Important new resource, SALC’s HIV Criminalisation Defence Case Compendium, published this week

An important new resource for lawyers defending clients and working on strategic litigation was published by the Southern Africa Litigation Centre (SALC) this week. SALC is one of the newest members of HIV JUSTICE WORLDWIDE Steering Committee.

The HIV Criminalisation Defence Case Compendium was developed to accompany a four-day training for lawyers on HIV and TB criminalisation, due to take place in Johannesburg, South Africa, later this month.

The Compendium aims to provide lawyers with a tool to successfully defend people living with HIV who are being prosecuted for alleged HIV non-disclosure, exposure, or transmission. It catalogues and analyses criminal cases from across the world where “strong defence arguments have resulted in an acquittal or reduced penalty”.

Cases range from prosecutions for spitting or biting to the landmark 2016 Malawi case of a woman successfully released on appeal after having been sentenced for breastfeeding.

To find pertinent cases quickly and effectively, the Compendium is split into three parts:

  • The first section outlines the key issues raised in the judgement, such as proof of intent, and classifies the cases accordingly in an easy to navigate table format.
  • The second section, organised by country, catalogues the categories of argument raised by the defence.
  • The third section summarises the facts of each case and the Court decisions, highlighting the key points.

The Lawyers for HIV and TB Justice: Strategic Litigation, Legal Defence and Advocacy Training will be streamed live on The Southern Africa Litigation Centre Facebook Page between 20-22 February.

The Compendium can be downloaded from the SALC website and is included as the newest resource in the HIV JUSTICE WORLDWIDE toolkit.

 

Brazil: Activists celebrate as ‘deliberate HIV transmission’ law amendment is withdrawn

Yesterday, news broke that populist Congressman, Pompeo de Mattos, has withdrawn an amendment originally proposed in 2015 to make ‘deliberate’ HIV transmission a ‘heinous crime’.

The amendment, Bill No. 198, 2015, would have added to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – those who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

According to Brazil’s AIDS News Agency

In Brazil, intentional transmission, that is, with intent, is already considered a crime. Articles 130 and 131 of the Penal Code already provide for imprisonment for those who infect others. Anyone who exposes someone to a venereal disease through sexual intercourse can be jailed for three months to a year or receive a fine. If the person intentionally wants to transmit the disease, the penalty is imprisonment, from one to four years, and fine.

“The initiative to criminalize HIV-positive people does not contribute to the fight against prejudice and discrimination, and it also throws the responsibility of prevention on the infected person,” says a statement released on Thursday by Foaesp Of the State of São Paulo).

In this same document, the Forum thanked Mr Pompeo for his request to withdraw from the PL. “We are now waiting for the House Board to abide by the request and file the bill, and we will also be careful that no other parliamentarian has a similar initiative.”

Activists from all over Brazil have celebrated the Bill’s withdrawal. Any new proposal cannot be considered by the current parliament and now must wait until after elections, scheduled for October 2018.

Since 2015, PLHIV networks, civil society organisations, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health, and a number UN agencies – includng UNAIDS and UNFPA – had all pressured Congress to withdraw the bill.

Update (September 4th).  A press release by the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health notes:

The director of the Department of STDs, AIDS and Viral Hepatitis (DIAHV), Adele Benzaken, called the federal MPs Érica Kokay (PT-DF), member of the Family Social Security Commission (CCSF) and Coordinator of the Joint Parliamentary Front to Combat STDs, HIV , and AIDS – and Laura Carneiro (PMDB-RJ) and Deputy Pompeo de Mattos to thank them for their support against the procedure of PL 198/15. “The effort of these parliamentarians was essential to educate their colleagues in the House to reassess that Brazil is a reference in the treatment of HIV / AIDS and that this will not help the Brazilian response at all. The director of DIAHV also highlighted the mobilisation made by civil society and the support of the Brazilian Office of the Joint United Nations Program on HIV / AIDS (UNAIDS) that she said were key to the outcome achieved with the filing request.

On July 3rd, the United Nations Expanded Thematic Group on HIV / AIDS (WG / UNAIDS) chaired by UNFPA, met to articulate opposition to the Bill.

For the UNFPA representative in Brazil, Jaime Nadal, the bill goes against the ideals and proposals of the United Nations regarding the HIV / AIDS epidemic. Criminalizing HIV transmission, in addition to reinforcing the stigmatization of people living with the virus, may discourage people from undergoing testing and treatment, since they would be under threat of becoming criminals, he said.The bill ignores the scientific advances in HIV / AIDS, which prove that antiretroviral treatments reduce the chances of transmitting the virus in sexual intercourse by up to 96%. “Many countries around the world are reforming their laws criminalising HIV transmission,” said Nadal, adding that the bill goes against the global trend.

UNAIDS Director in Brazil, Georgiana Braga-Orillard, reinforced the speech of the UNFPA representative. According to her, the bill further vulnerabilises populations with a positive serological status, since “it considers the more than 800 thousand people living with HIV in Brazil as potential criminals.”

In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favours the selective application of the law; it disregards the scientific evidence on HIV; it compromises privacy and confidentiality, and it will make Brazil lose its leading role in the response to HIV / AIDS.

A public meeting with the Congressman, scheduled for July 4th, was cancelled at the last minute.  However, the letter of withdrawal, although only publicly released yesterday, was dated May 11th.

I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which "makes a heinous crime the deliberate transmission of the AIDS virus."
Translation: I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which “makes a heinous crime the deliberate transmission of the AIDS virus.”

Nevertheless, prosecutions under general laws continue.

In July, a newspaper reported that a 43 year-old heterosexual man was charged with serious bodily injury in a Rio de Janeiro court for ‘attempting to infect two women with HIV’ by having sex without a condom. 

In an interview with the Rio newspaper Extra , the man admitted that he was HIV-positive and [allegedly] transmitted HIV to the women, but denied that he had had sex without a condom with the intention of infecting his partners.

The case continues.

US: Center for HIV Law and Policy releases updated ‘HIV Criminalization Sourcebook’

Today, the Center for HIV Law and Policy (CHLP) has released a third, updated version of their ‘Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions’ series, first published in 2010.

The renamed HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice updates and expands upon the previous versions with the inclusion of new reporting and analysis of laws and regulations allowing for quarantine, isolation and civil commitment of people living with sexually transmitted infections (STIs), including HIV, in each jurisdiction.

This resource for lawyers and community advocates outlines punitive laws, policies, and cases affecting people living with HIV (PLHIV) and other communicable diseases in all fifty states, the military, federal prisons, and U.S. territories. It may be used as an aid for attorneys of people living with HIV prosecuted for “HIV exposure” or non-disclosure of HIV status, as well as for advocates who want to reform HIV-related criminal laws in their state.

The ‘HIV Criminalization Sourcebook’ catalogues and analyses state and federal HIV criminal laws in the United States, providing examples of recent prosecutions and explanations of the major cases applying these laws, along with text and analysis of state laws on other sexually transmitted diseases that involve criminal penalties or other restrictions for exposing another person to possible infection.

Specifically, it covers laws that:

1. criminalize non-disclosure of HIV status or exposure of a third party to HIV;

2. make exceptions to confidentiality and privacy rights of people living with HIV;

3. provide for sentence enhancements for people living with HIV convicted of underlying crimes such as ‘prostitution’ and ‘solicitation’; and

4. require sex offender registration for people living with HIV convicted of these ‘crimes’.

The Sourcebook is part of CHLP’s campaign to support state advocates through tools that expand legal literacy on HIV criminalization. In addition to the Sourcebook, CHLP’s website includes a separate page for each state summarizing relevant HIV and STI criminal law sections, so that users can download everything they need just for their state in addition to accessing the entire Sourcebook.

The Center for HIV Law and Policy will be co-hosting a webinar on October 11, 2017 to review ways to use the Sourcebook in HIV criminal reform efforts. The webinar also will explore some of the different strategic pathways to reform, along with benefits and drawbacks to those different options. The discussion will cover some of the key factors and questions to consider in deciding on what reform strategy makes the most sense in a given jurisdiction.

Read the full press release here

Download the HIV Criminalization Sourcebook here