Today, on International Human Rights Day, the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK) and the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) have launched the Positive Justice campaign to finally end HIV criminalisation in Kenya.
In 2015, in Aids Law Project v Attorney General and Others  the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional and suspended the law. The High Court ruling focused on the absence of a definition for “sexual contact”, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.
Consequently, today KELIN have filed a petition asking the High Court in Nairobi to strike down as unconstitutional Section 26 of the Sexual Offences Act on the grounds that it discriminates against people living with HIV, women, and the poor, and violates a number of fundamental human rights.
The prosecuting authority’s interpretation of Section 26 of the Sexual Offences Act, as demonstrated by the prosecutions of several of the PLHIV challenging the law, effectively makes it a crime for a woman with HIV to birth and raise children. The prevailing interpretation also effectively criminalizes marriage between a person who has HIV and a person who does not.
“Laws that make criminals of people simply for having HIV ignore science. People who are on HIV treatment and are virally suppressed are not infectious. The key to a successful HIV response and ending AIDS is making sure everyone with HIV knows their status and gets on treatment. These laws make that impossible. Thousands of discordant couples and breastfeeding mothers living all over Kenya run the risk of being arrested and charged under this provision if they come forward for HIV testing,” noted M.A, the fourth petitioner and a representative of the Discordant Couples in Kenya.
HIV criminalization laws are also notorious for abuse and arbitrary enforcement. “Such abuse will always be targeted at persons living with, vulnerable to or believed to be living with HIV whether or not their actions were culpable and whether or not their actions exposed another to the risk of contracting HIV,” cautioned Mr. Nelson Otwoma, the Director at the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK).
It is for this reason that five people living with HIV and stakeholders working in HIV response came together to file the petition and launch the campaign dubbed Positive Justice. The campaign seeks to raise awareness on the negative effects of enforcement of the law on PLHIV, and engage relevant stakeholders including the media, legislature, judiciary, law enforcers, and Ministry of Health in advocating for the rights of people living with HIV.
“This petition will not only safeguard the rights of those living with and affected by HIV and other sexually transmitted infections but also help alleviate the discrimination and stigma they face and help Kenya remain on track in achieving the 2020 UN AIDS Fast Track targets in ending AIDS,’ said Mr. Allan Maleche, the Executive Director at KELIN.
Mexico: Supreme Court finds Veracruz law criminalising ‘wilful transmission’ of HIV and STIs to be unconstitutional
The full ruling is not yet available, but according to a news story published yesterday in 24 Horas.
…it was pointed out that the criminal offense is “highly inaccurate” because it does not establish what or what is a serious illness, besides it is not possible to verify the fraud in the transmission [and] that although the measure pursued the legitimate aim of protecting the right to health, especially for women and girls, the measure did not exceed the analysis of need because it was not ideal and optimal for the protection of that purpose, especially as [Veracruz] already criminalised the ‘willful putting at risk of contagion of serious illnesses’…
The Minister President of the Court, Luis María Aguilar Morales, took up the recommendations of the Joint United Nations Program on HIV / AIDS and the Oslo Declaration on HIV Criminalisation, regarding the criminalization of HIV, and argued that this article left to the will of the investigating authority to decide which diseases will be considered as serious and which will not, going against the principle of legality, which implies that the crimes cannot be indeterminate or ambiguous.
In this case, the President said, the article did not establish whether STIs are only those considered serious or any, regardless of their severity. In turn, the justices determined that the resolution has a retroactive effect, that is, that those persons tried under the offense established by this article, the resolutions are invalidated.
On August 4, 2015, the Congress of the State of Veracruz approved an amendment to Article 158 of the Criminal Code in order to add the term Sexually Transmitted Infections, which included HIV and HPV.
It provided for a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days of salary for anyone who “willfully” infects another person with a disease via sexual transmission.
We applaud the declaration of the Supreme Court of Justice of the Nation, which gives us the reason for the unconstitutionality request, shared with the National Commission of Human Rights; For this reason, we suggest to the deputies of the Congresses of the State that before legislating, they should be trained in the subject and that they do not forget that their obligation is to defend Human Rights, not to violate them.
Finally, the Mexican Network against the Criminalization of HIV recognizes that there are still many ways to go and many battles to fight, but we can not stop celebrating this important achievement.
Read the English text of the HIV JUSTICE WORLWIDE amicus letter below.
HIV JUSTICE WORLDWIDE
This is a letter of support from HIV JUSTICE WORLDWIDE to Grupo Multi VIH de Veracruz / National Commission of Human Rightswho are challenging Article 158 of Penal Code of the Free and Independent State of Veracruz that criminalises ‘intentional’ exposure to sexually transmitted infections or other serious diseases, on the grounds that this law violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.
As a coalition of organisations working to end the overly broad use of criminal laws against people living with HIV, we respectfully share Grupo Multi VIH de Veracruz’s concerns around Article 158 which potentially stigmatises people with sexually transmitted diseases and criminalises ‘intentional’ exposure to sexually transmitted infections (potentially including HIV) or other serious diseases.
All legal and policy responses to HIV (and other STIs) should be based on the best available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights. There is no evidence that criminalising HIV ‘exposure’ has HIV prevention benefits. However, there are serious concerns that the trend towards criminalisation is causing considerable harm.
Numerous human rights and public health concerns associated with the criminalisation of HIV non-disclosure and/or potential or perceived exposure and/or transmission have led the Joint United Nations Programme on HIV/ AIDS (UNAIDS) and the United Nations Development Programme (UNDP), the UN Special Rapporteur on the right to health, the Global Commission on HIV and the Law and the the World Health Organization, to urge governments to limit the use of the criminal law to extremely rare cases of intentional transmission of HIV (i.e., where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it). They have also recommended that prosecutions [for intentional transmission] “be pursued with care and require a high standard of evidence and proof.” 
In 2013, UNAIDS produced a comprehensive Guidance Note to assist lawmakers understand critical legal, scientific and medical issues relating to the use of the law in this way. In particular, UNAIDS guidance stipulates that:
“[I]ntent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/or non-disclosure of that status.
Intent to transmit HIV cannot be presumed or solely derived from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.
Proof of intent to transmit HIV in the context of HIV non-disclosure, exposure or transmission should at least involve (i) knowledge of positive HIV status, (ii) deliberate action that poses a significant risk of transmission, and (iii) proof that the action is done for the purpose of infecting someone else.
Active deception regarding positive HIV-status can be considered an element in establishing intent to transmit HIV, but it should not be dispositive on the issue. The context and circumstances in which the alleged deception occurred—including the mental state of the person living with HIV and the reasons for the alleged deception— should be taken into consideration when determining whether intent to transmit HIV has been proven to the required criminal law standard.”
Moreover, where criminal liability is extended to cases that do not involve actual transmission of HIV (contrary to the position urged by UNAIDS and other experts), such liability should, at the very bare minimum, be limited to acts involving a “significant risk” of HIV transmission. In particular, UNAIDS guidance contains explicit recommendations against prosecutions in cases where a condom was used, where other forms of safer sex were practiced (including oral sex and non-penetrative sex), or where the person living with HIV was on effective HIV treatment or had a low viral load. Being under treatment or using other forms of protections not only show an absence of malicious intent but also dramatically reduces the risks of transmission to a level close to zero. Indeed, a person under effective antiretroviral therapy poses – at most – a negligible risk of transmission and is therefore no different from someone who is HIV-negative.
Moreover, there is growing body of evidence that such laws that actually or effective criminalise HIV non-disclosure, potential or perceived exposure, or transmission, negatively impact the human rights of people living with HIV due to:
selective and/or arbitrary investigations/prosecutions that has a disproportionate impact on racial and sexual minorities, and on women.
confusion and fear over obligations under the law;
the use of threats of allegations triggering prosecution as a means of abuse or retaliation against a current or former partner;
improper and insensitive police investigations that can result in inappropriate disclosure, leading to high levels of distress and in some instances, to loss of employment and housing, social ostracism, deportation (and hence also possibly loss of access to adequate medical care in some instances) for migrants living with HIV in some cases;
limited access to justice, including as a result of inadequately informed and competent legal representation;
sentencing and penalties that are often vastly disproportionate to any potential or realised harm, including lengthy terms of imprisonment, lifetime or years-long designation as a sex offender (with all the negative consequences for employment, housing, social stigma, etc.);
stigmatising media reporting, including names, addresses and photographs of people with HIV, including those not yet found guilty of any crime but merely subject to allegations.
In addition, there is no evidence that criminalising HIV (or other sexually transmitted infections) help protect women and girls from infections.
Women are often the first in a relationship to know their HIV status due to routine HIV testing during pregnancy, and are less likely to be able to safely disclose their HIV-positive status to their partner as a result of inequality in power relations, economic dependency, and high levels of gender-based violence within relationships.
Such a law does nothing to protect women from the coercion or violence that effectively increases the risk of HIV transmission. On the contrary, such laws place women living with HIV, especially those in vulnerable positions and abusive relationships, at increased risks of both prosecution and violence.
Some evidence suggests that fear of prosecution may deter people, especially those from communities highly vulnerable to acquiring HIV, from getting tested and knowing their status, because many laws only apply for those who are aware of their positive HIV status. HIV criminalisation can also deter access to care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals because medical records can be used as evidence in court.
Finally, there is evidence of an additional negative public health impact of such laws in terms of:
increasing HIV-related stigma, which has an adverse effect on a person’s willingness to learn about, or discuss, HIV; and
undermining the importance of personal knowledge and responsibility (correlative to degree of sexual autonomy) as a key component of an HIV prevention package, when instead prevention of HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.
We hope that the Mexico Supreme Court of Justice takes our concerns and all of this evidence into account when considering the Constitutional Challenge.
Edwin J Bernard, Global Co-ordinator, HIV Justice Network
on behalf of all HIV JUSTICE WORLDWIDE partners: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO).
 HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations working together to end overly broad HIV criminalisation. The founding partners are: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV/AIDS Alliance, UNAIDS and UNDP.
 UNAIDS. Policy Brief: Criminalisation of HIV Transmission, August 2008; UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
 Anand Grover. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, June 2010.
 Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
 WHO. Sexual health, human rights and the law. June 2015.
 Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.
 UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.
 A.J. Rodger et al., “Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy,” JAMA 316, 2 (12 July 2016): pp. 171–181.
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”.
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)”.
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.
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.
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.
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.
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.
The concern, as highlighted by Charles King, President and Chief Executive Officer, Housing Works, Inc, is that if HIV criminalisation reform focuses soley on changing laws so that those who are virally suppressed are not considered ‘a risk’ that this approach will not address the unjust disproportional impact of the US criminal legal system on people of colour, LGBTI people, sex workers, and the financially disadvantaged.
“Housing Works is a leading proponent of #UequalsU, and we believe public education about this scientific advance will lower stigma and thereby create a positive environment for HIV decriminalization. At the same time, it would be a travesty for #UEqualsU to be used to create a criminal class of people who are not durably virally suppressed. HIV criminalization in any form sets back efforts to end the AIDS epidemic, and is based on prejudice and not science.”
The creators and original endorsers of the Statement are: The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National LGBTQ Task Force, PFLAG, Treatment Action Group, U=U, and Women with a Vision.
In the preamble, they note that:
discussions among people working on the ground on HIV criminal law reform have reflected a mix of views and some uncertainty about the best way to use these remarkable scientific advances in their advocacy. Some have proposed that advances reflected in the U=U campaign (“Undetectable = Untransmittable”) should be added as a defense in modernized HIV criminal laws. Others worry that putting this kind of language into an actual law will exclude or further disadvantage those who experience severe disparities in access to quality treatment—individuals who do not reach or maintain viral suppression may still face prosecution.
Beginning in March 2017, a small group of organizations and advocates began discussions of how to draft a statement that could clearly and accessibly capture concerns about the use of “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U) in the criminal law reform context.
Over the next several months, the statement was shared with a diverse range of organizations and advocates at both the state and national level. In June 2017—after multiple revisions, reviews, and discussions—the current statement was finalized.
To read and sign on to the Consensus Statement visit: www.hivtaspcrimlaw.org which provides links to a variety of resources that can help support the use of the statement, as well as an FAQ that further explores the issues, such as the many tensions facing advocates working to improve the legal environment for people living with HIV
For example, question 7 asks “isn’t some progress better than no progress at all?
This is a hotly debated issue, and people frequently disagree about it. For example, many people supported a federal law ending discrimination against lesbian and gay people that didn’t include transgender people because they felt it was easier to pass that way, and because some progress was better than none. Unfortunately, it usually takes a long time to change a law to cover the people left behind the first time. And some people think that progress that leaves some people out can be taken as putting a “seal of approval” on treating some people less fairly.
With public health messaging, it is always possible to try new and better campaigns. But when it comes to criminal law reform, change can be slow, and once a law is revised, lawmakers are very unlikely to consider further reforms in the near future. Criminal law reform advocacy focused on U=U might lead to a law that only helps some people—those with access to health care and ART—but provides no real help to those without it. Worst of all, legislators may be happy to claim a victory and not revisit the issue for years, decades, or ever again.
The issue of how best to utilise science in advocacy to combat HIV criminalisation is not unique to the United States, however. Last month, two staff members from the Canadian HIV/AIDS Legal Network published a blog post discussing how the ‘Undetectable = Untransmittable’ campaign might best be understood to impact HIV criminalisation advocacy.
Like the US Statement, they also urged caution in relying solely on science to help resolve the issue.
Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.
While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.