cases, such as those committed by an HIV positive person, or those involving minors, the disabled and serious offenders.

Civil society activists fear that high-risk groups such as men who have sex with men (MSM) and sex workers – whose HIV prevalence is 13.7 and 33 percent respectively – will see their already limited access to prevention and treatment further eroded.

Amnesty International called the law “a grave assault on human rights [which] makes a mockery of the Ugandan constitution.

“President Museveni should avoid the trap of scapegoating a vulnerable minority in the interests of short-term political gain,” said Daniel Bekele, Africa director at Human Rights Watch.

“He should recognize that this repugnant bill is of no benefit to Ugandans – that it only serves to jeopardize basic rights – and reject it.”

The United States government has also called for the bill not to be enacted.

Switzerland: How effective HIV treatment has impacted upon the criminalisation of HIV exposure

The preventative effect on HIV transmission of being virally suppressed due to antiretroviral therapy (ART), as recognized by the Swiss Commission for HIV/AIDS in 2008, has helped to reduce the criminalization of HIV exposure in Switzerland. Since the Swiss statement’s release, there have been acquittals of two HIV exposure cases in 2009, no further prosecutions for HIV exposure and alterations to the law used in these cases, according to study results presented at EACS 2013 in Brussels, Belgium.

Although Switzerland is not the only country to criminalize HIV, the country did have one of the most severe HIV criminal legislation in Europe, together with Sweden and Austria. Swiss law had considered exposure to HIV, defined as sex without a condom between an HIV-infected individual and an HIV-uninfected individual, a criminal offense. This was the case even if the HIV-uninfected partner gave consent, there was no transmission or the HIV-infected partner did not know his or her status.

The criminal cases were based in two articles of the Swiss penal code: 122, which concerns serious bodily harm, and 231, which covers transmission of human diseases. The latter, despite supposedly being a public health measure, had only been invoked in cases of HIV exposure or transmission. From 1990 onward, this legal apparatus had resulted in more than 80 proceedings, with 48 prosecutions — over half of them due to exposure only, with no transmission having happened.

This scenario started changing in 2008, according to Deborah Glejser and Sascha Moore Boffi, from Groupe Sida Genève, a Swiss community-based HIV organization. Glejser performed a survey that reviewed criminal judgments in Swiss cantonal and federal courts, statements by stakeholders and policy makers and records of parliamentary sessions since 2009. Glejser states that the turning point for advocacy work against criminalization was the declaration issued by the Swiss Commission for HIV/AIDS (now known as the Swiss Commission for Sexual Health) in 2008.

The Swiss statement, as it became known, stated that “HIV-positive individuals on effective antiretroviral therapy who have had an undetectable viral load for at least six months and without sexually-transmitted infections are sexually non-infectious.” Due to the worldwide controversy created by the declaration, it was not immediately used in court, with Swiss prosecutors trying to have it removed from debates so as not to be used as a defense. Although there was international acknowledgement of the Swiss statement in 2009, advocacy groups did not wait for it, using policy briefs by UNAIDS to show that criminal laws against HIV transmission had no impact on the spreading of the virus or containment of the epidemic.

A breakthrough came in December 2008 in the case of an HIV-infected man who was condemned to a year and a half of prison by a Geneva court. The man knew he had an undetectable viral load and had sex with two consenting HIV-uninfected women. Although no transmission occurred, the two women sued the man, who appealed the sentence. Three months later, the court cleared him of the charges stating that he was undergoing ART at the time and had little chance to infect his partners. This was the first decision of its kind in Switzerland, but not the only one. A second acquittal happened in 2009. Since then, no further prosecutions have been carried out for HIV exposure when the HIV-infected partner was on effective ART.

For Glejser, these acquittals were a major step forward and set a legal precedent, leading to a significant decrease in the number of prosecutions after 2009. This was supported in later years by changes in legislation, such as the 2012 reformation of article 231, preventing prosecution when informed consent is given. With the new wording, the article will only be invoked for intentional or malicious transmission.

HIV exposure can still be prosecuted under article 122, but thanks to a 2013 ruling by the Swiss federal court (equivalent to the U.S. Supreme Court), HIV transmission is no longer considered serious bodily harm, falling under common assault and making it easier for defendants to use the Swiss statement for defense, as well as resulting in lesser sentences.

African HIV criminalisation achievements and challenges highlighted at ICASA 2013

The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade.

Although North America is the continent with the most known prosecutions, 26 African countries have overly broad and/ or vague HIV-specific criminal laws with a further three countries considering new HIV-specific criminal laws. This is worrying and disappointing given the growing evidence base and consensus of international agencies that such laws are counterproductive to HIV prevention efforts and generally fail to deliver ‘justice’.

Although there are few known prosecutions the majority of those prosecuted have been women – who are usually the first in a couple to know their HIV status due to routine antenatal testing and who are often erroneously accused of bringing HIV into a relationship.

In addition, South Africa recently prosecuted alleged criminal HIV transmission as attempted murder despite no evidence of intent to harm. (Read the judgement from the High Court of South Africa on alleged HIV exposure being attempted murder here.)

However, there have been some positive legal changes brought about by local advocacy supported by international civil society and UN agencies. Since 2010, at least four countries – Congo, Guinea, Senegal and Togo – have revised their existing HIV-related legislation or adopted new legislation that restrict use of criminal law to cases of intentional transmission.

And more recently advocacy in Malawi and Nigeria has resulted in the removal of overly broad HIV-specific criminal statutes from draft omnibus HIV Bills.

View the poster below or download the A4 double-sided printable version of the poster here.

Advancing HIV Justice: Achievements and challenges in global advocacy against HIV criminalisation – African…