US: New report explores how HIV criminal laws in California are enforced against foreign born populations

FOR IMMIGRANTS, HIV CRIMINALIZATION CAN MEAN INCARCERATION AND DEPORTATION 

New Study Shows 15 Percent of People who had Contact with Californa Criminal System because of HIV Criminalization Laws were Foreign Born

LOS ANGELES – A new study suggests that for some immigrants, an HIV-specific criminal offense may have been the triggering event for their deportation proceedings.  In HIV Criminalization Against Immigrants in California, Williams Institute Scholars Amira Hasenbush and Bianca D.M. Wilson, explore how HIV criminal laws are enforced in California, particularly against foreign born populations.

HIV criminalization is a term used to describe statutes that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status.  California has four HIV-specific criminal laws, and one non-HIV-specific criminal law that criminalizes exposure to any communicable disease.  All HIV-specific offenses in California have the potential to lead to deportation proceedings.

“People living with HIV still face stigma and discrimination,” said Amira Hasenbush.  “If one is HIV-positive and enters the criminal system, one may be more severely impacted than those who are HIV-negative.  A major impact for HIV positive immigrants is possible deportation, possibly a far worse outcome than the original sentence.  Living with HIV is a public health matter, not a criminal one.”

Key Findings:

-Overall, 800 people have come into contact with the California criminal system from 1988 to June 2014 related to that person’s HIV-positive status.  Among those individuals, 121 (15 percent) were foreign born.

-Thirty-six people, or 30 percent, of these foreign born individuals, had some form of a criminal immigration proceeding in their histories. Among those who had immigration proceedings in their records, nine people (25 percent) had those proceedings initiated immediately after an HIV-specific incident.

-Like their U.S. born counterparts, 94 percent of all HIV-specific incidents in which immigrants had contact with the criminal system were under California’s felony offense against solicitation while HIV-positive.

-Eighty-three percent of the immigrants who had contact with the system based on their HIV-positive status were born in Mexico, Central or South America, or the Caribbean.

-While U.S. born people were divided fairly evenly between men and women, immigrants were overwhelmingly men: 88 percent of foreign born individuals in the group were men. (It should be noted that “men” may include transgender male-to-female individuals.  Problems created by a lack of data on transgender people within criminal justice databases are highlighted in the report.)

HIV Criminalization Against Immigrants in California was developed by analyzing the California Criminal Offender Record Information (CORI) data on HIV offenses in California, exploring the demographics and experiences of foreign born individuals as compared to their U.S. born counterparts. Future research beyond the enforcement data may explore whether initial patterns seen by sex and place of birth are perpetuated in other criminal systems or under other offenses. Future research can also explore the influence of sexual orientation and gender identity as a potential driver to the criminal system and as a potential mediating factor in experiences once in the system. This will help provide a more nuanced and complete picture of the experiences of people who are criminalized based on their HIV-positive status.

Read the report.

The Williams Institute, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

Australia: Up to 14 years jail sentences and compulsory testing for people spitting at police officers could be introduced in new legislation

Police in Australia are pushing for the introduction of a maximum 14 year jail sentence for people who spit at police officers.

The move comes after new figures reveal more than 1,000 officers are “exposed to bodily fluids” at work each year in the country.

Officers have routinely put there lives on hold for months to ensure they had not contracted any diseases.

South Australian Police Association president Mark Carroll said: ““When, in the course of duty, officers are spat on, bitten or otherwise assaulted in a way involving an exchange of bodily fluids, it’s essential that these officers have access to blood samples from the assailant that can be tested.”

The Adelaide Advertiser reported a case in May where a man spat at an officer and said: “I have HIV AIDS and now you’ve got it too”.

After sentencing the man to four and a half years in prison, Judge Rauf Soulio said: “Your comments about HIV caused him great distress. He felt unable to hold his infant daughter, who was born prematurely, for fear of passing on a communicable disease.”

“He had to deal with the fear of waiting for blood results, which were, fortunately, negative,” he added.

Speaking to the Daily Telegraph police minister Troy Grant has prepared new proposals saying he hopes to make it a “new offence with tough penalties for spitting on officers and a mandatory testing regimen for offenders who spit.”

In Ireland, the offence appears to be at the lower end of the punishment scale. The Herald reported in June 2015 where a man, Liam Deegan, was sentenced to a month in prison for spitting in a Garda’s face as he was being led to the cells following a court appearance.

The same paper reported another incident whereby another man, Shamsiytar Shafie, received a four month sentence in May 2015 for a similar offence.

Published in NewsTalk on Oct 2, 2016

 

HIV criminalisation advocacy must extend beyond HIV specific statutes

By Kate D’Adamo

From TheBody.com

September 29, 2016

The fight to combat HIV criminalization is not new. After years of activism, gains are finally being made to repeal statutes that turn a person’s knowledge of their HIV status into a crime.

Just this year, Colorado’s HIV modernization bill comprehensively repealed almost all of the HIV-specific statutes in the state. This is an evidence-based success: Criminalizing people’s HIV status does not inhibit HIV transmission, but instead turns their knowledge and treatment of that status into evidence of a crime. This weaponizes their knowledge and their enrollment in the very care public health officials recommend, forcing people to weigh testing and treatment against fear of arrest.

With the growing success in fighting HIV criminalization, it is now time for advocates to take the conversation beyond the repeal of HIV-specific statutes and to confront the larger context of how criminalization encourages HIV transmission.

The growing data on where and when laws criminalizing a person’s status are implemented show that the people in the crosshairs of these laws are often those already criminalized through their engagement in sex work. The ostensible targets of HIV criminalization laws may be people who are not otherwise criminalized, but the data clearly show who faces most of their impact. The more common way that people who are HIV positive are criminalized for their status is not through general HIV criminalization statutes, but through laws that upgrade a misdemeanor prostitution charge to a felony if a sex worker is HIV positive.

The Williams Institute looked at who is charged and convicted of HIV-specific statutes in California found that “[t]he vast majority (95%) of all HIV-specific criminal incidents impacted people engaged in sex work or individuals suspected of engaging in sex work.” Research out of Nashville, Tennessee, corroborated this picture, with charges disproportionately targeting people arrested for prostitution, who then faced a felony upgrade and (until last year) were required to register as sex offenders for being HIV positive. However, these laws are not the only way criminalization increases sex workers’ vulnerability to HIV transmission, and advocacy must expand its vision to include the fuller context.

At the Sex Workers Project, we work with individuals who trade sex across the spectrum of choice, circumstance and coercion. For sex workers, the relationship between criminalization and health is complex and deeply interwoven.

When we look at the role of HIV transmission in the lives of our clients and community, it is not simply HIV-specific statutes, but the tactics of policing and the instability created through criminalization that increase people’s vulnerability. If the long-term goal is to end the spread of HIV, advocacy should target criminalization more holistically and see HIV modernization, or the on-going state-by-state push to repeal these statutes, as just one of the initial steps needed to explore the nexus between public health and criminalization.

When we expand our scope beyond these specific statutes to look at how policing and criminalization encourage HIV transmission, a more complex and multi-layered picture emerges. For instance, the relationship between evidence of a crime and transmission of HIV does not end with simply knowing one’s status. Law enforcement’s use of condoms as evidence of prostitution has a chilling effect. In research on the impact of policing that uses safer-sex supplies as evidence of a crime, many sex workers reported that they were afraid to carry condoms or take condoms from outreach workers, regardless of whether they were engaging in prostitution at that time. Most impacted by these policing practices were transgender women of color, a population acknowledged to be already at higher risk for HIV transmission. Transgender women are commonly profiled as being engaged in sex work, and therefore, were most at risk for being arrested for the mere possession of condoms. This means that policing practices are actively putting the community with the highest vulnerability to HIV at even higher risk of transmission.

Further, policing procedures that inundate areas “known for prostitution” with law enforcement push sex workers into isolated locations to avoid arrest. This means isolation from peers who can provide harm reduction and safety, and from outreach workers who may offer resources — in addition to making sex workers vulnerable to physical and sexual assault, as physical isolation carries its own risk of HIV transmission.

The fight for HIV modernization bills across the country is already having a demonstrable success. The recent Colorado HIV modernization bill shows what a comprehensive policy can look like. Many other state-based efforts have made sure their work encompasses those most impacted by HIV-specific statutes and fought to include in their advocacy sex workers and organizations serving people who trade sex.

But these policy changes should not be where the momentum ends. HIV criminalization is only one part of the larger on-going dialogue on the nexus between criminalization and public health that deeply impacts the lives of marginalized communities. When more people understand how criminalization affects individual and public health, we can expand the impact of our work to address these larger issues and shift our goals to not just avoiding the criminalization of HIV, but also stemming its spread.

Kate D’Adamo is the national policy advocate at the Sex Workers Project at the Urban Justice Center, focusing on laws, policies and advocacy that target folks who trade sex, including the criminalization of sex work, anti-trafficking policies and HIV-specific laws. Previously, Kate was a community organizer and advocate for people in the sex trade with the Sex Workers Outreach Project-NYC and Sex Workers Action New York. She holds a BA in political Science from California Polytechnic State University and an MA in international affairs from the New School University.

Originally published in The Body on 29/09/2016

Canada: Global Fund Replenishment Conference puts the spotlight on Canada HIV criminalisation laws

Friday and Saturday, Montreal will play host to the Fifth Replenishment Conference of the Global Fund to Fight AIDS, Tuberculosis and Malaria. While much of the discussion will be focused on developing countries (the Global South), where the fund has played a crucial role since is creation in 2002, this is also an appropriate time to take stock of Canadian realities.

At a time when the global effort is suffering from precarious funding, Canada has stepped up to the plate by increasing its contribution by 20 per cent, to a total of $785 million over the next three years. This commitment is to be applauded. It proves that there is a willingness on the part of government to make Canada a leader once again on the international scene. It is also a promising reminder that increased donations will get us closer to beating these diseases once and for all.

But good leadership also puts the spotlight on Canada’s own responsibility to address human-rights issues that are impediments to the improvement of public health and fair access to health services.

In the HIV sector, we know that gender inequality, racism and homophobia are the breeding grounds for the epidemic. Poverty and discrimination are further barriers to access and care. As was recently pointed out by Canada’s Minister of International Development and La Francophonie, Marie-Claude Bibeau, HIV has a particularly heavy impact on young women.

In order to continue to play its part as an international leader, Canada has to make good on commitments to end these epidemics here at home. We have work to do in our own backyard in order to align the fight against HIV/AIDS with human-rights advocacy.

Canada in 2016 is a country that still imposes criminal penalties on people living with HIV: they still risk prison sentences for having sexual relations without disclosing their HIV status to their partners when they have taken the necessary precautions to avoid transmission (use of a condom or undetectable viral load), and when there has been no transmission. This increases stigma, goes against science and UNAIDS recommendations, and should not be the case in a country that otherwise is helping lead the way.

Leadership comes from inspiring the best public policy, especially when it is supported by scientific data. In this regard, Canada must go farther and support the opening of supervised-injection sites. Such harm-reduction approaches are proven to reduce rates of infection.

Furthermore, we must work to create social and legal frameworks that help sex workers, as recommended by such NGOs  as Amnesty International. It is crucial that we repeal Bill C-36, the so-called “Protection of Communities and Exploited Persons Act” that criminalizes sex work in Canada.

This major international event will also be an opportunity to highlight how these epidemics affect migrants. Mandatory testing by immigration authorities contradicts recommendations by Canadian health experts. Rejecting migrants on the basis of their HIV or health status continues to foster prejudice in this regard. Economic arguments for refusing them entry only serve to exacerbate such inequalities. It is high time to look at universal access to treatment and the real cost of its being denied to certain people.

The Global Fund Replenishment Conference is a fitting time to demonstrate Canada’s financial support for countries most affected by HIV, TB, and malaria. Canada’s commitment to international aid is a solid foundation for global action on these issues.

But now is also the time for us to lead by example in our own country. There is much work to be done before we can truly “End it. For Good.” We need concrete measures that show Canadians stand with and support HIV-positive people.

Gabriel Girard is a post-doctoral researcher in sociology at Université de Montréal. Pierre-Henri Minot is executive director of Portail VIH/sida du Québec in Montreal. This article is based on an open letter that has been co-signed by more than 150 others. The full list is available at pvsq.org/globalfunds2016.

Uganda: ABC Radio interviews HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi

Listen to Natasha Mitchell compelling interview with HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi on the challenge to the problematic HIV criminalisation statutes within Uganda’s HIV/AIDS Prevention and Control Act.

This seven minute audio report from AIDS 2016 in Durban is excerpted from ABC Radio’s longer podcast, The brutal politics of a virus that won’t go away, by reporter Natasha Mitchell for Background Briefing. 

Listen to and/or download the full podcast and read the transcript on ABC Radio’s website.

The transcript of Natasha’s HIV criminalisation-related report is below.

Natasha Mitchell: In Uganda, around 7% of people are infected, and while the country is recognised for taking decisive action against HIV, the government’s harsh attitude and laws is dramatically undermining that progress.

Rosemary Namubiru is a 66-year-old nurse, mother and grandmother. She found out she had the virus just three years ago, and she thinks she got it from a patient.

Rosemary hadn’t yet disclosed her status at work, but when she was wrongly accused of intentionally infecting a patient, before she knew it the full force of the law was thrown at her.

Rosemary Namubiru: I saw the police coming, and they were holding me, ‘You are under arrest for murder.’ Then they called the media, so when I was in that room they called and told me, ‘Come out.’ I came out and I found a crowd of cameramen, media people.

Natasha Mitchell: Outside the police station?

Rosemary Namubiru: Yes.

Natasha Mitchell: Rosemary was charged with attempted murder after she accidentally pricked herself with a needle while treating a child. The mother watching on was worried and reported Rosemary. While the child wasn’t infected, thankfully, all hell broke loose when Rosemary’s HIV positive status was confirmed and made public. Rosemary was arrested and paraded in front of the media, who labelled her a ‘killer’ and a ‘murderer’.

Rosemary Namubiru: They were trying to manhandle me. They were taking photographs of me. They were calling me all sorts of names, ‘Murderer, killer. Look at this woman, a killer, a murderer.’ And it went all over the country in the national newspapers, in the English newspapers. ‘That murderer, the murderer. If we see her we shall beat her, we shall kill her.’ It was the talk of town. Even my village. Initially, they labelled it as ‘murder’. Then it was reduced, ‘attempted murder’, and then it was eventually changed into ‘negligence’.

Natasha Mitchell: Rosemary was publicly shamed, and sentenced to three years in prison for negligence.

Lawyer Dora Kiconco Musinguzi is the executive director of Uganda Network on Law, Ethics and HIV/AIDS or UGANET.

Dora Kiconco Musinguzi: Rosemary’s story sent so many chills across the country amongst people living with HIV. She was the headline of the news. ‘Killer nurse’. ‘Monster nurse’. She was treated so cruelly at the police, she was beaten, her hair was pulled, right, left, and centre, and that caused a lot of fear among people living with HIV. So we see discrimination written on walls, written in political statements, discrimination is still real, so that is where we are. That’s Uganda’s story currently.

Natasha Mitchell: Rosemary Namubiru was released at the end of 2014 after her case received international attention.

In the same year, Uganda introduced the HIV Prevention and Control Act. At face value it’s about controlling HIV, promoting testing and treatment, and preventing discrimination. Uganda’s not alone here, HIV specific criminal laws are on the increase worldwide, and also exist in America and Europe.

But Dora Kiconco Musinguzi and colleagues are leading a legal challenge in the Ugandan Constitutional Court against key parts of the law, including certain provisions that demand disclosure of your HIV status, and criminalise those who transmit the virus intentionally.

Dora Kiconco Musinguzi: The question is at what point do you establish intention. In a circumstance where we have so many people that have not yet tested, how do you know that a person infected another? So anybody could blame the other for infecting them, and what should be a human condition, a disease, then becomes a criminal object and lives break, and families break, and you know how the media picks on this, and totally takes it out of context. We believe it’s going to be really dangerous.

Natasha Mitchell: At least half of the Ugandan population still don’t know their HIV status. And Dora Kinconco Musinguzi believes the HIV Prevention and Control Act will exacerbate their reluctance to get tested and treated and so cause the virus to spread.

Dora Kiconco Musinguzi: So if people fear, relate HIV testing with obligation, with imprisonment, with undue power of the law, we believe this is going to create a bigger barrier to testing, and that fails the objective of prevention and control because then we shall have more people left out of the treatment area.

Natasha Mitchell: And because pregnant women have to be tested for HIV, they’re at greater risk under this law.

Dora Kiconco Musinguzi: They are going to be found to be HIV positive fast, and if they don’t disclose then they are in the ambit of attempting to transmit, so that makes the women criminals. So there’s lots of unanswered questions. And yet on the other side science has given us hope that people who test and take their medicines very well, they become less infectious, so they don’t transmit HIV. The law neglects this science. The law does not consider what public health specialists are saying, but the Ugandan government has not put this into consideration.

Natasha Mitchell: The experience of Rosemary Namubiru is a cautionary lesson about why laws that criminalise HIV positive people can be so bad for public health.

Dora Kiconco Musinguzi: You shouldn’t be criminalised. These cases could be handled in another way. We are really asking the Constitutional Court to find out whether this is the law that will present and control HIV, and still afford dignity and non-discrimination for living with HIV.

Natasha Mitchell: Based on your experience, Rosemary, what do you feel about the criminalisation law in Uganda against people with HIV?

Rosemary Namubiru: It hurts. Ignorance kills, but it hurts when people just carry on, and people keep on saying, ‘Oh, that one, that one.’ Me, I didn’t get it sexually. It was during the course of saving lives of human beings, so it is not something to laugh about. I wouldn’t wish anybody to go through what I went through.

Natasha Mitchell: Rosemary Namubiru. She’s now retired from nursing.

HIV Justice Network presents important new HIV criminalisation data today at AIDS 2016

Today, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ will present important new data on HIV criminalisation based on updated research from our Advancing HIV Justice 2 report.

Global Trends in HIV Criminalisation (Download the pdf here)

HIV criminalisation is a growing, global phenomenon that is seldom given the attention it deserves considering its impact on both public health and human rights, undermining the HIV response.

In many instances, HIV criminalisation laws are exceedingly broad – either in their explicit wording, or in the way they have been interpreted and applied – making people living with HIV (and those perceived by authorities to be at risk of HIV) extremely vulnerable to a wide range of human rights violations.

Seventy-two countries currently have HIV-specific laws, rising to 101 jurisdictions when individual US states are included. Notably, 30 countries in Africa have such laws, including new overly-broad laws in Uganda (2014) and Nigeria (2015).

At least 61 countries have reported HIV-related criminal cases. This total increases to 105 jurisdictions when individual US states and Australian states/territories are counted separately.

However, not all countries have enforced HIV-specific laws and other countries have applied general laws: 32 applied general or public health laws, 26 used HIV-specific laws and 3 (Australia, Denmark and United States) have applied both.

During the 30-month period: April 2013 to October 2015, we found reports of at least 313 arrests, prosecutions and/or convictions in 28 countries.

The highest number of cases during this period were reported in:

• Russia (at least 115);

• United States of America (at least 104);

• Belarus (at least 20);

• Canada (at least 17);

• France (at least 7);

• United Kingdom (at least 6);

• Italy (at least 6);

• Australia (at least 5); and

• Germany (at least 5).

Global trends in HIV criminalisation

AIDS 2016: UNAIDS reports on HIV JUSTICE WORLDWIDE's Beyond Blame pre-conference

On 17 July, some 200 people living with HIV, human rights activists and representatives of key populations gathered for a one-day meeting on challenging HIV criminalization under the title “Beyond blame: challenging HIV criminalization.” The event, a preconference meeting before the 21st International AIDS Conference, being held in Durban, South Africa, was organized by HIV Justice Worldwide, an international partnership of organizations, including the AIDS and Rights Alliance for Southern Africa, the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV, the HIV Justice Network, the International Community of Women Living with HIV, the Positive Women’s Network USA and the Sero Project.

The event was an opportunity for people working to end unjust HIV criminalization in all regions of the world to share recent developments, successful approaches and challenges. It also mobilized participants on the urgency to address unjust HIV criminalization as a violation of human rights and serious barrier to efforts to scale up HIV prevention, treatment and care services.

The meeting heard individuals who have face HIV criminalization recount the far-reaching personal, social and legal impacts of unjust prosecution on their lives and that of their families. Lawyers and civil society activists who have led successful efforts against HIV criminalization, including in Australia, Canada, Kenya, Sweden and the United States of America, shared their experiences and approaches. HIV scientists and clinicians were called upon to become more involved in efforts to ensure that the application of the criminal law is consistent with best available evidence relating to risk, harm and proof in the context of HIV. Similarly, members of parliament and the judiciary were highlighted as key stakeholders whose understanding and engagement is central to efforts to end unjust HIV criminalization.

QUOTES

“HIV-RELATED PROSECUTIONS ARE BECOMING INCREASINGLY COMMONPLACE. THE EVIDENCE THAT CRIMINALIZATION AS A PUBLIC HEALTH STRATEGY DOES NOT WORK IS TOO PLAIN TO CONTEST. IT IS OUR RESPONSIBILITY TO END IT.”

PATRICK HERMINIE SPEAKER OF THE NATIONAL ASSEMBLY OF SEYCHELLES

“HIV CRIMINALIZATION IS PROFOUNDLY BAD POLICY. IT IS BASED ON FEAR AND OUTDATED UNDERSTANDING OF HIV RISK AND HARM. CRIMINALIZATION MAGNIFIES STIGMA AND DISCRIMINATION TOWARDS PEOPLE LIVING WITH HIV. PEOPLE LIVING WITH HIV HAVE BEEN AT THE FOREFRONT OF EFFORTS TO END UNJUST CRIMINALIZATION AND SHOULD BE COMMENDED FOR THEIR COURAGE AND COMMITMENT TO JUSTICE.” 

JUSTICE EDWIN CAMERON JUDGE OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA

“MY LIFE WILL NOT BE THE SAME AFTER FACING HIV CRIMINALIZATION. MY 30 YEARS WORKING AS A NURSE AND DEDICATED TO SAVING LIVES HAVE BEEN ERASED. I HAVE SPENT ALMOST A YEAR IN PRISON. I HAVE BEEN BRANDED A CRIMINAL AND A KILLER EVEN THOUGH I HAVE HARMED NO ONE.”

ROSEMARY NAMUBIRU UGANDAN NURSE

Originally published by UNAIDS

Jamaica: Growing calls to make HIV transmission a criminal offense

Legal Loophole – Jamaica Has No Law To Charge Persons Who Wilfully Attempt To Spread HIV

There are growing calls in local legal circles to implement laws to make it a criminal offence for persons to wilfully and knowingly spread the human immunodeficiency virus (HIV).

Although it is reported that Jamaica has an estimated 32,000 persons living with HIV, so far, no person has been charged and convicted of exposing another person to infection by engaging in unsafe sexual conduct.

“There is no clear law which makes it an offence,” said attorney-at-law Chukwuemeka Cameron, as he argued that someone should take a case to court to test the law.

According to Cameron, if someone should be brave enough to take such a case to the courts it may open a floodgate.

“It is a new disease which came about after the enactment of the Offences Against the Person Act, and so this is a perfect example of the need for the law to change with new circumstances,” agreed attorney-at-law Bert Samuels.

“We have kept abreast of the changes of computer technology to enhance commerce but we have failed to look at a problem that touches and concerns our health. Our Parliament is entrusted to pass laws for peace, order and good governance of the country, and must, as a matter of urgency, pass laws to punish those who knowingly pass a deadly disease,” added Samuels.

The debate on the wilful and knowing spread of HIV was sparked recently as the Supreme Court had to decide, in an extradition case, whether the transmission of HIV by sexual relations is an offence in Jamaica.

The court ruled that charges could only be brought in cases where the victim was infected with the virus. But attorney-at-law Peter Champagnie has a different view.

Champagnie argues that there should be specific legislation to deal with offences committed knowingly by HIV-infected persons, as he disagreed with the court’s ruling.

CULPABILITY

“Although a victim may not be infected by HIV from unprotected sex, I cannot understand why it could not be categorised as an attempt,” said Champagnie.

According to Champagnie, the fact that a victim is not infected does not absolve the infected person of culpability.

“To my mind, he would have known of his status and was reckless as to whether or not the persons contracted the disease,” said Champagnie.

Attorney-at-law Don Foote, who represented 47-year-old Jamaican, Alfred Flowers, had argued that he should not be extradited to Canada to face charges of aggravated sexual assault because there was no corresponding offence in Jamaica.

Flowers knew, since June 1996, that he was HIV-positive but he had unprotected sex with four women, including his wife who he married in 2002 without informing them of his status.

The women said if they knew he was HIV-positive, they would not have been intimate with him. Three of the women are now HIV-positive while the fourth is currently HIV-negative.

Director of state proceedings Althea Jarrett and senior deputy director of public prosecutions Jeremy Taylor could find no local case to use as a precedent, and had to rely on authorities from other jurisdictions to support their interpretation of the Offences Against the Person Act.

They relied on Section 22 of the act to oppose Flowers’ contention that there was no corresponding offence in Jamaica.

“Whosoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon any other person with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding three years,” the section reads.

EXTRADITION TO CANADA

The court comprising Justice Christine McDonald, Justice Sarah Thompson James, and Justice Kissock Laing, in agreeing that Flowers should be extradited to stand trial in respect of the three women who are now HIV-positive, said it was open for the court to find that a person who knows that he is infected with HIV and recklessly infects another may be guilty of inflicting grievous bodily harm contrary to Section 22 of the Offences Against the Person Act.

But the court made it clear that if the victim of unprotected sex with an HIV-positive person is not infected, then that person cannot bring any criminal charges.

The court found that there was a grave lacuna in the Jamaican law, and said further that it was unfair that Flowers would only have to answer to charges in respect of three of the four complainants.

In explaining why Flowers cannot be tried in relation to the complainant who is not infected, the court said, “The infection would be a necessary ingredient were the accused to be charged in Jamaica for the offence under Section 22 of the Offences Against the Person Act.”

Canadian Groups Say No To HIV Criminalisation

The Canadian HIV/AIDS Legal Network that has been opposing HIV criminalisation for some time. It argues that:

– Canada is no model when it comes to HIV criminalisation where it has become out of control. With more than 180 people charged to date, Canada has become one of the world leaders in criminalising people living with HIV, with serious implications for human rights and public health.

– UNAIDS, the Global Commission on HIV and the Law, and the UN Special Rapporteur on the right to health have all urged to limit HIV criminalisation to intentional transmission – which is far from being the case in Canada, where people can be convicted of extremely serious offence even if they had no intent to harm their partner, took precautions (used a condom or were on effective treatment) and did not transmit HIV.

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

Uganda: Civil society coalition file a constitutional petition against controversial HIV and AIDS Prevention and Control Act, 2015

KAMPALA – A network of civil society organisations has dragged the Attorney General to the Constitutional Court, querying the packaging of the HIV and AIDS Prevention and Control Act, 2015.

Representatives of the CSOs filed a constitutional petition on Thursday, lamenting that the law is undermining efforts to fight the scourge.

“I believe the law will have the overall effect of undermining public health objectives of HIV prevention and control,” the petition reads in part. –

The petitioners are Uganda Network on Law, Ethics and HIV/AIDS (UGANET), Makerere law don Prof Ben Twinomugisha, and the International Community of Women Living with HIV in Eastern Africa (ICWEA).

Government’s chief legal representative and advisor the Attorney General is listed as the respondent.

Parliament passed the bill on May 13, 2014. President Yoweri Museveni assented to the bill in August of the same year. –