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.

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.

HJN’s Executive Director remarks
to the UNAIDS Board (PCB)

These remarks were made during the thematic session on reducing health inequities through tailored and systemic responses in priority and key populations especially transgender people, and the path to 2025 targets.

The HIV Justice Network is a community-based NGO leading a co-ordinated global response to HIV criminalisation. We’ve have heard so far about many different structural inequalities but not so much about HIV criminalisation, also covered in the background note, which disproportionately affects key populations, including transgender people, who are already criminalised or otherwise targeted by discriminatory legal systems and policies.

In fact, over 90 countries have criminal laws – based on stigma, not science – that single out people living with HIV based on our HIV-positive status. Another 40 or so countries have applied general criminal laws to unjustly prosecute and imprison people with HIV for acts that cause no risk, no harm or for which there is scant proof of either.

HIV criminalisation selectively scapegoats people living with HIV for a collective failure in HIV prevention policy including the responsibility of governments to create supportive and enabling legal environments for HIV prevention in the first place.

I last attended the PCB 12 years ago as a journalist highlighting the injustices of HIV criminalisation, which at the time was mostly overlooked as a significant legal barrier to the HIV response.

I return to the PCB as the HIV Justice Network’s Executive Director, financially supported by the Robert Carr Fund for civil society networks. Thank you to the governments that support the Fund, and for recognising that community-led global and regional networks of PLHIV and KPs are necessary and irreplaceable partners.

In the intervening years some progress has been made but far too many unjust laws continue to impact far too many people living with HIV, including trans people, gay men and other men who have sex with men, people who use drugs, sex workers and women and girls.

Today, I call on all member states that still have punitive and harmful laws that single out people living with HIV (and that’s almost all of you) to fulfil the commitments most of you made in the 2021 Political Declaration.

It would make our work so much easier if you returned from Geneva to persuade your own governments to do the right thing:  either fully fund the Unified Budget, Results and Accountability Framework (UBRAF) or – the cheaper option – get rid of your own ineffective, counterproductive, punitive, discriminatory laws once and for all so we can finally achieve HIV JUSTICE WORLDWIDE!

Transgender Day of Visibility 2023

Honouring the courage of transgender people globally, especially transgender people living with HIV

Today is International Transgender Day of Visibility, held annually on 31st March to celebrate transgender people globally and honour their courage and visibility to live openly and authentically.

This year’s 14th annual celebration is a day to also raise awareness around the stigma, discrimination and criminalisation that transgender people face.

According to the Human Dignity Trust, 14 countries currently criminalise the gender identity and/or expression of transgender people, using so-called ‘cross-dressing’, ‘impersonation’ and ‘disguise’ laws. In many more countries transgender people are targeted by a range of laws that criminalise same-sex activity and vagrancy, hooliganism and public order offences.

Transgender people living with HIV can be further criminalised based on their HIV-positive status, although we know that there are still too many invisibilities around the impact of HIV criminalisation on transgender people.

Cecilia Chung, Senior Director of Strategic Initiatives and Evaluation of the Transgender Law Center, who is also a member of our Global Advisory Panel told our 2020 Beyond Blame webinar that there are not enough data on the impact of HIV criminalisation laws on transgender people. She said such data are not “uniformly collected across the world… The numbers still remain invisible even though we know for sure there are [HIV criminalisation] cases.”

HJN honours the courage of transgender people – especially transgender people living with HIV – to live openly and authentically. We also call for more visibility for transgender people in data collection, as well as reforms of all criminal laws and their enforcement that disproportionately target transgender people.

On Zero Discrimination Day:
law reform is not easy, but it’s possible

Today, on On Zero Discrimination Day, HJN was delighted to participate in a webinar — co-hosted with the Global Partnership to end HIV-related Stigma and Discrimination and the Not A Criminal Campaign — that explored how law reform is possible.

You can watch the entire webinar here: https://fb.watch/i-79fP5bYV/

I was asked to provide some closing remarks.  As we were running late, I had to cut some of my prepared remarks, which are included here in square brackets [ ].  Here they are in full.

We all know decriminalisation is possible. But it’s not easy.  Still, it can and does happen. 

It can happen thanks to the strong commitment of the three most important pillars that make change possible:
  • It starts with community leadership
  • It ends with government commitment and political will
  • And it happens with the support of the broader UN family (co-ordinated by UNAIDS) working closely with partners like the Global Fund and PEPFAR. 
This is why the Global Partnership is the ideal mechanism to cement those three pillars together.
 
But what does it actually take to change laws?  Successful strategic litigation or law reform doesn’t happen in a vacuum. That means not only funding the legal or human rights organisations challenging the laws, but also (a non-exhaustive list):
  • Funding the communities impacted by those laws, supporting people to know their rights;
  • Funding the community-based paralegals to help frightened and vulnerable people navigate the harsh realities of criminal legal system;
  • Funding community-based organisations to monitor rights violations, produce shadow reports, and document the evidence of the harms of criminalisation;
  • Funding community-led training and sensitisation of police, prosecutors and judges, and law-and policy-makers;  and
  • Funding the community-based  organisations supporting and co-ordinating the work regionally and globally, creating tools for challenge including working with the media where so much of the stigma created by these harmful laws is perpetuated, but can be also where hearts and minds can be changed.
So it takes a (global) village. 
 
And time – which we don’t have much of if we are to reach those ambitious 10-10-10 targets by 2025, or 2030. 
 
And money – which we never seem to have enough of. 
 
But it is possible, and it can happen. 
 
We’ve heard today about various forms of decriminalisation.  And you all saw the map that Tinashe shared earlier showing that HIV criminalisation laws have been reformed or repealed in 15 countries over the past decade, but there’s still another 129 countries to go!
 
And although we didn’t get to hear today from our colleagues working with people who use drugs, and in drug policy, over 30 countries around the world have adopted legal reforms to remove the criminalisation of certain activities related to drug use.
 
But we also heard about the many challenges that remain.
 
Yesterday was the 2nd ‘HIV is not a crime day‘ in the US. It was fantastic to see so many activities and events raise awareness of an issue that is so close to my heart and which for too long has been underfunded and overlooked. In fact yesterday Funders Concerned About AIDS highlighted that in 2020 only around 0.5% of all philanthropic funding supported HIV decriminalisation work globally.  Today, the HIV Justice Network and the HIV JUSTICE WORLDWIDE coalition is grateful to the Robert Carr Fund for civil society networks, to allow us to ensure that the message that ‘HIV is not a crime’ is heard, understood, and acted upon globally.  But this work, like all decriminalisation work, needs more resources.
 
[This work is sometimes really hard and sometimes doesn’t always lead to success – at least the first time around. Despite the best efforts of our colleagues at KELIN and UGANET, we were disappointed to learn at the end of 2022 that constitutional challenges to Kenya’s and Uganda’s HIV-specific criminal laws were unsuccessful. Nevertheless, both will appeal these retrograde rulings, because they – and we – are on the right side of history. After all, Zimbabwe repealed their HIV-specific criminal law last year following years of advocacy following unsuccessful strategic litigation.
 
We know that HIV criminalisation mostly serves as a proxy for other kinds of discrimination – discrimination based on class, ethnicity, gender identity, migrant status, race, sex, sexual orientation, and other potential markers of social vulnerability.
 
And we know that most aggressive push to criminalise people living with HIV tends to occur at the intersection of several stigmatised or criminalised identities.
 
And so we firmly believe that this work must be intersectional and collaborative.]
 
We also know that decriminalisation alone will not address the full complexity of the intersecting stigmas behind these laws and their enforcement. As with other manifestations of discrimination, the ultimate solution lies in equality and empowerment. This is a marathon, not a sprint, and dismantling systems that have been built over decades and that oppress people living with HIV and key populations takes time.
 
We heard today from the South African Deputy Minister of Justice about the Sex Work Decriminalisation Bill.  We, and many others in our global network have written letters of support to the South African government welcoming this change.  This Friday, 3rd March, is International Sex Workers Rights Day. Let’s make sure South Africa knows the world is watching and that South African sex workers  know we have their back.
 
HIV is not a crime, and sex work shouldn’t be a crime, either!
 
Let’s use our collective power across all social media and and on #ZeroDiscrimination Day use the hashtags  #SexWorkIsWork and #HIVIsNotACrime.

Celebrating love and advocacy this Valentine’s Day

February is not only the month of love, it is also the anniversary of the establishment of the HIV Justice Network through our founding document, the Oslo Declaration on HIV Criminalisation.

It’s only appropriate, then, to celebrate both love and advocacy this Valentine’s Day.

Given the difficulty that some people living with HIV can face when it comes to finding love, including negotiating disclosure, as well as sex for pleasure, work, and/or creating a family in the context of HIV criminalisation, it is important to acknowledge that everyone is deserving of love and affirmation.

Love is also about respect for our autonomy, and so this Valentine’s Day we also need to stand up against public health officials taking and sharing data by using our blood without consent.

This year the HIV Justice Network is supporting two Valentine’s Day campaigns for and about people living with HIV, led by women living with HIV.

#LovePositiveWomen Campaign

The Love Positive Women campaign, developed and led by women living with HIV, is a global initiative running every Feb Feb 1st-14th for each of us to express and share our love and support for all women living with HIV.

The campaign uses social media to link local grassroots gestures of love to each other. Using Valentine’s Day as a backdrop, Love Positive Women “creates a platform for individuals and communities to engage in public and private acts of love and caring for women living with HIV.”

Going beyond romantic love to deep community love and social justice, the campaign is also a call to action. The HIV Justice Network has been supporting this campaign since 2017.

Follow the conversation using #LovePositiveWomen on social media.

#EndMHS Campaign

This Valentine’s Day, Positive Women’s Network-USA is spearheading a US-focused campaign tweeting at the US Centers for Disease Control (CDC) with messages full of tough love and snark about ending molecular HIV surveillance (MHS).

Molecular HIV surveillance and cluster detection and response (MHS-CDR) is one of four pillars of the US Ending the Epidemic Initiative. PWN-USA and many other organisations working on the rights of people living with HIV, including the HIV JUSTICE WORLDWIDE coalition, have serious concerns about using personal medical information – including our blood – for surveillance purposes without meaningfully involving people living with HIV, without informed consent, and often even without our knowledge.

HIV surveillance and HIV criminalisation collide to put the human rights of people living with HIV at risk and can be especially dangerous for Black and Brown people, migrants, sex workers, transgender women, and other communities that are hyper-policed and over-surveilled.

Recently, the Presidential Advisory Council on HIV/AIDS (PACHA) unanimously passed an historic resolution that responds to these concerns, and urges the CDC to change their guidance on MHS-CDR activities.

Tell the CDC that they must implement the PACHA resolution by using the social media toolkit and the hashtags #ILoveConsent #MyBodyMyData #CommunitiesNotClusters #EndMHS

 

Watch HIV Justice Live! which explores the history behind, and impact of our founding document, the Oslo Declaration on HIV Criminalisation. Hosted by HJN’s founder and Executive Director, Edwin J Bernard, the show, From Moment to Movement, featured some of the advocates who were behind the Oslo Declaration: Kim Fangen, Patrick Eba, Michaela Clayton, Ralf Jürgens and Susan Timberlake.

 

 

 

2022 in review: A turning point for HIV justice?

Looking back on all that happened in 2022, we are cautiously optimistic that 2022 will be seen as a turning point in the global movement to end HIV criminalisation. We celebrated promising developments in case law, law reform and policy in many countries and jurisdictions over the past year, building on the momentum of 2021. Although there is much more work yet to do, it’s clear that progress is being made — thanks primarily to the leadership of people living with HIV.

Continuing a trend that began two years ago, overall there seems to have been a decline in the number of HIV-related prosecutions. This year we identified media reports of 49 new HIV criminalisation cases in 16 countries plus seven US states. This compares to 54 new cases in 20 countries last year (which was still fewer than reported in previous years). This year, the highest number of case reports came from Russia, followed by the United States (with multiple cases in the state of Florida), and France. 

It is possible that we are seeing fewer media reports because there are actually fewer cases, but we must always consider these known cases to be illustrative of what is likely a more widespread, poorly documented use of criminal law against people living with HIV. The media, public health authorities and law enforcement may still be distracted by the global financial crisis precipitated by Russia’s invasion of Ukraine and the impact of COVID-19 — a pandemic that continues to disproportionately impact people living with HIV.

After being near the top in previous years, Belarus has been bumped off the ‘most cases’ list. Last year, the Belarus Investigative Committee reported 34 new HIV-related criminal cases. It’s highly likely that this year there were some (unreported) cases, but it’s also clear that the number of cases has been slowing down since 2020, possibly due to ongoing discussions with the government to limit the use of the criminal law.

Canada used to be a global leader in HIV criminalisation, but no new cases were reported this year. In fact, the only case reports from Canada were about the overturning of a conviction by the Ontario Court of Appeal after it accepted there was no realistic possibility of transmission as the accused woman had an undetectable viral load, and another Ontario Court of Appeal acquittal based on the accused man’s elite controller status. These positive rulings follow many years of sustained advocacy, which has also led to the federal government opening a public consultation on reforming the criminal law. The Canadian Coalition to Reform HIV Criminalization has welcomed this consultation as a first step to concrete action on law reform.

Earlier this year, Taiwan’s Supreme Court also recognised the prevention benefit of treatment by upholding the acquittal of a man with an undetectable viral load who was accused of alleged HIV exposure. But elsewhere in Asia, Singapore continues to unjustly prosecute gay men living with HIV under draconian laws, despite being celebrated for recently repealing their colonial-era law that criminalised sex between men. Singapore is also the world leader in prosecuting gay men for not disclosing a possible HIV risk before donating blood. That’s why we issued our Bad Blood report in September, which concludes that the criminalisation of blood donations by people with HIV is a disproportionate measure — the result of both HIV-related stigma and homophobia, and not supported by science.

In the United States, we continued to see a reduction in the number of states with HIV-specific criminal laws thanks to the ongoing advocacy by networks of people living with HIV supported by human rights and public health organisations. In 2022, Georgia modernised its law and New Jersey became the third US state to fully repeal its HIV-specific criminal law. President Biden again highlighted HIV criminalisation in his World AIDS Day proclamation stating that “outdated laws have no basis in science, and they serve to discourage testing and further marginalize HIV-positive people.” In October, the Presidential Advisory Council on HIV/AIDS unanimously passed an historic resolution on molecular HIV surveillance that will be critical to protecting the human rights and dignity of people living with HIV. But problematic new laws continue to be enacted despite strong opposition from civil society. In November, Pennsylvania’s Governor, Tom Wolf, signed into law an overly broad, unscientific statute that makes it a felony to pass on a communicable disease, including HIV, when someone “should have known” they had the disease.

There was also mixed news from the African continent. In March, Zimbabwe became the second African country to repeal its HIV-specific law (the Democratic Republic of Congo repealed its law in 2018). This victory is testament to the effectiveness of a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honourable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care. She began pushing for a change in the law in 2018, having previously been in favour of the provision which she thought protected her female constituents. And in October, the Central African Republic also enacted a new HIV law that focused primarily on social protections for people living with HIV, without any criminalising provisions.

Also in October, the Lesotho High Court issued a positive judgment following a constitutional challenge to sections of the Sexual Offences Act that impose a mandatory death sentence on persons convicted of sexual offences if they were living with HIV.  Following interventions from members of the HIV JUSTICE WORLDWIDE coalition and others, the Court ruled that people living with HIV have the same right to life as all others — and commuted the sentence.

The news elsewhere on the continent, however, wasn’t so positive. After six years of waiting, a constitutional challenge to some of the most problematic, criminalising sections of Uganda’s HIV/AIDS Prevention and Control Act was dismissed outright in November. We are anxiously awaiting the ruling in a similar challenge in neighbouring Kenya. It was filed five years ago and has since been postponed several times. This year, we also lost Ugandan nurse and HIV criminalisation survivor, Rosemary Namubiru, who was a posthumous recipient of the Elizabeth Taylor Legacy Award at this year’s International AIDS Conference.

Women — who were accused in around 25% of all newly reported cases this year — also face criminal prosecution in relation to breastfeeding or comfort nursing, mostly across the African continent. In addition, women living with HIV continue to be threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries. That’s why this year we created the short film, Mwayi’s Story, to highlight the injustice and facilitate discussion about HIV and breastfeeding. We also worked with our HIV JUSTICE WORLDWIDE coalition partners to publish a paper in the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases to highlight these problematic and unjust approaches to women with HIV who breastfeed or comfort nurse.

This year, we learned from the Eurasian Women’s Network on AIDS, working with the Global Network of People Living with HIV, about how women living with HIV are both disproportionately impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region and also leaders in research, advocacy and activism against it. Their report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. Case studies include a woman in Russia who was prosecuted for breastfeeding her baby and several women in Russia who were blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.

The disproportionate impact of HIV criminalisation on women was also the focus of a World AIDS Day statement by the Organization of American States (OAS) calling on Member States to end HIV criminalisation. Earlier in the year, Argentina had enacted a new, comprehensive and non-punitive HIV, STI and TB law. 

Nevertheless, 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. To keep up the momentum, we continued to produce reports and analysis — including our flagship Advancing HIV Justice 4: Understanding Commonalities, Seizing Opportunities — as well as contributed to peer-reviewed journal articles, such as So many harms, so little benefit in the Lancet HIV and Punishing vulnerability through HIV criminalization in the American Journal of Public Health. We’re also doing our best to ensure we change the media narrative on HIV criminalisation, including by contributing to The Guardian’s World AIDS Day podcast on HIV criminalisation.

Our greatest achievement this year was the creation of the HIV Justice Academy. We are very proud of this online platform for e-learning and training which we believe will be a catalyst in building the wider movement to end punitive laws and policies that impact people living with HIV in all their diversity. Already available in English and French, we’ll be launching in Spanish and Russian early next year.

Did we turn the corner in 2022? Only time will tell, but if there is one thing we know for sure it is that changing hearts and minds with respect to HIV criminalisation is a long road with many ups and downs along the way. We know that important progress was made in 2022 and that we begin 2023 with fresh analysis, new tools and a renewed spirit of solidarity.

2021 in review: more successes, more challenges, much more to do

This past year we’ve been challenged yet again due to the COVID-19 pandemic. As well as the impact on each of us, personally, the legal and policy decisions relating to its control – and their enforcement –  have significantly impacted people living with HIV who are already criminalised or otherwise marginalised, which we have been continuing to highlight in our HIV Justice Weekly newsletter.

And as COVID-19 continues to dominate not only policymaking and law enforcement activities, but also media headlines, it seems very likely that relying primarily on media reports to document unjust cases of HIV criminalisation underestimates how many people are affected.

This past year we documented 54 media reports of unjust HIV criminalisation cases in 20 countries. This compares to 91 cases in 25 countries last year, which was still fewer than reported in previous years.

Although this could be seen as a cause for celebration, I fear that the reason we are seeing fewer media reports is not because of fewer cases, but because the media is distracted by COVID-19 and just isn’t reporting on them. For example, we only recorded one media report of a horribly unjust case in Belarus in January 2021 but on World AIDS Day 2021 the official Telegram account of Investigative Committee of Belarus reported that there had actually been 34 HIV-related criminal cases in 2021.

After Belarus, the highest number of case reports came from Russia, where it was also reported that over the past five years, Russian courts have acquitted only one defendant under its problematic HIV-specific criminal law. The United States, Canada and France make up the rest of the top five. Alarmingly, women living with HIV were accused in 33% of all reported cases in 2021, up from 25% last year.

We will be providing a much more detailed analysis of laws and cases – and the remarkable advocacy successes and achievements – in the next edition of our Advancing HIV Justice progress report, covering January 2019 – December 2021, which we plan to publish by the end of the first quarter of next year.

Despite the impact of COVID-19 on our ability to organise – and a growing acceptance of punitive approaches to a public health issue – this year we’ve also seen some remarkable advocacy in the global movement to end HIV criminalisation, none more so than across the United States.

In March, both Georgia and Virginia modernised their HIV criminalisation laws and in June and July Nevada and Missouri did the same. And in July Illinois completely repealed its outdated and unjust HIV-specific criminal law, becoming only the second US state ever to do so.  In October, New Jersey’s Acting Attorney General issued science-informed prosecutorial guidance to limit the overly broad application of its HIV criminalisation law, and in December, on World AIDS Day, President Biden became the first-ever government leader to speak out against HIV criminalisation laws whilst in office. The year ended on a high with proposals to modernise HIV criminalisation laws in Florida and on a federal level.

The remarkable successes in the United States didn’t happen overnight – the movement to end HIV criminalisation has been nurtured – and increasingly better funded – for more than a decade. This is why our focus has turned to other parts of the world – notably Eastern Europe and Central Asia, sub-Saharan Africa, Latin America and the Caribbean – where many challenges remain.

In May, a new parliamentary bill in Ukraine proposed expanding its already problematic HIV-specific criminal law with harsher sentences for transmitting all serious communicable diseases, and Uganda passed a new Sexual Offences Bill with horrendous implications for people living with HIV, gay men and sex workers. Fortunately, neither have been enacted into law, yet.

We also saw advocacy successes in these regions, too.  In Uganda, after five years of waiting, the Constitutional Court of Uganda has finally begun to hear a landmark case challenging the overly broad and draconian provisions of its HIV and AIDS Prevention and Control Act. In Mexico, the ‘danger of contagion’ law used by many Mexican states to prosecute people living with HIV was found to be unconstitutional by a court in the federal district of Mexico City, with proposals for its full repeal presented in November. Also in November, the Committee on the Elimination of Discrimination against Women (CEDAW) recommended the removal of Kyrgyzstan’s HIV-specific criminal law, thanks to a powerful shadow report by our HIV JUSTICE WORLDWIDE partners, the Eurasian Women’s Network on AIDS.

There is still so much more to do, however.  That’s why, for example, we produced a brand-new section of our HIV Justice Toolkit specifically to help defend people living with HIV who are prosecuted for breastfeeding, chest feeding or comfort nursing, and why HIV JUSTICE WORLDWIDE launched a briefing paper and video in October to help advocates understand the complexities – and consequences – of molecular HIV surveillance.

Despite these successes, as well as the many milestones the HIV JUSTICE WORLDWIDE movement has achieved since its launch in 2016, we will not rest until everyone living with HIV in all their diversity is treated equally, fairly, and justly by all actors of the criminal legal and public health systems.