Death penalty for unintentional HIV transmission via same-sex sex struck down by Uganda’s Constitutional Court

The recent (April 3rd) ruling by Uganda’s Constitutional Court declaring that the Anti Homosexuality Act of 2023 complies with the Constitution of Uganda – except in only four aspects – was quite rightly roundly condemned by Amnesty International, the Global Fund, Human Rights Watch, International AIDS Society, and UNAIDS, as well as the US Department of State, amongst many others.

Rather than strike down every section of this heinous, draconian anti-gay law, the Court was unanimous in ruling that most of its dangerous, overly broad, and problematic provisions remain in place. 

However, in its 200+ page ruling, the Court did find that Sections 3(2)(c), 9, 11(2d) and 14 did not “pass constitutional muster” and were struck down.

Sections 9 and 11(2d) refer to landlords allowing homosexuality to take place on their premises, and section 14 refers to a “duty to report acts of homosexuality” to the police.

But section 3(2)(c) was one of the most heinous of all of the Act’s horrendous provisions, proscribing the death penalty for someone living with HIV who engaged in same-sex sex and where HIV is allegedly passed on.

  1. Aggravated homosexuality (1) A person who commits the offence of homosexuality in any of the circumstances specified in subsection (2) commits the offence of aggravated homosexuality and is liable, on conviction, to suffer death. (2) (c) the person against whom the offence is committed contracts a terminal illness as a result of the sexual act.

Read the full text of the law here

Both the Court, several petitioners, and UNAIDS – who provided an amicus brief to the Court – correctly interpreted this section as criminalising unintentional HIV transmission when two people of the same sex had sex.

In paragraphs 510-512, the Court referred to several key documents – including the 2011 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and UNAIDS 2013 Guidance Note, Ending overly broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations – and were persuaded that the section did not provide for “the element of criminal intent or mens rea, which is a vital component of the concept of crime.”

The Constitutional Court ruling went on to say:

“This indeed is the approach that was adopted in section 43 of the HIV and AIDS Prevention and Control Act, 2015, which criminalizes the intentional transmission of HIV as follows: ‘a person who wilfully and intentionally transmits HIV to another person commits an offence.’

“Finding no justification for the criminalization of the unintentional transmission of HIV under section 3(2)(c) of the Anti-Homosexuality Act we take the view that it compounds the susceptibility of persons that are HIV+ to mental health issues and thus impedes their right to enjoy the highest attainable standard of mental health, with potential ramifications to their physical health as well. This is a violation of the right to health as envisaged under Article 12(1) of the ICESCR and is inconsistent with Articles 45 and 287 of the Uganda Constitution.”

 

However, people living with HIV are already over-criminalised in Uganda by various sections of the HIV and AIDS Prevention and Control Act, as summarised in our Global HIV Criminalisation Database.

What is termed as “wilful and intentional” transmission of HIV is punishable by a fine and/or up to ten years’ imprisonment. Section 43 provides a defence if the accused’s partner was aware of, and accepted, the risk of transmission, or transmission occurred during sexual intercourse and protective measures were used. Attempted transmission is punishable by a fine and/or up to five years’ imprisonment. The scope of section 41 is undefined, but cases demonstrate that the law criminalises perceived HIV ‘exposure’ broadly.

Both Section 41 and 43 are known to have been used in a broad range of circumstances, including prosecution of a man for ‘defilement’ (2013), prosecution of a teacher for alleged transmission to his student (2013), the alleged injection of a toddler/needle stick injury (2014), alleged transmission by a woman to a number of young men (2014), alleged breastfeeding of an employer’s child (2018), the arrest, conviction and acquittal of a nurse wrongfully convicted of injecting a baby with HIV-infected blood (2018), and the alleged defilement of a boy by a woman (2019). An earlier prosecution from 2008 involved a man charged with alleged transmission. In the most recent case in 2023, a woman living with HIV pled guilty to charges under section 43 after injecting her 5-year-old son with her blood and was sentenced to seven years’ imprisonment. Cases have generally not used scientific evidence to prove allegations, with convictions at lower-level courts relying only on testimony.

Nevertheless, the recognition of key legal and rights-based arguments against punishing unintentional HIV transmission with the death penalty(!) as part of an otherwise anti-rights, morality-based ruling should be seen as a small but welcome victory. Although this might be seen as similar to the 2022 Lesotho High Court decision on the unconstitutionality of the death penalty in the context of HIV transmission following rape, the difference of course is that that rape is an act of violence that should be criminalised regardless of any other circumstances, whereas consensual sex between two men or two women should never, ever be a crime.

US: New report published on the enforcement of HIV criminalisation in Ohio

‘Antiquated’ and unscientific laws enforced against Ohioans living with HIV: Report

Across the country, a growing coalition of advocates is pushing to repeal or update state laws that criminalize people living with HIV or AIDS.

In Ohio, six laws on the books either criminalize certain acts – including sex – for people living with HIV or substantially increase sentences for them compared to people who do not have the virus.

Most of the laws were passed decades ago, fueled by fear, absent scientific understanding about how HIV is transmitted and before advancements in HIV-related treatment were widely introduced. Laws still remain in place in 34 states.

There are no national reporting requirements that track arrests or prosecutions under the laws. Until now, it was unclear how frequently Ohio prosecutors have charged people under the laws, which also apply to people living with hepatitis or tuberculosis.

A report released today by Equality Ohio and the Ohio Health Modernization Movement (OHMM), two groups pushing for legal reform, reveals that more than half of the prosecutions over a six-year period were for acts – such as spitting or throwing bodily fluids – that were unlikely to transmit HIV. It also found a disproportionate number of people charged were Black compared to Ohio’s overall population of Black residents.

“Ohio is unique in that these antiquated laws are actually being utilized and enforced against everyday Ohioans who are living with HIV,” Kate Mozynski, an attorney with Equality Ohio and one of the co-authors of the report told the Buckeye Flame.

In 2022, about 25,000 people in Ohio had an HIV diagnosis. The rate of Black residents diagnosed with HIV was more than six times the rate of white residents.

The groups spent three years gathering information from prosecutors and courts in all 88 Ohio counties and identified 214 cases charged under the six laws. Often, the records lacked or had conflicting information on race or ethnicity, and the gender captured in law enforcement records didn’t always reflect a person’s gender identity.

That prevents researchers from fully understanding the impact that these laws are having on some of the most vulnerable populations in Ohio, including LQBTQ+ people, people experiencing incarceration and people of color, according to the report. The federal Centers for Disease Control and Prevention has warned that laws criminalizing HIV exposure are outdated and may discourage testing, increase stigma and exacerbate disparities in Black and Latino communities.

Cuyahoga County had the highest number of charges

 The report found that:

  • Prosecutions are concentrated in Ohio’s more populous counties, including Cuyahoga, Hamilton, Franklin and Lucas counties.
  • Cuyahoga County charged four times the number of people under the six laws than Franklin County, which has a higher population and more people living with HIV and AIDS. Cuyahoga County accounted for 26% of the cases identified.
  • The largest share of prosecutions involved Black men, based on recorded race and gender included in records.

A separate Marshall Project review of prosecutions under the six laws in Cuyahoga County from 2016 through 2022 examined 36 charges involving 35 defendants. That doesn’t didn’t include charges for solicitation, prostitution or loitering, which are generally misdemeanor crimes.

The cases involved 18 law enforcement agencies, including three hospital police departments and public transit police.

The Cuyahoga County Prosecutor’s office, which decides whether to prosecute felony cases under Ohio’s laws, said these charges are determined on a “case-by-case basis” after considering input from victims, according to Lexi Bauer, communications manager. Bauer noted that the majority of the “harassment by bodily fluid” charges in recent years were related to hepatitis and not HIV.

Ohio penalties among the harshest

Ohio’s laws remain among the harshest when it comes to HIV criminalization, not just based on the conduct that is criminalized but also the penalties, said Jada Hicks, staff attorney for The Center for HIV Law and Policy.

In Ohio, people living with HIV (or viral hepatitis or tuberculosis) can be charged whether or not they:

  • Engaged in sex practices or other acts that could transmit the virus.
  • Transmitted HIV.
  • Used protection, such as condoms and/or dental dams.
  • Had an undetectable level of virus in their blood and were unable to transmit HIV.

Most of the charges examined in the report fall under two Ohio laws.

One law makes it a crime for a person living with HIV (or hepatitis or tuberculosis) to “harass” someone with their bodily fluids. That would include spitting or throwing urine, feces or blood at another person.

Under the other law, a person can be charged with felonious assault if they have sex with another person without telling them that they are living with HIV.

The penalties for failing to disclose HIV status in Ohio are stiff regardless of whether the virus was actually transmitted or whether it was even possible for a person to transmit the virus. Possible sentences for individuals living with HIV can be anywhere from two to 29 times longer than those for Ohioans who are HIV-negative.

Ohio is also one of six states that require individuals convicted under one of these statutes to register as a sex offender.

“Ohio’s HIV laws don’t require actual transmission or even the intent to transmit,” said Nathan Cisneros, a researcher with the Williams Institute, which does legal and public policy research on sexual orientation and gender identity. “Conduct that couldn’t transmit HIV – like spitting and biting, loitering while having a conversation about sex work – can land you in prison.”

The Williams Institute also published a report today that looked at arrests under Ohio’s six laws over two decades and felony prosecutions in Cuyahoga County from 2009 to 2022. Researchers identified at least 530 separate allegations under the six laws since 2000. Having consensual sex without disclosing an HIV-positive status made up nearly half of the total cases. Incidents related to sex work and bodily fluid exposure each accounted for nearly one-fifth of the total.

Changing legal landscape

Thirteen states have either repealed or modernized their HIV laws, according to the Center for HIV Law and Policy, including Illinois in 2021 and New Jersey in 2022.

Ohio advocates have been at the forefront of efforts to challenge the laws as discriminatory. In 2022, the Center for HIV Law and Policy filed a complaint with the Department of Justice on behalf of people living with HIV in Ohio and Tennessee.

In December, the DOJ notified Tennessee it was violating the Americans with Disabilities Act (ADA) by enforcing the state law that increases penalties for people convicted of prostitution if they also have HIV. On Feb. 15, the Justice Department filed charges against the state in federal court..

Combing state records for HIV-related charges

OHMM researchers gathered information from county-level online court records and local county clerk and prosecutors’ offices in Ohio’s 88 counties for a six-year period ending in 2020. The project identified 214 cases prosecuted under the six laws.

Behind each one of the cases, there is a “real, everyday Ohioan who happens to have a medical condition,” Mozynski said.

Where in Ohio are people being charged?

The highest concentration of charges are in the state’s larger metropolitan areas.

  • 26% in Cuyahoga County (Cleveland)
  • 12% in Hamilton County (Cincinnati)
  • 7% in Lucas County (Toledo)
  • 7% in Franklin County (Columbus)
  • Montgomery (Dayton) and Warren (Lebanon) counties, about 5% each.

What charges are most common?

More than half of the cases identified were for the charge of “harassment with a bodily substance,” which carries with it a penalty of up to 5 years in prison and a $10,000 fine. Cases with this charge are often related to acts against law enforcement or corrections officers or healthcare workers.

Charges don’t distinguish between bodily fluids that can transmit HIV, such as blood, and those that do not, such as saliva, urine or feces. People can also be charged if they are living with hepatitis, regardless of whether it is transmitted.

Prosecutors also don’t have to prove whether a person is capable of transmitting the virus or determine whether it is scientifically impossible to transmit the virusdue to prescription-drug treatments that have reduced the presence of the virus in a person’s blood – called a viral load – to undetectable levels.

A third of the cases were for “felonious assault,” which carries the most severe penalty of any HIV-related charge – up to eight years of incarceration and a $15,000 fine. Each sexual act can be charged separately. It also doesn’t require that the virus be transmitted.

OHMM found no cases where people were charged with “selling or donating contaminated blood.” The Williams Institute found six arrests over a 20 year period related to blood donation.

Read the OHMM (“Enforcement of HIV Criminalization in Ohio: Analysis of Court Cases from 2014 to 2020”) report here.

Read the Williams report (“Enforcement of HIV Criminalization in Ohio HIV-related criminal incidents from 2000 to 2022”) here.

HIV Is Not A Crime Awareness Day goes global!

Next Wednesday 28th February is HIV Is Not A Crime Awareness Day.

For the first time, HIV Is Not A Crime Awareness Day – which began two years ago in the United States – has gone global! This year’s theme is: “You care about ending HIV criminalisation – you just don’t know it yet!”

That’s why we’ll be producing a very special episode of our webshow, HIV Justice Live! on this important new date for global HIV decriminalisation activism, where I’ll be joined on my ‘virtual sofa’ by an inspiring group of community-based expert activists – Florence Riako Anam (GNP+); HIV and human rights consultant, Michaela Clayton; Mikhail Golichenko (HIV Legal Network); and Andy Tapia and Kerry Thomas (SERO Project) – to explain why HIV criminalisation impacts us all, and what you can do about it.

We’ll be streaming live to YouTube and Facebook, so you’ll be able to interact with us during our Q&A session. By March 1st, Zero Discrimination Day, the show will also be available on our YouTube channel where it will be subtitled in English, allowing for automatic translation into any language.

HIV Is Not A Crime Awareness Day was the brainchild of our long-time HIV JUSTICE WORLDWIDE partner, the SERO Project’s co-Executive Director, Kamaria Laffrey. HIV Is Not A Crime Awareness Day was launched two years ago in collaboration with the Elizabeth Taylor AIDS Foundation, community activists and public policy organisations across the United States and grown in size and prominence ever since.

HIV Is Not A Crime Awareness Day takes place on 28th February for several reasons. It’s a date that bridges two major US awareness months – Black History Month in February and Women’s History Month in March. And it’s also a symbolic nod to the legacy of the late Hollywood icon and early AIDS activist, Elizabeth Taylor, who was born on 27th February.

HIV Is Not A Crime Awareness Day is an opportunity to amplify the voices of those who have been criminalised based on their HIV status; to remind people of the negative impacts of HIV criminalisation on health and rights; to celebrate the work of many individuals who are part of the growing global movement to end HIV criminalisation; and to recognise that there’s still much to do to achieve HIV JUSTICE WORLDWIDE.

You can find out what other events are taking place on and around HIV Is Not A Crime Awareness Day by visiting a dedicated Facebook page or by following the hashtag #HINACDay.

US: Report by the Williams Institute examines the enforcement of HIV criminalisation laws in Mississippi

HIV criminal laws lopsided impact on Black men in Mississippi

A new report by the Williams Institute at UCLA School of Law finds that at least 43 people in Mississippi were arrested for HIV-related crimes between 2004 and 2021. Half of all arrests in the state happened between 2017 and 2021.

The HIV epidemic and Mississippi’s HIV-related criminal laws disproportionately impact men, and Black men in particular. Men make up 49% of Mississippi’s population, 71% of people living with HIV (PLWH), and 72% of HIV-related arrests. Black men comprise 18% of the state’s population and 50% of PLWH. However, they make up 47% of HIV-related arrests.

Researchers analyzed data obtained from the Mississippi Department of Public Safety. Findings show that the enforcement of HIV criminal laws is concentrated around the state’s capital and most populous city, Jackson, and near the Gulf Coast. Almost 20% of arrests occurred in three counties: Harrison (15%), Hinds (13%), and Lamar (11%).

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based on a person’s HIV-positive status. Nearly two-thirds of U.S. states and territories currently have laws that criminalize people living with HIV.

Mississippi has two HIV criminal laws. The knowing exposure law makes it a felony to knowingly expose another person to HIV, hepatitis B, or hepatitis C and is punishable by up to 10 years in prison and/or a $10,000 fine. Mississippi’s endangerment by bodily substance law makes it a misdemeanor to attempt to expose or expose anyone at a correctional facility to bodily fluids. However, if someone knows their HIV or hepatitis status, the crime is upgraded to a felony punishable by 3 to 10 years in prison and/or a $10,000 fine.

“Mississippi’s criminal laws do not require the actual transmission of HIV, the intent to transmit, or even conduct that can lead to the transmission of HIV,” said lead study author Nathan Cisneros, HIV Criminalization Project Director at the Williams Institute. “We now have medical treatments that wholly eliminate the risk of transmitting HIV through sex, yet these advances are not reflected in Mississippi’s laws.”

Mississippi’s 2021 Ending the HIV Epidemic Plan called for reform of the state’s HIV criminal laws to align with modern HIV medicine.

“HIV criminal laws perpetuate stigma and can discourage testing and treatment,” said co-author Brad Sears, Founding Executive Director at the Williams Institute. “That’s why many national and state organizations, including the American Medical Association, have called for a repeal of these laws.”

This report is part of a series of reports examining the ongoing impact of state HIV criminalization laws on people living with HIV.

Read the report

US: Updated CDC guidelines on Molecular HIV Surveillance do not go far enough, believe HIV advocates

CDC updates privacy guidelines for HIV sample tracking

Guidelines relating to a controversial practice used by American state and local health departments to curb HIV infections were updated last week by the US Centres for Disease Control and Prevention – but have not gone far enough, believe some experts.

The guidelines track the genetic signatures of viruses collected from people newly diagnosed with HIV, and the updated policy encourages health officials to be more transparent about the process, one of many changes sought by HIV advocacy organisations concerned about how so-called molecular surveillance could violate patients’ privacy and civil rights.

The New York Times reports that the agency stopped short of adopting more significant changes some had been pushing for, like allowing health agencies to opt out in states where people can be prosecuted for transmitting HIV.

“We’re in a period where health data are increasingly used in criminal prosecutions, as seen in prosecutions of people seeking abortion care or who might have miscarried,” said Carmel Shachar, a professor at Harvard Law School who specialises in healthcare. The revised policy did not go far enough, she said, to protect people with HIV.

Dr Alexandra Oster, who leads the CDC’s molecular surveillance team, said the benefits of the programme far exceed the risks. “We need to do it well,” she said. “But we need to keep doing it.”

HIV has a distinctive genetic signature in each person that helps doctors decide which drugs are likely to thwart it. But the information can also be used to track its spread through a population – including identifying clusters of people who carry closely-related viruses.

The CDC has, for decades, used molecular surveillance to track flu, salmonella and, more recently, Covid.
In 2018, it began requiring health departments that received federal funding for HIV programmes to share such data gleaned from people with the virus. Patients do not have to be informed that their viral samples are tracked.

Molecular surveillance has identified more than 500 HIV clusters in the country since 2016, the CDC said.

Health officials can then interview people in the clusters to identify their sexual or drug-use partners and connect them to testing, needle exchanges and medications that block transmission.

But many HIV activists have long argued that such tracking could violate people’s rights and discourage testing and treatment.

Before the information is reported to the CDC, health departments strip it of information that could readily identify the patient. But personal data are held by state and local health departments.

In some states, people have been prosecuted for transmitting HIV or for not telling their partners that they carry it. No criminal prosecution in the United States has been known to involve molecular surveillance data, but activists remain wary of the possibility.

They also fear that advances in technology might eventually be able to determine who infected a specific person.

In October, 110 HIV and human-rights groups sent a letter to the CDC expressing “serious concerns” that molecular surveillance was carried out without the informed consent of people with HIV.

The CDC said that it had a meeting with the activist coalitions’ representatives last year and incorporated their input in the revised policy.

A similar conflict arose in the late 1990s, when the CDC pushed for states to collect names of diagnosed people in state-run databases, which the agency said would help combat a disease that by then had killed hundreds of thousands of Americans. But many activists protested the policy, delaying its rollout for a decade.

Since 2008, all states have collected the names of people diagnosed with HIV.

The CDC said the information is secure, and that it knew of only one names-related data breach – in Florida in 1996. It said it knew of no such privacy violations related to molecular surveillance data.

The new policy did not allow waivers for opting out of molecular surveillance in places where such data could be used in criminal proceedings, a change that had been recommended by the National Alliance of State and Territorial Aids Directors, a non-profit representing public health officers.

Representatives from more than 40 state or county health departments that the federal government prioritises for HIV prevention told The New York Times that the molecular surveillance policy had been generally useful in their efforts to prevent transmission. None knew of any data breaches.

Tajikistan: The discrimination and legal difficulties of women living with HIV

Infecting your wife and then accusing her: The Tajik HIV-positive women confronting social exclusion

Translated from via Deepl.com. For the article in French and the Original article in Russian, please scroll down.

In Tajikistan, women living with HIV are denied help by their families. Many of them live in very precarious conditions, have no medical support and cannot find work.

HIV-positive women are one of the most discriminated against groups in Tajikistan. They are shunned by society as a whole, including their immediate families. Excluded, they can no longer work or have access to appropriate medical assistance. And yet, most of the time, these women pose no risk to the health of those around them.

To mark the “16 Days of Activism against Gender Violence” event and the International Day against HIV (Human Immunodeficiency Virus), Asia-Plus takes a look at the discrimination faced by these women.

A number of laws and documents exist in Tajikistan to directly or indirectly prevent discrimination against people living with HIV, as set out in an article by the NGO Foreign Policy Centre. In 2023, this list was supplemented by a new law on equality and the elimination of all forms of discrimination. According to human rights activists, it introduces the concept of “indirect discrimination”, which vulnerable groups often face. However, HIV-positive women are not entirely reassured by this new legal reference, as they already face direct discrimination on a daily basis.

Discrimination extending from the family to the medical community

“Despite the fact that HIV is not transmitted in everyday life and that antiretroviral (ARV) treatment (a treatment that slows down the development of the virus and the disease, editor’s note) reduces the viral load to a minimum, HIV-positive women are discriminated against at every street corner. And above all within their families”, explains Tahmina Khaïdarova, Tajikistan spokesperson for the Eurasian Women’s AIDS Network.

“As soon as her diagnosis is known, her family restricts contact with her and avoids her. This attitude then follows her wherever her situation becomes known.

Also read about Novastan: HIV positive and unemployed

Strange as it may seem, HIV-positive women often report discrimination from healthcare workers. These include dentists, surgeons, midwives and gynaecologists. Some doctors refuse to help women with HIV, and they have to find friendlier doctors through acquaintances.

“Yet modern medicine has eliminated all risk. Today, HIV is a chronic disease like diabetes. With the right ARV treatment and medical follow-up, HIV-positive women can become mothers of healthy children, but even some health workers don’t have this information,” explains Tahmina Khaïdarova.

Discrimination trivialised in the media
Local journalists also discriminate against women with HIV. The content devoted to this subject often takes a pejorative angle. The media confirm stereotypes, stigmatisation and prejudice, without explaining to the public what HIV is today.

“Even today, local journalists still use phrases like ‘AIDS: the plague of the 21st century’, ‘the terror of HIV‘ and other statements that have nothing to do with reality”, says Tahmina Khaïdarova.

Journalists often use intimidating language to talk about criminal cases (article 125 of the Tajik penal code, editor’s note) brought against women with HIV who are accused of knowingly infecting their husbands.

Discrimination, a source of violence against women

The Convention on the Elimination of All Forms of Discrimination against Women, to which Tajikistan has been a signatory for 30 years, states that gender inequality and discrimination are the primary reasons for violence against women.

In fact, any serodiscordant couple (where one partner is HIV-positive and the other is not, editor’s note) can fall foul of the first part of article 125 of the Tajik criminal code. This states: “knowingly placing another person at risk of HIV contamination”. It therefore refers not to factual contamination, but to the risk of infection. And all HIV-positive people who have a sexual partner are de facto exposing them to the risk of infection.

“But in reality, things don’t work like that. If a person is on ARV treatment, their viral load is reduced and even if they have unprotected sex, their partner will not catch HIV”, explains Tahmina Khaïdarova.

Women with HIV more discriminated against than men

The spokeswoman tells us that at the twelfth International Conference on HIV Research, held in Brisbane from 23 to 26 July, the World Health Organisation presented new scientific and methodological recommendations relating to HIV. Among them is the indication of the viral load thresholds required for HIV infection.

This means that HIV-positive people who achieve a viral load level below this threshold by adhering to ARV treatment will not transmit HIV to their sexual partners. They have only a low risk of transmitting the virus vertically to their children.

“Many of the criminal cases that have resounded in Tajikistan have been launched on the basis of the first part of Article 125. But in reality, none of the ‘victims’ have been infected with HIV”, reveals Tahmina Khaïdarova. According to her, although men with HIV are also discriminated against, women are discriminated against to a greater extent.

Legal difficulties

The fact is that society still considers that a woman with HIV has had many sexual partners. However, according to statistics, sex workers represent only 1.7% of HIV-positive women in Tajikistan in 2022. All the others are women leading ordinary lives, sometimes housewives, who contracted the virus from their husbands.

“Not long ago, we were contacted by an HIV-positive woman. She was married, had a child, and her husband beat her. He even beat her during her pregnancy, so that she lost her second child”, says Tahmina Khaïdarova. “Although it was her husband who gave her HIV, her family blamed her.

“She left with her child, rented a room and found a job. But her ex-husband has got the child back and is threatening to deprive her of her rights over him because she is HIV-positive, uneducated and on a modest salary on which she can’t look after her child.”

The courts also discriminate against women, even those without HIV. That’s why there’s no guarantee that if her husband does try to deprive her of her child, the judge will see the absurdity and injustice of the situation.

Translated from the Russian by Paulinon Vanackère and edited by Coraline Grondin

Contaminer son épouse puis l’accuser : ces femmes tadjikes séropositives face aux discriminations sociales

Au Tadjikistan, les femmes atteintes du VIH se voient refuser l’aide de leur famille. En grande précarité, beaucoup ne bénéficient pas d’accompagnement médical et ne trouvent pas de travail.
Tadjikistan

Les femmes séropositives sont un des groupes les plus discriminés au Tadjikistan. La société entière se détourne d’elles, y compris leur famille proche. Exclues, elles ne peuvent plus travailler ni avoir accès à une aide médicale adaptée. Pourtant, la plupart du temps, ces femmes ne représentent aucun risque pour la santé de leur entourage.

A l’occasion de l’événement « 16 jours d’action contre les violences de genre » et de la journée internationale de lutte contre le VIH (virus de l’immunodéficience humaine), Asia-Plus se penche sur les discriminations que ces femmes rencontrent.

Diverses lois et documents existent au Tadjikistan pour empêcher directement ou indirectement la discrimination des personnes atteintes du VIH, rassemblées dans un article de l’ONG Foreign Policy Centre. En 2023, cette liste a été complétée d’une nouvelle loi sur l’égalité et l’élimination de toutes les formes de discrimination. Selon les défenseurs des droits humains, elle fait apparaître le concept de « discriminations indirectes » auxquelles les groupes vulnérables sont souvent confrontés. Cependant, les femmes séropositives ne sont pas pleinement rassurées par cette nouvelle mention légale car elles font déjà face à des discriminations directes au quotidien.

Des discriminations s’étendant de la famille à la communauté médicale

« Malgré le fait que le VIH ne se transmet pas dans la vie quotidienne et que le traitement antirétroviral (ARV) (un traitement qui ralentit le développement du virus et la maladie, ndlr) atténue au minimum la charge virale, les femmes séropositives sont discriminées à chaque coin de rue. Et avant tout dans leur famille », explique Tahmina Khaïdarova, porte-parole pour le Tadjikistan du Réseau des femmes eurasiennes sur le SIDA.

« A peine son diagnostic est-il connu que sa famille restreint ses contacts avec elle et l’évite. Puis, cette attitude la suivra partout où sa situation est connue. »

Aussi étrange que cela puisse paraître, les femmes séropositives rapportent souvent des discriminations de la part des travailleurs de la santé. Parmi eux, dentistes, chirurgiens, sages-femmes ou gynécologues. Des médecins refusent de porter assistance aux femmes atteintes du VIH et elles doivent trouver des docteurs plus amicaux en passant par des connaissances.

« Pourtant, la médecine moderne a fait disparaître tout risque. Aujourd’hui, le VIH est une maladie chronique comme le diabète. Avec un traitement ARV adéquat et un suivi médical, les femmes séropositives deviennent mères d’enfants en bonne santé, mais même certains travailleurs de la santé n’ont pas ces informations », explique Tahmina Khaïdarova.

Les discriminations banalisées dans les médias

Les journalistes locaux discriminent également les femmes atteintes du VIH. Les contenus consacrés à ce thème prennent souvent un angle péjoratif. Les médias confirment des stéréotypes, des stigmatisations et des préjugés, sans expliquer au public ce que représente aujourd’hui le VIH.

« Encore aujourd’hui, on rencontre chez les journalistes locaux des formulations comme « le sida : la peste du XXIème siècle », « la terreur du VIH » et autres affirmations qui n’ont rien à voir avec la réalité », raconte Tahmina Khaïdarova.

Souvent, les journalistes utilisent des formules intimidantes pour parler de cas d’affaires pénales (article 125 du code pénal tadjik, ndlr) ouvertes contres des femmes atteintes du VIH et accusées d’avoir consciemment contaminé leur mari.

Les discriminations, sources de violences faites aux femmes

La Convention sur l’élimination de toutes les formes de discrimination à l’égard des femmes, dont le Tadjikistan est signataire depuis 30 ans, affirme que l’inégalité et la discrimination de genre sont les raisons premières des violences faites aux femmes.

En fait, tout couple sérodiscordant (dont un des partenaires est séropositif et l’autre non, ndlr) peut tomber sous le coup de la première partie de l’article 125 du code pénal tadjik. Celle-ci indique : « placer consciemment une autre personne en position de risque de contamination au VIH. » Ainsi, elle fait référence non pas à la contamination factuelle, mais au risque d’infection. Et tous les séropositifs qui ont un partenaire sexuel le placent de fait face au risque d’être contaminé.

« Mais en réalité, les choses ne fonctionnent pas ainsi. Si une personne est sous traitement ARV, la charge virale est diminuée et même en cas de relation sexuelle non protégée, son partenaire n’attrapera pas le VIH », explique Tahmina Khaïdarova.

Les femmes atteintes de VIH plus discriminées que les hommes

La porte-parole raconte qu’à la douzième conférence internationale pour la recherche contre le VIH, qui a eu lieu du 23 au 26 juillet dernier à Brisbane, l’Organisation mondiale de la santé a présenté de nouvelles recommandations scientifiques et méthodiques en relation avec le VIH. Parmi elles, l’indication des seuils de charge virale nécessaires à la contamination par le VIH.

Ainsi, les personnes séropositives qui atteignent un niveau de charge virale inférieur à ce seuil grâce à l’observance du traitement ARV ne transmettent pas le VIH à leurs partenaires sexuels. Elles n’ont qu’un risque faible de transmettre verticalement le virus à leurs enfants.

De nombreuses affaires pénales qui ont résonné au Tadjikistan ont été lancées en s’appuyant sur la première partie de l’article 125. Mais en réalité, aucune des « victimes » n’a été contaminée par le VIH », révèle Tahmina Khaïdarova. Selon elle, bien que les hommes atteints de VIH soient aussi soumis à la discrimination, les femmes le sont davantage.

Des difficultés face à la justice

Le fait est que la société considère toujours qu’une femme atteinte du VIH a eu beaucoup de partenaires sexuels. Cependant, selon les statistiques, les travailleuses du sexe représentent seulement 1,7 % des femmes séropositives au Tadjikistan en 2022. Toutes les autres sont des femmes menant une vie ordinaire, parfois femmes au foyer, qui ont contracté le virus par leur mari.

« Il y a peu, nous avons été contactées par une femme séropositive. Elle était mariée, a eu un enfant, et son mari la battait. Il l’a battue même pendant sa grossesse, si bien qu’elle a perdu son deuxième enfant », raconte Tahmina Khaïdarova. « Bien que ce soit son mari qui lui a donné le VIH, sa famille l’a accusée, elle. »

« Elle est partie avec son enfant, loue une chambre et a trouvé un travail. Mais son ex-mari a récupéré l’enfant et la menace de la priver de ses droits sur lui parce qu’elle est séropositive, sans éducation et avec un salaire modeste avec lequel elle ne peut pas s’occuper de son enfant. »

Les tribunaux aussi discriminent les femmes, mêmes non atteintes du VIH. C’est pourquoi rien ne garantit que si son mari tente effectivement de la priver de son enfant, le juge s’aperçoive de l’absurdité et de l’injustice de la situation.

La rédaction d’Asia-Plus
Traduit du russe par Paulinon Vanackère

Сам заразил, но жену обвинил. Женщины с ВИЧ подвергаются в Таджикистане дискриминации

Женщинам с диагнозом ВИЧ в Таджикистане отказывают в поддержке не только родственники, но помощь могут не оказать даже врачи.

Женщины с ВИЧ – одна из самых дискриминируемых групп в Таджикистане. От них отворачивается всё общество, включая самых близких родственников; они не могут найти работу или получить медицинское обслуживание. При этом чаще всего никаких рисков здоровью окружающих эти женщины не несут.

В честь международной акции «16 дней активных действий против гендерного насилия» и Всемирного дня борьбы против СПИДа «Азия-Плюс» рассказывает о дискриминации, с которой они сталкиваются.

В Таджикистане существует целый список самых разных законов и документов, которые прямо или косвенно защищают людей, живущих с ВИЧ от дискриминации.

В прошлом году этот список пополнился еще одним законом «О равенстве и ликвидации всех форм дискриминации». В нем, к удовлетворению правозащитников, появилось понятие «косвенной дискриминации», с которой чаще всего сталкиваются уязвимые группы в Таджикистане. Однако женщин, живущих с ВИЧ, это важное описание в законе, не успокаивает, потому что именно эта группа населения каждый день сталкивается с прямой дискриминацией.

«Несмотря на то, что ВИЧ не передается бытовым путем, а современная АВР-терапия (терапия, которая замедляет развитие вируса и заболевание, – ред.) до минимума снижает вирусную нагрузку, дискриминации женщина с ВИЧ подвергается на каждом шагу, – говорит Тахмина Хайдарова, руководительница Сети женщин, живущих с ВИЧ. – Прежде всего, внутри семьи.

Как только выясняется, что у нее положительный статус, родственники сокращают с ней контакты, избегают ее. Со временем такое отношение будет сопровождать ее везде, где узнают о ее статусе».

Как это ни странно, отмечает Тахмина, женщины, живущие с ВИЧ, часто жалуются на проявление дискриминации со стороны медицинских работников: стоматологов, хирургов, акушеров, гинекологов. Доктора отказываются оказывать помощь женщинам с ВИЧ и им приходится искать дружественных специалистов через знакомых.

«При этом современная медицина сняла все риски: ВИЧ сегодня это такое же хроническое заболевание, как сахарный диабет. При адекватной АВР-терапии и врачебном уходе, женщины с ВИЧ становятся матерями здоровых детей, но даже у медицинских работников нет актуальной информации на этот счет, – поясняет Тахмина Хайдарова.

Дискриминируют женщин с ВИЧ и местные журналисты. В контенте, посвященном женщинам с ВИЧ, часто присутствуют уничижительные обороты, медиа транслируют стереотипы, стигму и предрассудки, и не объясняют аудитории о том, что собой сегодня представляет ВИЧ.

«До сих пор в материалах местных журналистов встречаются такие обороты, как “ВИЧ/СПИД – чума 21 века”, “ВИЧ-террор” и прочие утверждения, не имеющие ничего общего с реальностью», – говорит Хайдарова.

Часто журналисты используют устрашающие обороты при освещении случаев возбуждения уголовных статей (125 ст. УК РТ, – ред.) в отношении женщин с ВИЧ, которые якобы осознанно заражают мужчин.

В Конвенции о ликвидации всех форм дискриминации в отношении женщин (КЛДЖ), подписанной Таджикистаном 30 лет тому назад, говорится, что гендерное неравенство и дискриминация являются первопричинами насилия в отношении женщин.

«По сути, под первую часть 125 статьи УК Таджикистана могут попасть и все дискордантные пары (в которых один партнер с положительным статусом ВИЧ, другой – с отрицательным, – ред.). В этой части прописано: “Заведомое поставление другого лица в опасность заражения ВИЧ‐инфекцией”, то есть это не фактическое заражение, а риск заражения. И все люди с положительным ВИЧ-статусом, у которых есть половой партнер, фактически, ставят его под угрозу риска заражения.

Но по факту это не так: если человек принимает АРВ-терапию, его вирусная нагрузка снижена, и даже в случае незащищенного секса, его партнер не заразится ВИЧ», – говорит руководительница Сети женщин, живущих с ВИЧ.

Женщинам с ВИЧ достается больше

Она рассказывает, что на двенадцатой международной конференции по научным исследованиям ВИЧ, которая проходила 23–26 июля в австралийском городе Брисбен, Всемирная организация здравоохранения представила новые научные и методические рекомендации в отношении ВИЧ.

В них были приведены ключевые пороговые значения вирусной нагрузки при ВИЧ.

Так, ВИЧ-положительные лица, у которых благодаря соблюдению режима антиретровирусной терапии достигнут неопределяемый уровень вирусной нагрузки, не передают ВИЧ своим сексуальным партнерам и подвергаются низкому риску «вертикальной» передачи вируса своим детям.

«Многие громкие уголовные дела в Таджикистане были возбуждены именно по первой части статьи 125 УК. Но на деле никто из “пострадавших” не заразился ВИЧ», – объясняет Тахмина Хайдарова.

По ее словам, несмотря на то, что мужчины с положительным статусом ВИЧ также подвергаются дискриминации, женщинам достается больше.

Дело в том, что до сих пор общество считает, что женщина с ВИЧ – это женщина, у которой было много сексуальных партнеров. Тогда как по статистике секс-работниц среди женщин с ВИЧ в Таджикистане на конец 2022 года всего 1,7 %. Все остальные – это, как правило, обычные женщины-домохозяйки, которые заразились от своих мужей.

«К нам недавно обратилась женщина, живущая с ВИЧ: она была замужем, родила ребенка, муж ее ужасно избивал. Избивал даже во время беременности так, что она потеряла второго ребенка, – рассказывает Тахмина. – Несмотря на то, что именно муж заразил ее ВИЧ, его семья во всем обвиняла саму женщину.

Она ушла от него с ребенком, сняла комнату, устроилась на работу. Но бывший муж забрал ребенка и теперь угрожает лишить ее родительских прав, потому что у нее положительный статус ВИЧ, нет образования и маленькая зарплата, на которую она не может содержать ребенка».

Учитывая тот факт, что таджикские женщины даже без ВИЧ подвергаются дискриминации в судебных органах, нет никакой гарантии, что в случае, если мужчина, о котором рассказывает Тахмина, действительно попытается лишить свою бывшую жену родительских прав, в суде увидят всю абсурдность и несправедливость ситуации.

Подробнее: https://asiaplustj.info/ru/news/tajikistan/society/20231201/sam-zarazil-no-zhenu-obvinil-zhentshini-s-vich-podvergayutsya-v-tadzhikistane-diskriminatsii

An encouraging start to 2024

This year has begun with some really encouraging news: years of HIV criminalisation advocacy are really paying off.

First, we heard that the Congress of Mexico City completely repealed the crime of “danger of contagion” from the Penal Code. The repeal was approved with an overwhelming majority of 42 votes in favour and only two against. As per the decision, Articles 76 and 130 have been modified to eliminate the criminalisation of people with sexually transmitted infections (STIs), including HIV. This is a direct result of community activism led by the Mexican Network Against HIV Criminalisation. Congresswoman Ana Francis López noted that, with the adoption of this decision, Congress is fulfilling the demands of communities living with HIV that asked not to be discriminated against or punished.  Mexico City joins the states of Aguascalientes, Jalisco, Nayarit, San Luis Potosí and Tabasco, where their Penal Codes do not provide for a specific crime for exposure to HIV or STIs.

Then we heard that progress is being made towards HIV decriminalisation in Tajikistan. The recent Plenum of the Supreme Court marked the first step in this important process. One of the most significant changes was the recognition of the fact of placing people at risk of HIV was an unproven basis for criminal prosecution. With almost 200 known HIV criminalisation cases, this process now needs to speed up. Marginalised groups bear the brunt of the implementation of the HIV criminalisation law in Tajikistan; starting in 2014, authorities have regularly targeted sex workers and LGBT people, often under the guise of disease prevention. We remain hopeful that further progress will be made in the near future to ensure that people living with HIV are not unjustly criminalised in Tajikistan.

We also heard welcome news that another country with far too many unjust prosecutions, Singapore, is also moving towards law reform. The Singapore Ministry of Health is currently conducting a review of the law concerning HIV disclosure. This review will hopefully result in changes to current draconian practices and policies that has seen the law used to convict people – usually gay men – where condoms had been used and where the person living with HIV had an undetectable viral load.

And finally, with the support of our HIV JUSTICE WORLDWIDE Francophone Network, led by the HIV Legal Network, civil society groups are urging authorities in Burkina Faso to reconsider the HIV criminalisation provisions contained within its HIV law, Law 030. The call for action reflects a broader effort to improve the health and wellbeing of people living with HIV/AIDS in Burkina Faso and across the continent.

These are but a few examples of the hard work and dedication of so many of us. The global movement to end HIV criminalisation is making significant progress. Let’s keep up the momentum.

Together, we can make HIV JUSTICE WORLDWIDE a reality.

2023 in review: A delicate balance

A DELICATE BALANCE

Working to end punitive laws and policies that impact people living with HIV is never easy, but this year has been especially hard, as we fought to maintain that delicate balance between moving forward in our advocacy and preventing the erosion of our previous gains fuelled by the anti-rights movement and the growth of right-wing populism.

For the first time since the COVID-19 pandemic hit, we saw an increase in the number of reported HIV-related prosecutions: 86 cases in 18 countries. This compares with 49 cases in 16 countries last year and 54 cases in 20 countries in 2021. This year, as in previous years, the highest number of case reports come from the EECA region (Uzbekistan and Russia), followed by the United States (10 cases – a significant decrease) and the United Kingdom (5 cases – a worrying increase).

It is possible that we were seeing more case reports because there were actually more cases, but we must always consider these reported cases to be illustrative of what is likely to be a far more widespread, poorly documented use of criminal law against people living with HIV.

Although many people arrested or prosecuted were heterosexual men, we also saw a range of intersectional identities impacted by HIV criminalisation – particularly sex workers who may also have been transgender and/or people of colour and/or with a migration background.  It is clear that a convergence of multiple levels of criminalisation, discrimination and other vulnerabilities leads to over-policing of the bodies and behaviours of people living with HIV.

LATIN AMERICA

Some of the most exciting and promising developments in 2023 came from Latin America. In June, Belize repealed its HIV-specific criminal law, enacted in 2001 but never applied, primarily to enable the country to be certified as having eliminated vertical transmission. And in August, Costa Rica’s People Living with HIV organisation pushed back against a parliamentarian’s proposal to reinstate an HIV criminalisation law.

It’s also clear that sustained advocacy by civil society in Mexico – which began in earnest when the HIV JUSTICE WORLDWIDE coalition supported the creation of the Mexican network in 2017 – is really making a difference. In March, the state of Nayarit repealed its infectious disease law that had mostly applied to people with HIV. The district of Mexico City is on its way to repeal a similar law. And another Mexican state, Baja California Sur, modernised the wording of the same law to attempt to destigmatise it, by removing the concept that communicable diseases are only prosecutable if sexually transmitted.

In November, a proposal for a new HIV criminalisation law in the state of Puebla was withdrawn following criticisms from HIV and human rights organisations, and a month later there are now proposals to reform the existing law. And civil society pressure to remove the federal HIV criminalisation law on constitutional grounds may have led to Mexico’s first trans congresswomen advocating for the repeal of the law in parliament. Given Mexico’s rights-based approach to SRHR – the country decriminalised abortion earlier this year – at least one of these repeal pathways are likely to succeed next year.

NORTH AMERICA

In the United States, we continued to see a marked reduction in the number of cases as the movement to repeal or modernise HIV criminalisation laws continued to grow due to ongoing, sustained advocacy by networks of people living with HIV with support from philanthropic funders as well as federal and state political leaders and public health institutions. Although, no states fully repealed their HIV-specific laws in 2023, and law reform proposals in Indiana, Minnesota, and North Dakota failed to pass, there were some important victories in Tennessee. Here, both law reform and strategic litigation bore fruit, the former by removing mandatory sex offender registration for those convicted under the HIV law, and the latter resulting in a ruling that Tennessee’s ‘aggravated prostitution’ statute violated the Americans with Disabilities Act.

Canada – another former global HIV criminalisation leader – continued to report fewer cases, with just one new reported case in 2023. As in the United States, this is the result of many years of sustained advocacy, although the federal government has still not responded formally to its 2022 public consultation on substantially reforming its approach to HIV criminalisation. The Canadian Coalition to Reform HIV Criminalization, led by HIV JUSTICE WORLDWIDE coalition partner, the HIV Legal Network, issued a strong statement on World AIDS Day calling for action.

AFRICA

Unlike previous years, the only country on the African continent with reported new HIV criminalisation cases in 2023 was Kenya, where lawmakers are still planning to follow Uganda in enacting even more criminalisation aimed at LGBTI people – as are Botswana, Ghana, and Niger. Following the December 2022 dismissal of the constitutional challenge to Kenya’s HIV-specific provisions in the Sexual Offences Act, there are plans to appeal and to continue to lobby for change.

Strategic litigation led by KELIN was ultimately successful in establishing that women living with HIV possess the inherent right to make informed choices regarding their reproductive decisions following a nine-year process, so sustained advocacy – and patience – may be required. Patience may also be needed in South Africa where long-awaited sex work decriminalisation was further postponed, although parliament did agree to clear COVID lockdown criminal records. Elsewhere, another positive development in the region was the repeal of Mauritius’ colonial-era sodomy law which means that the number of nations with laws against gay sex has now fallen to 66.

EASTERN EUROPE / CENTRAL ASIA

People living with HIV in the EECA region continue to face multiple challenges. In just the first six months of 2023, there were 20 cases of alleged “intentional HIV transmission” to sexual partners in Uzbekistan’s Tashkent region – the highest HIV criminalisation case count anywhere in the world. The majority of those prosecuted appeared to be women. This comes as no surprise given that an analysis of cases and laws across the ECCA region by our HIV JUSTICE WORLDWIDE partners, the Eurasian Women’s Network on AIDS (EWNA), found that women living with HIV bear the brunt of the “legalised stigma” of HIV criminalisation in the region.

One of the main reasons for the high number of cases in the EECA region is the integration of HIV criminalisation within healthcare policies: newly diagnosed individuals are made to sign a paper acknowledging their legal liability for HIV prevention often without receiving adequate or meaningful counselling or support. In Russia – where the second highest number of cases were reported – a study found that most HIV clinicians support HIV criminalisation, and in Kazakhstan it was revealed that 1-in-1000 people newly diagnosed with HIV in 2022 filed a police report blaming someone else for their infection.

The legal environment for people living with HIV in Russia continues to worsen, as it does for all its citizens, especially LGBTI people – with trans women sex worker migrants facing the brunt of the Russia’s anti-LGBT “propaganda” law. And in Tajikistan, homophobic and HIV-phobic law enforcement practices resulted in ten gay men being arrested Dushanbe on suspicion of “infecting 86 people with HIV.” The only positive news for the region came from Ukraine, where a new protective HIV law was adopted earlier this year, although criminal liability for HIV exposure or transmission remains a possibility.

WESTERN EUROPE

December saw two contrasting developments in Western Europe. Just as Ireland’s Supreme Court overturned the country’s first-ever sexual HIV criminalisation case  – partially based on now well-established limitations of scientific evidence being able to prove who infected whom – a lower court in Latvia convicted someone of alleged HIV transmission for the first time.

And although in the United Kingdom, a long-awaited update to the Crown Prosecution Service’s guidance now unequivocally states that an undetectable viral load stops HIV transmission, five HIV criminalisation cases still took place, along with a highly publicised civil case. Per capita, this meant that in 2023 the UK had a five-fold incidence of reported HIV criminalisation cases compared to the United States!

ASIA PACIFIC

Singapore continues to lead the Asia Pacific region with four reported HIV criminalisation cases in 2023: one for blood donation, two for biting, and one involving a transgender sex worker for alleged HIV exposure. Although South Korea’s constitutional court ended up declaring most of its HIV criminalisation provisions constitutional, their recognition that U=U suggests the law may evolve to recognise up-to-date science.

Although ending HIV criminalisation cannot rely on science alone, it can help limit unjust prosecutions while we work to end the HIV-related stigma, discrimination and structural inequalities that drive criminalisation.

BRINGING SCIENCE TO JUSTICE

This year, we celebrated five years since the publication of the ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ with our ‘Five-Year Impact Report’ and an HIV Justice Live! webshow focused on bringing science to justice. Both proved that the Expert Consensus Statement remains relevant, accurate and extremely useful.

Given this delicate balance between moving forward and preventing the erosion of hard-won rights there is still so much more to do to reach the global target of fewer than 10% of countries with punitive laws and policies that negatively impact the HIV response.

LET COMMUNITIES LEAD

To ensure that communities continue to lead, and to further enable the building of an intersectional movement to end punitive laws and policies that impact people living with HIV in all diversity, we made our online platform for e-learning and training, the HIV Justice Academy, more widely available in Spanish and Russian, to complement our English and French versions.

In 2023, the HIV Justice Academy was visited by several thousand learners from 110 countries. We were thrilled to learn that graduates of our flagship HIV Criminalisation Online Course told us that they really benefitted from the course, finding it relevant, interesting, and engaging.

RENEWED FOCUS FOR 2024

We will begin 2024 with a renewed focus to achieving HIV justice as we continue to:

  • build the evidence base by gathering relevant data and information from around the world. 
  • raise awareness across multiple platforms and communities of the harms of HIV criminalisation. 
  • create, collate, and disseminate advocacy tools and resources to foster more effective responses to damaging laws, policies, and media narratives; and
  • bring individuals and national, regional, and global networks and organisations together, as part of the HIV JUSTICE WORLDWIDE coalition, to catalyse change.

What do our HIV Justice Academy graduates think of the HIV Criminalisation Online Course?

The HIV Criminalisation Online Course is the centrepiece of our free online learning hub, the HIV Justice Academy, which launched just over a year ago.

More than 500 HIV justice advocates from around the world have since enrolled in the HIV Criminalisation Online Course. Those who have completed the course – and told us their thoughts in the end-of-course survey – are extremely positive about the experience, finding it relevant, interesting, and engaging. They especially liked the video content and personal testimonies which they tell us brought the issues to life. And we heard from both beginners and experts alike that the course was pitched right for them – no mean feat!

“Although I have been working on HIV discrimination for years, it was spectacular to refresh the memory,” wrote one. “The course met my expectations fully…now I really feel strongly equipped to continue doing my community work,” said another. “The course took a holistic approach to explaining HIV criminalisation. It lends legal, scientific, and social perspective, it also went further to touching on how I could be an advocate,” said a third.

 

One recent Academy graduate is HIV advocate and HIV criminalisation survivor, Lashanda Salinas, from the US state of Tennessee. She told us that the HIV Criminalisation Online Course “helped me learn things that I didn’t know, including how people are criminalised in other countries.” She also tells us that she found the course’s comprehensive Glossary and the Academy’s Resource Library “amazing and helpful”.

Like all the advocacy tools and resources contained within the HIV Justice Academy, the HIV Criminalisation Online Course is free to all, and available in English, French, Russian and Spanish.

The course can be done at your own pace, and you will receive a certificate of completion once you have passed the end-of-course test. 

We’re delighted that Lashanda and all the other graduates of the HIV Justice Academy’s HIV Criminalisation Online Course have learned new information and gained new skills as we work together to achieve HIV justice.

Do you know someone who might benefit from the HIV Criminalisation Online Course, or the other resources in the HIV Justice Academy – our Action Toolkits and Resource Library? Why not share this link with them today: academy.hivjustice.net

The unseen consequences of HIV criminalisation and its impact on marginalized communities

How civil commitment can ensnare people prosecuted under HIV criminalization

By
Robert Suttle

TheBody recently published, “We Keep Ignoring HIV Criminalization,” an article that addressed the lack of attention given to HIV criminalization laws.

These laws criminalize people living with HIV for a range of actions―such as having sex without first disclosing their serostatus―often, even when they are virally suppressed and therefore incapable of transmitting the virus. As is always the case, ignorance of the law is no defense against it.

In some states, HIV criminalization laws punish people living with HIV for biting or spitting even though, once again, these acts cannot transmit the virus. But losing one’s freedom under these laws doesn’t stop at simple prosecution. In some states, people prosecuted under these laws are required to register on state sex-offender registries, even when no sexual assault has taken place.

It should be noted that prosecuting and equating people living with HIV with rapists and other violent sexual assailants does nothing to decrease HIV transmissions. Rather, as “We Keep Ignoring HIV Criminalization” notes, these harsh measures promulgate stigma, possibly discourage people from getting tested, and place targets on the foreheads of anyone living with the virus.

Beyond this, part of what makes HIV criminalization laws so insidious is that they have additional components to them that can destroy a person’s life in ways that few people are aware of—until they’ve been prosecuted and deemed a “sexually dangerous person” by the state. This is called civil commitment and can keep a person imprisoned indefinitely without the basis of a new offense.

To help shed light on this shadowy form of incarceration and what can happen to people who have been prosecuted for HIV criminalization, TheBody spoke with two members of the Center for HIV Law and Policy: staff attorney Kae Greenberg (pronouns he/him), and policy and advocacy manager Amir Sadeghi (pronouns he/him).

Robert Suttle: The Prison Policy Initiative recently published, “What Is Civil Commitment?” Can you speak about how it can be applied to HIV criminalization, especially when sex offense has been included in the prosecution?

Amir Sadeghi: I’m so glad we’re talking about this. People across the country have been wrestling with this because 20 states have these laws in place. Civil commitment is a system of civil laws that detain people convicted of certain sex offenses long after serving their criminal sentences. This kind of state custody and detention happens on top of somebody’s criminal sentence.

Suttle: So basically an added punishment after one has “repaid their debt to society.” Some people might look at this and celebrate. How do you talk about this with people who are opposed to eliminating these laws?

Sadeghi: I think about questions that people usually ask prison abolitionists: What are you going to do about sexual violence? What are you going to do about these really hard cases?

I think the most important thing I want to foreground in discussions about sex offense civil commitment is that I don’t downplay the harm of sexual violence. It’s a deeply personal and real thing that happens in our society.

However, it is unclear that detaining people with very little due process has any measurable or meaningful impact on reducing gender-based violence and sexual violence. And actually, there’s been a huge mobilization of survivor-led movements and organizations who have begun to condemn harsh responses that happen in their name. For instance: sex-offense civil commitment, sex-offense registries, detention, and state violence.

I think that the history of laws that punish people long after their criminal sentence via sex-offense civil commitment [comes from] highly publicized cases about sexual violence [and has] motivated politicians and the public to react very strongly against these cases. It has created a very draconian system of facilities that many advocates and people who’ve been in sex-offense civil commitment themselves call shadow prisons.

Kae Greenberg: I want to clarify something about people serving or being punished long after their crimes. People are incarcerated because they have been convicted or have pleaded guilty to a crime. But they are in civil commitment because they have been deemed a potential [risk] of reoffending in some way or incapable of controlling themselves. It’s essentially some dystopian RoboCop or Judge Dredd situation where they’re trying to predict whether or not you will potentially commit a future serious crime and, therefore, lock you away from society just in case.

When we talk about the minimal protections in the criminal justice system, like the standard of proof or reasonable doubt, we know that’s a very high standard, hypothetically. Something that would stop you or cause you to make an important life decision. Civil commitment is a much lower standard of proof; it’s just beyond 50%. We only know a little about what happens in these hearings because they are not open to the public.

What’s used is the speculation of mental health practitioners, and I’m not trying to disparage the mental health community. I’m a big proponent of mental health practitioners, but we’re talking about having someone confined indefinitely for something they “might do.” There is potentially no end to this. It’s until [the state] decides that you’re done.

Suttle: Let’s address the elephant in the room: Nushawn Williams. Where do things stand with his ongoing detainment related to the civil commitment in New York?

Sadeghi: Many people know that the Center for HIV Law and Policy (CHLP) has filed amicus briefs supporting Nushawn Williams in the past. We are a proud member of the Free Nushawn Coalition, which was founded by Brian C. Jones and Davina Connor, who I think a lot of HIV activists know warmly and lovingly.

The New York State Department of Health cooperated with prosecutors in the case to criminalize Nushawn Williams. Why did they do this? Because his HIV status and race were weaponized against him. Newspapers called Nushawn an AIDS monster, an AIDS predator. Then-Mayor [of New York City] Rudy Giuliani said he wanted Nushawn Williams tried for, quote, “attempted murder or worse.” There was a horrific stigmatizing frenzy to lock him up and throw away the key.

Nushawn pled guilty in 1999 to statutory rape and reckless endangerment and served his maximum criminal sentence relating to that plea agreement. But in 2010, his release from Wende Correctional Facility in upstate New York was blocked by then–Attorney General Andrew Cuomo, who filed an Article 10 Mental Hygiene Law petition to have Nushawn civilly committed. I think the frenzy and racist spectacle that was made to paint Nushawn as a monster makes it clear that his HIV status and race are major factors in what the state decided to do.

Editor’s note: An example of this spectacle is that two corrections officers reported that Williams “stated that he intended to continue that behavior [sex without sharing his HIV status] upon his release, specifically referencing underage girls”―an absurd and unlikely contention when one considers that such a statement would expose him to undue scrutiny as well as the very punitive treatment he is currently experiencing. In its explanation for why Williams is still detained, the state lists his prior substance use, sexual offenses, prison record prior to 2006, and his “failure to complete sex offender treatment,” without detailing what completion entails. Taken as a whole, it is clear that the state unfairly views Williams as the person he was when he entered prison 24 years ago.

I would just like to let folks know that Nushawn is still in state custody today, well over a decade beyond his maximum criminal sentence. And there is no end in sight to his civil commitment. Many people, especially people living with HIV, were rightfully dismayed and disturbed by the prosecution and the decision to civilly commit him. That has brought, I think, a lot of energy and activism to addressing the systemic issue of sex-offense civil commitment. For instance, Black men in New York are nearly two times more likely to be civilly committed than white men.

Suttle: When you talk about detainment, this is in a civil commitment facility. How do they look? Are they different from prisons?

Sadeghi: They have iron-clanging doors. They are surrounded by barbed wire. You are heavily surveilled and subjected to constant searches. They look like prisons because they are prisons. And people are not being successfully or meaningfully treated. People are being detained and punished, often as political prisoners.

So, you don’t have a lot of the protections afforded by the safeguards of the criminal legal system because you are not in criminal custody anymore. You are a “patient” being “treated” in a “secured treatment facility.”

Suttle: The idea that this is being done against a person’s will is obviously troubling. But how do you respond to people who diminish treatment for a sexual offense as being “not so bad?”

Greenberg: The idea of sex-offender “treatment” is very complicated. If one meaningfully engages in some treatment and talks about anything that could potentially (A) allude to their being a risk to others or (B) shows they engaged in some other potentially criminal activity, they could find themself facing new charges or extended civil commitment―just because they were trying to engage in this treatment honestly.

Being engaged in this kind of sex-offender rehabilitation and treatment is kind of a sword of Damocles. One needs to engage in it enough socially. But, potentially, if one engages with full force, they might be putting themself at further risk of consequence. I join with Amir in saying I’m not trying to minimize sexual violence or what the victims of sexual violence have gone through. But it also scares me to live in a society where we lock up people for something they haven’t done.

If we want to talk about how this is tied to other systems―they’re trying to roll out all kinds of sentencing algorithms to determine what someone’s bail should be. What’s scary is it’s all about whether there’s a scientific way to decide who will recidivate and essentially plan to punish people for future crimes [they might not commit]. Ruha Benjamin has done a lot of writing about this, showing how racist and awful these algorithms and sentencing are. Civil commitment is tied to other larger systems throughout the criminal legal system.

Suttle: Would you say that’s why marginalized groups or people should be concerned about this?

Sadeghi: Yes. It’s a really important issue at the intersection of criminalizing sex identity, class, race, and beyond. Research by the Williams Institute on sex-offense civil commitment has shown that Black men are two times more likely than their white peers to be civilly committed after they’ve already served their criminal sentences.

If you think about sexual violence and you find yourself overwhelmed with a sense that people are irredeemable and need to be warehoused in a cage indefinitely, I’d like you to reflect on how that same mentality and rhetoric has often been used to justify HIV criminalization. HIV criminalization laws are often defended and justified by arguments that they prevent intimate partner violence and sexual violence.

But, in reality, we know that women living with HIV have higher rates of experiencing sexual violence. And that women living with HIV are overwhelmingly overrepresented in arrests and prosecutions of people targeted because of their health status as people living with HIV. So I think when we recognize the truth about HIV, health, and criminalization, we can start to understand the rationale that has gone into justifying detaining people. And then we can think about how the state has used these instruments to target and punish “undesirable people,” who are often also suffering in the middle of an axis of different kinds of marginalization.

Again, I think it’s important to note that networks of survivors of sexual violence think it’s ridiculous to confront unconsensual acts of violence with unconsensual treatment and state violence. And we have to take that seriously.

Suttle: Going back to Nushawn, is there anything that people can do to support him or get involved in the coalition to end civil commitment in New York?

Sadeghi: There is a burgeoning campaign of sexual survivor–led movements, people living with HIV, and racial justice advocates. If you’re feeling animated and ready to challenge these draconian systems that target and criminalize and incarcerate people, please reach out to us at CHLP. We’d love to work with you to challenge and end sex-offense civil commitment and other harsh policies that target, criminalize, and incarcerate folks who have been historically marginalized.

Suttle: What is your hope for the future of health and human rights for communities most affected by these issues?

Greenberg: To a certain extent, my hope combines two parts of the question. Health is seen as a human role and not limited by access. As awful as things are―following the Dobbs decision―we’ve also been presented with an opportunity to reframe some of these issues. So instead of dealing with individual access, individual rights to privacy, individual concerns, we can reframe them as public health concerns and about a right to health. We’ve been stripped down to the bare bones, but I’m holding on to that right now. In terms of hope, we can build up in a way that will reach and impact people who haven’t previously had access to meaningful health care and health.

Sadeghi: Over the years, I’ve observed that in the face of this kind of injustice and stigma, it is so important to build power from the bottom up and by cross-movement organizing. I think we, as HIV advocates and people working in the HIV anti-criminalization space, really need to deepen our relationships, partnerships, and accountability to sex worker–led groups, advocacy groups, sex work decriminalization groups, racial justice groups, and prison industrial complex (PIC) abolitionists.

To do that, we need to partner with and build power with these very communities and people who are most likely to be criminalized because of their health status. I’m excited about that new direction. I think I feel it in our movement that we are going there. And I’m looking forward to seeing what happens over the next few years.

Robert Suttle:  Robert Suttle is a New York City-based advocacy consultant and movement leader in the global HIV community with expertise in decriminalization, human rights, and the intersection between equity and social justice.