US: Tennessee changes its criminal exposure law

News Release from CHLP: Exposure to HIV Removed from Offenses Requiring Sex Offender Registration in Tennessee

Exposure to HIV Removed from Offenses Requiring Sex Offender Registration in Tennessee

People living with HIV convicted of criminal exposure can request to terminate registration requirements with the Tennessee Bureau of Investigation

(NEW YORK) – On May 17, 2023, Tennessee Governor Bill Lee signed Senate Bill 0807/House Bill 832 into law after it passed the House and Senate in April. The law removes criminal exposure to HIV from the list of violent sexual offenses where a conviction required an individual to register as a sex offender for life. The law will go into effect on July 1, 2023. The bill was sponsored by Republican Rep. Bud Hulsey.

Tennessee is one of 30 states that have HIV-specific criminal laws. Under current Tennessee law, people living with HIV (PLHIV) or hepatitis B or C may still be charged and convicted of a felony for engaging in sexual activities without disclosing their status. While the amended law removes the heightened penalty for exposure, it does not remove aggravated prostitution from the list of violent sexual offenses requiring registration as a sex offender, so there remains a heightened penalty for PLHIV who know their status to engage in sex work.

“This change is a win for people living with HIV in Tennessee who are on the registry for life for an exposure conviction,” said CHLP Staff Attorney Jada Hicks. “Forcing people living with HIV to register as sex offenders for consensual sexual activity further criminalizes them and does nothing to enhance public safety. It is past time that stigmatizing HIV laws in Tennessee and other states catch up with the science of HIV transmission.”

As of April 2022, more than 70 people were on Tennessee’s registry for an HIV exposure charge. With the passage of SB 0807, anyone convicted of criminal exposure to HIV prior to July 1, 2023, may file a request to terminate registration requirements with the Tennessee Bureau of Investigation (TBI).

“The law that Governor Lee signed is about to change my life. For the past 16 years I’ve been depressed, looking over my shoulder, and just being scared of messing up,” said Tennessee advocate Lashanda Salinas. “This law is going to finally let me have my life back. I can see family, my cousins, and attend family reunions and participate in things.”

Republican Rep. Bob Ramsey, who sponsored the House version of the bill, argued that the laws needed to be updated “to look at this disease in a more realistic light and try to destigmatize it so that we could identify it and treat it, more so than trying to punish it.”

Those registered as sex offenders for a conviction of criminal exposure to HIV who wish to have their names removed can do so through a fingerprint-based state and federal criminal history check process to determine whether additional convictions exist for sexual offenses or violent sexual offenses. If the requirements of the amendment are satisfied, TBI will remove the individual from the registry and notify them that they are no longer required to comply with the registration requirements.

If the TBI determines that the person would be required to register even if the offense had been committed on or after July 1, 2023, or that they had been convicted of any additional sexual offenses or violent sexual offenses during the period of registration, then they must remain on the registry. Under the bill, the TBI’s decisions can be appealed, allowing for judicial review by the courts.

Uganda: Bill retaining death penalty for having gay sex when HIV positive sent back to President for signing

Uganda parliament passes harsh anti-LGBTQ bill mostly unchanged

KAMPALA, May 2 (Reuters) – Uganda’s parliament on Tuesday passed one of the world’s strictest anti-LGBTQ bills mostly unchanged, including provision for long jail terms and the death penalty, after the president requested some parts of the original legislation be toned down.

The new bill retains most of the harshest measures of the legislation adopted in March, which drew condemnation from the United States, European Union, United Nations and major corporations.

The provisions retained in the new bill allow for the death penalty in cases of so-called “aggravated homosexuality”, a term the government uses to describe actions including having gay sex when HIV-positive.

It allows a 20-year sentence for promoting homosexuality, which activists say could criminalise any advocacy for the rights of lesbian, gay, bisexual, transgender and queer citizens.

The legislation now heads back to President Yoweri Museveni, who can sign it, veto it or return it again to parliament.

Museveni, a vocal opponent of LGBTQ rights, has signalled he intends to sign the legislation once certain changes are made, including the addition of measures to “rehabilitate” gay people.

It was not immediately clear if the new bill satisfied his requests, and his office was not available for comment.

The legislation was amended to stipulate that merely identifying as LGBTQ is not a crime. It also revised a measure that obliged people to report homosexual activity to only require reporting when a child is involved.

‘USELESS’ AMENDMENT

Human rights activist Adrian Jjuuko dismissed the first amendment regarding LGBTQ identification as “useless”.

“In practice, the police doesn’t care about whether you’ve committed the act or not. They will arrest you for acting like gay, walking like gay,” he said.

Same-sex relations are already illegal in Uganda under a British colonial-era law. LGBTQ individuals routinely face arrest and harassment by law enforcement, and passage of the bill in March unleashed a wave of arrests, evictions and mob attacks, members of the community say.

Proponents of the bill say broad legislation is needed to counter what they allege, without evidence, are efforts by LGBTQ Ugandans to recruit children into homosexuality.

After a voice vote on Tuesday that followed less than a half-hour of debate, parliament speaker Anita Among urged lawmakers to remain defiant in the face of international criticism.

“Let’s protect Ugandans, let’s protect our values, our virtues,” Among said. “The Western world will not come and rule Uganda.”

Western governments suspended aid, imposed visa restrictions and curtailed security cooperation in response to another anti-LGBTQ law Museveni signed in 2014. That law was nullified within months by a domestic court on procedural grounds.

The U.S. government said last week that it was assessing the implications of the looming law for activities in Uganda under its flagship HIV/AIDS programme.

US: Bill to reform Indiana HIV criminalisation law fails to clear the state’s Senate

Reform of HIV Criminalization Laws Gaining Traction in Indiana but Not Yet There

By Rasha Aly

The latest attempt to modernize Indiana’s antiquated HIV criminalization law has failed. Though state House representatives passed Indiana House Bill 1198, it did not clear the state’s Senate.

However, this does not stop HIV Modernization Movement-Indiana (HMMI) and other advocates for people living with HIV (PLWH) from fighting for change. As Carrie Foote―who chairs HMMI―told TheBody, these laws “don’t reflect modern science.” Though that is undeniable, she and her colleagues will have to wait until next year’s legislative cycle to see if reform will pass.

Given bipartisan support for HIV criminalization reform―HB 1198’s co-authors are GOP state representatives Wendy McNamara (R-District 76), Edward Clere (R-District 73), Sharon Negele (R-District 13), and Ann Vermillion (R-District 31), with the sponsorship of Republican state Sen. Susan Glick (R-District 13)―their chances appear favorable.

Confronting Flawed HIV Criminalization Laws and Policies

As written, the bill would somewhat mitigate a law that Indiana officials passed in 1988. That law empowers police officers to upgrade the act of placing bodily fluids on another person to a more serious offense when HIV is involved. So, if a PLWH spits on another person, police officers automatically enhance the repercussions, elevating the minor charge to a felony charge. The repercussions become more severe if the person exposed to fluids is a law enforcement officer.

If HB 1198―which died in the state Senate on Thursday―had passed, officials would have done away with the heftier charge for PLWH who spit on other people or put any other bodily fluid on another person except for blood. The bill’s written text reads that it would remove “certain sentencing enhancements for battery and malicious mischief that relate to human immunodeficiency virus (HIV). Repeals certain offenses concerning the donation, sale, or transfer of blood or semen that contains HIV.”

In other words, PLWH would have faced the same charges as people who are seronegative if they spat on a police officer. Although HB 1198 would have eliminated felony enhancements for spit, Foote noted that officials retained the felony enhancements when the bodily fluid involved blood.

HB 1198 would also have changed the legal standard toward PLWH who donate blood. Under the current law, PLWH who donate blood can be charged with a felony offense, even if they have not yet been diagnosed and are, therefore, unaware of their serostatus. As McNamara has noted in her remarks on the matter, under the current law, over the past 20 years, police officers have charged 15 PLWH who donated blood―even though medical officials and blood-safety experts say current testing protocols screen blood and prevent any donations that contain the HIV virus from being used.

HIV Criminalization Laws Are Anti-Science and Likely Violate the ADA

As Memorial Sloan Kettering Cancer Center’s memo on blood draws notes, if blood samples test positive for illnesses such as syphilis, HIV, hepatitis, and the human T-lymphotropic virus, blood bank officials will not use the blood. Furthermore, someone from the organization will notify any donors whose blood tests positive to let them know about their STI status and also inform them that they can no longer donate blood.

Foote, who was diagnosed with HIV in 1988, notes that HIV criminalization laws benefit no one. Most of these laws were passed in the 1980s and 1990s when Americans, including the medical and scientific community until the mid-’80s, did not know much about how HIV was transmitted. “It was a totally different world in the 1980s,” she said. “There was a lot of fear, a lot of stigma.”

Since that time, the Office of Infectious Disease and HIV/AIDS Policy explains, it has become widely known that “people only transmit HIV if a person’s bloodstream comes in contact with certain fluids of a person living with HIV … through a mucous membrane (found in the rectum, vagina, mouth or tip of the penis), through open cuts or sores, or by direct injection (from a needle or syringe).”

So, “why are we stigmatizing these people with the virus?” Foote asked while pointing out that the state’s current law disregards scientific advancements and unfairly targets a historically marginalized population―PLWH.

Melissa Keyes, the executive director for In diana Disability Rights, agrees with this assessment. She wrote and submitted a letter to Indiana’s legislature explaining why the old-fashioned regulations are not needed. Keyes told TheBody that her organization is not a lobbying group and is neutral toward HB 1198, but she wrote its letter to educate lawmakers. She also noted that the state’s current HIV criminalization laws could violate the Americans with Disabilities Act.

As Indiana Disability Rights’ letter explained, “Laws criminalizing people living with HIV without basis in current objective scientific evidence risk violating the Americans with Disabilities Act (ADA). Title II of the ADA prohibits discrimination on the basis of disability by state and local governments. Indiana’s HIV criminalization laws based on this outdated science may constitute disability discrimination because the laws expressly treat people living with HIV differently from others engaging in the same behaviors.”

Attempts at HIV Decriminalization and Reform Are Not Over

Activists looking to improve the lives of PLWH have been trying since 2019 to revise Indiana’s outdated laws. They tried five times, including introducing two House bills in 2022. This year would be the sixth attempt.

Three of those five attempts failed outright, with the first endeavor at eliminating stigmatizing language (HB 1325 in 2019) not even making it out of a Senate committee. The second try―HB 1158, which would have repealed the notification requirement health officers must make if they believe someone has been exposed to HIV―also died, this time in 2022.

These notifications, Foote said, “create mistrust between doctors and patients.” Sharing one’s status is already difficult without facing the added stress that a doctor may be compelled to share that information with others―such as the police.

The third shot, HB 1032, wound its way through the state legislature in 2022 but did not make it to the Senate. If passed, it would have removed “sentencing enhancements for battery and malicious mischief … offenses concerning the donation, sale, or transfer of blood or semen that contains HIV.”

Foote says that when bills related to HIV have made progress, they have usually involved changing the bill’s language. For instance, in March 2020, the state General Assembly passed House Bill 1182, which focused on changing the text in Indiana’s public health code. The new law eliminated the word “carrier” when referring to PLWH and instructed lawmakers to use the phrase “individual with a communicable disease” instead. Additionally, state legislatures substituted the words “dangerous” with “risk” and “spread” with “transmission” and stopped referring to AIDS as HIV. This reference addressed the fact that AIDS is a condition that occurs when HIV is left untreated to the point that one’s immune system is entirely defenseless―and is not a communicable virus unto itself.

Additional progress occurred a year later when Gov. Eric Holcomb signed HB 1340 into law on April 29, 2021. This law concentrated on Indiana’s criminal code and replaced the phrase “dangerous communicable disease” with “serious communicable disease.”

Although HB 1198 did not pass, Foote said that she focuses on the fact that “We’re making progress along the way.”

“Changing laws takes a lot of time,” she continued. “We keep plugging away and coming back. That’s kind of the challenge of lawmaking.” And as time has passed, Foote says that the movement to reform HIV criminalization laws has garnered support from a growing list of organizations, including the Indiana Prosecuting Attorneys Council, Indiana Public Defender Council, Indiana State Medical Association, and the Indiana Minority Health Coalition. One reason why these groups have joined the cause is that Foote and likeminded allies constantly advocate for and educate others on the benefits of reform.

During the summer of 2022, HMMI conducted an interim study session focusing on educating lawmakers and various organizations about HIV transmission, including the fact that saliva does not transmit the virus. The Indiana Prosecuting Attorneys Council’s new support for HB 1198 signaled that the session was successful and that when the next HIV criminalization reform bill is introduced, it will have a greater chance of passing.

TheBody reached out to representatives McNamara, Clere, Negele, and Vermillion and Sen. Glick for comment on what inspired them to support HIV criminalization reform. None of the legislators responded to the request.

Kenya: People living with HIV will continue to lobby for change after disappointing High Court decision

“HIV is not a crime!” – People living with HIV disappointed by High Court judgment in HIV criminalisation case

31 March 2023 – Nairobi, Kenya
Communities of people living with and affected by HIV are disappointed with the Nairobi High Court’s decision dismissing Petition 447 of 2018.

This is a Petition was filed in December 2018, that asked that the Court declare section 26 of the Sexual Offences Act 3 of 2006 to be unconstitutional, void and invalid, and therefore struck from the law. This law criminalises deliberate transmission and or exposure of life-threatening sexually transmitted diseases, including HIV. The manner in which it has been interpreted has caused harm to persons living with HIV.

On 20 December 2022, Justice Ong’udi in the Nairobi High Court dismissed the
Petition, upholding the law’s constitutionality.

“We are disappointed with the judgment. Evidence from across the world shows us that criminalisation does not prevent HIV transmission. It makes effective HIV testing, treatment and disclosure harder and it increases stigma and discrimination”, said Carlin Kizito.

The communities were particularly concerned that the law leaves women living with HIV vulnerable to unjust prosecution. “Women are usually the first to find out about their
HIV status when they test during pregnancy. Because of this, the law makes them vulnerable to prosecution because they will be assumed to be the one who brought HIV into the relationship even when this is not the case,” said Jerop Limo, Executive Director of Adolescent and Youth Reproductive Health Program (AYARHEP)

Maurine Murenga of Lean on Me Foundation said that the State does not have the means to prove scientifically that one person necessarily transmitted HIV to another.
She said further, “Laws like this also spread misinformation about HIV. We’ve seen a number of women living with HIV being prosecuted for breastfeeding, yet breastfeeding guidelines state that breastfeeding is safe for women on HIV treatment. In fact, the World Health Organisation recommends it.” Maurine further added that “HIV is not a crime or a death sentence. With effective treatment, you can live a long and healthy life. Effective treatment also makes HIV undetectable and therefore untransmissible. Testing, treatment and support should be our focus, not punishment,”

Bozzi Ongala of the Adolescent and Youth Reproductive Health Program (AYARHEP) spoke on the need for using science to improve laws on HIV, “We urge that there be a progressive updates in the law in response to Scientific advancements on HIV research.”

“We, the networks of people living with HIV are encouraged that the Petitioners intend to appeal the judgment. We shall continue to lobby the government to change the law. On behalf of people living with HIV, we look forward to positive justice.” said Patricia Asero of ICW Kenya.
Signed:

Adolescent and Youth Reproductive Health Program (AYARHEP)
ICW Kenya
DACASA
Operation Hope Community Based Organization
Network of People Living with HIV (NEPHAK)
Lean on Me
MOYOTE
YPLUS Kenya

UK: New Crown Prosecution Service guidance on cases of alleged HIV transmission states that undetectable viral load stops HIV transmission

U=U acknowledged in prosecutors’ guidance in England and Wales

Krishen Samuel

3 April 2023

New Crown Prosecution Service guidance on cases of alleged HIV transmission state that an undetectable viral load stops HIV transmission. While the previous guidance stated that a person’s viral load at the time may provide a defence because it was believed to reduce transmission risk, it did not clearly set out the medical consensus is that this risk is zero. Cases should no longer be taken to court in England and Wales when a person has an undetectable viral load and is aware that Undetectable = Untransmittable (U=U).

In England, Wales and Northern Ireland, concealing or lying about living with HIV is not viewed as a sexual offence. This is unlike jurisdictions that have specific HIV non-disclosure laws. However, reckless or intentional transmission of an STI is viewed as a form of grievous bodily harm that can result in criminal charges.

Since 2019, the National AIDS Trust has been working with the Crown Prosecution Services (CPS) to update their guidance to accord with medical knowledge regarding the lack of risk if someone has an undetectable HIV viral load. The latest guidance issued last week clearly specifies the conditions that must be met for a charge of this nature to occur. Importantly, this only applies to sexual transmission and not to other modes, such as needle-sharing.

Prior to seeking out expert witnesses to rule out other sources of infection, and to confidently ascertain if one person transmitted HIV to another, prosecutors need to work through a series of conditions that need to be met for there to be sufficient evidence for a criminal charge. Gathering information for these conditions involves police investigation and will likely be intrusive for both the accuser and the accused.

To begin with, the person making the accusation must have an STI that amounts to a form of grievous bodily harm. While this harm need not be either permanent or dangerous, it should require treatment and have lasting consequences. Based on previous court judgements, the two STIs that qualify are HIV and herpes. Since 2001, there have been more than 30 people convicted of reckless HIV transmission, one of intentional HIV transmission and one of recklessly transmitting herpes in England and Wales. The rest of this article will focus on cases related to HIV.

The second condition is that the accused must have HIV at the time of having sex with the accuser. This can be proven in several ways, including via medical records, during interrogation or upon the discovery of medications such as antiretrovirals.

The next condition is that the accused knew they had HIV at the time of sex. If they were unaware of their status, and only diagnosed or became aware after having sex with the accuser, there would be insufficient evidence to meet this condition. If the couple had sex multiple times, and the accused was diagnosed or became aware during this period, it would similarly be difficult to prove that they knew their status at the time of transmission. Additionally, it could be the accuser who transmitted HIV to the accused, instead of the other way around. Thus, prosecutors need to carefully consider dates of diagnoses and other relevant evidence.

This condition is not completely straightforward: there is the possibility that the accused was not necessarily diagnosed with HIV but could otherwise have known they had it (through showing clear symptoms, or transmission to other sexual partners, for instance).

The fourth condition is central to building the prosecution’s case: the person living with HIV must have intended to transmit it or knew there was a risk and went on to have sex with the accuser anyway. Intentional cases of HIV transmission are few and far between.

For most cases – those related to reckless transmission – there are several important factors to consider. If the person living with HIV believed that they took reasonable steps to prevent transmission, such as using a condom or having an undetectable viral load, this could be a defence against this condition. However, as transmission can occur even in the instance that reasonable steps are taken, the central question is whether the accused believed they were putting the other person at a significant risk of HIV infection.

Here, a range of factors need to be considered, including what the accused was told about prevention, their level of infectiousness, their knowledge of how treatment works, whether they understood the information, if they ejaculated inside their partner and the number of sexual encounters. The possibility that inadequate information was provided by the medical practitioner also needs to be considered.

Importantly, the updated guidance specifically references an undetectable viral load. It acknowledges that a person living with HIV with a known undetectable viral load cannot be seen to recklessly transmit the virus if they were relying on their undetectable status as a means of preventing infection. Here, it is crucial to determine if the person living with HIV was undetectable at the time of sex, or whether they believed that they were, based on both viral load tests and consultations with their doctor.

While there is no legal obligation for the person living with HIV to inform their sexual partners of their HIV status, if the accuser consented to sex when they knew their partner had HIV, evidence of this knowledge is a defence against a reckless transmission charge.

The final condition is that the accused (and nobody else) in fact infected the accuser with HIV. The guidance acknowledges that this condition may be challenging to prove, especially in cases where a person has multiple sexual or needle-sharing partners. It is also intrusive and can require a great deal of investigation, time and expert evidence. Thus, this step should only be undertaken when the previous conditions are confidently met. If the prosecution cannot rule out the possibility that the infection came from another sexual or needle-sharing partner, there is insufficient evidence to meet this condition and therefore to prosecute, regardless of whether the preceding steps could be proven.

In the instance that expert evidence is required to prove that the accused infected the accuser, the guidance mentions methods such as phylogenetic analysis. It correctly states that this form of evidence may prove with certainty that the accused did not infect the accuser, but not that they did – as both people could have acquired the genetically similar virus from a third person. Additionally, recency assays can be used to determine whether an HIV infection is recent or longstanding, which can form part of the evidence. There is currently no objective scientific method to determine that one person transmitted HIV to another with complete certainty.

The National AIDS Trust has commended the updated guidance, as it is notable that it aligns with current scientific understanding. However, they also acknowledged that HIV criminalisation remains inherently problematic.

“We believe treating the reckless transmission of HIV as a criminal issue does more harm than good and does not result in reduced transmissions or a greater public understanding of HIV,” they say. “The updates to the guidance can go some way to ensure that cases are handled sensitively and consider the facts around HIV today. It’s essential that the CPS continue open dialogue with people living with HIV, community organisations and clinicians to ensure that the guidance reflects the most up to date evidence and that it is supporting good practice.”

References

The Crown Prosecution Service. Intentional or reckless sexual transmission of infection. Published online 29 March 2023.

Kazakhstan: 0.1% of people diagnosed with HIV in 2022 filed a report for alleged HIV transmission

Why Kazakhstan’s HIV-positive people do not go to the police?

Translated via Deepl.com – For article in Russian, please scroll down

Knowingly infecting another person with the immunodeficiency virus is a crime, but most criminal cases break up before trial.

Last year, 3,900 Kazakhstani people got the bad news of their HIV test result – 11.5% more than a year earlier (3,500).

Infecting another person with HIV is a criminal offence. Article 118 of Kazakhstan’s Criminal Code provides that if a person infects another person, he or she faces up to five years in prison. The only exception to this is if the HIV-positive person warned his or her partner and the partner volunteered to take the risk.

Law enforcement agencies record reports of those infected every year. But compared to the total annual statistics of new patients at AIDS centres, the number of those who report intentional infection to the police is negligible. In 2022, out of 3,900 infected people, only four, or 0.1%, filed a report. In previous years of the five-year period, such appeals were also few: from 5 to 12. This is data from the Committee on Legal Statistics and Special Accounts of the General Prosecutor’s Office of the Republic of Kazakhstan.

It is noteworthy that not every such criminal case goes to court. It is not uncommon for cases to be closed on various grounds. This is influenced by many factors, including the evidence base. For example, last year, law enforcement agencies had 6 criminal cases pending. Four of them were received in 2022, and the other two are the previous years’ cases. By the end of the year, only 2 cases were sent to court, and 4 were closed. According to the Legal Statistics Committee report, these 4 cases were terminated on one of the following grounds: lack of corpus delicti, expiration of the statute of limitations, death of a suspect, and “due to refusal to give consent of the prosecutor’s office to prosecute a person who has privileges or immunity from prosecution”. Such persons, according to Chapter 57 of the Criminal Procedure Code, include diplomatic officials, judges, prosecutors and members of parliament. Which of the listed grounds was applied to terminate specifically these criminal cases is not specified in the statistics.

The gender ratio of victims can also be traced in the reports. Most often, it is women who submit statements to the police. Cases of minors being infected with HIV are also recorded. In 2019, 2021 and 2022 the parents of 9 school, college and lyceum students who were infected with HIV contacted the police.

Почему ВИЧ-инфицированные казахстанцы не обращаются в полицию?

Осознанное заражение другого человека вирусом иммунодефицита – преступление, но основная часть уголовных дел распадается до суда.

В прошлом году плохие новости о своем результате ВИЧ-теста узнали 3,9 тыс. казахстанцев — на 11,5% больше, чем годом ранее (3,5 тыс.).

Заражение ВИЧ-инфекцией другого человека — уголовно наказуемое преступление. Статья 118 уголовного кодекса РК гласит: если человек с положительным статусом ВИЧ заразил другого, его могут лишить свободы на срок до пяти лет. Исключение сделают только в том случае, если ВИЧ-инфицированный предупредил партнера и тот добровольно пошел на риск.

Правоохранительные органы ежегодно фиксируют заявления зараженных. Но в сравнении с общей годовой статистикой новых пациентов СПИД-центров, число тех, кто обращается в полицию в связи с умышленным заражением, ничтожно мало. В 2022 году из 3,9 тыс. зараженных заявления написали всего 4 человека, или 0,1%. В предыдущие годы пятилетки таких обращений тоже было немного: от 5 до 12. Это данные комитета по правовой статистике и спецучетам Генпрокуратуры РК.

Примечательно, что далеко не каждое такое уголовное дело доходит до суда. Нередки случаи, когда дела закрывают по разным основаниям. На это влияет много факторов, в том числе доказательная база. Например, в прошлом году в производстве у правоохранительных органов находились 6 уголовных дел. Из них 4 поступили в 2022 году, ещёе 2 — переходящие дела предыдущих лет. До конца года в суд было направлено только 2 дела, а 4 — закрыты. По информации из отчета комитета правовой статистики, производство по этим 4 делам было прекращено по одному из следующих оснований: отсутствие состава преступления, истечение срока давности, смерть подозреваемого, а также “в связи с отказом в даче согласия прокуратуры на привлечение к уголовной ответственности лица, обладающего привилегиями или иммунитетом от уголовного преследования”. К числу таких лиц, согласно главе 57 Уголовно-процессуального кодекса РК, относятся дипломатические работники, судьи, прокуроры, депутаты парламента. Какое из перечисленных оснований было применено для прекращения конкретно этих уголовных дел, в статистике не указывается.

Можно проследить в отчетах и гендерное соотношение потерпевших. Чаще всего заявления в полицию пишут женщины. Фиксируются и случаи заражения ВИЧ-инфекцией несовершеннолетних. В 2019-м, 2021-м и 2022 году в полицию обратились родители 9 школьников, учащихся колледжей и лицеев, которые были заражены ВИЧ.

Mexico: Civil society urges Supreme Court to rule against the constitutionality of law penalising HIV or STI exposure

Changes to the Penal Code of Querétaro, would endorse “discrimination”.

Translated with www.DeepL.com, please scroll down for English version

Currently, the Penal Code of the State of Querétaro imposes penalties on anyone who “knowing that he or she suffers from a serious illness in an infectious period (…) puts the health of another in danger of contagion”.

Querétaro, 10 March 2023.- The Supreme Court of Justice of the Nation (SJCN) should be careful, since if it were to endorse the constitutionality of the “Garrote Law”, approved by the Congress of Querétaro during the pandemic, it would be endorsing discrimination, emphasised Luis Felipe Zamudio, director of the Centre for Guidance and Information on HIV-AIDS (COIVIHS).

This is in reference to article 127-BIS of the State Penal Code, which establishes penalties, comparable to the crime of injury, for anyone who “knowing that they suffer from a serious illness during an infectious period (…) puts the health of another at risk of contagion through sexual relations or any other transmissible means”.

In this sense, Zamudio warned that Querétaro, like other states in the country, “criminalises with this article in its Penal Code, those who have a sexually transmitted infection or live with HIV, since the Civil Registries also prevent access to marriage for those who live with this health condition.

For this reason, Zamudio stressed that civil organisations are keeping an eye on what happens in the SCJN, as the decision taken by its plenary will have repercussions for all states.

“It would be endorsing discrimination and would lead to a very serious problem. This would also be a catastrophe in terms of human rights, because then we would be talking about the fact that the Supreme Court does not have all the experience it should have, and that is what the ministers are there for,” he argued.
He also stressed that part of the political agenda of COIVIHS is to repeal this reform of the Penal Code and will ask local deputies who are on the Commission on Health, Vulnerable Groups or Human Rights, as well as the Human Rights Ombudsman (DDH), to make a proposal to reform local legislation.

It should be recalled that recently, Minister Yasmín Esquivel Mossa had planned to endorse the constitutionality of the “Garrote Law”, however, after receiving opinions from her colleagues on the Court, she announced that she was withdrawing her proposal.

Reformas al Código Penal de Querétaro, avalaría “discriminación”
Actualmente, el Código Penal del Estado de Querétaro impone penas a quien “sabiendo que padece una enfermedad grave en período infectante (…) ponga en peligro de contagio la salud de otro”.

Querétaro, 10 de marzo del 2023.- La Suprema Corte de Justicia de la Nación (SJCN) deberá de ser cuidadosa, ya que de avalar la constitucionalidad de la “La ley Garrote”, aprobada por el Congreso de Querétaro en la pandemia, estaría avalando la discriminación, enfatizó Luis Felipe Zamudio, director del Centro de Orientación e Información en VIH-Sida (COIVIHS).

Esto al hacer referencia al artículo 127-BIS del Código Penal del Estado y que establece imponer penas, equiparables al delito de lesiones, a quien “sabiendo que padece una enfermedad grave en periodo infectante (…) ponga en peligro de contagio la salud de otro, por relaciones sexuales u otro medio transmisible”.

En este sentido, Zamudio alertó que Querétaro, al igual que otros estados del país” criminaliza con este artículo en su Código Penal, a quien tiene una infección de transmisión sexual o vive con VIH, ya que, también se impide en los Registros Civiles el acceso al matrimonio, a quien vive con esta condición de salud.

Por ello, Zamudio recalcó que las organizaciones civiles están al pendiente de lo que ocurra en la SCJN, pues la decisión que tome su pleno, repercutirá para todos los estados.

“Estaría avalando la discriminación y se metería en un problema muy fuerte. Eso además sería una catástrofe en materia de derechos humanos, porque entonces hablaríamos de que la Suprema Corte no del todo, tiene toda la experiencia, que debería de tener y que para eso están ahí los ministros y las ministras”, argumentó.
Asimismo, subrayó que parte de la agenda política de COIVIHS, es lograr derogar esta reforma del Código Penal y se solicitará tanto a los diputados locales que estén en la Comisión de Salud, Grupos Vulnerables o de Derechos Humanos, al igual que a la Defensoría de los Derechos Humanos (DDH), para que realicen una propuesta y se logré reformar la legislación local.

Cabe recordar que, recientemente, la ministra Yasmín Esquivel Mossa tenía previsto avalar la constitucionalidad de la “Ley Garrote”, sin embargo, tras recibir opiniones de sus compañeros de la Corte, anunció que retiraba su propuesta.

Mexico: Nayarit congress repeals laws criminalising the transmission of HIV and other infectious diseases

Nayarit Congress approves reforms to combat discrimination against people living with HIV

Translated with Deepl.com. Please scroll down for article in Spanish

The Congress of Nayarit approved reforms to the State Penal Code so that people with HIV and diseases transmitted by intimate contact are not discriminated against and enjoy their right to the development of their personality and privacy.

The proposal was presented by the president of the 33rd Legislature, Congresswoman Alba Cristal Espinoza Peña, who endorsed the request of groups of people with these diseases.

“Society and legislators, this is the way to continue searching for a more inclusive and respectful Nayarit, it is once again the result of the combination of society and legislators, we have to break the stigmatising barriers”, declared Espinoza Peña.

By removing the crime of contagion from the Penal Code, this vulnerable sector will no longer have to suffer discrimination for having a sexually transmitted disease.

Nayarit joins the states of Aguascalientes, Jalisco, San Luis Potosí and Tabasco, where their Penal Codes do not provide for a specific crime for the transmission of sexually transmitted diseases through intimate relations; this does not mean that it will not be prosecuted, but that it will be subject to the crime of injury.

In this same session, the deputies reformed the Law on Women’s Access to a Life Free of Violence and the Penal Code, regulating violence by extension (vicarious violence) as a criminal offence, in order to inhibit violence against the partner or ex-partner through manipulation or affecting the children.

Aprueba Congreso de Nayarit reformas para combatir discriminación hacia personas con VIH

El Congreso de Nayarit aprobó reformas al Código Penal del Estado para que personas que padecen VIH y enfermedades transmitidas por contacto íntimo, no sean discriminadas y gocen su derecho al desarrollo de la personalidad e intimidad.

La propuesta fue presentada por la presidenta de la 33 Legislatura, diputada Alba Cristal Espinoza Peña, quien hizo suya la petición de colectivos de personas con estos padecimientos.

“Sociedad y legisladores, ese es el camino para poder seguir buscando un Nayarit más incluyente y más respetuoso, es una vez más el resultado de la combinación de la sociedad y legislador, tenemos que romper las barreras estigmatizantes”, declaró Espinoza Peña.

Al eliminar el delito de contagio del Código Penal, este sector vulnerable ya no tendrá que sufrir discriminación por contar con una enfermedad de transmisión sexual.

Nayarit se suma a los estados de Aguascalientes, Jalisco, San Luis Potosí y Tabasco, lugares donde sus Códigos Penales no tienen previsto un delito en particular para el contagio de enfermedades de transmisión por relaciones íntimas; ello no significa que no será perseguido, sino que se sujetará a través del delito de lesiones.

En esta misma Sesión las y los diputados reformaron la Ley de Acceso a las Mujeres a una Vida Libre de Violencia y el Código Penal, regulando la violencia por extensión (violencia vicaria) como delito penal, ello para inhibir la violencia contra la pareja o expareja a través de la manipulación o afectación de las y los hijos.

New principles lay out human rights-based approach to criminal law

New legal principles launched on International Women’s Day to advance decriminalization efforts

The International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR) officially launched a new set of expert jurist legal principles to guide the application of international human rights law to criminal law.

The ‘8 March principles’ as they are called lay out a human rights-based approach to laws criminalising conduct in relation to sex, drug use, HIV, sexual and reproductive health, homelessness and poverty.

Ian Seiderman, Law and Policy Director at ICJ said, “Criminal law is among the harshest of tools at the disposal of the State to exert control over individuals…as such, it ought to be a measure of last resort however, globally, there has been a growing trend towards overcriminalization.”

“We must acknowledge that these laws not only violate human rights, but the fundamental principles of criminal law themselves,” he said.

For Edwin Cameron, former South Africa Justice of the Constitutional Court and current Inspecting Judge for the South African Correctional Services, the principles are of immediate pertinence and use for judges, legislators, policymakers, civil society and academics. “The 8 March principles provide a clear, accessible and practical legal framework based on international criminal law and international human rights law,” he said.

The principles are the outcome of a 2018 workshop organized by UNAIDS and OHCHR along with the ICJ to discuss the role of jurists in addressing the harmful human rights impact of criminal laws. The meeting resulted in a call for a set of jurists’ principles to assist the courts, legislatures, advocates and prosecutors to address the detrimental human rights impact of such laws.

The principles, developed over five years, are based on feedback and reviews from a range of experts and stakeholders. They were finalized in 2022. Initially, the principles focused on the impact of criminal laws proscribing sexual and reproductive health and rights, consensual sexual activity, gender identity, gender expression, HIV non-disclosure, exposure and transmission, drug use and the possession of drugs for personal use. Later, based on the inputs of civil society and other stakeholders, criminalization linked to homelessness and poverty were also included.

Continued overuse of criminal law by governments and in some cases arbitrary and discriminatory criminal laws have led to a number of human rights violations. They also perpetuate stigma, harmful gender stereotypes and discrimination based on such grounds as gender or sexual orientation.

In 2023, twenty countries criminalize or otherwise prosecute transgender people, 67 countries still criminalize same-sex sexual activity, 115 report criminalizing drug use, more than 130 criminalize HIV exposure, non-disclosure and transmission and over 150 countries criminalize some aspect of sex work.

In the world of HIV, the abuse and misuse of criminal laws not only affects the right to health, but a multitude of rights including: to be free from discrimination, to housing, security of the person, movement, family, privacy and bodily autonomy, and in extreme cases the very right to life. In countries where sex work is criminalized, for example, sex workers are seven times more likely to be living with HIV than where it is partially legalized. To be criminalized can also mean being deprived of the protection of the law and law enforcement. And yet, criminalized communities, particularly women, are often more likely to need the very protection they are denied.

UNAIDS Deputy Executive Director for the Policy, Advocacy and Knowledge Branch, Christine Stegling said, “I welcome the fact that these principles are being launched on International Women’s Day (IWD), in recognition of the detrimental effects criminal law can, and too often does have on women in all their diversity.”

“We will not end AIDS as a public health threat as long as these pernicious laws remain,” she added. “These principles will be of great use to us and our partners in our endeavors.”

Also remarking on the significance of IWD, Volker Türk, High Commissioner for Human Rights, said, “Today is an opportunity for all of us to think about power and male dominated systems.”

His remarks ended with, “I am glad that you have done this work, we need to use it and we need to use it also in a much more political context when it comes precisely to counter these power dynamics.”

“Frankly we need to ask these questions and make sure that they are part and parcel going forward as to what human rights means,” he said.

In conclusion, Phelister Abdalla, President of the Global Network of Sex Work Projects, based in Kenya noted: “When sex work is criminalized it sends the message that sex workers can be abused…We are human beings and sex workers are entitled to all human rights.”

US: Bill put forward in Minnesota would repeal HIV criminalisation law

Democrats propose repealing law against knowingly exposing someone to HIV

Five Minnesota House Democrats are proposing eliminating the law that makes it a crime to knowingly expose someone to HIV or other sexually transmitted diseases.

The lawmakers’ bill (HF267) would repeal a 1995 law that allows prosecutors to charge someone who “knowingly harbors an infectious agent” and engages in behaviors that could transfer it to another person, such as through sex, sharing needles or by donating blood, sperm or organs. A person who takes steps to prevent transmission, as advised by health professionals, is not guilty of a crime under the law.

“This is part of a national — really international — movement to repeal laws that criminalize HIV,” said Rep. Leigh Finke, DFL-St. Paul. “These are old, outdated, homophobic statutes.”

Laws criminalizing the spread of HIV are not uncommon. Most were enacted at the height of the AIDS epidemic in the late 1980s and 1990s. Thirty-five states have laws that criminalize exposing others to HIV without their consent, according to the Centers for Disease Control and Prevention.

The laws were enacted before the development of antiretroviral treatments, which can reduce the presence of HIV so much that it is undetectable and untransmittable. Many laws don’t account for those developments or else reflect the limited understanding people had at the time of HIV transmission by criminalizing actions like spitting or oral sex.

The CDC as well as the Department of Justice advise that states repeal those laws or “modernize” them, noting that they have not been shown to be effective in curbing the spread of HIV. The laws may even be counterproductive by disincentivizing people from getting tested and knowing their status.

Minnesota’s current law largely conforms to what the CDC recommends, however. The law applies to all communicable diseases, not just HIV. The law does not apply to people who take preventative measures such as wearing a condom or taking a viral suppression medication. And the law does apply to acts that don’t lead to transmission like spitting or oral sex.

While criminal cases are rare, they do occur. In the past five years, four people have been charged in Minnesota courts with knowingly transferring a disease, one of whom was convicted.

In 2018, Simon Santiago Vicente was charged with two felonies for raping a 20-year-old woman in the restaurant he managed in Lino Lakes. The woman called 911 during the attack and dispatchers reported hearing her say “no” repeatedly.

Police arrived and found Vicente on top of the woman in one of the booths. After being arrested and taken to the Anoka County jail, Vicente reported that he is HIV positive and had not been taking medications to treat it since 2016.

Vicente ultimately pleaded guilty and was sentenced to 62 months in prison for criminal sexual conduct and 55 months for transferring a communicable disease. The sentences were concurrent, so Vicente won’t serve additional time in prison because he transferred HIV.

Asked about that case, Finke said: “I think convicting a rapist for rape is sufficient.”

“I don’t think there’s a meaningful reason for us to have statutes that criminalize a rapist because that rapist has HIV. He’s a rapist and should be criminalized for rape,” she said.

Even if the law were repealed, prosecutors may still be able to seek longer sentences in sexual assault cases that result in victims contracting a communicable disease by arguing it is an aggravating factor.

The bill is co-authored by Democratic Reps. Athena Hollins of St. Paul, Jessica Hanson of Burnsville, Alicia Kozlowski of Duluth and Brion Curran of Vadnais Heights.