Russia: Mandatory testing proposed for citizens aged 15 to 55 in regions with high HIV prevalence

Ministry of Health intends to introduce mandatory HIV testing for citizens aged 15 to 55

Automatic translation via deepl.com. For Russian article, please scroll down.

Ministry of Health intends to introduce mandatory HIV testing for citizens aged 15 to 55

In January 2019, the Ministry of Health of the Russian Federation published a draft Procedure for the provision of medical care to HIV-infected patients. The document, in case of entry into force, will repeal the relevant recommendations of 2012.

According to the draft document, the agency proposes to conduct rapid testing of citizens aged 15 to 55 years living in regions where more than 1% of pregnant women are HIV-infected. Whereas, according to the current regulations, testing for HIV antibodies is voluntary, HIV tests for representatives of certain specialties are mandatory.The updated document also proposes to conduct rapid screening tests for all persons who have reported contact with people with HIV, are at risk or are undergoing a sexually transmitted disease test.In addition, the draft Procedure provides for the provision of medical care to HIV-positive patients through telemedical technologies.

In 2016, the Ministry of Health of the Russian Federation joined the UNAIDS global strategy, the essence of which was to diagnose 90% of HIV-positive people, 90% of whom should receive therapy and 90% of whom should have an undefined viral load as a result.

In 2019, 714,000 people with a diagnosis of HIV were registered with the Russian dispensary, of whom 60-70% received therapy and no information on its effectiveness is publicly available. The total number of HIV-positive Russians, according to various estimates, can range from 1 to 1.3 million people.

МИНЗДРАВ НАМЕРЕН ВВЕСТИ ОБЯЗАТЕЛЬНОЕ ТЕСТИРОВАНИЕ НА ВИЧ-ИНФЕКЦИЮ ДЛЯ ГРАЖДАН В ВОЗРАСТЕ ОТ 15 ДО 55 ЛЕТ

Минздрав РФ в январе 2019 года опубликовал проект Порядка оказания медицинской помощи ВИЧ-инфицированным пациентам. Документ, в случае вступления в силу, отменит действие профильных рекомендаций от 2012 года.

Согласно проекту документа, ведомство предлагает в обязательном порядке проводить экспресс-тестирование граждан в возрасте от 15 до 55 лет, проживающих в регионах, в которых более 1% беременных женщин ВИЧ-инфицированы. Тогда как, согласно действующему регламенту, исследование на антитела к ВИЧ носит добровольный характер, обязательными же являются тесты на ВИЧ для представителей отдельных специальностей.

Обновленным документом также предлагается проводить скрининговое экспресс-тестирование всем лицам, сообщившим о контакте с ВИЧ-инфицированными, находящимися в группе риска или проходящими исследование на венерические заболевания.

Кроме того, проект Порядка предусматривает оказание медицинской помощи ВИЧ-положительным пациентам с помощью телемедицинских технологий.

В 2016 году Минздрав РФ присоединился к глобальной стратегии ЮНЭЙДС, суть которой сводилась к охвату диагностикой 90% ВИЧ-инфицированных, из которых 90% должны получать терапию, а 90% из них – иметь в результате неопределяемую вирусную нагрузку.

В 2019 году на диспансерном учете в России состояли 714 тысяч человек с диагнозом ВИЧ, из них терапию получали 60–70%, а сведений о ее эффективности в открытых источниках не содержится. Общее число ВИЧ-положительных россиян, по разным оценкам, может составлять от 1 до 1,3 млн человек.

Canada: Alexander McClelland’s looks at the lives of people who were criminalized due to alleged HIV non-disclosure

How HIV-positive LGBTQ2 people are criminalized in Canada

Three harrowing stories of HIV non-disclosure cases

By Alexander McClellandJan 15, 2020, 1:31 PM EST

From 2016 to 2019, Alexander McClelland, a researcher and Banting Postdoctoral Fellow at the University of Ottawa, spoke to 16 people across the country about their experience with Canada’s legal system and HIV non-disclosure laws. In Canada, those who do not disclose that they are HIV-positive to a sexual partner can face sexual assault charges, and if prosecuted, are mandated to appear on sexual offender registries.

Since 1989, more than 200 Canadians have been criminally prosecuted for HIV non-disclosure; in most of those cases, HIV was not transmitted, and many involve situations in which transmission was not possible—whether because their viral load was undetectable or because they used condoms. Despite reforms over the years, many HIV-positive folks remain vulnerable to criminalization.

The culmination of McClelland’s research is a new booklet, The Criminalization of HIV Non-Disclosure: Experiences of People Living with HIV in Canada. In it, McClelland features interviews with nine Canadians who were criminalized for their HIV status. They are all recent cases, with the earliest stemming back to 2000 and the latest in 2015. Below are three of those stories.

Matteo: “They didn’t know what undetectable meant”

When I met him, Matteo was still under curfew as part of the conditions of his release. His parents were his sureties—he was mandated to live with them in the suburbs. A gay white man in his early 20s, Matteo was still in college, and only allowed out of his parents’ house to attend school for the day. He only recently found out his HIV-positive status. In fact, we met on the one-year anniversary of his diagnosis. He told me about how he had used hook-up applications like Grindr and Scruff. He met a guy that way, and they had sex.

Matteo did not tell the guy his status. He had been told by his doctor that since he was virally undetectable it was impossible for him to transmit HIV. Matteo concluded that he only had to disclose his status if there was a risk of transmission: “I thought if I was taking medication I didn’t have to disclose. Apparently, that is not the case.” A few weeks later, he was at work and the police came to arrest him. Matteo was arrested in front of his staff, coworkers and customers. “I felt really shitty, like I, like I had just robbed a liquor store,” he says. “They [the police] said, ‘You know why we are here. You are being charged and arrested.’

He ended up educating the detectives on the risk factors for transmission. Fundamentally, the police tasked with arresting Matteo did not know the current science behind the actual risks of HIV transmission. The police then released his picture, biometric details including his height, weight, eye and hair colour, any visible identifying marks, the charges filed against him, and his HIV-positive status. They also released a picture of Matteo as part of a public safety warning, asking his past sexual partners to come forward. The warning was widely covered in the media. As a result, it was also shared online, including on Facebook, targeting Matteo’s profile. One such negative post read, “If we still had the lash in Canada for punishment, this would be a case for its proper application.”

While talking at his place, Matteo told me more about what it was like to live under curfew at his parents’ house and the other conditions of his release. He felt constantly surveilled, isolated and depressed. He pulled out a piece of paper and read to me the more than 20 conditions of his release. Among the many conditions, he was barred from socializing in the gay community or going out to participate in social events. The condition that most bothered him was that he was mandated to contact authorities 24 hours before any potential sexual conduct, providing them with the name and contact information of the person. The police would then directly verify that the person knew Matteo’s HIV-positive status and that they consented to sex with him. “Like, who is going to want to do that? How am I going to meet anyone?” He felt extremely isolated and lonely.

Cynthia: “If I had not called the police, I would not have this charge hanging over my head”

I met Cynthia in her neighbourhood on the outskirts of a large Canadian urban centre. She told me about her move to Canada a few years earlier from a South American country. She felt that living as a transsexual woman in her home country was impossible. She feared that had she remained, she would have faced life-threatening violence.

Since moving to Canada, Cynthia had been working as a sex worker. She told me she generally had clients she liked, and she worked out of her home. She was warm and engaged when talking to me. In her late 30s, Cynthia was well-dressed and had a gentle demeanour. As we sat together drinking tea, she began telling me about how she was threatened with a charge of aggravated sexual assault. She was on anti-HIV medications, was undetectable and regularly used condoms with her clients. She knew that she was protecting them and also herself.

One of her regulars came over one night more intoxicated than was typical for him. He pulled a knife on Cynthia and raped her, holding the knife to her neck. He did not use a condom. She was terrified and called the police afterwards. During the police investigation, Cynthia told police about her HIV-positive status. Later, when speaking with the man who raped her, the police told him that he could press charges against Cynthia. She had previously not disclosed her status to the man, thinking that the use of a condom and being undetectable was more than sufficient. A few weeks later, she received a letter from a detective, stating that she was under investigation and they were considering pressing criminal charges of aggravated sexual assault. She was scared and didn’t know what to do. The man knew where she lived and had been violent toward her, and now she was potentially facing criminal charges. She told me that because she was a sex worker, her rape and assault were not being further pursued by the police. But now she was under threat of a charge of aggravated sexual assault for not disclosing her HIV status to her rapist.

After receiving the letter about the investigation from the authorities, Cynthia felt constantly surveilled, scared and worried. Moreover, now that he knew she was HIV-positive, the client who assaulted her began stalking and harassing her. She was terrified in her own neighbourhood, isolating herself and rarely venturing out. She deactivated her social media accounts because he also began posting messages, harassing her and her friends online. She was extremely fearful in her own neighbourhood but also scared to call the police again. “If I had not called them, I would not have this charge hanging over my head,” she says. She felt as though she was under constant watch, but with no means to protect herself. She knew the police were not going to help her and was worried she would face additional violence from her former client.

George: “This rape charge and HIV was worse than being a murderer in their eyes”

I met George in his apartment. He is a warm and gregarious white gay man in his late 50s, with a self-described long history of problematic prescription drug use, gambling and mental health issues. When George began a specific relationship around 10 years earlier, he initially did not tell his boyfriend about his HIV-positive status. At the time, he told me, he was himself uncertain about how HIV was transmitted. He told me that he was often depressed and in denial about aspects of his life. One day, a few months after his own diagnosis, George told me that his boyfriend came home with an HIV-positive test result from the clinic after a routine sexually transmitted infection screen. George then finally told his boyfriend his status in a letter: “There is a possibility that you may have gotten it from me, and I’m very deeply sorry for not disclosing [it to you].” His boyfriend went into a rage and went to police.

A few days later, he received a text message from his boyfriend that he was at the police station giving them his story. George immediately went to the station. “The next thing I knew, they were taking me into custody, and they said, ‘You have the right to call a lawyer,’ and they told me that ‘you are being arrested for sexual assault.’” George told me that a constable initially told him, “You’ve never had a criminal charge before. You will probably just have to stay overnight and tomorrow we’ll get your bail sorted.” But, a few hours later, the same constable came to see him and told him his charges had been elevated to attempted murder: “‘You aren’t going anywhere,’ she says, and she was right.” Due to the severity of the charge, George was denied bail even though he had no previous criminal record.

Due to the fear, shame and anxiety he experienced, George decided to plead guilty. He had never been incarcerated. The Crown Prosecutor asked for 10 years. George’s lawyer told George to plea, that he had no case because he had admitted his crimes. If he pleaded out, he would be sentenced to a lot less time incarcerated. He listened to his lawyer.

While incarcerated, George was placed in the general population with men facing all types of charges. He started facing verbal and physical harassment. Prisoners began calling him a rapist and asked why he took medication. After days of harassment, he was brutally assaulted by other prisoners. Those assaulting him said they knew he was trying to spread HIV. George said the guards watched and did nothing. (Under an institutional directive, prisoners’ charges and health status should remain confidential, and the only people with access to the information are guards.)

While in protective custody, George remained unsafe and was beaten again and again: “I went into the protective custody wing, and there are all kinds of sex offenders there and murderers and everything else like that. And when I got there, they found out my charge. So, they beat the shit out of me as well. I never fought a day in my life. I have never lifted a hand to anybody… I was on an isolated range for violent murderers and would still get harassed. You know, this rape charge and HIV was worse than being a murderer in their eyes.”

He told me that other sex offenders and murderers were left alone. But he was continually attacked for having HIV combined with a “dirty charge”—that is, aggravated sexual assault. One day, George was being harassed by another prisoner when a guard intervened. George told me he felt the guard had it out for him, and he was scared of the guard who had said demeaning things to him in the past. After the altercation with the other prisoner, George started to have a panic attack. While hyperventilating, that same guard forced George to strip naked and made him lay down on the cold concrete floor, holding him down on the floor with his boot. The guard pushed his boot into George’s chest hard and said, “I don’t touch anyone with AIDS,” as a nurse arrived to sedate George, sticking a syringe in his arm.

Ultimately, he served the rest of his sentence in administrative segregation, where he only had a concrete floor with no bed until night time. He was given just one sheet of paper and a pencil to occupy his time while locked down alone in a cell. He served approximately one year in those conditions.

 

Uganda: Reporter looks at the role of the media in driving stigma surrounding HIV criminalisation

Is the media fanning stigmatisation in the HIV/AIDS fight?

KAMPALA – In the third and last part of the series to shine a light on the impact of stigimatisation in the fight against HIV/Aids, PML Daily’s Senior Staff Writer David Mafabi looks at how the media has unknowingly fanned the vice of stigimatisation.

Ms Rosemary Namubiru a nurse is today paranoid about her safety and has stopped taking anything for granted.

She enters her house at 7.00pm and never opens for strangers ever since she was convicted and sent to jail allegedly for infecting a child with HIV/ Aids.

This has been so since 2014, when a Ugandan court sentenced her to three years in jail for negligence over the potential infection of a two-year-old boy with HIV.

Ms Namubiru, who is HIV-positive, was reportedly criminally negligent by using an intravenous needle, that she had accidentally pricked her finger with, on the child, the court ruled.

Many journalists were awash with condemnation to the level that many newspapers dubbed her as a “killer nurse”, something that stigmatises her up to now.

Ms Namubiru is not alone in this condemnation and criminalization, there are many people living around the World who have gone through this kind of criminalization especially when the laws don’t add up.

In 2018, Ms Sylvia Komuhangi was also charged with committing a “negligent act” likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda for reportedly infecting a baby with HIV/Aids.

The Magistrates Court sentenced her to two years in prison; six months after her ordeal started even when the baby was tested and found to be HIV negative, Ms Komuhangi was kept in jail.

One newspaper article labeled Komuhangi as a “monster” at the time of her arrest. Another newspaper ran a story under the headline; “Woman gets two year jail term for infecting baby with HIV blood” which was so stigmatising.

Ms Komuhangi would possibly still be languishing in jail if her case had not caught the attention of lawyers from the NGO, Uganda Network on Law, Ethics and HIV/AIDS (UGANET) who appealed and the case was later overturned.

Members of UGANET, UNASO and other NGOs engaged in the national response to HIV and AIDS were unhappy with the way journalists covered Ms Namubiru’s arrest.

The general feeling was that the media led the public trial and conviction of Namubiru and Ms Komuhangi.

Actually many NGOs working to prevent new HIV infections and scale up access to treatment and related health services for people with HIV described the media as suffering from attention-deficit syndrome.

The media has the potential to influence public opinion and attitudes about HIV/AIDS, including attitudes towards people living with HIV/AIDS.

According to Mr Ben Bella Illakut, a veteran journalist, an effective media can raise the awareness level and can also bring about sustainable behavior change thereby reducing vulnerability to the virus.

He explained that the media should work as a facilitator for removing stigma and discrimination attached with the disease: HIV/AIDS afflicted individuals besides the anatomical discomforts undergo the mental suffering of stigma and discrimination at the hands of the society.

“A number of media campaigns should focus on the need to overcome prejudice and encourage solidarity with people infected/affected by virus,” said Mr Ben Bella.

Reports from veteran journalists also indicate that the media too have the capability to bring about transformation in the thinking pattern of the society in respect of PLWAHA and thus sowing the seeds of attitudinal changes.

They add that the media besides creating awareness and providing knowledge base about HIV/AIDS is also to remove the misconceptions about the transmission of the virus and the social ostracism of affected persons.

Mr Charles Odoi, the TASO manager, Mbale says that when writing about PLWHA, you ought to mind so much about how you address an issue as complex as HIV stigma and that there are many small things you can do that will make a big difference

He revealed that the media should also know how talk about HIV to avoid stigma, the words they use and avoid use of words like ‘Monster nurse’

“When talking about HIV, certain words and language may have a negative meaning for people at high risk for HIV or those who have HIV. The media can do their part to stop HIV stigma by being intentional and thoughtful when choosing our words, and choosing to use supportive—rather than stigmatizing— language when talking about HIV,” said Mr Odoi.

The stories written about these two PLWHA reflect a common pattern of how the media cover HIV; the story is highly unusual with a strong element of condemnation, stigmatisation and criminalisation.

Although it is clear that Ms Namubiru was not charged under the HIV and AIDS Prevention and Control Act 2014, some provisions of the law are vague and likely to cause further arrests, stigmatisation and criminalisation of people living with HIV/Aids.

Reports from WHO indicate that laws criminalizing HIV transmission and exposure exist in many developed and developing countries.

It is clear that by 2005, at least 36 European countries had either HIV-specific criminal laws or had used existing laws on bodily harm to prosecute people living with HIV and that by 2009, 15 African countries had enacted HIV-specific criminal laws, and this number increased to at least 25 countries by 2011.

While the HIV/AIDS pandemic has been inflicting a devastating impact on various sectors of life, one of the major obstacles to its prevention is social stigma.

Stigma is defined as an attribute that is deeply discrediting which links a person to undesirable characteristics, thus reducing that individual’s status in the eyes of society.

The stigma and discrimination associated with HIV/AIDS has been conceptualized at two levels: societal and individual. At the societal or cultural level, it manifests in discriminatory laws, policies, popular discourse and social conditions of people living with HIV/AIDS.

At the individual level, it takes the form of behaviours, thoughts and feelings that express the prejudice against persons infected with HIV. The primary targets of HIV/AIDS stigma are individuals with HIV and those perceived to be infected.

Ms Dora Musinguzi, the executive director at Uganda Network on Law, Ethics and HIV/AIDS (UGANET) said even when the media condemned and criminalized Ms Namubiru, if used effectively, the media can play an important role in lessening fear and stigma about HIV – the biggest obstacles to seeking information and treatment about the disease.

“It is unfortunate that the  of this important health issue remained patchy and sensationalist and there is need to discuss better ways for which the media can report about stigma, the law and ethics in HIV/Aids,” said Ms Musinguzi.

She says in keeping with this exhortation, journalists’ reports need to go beyond simplistic views of the global HIV epidemic as merely a crisis in public health and reflections on the complex social, cultural and economic determinants and consequences of the epidemic and the required complexity.

She explained that on a positive note, analysis of HIV reporting in Uganda and world over reveal that the language and tone of HIV stories from the mid-1990s onwards show greater sensitivity to people living with HIV.

Although Namubiru, a paediatric nurse with 30 years’ experience, had maintained her innocence during the trial, handing down the sentence in a packed courtroom, chief magistrate Olive Kazaarwe said Namubiru lacked remorse for her actions.

On the revised charge of criminal negligence — the nurse attracted sympathy and emerged as the apparent victim of rampant stigma in a country that until recently was being praised as a global leader in fighting AIDS and promoting an open attitude toward the disease.

The International activists claim Ms Namubiru and Ms Komuhangi were victims of discrimination because she is HIV positive, and said that their trial was unwarranted.

Several HIV/Aids activists in Uganda said the nurse had not acted maliciously, and her life had been ruined and that the public anger towards her showed the stigma people with HIV/Aids still face.

Ms Namubiru was released after one year of her sentence after the child was found HIV/Aids negative but reportedly got threats to harm her from her neighbours and had to travel to the countryside and stay away from her home in Kampala for safety.

The AIDS-Free World, in a statement said both of these cases illustrate “the failure of both the media and the prosecutor’s office to act responsibly” and could set “a dangerous precedent and could have grave consequences for the fundamental rights of people living with HIV and AIDS in Uganda and beyond,” said AIDS-Free World, in a statement.

The Global Commission on HIV and the Law said the nurse’s “life has been ruined. No matter the outcome of the trial, the panorama of ferociously intemperate accusation will haunt her and her family forever.”

Maj. Rubaramira Ruranga, the director of Health and Community Outreach Campaign at Operation Wealth Creation, one of few people who have publicly revealed they have HIV in a bid to discourage stigma, said the case against the nurse proves that “stigma still rages on” in Uganda.

“I am sure she felt isolated and dejected because of the way the media reported about her, calling her all types of names,” he said. “She was hurt and injured beyond repair.”

Mr Joshua Wamboga, a long-standing HIV/AIDS and Health-care advocate and former executive director at Uganda Network of Aids Service Organisations [UNASO] says some of the contentious provisions of the law include Article 18 (2) (d) where the results of an HIV test may be disclosed or released to “a medical practitioner or other qualified officer who is directly involved in the treatment or counseling of that person, where the HIV status is clinically relevant.”

He adds that this is “too wide a window” for the medical officer to operate in and that the other provisions of the law are those that criminalise “attempted transmission of HIV” and “intentional transmission of HIV”.

“The argument against this provision is that it interferes with medical ethics and the doctor patient relationship and criminalisation of HIV positive persons fuels discrimination as it happened in the case of Namubiru, Komuhangi,” said Mr Wamboga.

The executive director of National Community of Women living with HIV/Aids [NACWOLA], Ms Florence Buluba said People living with HIV infection and AIDS should have the same basic rights and responsibilities as those which apply to all citizens of the country.

She revealed that they are not allowed to be separated, isolated or quarantined in prisons, schools, hospitals or anywhere else because of their HIV-positive status.

She added that PLWHA are entitled to make their own decisions about matters that affect their marriage and having children and counseling about the consequences of their decisions should be provided.

“And no person may be tested for HIV infection without his or her consent beforehand and PLWHA have rights; a right of access to healthcare including reproductive health, a right to sufficient food and water; and a right to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance,” said Ms Buluba.

Although Uganda is one of the 60 countries that criminalise the intentional transmission of HIV [The HIV and AIDS Prevention and Control Act 2014], many a NGO says they are worrying not because of the deadly virus but due to the HIV and AIDS Prevention and Control law.

Human Rights Watch, HEALTH, Global advocacy project and UGANET say that The HIV Prevention and Control Act passed by the Ugandan parliament on May 13, 2014, is discriminatory and will impede the fight against AIDS.

They add that the new law in Uganda criminalizes HIV/AIDS Transmission, requires Pregnant Women to Undergo HIV Testing, the “willful and intentional” transmission of HIV to another person is an offense that is punishable on conviction with up to a ten-year prison term and a fine of up to UGX4. 8 million (about US$1,846).

Activists want the Constitutional Court to speed up Petition Number 24 of 2016 where the community of HIV activists challenged the HIV and AIDS Prevention and Control Act 2014.

Activists say the current HIV law is regressive and should be struck down and argue that it criminalises transmission which intensifies Stigmatisation and discrimination adding that the mandatory testing, provided in the law, is also discriminative.

Dominican Republic: National Council for HIV asks for a review of HIV laws & drug laws, including HIV criminalisation provisions

Conavihsida asks to modify the HIV-AIDS law in the country

Source: Diario Libre, December 12, 2019 – Google translation, scroll down for article in Spanish

Conavihsida asks to modify the HIV-AIDS law in the country

In the country there are 12,000 people who have VHI and do not know it

The director of the National Council for HIV (Conavihsida), Víctor Terrero, asked the authorities to review and adapt laws and policies that affect drug users in HIV prevention and care programs.

It proposed the modification of Laws as 135-11 in its articles 50.78 and 79, as well as the Drug Law 50-88. He argued that sometimes a mother is sentenced to eight and ten years in prison for occupying a small portion of prohibited drugs and forgets that this woman has three and four small children to care for and maintain and that this type of case should be considered In the law.

“We are raising our voice in favor of injecting drug users living with HIV status and who are 22% more likely to get the virus,” he said.

He said that according to UNAIDS data these users often share needles, syringes and other supplies for injection, with which they contract the disease. He said that type of restrictive policy has failed elsewhere. He called to change the restrictive policy that is currently applied by a water utility so that drug use is not criminalized and is seen as a public health problem.

Third, the policies should focus on working with the person to avoid consumption, but also the spread of HIV through the use of syringes and other instruments. He recalled that there are about 12,000 people in the country who have HIV and do not know it.

By participating in the conference on “Drug, HIV and Human Rights Policies,” Terrero said that the most vulnerable population to contract HIV are the LGBTI population, Haitian migrants, low-school children in the bateyes who are the ones They provide the most new cases.

The director of Conavihsida reported that more than 79,750 people live with HIV in the country, of which they work with almost 69,000 for a missing 10,000. Retrovirals are supplied to all those identified, for which the State invested 17 million dollars this year.

On his side, Mauricio Ramírez Villegas, coordinator of the United Nations System in the Dominican Republic also advocated comprehensive policies on the issue of drugs and HIV.

He said that public policies must be more humanized to respond effectively to the fight against drugs and said there is scientific evidence from the United Nations, specialized agencies that demonstrate that a more humanized public policy is more effective than restrictive and criminal They deepen drug problems.

The items in dispute

Article 50.- Mandatory evidence . The tests for the detection of HIV or its antibodies are mandatory when:

1) It is required for the purpose of evidence in a criminal proceeding, upon order of the competent judicial authority; However, the accused refuses to carry out the test for detection

of HIV or its antibodies.

2) It involves donating blood, blood products, breast milk, semen, organs and tissues.

3) It is a pregnant woman, as part of the examinations prescribed by the attending physician, in order to ensure the best interest of the unborn child.

Article 78.- Obligation to inform the sexual partner. Any person who, knowing his HIV seropositivity, does not communicate his serological condition to the person with whom he is going to

Having sex will be punishable by imprisonment for two (2) to five (5) years.

Article 79.- Transmission of HIV intentionally. Any person who, by any means, transmits HIV intentionally to another, will be punished with imprisonment for twenty (20) years.

Conavihsida pide modificar ley de VIH-SIDA en el país

  • En el país hay 12,000 personas que tienen VHI y no lo saben

El director del Consejo Nacional para el VIH(Conavihsida), Víctor Terrero, solicitó a las autoridades revisar y adaptar legislaciones y políticas que afectan a los usuarios de drogas en los programas de prevención y atención del VIH.

Planteó la modificación de Leyes como 135-11 en sus artículos 50,78 y 79, así como la Ley de Drogas 50-88. Sostuvo que en ocasiones se condena a una madre a ocho y diez años de prisión por ocuparle una pequeña porción de droga prohibida y se olvida de que esa mujer tiene tres y cuatro hijos pequeños que cuidar y mantener y que ese tipo de caso se debe contemplar en la ley.

“Estamos levantando nuestra voz en favor de los usuarios de drogas inyectables que viven con la condición de VIH y quienes tienen un 22% más de posibilidades de contraer el virus”, sostuvo.

Manifestó que de acuerdo con datos ONUSIDA esos usuarios muchas veces comparten agujas, jeringas y otros suministros para inyección, con los cuales contraen la enfermedad. Aseguró que ese tipo de política restrictiva ha fracasado en otros lugares. Llamó a cambiar la política restrictiva que se aplica actualmente por una sanitaria para que no se siga criminalizando el uso de drogas y se vea como un problema de salud pública.

Terrero que las políticas deben enfocarse en trabajar con la persona para evitar el consumo, pero además, el contagio de VIH a través de uso de jeringas y otros instrumentos. Recordó que en el país hay unas 12,000 personas que tienen VIH y no lo saben.

Al participar en la conferencia sobre “Políticas de Drogas, el VIH y los Derechos Humanos”, Terrero señaló que la población más vulnerable para contraer VIH son la población LGBTI, los migrantes haitianos, los niños de baja escolaridad en los bateyes que son los que aportan la mayor cantidad de los nuevos casos.

El director de Conavihsida informó que más de 79,750 personas viven con VIH en el país, de los cuales trabajan con casi 69,000 para un faltante de 10,000. A todos los identificados se les suministran los retrovirales, para lo cual el Estado invirtió este año 17 millones de dólares.

De su lado, Mauricio Ramírez Villegas, coordinador del Sistema de Naciones Unidas en República Dominicana también abogó por política integrales en el tema de las drogas y el VIH.

Dijo que las políticas públicas deben ser más humanizadas para responder con efectividad a la lucha contra las drogas y aseguró que hay evidencias científicas por parte de Naciones Unidas, organismos especializados que demuestran que una política pública más humanizada es más efectiva que las restrictiva y criminales que profundizan los problemas de las drogas.

Los artículos en disputa

Artículo 50.- Pruebas obligatorias. La realización de las pruebas para la detección del VIH o de sus anticuerpos, son obligatorias cuando:

1) Se requiera para fines de prueba en un proceso penal, previa orden de la autoridad judicial competente; no obstante el imputado se rehúse a la realización de la prueba para la detección del VIH o de sus anticuerpos.

2) Se trate de donación de sangre, hemoderivados, leche materna, semen, órganos y tejidos.

3) Se trate de una mujer embarazada, como parte de los exámenes prescritos por el médico tratante, con la finalidad de asegurar el interés superior de la criatura por nacer.

Artículo 78.- Obligación de informar a la pareja sexual. Toda persona que, conociendo su seropositividad al VIH, no comunique su condición serológica a la persona con la que vaya asostener relaciones sexuales, será castigada con la pena de reclusión de dos (2) a cinco (5) años.

Artículo 79.- Transmisión del VIH de manera intencional. Toda persona que, por cualquier medio, transmita el VIH de manera intencional a otra, será castigada con pena de reclusión de veinte (20) años.

US: Bipartisan group of Missouri Lawmakers working to change HIV Laws that date from the 1980s

Missouri Lawmakers Want To Bring HIV Laws To The 21st Century

A bipartisan group of lawmakers is working to change current Missouri law on HIV that they say hasn’t been updated since the 1980s. 

Rep. Holly Rehder, R-Sikeston, said current laws now actually discourage people from being tested. She said if someone knowingly exposes their partner to HIV and they contract the disease, it’s a class A felony. This is the most serious of felony crimes which include murder, rape and forcible kidnapping. 

“If you don’t know your status, there’s no way in Missouri you can be charged with that class A felony,” Rehder said Wednesday in announcing the proposed legislative change. “Not knowing your status in Missouri, unfortunately, keeps people from having that concern, which, in turn, keeps people from getting tested.” 

In comparison, driving intoxicated and causing someone’s death is a class C felony. 

Rehder’s legislation would reduce knowingly exposing someone to HIV who then contracts it to a class C felony. Her bill also reduces the penalty of knowingly exposing someone to the disease who does not contract it from a class B felony to a class D felony. 

Rep. Tracy McCreery, D-St. Louis, filed separate legislation that completely eliminates felony charges and reduces all transmission offenses to misdemeanors. 

“That’s based on input that we received from experts around the country,” she said. “It puts it more in line with other kinds of disease transmission, as well.” 

Jeanette Mott Oxford, executive director with Empower Missouri, said it gets it out of the area of disclosure altogether. Both of these laws focus on intent. 

“Were you intending to transmit HIV? Because right now our law says condom use is no defense,” she said. “So you could be trying not to transmit HIV and still be charged with a crime in Missouri.”

There were roughly 13,000 people living with HIV in Missouri in 2018, according to the Department of Health and Human Services. Missouri has also been categorized as one of seven states in the U.S. with a rural HIV epidemic. However, with adequate treatment, those who are HIV-positive can avoid getting AIDS. Medication can also suppress the virus and reduce the risk of transmitting it to another person. 

“HIV is no longer a death sentence if you’re being treated,” said Rehder. 

Rehder’s bill and McCreery’s bill have been pre-filed, but full language has not been made available yet. Sen. Shalonn “Kiki” Curls, D-Kansas City, plans to file similar legislation in the Senate next week. 

On another health issue, Rehder will again attempt to pass a statewide prescription drug monitoring program. 

Many states across the nation experienced a decrease in drug overdose deaths in 2018, according to the Centers for Disease Control and Prevention. But Missouri saw a 12% increase. 

Data from the Missouri Department of Health and Senior Services shows that one out of every 65 deaths in Missouri in 2017 was caused by opioid overdose. Also, Missouri is also the only state without a PDMP.

Rehder said she believes she has the support to get it done this year. Approaching her final year in the House, she said it’s incredibly important to get it done this legislative session. 

“I was raised on welfare, single mom, multiple stepdads, multiple mom’s boyfriends in the home; one of my stepdads was a dealer,” she said. “I had quite a bit of a different lifestyle than many of my colleagues. You know, I had to quit school at 15 to help take care of my family and had my first baby at 16. I’ve seen some things that maybe some others haven’t.”

Rehder said she feels a personal responsibility to explain how policies affect the people that grew up in “her part of the community.”

US: It’s time Ohio’s laws reflected our new understanding of the science of HIV

Ohio’s HIV laws should be based on science, not hysteria

Even if you weren’t a fan of the National Basketball Association in 1991, you probably remember the day in November that Earvin “Magic” Johnson, the dazzling point-guard of the Los Angeles Lakers announced he was retiring from the game after testing HIV-positive. How many more years did you give Magic? Three, four, maybe five?

Over the last 28 years, we’ve watched Magic briefly return to the NBA, coach the Lakers, announce NBA games, host a talk show, open movie theaters and coffee shops, buy a stake in the L.A. Dodgers and serve as Lakers president.

It would have been impossible in 1991 to conceive of Magic cycling through all those career choices because we couldn’t have imagined him having the time. But now, it’s fairly common to hear of people who’ve lived for decades after a positive diagnosis.

Their longevity shouldn’t be used to minimize the seriousness of the virus. If left untreated, HIV will cause AIDS, and AIDS will kill. But the advancements in treatment and prevention are reason enough to reconsider some of the decades-old laws that were drafted to punish people who sleep with others without informing them that they’re HIV-positive. Those laws were largely based on the belief that there was nothing on the other side of an HIV diagnosis but sickness and death.

In Ohio, a person who is HIV-positive can be sentenced up to eight years in prison and made to register as a sex offender for engaging in sexual conduct without disclosing their status.

What if that person uses a condom?

It doesn’t matter.

What if the person is faithfully taking pre-exposure prophylaxis, or PReP, which, according to the Centers for Disease Control and Prevention, “reduces the risk of getting HIV from sex by about 99%”

That doesn’t matter, either.

What if long after the fact, the partner tests negative for the virus?

Not even that matters. The offense, according to the law, is not telling. The crime isn’t the transmission. The crime isn’t even the likelihood of transmission. Just the not telling. Even if the person is reasonably trusting the science that says transmitting the virus is virtually impossible.

Greg Cote told Columbus radio station WOSU last month that he has made himself into a walking billboard proclaiming that he’s HIV-positive. As a policy, everybody should be as honest as he is. Even so, Cote hasn’t been intimate with anybody, he said, because if a bitter lover claims they weren’t informed, it can be difficult for people with HIV to prove to the satisfaction of jurors that they were, indeed, honest and forthcoming about their status.

A 2004 episode of The Chappelle Show included a sketch about “The Love Contract,” which was described as a way that people engaged in casual sex could prove in court that their partners consented. As absurd as the idea of a pre-coital contract sounds, advocates for Ohio’s HIV-positive residents say that or something close to that is required for them to prove that they haven’t been dishonest with their partners.

The Ohio Health Modernization Movement advises sexually active HIV-positive people to do one of the following things: save email or text messages that indicate that a potential partner has been informed of the person’s status; take that potential partner to a doctor’s visit or a caseworker’s visit so a third-party can confirm a disclosure was made; discuss one’s status in front of a third-party who can attest that a disclosure was made; video a conversation of a disclosure or, lastly, do what Chappelle did in that comedy sketch and have a potential partner sign a document. This document would acknowledge the partner’s awareness of the positive person’s status.

The best way for a HIV-positive people to protect themselves from criminal prosecution for consensual sex is to not getting tested. After all, Ohio law doesn’t allow people who don’t know that they’re HIV-positive to be charged with not telling their partners that they are. And this, advocates say, provides a regrettable incentive for people to avoid finding out if they’re carrying the virus.

The advocates’ position lines up with the federal government’s. In a 2014 report, the Civil Rights Division of the U.S. Department of Justice cited a CDC finding that the stigma associated with an HIV diagnosis discourages many from learning their status. That DOJ report notes that “intentional HIV transmission is atypical and uncommon” and suggests that states rewrite their laws to focus on two types of offenders: HIV-positive rapists whose crimes put their victims at risk of contracting the virus and people who intend to transmit HIV through behavior that carries a “significant risk of transmission.”

Such a focus is warranted. Prosecutors shouldn’t be pursuing those who aren’t trying to infect their partners, especially those who’ve been made to believe that they can’t. The American Medical Association has called for a complete repeal of HIV criminalization laws, but the Ohio Health Modernization Movement favors changing a failure to disclose one’s status from a felony to a misdemeanor.

After retiring in 1991, Magic tried to return to the court in 1992, but many players expressed a fear of playing against him. But in 1996, Magic did return with hardly anybody objecting. Players had a better understanding, then, about how the virus is transmitted. And we have an even better understanding of things in 2019. It’s time our laws reflected that new understanding.

Jarvis DeBerry is a columnist at Cleveland.com and a member of the editorial board. Reach him at jdeberry@cleveland.com or on Twitter at @jarvisdeberry.

Kenya: Advocates argue that HIV criminalisation law is impeding progress in Kenya’s response to the epidemic

Group criticises sexual offences law in war against HIV

In Summary

  • Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.
  • But the state argues that the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights

The government could be shooting itself in the foot in the ongoing efforts to contain the spread of HIV and Aids by allowing the Director of Public Prosecutions (DPP) to arrest and commence criminal trial against those suspected of spreading the virus.

The state has been calling on the public to come out openly and seek testing and treatment.

However, recent events where the DPP wants a 42-year-old woman in Nakuru jailed for breastfeeding and infecting her neighbour’s nine-month-old baby with HIV last year, could undo the gains already made in containing the spread of the virus.

It is feared that such prosecution may discourage others from going public about their status and seeking treatment among other state interventions aimed at curbing the virus.

The law under which the woman was charged, Section 26 of the Sexual Offences Act, is also the subject of litigation at the High Court by HIV positive persons (PLWHA) who want it repealed.

The woman’s lawyer, Ms Jenifer Mugweru, is appealing the orders issued by a magistrate on October 18, requiring her to provide her blood samples to be tested for HIV.

INFORMED CONSENT

The woman who is out on a Sh50,000 bond is said to have committed the offence on September 18, 2018 at Gichobo area in Njoro Sub-County.

The HIV and Aids Prevention and Control Act (Hapca), which has been in force since 2009, provides at Section 14 that, “No person shall undertake an HIV test in respect of another person except: (a) with the informed consent of that other person.”

Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available.

“Informed consent for HIV testing means that the person being tested for HIV agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed,” the HIV and Aids Tribunal ruled in one of its decisions.

In their application challenging Section 26 of the Sexual Offences Act, and its subsections, people living with HIV and Aids argue that it could undermine government efforts to eradicate or contain HIV and Aids spread.

They have interpreted section 26 of the Sexual Offences Act to imply that a person living with the disease is a potential criminal, who needs to be prosecuted and jailed, should it be established that he or she is “spreading” HIV/Aids.

POTENTIAL CRIMINAL

Section 26(1) of the Sexual Offences Act provides that “any person who, having actual knowledge that he or she is infected with HIV or any other ‘life threatening’ sexually transmitted disease, intentionally, knowingly and wilfully does anything or permits the doing of anything which he or she knows ….

“ … (a) Will infect another with HIV or any other ‘life threatening’ sexually transmitted disease … Shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life.”

The effect of this section and its subsidiary sections is that it perpetuates discrimination, stigma and fear against persons with HIV/Aids.

Living with the disease makes a person a criminal waiting to be arrested, prosecuted and visited with a lengthy jail term.

“It therefore discourages people from testing for HIV, seeking treatment and disclosing their status,” the litigants said in court papers.

According to people living with HIV and Aids, knowledge of one’s HIV status is important because it allows one to seek treatment and greatly reduces if not eliminates the risk of further transmission.

It also makes it possible to employ a range of other transmission prevention strategies and can improve expansion of HIV diagnosis and treatment, therefore a necessary condition for a successful HIV response.

“Section 26 of the Act thereby threatens progress gained and severely constrains further progress in Kenya’s response to the HIV epidemic,” the PLWHA argue.

PRIVACY

The section, according to the group, also intrudes on the privacy of marriage between consenting parties, it creates stigma and discrimination against couples in which one partner has HIV and the other does not (discordant couples).

It criminalises consensual physical intimacy between partners, threatens to separate families by removing a parent or partner from the family to be incarcerated (it criminalises procreation between discordant couples).

The group says the section creates stigma and discrimination against breastfeeding whereas this is the means by which most people in Kenya nourish their infants, and the only practical means by which to do so for many as well as the medically suggested means including people with HIV.

“And in that it threatens to separate children from their parents by removing the parent from the child to be incarcerated for lengthy periods on the basis of their HIV status, whereas it is in the presumptive interest of the child to be raised by both parents,” said PLWHA in court papers.

The group also takes issue with the meaning of the term “life-threatening sexually transmitted disease” or what constitutes it, saying it has not been explained in the Act, and the law is therefore vague in that respect.

VICTIM’S INTENTION

The state in defending the law disagrees with the arguments being advanced by the group, saying the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights.

The group wants the court to declare Section 26 of the Sexual Offences Act unlawful. The case is still pending in the high court.

Further, that it is important to appreciate why section 26 of the Sexual Offences Act was enacted.

“While examining whether a particular law is unconstitutional, the court must have regard not only to its purpose but also its effect. The purpose of section 26 of the Sexual Offences Act was to address the intentional spread of HIV and Aids,” state counsel Anne Wanjiku Mwangi in court papers.

Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.

US: Florida HIV Criminal laws undermine public health goals and must be modernised

HIV in Florida is on the rise. Here’s how we can change that.

The state has mishandled the epidemic in the past, but lawmakers can get it right now

By Jennie Smith-Camejo, Kamaria Laffrey, Christine Hanavan and Alejandro Acosta
Published Sep. 19

Last week, Floridians learned that as governor, Rick Scott rejected $70 million in federal funding to fight the state’s HIV epidemic between 2013-2017. During those years, New York invested heavily in testing, treatment, and services for people living with HIV—and reduced its rate of new diagnoses by 30 percent. Of the 10 states with the most annual HIV diagnoses, only Florida saw an increase—a whopping 11 percent. 23,413 Floridians have had their lives altered as a result.

Florida’s new governor, Ron DeSantis, just announced that his administration will lead a “robust program” to reduce HIV and AIDS in the state. HIV advocates will work with him to fulfill this promise.

Yet ending the epidemic in Florida requires more than promises. Access to care and services for people living with HIV is key. Modern antiretroviral treatments reduce the amount of the virus in the body so low tests can’t detect it. After six months, the person cannot transmit HIV to their sexual partners as long as they stay undetectable. The CDC confirmed that maintaining an undetectable viral load is 100% effective at preventing HIV transmission, even without condoms. Ensuring every person with HIV is diagnosed and is linked to care and support to stay in care (stable housing, mental healthcare, transportation for medical appointments, etc.) keeps the person with HIV healthy and prevents transmission.

Further, Florida legislators must align our laws with modern science. Currently, outdated laws criminalize people with HIV for consensual sex. People can be convicted of a felony even when no transmission occurred or was possible. One accusation can ruin a life.

These laws are different from other criminal laws. The burden of proof lies on the person living with HIV to prove they told their partner. But intimate conversations rarely take place in writing. And no intent to “harm”–or actual harm–is required for conviction. Disputes about facts routinely work in favor of the accuser, ruining lives. Headlines about such cases further stigmatize HIV, driving people living with HIV back underground, afraid to disclose or sometimes even to get medication because of the legal and social consequences of criminalization and stigma.

These laws undermine the public health goals of testing and treatment. The National HIV/AIDS Strategy recommended that state governments review their criminal laws for this very reason. And a 2017 study authored by CDC staff found that laws criminalizing HIV have “no detectable prevention effect.”

Florida government can right this wrong by funding care and services and by modernizing the state’s criminalization laws. The Florida HIV Justice Coalition, a group of people living with HIV and organizations working with communities affected by HIV, formed to help legislators align our laws with science and public health.

Together, we can make Florida a state where no one is afraid to seek HIV testing or care.

Jennie Smith-Camejo, of Miami, is communications director for Positive Women’s Network, USA. Kamaria Laffrey, of Winter Haven, is the Southern engagement community coordinator for the Sero Project. Christine Hanavan, MSW, of Orlando, is a community organizer for Sex Workers Outreach Project Behind Bars. Alejandro Acosta, of Fort Lauderdale, is the HIV advocacy manager for Equality Florida.

 

Uganda: HIV law deters communities from seeking HIV services and should be reformed

Kaleba scolds Parliament: The AIDS law is poisonous

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

HEALTH  HIV/AIDS 

The founder of The Aids Support Organization (TASO), Noerine Kaleeba, has castigated members of parliament, saying they approved the AIDS law which is awash with numerous contentious clauses.

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

In 2014, Parliament endorsed the HIV and AIDS Prevention law, which came into effect the same year on July 31, when President Yoweri Museveni assented to it. The law seeks to provide for a legal framework geared towards the prevention and control of HIV.

Kaleeba said the contentious clauses (41 and 43) of the law provide for prosecution on grounds of attempted and intentional transmission of HIV, respectively. Among the provisions of the piece of legislation is criminal penalty for risk and intentional transmission of the virus.

The law requires mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus. Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

Speaking during the 29th Centre General Meeting (CGM) of TASO Mulago last week, Kaleeba regretted that these provisions in the law do not only stigmatise and discriminate against people living with HIV but also deter communities from seeking HIV services such as HIV Testing and subsequently HIV treatment.

TASO founder Noeline Kaleebu together with another founder Peter Ssebanja take to the flow during the 29 AGM for TASO Mulago 

She said that the clauses have fueled domestic violence in homes since the couples each blame one another for intentionally transmitting the virus. She said it is naïve to think that the person who tests first is the one who infects the other, it could be the other way round.

“Honestly, how can it be proven that indeed the HIV of the accuser was got from the accused? There is fear that public knowledge of one’s HIV positive status would be used against them due to personal differences,” she says.

She argued that this will ultimately discourage people from testing to know their status fearing that if found positive, their status could be used against them in courts of law at any point in time. It should thus be noted that one who does not know their status cannot be held liable under this law.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as criminals or potential criminals,” She says. Adding, “People will inadvertently live with the virus without accessing treatment and by the time they get to know their status it will be too late.”

Kaleeba says that both members of the previous parliament and the President (who signed the law) acted out of ignorance, and therefore made a mistake. She prays that the 10th parliament doesn’t have to keep the error, and this is urgent.

She also hailed the appointment of Winnie Byanyima as the new executive director of UNAIDS, saying it has come at the right time as we are closing the chapter of HIV/AIDS. She said Byanyima is an exceptionally good manager, and her appointment will elevate our country.

“She will definitely give a mirage to Uganda even for those who didn’t know Uganda, will come to know the country, whether they like it or not. The world will say the new UNAIDS ED comes from Uganda, and that way our reputation will be elevated. People living with HIV, therefore, need to double their efforts especially on issues of taking their medication,” she said.

“Strict adherence to treatment is where the war is. When you religiously adhere to your medication, your viral load becomes undetectable, meaning you will not transmit to others. Let us be exemplary and merit Bwanyima’s confidence.”

Responding to Kaleeba’s concerns, the guest of honour, Florence Nambozo, who is also woman MP for Sironko and chairperson HIV/AIDS committee, assured over 800 people who turned up for the CGM that she will talk to her fellow members of parliament to make sure that the law is amended.

She said Uganda is making good progress in the HIV fight and urged people living with HIV to stick to treatment since the ARVs are available and free in all government health facilities.

The Centre Program Manager TASO Mulago, Godfry Mafabi revealed that by end of July TASO Mulago had recorded a cumulative total of 7754 compared to last years’ 1145 in care against a target of 8371 to be achieved by September 2019.

Mafabi said that since the last AGM 918 clients were initiated on ART, of these 23 were children and 139 adolescents, and 756 were adults compared to 663 who were started on ART between 17 August- July 18. The suppression rate is currently at 97% surpassing the new national target of 95% target.

However, the institution is still faced with challenges of funding since the time the donors pulled out. The number of staff was also reduced at the facility to 27 from 75, which is a big setback. We are using expert clients to handle new clients, he said.

Canada: Further reform is needed to redress the harms HIV criminalization brings to the lives of women living with HIV

Recommendations on changes to HIV criminalization don’t go far enough

Earlier this summer, the House of Commons Standing Committee on Justice and Human Rights released a report on Canada’s approach to criminalizing those who don’t disclose that they’re living with HIV to sexual partners.

If the Standing Committee’s recommendations are adopted, they could diminish the harms experienced by women living with HIV under Canada’s current approach to criminalization.

But further consideration and consultation are required in order to fully address the harms that the law introduces to the lives of women living with HIV.

The Supreme Court of Canada articulated the current legal approach in 2012. In so doing, the court interpreted consent and fraud provisions of Canada’s sexual assault laws and ruled that people diagnosed with HIV must disclose their status to sexual partners before engaging in sexual acts that pose a “realistic possibility of transmission.”

The court also stated that there is no legal obligation to disclose prior to sex if a condom is used and the person living with HIV has a consistently low measure of HIV in their blood. This legal understanding of a “realistic possibility” contradicts current scientific knowledge that just one of these conditions is sufficient to eliminate transmission risk.

Scientific evidence endorsed by the federal government demonstrates that an undetectable viral load eliminates the risk of sexual transmission of HIV, regardless of condom use. Similarly, there is a negligible risk of transmission when condoms are used properly, no matter an individual’s viral load.

Today, in addition to being inconsistent with current scientific evidence, HIV nondisclosure prosecutions are widely seen as unjust as they can result in harsh sentences for actions that result in little or no harm.

Canadian prosecutors and courts apply the criminal offences of sexual assault and aggravated sexual assault to prosecute cases of HIV nondisclosure. The latter — one of the most serious offences in Canada’s Criminal Code — carries the possibility of a lifetime sentence and mandatory registration as a sexual offender.

Experts discuss the misuse of sexual assault law in prosecuting cases of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Women living with HIV & the law

“The law is a bigger risk to us than HIV.” Sophie

The criminalization of HIV nondisclosure was purportedly intended to protect women while reducing HIV transmission risk by promoting disclosure and safer sex practices. Instead, research indicates that punitive approaches have the opposite effects, many of them significantly harmful.

As health scientists at Simon Fraser University, we work alongside experts on two studies: the Canadian HIV and Women’s Sexual and Reproductive Health Study (CHIWOS), with researchers also from the University of Toronto, McGill University, University of Manitoba, University of Saskatchewan and McMaster University; and the Women, ART and the Criminalization of HIV (WATCH) study with health partners based at McMaster University.

Findings from these studies indicate that criminalization reinforces socially dominant power dynamics, stigma, marginalization and fear experienced by women living with HIV. Specifically, the current legal requirements ignore the dangers women face in both negotiating the use of condoms and status disclosure due to power inequities, particularly in dependent, violent and non-consensual relationships.

À lire aussi : Why a fulfilling sexual life with HIV matters

“I was raped by three [people …] And if I had told [them] I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” Julie

Women living with HIV who don’t disclose their status when they are sexually assaulted may themselves be convicted of a sexual offence.

Not only does criminalization contradict scientific evidence around HIV transmission risk, it compromises women’s health-care engagement and deters HIV testing since those who do not know their status cannot be prosecuted. Yet access to HIV testing, treatment and support services is scientifically proven to decrease transmission risk.

Furthermore, women who aren’t prosecuted are still harmed by the law. For example, women who have experienced emotional and physical violence by abusive partners may face the threat of partners falsely reporting that the woman didn’t disclose her HIV status.

Living under the fear of being charged has significant consequences for women’s emotional, mental and physical well-being. This is particularly important given the high rates of physical and sexual violence experienced by women living with HIV in Canada.

“It seems like an impossible situation to prove your innocence.” Miranda

These findings were shared with the Standing Committee through expert testimony by members of CHIWOS and WATCH. Such contributions are integral in moving toward an approach to criminalization that considers the realities of people living with HIV.

Women living with HIV and others share their experiences and knowledge of the criminalization of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Recommendations could go further

The Standing Committee’s report makes recommendations in a positive direction, but the recommendations need to go further to reduce harms to women living with HIV.

Firstly, the committee recommends creating a new offence in the Criminal Code for nondisclosure of an infectious disease where transmission happens. This recommendation says prosecutions should never be pursued in cases where: an individual has an undetectable viral load; condoms were used; the sexual partner of a person living with HIV is taking pre-exposure prophylactics; or the sexual act carries a negligible risk of transmission (oral sex, for example).

This suggested requirement of a new offense where actual transmission occurs would minimize, though not fully eliminate, opportunities for the law to be used as a tool of violence against women.

Though the creation of a new offence would address the current problematic use of sexual assault laws, failing to consider the intent of not disclosing is significant. In 2008, the United Nations urged states to limit prosecution of HIV nondisclosure to extremely rare cases of actual and intentional transmission.

Heed women’s experiences

Without including the element of intent, the committee has not fully addressed the vulnerability of women who may unintentionally transmit HIV during their own sexual assault or an unprotected sexual encounter. Given the widespread violence experienced by women living with HIV in Canada, this is a substantial deficiency in the recommendations.

And, given the report’s recognition that criminalization has not achieved its public-health goal of reducing HIV transmission, transmission of any infectious disease should be addressed by public-health mechanisms rather than the law.

Secondly, the report recommends ensuring that the same conditions are applied cross-country to consider whether prosecutions should proceed in cases where people haven’t disclosed that they are living with HIV. This recommendation would address the disparities in prosecutions of HIV nondisclosure and reduce various harms to people living with HIV.

Finally, the report recommends a review of all past convictions for HIV nondisclosure and increased access to anonymous testing. These measures are significant in beginning to redress the harms introduced by the current legal approach.

But to fully do that, Canada must heed all the experiences of women living with HIV.