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.

Flat funding, harsh laws could hurt Uganda's battle against HIV

KAMPALA, 25 June 2014 (IRIN) – Inadequate funding coupled with harsh laws targeting same sex unions could erode the gains so far made in the fight against HIV in Uganda, activists warn.

Uganda: Parliament passes ‘deeply flawed’ HIV law, takes ‘giant leap backwards’: urge President Museveni to veto

After years of intensive debate and strong local and international advocacy against many of the problematic clauses found within Uganda’s omnibus HIV law, yesterday Uganda’s Parliament passed the HIV Prevention and Control Act virtually unchanged from this 2010 version.

The bill includes mandatory HIV testing for pregnant women and their partners, and allows medical providers to disclose a client’s HIV status to others. The bill also criminalises ‘wilful and intentional’ HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status.  There are some excellent analyses of the problematic provisions at The Observer (Uganda) and the Science Speaks blog.

Clauses 39 (‘attempted transmission of HIV’) and 41 (‘intentional transmission of HIV’) were adopted in the debate last week, as were clauses 13, 14 and 15 on mandatory and routine testing, with unverified reports that the ambit of clause 13 (‘HIV testing for purposes of criminal proceedings’) was broadened further. (Follow Parliament Watch Uganda [@pwatchug] on Twitter for latest details of the actual text).

Today, two press releases from Human Rights Watch, HEALTH Global Advocacy Project, and Uganda Network on Law, Ethics & HIV/AIDS (UGANET) and The International Community of Women Living with HIV (ICW) condemned the passage of the law in the strongest terms. They are likely to be the first of many.

“This HIV bill is yet another step backward in the fight against AIDS in Uganda,” said Maria Burnett, senior Africa researcher at Human Rights Watch. “It is founded on stigma and discrimination and based on approaches that have been condemned by international 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 three groups said. The criminalization of HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status is overly broad, and difficult to enforce.

[…]

“For Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalize them, and exclude them from policy making,” said Dorah Kiconco, executive director of Uganda Network on Law, Ethics & HIV/AIDS. “The president should not sign this bill and instead ensure a rights-based approach, recognizing that people living with HIV will prevent transmission if they are empowered and supported.”

[…]

“At the upcoming international AIDS conference, Uganda will be the example to all the countries gathered of how not to write laws on the HIV response,” said Asia Russell, international policy director at Health GAP (Global Access Project). “Parliamentarians are doing precisely the opposite of what Uganda should be doing to fight HIV.”

ICW’s press release is below

Today’s passage of the HIV Prevention and AIDS Control Bill represents a dangerous backslide in Uganda’s efforts to respond to HIV. While the bill may have been intended to facilitate and improve the HIV response in Uganda, the bill contains many poorly conceived and fear- induced provisions that have no place in a public health and human-rights-based response to HIV. As passed, this bill will actually weaken Uganda’s HIV prevention efforts and will have a detrimental and disproportionate impact on the rights of women and girls and in particular women living with HIV.

The International Community of Women Living with HIV Eastern Africa is extremely concerned about the devastating impact this law will have on the daily lives of women in Uganda. “It is disappointing that the Members of Parliament that we have engaged for so long, have ignored all the evidence, science and reason that we advanced as civil society organisations together with technocrats and scientists and chose instead, to act out of fear and unfounded hysteria – betraying the very will of the people that elected them to Parliament to represent their issues” said Lillian Mworeko, Regional Coordinator ICW EASTERN AFRICA.

The bill includes outdated and dangerous provisions for mandatory testing for pregnant women and their partners under Clause 14 (b) and (c). Mandatory testing of people living with HIV is a violation of fundamental human rights and accepted principles of informed consent and will negatively impact antenatal care attendance. Women—who will likely be the frequent target of these provisions— will shy away from hospitals and medical services. The devastating result will be that more children will be infected through mother to child transmission of HIV. Uganda is currently making strong strides towards zero infections from mother to child through use of proven strategies that emphasize voluntary counseling and testing. But Uganda’s gains could be lost if women are forced to test every time they visit a health facility. HIV testing of pregnant women, their partners and victims of sexual offenses must always be voluntary and conducted with informed consent.

“The fact that Uganda is even considering mandatory testing of pregnant women or victims of sexual offenses, represents a major step backwards for a country which showed early promise as an effective responder to HIV. Unfortunately, fear and ignorance have won the day in Uganda.” said Jessica Whitbread, Global Director of the International Community of Women Living with HIV.

Despite growing international consensus that criminalization is actually counter productive to the HIV prevention strategies, the Bill creates unnecessary and ill-advised additional criminal laws that criminalize attempted and intentional transmission of HIV. The International Community of Women living with HIV unequivocally opposes the criminalization of HIV status. The existing penal code already includes sufficient provisions to address criminal acts, creating additional parallel set of laws will just serve to persecute and punish people living with HIV. Criminalization will disproportionately impact women, who are more likely to know their HIV status through pregnancy related medical care. This provision will do little else but result in increased stigma and discrimination against people living with HIV, which are key drivers of the HIV epidemic.

Furthermore, the bill empowers medical workers to disclosure a person’s HIV sero status to a third party. Clause 21 (e); “where any other person with whom an HIV infected person is in close or continuous contact including but not limited to a sexual partner, if the nature of contact, in the opinion of the sexual medical practitioner, poses a clear and present danger of HIV transmission to that person;” Not only is this provision a clear violation of human rights and confidentiality but it is ripe for abuse by medical workers. Disclosure by medical workers of a person’s HIV status based purely on an individual opinion represents an institutionalized form of stigma and discrimination and dramatically increases the likelihood of violence against women living with HIV.

These poorly considered provisions at their best violate human rights and enshrine stigma and discrimination into law and at their worst will cause many people to shy away from accessing programs that work, such as prevention, treatment and care and support services including elimination of mother to child transmission services (eMTCT). Sadly, this bill undermines the very services that Uganda needs more than any other country in the world.

“Uganda is already facing a serious backslide from its early advances in responding to HIV, Uganda is currently one of three African countries experiencing increases in their HIV prevalence rates previously from 6.5% to 7.3 %. The passage of this Bill will only serve to increase this backslide and the President must save Uganda from this backlash”, says Margaret Happy, the Sexual Reproductive Health and Rights Officer, ICW Eastern Africa.

ICW Eastern Africa urges His Excellency Yoweri Kaguta Museveni, the President of Uganda, to rise above all and not assent to this Bill which is in contradiction of the commitments made by his wise assent to the East African Community HIV & AIDS Prevention and Management Act, 2012 .