US: A panel of health experts blasts HIV criminalisation laws as a failure that keep people from getting tested and ignore the current state of science

A panel of health experts blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

And the laws – in place in Georgia and states across the South – or prosecuting people for HIV exposure using other criminal statues – which happens in Texas and four other states – also ignore that partners in consensual sex acts share responsibility for their sexual health, according to Scott Schoettes, a senior attorney and HIV Project Director at Lambda Legal.

“The story is about the AIDS monster out there trying to infect everyone and that is not the case,” Schoettes said (top photo). “Sexual health is a shared responsibility. It creates a sense of false security for the person who is negative – ‘There is this law in place and I can sit back and wait for someone to tell me.'”

He said the laws keep people with HIV from getting tested and few, if any, of the laws require prosecutors to show that an HIV-positive person had any intent to infect a sex partner. Nevermind, he adds, that it’s difficult to prove that someone did disclose their HIV status before sex and once convicted, some state laws call for them to be labeled as sex offenders.

“It becomes a he said, he said and the person with HIV, when you get into that courtroom, is naturally at a disadvantage. A lot of people think that when you have HIV, you have done something wrong. We are still fighting that misperception,” Schoettes said. “When you have a jury that is deciding the fate of someone, they are disconnected from the culture of the folks that they may be actually adjudicating.”

And that can mean steep sentences for people convicted under HIV criminalization laws. In July, Michael Johnson – a black, gay, HIV-positive college wrestler in Missouri – was sentenced to 30 years in prison for infecting a sex partner and putting four others at risk, though prosecutors didn’t show in court that Johnson was the man who infected him. In South Carolina, former gay Atlanta man Tyler Orr faces two counts of exposing another person to HIV and up to 20 years in prison – though he says he did disclose his HIV status to his sex partner.

Schoettes’ comments came during a panel discussion during the 2015 National HIV Prevention Conference in downtown Atlanta earlier this month. He was joined by Randy Mayer, chief of the HIV, STD and Hepatitis Bureau of the Iowa Department of Public Health; Tami Haught, an activist who led efforts in Iowa to reform its HIV criminalization law; David Knight, a trial attorney with the Civil Rights Division of the U.S. Department of Justice; and Terrance Moore, deputy executive director with the National Alliance of State & Territorial AIDS Directors.

‘It’s not a slam dunk’

Knight said the HIV criminalization laws don’t reflect the current state of science and risk surrounding HIV and pointed to a document released earlier this year by the Justice Department calling on states to reform their HIV criminalization laws.

“Two things that we really want to think about is that intentional transmission is atypical and uncommon, and HIV stigma hampers prevention,” Knight said.

The Justice Department document calls on states to tighten their HIV criminalization laws to scrap HIV-specific criminal penalties with two exceptions – when an HIV-positive person commits a sex crime where there is risk of transmission and when there is clear evidence that an HIV-positive person intended to infect another person and engaged in risky behaviors to do so.

But changing HIV criminalization laws in the three-dozen states that have them is a tough haul, Mayer (second photo) and Haught said. They built coalitions across groups and enlisted public health experts to help revise the law in Iowa, a measure passed in 1998 that carried harsh penalties and 25-year prison terms that were often doled out to those convicted.

“In my experience, almost everyone got the 25 years even though that was the maximum,” Mayer said. “It’s not a slam dunk. It’s not an easy sell. Many people, even people living with HIV find themselves on both sides of this issue.”

Iowa lawmakers revised the state’s HIV criminalization law in 2014 to treat HIV like other communicable diseases such as hepatitis and tuberculosis. The law also requires that prosecutors prove intent to transmit, Mayer said.

“We had to bring in the different coalitions and bring in partners. Lawmakers don’t care what is fair and what is right. But they will listen to the public health side of the law,” Haught said. “Iowa’s law was significantly modernized and everyone is better for it.”

The panelists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, they should be pushed to treatment options. The Centers for Disease Control & Prevention has said getting HIV-positive people tested and connected to care and treatment is key to controlling the disease. Undiagnosed HIV infections fuel the HIV epidemic, Eugene McCray, director of CDC’s Division of HIV/AIDS Prevention, said during the Atlanta conference.

“Getting people into care is a better way to reduce transmission than these laws,” Mayer said.

Originally published in Project Q

Bahrain: HIV-specific law would include criminalising HIV non-disclosure to 'authorities, their partners or relatives'

Bahrain: A new law that both punishes and protects the rights of people with HIV could soon be introduced in Bahrain, reports Gulf Digital News.

[In 2012, it was reported in the Khaleej Times that lawmakers in Bahrain had proposed a penalty of 10 years in prison for people who intentionally transmit HIV to another person. It is not clear if intentional transmission is still criminalised in the latest draft bill, or whether the scope has been broadened to non-disclosure.]

It includes jail sentences and fines for those who fail to disclose they have the virus, as well as employers who penalise HIV-positive staff or job candidates.

The Shura Council yesterday gave the law initial approval, after it was earlier given the green light by the Cabinet.

It is a merger of two bills proposed by parliament and obliges the government to offer free medical and psychological care to those with HIV, as well as conduct awareness programmes.

Under the bill, those who discover they are HIV-positive should immediately report to the Health Ministry, but they can do so anonymously.

Anyone who does not inform authorities, their partners or relatives could be sentenced up to six months in jail and fined up to BD1,000.

The same punishment would apply to those who discriminate against people with HIV, including employers who sack staff who test positive and use it as an excuse for disqualifying a job candidate.

It also stipulates that prisoners with HIV should be housed separately from other inmates, but not held in isolation or treated as outcasts.

“There is a huge misunderstanding within the community regarding those with HIV and people’s reactions are unfair,” said council services committee chairwoman Dr Jehad Al Fadhel, who recommended approval of the law.

“People have to learn to deal with those with transmittable dangerous diseases, not as outcasts but as victims.

“Inhumanity is unacceptable and those who mistreat others due to HIV will be punished severely in accordance with the law – and the same applies to those who fail to inform their partners about their condition.”

The council will continue discussing the law during its session next Monday.

Bahrain has already taken steps to confront HIV and Aids, with the Cabinet last year reforming the National Committee for the Prevention of Aids.

It is tasked with coming up with strategies and programmes to prevent the disease – and ensure confidentiality of medical testing.

Duties and tasks of the committee are outlined in the draft bill currently at the Shura Council.

Russia: Chechen parliamentarian proposes mandatory HIV testing prior to marriage; has been policy in Chechnya since 2011

The lower house of the Russian parliament is considering legislation that would force couples wishing to get married to agree to mandatory HIV testing. The bill was submitted to the Duma by Magomed Selimkhanov, a Chechen deputy from the ruling United Russia party.

The legislation’s memorandum states that such a law would help identify cases of HIV infection that are currently going unrecorded, allow people get medical attention earlier, reduce the number of children infected with the disease, and contribute to the fight against the spread of HIV in Russia.

The Duma’s committee on health has supported mandatory HIV testing as a requirement for marriage. Anna Popova, the head of Russia’s Federal Service for Supervision of Consumer Rights Protection and Human Well-Being, has also signaled her support for such regulations.

According to Popova’s agency, more than 160,000 cases of HIV infection have been recorded in Russia over the past two years. Almost half of these cases are among Russians between the ages of 30 and 40. Roughly 20,000 HIV-infected people in Russia die every year.

Ramzan Kadyrov, the head of Russia’s Chechen Republic, is appealing on Instagram to Russian lawmakers, asking them to back the legislation. Chechnya has enforced such a policy since 2011, testing more than 95,000 people and discovering 94 cases of HIV infection, Kadyrov says.

Prison time for HIV?

Prison time for HIV? It’s possible in Veracruz

El Daily Post, August 6th 2015

New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women.

The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.

The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.

But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.

The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.

“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.

The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.

But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.

“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”

A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.

Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.

One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)

A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”

González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.

The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.

“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”

Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.

“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”

Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.

“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”

Nigeria: The Ondo State government has announced the commencement of the implementation of its HIV Anti-stigma law which prescribed a 10 year jail term, fine of N500,000 or both for any person who by whatever means transmits HIV to another person

Akure – The Ondo State government has announced the commencement of the implementation of its HIV Anti-stigma law which prescribed a 10 year jail term, fine of N500,000 or both for any person who by whatever means transmits HIV to another person.

Giving details of the law, which was signed last year, the Secretary to the State Government and Chairman, Ondo State Agency for the Control of AIDS, Dr. Aderotimi Adelola, said stigmatization and discrimination discourages people infected with and affected by HIV from accessing health and social services.

The law stipulates further that anybody who discriminates against people living with HIV commits an offence and is liable to fine of N100,000.00 or imprisonment of six months or both.

He spoke in Akure while delivering a keynote address at a sensitization programme to facilitate and ensure the enforcement of a law for the prevention of the spread of HIV and AIDS, elimination of discrimination and stigmatization of people living with HIV and “other matters incidental thereto or connected therewith.”

Adelola said most times the rights of people living with HIV are violated, causing them to suffer both the burden of the disease and the consequential loss of other rights.

US : Mississippi lawmakers pass law mandating HIV testing for anyone arrested for sexual assault

Updated by Paul Boger at Law enforcement officers will soon be able to do mandatory AIDS testing on those arrested for sexual assault. House Bill 2-57 was passed by lawmakers with nearly unanimous support in Mississippi’s House and Senate. The measure gives law enforcement the right to test individuals arrested for sexually assaulting a minor for diseases such as HIV and AIDS.

Under current Mississippi law, testing can only be conducted after a person has been convicted of a crime. Proponents say the new law will help young victims know if they’ve been exposed to a terrible disease. Republican Representative Mark Formby of Picayune helped draft the law. He says the test would become part of the intake process.

“If you’re arrested and you get photographed; it is not any additional evasive behavior,” says Formby. “We are documenting that you were arrested, which means that there was some degree of evidence that implicated you in a crime.”

Despite the measure’s popularity among lawmakers, some groups like the ACLU of Mississippi believe the law is a slippery slope.

Keia Johnson is the organization’s legislative strategist. She says the law amounts to an unreasonable search and seizure.

“We believe that when you mandate that DNA is to be collected for HIV testing purposes or anything like that upon arrest, that you are violating the due process of law,” Johnson says.

According to Representative Formby, both the suspect and the victim will be given the results of the test 24 hours after it was taken. At that time, all other DNA samples would be destroyed.

Antigua & Barbuda: 'Intentional HIV spread' rumours lead to calls for HIV-specific criminal law

The head of a local HIV/AIDS advocacy group is calling for residents to be more mindful of their sexual behaviour amidst rumors that people are intentionally spreading the HIV virus to others. The advice comes from Executive Director of the Antigua & Barbuda HIV/AIDS Network Inc (ABHAN) Eleanor Frederick.

“We cannot stop sending the message out there that HIV is alive and well and that we have to protect ourselves,” she said.

“Each person must take responsibility. First know their status and know their partner’s status. Use protection.”

An email to OBSERVER media from the Attorney General’s office stated that the Minster, Steadroy “Cutie” Benjamin, was recently presented with information to suggest that several residents have been intentionally infecting others with HIV.

In light of the allegations, an anonymous group of concerned citizens have called on Benjamin to enact laws to hold the culprits accountable.

“The group said that such vicious actions, in their estimation, is a matter of national security, and many lives are at risk and action needs to be taken soonest,” the missive read.

Benjamin, who is the country’s national security minister said he has promised that further research will be done to see what laws can be introduced to deal with the situation.

He is calling on members of society to protect themselves.

Frederick said she would support any move to criminalise the intentional spread of HIV/AIDS.

“I think it’s something that needs to be looked at. It’s not always a deterrent because when people are intent they couldn’t care less. There are those that decide they’re going to infect someone no matter what and there are others who will think twice about it, so we have to put something there,” she said.

Several countries across the world already have legislation condemning the intentional or reckless infection of another person with the HIV virus.

Some areas of the US have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV.

Others, including the United Kingdom, charge the accused under existing laws with crimes such as murder, manslaughter, attempted murder, or assault.

Kenya: Mandatory HIV reporting directive challenged as unconstitutional and a violation of people's rights

A directive by President Uhuru Kenyatta requiring the compilation of a report on all school children living with HIV and Aids has been challenged in court. The petitioners: Kenya Legal and Ethical Issues Network (Kelin), Children of God Relief Institute (Nyumbani) and two other parties, are apprehensive that compiling such a list violates the law and stigmatises the people living with HIV. High Court judge Mumbi Ngugi certified the matter as urgent and directed that the parties file and serve the relevant documents before the matter is heard tomorrow. The directive issued by the President on February 23 requires county commissioners and the ministries of Health, Education and Interior to collect up to date data and prepare a report on all school children living with HIV and information on their guardians. The directive further calls for information on expectant women and breastfeeding mothers who are HIV-positive. The petitioners stated that the Government agencies had proceeded to implement the directive without consulting people living with the virus, which they say contradicts Article 10 of the Constitution. See also: Leaders dismiss claims of ‘Kiambu-mafia’ machinations “The method of data collection under the said directive is prejudicial to the rights of the people living with HIV,” said Allan Maleche, the executive director at Kelin. He also said the National Aids Control Council (NACC) are holding the names illegally while implementing the president’s directive. Achesa stated in a sworn affidavit that the ministries had continued implementing the directive despite numerous advisory notes from his organisation, constitutional commissions and networks of people living with HIV. He added that a letter sent to the President on March 11 and a follow-up letter two weeks later were yet to be responded to. They now want the court to declare the directive unconstitutional and a violation of people’s rights. They also want the ministries and NACC to be compelled to destroy or codify all data in their possession collected as a result of the directive.

Nigeria: Senate passes law criminalising HIV non-disclosure, exposure and transmission with vague and overly broad statutes in the Sexual Offences Bill

Yesterday, Wednesday, June 3, the Sexual Offences Bill, sponsored by Senator Christiana Anyanwu, (pictured above) was passed by the Nigerian Senate.

The new law contains a number of problematic provisions relating to “HIV or any other life threatening sexually transmitted disease(s)” that were added between the 2012 draft and the 2013 draft that became law yesterday, notably:

Section 24 (Deliberate transmission of HIV or any other life threatening sexually transmitted disease) and
Section 39 (Intentional and unlawful acts)

Section 39 is actually much more of a concern, as it essentially frames non-disclosure of HIV (or any other ‘life-threatening STI, including, potentially, ebola) as sexual assault, because it is seen as fraud vitiating consent to otherwise consensual sex.

39. (1) An act is intentional and unlawful if it is committed. b) under false pretences or by fraudulent means.

(3) False pretences or fraudulent means, referred to in sub-section (1) (b), include circumstances where a person

(c) intentionally fails to disclose to the person in respect of whom an act which causes penetration is being committed, that he or she is infected by HIV or any other life-threatening sexual transmissible disease.

This is similar to – but much worse than – the current legal framework in Canada but without any defence relating to the risk of exposure, such as type of sexual act, condom use, or use of treatment as prevention.

One might argue that Section 24 (Deliberate transmission of HIV or any other life threatening sexually transmitted disease) isn’t as problematic, because it appears, at first glance, to only criminalise “intentionally, knowingly and willfully” transmitting HIV, which is in accordance with UNAIDS guidance.

However, similar to many other overly broad HIV criminalisation statutes across sub-Saharan Africa, under 24. (1) no transmission is necessary (or at least doesn’t need to be proven); it includes some very vague states of mind (“which he or she knows or ought to reasonably know“); and it is unclear what, if any, defences are allowed.

24. (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know

(a) will infect another person with HIV or any other life threatening sexually transmitted disease;

(b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease;

(c) will infect another person with any other sexually transmitted disease,

shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable, upon conviction, to imprisonment for a term of not less than twenty years but which may be enhanced to imprisonment for life.

In addition, under 24 (7) anyone accused or convicted of any of the offences covered in the Act (rape, sexual assault, indecent acts, child-related offences, exploitation of prostitution, incest, indecent exposure, sexual harassment, administering a substance with intent) will be tested for HIV (or other life-threatening STIs) and if found to be positive – whether or not they were aware of their infection – will have have their prison sentence enhanced to 15 years to life.

(7) Where a person is convicted of any offence under this Act and it is proved that at the time of the commission of the offence, the convicted person was infected with HIV or any other life threatening sexually transmitted disease whether or not he or she was aware of his or her infection, not withstanding any other sentence in this Act, he or she shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.

Two states in Nigeria – Enugu and Lagos – currently have overly broad HIV-specific criminal laws. It is not, however, clear whether this new law will override these laws and be binding on all 36 states in the Nigerian federation.

Research undertaken by the Network of People Living with HIV and AIDS in Nigeria (NEPWHAN) in 2010 found no known documented arrests or prosecutions at that time.

In 2013, when sentencing a 21 year-old teacher with HIV who was prosecuted for eloping with, impregnating and allegedly infecting, a 15 year-old former pupil, a Masaka High Court (in Nasarawa state) judge noted during sentencing that it is “common for people with HIV to maliciously infect others”.

In 2013, NEPWHAN and other civil society advocates successfully argued against the inclusion of a paragraph on “willful and deliberate spread of HIV” in the draft Anti HIV Discrimination Bill.

The HIV/AIDS Anti-Discrimination Act 2014 was finally passed earlier this year, and praised by UNAIDS and advocates for people living with HIV in Nigeria with the expectation that it would “create a more supportive environment, allowing people living with HIV to carry on their lives as normally as possible.”

However, the inclusion of the problematic provisions of the Sexual Offences Bill appears to have happened under the radar. Since the 2012 draft contained none of these provisions, they were likely added in 2013, when the draft Anti HIV Discrimination Bill was being discussed.

In one fell swoop 13% of all people living with HIV in the world are now potentially unjustly criminalised.

The full text of the law – one of 46 laws passed in 10 minutes yesterday according to media reports – is below.

Nigeria: Sexual Offences Bill 2015

US: Texas 'HIV criminalization bill' defeated

Despite some last-minute legal wrangling, the Texas legislature failed to pass several anti-gay measures as of the May 27 final deadline for passing any bills that lawmakers wish to see enacted into law. This year’s legislative session ends on June 1….

The legislature also failed to approve an HIV criminalization bill, which would have allowed prosecutors to subpoena the medical records and HIV test results of defendants living with HIV if prosecutors believe that they intended to intentionally infect people. The measure would have protected anybody who releases or discloses a test result in response to a subpoena from any liability, either civil or criminal, or any professionally disciplinary action.

According to LGBT and HIV/AIDS advocates, the bill was unnecessary, as Texas law already allows law enforcement and public safety officials to conduct HIV testing on individuals when appropriate, but there are privacy measures to keep the tests confidential. The advocates claimed the bill would have allowed an HIV-positive test result to be subpoenaed and used in any criminal proceeding against a person who happens to live with HIV, and was subjective, based on the personal whims and discretion of individual prosecutors.

The Human Rights Campaign (HRC), the nation’s top LGBT rights organization, worked with Legacy Community Health of Houston to oppose the HIV criminalization measure, saying revealing the results of an HIV test could potentially bias criminal proceedings, lead to enhanced privacy, and could discourage other people from getting tested for HIV for fear that a positive result would not be kept private and could be used against them.

“The defeat of SB 779 ensures that Texans living with HIV are not further stigmatized and penalized for their positive status,” Januari Leo, the director of public affairs with Legacy Community Health, said in a statement. “HIV is a public health issue that must be addressed through testing, treatment and prevention methods, not criminal prosecutions. HIV is neither a crime nor a death sentence.”