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Tajikistan: Amendments to criminal code introduces criminal liability for beauty salons, hairdressers and other services & strengthened penalties in cases of alleged HIV transmission

Рахмон ввел ответственность для парикмахеров за заражение ВИЧ
January 4, 2019

Rahmon introduced criminal liability for hairdressers to HIV infection (Google translation from Russian)

In Tajikistan, the liability of doctors, beauty salons, hairdressers and other service enterprises for HIV infection has been strengthened. The President of the Republic, Emomali Rakhmon, has signed amendments to the Criminal and Administrative Codes made and supported by the Parliament, the Khovar agency reports .

Responsibility, according to the law, is provided for those employees who “due to non-compliance with sanitary and hygienic, sanitary and anti-epidemic rules and regulations have become the cause of the HIV / AIDS virus.” The punishment is also tightened for those who are engaged in the import and production of low-quality or counterfeit medicines that do not meet established standards, or sells expired medicines.

Other amendments made to the Criminal Code strengthened the responsibility for intentional infection with the HIV / AIDS virus and human trafficking. For how long the penalties are tightened, it is not reported, it says only that “the full text of the adopted laws will be published in the official press of the country in the coming days.”

The first, which became known to the media, the case of accountability in Tajikistan of a person guilty of mass infection of the disease, occurred in August 2018. A court in the Sharuz district of the Khatlon region sentenced a local woman who engaged in prostitution and thus infected 10 men with HIV, to one year’s imprisonment.

Later began “sanitary” raids on hairdressing and dental clinics. In the Khatlon region, several barber shops, beauty salons and dental clinics were closed, and in the Sughd region, dozens of dental offices and beauty salons closed for violation of sanitary and hygienic standards.

This happened after September 1 at the State Medical University Rakhmon criticized the activities of private dental clinics, expressed concern about the growth of infectious diseases, instructing the Ministry of Health and other specialized departments to “take action”, and also proposed criminal liability for dentists and hairdressers customers are infected with any kind of infection.

Source: Fergana News, January 3, 2019

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Рахмон ввел ответственность для парикмахеров за заражение ВИЧ

В Таджикистане усилена ответственность врачей, работников салонов красоты, парикмахерских и других предприятий сферы обслуживания за заражение ВИЧ. Президент республики Эмомали Рахмон подписал внесенные и поддержанные парламентом поправки в Уголовный и административный кодексы, сообщает агентство «Ховар».

Ответственность, говорится в законе, предусмотрена для тех сотрудников, которые «из-за несоблюдения санитарно-гигиенических, санитарно-противоэпидемических правил и норм стали причиной заражения вирусом ВИЧ/СПИД». Наказание ужесточено также для тех, кто занимается ввозом и производством низкокачественных или поддельных медикаментов, не отвечающих установленным стандартам, или продает просроченные лекарства.

Другими изменениями, внесенными в УК, усилена ответственность за умышленное заражение вирусом ВИЧ/СПИД и торговлю людьми. На какие сроки ужесточены наказания, не сообщается, говорится только, что «полный текст принятых законов в ближайшие дни будет опубликован в официальной прессе страны».

Первый, ставший известным СМИ, случай привлечения к ответственности в Таджикистане лица, виновного в массовом заражении болезнью, произошел в августе 2018 года. Суд Шаартузского района Хатлонской области приговорил местную жительницу, занимавшуюся проституцией и заразившую таким образом ВИЧ-инфекцией 10 мужчин, к одному году лишения свободы.

Позже начались «санитарные» рейды на парикмахерские и стоматологические клиники. В Хатлонской области были закрыты несколько парикмахерских, салонов красоты и стоматологических клиник, а в Согдийской области за нарушение санитарно-гигиенических норм закрыли десятки стоматологических кабинетов и салонов красоты.

Это произошло после того, как 1 сентября в Государственном медуниверситете Рахмон раскритиковал деятельность частных стоматологических клиник, выразил обеспокоенность ростом инфекционных заболеваний, поручив Минздраву и другим профильным ведомствам «принять меры», а также предложил ввести уголовную ответственность для стоматологов и парикмахеров, если по их вине клиенты заражаются какой-либо инфекцией.

Cambodia: Police arrests immigrant for overstaying his visa and investigates alleged HIV transmission complaint

Suspect held for allegedly spreading HIV
December 31, 2018

Suspect held for allegedly spreading HIV

Source: The Phnom Penh Post – Published on December 31, 2018

Immigrant police on Friday arrested a Kenyan national for overstaying and allegedly spreading HIV to several women following a complaint from his Australian girlfriend.

Phnom Penh municipal police immigration office chief Chea Chetra said the man was also found to have lost his passport, had an expired visa and was working without a permit.

Chetra said the Kenyan’s arrest came following a complaint from his Australian girlfriend that he had allegedly spread HIV to several women.

The allegation that the man had spread HIV was still under the investigation, with the Kenyan national currently being held for violating immigration laws, he added.

“We do not know if he is HIV positive. We just followed the complaint and discovered he did not have a passport with him, and that he had been living and working without a work permit.”

General department of immigration deputy director Keo Vanthan said the Kenyan national had been staying in Cambodia without proper documents for four years, and that if he is convicted of spreading HIV, he must serve a jail term in Cambodia before being deported.

Police said there were currently no complaints filed by Cambodian women.

 

US: Tennessee woman living with HIV charged with “unprotected intimate contact”

Linden woman charged: Criminal exposure to HIV
December 27, 2018

Source: Buffalo River Review, December 26, 2018

Linden woman charged: Criminal exposure to HIV 

A Linden woman has been charged with “unprotected intimate contact” for allegedly knowing she exposed a man to HIV.

Sheriff Nick Weems told the Review that he is not aware of this charge ever being filed against another individual in Perry County.

The woman, 46, according to the arrest warrant, “had unprotected intimate contact with a male victim over the course of a year,” from November of 2017 to November 2018.

The warrant says the victim claimed that she never informed him that she was HIV positive. She was booked into the Perry County Jail on one count of criminal exposure to HIV.

Under Tennessee law:  “A person commits the offense of criminal exposure of another to human immunodeficiency virus (HIV) when, knowing that the person is infected with HIV, the person knowingly: Engages in intimate contact with another.”

Criminal exposure to HIV is a Class C felony.

 

US: 22-year-old prisoner charged with aggravated assault in Pennsylvania for spitting on guard

Prisoner committed assault with a deadly weapon by spitting on jail guard, police say
December 27, 2018

Source: Chambersburg Public Opinion – US Today – Published on December 27, 2018

CHAMBERSBURG — A man facing trial on another charge is accused of spitting on a corrections officer at Franklin County Jail.

The man, 22, was charged with two felonies, and Magisterial District Judge T. R. Williams set his bail at $100,000.

X spat on the corrections officer around 4:15 p.m. on Dec. 1 at the jail, 1804 Opportunity Ave. in Greene Township, according to court documents. Police considered his spit a deadly weapon: X knew, or should have known, he was infected with a communicable disease, such as HIV or hepatitis B.

He intentionally spat saliva and phlegm from his lungs in the officer’s face, police said. The officer was treated at a medical center for possible exposure to communicable diseases.

Pennsylvania State Police, Chambersburg, charged him with aggravated assault and assault by a prisoner. Both are felonies. They also charged him with simple assault and harassment.

 

 

[Update]Russia: Sentence of man convicted in Irkutsk for alleged “wilful HIV transmission” overturned on technicality but prosecution will seek longer sentence in retrial

В Иркутске завершено судебное следствие по делу об умышленном заражении ВИЧ–инфекцией
December 27, 2018

In Irkutsk, a court overturned a sentence to a criminal who deliberately infected his girlfriend with HIV (Google translation, for article in Russian please scroll below). 

Today, the court of the Irkutsk region overturned the sentence of the Irkutsk city court, who deliberately infected his girlfriend with HIV. 

The victim’s lawyer Svyatoslav Khromenkov informed the reporter of SibReal about this.

In Irkutsk, today, December 26, a meeting of the appeal court was held in the Irkutsk Region Court on the suit of the defendant. In late October, the city court found him guilty of deliberate HIV infection and sentenced him to 2.5 years in a penal colony. At today’s meeting, the judge overturned this decision, drawing attention to a violation in the work of the investigators. “The criminal case was at some point terminated by the investigator, then this decision to terminate the criminal case was canceled – but it turned out that it was not authorized ” Khromenkov explained to the editorial board of SibReal. – Yes, this is a formality however, it must be eliminated, all court sessions should be resubmitted. This will not affect the conviction of the offender – on the contrary, we will use the opportunity and demand tougher punishment. Such is the practice of the European court and our civil lawyers D prophylaxis of HIV infection, at the March meeting of the UN, they expressed a similar position – in their opinion, people deliberately infecting with such a serious disease should be judged by Article 111 of the Criminal Code of the Russian Federation – for causing grievous bodily harm. There the term will be up to 8 years. And our society also speaks out for a more severe punishment for such criminals. 2.5 years in the colony of the settlement is, of course, too soft a punishment – after all, the girl’s health has been seriously harmed. ”

The human rights activist, on behalf of the victim, intends to file an application for the recovery of non-pecuniary damage to investigators who have made a mistake. “It turns out that this is already the second significant violation in the case on their part. We first discovered the second – the judge. It seems to me that this clearly indicates how poorly the investigation was conducted,” Khromenkov said.

The injured Irkutsyanka woman and her lawyer managed to reach a criminal case only a few months after the submission of the first application to the law enforcement agencies. At the same time, the girl had to look for some evidence on her own: for example, to prove close acquaintance and serious relationship with the accused, she restored on her phone joint photos that the man had previously deleted.

The accused changed his testimony twice: first he stated that he was not familiar with the victim, then he did not come into the vicinity with her. According to the lawyer, such cases are difficult due to difficulties in collecting evidence. However, in this case, the doctors conducted a rare genetic analysis of sequencing and 99.5% confirmed that the defendant had infected the victim. “Another medical study confirmed that the depth of the infection period in the victim coincides with the time when she lived with the defendant,” Khromenkov told SibReal.

In March, the Oktyabrsky District Court returned the case on the intentional contamination of Irkutsk women for further investigation because the investigator incorrectly numbered the pages of the indictment and did not sign the document.

Source: https://www.sibreal.org

В Иркутске суд отменил приговор преступнику, умышленно заразившему ВИЧ-инфекцией свою девушку

Сегодня суд Иркутской области отменил приговор городского суда иркутянину, умышленно заразившему ВИЧ-инфекцией свою девушку. Об этом корреспонденту “Сибирь.Реалий” сообщил юрист пострадавшей Святослав Хроменков.

В Иркутске сегодня, 26 декабря, состоялось заседание апелляционной инстанции в суде Иркутской области по иску подсудимого. В конце октября городской суд признал его виновным в умышленном заражении ВИЧ-инфекцией и назначил 2,5 года колонии-поселения. На сегодняшнем заседании судья отменила это решение, обратив внимание на нарушение в работе следователей. “Уголовное дело в какой-то момент было прекращено дознавателем, потом это постановление о прекращении уголовного дела было отменено – но отменило его, как оказалось, не уполномоченное на это лицо, – объяснил редакции “Сибирь.Реалий” Хроменков. – Да, это формальность, однако ее надо устранить, заново провести все судебные заседания. На признании преступника виновным это никак не скажется – напротив, мы воспользуемся случаем и потребуем более жесткого наказания. Такова и практика европейского суда, и наши гражданские юристы, работающие в сфере профилактики заражения ВИЧ-инфекцией, на мартовском заседании ООН высказали аналогичную позицию – по их мнению, людей, умышленно заражающих таким тяжелым заболеванием, надо судить по 111-й статье УК РФ – за причинение тяжкого вреда здоровью. Там срок будет уже до 8 лет. И общество наше тоже высказывается за более строгое наказание для таких преступников. 2,5 года в колонии поселения – это, безусловно, слишком мягкое наказание – ведь здоровью девушки был причинен тяжкий вред”.
 

Правозащитник от имени пострадавшей намерен подать заявление о взыскании морального вреда на следователей, допустивших ошибку. “Получается, это уже второе существенное нарушение в деле с их стороны. Первое обнаружили мы, второе – судья. Мне кажется, это уже достаточно ясно говорит о том, насколько некачественно велось следствие”, – сообщил Хроменков.

Добиться возбуждения уголовного дела пострадавшей иркутянке и ее адвокату удалось только спустя несколько месяцев после подачи первого заявления в правоохранительные органы. При этом некоторые улики девушке пришлось искать самостоятельно: к примеру, для доказательства близкого знакомства и серьезных отношений с обвиняемым она восстановила на своем телефоне совместные фотографии, которые ранее мужчина удалил.

Обвиняемый дважды менял показания: сначала заявил, что не знаком с потерпевшей, потом – что не вступал с ней в близость. По словам юриста, подобные дела сложны из-за трудностей со сбором доказательной базы. Однако в этом случае медики провели редкий генетический анализ секвенирования и на 99,5% подтвердили, что подсудимый заразил потерпевшую. “Другое медицинское исследование подтвердило, что глубина срока заражения у пострадавшей совпадает с тем временем, когда она жила с подсудимым”, – сообщил корреспонденту “Сибирь.Реалий” Хроменков.

В марте суд Октябрьского района возвращал дело об умышленном заражении иркутянки на доследование из-за того, что дознаватель неверно пронумеровал страницы обвинительного заключения и не подписал документ.

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Guilty of HIV transmission: a resident of Irkutsk was given almost three years in a penal colony (Google translation, for article in Russian please scroll below). 

Today was the final court hearing

Today, October 24, a resident of Irkutsk was sentenced. The man entered into a sexual relationship with his beloved, without warning her that he was infected with HIV . The offender was sentenced to 2 years and 6 months in a colony – settlement.

“Komsomolskaya Pravda” actively covered this story

Background: 35-year-old Ella Mironova (name and surname changed) met a beautiful man in 2016 and passionately fell in love with him. The young people git together. A month later, the girl suddenly fell ill with fever, malaise. She was taken to the infectious diseases hospital. Doctors said it was not the flu, but meningitis and the human immunodeficiency virus. Ella was in shock, because a year before that she had undergone a full examination, and nothing like this had been identified. Then she realized that she been “rewarded” by her beloved with the illness. After making inquiries. It turned out that the man had been registered with the AIDS Center since 1999. The girl tried to contact him, but he denied it. There was no way out, so she decided to go to court.

Lawyers called this case a precedent , and not only in Irkutsk, but throughout Russia . But Ella was lucky, the doctors and experts who worked in this case are 99.5% sure that it was this man who infected Ella.

Sentencing was postponed more than once, but today the offender heard his sentence. It should be noted that it was this Irkutsk woman who for the first time in Russia brought the case of HIV infection to court.

Published in News24 on October 25, 2018

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Виновен в заражении ВИЧ: жителю Иркутска дали почти три года колонии-поселения

Сегодня состоялось финальное заседание суда

Сегодня, 24 октября вынесли приговор жителю Иркутска. Мужчина вступил в половую связь с возлюбленной, не предупредив, что заражен ВИЧ – инфекцией. Преступника приговорили к 2 годам и 6 месяцам пребывания в колонии – поселения.

«Комсомолка» активно освещала эту историю.

Напомним, 35-летняя Элла Миронова (имя и фамилия изменены) еще в 2016 году познакомилась с красивым мужчиной и страстно влюбилась в него. Молодые люди съехались. Через месяц девушка внезапно заболела: высокая температура, недомогания. Ее привезли в инфекционную больницу. Врачи сказали, что это не грипп , а менингит и вирус иммунодефицита человека. Элла была в шоке, ведь за год до этого проходила полное обследование, и ничего подобного выявлено не было. Тут она и поняла, что «наградил» ее болезнью возлюбленный. Пришлось навести справки. Оказалось, что мужчина состоит на учете в СПИД-центре аж с 1999 года. Девушка попыталась связаться с ним, но он как в воду канул. Выхода не было, решила обратиться в суд.

Юристы назвали это дело прецедентом, причем не только в Иркутске, а по всей России. Но Элле повезло, медики и эксперты, которые работали по данному делу, на 99,5 % уверены, что именно этот мужчина и заразил Эллу.

Вынесение приговора откладывалось не единожды, но сегодня преступник услышал свой срок. Отметим, что именно эта иркутянка впервые в Росии довела дело о заражении ВИЧ до суда.

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Judicial investigation in Irkutsk on a case of willful HIV infection (google translation, for original article in Russian, please scroll down).

The Oktyabrsky District Court of Irkutsk completed its investigation into a case of deliberate transmission of HIV to a girl. The materials of the criminal case have been investigated, the witnesses have been questioned.

At a meeting on September 25, they announced the protocol of confrontation held in October 2016. This was petitioned by the defender of the plaintiff in connection with the contradictions in the defendant’s testimonies. At the request of the lawyer, letters of appreciation and other documents characterizing the identity of the plaintiff were attached to the case.

The prosecutor asked clarifying questions to both sides. They differed in their testimony around the site on which they met and for what purpose. The accused completely does not admit guilt and denies that he had sex with a girl. The criminal case was initiated in accordance with part 2 of Article 122 of the Criminal Code of the Russian Federation “Infection with HIV”. A man faces up to 5 years imprisonment.

On the eve of this case, the public prosecutor was replaced. In the next meeting will be the debate of the parties. The meeting was scheduled for September 27, but the state prosecutor asked more time to get acquainted with the case materials and prepare for the debate. The trial is scheduled for October 2.

Published in IRK.ru on September 25, 2018

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В Иркутске завершено судебное следствие по делу об умышленном заражении ВИЧ-инфекцией

Октябрьский районный суд Иркутска завершил судебное следствие по делу об умышленном заражении девушки ВИЧ-инфекцией. Материалы уголовного дела исследованы, свидетели допрошены.

На заседании 25 сентября огласили протокол очной ставки, проведенной в октябре 2016 года. Об этом ходатайствовал защитник истицы в связи с возникшими противоречиями в показаниях ответчика. По просьбе адвоката к делу были приобщены благодарственные письма и другие документы, характеризующие личность истицы.

Гособвинитель задавала уточняющие вопросы обеим сторонам. Они разошлись в показаниях о том, на каком сайте познакомились и с какой целью. Обвиняемый полностью не признает вину и отрицает, что у него был секс с девушкой. Уголовное дело возбуждено по части 2 статьи 122 УК РФ «Заражение ВИЧ-инфекцией». Мужчине грозит лишение свободы до 5 лет.

Накануне по данному делу заменили государственного обвинителя. В следующем заседании пройдут прения сторон. Заседание было запланировано на 27 сентября, но гособвинитель попросила больше времени, чтобы ознакомиться с материалами дела и подготовиться к прениям. Судебное назначено на 2 октября.

 

US: Robert Suttle reflects on outdated HIV-specific criminalisation laws and the work of advocates to change them all over the US

Being HIV Positive might land you in jail. But that is changing
December 24, 2018
by 
 
UNDER LOUISIANA LAW, YOU CAN WIND UP WITH A $5,000 FINE AND FIVE YEARS’ JAIL TIME IF SOMEONE COMES IN CONTACT WITH YOUR SPIT — IF YOU’RE HIV POSITIVE. THESE LAWS ARE BASED ON OUTDATED SCIENCE AND MULTIPLE ORGANIZATIONS ARE WORKING TO CHANGE THEM.

Whenever Robert Suttle thinks about his time in jail, his eyes go soft, he lets out a long breath and his lips purse a bit. It’s noticeable that he — after almost a decade — still gets emotional about what put him behind bars.

In 2008, while working as an assistant clerk for the Louisiana Court of Appeals, Suttle went through a bitter breakup that resulted in a tit-for-tat trial, ending in Suttle being sentenced to six months in jail and registering as a sex offender for intentionally exposing a sexual partner to HIV. But there was no transmission of the virus.

And even though Suttle says he disclosed his status to his partner and that the sex was consensual, it didn’t matter much under Louisiana’s HIV exposure law, which states that anyone with HIV or AIDS who has unprotected sex can be tried and charged with a nonviolent felony. Offenders can be sentenced to up to 10 years in prison and must register as a sex offender in some cases.

But Louisiana’s intentional HIV exposure statute, enacted in 1987, revised in 1993 and again in 2011, is out of date and not backed by science. For example, spitting and biting are considered grounds to be charged for criminal exposure to AIDS, even though it’s impossible to transfer the virus through spit and exceedingly rare for HIV to be passed on through biting (and the risk is nonexistent if the skin isn’t broken).  

What’s more, Suttle, who was diagnosed with HIV in 2002, couldn’t pass the virus on anyway. Antiretroviral treatment had made his viral load undetectable, which means the level of HIV in his blood was so low that it would’ve been impossible to transmit.

“I didn’t quite understand how it could come to this,” Suttle says. “It was being gay and HIV positive that led me to … being criminally liable.”

As more people become aware of possible criminal charges — thanks in part to local reporting on alleged offenders — some of those most at-risk are unwilling to get tested. Criminalizing one’s status has created a stigma, advocates say, which in turn can endanger whole communities.

“[People know] that if they test positive, they can get charged or arrested,” says Gina Brown, an HIV and AIDS activist in New Orleans who is HIV positive. “The laws need to change, and people in charge need to get educated.”

Across the nation, HIV transmissions have been steadily declining since the beginning of the decade. At the same time, the demographics of the disease have changed. No longer does HIV primarily affect gay men; today, those who are most at risk also include injection drug users and poor people of color, particularly in the South. Despite that shift, regulations and laws that criminalize one’s HIV status still abound, and they have roots in outdated science that has largely been debunked.

There are currently 26 states with HIV-specific criminalization laws, some of which penalize behavior regardless of whether the virus was actually transmitted. That number was higher in the 1980s and ’90s, when fear of HIV — and myths around how it spread — was rampant. Lawmakers claimed at the time that the statutes were meant to protect the general public. Instead, they have had the opposite effect: Since you can’t be prosecuted if you don’t know your status, there’s an incentive to not getting tested. Studies have also shown that HIV criminalization has little to no effect on deterring people from spreading the virus willingly, and in fact, such laws have only worsened its spread.

Nearly all of the states with the highest rates of new HIV diagnoses — in 2017, Louisiana ranked third — have HIV-specific exposure laws still on the books.

“People don’t know the collateral consequences,” says Suttle, who now works as an assistant director at Sero Project, a nonprofit that fights stigma and discrimination by focusing on HIV criminalization. “These laws hinder people from getting care.”

Suttle says the biggest obstacle is education, especially among people who still view HIV and AIDS as a death sentence.

“Education of the masses cannot be stressed enough. You can talk to anybody, and people honestly think that [people charged under HIV exposure laws] should be fully prosecuted and locked up,” Suttle says, adding that Sero Project has tried to humanize people living with HIV through anti-criminalization campaigns, lobbying and public outreach.

Sero Project is one of only a handful of national organizations — the Elizabeth Taylor AIDS Foundation and the Center for HIV Law and Policy are two others — that have been on the front lines of fighting against HIV criminalization.

This year, Sero Project, in partnership with the Positive Women’s Network, launched a training academy to teach advocates how to organize and repeal state HIV criminalization laws. In South Carolina, Sero Project’s training helped establish a coalition of 50 lawmakers, advocates and nonprofits to try and change the state’s HIV criminalization laws.

“They gave us the tools to do our own work here within our community, and educate people. Now we have more and more people who are interested, because every time we get out and share with the community, we’re getting more people asking about the laws,” says Stacy Jennings, chair of the Positive Women’s Network regional chapter in South Carolina. “It’s sad that [people living with HIV] don’t know [about the laws] because they should know. Every chance we get we’re teaching them.”

As a result of Sero Project’s efforts to get communities educated on local laws, Suttle has seen a sea change in the number of people coming forward to fight the stigma around being HIV positive.

And that’s been helpful in places like Louisiana, where advocates say the need for educating and empowering people to get tested and stay healthy is dire.

“We actually have been able to get into the offices of legislators and tell them why this law is outdated and plain wrong,” says Brown, the AIDS activist. “We have some of the highest rates of HIV transmission in the country, and that won’t get better so long as there are laws that actively make people fearful of getting tested.”

This is the third installment in NationSwell’s multimedia series “Positive in the South,” which explores the HIV crisis in the Southern U.S., and profiles the people and organizations working to alleviate it.

Published in NationSwell on December 22, 2018

US: A summary of HIV-specific bills aimed at updating Michigan’s existing laws currently moving through Senate

Senate HIV Bills Package Explained
December 21, 2018

Senate HIV Bills Package Explained

By | December 19th, 2018|MichiganNews

A package of bills is moving through the Michigan Senate that could change the way Michigan health officials monitor and address the HIV epidemic. Introduced last May in the Michigan House of Representatives, the eight-bill package contains HIV-specific bills that are aimed at updating Michigan’s existing laws that contain outdated language regarding issues like the spread of HIV, the role of local health departments in the virus’ treatment and criminal punishment for those who do not inform their sexual partner of their HIV-positive status.

Criminalization and Spread of HIV
Two bills within the package, 6020 and 6021, have come under extra scrutiny by some HIV advocacy organization around Michigan since they were amended from their original form to pass through the House. They were proposed by Democratic State Rep. Jon Hoadley of Kalamazoo who intended to “modernize our outdated HIV criminalization statute” by reducing the sentence for non-disclosure of one’s HIV status to a sexual partner from a felony to a misdemeanor, and to provide a change “to the sentencing guidelines” that currently exist.
“But the legislative process is never a linear line and there were still concerns that folks had around disclosure, around folks who are intentionally trying to transmit HIV without discussions and a number of other issues,” Hoadley said. “So, working in a bipartisan way to get as much as we could in the 99th legislative session, Dr. Canfield and I worked together with other stakeholders to put together a version of a bill that was able to then move.”
In a Dec. 11 Senate health policy committee, Republican State Rep. Edward Canfield said that the emphasis of the bill’s changes are on promoting treatment for HIV.
“I believe that what we’ve come up with in this package as it’s presented to you today really does bring the state of this health condition forward and helps people realize that getting treated is the best pathway,” he said. “… So it not only helps people live lives, but it protects our public health as well.”
The two bills now rest in the Senate, waiting on a decision before the lame duck session is over. Should they not come up for a vote, the bills will die and will need to be proposed again in the 100th legislative session in 2019. Hoadley said that despite the amendments the bills will provide two main benefits.
“The first is that we strike the very outdated definition that was used in the current law that criminalized behaviors, some of which can literally not transmit HIV. So, we’re really limiting the type of behaviors to vaginal and anal intercourse,” Hoadley said. “Second, we create a tiered system. So, if someone knows their status, does not disclose, acts with reckless disregard, and transmits HIV, that is treated at current felony level still. But, if they don’t transmit then that would potentially be a misdemeanor if all the other criteria are met.”
To illustrate his point, Hoadley said that currently there were 19 cases prosecuted under the current law that were considered felonies even though no transmission of the virus occurred.
“So, if this had been in the law, 19 people would have spent fewer of their years in prison,” he said.
Hoadley added that he feels the new bill will make current HIV transmission cases fairer because they will provide an extra level of defense for those who have been able to take medication and suppress their viral load — or literally reducing the function of the virus to undetectable levels within their system. People who have been medically suppressed for six months are “by definition not acting with reckless disregard, so they are not eligible for prosecution under the law.”
“So, for the first time in Michigan, as we work to continue making the criminal justice system fairer — there’s still a lot more to do there — people have a shield from accusations that they didn’t disclose or whatever the case may be, they have an affirmative defense,” Hoadley said. “That part is really groundbreaking as well.”

6020 and 6021’s Critics
But as groundbreaking as that defense is, it is only viable for those who can afford care to suppress their HIV. Critics of the bill’s changes like former BTL contributor Todd Heywood who is the chair of the Ingham Community Health Center board, testified against the legislation as an HIV expert. He said that this unfairly discriminates against people of color without access to treatment centers.
“There is already a racial disparity as it relates to the prosecution of people living with HIV. … Black men who have sex with women represented just 16 percent of the cases of people living with HIV (outside of Wayne County). They represented 36 percent of the prosecutions,” Heywood said. “We know in the state of Michigan and nationally that people of color have less access to medical care and have higher viral loads already. The way the current legislation is written will exacerbate this prosecution and create a deeper racial disparity that is unfair to people of color without addressing any of the other underlying issues.”
When asked about these racial disparities, Hoadley said he understands there is still much work to be done, but said he feels that this is a better alternative to the existing law on the books, citing it as “terrible about what it criminalizes.”
“I think we have to always be looking at race-based discrepancies in both our health system and our criminal justice system. One of the reasons I think the bill addresses a part of that is by eliminating many of the unscientific ways that someone could have gotten charged with these crimes previously, regardless of someone’s intent or not; everybody’s a little bit safer,” Hoadley said. “When we talk about discrepancies in the criminal justice system, this bill will, across the board, limit the number of folks who could even enter into eligibility of the law and also creates tiers. And part of that balancing act is that the current law captures so many more folks who could not even to some degree transmit HIV.”
In his testimony, Heywood also provided a numerical representation of the additional cost of maintaining a prisoner who has HIV using his own medication.
“Four bottles of one month’s worth of HIV drugs for me and I will tell you that that adds up to be between $62,000 and $67,000 a year to keep me alive,” Heywood said. “And we as taxpayers will then have to bear that burden when we put somebody in prison. That information is not in your fiscal analysis and I think that that needs to be taken into account. It is fiscally irresponsible when we have other options and ways to address this.”
Heywood’s reference to “other ways” refers to Michigan’s section of the public health code that addresses people infected with diseases that are “health threat[s] to others.” That statute does not criminalize those with contagious diseases, but rather puts them into immediate emergency treatment. His testimony suggested an amendment that would link the new bills to existing legislation.
“We could tie ‘health threat to others’ to this legislation which would then require that a person go through the probate process to address their HIV and the psychosocial issues that are involved in likely transmission behavior before they go through a criminal process,” Heywood said.
Hoadley said that he recognized the existing faults of the bill, but sees the currently rewritten legislation as a jumping off point to a more inclusive law.
“I think we have to continue to tackle places where we see discrepancies in health care,” he said. “For me, this shows why this project is a step in the right direction but not a finishing line.”

Privacy Concerns
Also included in the bills was a move to require women in their third trimester of pregnancy to get tested for HIV, Hepatitis B and syphilis. As written, the legislation would not allow a woman to opt out of such testing which essentially creates a system of mandatory testing. Currently, lawmakers are floating amendments that would allow a woman to opt out from the testing verbally. A second bill on testing would have mandated HIV testing consent be included in other general medical consents, and that a person not wishing to take an HIV test opt out in writing which presents a barrier to that process. Lawmakers are working on an amendment to allow people to verbally opt out of HIV testing.
Additional legislation would eliminate the 90-day record retention rule related to HIV partner services. The new legislation would allow the state to maintain those records indefinitely. Something they already do, in violation of Michigan law.
“Currently under Michigan law, the partner notification information that is solicited after somebody is diagnosed with HIV is only supposed to be kept for 90 days. What the state has not said publicly is that since 2003 they have been collecting that data,” Heywood said. “They currently have a database containing over 500,000 names and information of people at risk for HIV, living with HIV or tested for HIV. In addition to that, they shifted about three years ago to a federal database owned by the CDC not in the state of Michigan that all of that information is being stored on, in violation of Michigan law. ”
Lawmakers are working on an amendment which will allow the data to be maintained no longer that 365 calendar days.
An amendment related to partner services is also being considered which will prohibit local and state health officials from contacting a person identified as a sexual or needle-sharing partner of a person living with HIV, or the persons living with HIV when they have declined partner services.
“The problem with this is that there is nothing to stop me when I have a partner notification conversation with a health department official from saying — and I apologize Sen. Shirkey for identifying you — Sen. Shirkey and I shot needles of methamphetamine up and now Sen. Shirkey’s name is in a federal database as a methamphetamine user,” Heywood said. “Whether it is true or not, the senator would have no knowledge of that and no option to remove that from the database. That is deeply problematic.”
The lame-duck session is scheduled to end this week, Thursday. More updates about this legislation will come out as it moves through the Senate.

Published on December 19, 2018 in Pride Source

Canada: 60-year-old sentenced to seven years in prison for unprotected sex and alleged HIV non-disclosure

Sept ans de prison pour un porteur du VIH
December 21, 2018

Seven years in prison for a man living with HIV

The man had unprotected sex

A 60-year-old from Longueuil was given seven years in prison yesterday for having unprotected sex with three women, without mentioning that he had HIV.

Between 2000 and 2014, Élie Séraphin attended the three victims during periods of varying lengths.

The 64-year-old man has had several unprotected sex with these ladies, without ever revealing that he knew he had HIV since at least 1995.

Seraphin neglected to take his medication and failed to attend several medical appointments, making his viral load very high.

One of the victims contracted the virus. Another is also affected, but it was not possible to prove before the court that it was the accused who had infected her.

The three women would never have consented to having full sex without condoms if they had been informed of Séraphin’s medical condition, according to the agreed summary of facts in court.

Two of them even questioned the accused by seeing unusual spots on his body, which he attributed to bed bug bites.

Harassment

In July, Séraphin pled guilty to serious sexual assault charges that endangered the lives of the three ladies.

He also admitted to harassing and assaulting his last companion during the break-up.

“I hope that these ladies will be able to find some peace of mind and get healthy despite the criminal acts committed against them,” said Judge Julie-Maude Greffe Wednesday at the courthouse in Longueuil.

“Mr. Seraphin has become very aware of the seriousness of his actions,” said Marylie Côté, defense.

Detained since his arrest in April 2015, the accused has less than two years to serve.

Upon leaving prison, Elie Seraphim will have to disclose to the authorities all his associates for three years.

Published on December 20, 2018 in The Journal de Montreal

————————————————

Sept ans de prison pour un porteur du VIH

L’homme a eu des relations sexuelles non protégées

Un sexagénaire de Longueuil a écopé hier de sept ans de détention pour avoir eu des relations sexuelles non protégées avec trois femmes, sans leur mentionner qu’il était atteint du VIH.

Entre 2000 et 2014, Élie Séraphin a fréquenté les trois victimes pendant des périodes de durée variable.

L’homme maintenant âgé de 64 ans a eu plusieurs relations sexuelles non protégées avec ces dames, sans jamais dévoiler qu’il se savait atteint du VIH depuis au moins 1995.

Séraphin négligeait de prendre ses médicaments et omettait de se présenter à plusieurs rendez-vous médicaux, faisant en sorte que sa charge virale était très élevée.

L’une des victimes a contracté le virus. Une autre en est également atteinte, mais il n’a pas été possible de prouver devant la cour que c’était l’accusé qui l’avait infectée.

Les trois femmes n’auraient jamais accepté d’avoir des relations sexuelles complètes sans préservatifs si elles avaient été informées de l’état de santé de Séraphin, d’après le résumé conjoint des faits déposé devant le tribunal.

Deux d’entre elles ont même questionné l’accusé en voyant des taches inhabituelles sur son corps, que celui-ci a attribuées à des morsures de punaises de lit.

Harcèlement

En juillet, Séraphin a plaidé coupable à des accusations d’agression sexuelle grave ayant mis en danger la vie des trois dames.

Il a également reconnu avoir harcelé et commis des voies de fait à l’égard de sa dernière compagne lors de la rupture.

« J’ose espérer que ces dames-là vont pouvoir retrouver une certaine paix d’esprit et retrouver la santé malgré les actes criminels commis à leur endroit », a souligné la juge Julie-Maude Greffe mercredi, au palais de justice de Longueuil.

« M. Séraphin a pris grande conscience de la gravité de ses gestes », a fait valoir Me Marylie Côté, de la défense.

Détenu depuis son arrestation en avril 2015, il reste moins de deux ans à purger à l’accusé.


À sa sortie de prison, Élie Séraphin devra divulguer aux autorités toutes ses fréquentations pendant trois ans.

 

[Update] Australia: Court of appeal reduces sentence from 6 years to 4 for transgender sex worker accused of alleged HIV transmission

Transgender sex worker has WA sentence cut
December 20, 2018

Transgender sex worker has WA sentence cut

A transgender sex worker who passed on HIV when she had unprotected sex with a man has had her sentence of six years in a male prison slashed to four years.

Clayton James Palmer, who identifies as a woman and is known as CJ, was sentenced in the West Australian District Court earlier this year for causing grievous bodily harm.

She took her case to the WA Court of Appeal, arguing the term was manifestly excessive, and on Thursday the judges unanimously agreed it was severe.

She will now be eligible for parole in April.

The judges noted Palmer had been moved from the prison’s crisis care unit to the special protection unit.

“The conditions of prisoners housed in the SPU are less restrictive than those in the CCU,” the judges said.

“The appellant can now access gender neutral toiletry products and has been provided with female underwear.”

The court previously heard Palmer had visited the WA Substance Users Association in August 2014 to get tested for sexually transmitted infections and was later told there was a positive indication of HIV.

She never returned follow-up phone calls or messages and continued to advertise sexual services online.

Palmer met the victim soon after and continued to see him until August 2015, telling him she was regularly tested for diseases.

A doctor told the victim he had HIV the following month.

Police found Palmer, who had moved to NSW, through online advertisements for her services under the name Sienna Fox.

Published on December 20, 2018 on The Mercury

———————————————

Trans woman CJ Palmer sentenced to six years in a male prison

Perth woman CJ Palmer has been sentenced to serve six years, with a non-parole period of four years, after being found guilty of committing Grievous Bodily Harm for transmitting HIV.

Palmer will be returned to a male prison, despite being a transgender woman. Palmer has to date served 321 days in custody in a male prison, which will be counted towards her final sentence.

Presiding Judge Stevenson told the court he considered Ms Palmer’s crime to be at the “upper end of the range of seriousness,” and neglectful of her responsibility as a sex worker.

Prior to the final decision, Palmer’s defence raised concerns that her needs were not being met in the male-specific facilities, including hormone therapy and appropriate clothing.

Judge Stevenson added that he expected that the prison will receive a copy of the hearing’s transcript and ensure her needs are met. Palmer will also be kept isolated from other inmates in crisis care.

Ahead of today’s decision, a number of advocacy groups had expressed their wariness over the treatment of Palmer as a trans woman. Others were concerned about the criminialisation of HIV, and the potential of legal proceedings increasing stigma and discrimination in society for those living with HIV.

“The criminalisation of people living with HIV is a blunt, ineffective tool in the war to end HIV. It only serves to drive people who need to be tested and treated further into the dark and creates a cultural fear,” The Institute of Many’s co-founder Nic Holas told OUTinPerth.

“In this particular instance, as with so many cases, an overwhelming majority of cases of HIV criminalisation, we have two people here who are victims and those people are victims of the ongoing stigma and discrimination of people living with HIV.”

“I think this is an absolute miscarriage of justice for a six year sentence, I think it’s completely excessive, and I along with many people in the community have deep, grave concerns for CJ’s health and wellbeing – especially since she’s been denied her hormone treatments.”

“We welcome the indication from Judge Stevenson that this extremely heavy sentence is basically on the condition that she will keep receiving her hormone treatments. That is the only silver lining on what is a very dark day for every single person living with HIV in this country, as well as the transgender and sex worker communities.”

Holas said that politicians need to act to ensure changes to these laws.

“We need an overhaul of criminalisation of HIV in every state and territory in this country, including here in Western Australia,” Nic Holas said.

“We really need much better prosecutorial guidelines for transgender individuals. It’s shocking that CJ is in a men’s facility and has been condemned to six years of potential complete solitary confinement.”

Published in Out in Perth on February 16, 2018

—————————————————

Transgender prostitute found guilty of passing on HIV after Perth trial

A TRANSGENDER prostitute accused of causing grievous bodily harm to a former client by passing on the HIV virus to him through unprotected sex has been found guilty by a jury.

Clayton James Palmer, who identifies as a woman and supplied sex services via online ads under the pseudonym of Sienna Fox, has been on trial in WA’s District Court this week, charged with assaulting the unnamed victim by having unprotected sex him multiple times until late July 2015.

Prosecutors claimed that at the time, Ms Palmer already knew she was HIV positive, having been told months earlier by nurse Joanne Morgan that there was a positive indication of HIV in her blood.

Ms Morgan was also said to have taken five pages of notes about the consultation, in which she gave Ms Palmer other information about what she should do next, including her disclosure obligations.

Prosector Ben Stanwix told the court that the “only plausible source of the infection” was Ms Palmer, who is now known by her initials CJ, pointing to genetic evidence which showed that they shared an extremely rare strain of the HIV virus.

“Having unprotected sex was such a grave departure from the duty of care she owed him, she was criminally negligent,” Mr Stanwix said.

Ms Stanwix said Ms Palmer “didn’t want to face reality” after she was told of her infection by the nurse, who he said in 2014 was “consistent, organised and meticulous”.

But defence barrister Simon Freitag said it was nurse Morgan who was struggling with reality, pointing to her intravenous methamphetamine use, mental health problems and subsequent multiple psychiatric hospitalisations after a breakdown in 2015.

For those reasons, he said, it was in no way certain she had informed Ms Palmer of her HIV status at the crucial time.

“(Ms Morgan’s” breakdown) is said to be the equivalent of a lightning strike. It was more like a flood … and there is a lot of rain that falls before the dam breaks,” Mr Freitag said.

Ms Palmer had maintained before a jury she was never told of her HIV positive status by the nurse, and had no idea she was carrying the virus as she carried on her sex work under the same name for another year.

She also said she may not have been the one to give her former client the virus, as the man had a high sex drive, and was in other sexual relationships, including with another transgender woman.

Giving evidence, Ms Palmer told the court: “I was not given a diagnosis in September 2014. I did not ignore it. I was not told.”

This morning, after nearly four hours deliberation, the jury returned a unanimous guilty verdict, which was greeted with tears from Ms Palmer and her supporters.

Ms Palmer was refused bail by Judge Christopher Stephenson, who said in his opinion the offence was so serious that she needed to be remanded in custody ahead of a sentencing date in February.

Mr Freitag said that Ms Palmer would have to be remanded in a male prison, as she was when she was kept in custody for more than nine months following her arrest in 2016.

Judge Stephenson accepted that would make time in custody for more difficult for the 40 year-old Ms Palmer, but said her conduct had not only put the life of the victim at risk at the time, but had also put the wider community at risk of further infection.

 Published in PerthNow on Jan 19, 2018

Transgender sex worker ‘not told of HIV diagnosis’

A TRANSGENDER sex worker who allegedly infected a client with HIV did not want to face reality after her test results came back positive and continued working as a prostitute, a court has been told.

Clayton James Palmer, who identifies as a woman and worked under the name Sienna Fox, is accused of repeatedly having unprotected sex with a man in 2015 despite knowing she had tested positive to HIV.

Ms Palmer, who is on trial in the District Court charged with causing grievous bodily harm, says the diagnosis was not communicated to her and she may not have been the person who passed on the virus to the alleged victim.

A nurse from the WA Substance Users Association, Joanne Morgan, tested Ms Palmer for blood-borne viruses and sexually transmitted infections in August 2014.

Prosecutor Ben Stanwix said Ms Morgan told Ms Palmer her initial test was positive for HIV during a home visit and gave her information about the virus and her disclosure obligations.

He said Ms Morgan’s notes from the visit indicate Ms Palmer asked her if she was going to die, if she would have to take medication forever and where she got the virus from.

Mr Stanwix said Ms Palmer told Ms Morgan she would not be able to make her next appointment then stopped answering her phone calls and text messages.

“Ms Palmer, it seems, didn’t want to face reality,” he said.

“Despite what Ms Palmer had been told by Ms Morgan, she continued to advertise her sexual services online.”

Ms Palmer met the complainant, whose name is suppressed, in November 2014 and had sex with him a number of times until about August 2015.

Mr Stanwix said the client asked Ms Palmer several times if she had been tested for sexually transmitted infections and she assured him she was tested regularly and did not have any.

The man started to feel ill in September 2015 and was diagnosed with HIV shortly after he went to hospital.

Mr Stanwix said Ms Palmer and the alleged victim had the same “relatively rare” subtype of the virus.

“The accused was in charge of something dangerous, specifically bodily fluids that were infected with HIV,” Mr Stanwix said.

“The accused’s failure to take reasonable care and precaution was, we say, negligence so grave as to justify criminal conviction.”

Defence lawyer Simon Freitag told the jury there were different versions of the conversation between Ms Palmer and the nurse and said his client could not be found guilty if she was not aware she had HIV.

He said there were issues with the “chaotic” WASUA and Ms Morgan had her own personal issues when she was working for the organisation.

“It is not the case that Ms Morgan is the stereotypical image of a nurse that you might expect,” he said.

Mr Freitag told the jury they might have reason to question the alleged victim’s claim that he had sex with Ms Palmer and no one else between meeting her and being diagnosed with HIV.

He said scientists and doctors could not say how the virus was transmitted to the complainant.

Both Mr Stanwix and Mr Freitag urged the jury to decide the case on the evidence and put aside any views they might have about drugs, sex, prostitutes or transgender people.

“You are going to hear some words that you would not normally hear in polite company,” Mr Freitag said.

“Whether you are a sex worker, a lawyer, an accountant, whatever, if you drive trucks for a living, in this court you have the same rights.

“Treat Ms Palmer in the same way you would treat her if you heard she was an accountant.”

The trial continues.

Published in PerthNow on Jan 15, 2018

Germany: Germany broadens use of criminal law to removal of condom without consent

German policeman jailed for condom "stealthing"
December 19, 2018

German policeman jailed for condom “stealthing”

Stealthing is the practice of removing a condom midway through intercourse and concealing it. The ruling was the first of its kind and made possible by the reform of Germany’s Sex Crime Law to incorporate consent.

A Berlin man was sentenced to eight months in prison and suspended from his job as a policeman, on probation, for removing his condom during a sex act without the woman’s consent. The 37-year-old man was also fined €3,000 ($3,400).

The offense, which has been dubbed “stealthing,” took place at the man’s home in November 2017. According to German daily newspaper Bild, the 26-year-old woman had “explicitly requested” that the man wear a condom.

He is said to have removed the contraceptive during intercourse and continued the act without it. It was not until he had ejaculated that the woman realized what had happened, Bild reported.

She allegedly left the apartment enraged, concerned about the possibility of contracting a sexually transmitted disease and becoming pregnant. She received an apology text by phone from the 37-year-old the next day, in which he excused himself for his “stupid behavior.”

The man defended himself by saying that the condom had torn in the midst of the act, which prompted him to remove it.

A court spokeswoman said she was not aware of any other ruling of its kind, which would make this the first conviction for “stealthing” in Germany.

Not considered rape

Prosecuting “stealthing” was made possible thanks to the 2016 reform of the German Sexual Crime Law, which allowed for consent to weigh into a claim of sexual assault. In this case, the woman did not consent to sex without a condom and could successfully bring the charges.

But the judges stopped there, ruling that although the “stealthing” was non-consensual, the sex act itself was. This was an important factor, as the man would have faced two years in prison if found guilty of rape.

Such a conviction would have permanently stripped him of his job as a police officer and resulted in the loss of his pension benefits.

Nonetheless, the 37-year-old has chosen to appeal the verdict. According to German magazine Der Spiegel, his appeal will now be sent to a regional court or a Berlin appellate court.

Published on December 18, 2018 in DW 

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