Mexico: Green party in State of Mexico (Edomex) proposes law to increase prison sentences for “deliberate transmission” of communicable diseases, including HIV

Green Party seeks to establish prison sentences for deliberate HIV transmission

Automatic translation via Deepl.com. For article in Spanish, please scroll down.

The Green Ecologist Party in the LX Legislature, seeks to establish up to 4 years jail sentences for anyone who deliberately infects another person with a transmissable disease such as Acquired Immunodeficiency Syndrome (AIDS) and at this time of Covid-19 Coronavirus pandemic.

In this sense, the legislator María Luisa Mendoza Mondragón proposes a reform to the article 252 of the Penal Code of the State of Mexico, which already contemplates the crime of Danger of Infection, and which currently only reaches a privative sentence of up to two years; the initiative contemplates an aggravating circumstance of up to one third, if the active subject is a medical professional. In addition, the initiative, which is currently in committee, proposes to raise this type of action for malice from 60 to 140 units of measurement and to update it.

“The action taken by a sick person who knowingly infects another person must be considered a crime and therefore be punished with a more severe penalty considering the atypical and extraordinary circumstance we face,” said the deputy,

This parliamentary faction also wants to modify the terms of the prosecution of the crime by the state authorities so that the investigation is no longer only by denunciation of the person or persons affected, but rather by office with the intention of punishing whoever commits these acts that attempt against the life of the Mexicans.

This crime is defined in the local law as follows: “Whoever, knowing that he suffers from a serious illness during the infectious period, puts himself in danger of infecting another person, by any means of transmission”.

Partido Verde busca establecer penas de cárcel a quien deliberadamente contagie el SIDA

En este sentido, la legisladora María Luisa Mendoza Mondragón propone una reforma al artículo 252 del Código Penal del Estado de México, en el que ya se contempla el delito de Peligro de Contagio, y que actualmente solo alcanza una pena privativa de hasta dos años; la iniciativa contempla una agravante de hasta un tercio, si el sujeto activo es personal médico. Además, la iniciativa que se encuentra en comisiones, propone elevar de 60 a 140 unidades de medida y actualización este tipo de acciones por dolo.

“La acción desplegada por un sujeto enfermo que contagie a otro con conocimiento de causa tiene que ser considerado como delito y por ende ser castigado con una pena más grave por la circunstancia atípica y extraordinaria que enfrentamos”, dijo la diputada,

Esta fracción parlamentaria también quiere modificar los términos de la persecución del delito por parte de las autoridades estatales para que la investigación ya no sea solo por denuncia de la o las personas afectadas, sino que más bien sea por oficio con la intención de castigar a quien cometa estos actos que atentan contra la vida de los mexiquenses.

Este delito en la norma local se define así: “A quien sabiendo que padece una enfermedad grave en período infectante, ponga en peligro de contagio a otro, por cualquier medio de transmisión”.

Australia: Mandatory Disease Testing Bill is an “inappropriate criminalisation of a health issue”

ACON Condemns Introduction of Mandatory HIV Testing Laws in NSW

ACON has condemned the introduction of legislation by the NSW Government that will enforce mandatory testing of individuals whose bodily fluids come into contact with frontline workers.

On 11 November, the NSW Government introduced the Mandatory Disease Testing Bill (2020) into NSW Parliament.

ACON, along with many other expert and qualified stakeholders strongly oppose mandatory testing as it is ineffective in reducing harm or risk to people involved in potential exposure incidents. Further, such policy will cause different actual harm – particularly to marginalised communities – cost money and add to system pressures.

ACON CEO Nicolas Parkhill said: “We strongly believe in the importance of wellbeing and safety of frontline workers in NSW. We agree they must be protected as much as is reasonably possible in a high-level occupational risk environment.

“We believe that those putting forward this Bill to mandatorily test people are doing so as a well-meaning but misguided gesture of care for emergency services personnel.

“The concern for frontline workers is commendable and shared by all of us. However, this Bill does not afford real protections for our frontline workers – our current policies and procedures do, as evidenced by the fact that there has not been an incidence of occupational transmission of HIV for emergency service workers in more than 15 years.

“This Bill is not in line with evidence, not consistent with multiple state, national and international policies and guidelines, it exacerbates unfounded fear and it does nothing to educate and inform our workers about the real risks associated with bodily fluids,” Parkhill said.

“Our existing laws, policies and procedures work: there are other ways to reduce fear, risk and concern about this issue among frontline workers. We did not resort to mandatory testing in the height of the HIV/AIDS pandemic in the 1980s and 1990s, we certainly don’t need to now, noting the excellent progress we are making in driving down transmissions, and irrefutable evidence that effective treatment prevents onward transmission.

“NSW has every reason to feel incredibly proud of its efforts to contain epidemics and pandemics. We have seen this in NSW’s world-leading HIV response and, more recently, in the way NSW has responded to COVID-19. And we have done this by following the evidence, trusting people with information, and supporting frontline workers while they did their job – not by ignoring science, inciting fear and enacting policy that marginalises already vulnerable people,” Parkhill said.

“This Bill is the antithesis of evidence-based policy, and counter to our experience with pandemics and epidemics long brought under control by NSW using evidence, education, and a supportive approach. Force, criminalisation, misinformation, and fear is not the answer.”

Parkhill said the Bill, in its current form, presents significant concerns such as the lack of clarity in key areas and definitions, inappropriate age of application, and ambiguity around grounds for refusal or review.

“The Bill does not provide clarity on when the transfer of fluids from a third party is a ‘deliberate action’,” Parkhill said. “Medical procedures against the will of the person should not occur on the subjective opinion of a frontline worker and their senior officer, who are unlikely to understand the contemporary evidence around blood borne virus transmission.

“Extraordinarily, this Bill does not require medical advice of an infectious disease expert to be included in the application for a mandatory test,” Parkhill added.

Under the proposed legislation, a person who has appealed a decision made by a senior officer must still undergo venepuncture under threat of a fine or gaol. A person who is detained can have force used against them to ensure this occurs.

Parkhill said: “This is a denial natural justice, a violation of civil liberties and is unacceptable”.

The Bill will also apply to children aged between 14 and 18, which Parkhill labelled as “extremely worrying”.

“NSW reported only three infections among children in this age group in the previous year. On any assessment of risk, that minors are included in the Bill is an overreach and unconscionable.

“Mandatory testing orders for young people will further increase pressures on the Children’s Court and increase the distress of this vulnerable group of people.

“The handful of people likely to have any risk of HIV infections in this age group – and the likelihood these young people will be on treatment – represents perhaps the most egregious aspect of this Bill,” Parkhill said.

“We believe that this Bill is based on fear and ignorance, and flies in the face of decades of evidence-based practice and policy in relation to HIV and other blood borne virus transmission.

“The Bill will increase stigma and discrimination experienced by people living with HIV and other blood borne viruses.

“It also presents risks and harms for many thousands of marginalised people in this state – the overwhelming majority of whom pose no blood borne virus risk to our emergency workforce.

“Homeless people, people who experience mental illness, people struggling with addiction issues, Aboriginal and Torres Strait Islander people and others who are more likely to come into contact with frontline workers, particularly police officers – they also deserve our care and protection,” Parkhill said.

“Fundamentally this Bill is an inappropriate criminalisation of a health issue, one which has been dealt with through world-leading, evidence-based, bipartisan policy.

“Further work is needed on this Bill, and we strongly recommend that an Inquiry is formed to investigate the potential harm of the Bill before its passage through the Parliament,” Parkhill said.

Details of the Mandatory Disease Testing Bill (2020) can be found here.

Australia: “Coercive responses like forced testing and detention should only ever be a last resort”, if at all

Forced testing a last resort

With the COVID-19 pandemic persisting for much longer than expected, particularly in Victoria where rolling lockdowns have affected us all, it’s understandable that there might be calls for legislative reform. But I was saddened to read a call for implementation of widespread coercive testing under the Public Health and Wellbeing Act 2008 (PHW Act) (“Flattening the curve – Why the law should allow for compulsory testing in a pandemic”, LIJ October 2020).

Threats to public health do sometimes require drastic measures, but where human rights are impacted, the legal profession should be the first to question whether such measures are proportional and justified. Existing provisions within the PHW Act allow for testing orders in strictly limited circumstances – as is appropriate given the extreme intrusion into human rights
that those orders can represent. The history of the response to HIV in Australia has frequently seen calls for curtailment of individual rights in the pursuit of the public good, and the current PHW Act was developed in part through consultation with the HIV-affected community. Notwithstanding that, there are powers to detain and test people in the Act and, while rarely used, they can be highly coercive.

The case of Lam Kuoth is an example. Accused of placing a woman at risk of HIV, Mr Kuoth, a young Sudanese man, was placed in public health detention for almost 16 months before his trial. On appeal, the Court of Appeal accepted that that period “amount[ed] to a term of imprisonment”1 in a matter where, ultimately, only a community- based order was imposed.

There is a well-developed international discourse about the most effective ways to protect the health of communities while also safeguarding rights. The Ottawa Charter for Health Promotion is globally recognised as a foundational document.2 The Charter sets out a framework of developing healthy public policy, creating supportive environments, and empowering and educating individuals, as the foundation to effective public health responses.

Victorians have been tested in huge numbers (more than 2.8 million tests). Our second wave wasn’t due to low testing, but emerged from outbreaks in workplaces – aged-care homes, abattoirs, and quarantine hotels – where low-paid workers, often with limited education and training, have been on the frontline of the pandemic. Better safeguards for their health and employment would have limited or prevented those outbreaks without the need for forced testing. Coercive responses like forced testing and detention should only ever be a last resort, if they are used at all.

Paul Kidd, director, HIV Justice Network (Amsterdam), lawyer, Fitzroy Legal Service.

1. Kuoth v TheQueen[2010]VSCA103.
2. World Health Organisation,The Ottawa Charter for Health Promotion (21 November 1986) http://www.who.int/healthpromotion/ conferences/previous/ottawa/en/.

Uzbekistan: While people with HIV are still criminalised, there is hope for change with the the country’s entry into the UN Human Rights Council

Punishment for illness: why HIV is still a crime in Uzbekistan

Google translation. For article in Russian, please go to: https://uz.sputniknews.ru/analytics/20201028/15275804/Nakazanie-za-bolezn-pochemu-VICh-v-Uzbekistane-do-sikh-por-prestuplenie.html

Unfortunately, people living with HIV in Uzbekistan are victims of a discriminatory legal system. But there is hope that with the country’s entry into the UN Human Rights Council, the situation with obsolete norms will begin to change.

TASHKENT, October 28 – Sputnik, Anna Zhelikhovskaya. Shortly before the introduction of quarantine in Tashkent, an investigation began on the case of 52-year-old Natalya (name has been changed. – Editor’s note), a single mother who works as a hairdresser and colourist. The woman is a professional master all-rounder with over 20 years of experience in this field. She was charged under article 113, part 4 of the Criminal Code of the Republic of Uzbekistan “The spread of a venereal disease or HIV infection / AIDS” – knowingly endangering or getting infected with HIV / AIDS.

Positive result

In 2014, the List of professional activities prohibited for persons infected with the human immunodeficiency virus was updated. It included, in particular, the profession of a hairdresser associated with cutting and shaving. Natalya’s story began in 2017, when the director of the beauty salon where she worked sent employees to undergo, as it turned out, mandatory HIV testing.

“My test turned out to be positive. I realised that it was impossible, and retaken the analysis. I don’t know how I got through these days of waiting … The answer was again yes. The first thing I experienced was shock. Before that, I did not know anything about this disease I never came across him. Of course, the doctors talked to me, I registered at the Tashkent City AIDS Center, leaving all my data there, “the woman recalls.

She immediately started taking antiretroviral therapy (ART). This specific treatment helps patients block the virus, which means they do not put others at risk, live a full life, have a family and healthy children. For the next two years, she continued to work in the service industry, realising every day that management should know about her illness. Natalya explained the lack of a certificate to the director by the fact that she could not pay for the test at the moment.

“With the best of intentions, of course, he called the SES and asked if I could still not take the test, since I’m not a beautician, I don’t do tattoos and make-up, neither do manicure. I work with paints and cut my hair, mainly with a machine. replied that in this case, the test can not be taken, “- says the woman.

According to her, she did not report the test results to the director because she was afraid of losing her job. Raising a teenage child alone, a woman treasured her only source of income. In addition, Natalia had already learned enough about her illness and understood that with an undetectable viral load (the amount of virus in the blood), she was safe for others.

“Of course, I do not justify myself in any way. I had to report everything to the management and leave the profession. But I was scared, I was lost and did not understand what to do next, how to live now …”

In March 2020, a few days before quarantine, police officers came to the beauty salon with a purposeful check. According to the woman, one of them took her into a separate room and said that with such a diagnosis she was not allowed to work as a hairdresser. It was explained to Natalia’s colleagues and her management that the problem was in the medical book. At the same time, according to her, one of them reassured her, assuring her that there would be no trial, and she would limit herself only to a fine. However, an investigation soon began and the first court hearing was scheduled. Before the trial began, none of her colleagues and the director knew about the real reason for the audit.

“In a conversation with an operative, a doctor in the AIDS center, in the makhalla committee indirectly, not directly, but it was felt that I was suspected of indecent behaviour. To say that I was mentally and psychologically crushed is to say nothing. I am a believer, I walk to the church. For the trial, even my positive characteristics were provided from there, “recalls Natalya.

Today in the minds of people there is still a deep conviction that this is a disease of the marginalised. And if a woman has it revealed, then she will certainly receive the stigma of the fallen. Antiquated HIV legislation also hinders the fight against this stigma.

A new look at old laws

Uzbekistan’s Criminal Code was approved in 1994, and article 113 has its roots in the 1980s. Then the diagnosis was really a sentence, there was no treatment or diagnosis, and criminal prosecution was considered almost the only type of prevention. Several years ago, the World Health Organization officially recognised HIV as a chronic, not fatal, disease. People who regularly take therapy live long and healthy lives. Therefore, the list of permitted professions and the justice system for positive ones should be revised.

“To date, not only has the status of the disease changed, but there is also a lot of data that make it possible to unequivocally assert that criminal prosecution does not prevent the spread of the virus in any way. The existence of criminal liability for endangering and transmitting HIV, on the contrary, leads to the fact that people who practice risky behaviour, avoid testing. After all, while they do not know about their status, they are not subject to responsibility, “says lawyer Timur Abdullaev.

Natalia’s public defender at the trial was Evgenia Korotkova, coordinator of the Positive Women program “Ishonch va hayot”. She says that they monitored the list of prohibited professions for people with HIV in the CIS countries, and nowhere is the profession of a hairdresser.

“At the very first court session, we petitioned for the appointment of a forensic medical examination with the involvement of an experienced infectious disease expert working with HIV. The investigation established that the accused had zero viral load. danger. The indictment states that in order to prevent infection of third parties, she did not work with cutting tools, but used a typewriter. That is, by her actions, she tried to protect clients from HIV transmission, “says Evgenia.

In world medicine, the thesis “Undetectable = Untransmittable” (the principle “U = U”) has been finally proved. Experts and legislators of Uzbekistan have more than 10 years of their own observations and statistics, confirming international data. This already allows us to revise the list of prohibited professions for people with HIV, the relevant law and decriminalise Article 113.

You can already start by looking at the list of prohibited occupations that people with HIV can do.

“Amendments to this list can be achieved if the convict in question does not stop and continues to defend her rights up to the Constitutional Court and the UN Human Rights Committee,” the lawyer said.

According to him, the UN Special Rapporteur on the Right to Health and representatives of other structures of the organisation spoke about the harm of HIV criminalisation, as well as the fact that it violates a number of rights enshrined in international pacts ratified by Uzbekistan. However, so far no action has been taken in this direction.

According to human rights activists, there is a serious flaw in Article 113, which is found in almost all the criminal codes of the Central Asian countries: it contains the word “knowingly”.

“What is” knowingly “and how it relates to intent, the Code itself does not explain. As a result, such a” trifle “becomes a secondary circumstance. Whether intent or not can affect only the severity of punishment, but responsibility does not cancel out. depending on whether a person wanted to infect someone with HIV or not, the article “shines” in any case, “Timur Abdullaev explained.

Usually such inaccuracies in the legislation are eliminated either by bylaws or by Resolutions of the Plenum. But with regard to Art. 113 there is neither one nor the other. There are only Criminal and Criminal Procedure Codes, and everything else is at the discretion of the court. If the judge does not understand what HIV is and how it is transmitted, then the defendant will have a difficult time.

Moreover, even among scientists there is no consensus on whether the presence of intent is mandatory for the onset of responsibility. If so, what should this intent be? After all, it can be direct – “malicious” or indirect.

We need to talk about it

Evgenia also talks about the low level of awareness of representatives of law enforcement agencies and the judiciary about HIV transmission and treatment. She is convinced that to a greater extent this is what influences the sentencing. In her opinion, the application of modern scientific evidence in criminal cases can limit unfair prosecutions and acts of justice.

“When making a diagnosis, doctors do not tell patients about the ‘N = N’ strategy, but take a receipt of criminal responsibility for infecting others with them. Also, activists have difficulty access to the accused, and most lawyers have a prejudiced attitude towards such clients,” the human rights activist adds …

According to the law of Uzbekistan “On the protection of the health of citizens”, the patient has the right not only to keep confidential information about the diagnosis, but also to choose the persons to whom information about the patient’s health can be transferred in the interests of the patient.

Natalia and HIV activists ask themselves: where did the law enforcement agencies get the information about her diagnosis and why did they come to work, inflicting severe moral and psychological damage on the woman? Thus exposing her to the risk of disclosing the diagnosis. At the request of the editorial office, this question was answered at the Republican AIDS Center. We publish the text in full.

The Republican Council for the Coordination of Citizens’ Self-Government, the Committee on Religious Affairs and the Youth Union of Uzbekistan, the Tashkent AIDS Center provided information to the Criminal Investigation Department of the Ministry of Internal Affairs on February 10, 2020 at the request of citizens who are diagnosed with HIV and who work in salons of personal services. At the same time, the center’s specialists ensure the confidentiality of information about people living with HIV and medical secrets in accordance with Article 45 of the Law “On the Protection of Citizens’ Health” dated August 29, 1996, “the letter says. It was not possible to drop the charges against Natalia. But she escaped real imprisonment and received a two-year suspended sentence.

“A large role in our case was played by the competence and interest in the details of the case, as well as in the topic of HIV and the ways of its transmission on the part of the judge and the prosecutor. But this is more a special case than a rule. The judge gave recommendations to lobby for a revision of the list of prohibited professions for HIV – positive, to exclude the position of a hairdresser from it, “says Evgenia Korotkova.

The media should also participate in the formation of a competent public opinion about HIV, but today this topic is almost never raised in the press, and specialised structures do not interact well with journalists.

Now Natalia has no official job. Several times the makhalla provided her with material assistance, both in connection with the pandemic and with her current situation. But there is no regular, even minimal, earnings.

On October 15, 2020, Uzbekistan adopted a law “On the Rights of Persons with Disabilities.” It lists the basic principles that ensure their rights and protection against discrimination on health grounds. People living with HIV should have similar guarantees. Uzbekistan recently joined the UN Human Rights Council. Perhaps this status will speed up the revision of Article 113 of the Criminal Code. Lawyers are convinced that the punishment should follow exclusively for willful malicious infection or its attempt. Reforms in this area will significantly strengthen the position of the republic in the field of human rights protection.

Jordan: Health professionals mandated to report individual’s HIV status to the government

Foreigners Living with HIV in Jordan Face an Impossible Choice

Government Mandates Reporting HIV Status, Deports People Living with HIV

In Jordan, medical professionals and health facilities are mandated to report an individual’s HIV status to the government. Foreign nationals found to be HIV-positive are summarily deported regardless of the consequences to their health and safety and banned for life from returning.

Earlier this year, an Iraqi gay man living with HIV fled to Jordan to escape persecution he faced at home for being gay, yet he could not access HIV treatment without being immediately deported. When his health rapidly deteriorated, he could not seek medical attention for fear of being deported. Whatever decision he made would threaten his life.

Jordan also obliges nationals to undergo HIV testing when seeking employment in the public sector and for non-nationals obtaining work permits, and denies them jobs if they are HIV-positive. It also requires testing for non-nationals renewing residency permits. For LGBT people living with HIV, the stigma and discrimination by medical professionals and employers often bars them from accessing basic rights, without any legal recourse.

Abdallah Hanatleh, executive director of “Sawaed,” an Amman-based organization that facilitates access to HIV treatment, told Human Rights Watch that his organization documents dozens of deportations based on HIV status annually.

Jordan is not alone in this abusive practice. Gulf states including Saudi Arabia and the United Arab Emirates also deport people found to be HIV-positive without any provision for continuity of care. Worse yet, in Jordan, as in Saudi Arabia and the UAE, HIV-positive foreign nationals in the criminal justice system are denied adequate access to treatment in prison. “They are placed in solitary confinement, further isolating and stigmatizing them,” Hanatleh said.

International law prohibits deportations based solely on HIV status. Jordan should explicitly ban discrimination based on HIV status and stop deporting HIV-positive individuals under the principle of non-refoulement. This principle applies to asylum seekers and refugees, and for people with HIV, it means that governments are prohibited from returning them — depending on how advanced the disease — to places where they do not have adequate access to medical care and social support, or where they risk being subjected to persecution or degrading treatment on account of their HIV status.

Jordan should not mandate reporting of HIV status and employers should not be requiring HIV testing in the first place. People living with HIV should never be forced to forego lifesaving treatment in order to avoid deportation to danger.

Uruguay: Feminist organisation opposes amendment to penal code that would imprison citizens who do not comply with health measures

MYSU (Women and Health in Uruguay) opposes a project that raises imprisonment for those who violate health provisions in the face of the coronavirus

Google translation, for original article in Spanish please scroll down.

MYSU (Women and Health in Uruguay) opposes a project that raises imprisonment for those who violate health provisions in the face of the coronavirus

A delegation of Women and Health in Uruguay (MYSU) participated in the Senate Constitution and Legislation Commission to express their opposition to the bill that penalizes those who violate health provisions in the face of the coronavirus, presented in March by two deputies of the National Party . The feminist organization, whose mission is the promotion and defense of sexual and reproductive rights, has a field of practice specifically associated with identifying advances, obstacles and gaps in laws and public policies.

The delegation that appeared in Parliament was made up of Lilián Abracinskas, director of MYSU, Santiago Puyol, head of the Organization’s Sexual and Reproductive Health Policy Observatory, and Bárbara Strauss, head of communication, who presented their position against the amendment of article 224 of the Penal Code. The new wording proposes that “whoever, through violation of sanitary provisions issued and published by the competent authority in order to avoid the introduction into the country or the spread of an epidemic or contagious disease of any nature, puts human or animal health in actual danger, will be punished with three to twenty-four months in prison.The application of the maximum of the aforementioned penalty will be especially justified when the fact is a health emergency declared by the competent authorities ”.

Abracinskas said that although this project has the approval of the Chamber of Deputies, the proposal “did not have a treatment in which organized citizenship could be issued.”

Part of her argumentation was based on the Universal Declaration of Bioethics and Human Rights (UNESCO 2005), which provides a universal framework of principles and procedures that serve as a guide for states in the formulation of legislation, policies and other instruments in the field of bioethics. She particularly pointed out Article 27, which warns that “if limitations must be imposed with laws relating to public security and the rights and freedoms of others must be safeguarded, said law must be compatible with international human rights law.” She added that Uruguayan legislation includes these principles in Law 18,335 on the rights and obligations of patients and users.

For Abracinskas, the current wording of article 224 is already a regulatory framework that allows health authorities to act in the face of the pandemic. “The proposal to modify article 224, which aims to prevent the violation of sanitary provisions in order to prevent the introduction or spread in the country of epidemic or contagious diseases, in its modification of 2001 stipulates the crime of harm, in order to make it applicable. Insisting on modifying the crime of harm, again, for that of danger, generates uncertainties and a feeling of vulnerability, ”he said.

“What would be the legal asset that seeks to protect itself with this modification proposal?” She asked. And she added: “It would not seem to be the health of the person or the guarantees of their rights the center of concern, since people could be accused of committing a crime in the face of sanitary provisions that could become arbitrary or based on other interests that are not there to preserve the health of the population. Or, even from good intentions, to charge crimes without knowing exactly what the affected legal interest is ”.

For MYSU, the situation of the pandemic “has plunged us into profound perplexity”, but “our country is going through the situation without having the adverse impacts of neighbouring countries or other regions.” Although they welcomed the treatment of the pandemic by the authorities, they explained that they appeared before the Commission to “draw attention” since, “in the face of a temporary situation, modifying the Penal Code to apply a prison sentence for non-compliance with measures related to health care exceeds the context and exposes us to a multiplicity of situations that can violate human rights ”.

According to Puyol, “Uruguay has undergone a transition in recent decades towards a health model focused on promotion and prevention, with people as the focus.” For this reason, they consider “contradictory to run the axis of people’s health to pass to a sentence in case of not obeying health decrees”. “The State must guarantee the conditions for the prevention of contagions instead of criminalizing its citizens if they do not comply with the measures,” he said.

For Puyol, this measure could have an impact on different areas of public health. He gave as an example the treatment of gender violence. “What consequences would the implementation of this reformed article have in the face of the declaration of national emergency for gender-based violence that was carried out in December of last year? Has it been considered how this modification would be articulated with the non-compliance with the precautionary measures that protect the victims?

He also questioned the scope of this measure on other issues, such as sexually transmitted infections: “What happens in situations that happen in privacy, such as refusing to use preventive methods, which can generate sexually transmitted infections, including HIV ? Will people be penalized for not using a barrier method to prevent the transmission of a virus that is a global pandemic?

According to data from the observatory that Puyol directs, 33% of men (one in three) are willing not to use a condom in a sexual relationship with someone who does not want to use it. However, 63% never had an HIV test. “What would be done in these cases?” He asked.

The other example he gave was associated with the prevention of dengue: “Will people who have containers with stagnant water in their houses go to jail?”

He also pointed out that the government contradicts itself, since the explanation given by Luis Lacalle Pou, President of the Republic, for not declaring the mandatory quarantine in the face of the pandemic was “not to force what is not going to be fulfilled” and “not to become a Police state ”. “We are struck by the fact that, given the orientation of government policy, in whose measures none makes reference to criminal sanction, the Legislature and its own political force go in the opposite direction,” he explained.

For Strauss, “Uruguay has been an example for the countries of the region both in the way in which the spread of the virus has been contained and in its approach, based on what President Lacalle Pou has called” responsible freedom.

He pointed out that “the model that seems to demonstrate its efficiency and effectiveness has been able to combine respect for individual freedoms with care measures that made it possible to control the circulation of the virus and reduce the impacts of the pandemic.” He stressed that, “as an Argentine resident in Uruguay,” the neighboring country looks closely at the steps followed on this side of the river.

“The reason why legislators who make up the government coalition decide to opt for the modification of the Penal Code with a punitive approach is not understood then. The Executive Power has promoted, in public interviews given to international media, an approach that prioritizes freedom and appeals to citizen responsibility. Decisions that go in the opposite direction to this bill and, particularly, the grounds contained in its explanatory memorandum ”, he expressed.

In this sense, “and without ignoring the legitimacy and autonomy of the Legislative Power in its initiatives,” he said that “it is striking that the same coalition emits contradictory messages.” “We are concerned as an organization that this generates confusion among citizens and undesirable collateral effects,” he added.

He expressed concern that “the amendment of the Penal Code is used, imprisoning those who do not comply with the measures due to the health emergency” and also that “the arguments are not supported by scientific evidence.” “This has been the pillar of the government’s action based on the recommendations of the Honorary Scientific Committee, which has intervened to ensure the prevention of the circulation of the virus,” he said.

For the closing, Abracinskas returned to take the floor and resumed her concern about “these contradictory positions.”

She also emphasized “two substantive issues.” On the one hand, she stressed that modifying the Penal Code is “a long-term solution to a circumstantial problem by definition. “This type of legislative changes with lasting effect cannot be subject to the contingencies of a health emergency with particular characteristics,” she explained.

On the other hand, she questioned: “If it is not guaranteed that the population has sufficient and quality information to comply with the measures imposed on it for the prevention of any epidemic or any health emergency, how will it be ensured that the rights of the citizens are not violated by these decisions? How to ensure that different authorities can issue relevant sanitary measures? Will broad impact dissemination campaigns be carried out to ensure that the measures to be complied with are effectively known? Will this punitive amendment be widely publicized if approved? Who would make it public?

According to the director of MYSU, “it is necessary that the institutions of the State, both the Executive Power and the Parliament, issue clear signals and messages to the population, based on arguments and evidence that reassure and provide security.” She said that, “otherwise, it is fertile ground for worrying reactions to emerge.” In this sense, “we must avoid the proliferation of conspiracy theories and the circulation of false news that, taking advantage of the general confusion, achieve a destabilization of our democratic society.”

She conveyed the concern of the organization she represents, since they verified “the presence in the region of groups that support this type of theories and communicational forms that contribute to the general confusion”. “Given the risk that this presupposes, it is necessary to have clear minds, security in decision-makers, confidence in the measures, personal freedom and the promotion of an awareness of collective well-being. We do not need confusion, irrationality, perplexity or fear, but guaranteeing messages and joining efforts to reassure the population and allow the critical capacity to identify differences ”, he expressed.

That no final sanction be given

MYSU does not have an alternative text to contribute to the change to Article 224. Their suggestion is that the Senate not give it the final sanction it needs to be law. “What we recommend is that, in the event of an exacerbation of the pandemic, a permanent link be maintained with the Executive to provide the regulations that can be resolved by other means, other than the modification of the Penal Code.” For the organization, actions that “give security to the entire population, promoting awareness and not incarceration” should be promoted.

MYSU se opone al proyecto que plantea encarcelamiento para quienes violen las disposiciones sanitarias ante el coronavirus

Una delegación de Mujer y Salud en Uruguay (MYSU) participó en la Comisión de Constitución y Legislación del Senado para manifestar su oposición al proyecto de ley que penaliza a quienes violen las disposiciones sanitarias ante el coronavirus, presentado en marzo por dos diputados del Partido Nacional. La organización feminista, cuya misión es la promoción y defensa de los derechos sexuales y reproductivos, tiene un campo de práctica asociado específicamente a identificar avances, obstáculos y vacíos en leyes y políticas públicas.

La delegación que compareció en el Parlamento estuvo integrada por Lilián Abracinskas, directora de MYSU, Santiago Puyol, responsable del Observatorio de Políticas en Salud Sexual y Reproductiva de la organización, y Bárbara Strauss, responsable de comunicación, quienes expusieron su posicionamiento contrario a la modificación del artículo 224 del Código Penal. La nueva redacción propone que “el que mediante violación de disposiciones sanitarias dictadas y publicadas por la autoridad competente en aras de evitar la introducción al país o propagación de una enfermedad epidémica o contagiosa de cualquier naturaleza, pusiere en peligro efectivo la salud humana o animal, será castigado con tres a veinticuatro meses de prisión. La aplicación del máximo de la pena referida anteriormente estará especialmente justificada cuando el hecho se suscitare declarada una emergencia sanitaria por las autoridades competentes”.

Abracinskas manifestó que si bien este proyecto cuenta con la media sanción de la Cámara de Diputados, la propuesta “no tuvo un tratamiento en el que la ciudadanía organizada pudiese expedirse”.

Parte de su argumentación estuvo basada en la Declaración Universal de Bioética y Derechos Humanos (UNESCO 2005), que proporciona un marco universal de principios y procedimientos que sirven de guía a los estados en la formulación de legislaciones, políticas y otros instrumentos en el ámbito de la bioética. Señaló particularmente el artículo 27, que advierte que “si hay que imponer limitaciones con leyes relativas a la seguridad pública y salvaguardar los derechos y libertades de los demás, dicha ley deberá ser compatible con el derecho internacional relativo a los derechos humanos”. Agregó que la legislación uruguaya recoge estos principios en la Ley 18.335 sobre los derechos y obligaciones de pacientes y usuarios.

Para Abracinskas, la redacción actual del artículo 224 ya es un marco normativo que permite a las autoridades sanitarias actuar ante la pandemia. “La propuesta de modificar el artículo 224, que apunta a evitar que se violen disposiciones sanitarias con el fin de impedir la introducción o la propagación en el país de enfermedades epidémicas o contagiosas, en su modificación de 2001 estipula el delito de daño, para poder hacerlo aplicable. Insistir con modificar el delito de daño, nuevamente, por el de peligro, genera incertidumbres y sensación de desprotección”, señaló.

“¿Cuál sería el bien jurídico que busca protegerse con esta propuesta de modificación?”, se preguntó. Y agregó: “No parecería ser la salud de la persona ni las garantías de sus derechos el centro de la preocupación, dado que las personas podrían ser acusadas de cometer delito ante disposiciones sanitarias que podrían llegar a ser arbitrarias o basadas en otros intereses que no fuese preservar la salud de la población. O, aún desde buenas intenciones, imputar delitos sin saber exactamente cuál es el bien jurídico afectado”.

Para MYSU, la situación de la pandemia “nos ha sumido en una profunda perplejidad”, pero “nuestro país transita por la situación sin tener los impactos adversos de países vecinos o de otras regiones”. Si bien saludaron el tratamiento de la pandemia por parte de las autoridades, explicaron que comparecían ante la Comisión para “llamar la atención” ya que, “frente a una situación coyuntural, modificar el Código Penal para aplicar pena de cárcel ante el incumplimiento de medidas sanitarias excede el contexto y nos expone a multiplicidad de situaciones que pueden vulnerar los derechos humanos”.

Según Puyol, “Uruguay ha atravesado en las últimas décadas una transición hacia un modelo de salud centrado en la promoción y prevención, con las personas como foco”. Por esto consideran “contradictorio correr el eje de la salud de las personas para pasar a una condena en caso de no obedecer decretos sanitarios”. “El Estado debe garantizar las condiciones para la prevención de los contagios en lugar de criminalizar a su ciudadanía si no cumple con las medidas”, expresó.

Para Puyol esta medida podría tener impacto en distintos ámbitos de la salud de la ciudadanía. Puso como ejemplo el tratamiento de la violencia de género. “¿Qué consecuencias tendría la implementación de este artículo reformado frente a la declaración de emergencia nacional por violencia basada en género que se realizó en diciembre del año pasado? ¿Se ha considerado cómo se articularía esta modificación con el no cumplimento de las medidas cautelares que protegen a las víctimas?”.

También cuestionó el alcance de esta medida en otras cuestiones, como las infecciones de transmisión sexual: “¿Qué pasa frente a situaciones que suceden en la intimidad, como negarse a utilizar métodos preventivos, lo que puede generar infecciones de transmisión sexual, incluyendo el VIH? ¿Se penalizará a las personas por no usar un método de barrera para evitar la transmisión de un virus que es pandemia mundial?”.

Según los datos del observatorio que Puyol dirige, 33% de varones (uno de cada tres) está dispuesto a no utilizar el preservativo en una relación sexual con alguien que no quiere usarlo. Sin embargo, 63% nunca se realizó el test de VIH. “¿Qué se haría en estos casos?”, preguntó.

El otro ejemplo que puso estuvo asociado a la prevención del dengue: “¿Irán presas personas que tengan recipientes con agua estancada en sus casas?”.

Señaló también que el gobierno se contradice, ya que la explicación que dio Luis Lacalle Pou, presidente de la República, para no declarar la cuarentena obligatoria ante la pandemia fue “no obligar aquello que no se va a cumplir” y “no convertirse en un Estado policial”. “Nos llama la atención que frente a la orientación de la política de gobierno, en cuyas medidas ninguna hace referencia a la sanción penal, el Legislativo y su propia fuerza política vayan en sentido contrario”, explicó.

Para Strauss, “Uruguay ha resultado ejemplo para los países de la región tanto por la forma en que se ha logrado contener el avance del virus como por su enfoque, basado en lo que el presidente Lacalle Pou ha denominado la “libertad responsable”.

Señaló que “el modelo que parece demostrar su eficiencia y eficacia ha podido conjugar el respeto a las libertades individuales con medidas de cuidado que permitieron controlar la circulación del virus y reducir los impactos de la pandemia”. Resaltó que, “como argentina residente en Uruguay”, el vecino país mira con atención los pasos seguidos de este lado del río.

“No se entiende entonces la razón por la cual legisladores que integran la coalición de gobierno deciden optar por la modificación del Código Penal con un enfoque punitivista. El Poder Ejecutivo ha promovido, en entrevistas públicas brindadas a medios internacionales, un abordaje que prioriza la libertad y apela a la responsabilidad ciudadana. Decisiones que van en sentido opuesto a este proyecto de ley y, particularmente, los fundamentos que contiene su exposición de motivos”, expresó.

En este sentido, “y sin desconocer la legitimidad y autonomía del Poder Legislativo en sus iniciativas”, dijo que “resulta llamativo que la misma coalición emita mensajes contradictorios”. “Nos preocupa como organización que esto genere confusión en la ciudadanía y efectos colaterales indeseables”, agregó.

Manifestó preocupación por que “se recurra a la modificación del Código Penal encarcelando a quien no cumpla con las medidas por la emergencia sanitaria” y también por que “los argumentos no se sostengan en evidencia científica”. “Este ha sido el pilar de la actuación del gobierno en base a las recomendaciones del Comité Científico Honorario, que ha intervenido para asegurar la prevención de la circulación del virus”, señaló.

Para el cierre, Abracinskas volvió a tomar la palabra y retomó la inquietud sobre “estas posturas contradictorias”.

Hizo énfasis además en “dos cuestiones sustantivas”. Por un lado, destacó que modificar el Código Penal supone “una solución de largo plazo para un problema circunstancial por definición”. “Este tipo de cambios legislativos con efecto duradero no pueden estar sujetos a las contingencias de una emergencia sanitaria con características particulares”, explicó.

Por otro lado, cuestionó: “Si no se garantiza que la población cuente con información suficiente y de calidad para cumplir con las medidas que se le imponen para la prevención de cualquier epidemia o cualquier emergencia sanitaria, ¿cómo se asegurará que los derechos de la ciudadanía no sean violentados por estas decisiones? ¿Cómo asegurar que distintas autoridades puedan emitir medidas sanitarias pertinentes? ¿Se realizarán campañas de difusión de amplio impacto para asegurar que se conozcan efectivamente las medidas que se deben cumplir? ¿Se difundirá ampliamente esta modificación punitiva en caso de ser aprobada? ¿Quién lo haría público?”.

Según señaló la directora de MYSU, “es necesario que las instituciones del Estado, tanto del Poder Ejecutivo como del Parlamento, emitan señales y mensajes claros a la población, basados en argumentos y evidencias que tranquilicen y den seguridad”. Dijo que, “de lo contrario, es tierra fértil para que surjan reacciones preocupantes”. En este sentido, “debemos evitar la proliferación de teorías conspirativas y la circulación de noticias falsas que, aprovechando la confusión general, logren una desestabilización de nuestra sociedad democrática”.

Transmitió la preocupación de la organización a la que representa, ya que constataron “la presencia en la región de grupos que sustentan este tipo de teorías y formas comunicacionales que aportan a la confusión general”. “Ante el riesgo que esto presupone, se necesita tener mentes claras, seguridad en los decisores, confianza en las medidas, libertad personal y promoción de una conciencia de bienestar colectivo. No necesitamos confusión, irracionalidad, perplejidades ni miedos, sino mensajes garantizadores y aunar los esfuerzos para tranquilizar a la población y permitir la capacidad crítica para identificar las diferencias”, expresó.

Que no se dé sanción final

MYSU no tiene un texto alternativo para aportar al cambio del artículo 224. Su sugerencia es que el Senado no le dé la sanción final que necesita para ser ley. “Lo que recomendamos es que, en caso de agudización de la pandemia, se mantenga un vínculo permanente con el Ejecutivo para aportar la normativa que pueda resolver por otras vías, que no sea la modificación del Código Penal”. Para la organización, se deben promover acciones que “den seguridad a toda la población, promoviendo conciencia y no encarcelamientos”.

HIV criminalisation presentations and posters at AIDS2020

There were a number of presentations, mostly e-posters, at AIDS2020:Virtual that focused on HIV criminalisation. We have compiled them all below given that access was (and remains) limited.

The only oral presentations specifically covering HIV criminalisation were delivered by HIV Justice Network’s Executive Director, Edwin J Bernard, presenting in three pre-recorded video sessions.

Below you will find the presentation ‘Bringing Science to Justice’ for the IAPAC 90-90-90 Targets Update, produced for the session, ‘Creating Enabling Environments for Optimal HIV Responses’. This eleven minute presentation, that also includes a number of video clips, covers the following:

The detrimental implications of HIV criminalisation on human rights and public health
The impact of the ‘Expert consensus statement on the science of HIV in the context of criminal law’
Lessons learned from HIV criminalisation on punitive responses to COVID-19
Conclusion: It is more critical than ever to commit to, and respect, human rights principles; ground public health measures in scientific evidence; and establish partnerships, trust, and co-operation between scientists, law- and policymakers and the most impacted communities.

Update (29 July): During a California HIV/AIDS Policy Research Centers virtual satellite session, Dr. Ayako Miyashita Ochoa of UCLA Luskin School of Public Affairs, Department of Social Welfare, interviewed activist Marco Castro-Bojorquez about the modernisation of California’s HIV-specific criminal law as an example of of evidence-based policymaking.

There were a number of poster presentations that also focused on HIV criminalisation in the following countries/jurisdictions:

PEF 1737 United States
PEF 1738 England & Wales
PEF 1739 Australia
PEF 1740 Niger
PEF 1742 Malawi
PEF 1781 Florida, USA
PEF 1794 Uganda
PEF 1841 Taiwan

The abstracts are below. Click on the title to download the pdf of the poster.

Amy Baugher, Centers for Disease Control and Prevention (PEF 1737) Men who have sex with men living in states with HIV-specific criminalization laws report high community stigma – NHBS, 2017.

BACKGROUND: In 2017, 36 states had laws penalizing persons with HIV (PWH) for sexual or no-risk behavior (e.g., spitting). Research shows these laws do not impact sexual risk behaviors or diagnosis rates. Citizens likely are unaware of these laws; we do not expect direct behavioral effects. However, laws reflect states’ values and may mirror community attitudes towards PWH. Understanding how structural factors relate to stigma is important for stopping HIV stigma.
METHODS: National HIV Behavioral Surveillance used venue-based sampling methods to interview men who have sex with men (MSM) in 23 U.S. cities from June-December 2017. Using Center for HIV Law and Policy reports, we categorized states’ HIV-specific laws as of June 2017. We compared MSM”s perceptions of community attitudes towards PWH between MSM living in states with versus without HIV laws. We obtained adjusted prevalence ratios using log-linked Poisson models assessing the relationship between law and four community stigma attitudes (discrimination, rights, friendship, punishment), which we then compared between black MSM in states with versus without laws.
RESULTS: Two-thirds of MSM lived in states with HIV-specific laws. MSM in states with laws were more likely to report black race (38% versus 15%), poverty (23% versus 12%), or incarceration (25% versus 19%). Multivariable models found laws were related to perceived community beliefs that PWH “got what they deserved” (aPR=1.13, 95% CI: 1.03-1.24), but not other attitudes. Compared to black MSM in states without laws, black MSM in states with laws were more likely to believe persons in their community would discriminate against PWH (64% versus 50%), not support PWH’s rights (25% versus 16%), not be friends with PWH (24% versus 13%), and believe HIV was deserved punishment (32% versus 22%).
CONCLUSIONS: MSM in states with HIV laws were disproportionately from marginalized groups. Laws were related to perceived community attitudes that HIV was deserved punishment; understanding specific stigma attitudes can inform interventions. Although black MSM reported high community stigma overall, stigma was significantly higher for black MSM in states with HIV laws. States may consider repealing or reforming HIV laws and focusing on effective prevention efforts to End the HIV Epidemic.

Deborah Gold, National AIDS Trust (PEF 1738) Improving the application of the law: Updating guidelines for prosecutors in England and Wales regarding sexual transmission of infection.

BACKGROUND: In England and Wales it is possible to be prosecuted for the sexual transmission of infection under the Offences Against the Person Act 1861 or the Criminal Attempts Act 1981. After the first prosecutions in 2003, National AIDS Trust (NAT) successfully advocated for legal guidance for prosecutors and worked with the Crown Prosecution Guidance (CPS) to develop this.
DESCRIPTION: In 2018 NAT requested that the guidance be updated. In January 2019 the CPS shared a draft of their revised guidance with NAT, who then coordinated a joint response from NAT and other key stakeholders. This successfully ensured that the new guidance reflects medical developments such as Undetectable=Untransmittable and clinical guidance. Developments in case law have led the CPS to take the view that HIV/STI status deception may be capable of vitiating consent to sex. NAT is concerned that this could result in people who lie about their HIV status being prosecuted for rape or sexual assault, even with safeguards used and no transmission occurring. NAT prepared a briefing articulating legal, policy and public health arguments against this position, and presented it at a meeting with the CPS. As a result the CPS have added several caveats, but we still believe their position to be unacceptable and discussions are ongoing.
LESSONS LEARNED: The successes we have had in improving the guidance demonstrate the importance of long-standing proactive engagement, relationship-building and collaboration. Collaborating with a range of key stakeholders including clinicians and lawyers enabled NAT to leverage wider authority and expertise. However, the issue of HIV status deception has illustrated the implications for HIV of legal developments in related but not directly transferable areas. Confidence in our understanding of the law and persistence in making our arguments heard has been crucial in ensuring ongoing engagement on this issue.
CONCLUSIONS: The updated guidance will help to ensure that prosecutions for reckless or intentional transmission are conducted in a way that minimises harm to both individuals and the wider community. Regarding the issue of HIV status deception, possible next steps include securing parliamentary engagement, pro bono legal opinions, and further representations from local government and public health bodies.

Alexandra Stratigos, HIV/AIDS Legal Centre (PEF1739) Crime and punishments – deportation proceedings against people convicted of criminal transmission of HIV .

BACKGROUND: A significant portion of people convicted of HIV transmission in Australia are not Australian citizens. Due to not holding citizenship, those convicted of serious criminal offences (which includes facing a prison term of 12 months or more), are at risk of having their visas cancelled and being removed from Australia. The HIV/AIDS Legal Centre (HALC) has represented a number of these clients in both their criminal and subsequent immigration proceedings to assist these clients in preventing their removal from Australia.
DESCRIPTION: Where a person is not an Australian citizen and commits a criminal offence they are at risk of detention and removal from Australia. In two recent case studies of people with HIV convicted of HIV transmission, following the completion of their custodial sentences steps were then taken to cancel their visas and place them into immigration detention. Both clients had their visas cancelled and had to take steps to appeal the decisions. Part of the reason for the cancellation was the perception of ongoing risk to the Australian community. Neither client had been convicted of intentionally transmitting HIV to their sexual partner. HALC continues to represent one of the clients mentioned and the other has now exhausted all appeal options.
LESSONS LEARNED: There are often many and varied reasons for HIV non disclosure and, from HALC”s experiences, following criminal and public health interventions it is unlikely that a person with HIV would continue to place their sexual partners at risk of contracting HIV. Decision makers in migration proceedings appear to be unwilling to accept that a person with HIV would no longer place their sexual partner at risk of HIV transmission as the decision makers note in their decisions that they there remains a risk to the community.
CONCLUSIONS: The outcomes of these cases demonstrates the need for ongoing advocacy and law reform in the removal of offences for HIV non-disclosure, exposure and transmission, except where actual intent can be established to a criminal law standard. The cases also demonstrate the ongoing need for continued robust representation of those, often vulnerable migrants, who are facing visa cancellation.

Kassoumou Ibrahim, Association des Jeunes Juristes du Niger (PEF1740) Decriminalization of HIV transmission: Advocacy experience of the Civil Society Coalition for the decriminalization of HIV in Niger.

BACKGROUND: To effectively fight against HIV, Niger adopted Law No. 2007-08 of April 30, 2007 related on HIV prevention, care and control. This law included problematic provisions, including the criminalization of exposure, HIV transmission, and the non-disclosure of HIV to the sexual partner. Actually, PLWHIV continue to be victims of the application of the provisions criminalizing the transmission of HIV through several criminal prosecution cases in 2017.
DESCRIPTION: In June 2018, 13 civil society organizations created the “National Coalition for the Decriminalization of HIV in Niger”. This one benefited from the technical and financial support of HIV JUSTICE WORLDWIDE. Its advocacy objectives, by 2021, are to : repeal of offenses criminalizing exposure and transmission of HIV ; research and disseminate reliable and convincing data on the impact of HIV criminalization on access to HIV-related services. Since its creation, the Coalition has carried out the following activities: National workshop for consulting civil society stakeholders on the exposure, transmission and non-disclosure of HIV in Niger; The development of the Memorandum of December 20, 2018 entitled ‘exploring ways and means to resolve the problems of legal proceedings against people living with HIV in order to reduce to zero the new infections, deaths and discrimination linked to AIDS; Organization of several advocacy meetings during the ‘zero discrimination’ day (March, 2019) for public decision-makers and partners.
LESSONS LEARNED: Judicial police officers and magistrates have to exercise greater caution when considering a criminal prosecution, and in particular, carefully assess the latest scientific data on the risks of transmission and the consequences of the infection; National AIDS Control Program needs a comprehensive assessment of the application of criminal legislation on the transmission, exposure and non-disclosure of HIV status in order to measure its impact on the effectiveness of national response.
CONCLUSIONS: The criminalization of HIV transmission undermines public health efforts and does not take into account the reality of PLWHIV and especially women who are not always able to disclose their HIV status without fear of reprisals or violence, or to impose the wearing a condom. The threat of possible criminal prosecution only increases their vulnerability.

Laura Ferguson, University of Southern California (PEF1742) Removing legal barriers to accessing HIV services in Malawi: Impact of regional- and national-level interventions.

BACKGROUND: Building on the work of the Global Commission on HIV and the Law, and in order to promote an enabling environment for achieving the 90-90-90 targets, UNDP has supported regional-and national-level work on removing legal barriers to accessing HIV services in sub-Saharan Africa. Covering over 20 countries, this work consists of regional-level capacity building for duty-bearers and rights-holders from the different countries and in-country activities tailored to local realities.
DESCRIPTION: In 2019/20, we evaluated the impacts of this work through a review of project documents and key informant interviews with stakeholders including civil society representatives, government officials, and UNDP staff, and conducted an in-depth case study in Malawi.
LESSONS LEARNED: Participation in regional spaces empowered national-level stakeholders in their country level work. A participatory legal environment assessment (LEA), jointly owned by government and civil society, served as the starting point and the resulting document, providing an overview of the strengths and weaknesses of HIV-related national laws and policies, has served as a cornerstone for subsequent activities. For example, national advocacy efforts informed by the LEA, and participation by the Chair of the Parliamentary Committee on HIV in regional activities, were key to shaping a revised HIV law to better align with international human rights law. The new law has led to the reform of the institutional framework for the national HIV response. Judges participated in regional judges’ fora where they could request information on HIV-related science, discuss lived experiences with key populations’ representatives and hear about how legal issues were being addressed across the region. Lawyers from across the region took part in joint training. After one such training, and with technical support from regional partners to create a strong case, a lawyer chose to appeal the conviction of a woman under Malawi’s law criminalizing HIV transmission. The presiding judge had attended regional judges’ fora and, drawing on a firm understanding of HIV transmission dynamics, overturned the original ruling.
CONCLUSIONS: A mix of regional and national level activities allows for tailoring of activities to national contexts while also providing space for peer networking and support where ‘difficult’ issues might more easily be discussed.

Wyatt Deihl, Rollins College (PEF 1781) Racial and gender disparities in Florida newspaper coverage of HIV related arrests.

BACKGROUND: According to the Centers for Disease Control and Prevention (CDC), as of 2016, 108,003 people live with HIV (PLHIV) in Florida, which also has the highest rates of new HIV diagnoses in the country. Numerous complexities worsen Florida’s HIV risk environment, including sex work, human trafficking, injection drug use, and sex tourism. These topics are often bases for HIV-related arrests that journalists cover. HIV criminalization describes statutes that criminalize otherwise legal conduct or that enhance penalties for illegal conduct based on a person’s positive HIV status.
METHODS: This study employed a systematic review of Florida news articles on HIV-related arrests published between 2009-2019. Through qualitative content analysis, our study analyzed how race, gender, and journalistic tone coalesce in reports of HIV-related arrests.
RESULTS: A 2018 report from the Williams Institute indicated that white Floridian women are primarily arrested for HIV-related crimes. The systematic review found zero news reports on HIV-related arrests of white Floridian women, and only one article identified a female perpetrator whose race was undisclosed. Sixty-four other articles reported solely on the HIV-related arrests of men, predominantly black men. We identified two categories of articles where HIV was either central to the arrest, or the person’s HIV-positive status was reported but exhibited little pertinence to the arrest.
CONCLUSIONS: Journalistic and police reporting behaviors risk inadvertently stigmatizing PLHIV at a time when public awareness of HIV depends on perceptions of HIV. This information will be used to shape equitable local nonprofit campaigns for community prevention, and HIV decriminalization efforts, while also combating the perpetuation of HIV misinformation.

Richard Mayanja, Uganda Martyrs University (PEF1794) Protective shield or punitive sword?: A critique of the Uganda HIV and AIDS control and prevention Act, 2014 from a human rights perspective.

BACKGROUND: The purpose of the research: To assess the compliance of the Uganda HIV and AIDS Control and Prevention Act, 2014 (the Act) with international human rights law standards.
Problem: In 2014, the Government of Uganda enacted a law to control and prevent HIV and AIDS. However, human rights advocates contest that the law contains provisions that don”t comply with international human rights law standards.
METHODS: Study period: August 2014 – August 2015 Study design: Qualitative design. Data collection: The study used a document analysis method. Method of analysis: The study identified international human rights law standards related to HIV and AIDS and used them as benchmarks for the review, analysis and synthesis of the literature.
RESULTS: The study established that: The Act carries provisions that comply with international human rights law standards. These include HIV counselling, testing, and treatment; state responsibility in HIV and AIDS control; the establishment of the HIV and AIDS Trust Fund; HIV-related human biomedical research; and prohibition of discrimination in various settings on grounds of HIV status. The Act also contains provisions that are not compliant with international human rights law standards. These include mandatory HIV testing, disclosure without consent, criminalization of actual and attempted HIV transmission, and criminal penalties for vaguely defined conduct. The Act lacks provisions that would make it more effective in controlling and preventing HIV and AIDS. These include commitments by the state to be accountable for its obligations stated in the Act; definition of what constitutes discrimination in various settings; and addressing challenges such as the causes of discrimination, inadequate professional human resources at health facilities, lack of HIV-friendly services in health facilities, and unregulated informal sector in complying with the law.
CONCLUSIONS: The study identified the compliance and non-compliance of the Act to international human rights law standards. It made recommendations to the Government of Uganda, organisations of people living with HIV and AIDS, organisations that advocate for human rights, and national human rights institutions, on the need to eliminate, revise and add some provisions in the Act to create an enabling legal environment that conforms with international human rights law.

Yi Chi Chiu, Persons with HIV/AIDS Rights Advocacy Association of Taiwan (PEF 1841) Fight against virus or human being? Case study on human rights violation regarding HIV criminalization in Taiwan.

BACKGROUND: Taiwan ranks top amongst the most progressive Asian countries, including being the first to pass marriage equality in Asia. Yet, stigma and discrimination of certain sub-populations, specifically people living with HIV (PLHIV) continue to prevail, as reflected in the Article 21 of HIV special law which overly criminalizes HIV non-disclosure, exposure and transmission.
METHODS: Using qualitative and quantitative approaches, Persons with HIV/AIDS Rights Advocacy Association (PRAA) of Taiwan makes a case on how the current criminal justice system in Taiwan adapt the narrative of ‘HIV as a weapon’ to prevent PLHIV from asserting their rights.
RESULTS: Article 21 states that individuals with knowledge of their HIV-positive status, by concealing the fact, engage in unsafe sex with others or share injection syringes, diluted fluids, and thus infect others, shall be sentenced for 5 to 12 years. Data showed over 30 cases were identified from 2012 to 2019, the majority of prosecutions were associated with sexual activities. However, unsafe sex was often defined exclusively with use of condom, and the court rarely recognized scientific advancements in antiretroviral therapy and suppressed viral load. Cases included: prosecution from ex-partner whom knew defendant’s HIV status before their relationship; state prosecution without plaintiff by turning 14 HIV-positive witnesses into defendants; 13-year incarceration despite medical expert’s testimony on the unlikelihood of HIV transmission. Those who haven’t been prosecuted continued to face both physical and emotional health threats, such as a woman threaten by her admirer to disclose her status if she turns him down. Bias and prejudice, worsen by difficulties in proving self-disclosure or condom use commonly resulted in convictions.
CONCLUSIONS: Article 21 and out-of-date judicial interpretation of HIV transmission risks gravely deprive the rights of PLHIV and further perpetuates stigma against PLHIV and affected communities through special criminal law on HIV. There’s a strong case to be made for abolishing Article 21 under the Constitution of Taiwan and the International Bill of Human Rights. Training and support on HIV advancements shall be given to all members of judicial and criminal law system to further inform any application of criminal law in cases related to HIV.

Russia: Names of released prisoners suffering from certain diseases to be passed to authorities of regions where they live

FSIN ordered to report the release of dangerously ill prisoners

Source: Pravo – Translated automatically by Deepl.com. For original article in Russian, please scroll down.

The exact list of diseases to be reported will be determined by the government.
On 20 July, President Vladimir Putin signed a law obliging prison administration staff to inform about the diseases of released prisoners. The relevant information will have to be passed by the FSIN bodies to the authorities of the region where the prisoner lives.

The author of the initiative was the Cabinet of Ministers. The State Duma adopted the document in its final reading on 7 July, and the Council of Ministers approved it on 15 July. The law will come into force only in six months.

Control over the provision of medical care to prisoners who have served their sentence is necessary due to lack of understanding of the gravity of the disease, “low educational and cultural level, mental disorders and asocial behavior,” as follows from the explanatory note to the bill.

At the same time, the exact list of diseases to be informed about has yet to be determined by the government. According to the authors of the initiative, in the case of newly released prisoners, different types of hepatitis, tuberculosis and HIV pose the greatest danger. Tens of thousands of people are released each year with these diseases, the explanatory note says.

ФСИН обязали сообщать об освобождении опасно больных заключенных
Точный список заболеваний, о которых нужно будет информировать, определит правительство.
Президент Владимир Путин 20 июля подписал закон, обязывающий сотрудников администрации исправительных учреждений информировать о заболеваниях вышедших на свободу заключённых. Соответствующую информацию органы ФСИН должны будут передавать властям региона, в котором проживает отбывший наказание.

Автором инициативы выступил кабмин. Госдума приняла документ в окончательном чтении 7 июля, Совфед одобрил его 15 июля. В силу закон вступит только через полгода.

Контроль за оказанием медицинской помощи заключённым, отбывшим наказание, необходим из-за непонимания ими тяжести заболевания, «низкого образовательного и культурного уровня, психических расстройств и асоциального поведения», следует из пояснительной записки к законопроекту.

При этом точный список заболеваний, о которых нужно будет информировать, еще только предстоит определить правительству. По мнению авторов инициативы, в случае только что освободившихся заключённых наибольшую опасность представляют разные типы гепатита, туберкулёз и ВИЧ. С этими заболеваниями ежегодно выходят на свободу десятки тысяч человек, говорится в пояснительной записке.

Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow

Earlier this month, advocates from all over the world came together for two hours to discuss the successes and challenges of the global movement to end HIV criminalisation.

All of the recordings of Beyond Blame: Challenging HIV Criminalisation for HIV JUSTICE WORLDWIDE are now available on the HIV Justice Network’s YouTube Channel.

“HUGE pleasure 2B at #BeyondBlame2020 conference – deftly curated, deeply informative; speakers were great; the passion & commitment to #HIVjustice was palpable. Much progress yet a sober reminder that the work is far from over.”

Kene Esom, Policy Specialist: Human Rights, Law and Gender, United Nations Development Programme (UNDP)

The full-length director’s cut version – with enhanced audio and video – is now available in English as well as with the audio track of the recorded simultaneous translation in French, Spanish, Russian, and Portuguese.

The English version is also available as a YouTube playlist in ‘bite-size’ chunks, with each segment of the webshow available as standalone videos. This means, for example, if you just want to watch (or share) the segment on ‘women challenging HIV criminalisation in Africa‘, or on ‘bringing science to justice, and justice to science‘, it’s now possible.

“That webinar was perfectly executed. Great sound, engaging transitions (they actually played people on and off!), and multiple speakers in various collections. Having ALL OF THEM back at the end showed the breadth of this technical accomplishment and the depth of the speakers’ field of expertise. Not everyone may notice these things but boy, I sure do, and it was totally pro. I’ve seen big name conferences who couldn’t get this right… Congratulations all around, and especially to [director] Nicholas Feustel.

Mark S King, My Fabulous Disease

We have also made available for the first time the standalone recording of Edwin Cameron’s closing speech, which inspired so many. The transcript is included in full below.

“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!

We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.

It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.

HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.

We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.

Let us rise today and say, “Enough!”

Criminalization laws impact public health and perpetuate discrimination

HIV and LGBTQ Criminalization Laws are Both Human Rights and Public Health Issues, Experts Say

A panel at the 23rd International AIDS Conference (AIDS 2020, gone virtual this year due to COVID-19) discussed the growing right-wing populist movements around the world that threaten advances made by activists toward ending criminalization of people living with HIV and LGBTQ people.

Poland just re-elected President Andrzej Duda, whose party, PiS, declared “The LGBT and gender movement threatens our Polish identity, the nation, and the state.” PiS wants to “protect children from the LGBT ideology,” defines marriage in strictly heterosexual terms, and aims to outlaw adoptions by LGBTQ people. Around 100 localities in the country have declared themselves to be “LGBT-free zones.”

Botswana goes even further, reported Tebogo Gareitsanye of BONELA, a legal and advocacy organization in that country. Consensual sex between same-sex partners is illegal and prosecuted as “unnatural offenses” and “indecent practices.” That statute originally applied only to men who have sex with men. Sex between women was not outlawed until 1998.

Botswana law distinguishes between sexual orientation per se—which is, in fact, a protected category under employment discrimination law—and acting on one’s orientation, which is illegal. After a campaign by BONELA and others, the country’s High Court recently decriminalized private, consensual sex acts. However, Botswana’s government has appealed that decision, and a final ruling is still pending.

Beyond human rights implications, such laws also impact public health, since LGBTQ people will not seek health services for fear of being prosecuted, Gareitsanye noted. Similarly, laws that criminalize certain acts if someone is living with HIV impede public health, said Edwin J. Bernard of the HIV Justice Network. “Communicable diseases are public health issues, not criminal issues.”

HIV criminalization laws generally require the person in question to know their status. They therefore discourage people from being tested. Sean Strub of the Sero Project summed this up in a video shared by Bernard at the conference: “Take the test and risk arrest.” Another interviewee in that video, Patrick O’Byrne, Ph.D., RN-EC, of the University of Ottawa, reported that participants in their study were unable to distinguish between the public health department and the police. “That’s problematic,” O’Byrne commented.

In California, for example, people living with HIV (PLWH) can be prosecuted for four HIV-specific “offenses,” explained Ayako Miyashita Ochoa, J.D., of the University of California Los Angeles: solicitation while seropositive, exposure with intent to transmit HIV, exposure to a communicable disease, and an enhanced sentence for forced sex, if the rapist lives with HIV. Sex workers account for 95% of HIV-related prosecutions in the state, Ochoa reported.

Exposure to a communicable disease could, of course, be applied to many different viruses—including SARS-CoV-2, the virus that causes COVID-19. So far, there are no reports of people refusing to wear masks being prosecuted under that law. Nonetheless, in many countries, human rights have taken a backseat to the pandemic response, noted Thokozile Phiri Nkhoma of Facilitators of Community Transformation in Malawi. Civil society must address criminalization as well as rights and resource issues in the wake of the pandemic, Nkhoma demanded.

Beyond their effect on individual persons prosecuted under them, criminal laws perpetuate structural inequalities, discrimination, and xenophobia, argued Susana T. Fried of CREA, an international feminist organization based in India. To counter such effects, we need to strengthen solidarity between and with affected people. We also must be aware of the unintended effects some laws meant to protect vulnerable communities might have. For example, raising the age of marriage can protect young girls. However, it can also be used to outlaw consensual sex between young people, if it ties age of consent to age of marriage.

The consequences of these and other laws regulating sex and sexuality are quite intentional, concluded Marco Castro-Bojorquez of HIV Racial Justice Now: “The systems of oppression that we have created specifically to oppress certain communities were working very well in the criminalization of PLWH.”