Spain: Ministry of Health plans national database of HIV-positive people

Update: 9th October 2008.

The Constitutional Court has rejected an appeal by several Spanish HIV organisations against the Ministry of Health, which will go ahead with establishing a national HIV database.

Spain to establish a HIV register
Oct 9, 2008
typicallyspanish.com

Spain is to set up a registry of people affected with the HIV virus. It comes as the Constitutional Court has rejected an appeal against the Ministry for Health plan presented by several different Non-Governmental associations.

The register will contain files which will hold the latest diagnostic data on those infected. The authorities say the registry will help them to keep control of the real situation of the spread of the virus in Spain, but objectors claim that the project does not guarantee the anonymity of the people included.

It’s understood the files will be labelled with a combination of initials and birthplace to identify each case. Across the European Union, only Italy has a similar registry in existence.

Spanish Health Ministry Announces Plan To Determine Number of HIV Cases by 2015
Thursday, September 13, 2007
Kaiser Network

The Spanish Ministry of Health recently announced a new plan to determine the number of people living with HIV in the country and reduce the spread of the virus by 2015, El Pais reports. The plan replaces an earlier one that expired in 2005 and was not renewed, reflecting what some nongovernmental organizations say is the government’s lack of dedication to addressing HIV/AIDS.

Some HIV/AIDS advocacy groups say the new plan does little to address the disease in the country. Cesida, the largest confederation of NGOs involved in fighting HIV/AIDS in Spain, said the new plan “cannot be considered a plan of action.” Some NGOs are complaining that the plan’s goals are vaguely worded and that the time frame is too long. NGOs also have said that the plan places too much emphasis on those who are already HIV-positive, rather than on the general public, to combat the spread of the virus. In addition, some NGOs have said that the plan singles out high-risk groups, such as injection drug users and commercial sex workers, and does not mention specifically heterosexual men, who are the primary transmitters of the virus in the country, El Pais reports.

The plan also will establish a national database of HIV-positive people. Although NGOs support the health ministry’s efforts to determine the number of people in Spain living with HIV, they are opposed to the national database and are concerned it could become public knowledge and lead to discrimination against people living with the virus, El Pais reports (Benito, El Pais, 9/12).

Zimbabwe: Blame, responsibility, impact of criminalisation on women analysed

Excellent opinion piece in the Zimbabwean newspaper, The Herald, which discusses blame and responsibility and the impact of criminalisation of HIV transmission on women.

 

Blame Game Won’t Change a Thing

The Herald (Harare)

Beatrice Tonhodzayi

4 October 2008She is young and very striking. That type of girl that would give most of my male colleagues’ ideas; if she ever looked their way. She is very pretty, what my male colleagues term the “typical African queen.”

However when you look deeply into her eyes, you can tell she is sad.

But what would make such a pretty and young lady sad?

Mutsa (not her real name) is living with HIV. It is not that knowledge however that is responsible for the sadness that surrounds her very being.

It is anger and a sense of betrayal.

Anger and betrayal, that she feels towards her former lover, a medical doctor, who she says infected her with HIV.

When Mutsa got in touch with me about her story, I felt very betrayed on her behalf.

There she was, going out with a medical doctor, someone who has all the knowledge about HIV transmission. This was the first man she had ever been with and he had the nerve to infect her with HIV, I felt.

But then, I began to wonder!

Did he even know that he was HIV positive?

Yes, he may have slept with other women before or besides Mutsa but this does not mean he knew his status and therefore willingly infected his girlfriend.

And why did Mutsa have unprotected sex with him when she did not know his status?

I am a woman; I champion the women’s cause as much as I can because I sincerely believe that life has not been very kind to woman-kind.

However, I am a journalist and must look at both sides of the coin. I must be objective.

There are many women who are living angry lives unnecessarily. They are filled with so much bitterness at the fact that their husbands and partners have infected them with HIV.

This anger in some cases, is so intense that it eats up one’s very passion for life.

They wish these men could just be thrown into jail for committing such heinous crimes.

Is this necessarily fair to the men in question and the women themselves?

A cursory glance shows that most women who are living with HIV blame a man for their status and this is understandable.

It is a fact that most men sleep with several women at the same time. How many women can safely say they have never been played?

Definitely not me!

But if we know we are or have been played, should we not begin to look out for ourselves?

Another interesting truth is that even women, who have had other sexual encounters before marriage, are quick to point a finger to the man when they test positive.

This is despite the fact that some of them would not have tested before entering this relationship.

Ever think for a moment that you could actually have been positive before, sisters?

If the truth be told, there are some men who have also been infected by women. But how many times do you hear people sympathising with a man?

Is this because men do admit to having been around and done that, unlike their female counterparts?

Multiple concurrent partnerships, especially the “small house” syndrome, are very popular in southern Africa and this is a documented fact.

Such partnerships have been identified as a key driver of HIV in the region.

Because men keep the majority of small houses, whenever transmission occurs, a finger is pointed at them and quite rightly so, mostly.

But what does just blaming them achieve if women do not stand up and begin to look out for themselves.

For argument’s sake, let us say the man is responsible, does this mean by pointing a finger, the virus would disappear?

If we could even go on to punish someone for infecting someone, would we solve anything?

Some would argue that it is high time we criminalised HIV transmission but will this prevent the spread of HIV?

Would it make people more sexually responsible?

Justice Edwin Cameron of South Africa’s Supreme Court of Appeal at the just ended XVII International AIDS Conference in Mexico said criminalisation of HIV transmission makes for bad policy direction around the epidemic.

He said laws and prosecutions don’t prevent the spread of HIV but may actually continue to distract us from reaching our goals of ending deaths, stigma, discrimination and suffering.

He also said something else that I like.

“The prevention of HIV is not just a technical challenge for public health. It is a challenge to all humanity to create a world in which behaving is truly feasible, is safe for both sexual partners, and genuinely rewarding.

“When condoms are available, when women have the power to use them, when those with HIV or at risk of it can get testing and treatment, when they are not afraid of stigma, ostracism and discrimination, they are far more likely to be able to act consistently for their own safety and that of others.”

The responsibility lies with all of us surely?

At the International AIDS Conference Regional Feedback Meeting held at the Harare International Conference Centre, Southern Africa HIV and AIDS Information Dissemination Service (SAfAIDS) Executive Director, Mrs Lois Chingandu also echoed the same comments.

She said the challenge with sexual matters were that they were mostly a “heat of the moment” thing and therefore clearly ascertaining that someone has an intention of infecting someone would be difficult.

“One could look for a condom in the dark and fail to find it. Both parties would go ahead to have consensual sex. Could we blame someone here?” she asked.

Today my message is simple. I am just appealing to Mutsa and others like her who are failing to move on because of the anger and sense of betrayal they feel that someone infected them to let go of it and live their lives.

She once felt like taking him to court but then, she says, she realised there was really no point for her status would not change.

I am also inviting my readers out there to contribute their thoughts and comments to this issue of blame and criminalising HIV transmission. My e-mail address is beatrice@safaids.org.zw

Please note:

Each of us has the responsibility and right to protect ourselves from HIV infection and re-infection

Failing to manage one’s anger is one way of increasing stress levels

You can still enjoy a full and productive life, even if you are HIV positive

Beatrice Tonhodzayi is a Programme Officer-Media with SAfAIDS

UK: Developing guidance for HIV prosecutions: an example of harm reduction?

I’m including an excerpt here – the conclusion, actually – of an excellent article by Yusef Azad of the National AIDS Trust, in the July issue of the HIV/AIDS Policy and Law Review, published by the Canadian HIV/AIDS Legal Network, which describes the way the HIV sector managed to successfully intervene and manage the harm of criminal prosecutions in England & Wales for ‘reckless’ HIV transmission following an initial period of shock and panic.

By persuading the Crown Prosecution Service (CPS) to consult with the community on the production of a policy statement, as well as legal guidance for prosecutors and caseworkers in this area of law, he argues that this was pragmatic ‘harm reduction’. Certainly, the process has resulted in a much higher burden of proof of transmission and guilt, and there have been no successful prosecutions since an African migrant living in Bournemouth pleaded guilty in January 2007.

Since then, three cases have been dismissed by a judge in pretrial hearings, including two gay cases (in Preston in April 2007 and Cardiff in May 2008) and one heterosexual case (in Manchester in October 2007). These prosecutions all failed because the men had the same informed solicitor who successfully argued that the CPS failed to provide uneqivocal proof that the defendant, and only the defendant, could have, in fact, infected the complainant(s). Although the CPS guidance was only published in March 2008, even the existence of draft versions was enough to persuade the judge in the earlier two cases.

The full article, ‘Developing guidance for HIV prosecutions: an example of harm reduction?’, can be found here.

Judging success depends a lot on one’s initial expectations. The CPS were not in a position to end prosecutions for reckless transmission or disagree with the interpretation of the OAPA 1861 as set out by the Court of Appeal.

What they could do — and what they did do — was consider in greater depth, and on the basis of detailed evidence, what is required to prove responsibility for infection, knowledge, recklessness and appropriate use of safeguards. An informed understanding of these elements has, even in the context of current criminal law, resulted in fewer and fairer prosecutions.

As the CPS says in its Policy Statement, “[O]btaining sufficient evidence to prove the intentional or reckless sexual transmission of infection will be difficult … accordingly it is unlikely that there will be many prosecutions.” Therefore, we should consider this to be a successful example of policy intervention as harm reduction.

It was not without its risks. Success was due to a number of factors, not least of which was a CPS that was already committed to taking seriously the concerns and experiences of affected communities when considering prosecutions in socially sensitive areas of law.

Some jurisdictions will not have such an enlightened prosecution service, and so the HIV sector will need to start further back in terms of engaging with the authorities. But it may be possible, even given the different legal contexts of different countries, to use the CPS Guidance to help bring about improvements in practice elsewhere.

The process was helped immensely by the commitment from an extraordinarily wide range of partners within the HIV sector, encompassing NGOs, academics, clinicians, virologists and, above all, people living with HIV.

Although harm may be reduced, it has not been ended — prosecutions for reckless HIV transmission remain and will continue. There is an urgent need to restate the ethical and policy case against such prosecutions and to consider freshly how and when we might engage with political decisionmakers on this issue.

UNAIDS says criminal prosecutions do more harm than good

This week UNAIDS has released a fantastic new policy paper firmly establishing that criminal prosecutions for HIV exposure or transmission – whether through sex, drug use or mother to child transmission – do far more harm than good.

The paper coincides with the the XVII International AIDS Conference in Mexico City, where this issue is high on the agenda. There’ll be more from the conference soon, but for now, this policy paper is an extremely important addition to the anti-criminalisation armamentarium.

In some countries, criminal law is being applied to those who transmit or expose others to HIV infection. There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights. Because of these concerns, UNAIDS urges governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it. In other instances, the application of criminal law should be rejected by legislators, prosecutors and judges….

 

Download the entire paper (8 pages) here.

Switzerland: Federal Court rules that undiagnosed criminally liable for HIV transmission

Switzerland’s highest court – the Federal Court in Lausanne – has ruled that a man who was unaware of his infection is still criminally liable for infecting a woman with HIV.

In effect, the court has ruled that anyone who has had unprotected sex in the past, and does not disclose it to their sexual partner before having unprotected sex with them, may be criminally liable should HIV transmission take place.

An unofficial translation of the article in the Neue Zürcher Zeitung (the original and the translation follow, below) reporting the case, says the following:

..you have to refrain from having unprotected intercourse, if there are concrete indications for a potential HIV infection. Indications can be, in principle, any perceived risky contact in the past, such as unprotected intimate contacts with a person whose sexual past one does not know. In principle the Safer Sex Guidelines of the Federal Health Office are authoritative for this. Irrelevant are the statistical risks of transmission or the fact that signs [of seroconversion] failed to appear.

There are three articles below. First, my article on this published today on aidsmap.com. Then there is a short article in English from swissinfo.ch, and finally the Neue Zürcher Zeitung article (in English and then a jpg of the German original) which contains a lot more information.

I also have a copy of the full judgment in German, which helped inform my article for aidsmap.

I had delayed reporting on this very important case because I had asked the Swiss Federal AIDS Commission (EKAF) to provide an official comment, and to discuss its implications. However, I found out last night that this will not be available until they have their next meeting in September. Nevertheless, I know that some individuals working with EKAF are very concerned about this latest development.

(Thanks to Nick Feustel, of georgetownmedia.de, for providing German to English translations).

Swiss court rules all people with HIV can be criminally liable for transmission, even if untested

Edwin J. Bernard,
aidsmap.com
Friday, July 18, 2008


Switzerland’s highest court – the Federal Court in Lausanne – has ruled that a man who was unaware of his infection when he had unprotected sex that transmitted HIV is still criminally liable. The ruling suggests that unprotected sex in Switzerland without first disclosing a sexual history may result in prosecution should HIV be transmitted.

In 2006, the California state Supreme Court ruled that ‘constructive knowledge’ – when it is reasonably foreseen by a reasonably intelligent person that their actions could lead to harm – of the possibility that HIV transmission may occur, is enough to allow for civil liability. However, this is the first ruling anywhere in the world to find that an undiagnosed individual may be criminally liable for HIV transmission.

The criminal case, reported in some detail in the July 1st edition of the Neue Zürcher Zeitung, began with a trial in Zurich’s District Court in 2005. The complainant was a woman who had tested HIV-positive after having unprotected sex in 2002 with the defendant. Although the man had not been diagnosed HIV-positive before their sexual encounters, he did have a history of unprotected sex.

Notably, in 2000, he had been informed by a former sexual partner that she had been diagnosed HIV-positive. The man testified that he had not taken an HIV antibody test because he did not believe himself to have been infected during unprotected sex with this woman, based on a lack of seroconversion symptoms at the time. However, the District Court found him guilty under both public health and criminal law.

Swiss criminal HIV exposure and transmission laws
Liability for HIV exposure or transmission in Switzerland is based on two distinct sets of laws – those aimed at protecting the general public (public health law) and those protecting the individual (criminal law).

Article 231 of the Swiss Criminal Code allows prosecution by the police – without the need for a complainant – of anyone who “deliberately spreads a dangerous transmissible human disease.” Informed consent to unprotected sex does not nullify the offence, and even the attempt to spread a dangerous transmissible human disease (i.e. HIV exposure without transmission) is also liable to prosecution.

Article 122, also allows prosecution for grievous bodily harm if unprotected sex results in HIV transmission. However, informed consent is a defence in this case, and a prosecution requires a complainant in order to prove that informed consent (i.e. disclosure of HIV status before sex) was not obtained.

In effect, “any unprotected sex of an HIV-positive person is a crime, even if there is no transmission,” Professor Pietro Vernazza, of the Cantonal Hospital in St. Gallen, and President of the Swiss Federal Commission for HIV / AIDS, tells aidsmap.com. In part, it was these draconian laws that motivated the Swiss Federal AIDS Commission’s recent statement regarding antiretroviral therapy’s effect on HIV transmission.

Cantonal Court upholds appeal
The undiagnosed man convicted under these laws appealed to the Zurich Cantonal Court in 2007. The appeal had two parts: questioning whether an undiagnosed person has a legal requirement to test for HIV and to disclose their sexual history; and questioning the validity of the phylogenetic analysis evidence used in the original case.

The Cantonal Court ruled that not only was he not liable – because there is no law mandating HIV testing or disclosure after unprotected sex – but also that the scientific evidence was not conclusive enough to prove that he had infected the complainant.

Although phylogenetic analysis of the samples linked the man’s rare HIV subtype to the complainant’s own HIV strain, his lawyers successfully argued that phylogenetic analysis cannot rule out that another individual may have infected the complainant. In addition, phylogenetic analysis ruled out a link between the defendant and the HIV-positive woman with whom he had ‘risky’ sex in 2000.

Federal Court reverses appeal
On June 30th 2008, Switzerland’s highest court ruled that the man can be held responsible for HIV transmission under both public health and criminal law. They said the defendant could not ignore the fact that his own past behaviour was risky, particularly since one of his previous partners had told him she was HIV-positive after they had had unprotected sex.

It also ruled that the woman did not have joint responsibility for her HIV infection because she did not give informed consent to the risk of unprotected sex. If she had known the man’s sexual history, it was unlikely she would have had consented to unprotected sex, it said.

An unofficial translation of the German-language article in the Neue Zürcher Zeitung quotes the following: “…you have to refrain from having unprotected intercourse, if there are concrete indications for a potential HIV infection. Indications can be, in principle, any perceived risky contact in the past, such as unprotected intimate contacts with a person whose sexual past one does not know. In principle the Safer Sex Guidelines of the Federal Health Office are authoritative for this. Irrelevant are the statistical risks of transmission or the fact that signs [of seroconversion] failed to appear.”

The Federal Court also overturned the ruling on phylogenetic analysis, saying that since the defendant’s strain was so rare, it would have been highly unlikely that the complainant could have acquired it elsewhere.

In effect, Switzerland’s highest court had now ruled that anyone who has had unprotected sex in the past, and does not disclose it to their sexual partner before having unprotected sex with them, may be criminally liable should HIV transmission take place.

Court rules in HIV case
July 1, 2008
swissinfo.ch

Switzerland’s highest court has ruled that a man who unknowingly infected a woman with HIV can be held responsible for his actions.

The Federal Court in Lausanne wrote that any person having occasional sex with another should use a condom to protect the other person. Otherwise they should expect to be accused of causing seriously bodily harm through negligence if the occasional partner is diagnosed with the Aids-causing virus.

The decision overturns an earlier one by Zurich’s cantonal court after an appeal by a woman who was diagnosed with the virus. She had had unprotected sex with a man who did not know he was contaminated.

The man had previously had unprotected relations with other partners, and the country’s highest court ruled that he had failed to apply the rules of safe sex.

Even if he did not know he was HIV positive, the judges said he could not ignore the fact that his own behaviour was risky, especially after one of his earlier partners had admitted being infected.

HIV Transmission After Risky Contacts: Conviction required
Neue Zürcher Zeitung
1 July 2008

If you ignore the possibility of being infected with HIV after previously having had risky contacts, and then infect a sexual partner by having unprotected intercourse, you can be prosecuted for reckless greivous bodily harm. The Federal court requires the Zurich cantonal courts to convict a man, who had unprotected intercourse with various women for years.

In 2000, one of his former sexual partners informed him she was HIV-positive. He abstained from having an HIV test done, because he relied on not having been infected due to the lack of signs, such as fever attacks. Two years later he had unprotected sex with another woman, who he didn’t inform about that risk. Later she was diagnosed with having the same rare HIV strain as he did.

The Zurich cantonal court fully acquitted the man in March 2007 of the accusation of reckless greivous bodily harm and reckless spreading of human diseases, following an earlier convicion. The court had negated the recklessness of the act, claiming that there is no legal obligation to test for HIV after having had unprotected intercourse.

The Penal Department of the Federal court has now approved of the victim’s remonstrance and sent the matter back to the Cantonal court for the conviction of the man. According to the adjudication from Lausanne, as for the question of recklessness, it is decisive that you have to refrain from having unprotected intercourse, if there are concrete indications for a potential HIV infection. Indications can be, in principle, any perceived risky contact in the past, such as unprotected intimate contacts with a person whose sexual past one does not know. In principle the Safer Sex Guidelines of the Federal Health Office are authoritative for this. Irrelevant are the statistical risks of transmission or the fact that signs [of seroconversion] failed to appear.

The Lausanne judges answered their Zurich colleagues back on another point. The Cantonal court’s perception that the woman could have been infected indirectly via a chain of persons with the relevant virus type, is highly unlikely and therefore indefensible, according to the Lausanne judges.

Finally even a joint responsibility of the woman was negated. If she had known the preliminary history of her sexual partner, she would hardly have had consented to having unprotected intercourse, says the Federal court.

Africa’s criminal HIV transmission laws are highly inefficient, says Justice Michael Kirby

Australia’s most eloquent and insightful High Court judge, Justice Michael Kirby, spoke at the International Criminal Law Reform conference in Dublin yesterday, arguing that the move to criminalise HIV transmission in sub-Saharan countries such as Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone will do more harm than good.

He also also argued that countries which focused on human rights-based laws that encouraged the undiagnosed to test for HIV did better at containing the epidemic than those which “adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction.”

 

Third World should help HIV sufferers, not punish them: judge

Victor Violante, Legal Affairs Reporter

The Canberra Times

16/07/2008

Developing countries should introduce laws that encourage potentially HIV-positive people to seek diagnosis and treatment, High Court judge Justice Michael Kirby said last night.

Speaking at the International Criminal Law Reform conference in Dublin, Justice Kirby said governments that had focused on educating rather than punishing those with HIV or AIDS were most successful in containing their spread.

”Those countries that have adopted a human rights-respecting approach to the HIV/AIDS epidemic have been far more successful in containing the spread of HIV than those countries that have adopted punitive, moralistic, denialist strategies, including those relying on the criminal law as a sanction,” he said.

Justice Kirby has been heavily involved in the international fight against AIDS, having served as a member of the World Health Organisation’s Inaugural Global Commission on AIDS from 1988 to 1992. Since 2004 he has been a member of the UNAIDS global reference panel on HIV/AIDS and human rights.

While many developed countries, including Australia, had laws that criminalised the deliberate spread of HIV, such laws should not be used as part of the strategy to curb infection rates.

”Legal and punitive laws have been kept in reserve because their aggressive deployment has generally been seen as counterproductive.

”This is so because of the typical ineffectiveness of criminal law as a response to activities important to individual identity and pleasure [such as sex and drug use].”

Justice Kirby, who is openly homosexual, spoke about his indirect experience with HIV, having seen friends die from the virus.

”From 1985, I lost a number of close friends, several of them members of the legal profession. I witnessed the substantial helplessness of the medical profession in the early days of HIV.”

He urged the thousands of lawyers, judicial officers and lawmakers from all over the world at the conference to avoid enacting what he called ”HILs”, or highly inefficient laws.

Of concern were laws introduced in some African nations, including Benin, Guinea, Guinea-Bissau, Mali, Niger, Togo and Sierra Leone, that impinge on the human rights of those infected with HIV or AIDS.

One law criminalised the ”wilful transmission” of HIV, but defined the offence as the transmission of HIV ”through any means by a person with full knowledge of his or her HIV status to another person”.

Justice Kirby said, ”Potentially, [that law] imposes criminal liability, although a person may practise safer sex which reduces or eliminates actual risk of transmission to a sexual partner; takes steps to disinfect injecting or skin-piercing equipment; or involving mother-to-child transmission of HIV regardless of the actual risks involved in the particular case.”

He urged governments to introduce laws and programs that were proven strategies in the war against HIV and AIDS, even if they were unpopular with their cultures.

”Taking the effective measures is not always popular. Yet taking punitive measures, depending on their terms and enforcement, is, on current information, unlikely to succeed in the environment where there is no effective vaccine and no curative therapy which can be offered to persons living with HIV and AIDS.”

Uganda: Influential judge echoes Museveni’s calls for harsh criminal HIV transmission laws

An influential Ugandan judge has joined President Museveni in calling for tough laws for criminal HIV transmission.

Justice David Wangutusi, director of Uganda’s Judicial Studies Institute told a judicial workshop on gender equality that HIV-positive husbands who conceal their HIV status from their wives resulting in HIV transmission, should be given harsh sentences as a deterrent.

Uganda’s president, Yoweri Museveni gave a speech in March calling for the death penalty for anyone who is found guilty of Uganda’s proposed criminal HIV transmission laws. The president’s remarks drew sharp criticism from human rights advocates.

Judge calls for tough law on HIV/AIDS
Sunday, 29th June, 2008
By Vision Reporter

A spouse who knowingly conceals his or her HIV/AIDS status and infects the partner should be prosecuted, a High Court judge has suggested.

During a workshop for judges and magistrates at Pauline Hotel in Lira recently, Justice David Wangutusi said the sentence for such people should be harsh to deter other likely offenders.

“Magistrates should be responsive to the plight of women living with HIV/AIDS. You should also be gender sensitive when handling cases in which women seek judicial redress,” Wangutusi, who is also the director of the Judicial Studies Institute, told the participants.

The two-day workshop drew judicial officers from the north and Masindi district.

It was organised by the National Association of Women Judges of Uganda and the International Association of Women Judges, with support from Irish Aid.

Wangutusi called upon the participants to approach gender issues with critical minds to effect quality and equal justice to all.

“A closer examination reveals that inspite of the existence of equality principle in Constitution, there still exists beliefs, traditions, customs and attitudes that prevent the translation of abstract rights in the law into substantive rights in reality,” Wangutusi said.

He castigated the custom of widow inheritance saying it does not recognize the widow as a human being with a mind and conscience.

“It is in conflict with the equality principle. The tradition that only males may become heirs discriminates against females,” Wangutusi observed.

Under the theme Jurisprudence of equality in a time of HIV/AIDS, judicial officers were sensitised on issues of promoting awareness within the legal fraternity and the public to the passive effects of gender discrimination and violence, the pervasive effects of gender discrimination and violence.

They were also trained in skills needed to decide cases involving discrimination against women in accordance with International Human Rights norms among other issues.

US: Idaho Supreme Court upholds HIV exposure sentence

Just found this excellent blog posting from Leonard Link, originally posted on June 12th. Click here to read the complete posting.

The Idaho Supreme Court spoke unanimously yesterday, upholding what may turn into something like a life sentence to an HIV+ man convicted under I.C. sec. 39-608 of eleven counts of “transferring body fluid which may contain the human immunodeficiency virus.” This draconian sentence was upheld in State of Idaho v. Mubita, 2008 Westlaw 2357703, where it appears that the acts in question presented little or no risk of HIV transmission, there is no evidence that HIV was actually transmitted, and the police learned the identity of the defendant through unauthorized disclosure of his medical records and forms he filled out at the health department in order to access HIV-related benefits.

US: Delaware considers mandatory HIV testing for alleged sex offenders

The US state of Delaware is proposing mandatory HIV testing of alleged sex offenders, within 48 hours of their arrest, if the alleged victim, or court, asks for it.

Unlike the existing law, the bill does not require that the state actually show some possibility that the virus may have been transmitted before requiring testing. The bill also authorizes testing around the time of arrest, instead of around the time of arraignment.


It’s not clear if this is primarily for the purposes of ascertaining whether PEP (post-exposure prophylaxis) might be necessary for the alleged victim – which can be the only ethical reason for a change in the law.

Although PEP is thought to be most effective when taken within a few hours of exposure, current guidelines have a recommended maximum window of 72 hours from exposure, so the alleged attacker would have to have been arrested immediately after for that specific purpose.

However, an HIV antibody test would not be accurate enough to detect whether the alleged offender was recently infected with HIV himself (making him much more likely to expose his alleged victim to high enough levels of HIV to transmit the virus).

In any event, PEP should be offered to all alleged victims of sexual assault regardless of the perceived status of their alleged attacker.

One wonders whether the charges would be harsher if the alleged offender did not know his HIV status and transmitted HIV, or did know his HIV status but did not?

However, the story, from the Associated Press, via delmarvanow.com, hints that the change in law is primarily for political, funding reasons.

Supporters say passage of the bill would allow the state to continue to receive up to $500,000 a year in federal grants through the Violence Against Women Act.

DELAWARE: HIV testing eyed for accused sex offenders
June 5, 2008
Associated Press

DOVER — A Delaware House committee has released a bill that would strengthen HIV testing for accused sex offenders.

The bill requires an accused sex offender to submit to HIV testing within 48 hours of arrest, in response to a request from the alleged victim or a court order.

Defendants, including those whose initial tests were negative, also would have to submit to follow-up tests as deemed appropriate.

Unlike the existing law, the bill does not require that the state actually show some possibility that the virus may have been transmitted before requiring testing. The bill also authorizes testing around the time of arrest, instead of around the time of arraignment.

Supporters say passage of the bill would allow the state to continue to receive up to $500,000 a year in federal grants through the Violence Against Women Act.

Egypt: Appeals court upholds convictions of HIV-positive gay men

Egypt continues to criminalise people living with HIV, according to Human Rights Watch.

Police and guards beat several of the men in detention. A prosecutor told one of the men that he had tested positive for HIV by saying, “People like you should be burnt alive. You do not deserve to live.”

Nine HIV-positive men have been sent to prison so far this year, simply because they were HIV-positive – apparent ‘proof’ that they were in the “habitual practice of debauchery” – or gay – which is against Egyptian law.

Full story from pinknews.co.uk.

Egypt accused of “indifference to justice and public health” as HIV convictions upheld
By Staff Writer, PinkNews.co.uk
May 30, 2008

A Cairo appeals court has upheld the sentences handed down to five men jailed as part of a ‘crackdown’ on men who are HIV positive or living with AIDS.

Nine men have been sent to prison so far.

“To send these men to prison because of their HIV status is inhuman and unjust,” said Joe Amon, director of the HIV/AIDS programme at Human Rights Watch.

“Police, prosecutors, and doctors have already abused them and violated their most basic rights, and now fear has trumped justice in a court of law.”

As in previous cases, authorities forced the detainees to undergo HIV tests without their consent.

Four of the five convicted last month tested positive.

They were charged with the “habitual practice of debauchery,” a term which in Egyptian law includes consensual sexual acts between men.

These convictions occurred after police used information coerced from men already in detention, according to the Health and Human Rights Programme of the Cairo-based Egyptian Initiative for Personal Rights (EIPR).

A lawyer for the five men has claimed they were beaten by police who tried to get them to confess to homosexual acts.

More than 115 organisations that advocate human rights and the rights of people living with HIV/AIDS have protested to the government of Egypt.

The groups signing the letter represent 41 countries on six continents, among them Human Rights Watch and Amnesty.

In a letter to the Health Ministry and the Egyptian Doctors’ Syndicate, the groups said that doctors who helped interrogate men jailed on suspicion of being HIV-positive violated their own medical ethics.

EIPR reportedly found a document from the Ministry of Health and Population titled Questionnaire for Patients with HIV/AIDS in one of the men’s case files.

It includes ‘yes’ or ‘no’ questions that doctors from the ministry apparently use to interrogate people in the crackdown about whether they had sexual relations ‘with the other sex’ or ‘with the same sex,’ and ‘with one person’ or ‘with more than one person.’

Prosecutors included the men’s answers that they had relations with the same sex as evidence of their guilt.

Malcolm Smart, director of the Middle East and North Africa programme of Amnesty International, said:

“It is unacceptable for doctors to perform forcible HIV tests, or to examine people to ‘prove’ offences that should never be criminalised.

“Doctors who engage in or enable human rights abuses are violating their most elemental responsibilities.”

The current wave of arrests began in October 2007, when police intervened between two men having an argument in the street in central Cairo.

When one of them told the officers that he was HIV-positive, police immediately took them both to the Morality Police office and opened an investigation against them for homosexual conduct.

Police demanded the names of their friends and sexual contacts during interrogations.

The two men told lawyers that officers slapped and beat them for refusing to sign statements the police wrote for them.

The men spent four days in the Morality Police office handcuffed to an iron desk, and were left to sleep on the floor.

Police later subjected the two men to forensic anal examinations designed to “prove” that they had engaged in homosexual conduct.

Such forcible examinations to detect “evidence” of homosexuality are not only medically spurious, but also can amount to torture.

On January 14, 2008, a Cairo court sentenced four of those men to one-year prison terms on “debauchery” charges.

An appeals court upheld those sentences on February 2. The five defendants whose appeal was rejected this week were tried in March.

Authorities released three other men, who tested negative for HIV, without charge, after months in detention.

Police and guards beat several of the men in detention. A prosecutor told one of the men that he had tested positive for HIV by saying, “People like you should be burnt alive. You do not deserve to live.”

The prisoners who tested positive were chained to their beds in hospitals for months. After a local and international outcry, the Ministry of Health ordered the men unchained on February 25.

“Putting these men in prison serves neither justice nor public health,” Mr Amon said.

“The Egyptian government and the country’s medical profession must act to end this campaign of intolerance.”