Gambia's National Assembly passes new HIV omnibus law that appears to be protective and supportive, but anti-gay law with life sentence for 'aggravated homosexuality' if living with HIV remains on the books

The Minister for Health and Social Welfare, Omar Sey, on Wednesday, 19th March, presented a bill entitled HIV AND AIDS PREVENTION AND CONTROL BILL, 2015 to the National Assembly during a session held in Banjul.In reading it for the second and third times, the health minister said the new Bill states that the ministers responsible for basic and secondary education, higher education and health shall ensure that students are educated on HIV and AIDS in public and private schools at basic, secondary and higher levels, including formal, non-formal and indigenous learning systems.

Mr. Sey said it shall be ensured that education and training courses cover mode of transmission, prevention and other sexually transmitted infections as well as human rights of the people living with HIV and vulnerable groups.

Further dwelling on the Bill, he said health care personnel shall ensure that education and information on HIV and AIDS form part of the health services that they render to their patients and that the ministry of health shall ensure that health care personnel are appropriately trained on information and education on HIV and AIDS.

On sensitization of HIV and AIDS in the work place, he said all employees and members of the armed forces and security services shall receive standard HIV and AIDS education which shall include themes on the causes, modes of transmission and prevention of HIV and on confidentiality at the work place and the acceptance of workers living with HIV and AIDS.

The health minister said community education on HIV and AIDS shall be launched, including the education of nationals abroad.

He said part of the Bill also requires the provision of information for tourists and passengers on transit.

In his intervention, Hon. Ousman Bah of Sabach Sanjal, who seconded the motion, commended the health ministry and said the bill is timely and relevant in the fight against HIV and AIDS. He urged his colleagues to pass the bill without hesitation.

Following some amendments, the Bill was eventually passed by the whole committee of the house.

But: http://www.theguardian.com/world/2014/nov/21/gambian-leader-approves-anti-gay-law

US: Rhode Island politician wants the state to consider new unscientific, stigmatising HIV non-disclosure law

State Lawmaker Targets People With HIV With Bill To Criminalize Exposure” by Zack Ford

Rhode Island state Rep. Robert Nardolillo (R) has introduced a new bill ( H 5245) that would criminalize exposing individuals to HIV without disclosing a positive status. Rhode Island is one of only 13 statesthat does not have such a law, but efforts are underway to roll back many of those other laws, which were passed when the virus was not as well understood as it is today.

Currently, Rhode Island does have a law that makes it a misdemeanor to expose another person to any sexually transmitted disease (STD), punishable by up to three months in jail and a fine of up to $100. Nardolillo told ThinkProgress that he doesn’t think this is appropriate for exposure HIV. “HIV is different. I put it alone,” he explained. “If this act happened, the penalty would be what?” According to his bill, it should be imprisonment up to 15 years and a fine up to $5,000.

A freshman legislator, Nardolillo openly discussed in his campaign that he was a victim of sexual assault as a minor and that he thus has “very strong views on sex offenders and the weak legislation that continually fails to protect those who are, have been, and will be victimized.” He noted that Rhode Island’s current laws offer “no penalty or enhancement” when STD transmission takes place during a sexual assault, though individuals can be punished for both. His new bill does criminalize when someone with HIV “forcibly engages in sexual intercourse,” but it also criminalizes when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

ThinkProgress confronted Nardolillo with studies that show that criminalizing HIV actually disincentivizes individuals from getting tested for HIV because they fear prosecution if they know their status is positive. As a result, the stigma against people with HIV increases and fewer people seek care for their HIV, which could increase their potential for transmitting the virus. “Have I read the research? I did,” Nardolillo confirmed, saying that he still felt that HIV was too serious not to prosecute in a distinct way.

ThinkProgress also asked Nardolillo about recent research showing that for HIV-positive people who have sought care and reduced their viral load to undetectable levels, it’s virtually impossible for them to transmit the virus to others. Should those individuals similarly be prosecuted for not disclosing their status? “I have no comment on that,” Nardolillo responded.

It was research about the risk of transmission that actually led the Iowa Supreme Court to overturn the conviction of a man who had been charged under that state’s HIV criminalization law last year. In fact, the Court said that, regardless of viral load, protected anal sex or unprotected oral sex are now known to carry such a minimal risk of transmission that they could not hold someone accountable for “risking” exposure when engaging in those activities. Nardolillo’s bill implicates any and all vaginal, anal, or oral sex with no qualifications as to whether protection is used.

Last year, Iowa became one of the first states to rescind its HIV criminalization laws, leaving penalties only for those who insidiously intend to transmit the virus. Though other states have not yet followed Iowa’s example, there is consensus among HIV/AIDS experts and advocates that they should. Both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. These laws, they argue, are not based on the medical evidence currently available and counter-intuitively increase stigma and interfere with prevention efforts, making it harder to fight the HIV epidemic, not easier.

The House Committee on the Judiciary will consider Nardolillo’s bill Tuesday afternoon. It currently has four other co-sponsors, but its prospects for passage are unclear.

Australia: Western Australia implements unscientific new law mandating HIV and hepatitis testing for spitting at, or biting, cops

Spitters and biters beware.  From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.

The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.

WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.

“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.

“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.

“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”

Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.

“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.

She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.

“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.

Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.

Test will check for HIV, hepatitis B and C.

Uganda: HIV Prevention and Management Act should be seen in context with Anti-Pornography Act, Anti-Homosexuality Act and Narcotics Law says OSF

On November 20, Uganda’s parliament passed the Narcotic Drugs and Psychotropic Substances (Control) Bill, also known as the Narcotics Law. A draconian piece of legislation, the law purports to deter drug abuse by imposing inhumanely long prison sentences-a conviction for simple possession can land a person in a cell for 25 years.

Nepal: Draft criminal code prohibiting infectious disease transmission singles out people with HIV and hepatitis B

Lawmakers in Nepal are considering a draft law that singles out people with HIV and hepatitis B, contrary to recommendations from UNAIDS and the Global Commission on HIV and the Law.

According to the draft text, tweeted by IRIN Humanitarian News reporter Kyle Knight, Article 103 ‘Prohibition of transmission HIV’ of Chapter 5, Offenses against Public Interest, Health, Safety, Facilities and Morals, criminalises people who are “aware of knowledge of one’s own positive HIV or Hepatitis B status”, who “purposefully or knowingly commit acts that would transmit Hepatitis B or HIV, give blood or coerce to give blood or come into sexual contact without precautionary measures in place, or cause entry of blood, semen, saliva, or other bodily fluids into the body of another.”

 

There are two levels of mens rea (state of mind) for such acts.

If it is “determined that the offender has purposefully or knowingly committed such an offense” the penalty is “up to 10 years of incarceration” and a fine up to 100,000 Rupees (approx. US$1000).

“However, if determined that the transmission occurred without intent to purposefully transmit or determined that the transmission occurred out of carelessness it shall be punishable by up to 3 years of incarceration and” a 30,000 Rupee (approx. US$300) fine.”

If the complainant has “knowingly initiated sexual contact with someone with [a] positive HIV or Hepatitis B status out of their own volition, such an act shall not be considered an offense.”

Given that article 102, ‘Prohibition of transmission infectious diseases’ already criminalises anyone who should “commit acts that could endanger the lives of others through the transmission or the potential transmission of infectious diseases” it is unclear why people with and HIV and hepatitis B are singled out, unless it is to provide a consent defence, which is not allowed in article 102.

In addition, article 102 provides for three levels of mens rea: “purposefully or knowingly” (with a penalty of up to 10 years of incarceration and a Rs. 100,000 fine); “negligently or irresponsibly” (up to 5 years of incarceration and a Rs. 50,000 fine); and “carelessly or recklessly” (up to 3 years of incarceration and a Rs. 30,000 fine).

Guidance from UNAIDS recommends that the only state of mind that may warrant criminal prosecution for alleged HIV transmission is malicious intent, and that HIV should never be singled out for special treatment. 

It is unclear how a court (or the police or prosecutors) would be able to differentiate between the various states of mind outlined in this draft law.

And whilst it could be seen as a positive step to allow for a consent defence, the law is far too vague and broad in terms of defining the acts that “would” risk HIV exposure or transmission, potentially criminalising all sex (including kissing and oral sex) by a person living with HIV unless their partner consented, even if no exposure was possible and/or no transmission is alleged to have occurred.

This would result in people living with HIV or hepatitis B being vulnerable to arrest and prosecution which would increase stigma and make it more likely that testing, treatment and beneficial disclosure would not take place.

HIV advocates in Nepal are currently responding to the draft law by sensitising parliamentarians to the notion that such laws do more harm than good to public health.

Nepal Draft HIV/Hepatitis B Criminal Law

Malawi: Delay in presenting draft HIV/AIDS bill to Parliament over "contentious" statutes that would criminalise 'wilful' HIV transmission and mandate HIV testing for pregnant women

Lilongwe – In a bid to address some contentious issues in the draft HIV and AIDS Prevention and Management Bill, Capital Hill has said it will not submit the bill to Parliament during the September meeting as was expected. Instead, Secretary for HIV/AIDS and Nutrition, Edith Mkawa said the bill will be presented during the next sitting of parliament.

Speaking to Malawi News Agency (Mana) on the sidelines of a Malawi Network of People Living with HIV/AIDS-MANET+ policy dialogue dinner meeting with parliamentarians on Wednesday, Mkawa said the draft bill was currently at the Ministry of Justice.

She said officials in her department would on Thursday, September 4, dialogue with their counterparts from the justice ministry on certain provisions before the bill is finally sent to the Cabinet and then parliament.

“There are legal issues like the criminalization of deliberate HIV transmission and mandatory testing for pregnant women that should be carefully addressed because they border on the rights of an individual. It is therefore important that we address them before we can comfortably say the bill is ready,” she said.

The PS also noted that most Members of Parliament needed to have adequate information before they deliberate on the bill in parliament.

“Most of these MPs are new and need to have as much information as possible, so we will be engaging them and various stakeholders so that we are on the same page. So, we will not be sending it to parliament now, it has to go through all the processes, ” added Mkawa.

Board Chairperson for MANET+ Joyce Mataya said the bill was one of the remedies that would effectively support the HIV response in the country.

“MANET+ has seen great improvement on the review process which led to some contentious provisions being removed and others revised. For instance if you talk about mandatory testing, and if I declare my status, how are people going to treat me?”

Mataya added, “There will be a lot of stigma and discrimination. So we need to create an environment which is friendly for this process. Any HIV testing should be by informed and truly voluntary consent; Similarly disclosure of HIV status to relations and partners should be at the discretion of the person living with the virus. ”

And, chairperson for the Parliamentary Committee on HIV/AIDS and Nutrition, Deus Gumba said they were ready to pass the bill once presented in parliament.

The HIV and AIDS Prevention and Management Bill was developed by the Malawi Law Commission-MLC in 2008 to among others, provide an institutional framework for effective regulation of the prevention and management the HIV and AIDS epidemic in Malawi.

Liberia: Law proposed to criminalise those who "knowingly or willfully infect" with any communicable disease, including HIV, Ebola, hepatitis B or gonorrhoea

The House of Representatives is reviewing a law to criminalize the concealing of information of persons with communicable or contiguous diseases in Liberia. Presenting the Draft Bill to the Plenary during the 54th Day sitting of the House, Lofa County Representative of District 5, Moses Kollie, proposed that if a person or group of persons knowingly or willfully infect another person or group of persons with any communicable disease that should be considered as a criminal Act.

The Bill titled “2014 Act Criminalizing Concealing Information of person (s) with Communicable/contiguous infectious Disease(s) in Liberia” named those communicable or contiguous diseases as Ebola, gonorrhea hepatitis B (Hep B), HIV/AIDS and Lassa fever.

Others include Leprosy, Measles, meningitis, smallpox, Tuberculosis, typhoid fever and yellow fever amongst others.

“If a person or group of persons knowingly, intentionally or willfully infect another person or groups of persons with any of the communicable/contiguous disease(s) as mentioned in section 3 of this Act shall be considered as a Criminal Offense, second degree felony punishment under the laws of the Republic of Liberia”. As stipulated in Section 4 of the bill.

The House Committees on Health and Social welfare and Judiciary have been mandated by plenary to review and advice that honorable body next Tuesday.

Ugandan President Signs Law Criminalizing HIV Transmission

Ugandan President Yoweri Museveni has signed a bill into law to criminalize HIV transmission and impose other measures public health activists say will make it even harder to get Uganda’s severe epidemic under control.

Uganda: Civil society coalition condemns President Museveni for signing HIV Prevention and Control Bill into law

[Press Statement from the Coalition for HIV/AIDS Prevention and Control Act]

Civil society organisations reacted harshly today to the assent by President Museveni on July 31 2014 to Uganda’s controversial HIV Bill, the HIV Prevention and Control Act of 2014, which was passed on May 13 2014 by Ugandan Parliament. This law has been publicly criticised by officials leading the HIV response in Uganda, such as the AIDS Control Programme of the Ministry of Health and the Uganda AIDS Commission, entities that repeatedly told media that this Act would take Uganda‟s AIDS response in “the wrong direction.”

“We are outraged that Uganda would willingly embrace backwards laws and policies,” said Lilian Mworeko of ICW East Africa. “How can we achieve the AIDS Free Generation that government has committed to when Uganda adopts such a law?”

The law has been assessed by experts in Uganda such as UNAIDS and the Ugandan Human Rights Commission, as discriminatory, with key provisions that will impede the fight against AIDS.The controversial provisions in the Act include: mandatory HIV testing for pregnant women and their partners, and allows medical providers to disclose a patient’s HIV status to others without consent. The bill also criminalises HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status.

“Why is Uganda avoiding evidence of what works in the AIDS response?” asked Kikonyogo Kivumbi of UHSPA. “It is founded on stigma and discrimination and based on outmoded and unnecessary approaches that have been condemned by health agencies as ineffective and violating the rights of people living with HIV.”

Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights. The criminalization of HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status is overly broad, and difficult to enforce.

The organisations are exploring a legal challenge to the Act, considering these violations.

“We are gravely concerned that this Law will drive people at risk of HIV infection, in particular criminalised populations such as sex workers and gay men, further from life saving services they need,” said Asia Russell of Health GAP.

President Museveni‟s assent came despite criticism by the Ministry of Health’s AIDS Control Programme, and the Board Chair of the Uganda AIDS Commission, Professor Vinand Nantulya, along with many independent health rights groups in Uganda. They oppose the contentious clauses and called on Uganda to fight HIV with more effective legislation.

“For Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalise them, and exclude them from policy making,” said Dorah Kiconco, executive director of Uganda Network on Law, Ethics & HIV/AIDS.

Signed Ugandan HIV and AIDS Prevention and Control Act 2014

VAC and Living Positive Victoria call for reform of state's HIV-specific criminal laws

VICTORIA’S two main HIV and AIDS organisations have released a joint statement urging their state government to reform its HIV-specific criminal law. In a joint policy discussion paper focusing on the repeal of section 19A of the Victorian Crimes Act, the Victorian AIDS Council (VAC) and Living Positive Victoria (LPV) stated that reform needed to happen in order to achieve the goal of eliminating HIV transmissions by 2020.