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: Maryland lawmakers sponsor bill aiming to repeal HIV criminalisation law

Commentary: Maryland must stop criminalizing people living with HIV

State lawmakers moving to repeal law that stigmatizes people living with HIV, increases public health risk

Having a virus should not be a crime. Yet, in Maryland, people living with HIV can face prosecution and criminal penalties even when we have disclosed our status, used condoms or are virally suppressed through medication. Maryland has an outdated law from 1989 that makes it a misdemeanor for a person living with HIV who is aware of their HIV-positive status to “knowingly transfer or attempt to transfer” HIV to another person. A conviction under this law can carry a punishment of up to three years in prison, and the law has been used to charge people for behaviors that do not transmit HIV, such as spitting and biting.

As people who have lived with HIV for decades, we know firsthand that Maryland’s HIV criminalization law discourages people from knowing their status, fosters stigma and creates barriers to lifesaving health care. It’s time for lawmakers to repeal this deeply unjust law.

Legislation (HB 485/SB 1165) sponsored by Del. Kris Fair (D) and Sen. Sen. Karen Lewis Young (D), both from Frederick County, aims to repeal this law that punishes people living with HIV. It is a law enforced on deeply racist lines. A recent analysis by the Williams Institute revealed our HIV criminalization law is used disproportionately against Black Marylanders and Black men in particular, driving increased incarceration rates and fostering stigma and shame around HIV and knowing one’s status. People living with HIV need health care, not the threat of prison cells.

This law was passed 35 years ago, when little was known about the virus. If that seems long ago, it was: George H.W. Bush was president, cellphones were the size of bricks, and Janet Jackson and Paula Abdul topped the music charts. At that time, there was little hope for people living with HIV. Thankfully, much has changed since then.

Today, we are just some of the many people with HIV who are living long and fulfilling lives. Those of us living with HIV who achieve and maintain an undetectable viral load — the amount of HIV in our blood — by taking medication as prescribed cannot sexually transmit HIV to our partners. Furthermore, people who don’t have HIV have even more effective prevention tools and can take medications such as PrEP and PEP. All of these advancements were unheard of in 1989, when lawmakers responded with fear by criminalizing HIV.

If you are surprised to learn about the incredible medical advancements in the treatment and prevention of HIV, you are not alone. Stigma and racism around the virus run so deep that many people have an outdated understanding of HIV. In fact, today our goal of ending the epidemic of HIV is achievable in the coming years if we focus on expanding access to testing, prevention and treatment.

All of us should know our HIV status, but stigma, lack of access to health care and fear of criminal penalties under Maryland law are barriers to testing for many. Our state laws and policies should remove barriers to health care and encourage Marylanders to know their status. The compounding tragedy of our HIV criminalization law is it deters people from seeking testing and treatment, thus prolonging the HIV epidemic and its toll on our communities.

Repealing the HIV criminalization law would make it safer for people unknowingly living with HIV to get tested and access needed treatment. Nationally, a recent study showed that approximately 80% of new HIV transmissions were from people who do not know their HIV status or are not receiving regular care. Expanding access to testing could have a profound effect in our state. The Maryland Department of Health estimates over 34% of young people living with HIV in the state remain undiagnosed. It is clear we cannot meet our public health goals without repealing this law.

As community caretakers in the movement, we are committed to doing everything we can to reduce stigma around HIV and increase access to care for all Marylanders. For years, we have joined other people living with HIV to share our personal stories with legislators in support of updating our law. HIV is preventable and treatable, and we hope one day to end the epidemic. However, to achieve that goal, we must first end the criminalization of HIV in the state we call home. Removing harmful, stigmatizing criminal punishments for knowing your HIV status is a commonsense update that is long overdue for the great state of Maryland.


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.

Unraveling the legal challenges surrounding HIV criminalisation in russia

Russian Court Cases and HIV Transmission: What You Need to Know

Text: Alexey Semenov

Russian courts annually pronounce several dozen sentences under articles related to the transmission of HIV infection. At the same time, leading international organizations have long called for the abandonment of such articles in the Criminal Code, because they interfere with the fight against the HIV epidemic. “Such Cases” examined judicial statistics and also found out why Russians write statements against their partners.

In 2019, a documentary was released on Russian television series Anton Krasovsky’s “Epidemic” about people living with HIV. Then the co-founder of the ANO “Sibiryachki Plus” Maria Petrova, whose story was told by the documentary filmmakers, received a call from her boyfriend, whom she had been dating for three years at that time.

“He was very excited. He said: “You are so and so, they showed you on the second channel. My relatives saw it.” And it was his relatives who told him that he would not eat with them, he would not wash with them,” recalls Maria.

Read also “How many partners have you had?” Why people with HIV prefer to hide their status

The man explained that in order to be rehabilitated in front of his relatives, he must write a statement against Maria to the police about “the threat of HIV infection.” Petrova could not transmit any virus to him – she had been going to the AIDS Center for a long time and regularly took therapy.

After some time, Maria received a call from the police and invited her to talk – they told her that a man had written a statement against her. The police immediately reassured Maria, noting that they would not initiate a case.

“What saved me was that I live with an open face, write about my status on social networks and hold events. And this man is among my friends and subscribers. The police examined social networks and decided that he could not have known about my status. And if a partner knows that a person has HIV, then there is no criminal case,” explains Maria.

What we thought

We have collected all available cases under Article 122 of the Criminal Code of the Russian Federation from the state system “Justice”, as well as statistics from the judicial department at the Supreme Court. Most of the texts of the verdicts are not published, as they relate to the intimate lives of people. The Eurasian Women’s AIDS Network, which has been monitoring cases of persecution of people with HIV and their blackmail since 2017, also shared cases with us.

Since then, Petrova has been approached by people with HIV who have been subject to statements of intentional infection, by those who want to go to the police, and by investigators who receive such cases. “It’s good if you come across a competent investigator and interrogator. But basically, since there is not much practice in such cases, many investigators and interrogators, reading the statement, come across this article for the first time,” says Maria.

Po data Judicial Department of the Supreme Court, since 2015, 702 people have been convicted in Russia under the article on intentional infection with HIV or creating a threat of such infection, and another 11 were sent to compulsory psychiatric treatment.

A little more than 0.9% of cases under this article were acquitted or dismissed on exonerating grounds. 17.5% of such cases were closed for other reasons, including due to the death of the accused. Thus, in 2021 in Adygea, a woman who infected her partner with HIV died during the trial. In Kabardino-Balkaria, a prisoner died after cutting his hand and spattering blood on the eye of a prison doctor. He was also accused of attempted infection with the virus.

“Why did you do this to me?”

According to the current Russian law, everyone who registers with the AIDS Center signs a warning about criminal liability for intentional infection with HIV. Courts pay attention to this circumstance when passing sentences: if a person signed documents in an infectious disease specialist’s office, any case of infection from him is considered intentional.

“Suppose I just found out that I have HIV. I go to the doctor, I’m dumbfounded. I think I’m going to die soon. And they tell me in the doctor’s office: “Sign the document.” What is in it is not very clear. But you take and sign a document stating that you are a potential criminal without thinking. Even if the doctor explains something, the person is unlikely to remember it, because at that moment he has something completely different in his head,” explains Maria.

Ekaterina Stepanova, an infectious disease doctor at the University Clinic H-Clinic, Candidate of Medical Sciences, who acts as an expert in criminal cases of HIV infection, believes that the process of warning about liability is organized incorrectly:

“People don’t understand what they signed, they don’t understand what they were told. Of course, the moment of signing these papers should be postponed to a time when the person is sane.”

Read also “Just yell, demand and achieve.” Prisoners with HIV across Russia report being denied access to treatment

But epidemiologists are punished by their superiors if a person leaves and does not sign these papers, the doctor explains. “But you have to understand that the patient came, and instead of being supported, they interrogated him and said that he was facing a criminal case. Will he return to this wonderful place? “It’s more likely no than yes,” says Stepanova.

The victims in cases of HIV infection are often the former partners of patients, says Maria Petrova. Most often, sentences under articles of infection or threat of infection with HIV are made against men. They were convicted in 68% of cases, it follows from statistics Supreme Court of Russia since 2017.

“Mainly, the applicants are women who, out of resentment that their partner broke up with them, write a statement. He didn’t even infect them with HIV because he was taking ARV therapy, but they write a statement that he put them at risk of infection, and this is also a criminal offense,” explains Petrova.

In 2022, a resident of Novoaltaisk was sentenced to a suspended sentence for transmitting HIV to his partner as a result of a long “romantic relationship.” The couple had sex without a condom by consent, but after a while the woman discovered HIV pills on her lover and asked: “Why did you do this to me?” After this conversation, the relationship did not end and the young people continued to have sex, but broke up due to “domestic conflicts.” Some time later, the woman was diagnosed with HIV, and she wrote a statement against her former partner. He was sentenced to one year and eight months of suspended imprisonment.

Of the 17 cases of prosecution under Article 122 of the Criminal Code – about HIV infection or the threat of such infection, recorded by the Eurasian Women’s AIDS Network in 2017–2023, at least six are related to long-term, in fact, family relationships. Thus, a man from the Kurgan region was convicted in 2014 of having sex with his wife – at that time the couple was raising two children together. Maria Petrova emphasizes:

“If two consenting adults have sex, it is still a matter of two people.”

“And why is it always an HIV-positive person who is a potential criminal? After all, both are responsible for their health. And when one of the partners insists on sex without a condom or agrees to it, he is also responsible – two are to blame,” Maria is sure.

“If people decide not to use condoms, then they need to be examined together and remember the incubation window period and fidelity to each other. Such subtle issues that, it seems to me, are quite strange to regulate by criminal law,” says Natalya Sidorenko, coordinator of the working group on decriminalization of HIV transmission.

In the Joint United Nations Program on HIV/AIDS (UNAIDS) it says that any laws that criminalize HIV must be repealed because they discourage people from getting treatment and contribute to the spread of the virus.

“Punitive laws have been shown to block access to HIV services and increase the risk of HIV infection,” the organization said. It notes that criminalizing HIV transmission increases stigma against people living with the virus and creates an atmosphere of “false calm.” “People think that, on pain of criminal liability, their partner(s) will warn that they have HIV,” it says report “Eurasian Women’s Network on AIDS”.

“In order to hide his own crime”

The article on HIV transmission is redundant, because the Criminal Code already regulates all possible consequences for victims, says Natalya Sidorenko.

“If this was sexualized violence, then the article “Rape” has a separate clause that increases the punishment for contracting HIV. Simply transmitting the human immunodeficiency virus is a harm of moderate severity, because the harm occurs with the development of the disease. And now we have antiretroviral therapy, and people do not live to reach the AIDS stage, because the disease does not develop and no harm is caused,” explains the coordinator.

Of the 910 cases of HIV transmission or threat of infection, more than 27% involve sexualized violence, Takie Cases calculated. Another 6% of these cases involve sexual contact between adults and minors. Also, more than 10% of cases involve other types of physical violence: robberies, assaults and beatings. In 12 cases, the defendants were charged with murder.

Sometimes the same people become victims of sexualized violence and at the same time involved in cases of HIV transmission. In 2015, a resident of Karachay-Cherkessia reported to the police about rape in a barn on a farm. But the police decided that no one had raped the woman, and she wrote the statement “in order to hide her own crime” – the threat of infecting her partner with HIV. The woman was sentenced to two years of suspended imprisonment for false denunciation and the theoretical possibility of transmitting the virus.

When considering such cases, the courts do not examine the real possibility of the defendant infecting the victim, explains Maria Petrova.

“Nobody finds out whether a person took therapy”

“A specialist from the AIDS Center comes to court and speaks as a representative of the state, but the Russian Ministry of Health does not recognize the principle “undetectable equals non-transmitting”. That is, doctors from public hospitals claim that the likelihood of infection from a person with an undetectable viral load still exists, although all leading experts say the opposite,” says Maria.

“Those who were reported and came to us took therapy. It turns out that they could not create a threat to transmit the virus,” confirms coordinator Natalya Sidorenko.

Po opinion WHO, the risk of transmission of the virus from a person with an undetectable viral load is “virtually zero.” But the chief freelance HIV specialist of the Russian Ministry of Health, Alexey Mazus believes that the studies proving this position are based on too small a sample of patients.

“There are no specifics on this issue, only sloganeering, which ultimately allows us to speak publicly about the unlimited right of a patient with HIV infection with an abstract “undetectable” viral load to have free sexual contacts and even to conceal the diagnosis,” Mazus said.

Doctor Ekaterina Stepanova says that Rospotrebnadzor specialists already recognize people with an undetectable viral load as harmless. In the last editorial staff The SanPiN department indicates the existence of “quantitative indicators of the presence of the virus in the blood below the level that ensures the possibility of HIV transmission.”

“In fact, allegations about the possibility of transmission of the virus from people with an undetectable load are due to the insufficient education of those doctors who appear in courts. Because many experts agree with a different point of view. And science has done enough for others to stop denying the obvious,” the infectious disease specialist is sure.

At the same time, courts do not always take into account the opinions of doctors

Stepanova recalls one of the trials in which she participated as an expert – then all the experts agreed that the defendant could not transmit the virus, but the conclusions were interpreted incorrectly: “Judges often say: “We are examining the rule of law, not this infection of yours.” ” And then, when the analysis begins and they realize that they don’t understand anything, they’re like: “Okay, let’s get your experts.”

According to Stepanova, the denial of the principle “undetectable equals non-transmitting” by part of the medical community leads to a decrease in the coverage of patients with therapy. By data for 2022, only 61% of Russians with an officially established diagnosis received therapy. To defeat the epidemic, this figure must be increased to 95% worldwide, and 95% must have an undetectable viral load, believes UNAIDS.

“People who do not receive therapy are really dangerous in terms of transmitting the virus. But it is they who most often do not receive any punishment if others are infected, because they are not registered and do not sign a warning about criminal liability,” explains doctor Stepanova.

Bite danger

Russian courts consider biting, spitting and splashing of blood to be the real ways of transmitting the virus, as follows from the published verdicts. Thus, a resident of Yuzhnouralsk was convicted, among other things, of the threat of HIV infection for biting a policeman in the “right shoulder blade area.” A resident of Korolev was convicted on similar charges in 2015, and in 2018, a student who escaped from a Vologda orphanage was convicted.

“One of the cases involves an examination by an employee of the AIDS Center, who said that the possibility of transmission of the virus through a bite cannot be ruled out. But this is nonsense. WHO, UNAIDS and all other people, adequate infectious disease epidemiologists, will say that the probability of transmitting the virus through a bite is zero,” says Natalya Sidorenko.

Infectious disease doctor Ekaterina Stepanova emphasizes that during all the years of the HIV epidemic, only a few cases of transmission of the virus through a bite have been recorded: “The risk is theoretically possible with a high viral load and a sufficiently large amount of blood in the saliva. Roughly speaking, if, for example, during the detention of a suspect, his teeth were knocked out, his face was broken, and he spat at a police officer, there is some risk here.”

According to the State Automated Information Agency “Justice”, violence against police officers was charged along with the threat of HIV infection in 2.5% of cases. Often, security forces expose themselves to an additional risk of contracting HIV when they deprive detained, arrested and convicted people of access to therapy, Stepanova notes:

“Here it is in the interests of the state and its representatives that people take therapy”

“This is necessary so that even at such moments the risk of infection is minimal,” says the infectious disease specialist.

In 5% of cases of HIV infection, according to the State Automated Information System “Justice”, along with the main accusation, the courts dealt with episodes of theft and fraud; 11 cases were related to drugs, 13 – to other crimes.

In 55% of cases, according to the same data, the defendants were not charged with anything other than possible HIV transmission. Moreover, at least 14 people were convicted only for the threat of infection, which in reality did not occur.

Articles on HIV infection migrated to the Russian Criminal Code from the Soviet one, says coordinator Natalya Sidorenko. “Of course, this article is outdated – it was adopted in the late 80s in the Criminal Code of the RSFSR, then it migrated to all these criminal codes in the post-Soviet space. Then there was no information about HIV, there was no treatment and, of course, there was enough fear.”

Doctor Stepanova agrees with Sidorenko – she calls the article on HIV infection inconsistent with modern scientific knowledge. “The norm was adopted quite a long time ago, the revision was also a long time ago, and ideas about the safety of people with an undetectable load were finally approved in 2018,” she explains.

Natalya Sidorenko calls the existence of the first paragraph of Article 122 of the Criminal Code “nonsense” – about “putting another person at risk of contracting HIV infection.” According to her, this formulation creates the problem of blackmail of people with HIV from their partners.

Since 2017, the Eurasian Women’s AIDS Network has documented 15 cases of blackmail. They were mainly associated with disagreements between former partners and spouses – for example, when they could not decide with whom their common children would live.

So, a husband wanted to write a statement against a woman from the Nizhny Novgorod region, who was upset about the upcoming divorce. The woman was saved from a criminal case by the fact that he was indicated in the medical record as a proxy, was examined during his wife’s pregnancy and visited the AIDS Center with her.

This is the best way for a person with HIV to protect themselves from accusations in the event of a disagreement with their partner, says Maria Petrova. In addition to a joint visit to the doctor, she recommends telling a third person about your status, and also getting a receipt from your partner.

Pressure on people with HIV

Such strict regulation of the lives of people with HIV leads to the fact that they are simply afraid to enter into relationships, and even more so to inform their partners about their diagnosis, says project manager of the Children+ Foundation, psychologist Anna Sharabanova. Partners of people with HIV may be pressured by relatives who have misconceptions about the infection.

“There are always exceptions, and one of them is older people who grew up in a time when HIV was considered a plague and everyone avoided these three letters as much as possible. It is often difficult for such people to accept new information, it is difficult to agree that there is no danger, to get rid of beliefs that have accumulated over the years. For this reason, the relatives of someone who has chosen a person living with HIV as a partner raise this issue sharply, even to the point of ultimatums – they put pressure towards not just breaking the union, but also legal proceedings,” says Sharabanova.

If a person with HIV has difficulty disclosing the diagnosis to a partner, she advises contacting a specialized psychologist or peer consultants: “The words “I am a peer consultant, I have a husband with whom we gave birth to three healthy children, two higher educations and a very successful career.” “Coming from a living example can calm a person.”

Thank you for reading to the end!

Mexico: Only 4 States have repealed their HIV criminalisation articles, it is time for the others to follow suit

In 29 states, the “danger of contagion” category still criminalises people with HIV

Translated via Scroll down for original article in Spanish

Aguascalientes, San Luis Potosi and now Mexico City have repealed Article 159 that could lead to imprisonment for people living with HIV. ERRATUM: Nayarit also repealed its danger of contagion law in 2023

With 42 votes in favour, 2 against and 0 abstentions, the Congress of Mexico City endorsed the repeal of the criminal offence of HIV risk supported in Article 159, however, in 29 states of the Republic this figure is still in force.

According to the report “La legislación mexicana en materia dd VIH”, Aguascalientes, San Luis Potosí and now recently Mexico City are the only states in the Republic that do not use the figure “danger of contagion” to criminalise people with HIV.

According to data from the Mexican Network of Organisations against the Criminalisation of HIV, the criminalisation of this health condition is a phenomenon that is used to enact laws that punish the conduct of people suspected of transmitting HIV and whose application is specifically aimed at this population.

The wave of criminalisation under the category of “danger by contagion” was extended to people who had covid-19 during the pandemic, raising a red flag for human rights organisations.

Alaín Pinzón, director of the organisation VIH Libre, said that the category of danger by contagion is part of the stigma of the laws, which he stresses need to be harmonised.

“To think that HIV-positive people go through life being contagious is part of the stigma and prejudice that needs to be eradicated. HIV is transmitted, not spread,’ he said.

An example of the permanence of this article is reflected in states such as Oaxaca or Guerrero, where a person can spend up to 10 years in prison if it is confirmed that the disease he or she has is incurable.

In states such as Guanajuato, in order to get married, a person will be required to undergo nuptial examinations; if either of the persons involved is living with a chronic or incurable condition such as HIV, they will not be allowed to marry.

Even in states such as Veracruz, living with HIV can prevent the gaining of guardianship of a minor.

In the case of Mexico City, the elimination of article 169 of the penal code took a long years-long struggle, being promoted from the plenary by Temistocles Villanueva of Morena.

Only two states have a specific HIV law

Gonzalo Aburto, one of the pioneer activists in the fight against HIV and member of the Mexican HIV Network, mentions that only two states in the Mexican Republic have specific legislation for people with HIV, Mexico City and Veracruz, which hinders true access to justice.

“The use of punitive laws increases discrimination and stigma towards HIV status and places those living with the virus in a predisposed criminal status,” he said.

According to the Mexican HIV Network, so far there is no Federal Law on HIV. Only the federal instrument regulating the different aspects related to the care, diagnosis, prevention and treatment of HIV and AIDS operates: the Mexican Official Standard NOM-010-SSA2-2010.
However, the National Human Rights Commission (CNDH) has issued four general recommendations on the matter and 27 on particular cases where the human rights of people living with HIV have been violated.

According to the network’s report, the violations can range from denial of health services for living with the virus to imprisonment under the crime of “danger of contagion”.

Women, children and indigenous communities are among the most vulnerable groups, according to the Mexican Network.

“Many of the laws to care for people with HIV need to be changed, many of them have not been updated for decades, without being updated on human rights issues,” said Gonzalo Aburto.

Some other acts of discrimination for living with HIV and studied by the Supreme Court of Justice of the Nation (SCJN) are: the liquidation of health workers for living with the virus, the dismissal of military personnel from the system for living with this health condition and medical negligence.

“Unfortunately in Mexico discriminatory practices and attitudes are still very common. Therefore, we must emphasise that HIV is not only a serious public health problem but also a conflict that cuts across social and human rights,” said the Mexican Network.

En 29 estados, la categoría “peligro de contagio” aún criminaliza a personas con VIH

Aguascalientes, San Luis Potosí y ahora la CDMX han derogado en artículo 159 que podía llevar a la cárcel a las personas con VIH

Con 42 votos a favor, 2 en contra y 0 abstenciones, el Congreso de la Ciudad de México avaló la derogación del tipo penal por riesgo de contagio por VIH respaldado en el artículo 159, sin embargo, en 29 estados de la República está figura sigue siendo vigente.

Según el informe “La legislación mexicana en materia dd VIH”, Aguascalientes, San Luis Potosí y ahora recientemente la Ciudad de México; son los únicos estados de la República que no utilizan la figura “peligro de contagio” para criminalizar a las personas con VIH.

Datos de la Red Mexicana de Organizaciones contra la Criminalización del VIH, la criminalización de esta condición de salud es un fenómeno que se usa para promulgar leyes que castigan la conducta de las personas que se sospecha pueden transmitir el VIH y cuya aplicación se dirige específicamente a esta población.

La ola de criminalización por la categoría “peligro por contagio”, se traspaso a las personas que tenían covid-19 durante la pandemia, lo que ocasionó una alerta a las organizaciones de derechos humanos.

Alaín Pinzón, director de la organización VIH libre compartió que la categoría de peligro por contagio es parte del estigma de las leyes, que recalca, necesitan armonizarse.

“Pensar que las personas seropositivas vamos por la vida contagiando es partendel estigma y el perjuicio que se debe erradicar. El VIH se transmite, no se contagia’ puntualizó.

Un ejemplo de la permanencia de este artículo se refleja en estados como Oaxaca o Guerrero, donde una persona puede pasar hasta 10 años en la cárcel si se confirma que el mal que posee en incurable.

En estados como Guanajuato, para poder contraer matrimonio, se necesitara llevar exámenes nupciales; sí alguna de las personas involucradas vive con algún padecimiento crónico o incurable como el VIH, no se les permitirá contraer nupcias.

Incluso en estados como Veracruz, el vivir con VIH puede impedir la ganancia de la tutela de un menor de edad.

Para el caso de la Ciudad de México, el eliminar el artículo 169 del código penal llevó una lucha de muchos años, siendo impulsada desde el pleno por Temístocles Villanueva, de Morena.

Solo dos estados cuentan con ley específica en materia de VIH

Gonzalo Aburto, uno de los activistas pioneros en la lucha contra el VIH y miembro de la Red Mexicana de VIH, menciona que sólo dos estados de la República mexicana cuentan con legislación específica para personas con VIH, Ciudad de México y Veracruz, lo que dificulta el verdadero acceso a la justicia.

“El uso de leyes punitivistas aumentan la discriminación y el estigma hacia el estado del VIH y sitúa a quienes viven con el virus en un estatus predisposición delincuencial” mencionó.

Según la Red Mexicana de VIH, hasta el momento no existe una Ley Federal en materia de VIH. Únicamente opera el instrumento federal regulador de los diferentes aspectos vinculados con la atención, diagnóstico, prevención y tratamiento del VIH y el sida: la Norma Oficial Mexicana NOM-010-SSA2-2010.
Sin embargo, la Comisión Nacional de Derechos Humanos (CNDH) ha emitido cuatro recomendaciones generales en la materia y 27 sobre casos particulares donde fueron vulnerados los derechos humanos de personas que viven con VIH.

Según el informe elaborado desde la red, las vulneración pueden ir desde la negación de los servicios de salud por vivir con el virus hasta ir a la cárcel bajo el delito “peligro de contagio”.

Las mujeres, los infantes y las comunidades indígenas forman parte de lo grupos más vulnerables según datos de la Red Mexicana.

“Muchas de las leyes para atender a las personas con VIH necesitan cambiarse, muchas de ellas no se han actualizado desde hace décadas, sin estar actualizados en temas de derechos humanos” dijo Gonzalo Aburto.

Algunos otros actos de discriminación por vivir con VIH y estudiandos por la Suprema Corte de Justicia de la Nación (SCJN) se encuentran: la liquidación de trabajadores de salud por vivir con el virus, la baja de militares del sistema por vivir con esta condición de salud y negligencia medica.

“Desafortunadamente en México las prácticas y las actitudes discriminatorias siguen siendo muy comunes. Por ello, debemos recalcar que el VIH no solo constituye un serio problema de salud pública sino, además, es un conflicto que atraviesa lo social y los derechos humanos” mencionó la Red Mexicana.

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

How civil commitment can ensnare people prosecuted under HIV criminalization

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.

Russia: Court finds refusal to let migrant woman stay in Russia because of her HIV status unlawful

Court in Krasnodar invalidates refusal to allow a foreigner with HIV to stay in Russia

Translated via For original article in Russian, please scroll down.

The Krasnodar Territory Department of the Russian Federal Consumer Rights Protection and Human Health Control Service decided that Uzbek citizen X. was undesirable in Russia because of her HIV positive status. The Leninskiy Court in Krasnodar found the ban discriminatory and unlawful.

The foreigner went to court to challenge the decision to ban her from staying in Russia, pointing out that her parents, brother and sister reside in Russia and have Russian citizenship, and she has never violated the law. When Rosia appealed to Rospotrebnadzor to cancel the decision, they replied that the procedure for cancellation or suspension under this category was not regulated by law and that the contested decision could only be cancelled on the basis of a court decision.

The court found that under the law On the Prevention of the Spread of Disease Caused by HIV in the Russian Federation, foreigners and stateless persons with such status may stay in the country if they do not violate administrative and criminal law. The Russian Constitutional Court has also confirmed the illegality of such restrictions.

As a result, the Leninskiy Court in Krasnodar ordered the regional department of Rospotrebnadzor to reverse the decision on the undesirability of the Uzbekistani citizen, who is now allowed to enter the country.

Суд в Краснодаре признал незаконным отказ во въезде в Россию иностранке с ВИЧ

Управление Роспотребнадзора по Краснодарскому краю приняло решение о нежелательности нахождения в России гражданки Узбекистана Р.Р. из-за ее положительного ВИЧ-статуса. Ленинский суд Краснодара признал запрет дискриминационным и незаконным.

Иностранка обратилась в суд, оспаривая решение о запрете пребывания в России, указав: ее родители, брат и сестра проживают в России и имеют российское гражданство, она ни разу не нарушала законодательство. Когда Розия обратилась в Роспотребнадзор с требованием отменить решение, там ответили – порядок отмены или приостановления по этой категории законодательно не урегулирован и отмена оспариваемого решения возможна только на основании решения суда.

Суд установил, что по закону “О предупреждении распространения в Российской Федерации заболевания, вызываемого ВИЧ” иностранцы и лица без гражданства с подобным статусом могут находиться в стране, если не нарушают административное и уголовное законодательство. Незаконность такого ограничения подтверждает и Конституционный суд России.

В итоге Ленинский суд Краснодара обязал региональное управление Роспотребнадзора отменить решение о нежелательности пребывания гражданки Узбекистана, которой теперь разрешен въезд в страну.

US: Presidential Advisory Council on HIV/AIDS (PACHA) issues resolution on Molecular HIV Surveillance and Cluster Detection

PACHA Unanimously Approves Resolution to Create Safeguards for People Living with HIV


Directs CDC to Adapt Surveillance Activities to Better Protect Human Rights for Vulnerable Communities

October 18, 2022PWN commends and applauds the Presidential Advisory Council on HIV/AIDS (PACHA) for their leadership in unanimously passing an historic resolution that is critical to protecting the human rights and dignity of people living with HIV, the Resolution on Molecular HIV Surveillance and Cluster Detection Response.

This resolution responds to concerns raised by public health officials and community advocates, especially networks of people living with HIV and human rights and data privacy experts, and urges the Centers for Disease Control and Prevention (CDC) to change their guidance on cluster detection and response (CDR) activities. Specifically, the resolution clearly and forcefully recommends that the CDC direct jurisdictions funded for such activities adapt their implementation of CDR to account for local conditions, including health data privacy protections and laws criminalizing people living with HIV.

“Basically, PACHA told the CDC that local context matters: if jurisdictions do not have adequate safeguards to protect the human rights and privacy of people living with HIV, the CDC must allow for a moratorium on CDR activities,” said Kelly Flannery, policy director at Positive Women’s Network-USA. “There is still room to create more robust protections for people living with HIV, such as informed consent standards. Going forward, we must ensure that there are no further developments and integration of new public health surveillance technologies impacting people living with HIV absent community input, oversight, and specifically involvement from networks of PLHIV.”

In the resolution, PACHA also urged CDC to work in partnership with networks of people living with HIV to create a stronger system of informed consent around the use of molecular HIV surveillance data. U.S.-based networks of PLHIV have been sounding the alarm about molecular HIV surveillance (MHS) since 2018, when the federal government first required that states and jurisdictions scale up the use of molecular surveillance technologies and activities as a condition of HIV prevention funding. By 2019, MHS was named one of the core pillars of the federal “End the HIV Epidemic” (EHE) Plan.

“As a result of massive mobilization and outcry by networks of people living with HIV and our allies, yesterday, we finally saw a response addressing community concerns,” said Venita Ray, co-executive director of Positive Women’s Network-USA. “Now it’s time for the CDC to take swift action to implement the recommendations from PACHA and networks of PLHIV.”

This resolution is a tremendous step forward for communities that are dually most impacted by HIV and by surveillance and policing – especially Black, Indigenous and People of Color, migrants, queer and transgender people, people who use drugs, those who work in in the sex trade, and those with the least access to quality, affordable healthcare. We are deeply appreciative to PACHA leadership and to the PACHA Stigma and Disparities Subcommittee for their tremendous efforts in response to concerns from networks of people living with HIV.

Now that it has now been unanimously approved by PACHA, what happens next will speak to the character and integrity of the CDC. Failing to implement these recommendations would represent an egregious breach of public trust. We will be closely monitoring the adoption of these important recommendations throughout the federal response.

The full PACHA resolution is available here.

Canada: Federal government must review past criminal cases of HIV nondisclosure for possible wrongful convictions

Ottawa urged to review past HIV cases for wrongful convictions

Canada has been described as a “global hot spot” by advocacy groups for HIV nondisclosure prosecutions. One lawyer hopes to change that.

The federal government must review past criminal cases of HIV nondisclosure for possible wrongful convictions, says the president of Ontario’s Criminal Lawyers’ Association.

Such a review would highlight the pressing need for a permanent commission to proactively review wrongful convictions in all cases, said Daniel Brown — something that a panel of retired judges recommended to the government, but which has yet to take shape.

“Yes, we want the government to carefully consider how this commission should be established, but they’ve had more than enough time to get this commission off the ground,” Brown said, “and if the government was motivated to see a wrongful conviction commission, it would exist already.”

Brown was speaking in the wake of the recent successful appeal of his firm’s client, Jennifer Murphy.

She had been convicted of aggravated sexual assault in 2013 for not disclosing her HIV-positive status in a consensual sexual encounter, despite having a low viral load due to antiretroviral medication which made it impossible for her to transmit the virus.

Canadian law requires an individual living with HIV to disclose their status to a sexual partner if there is a realistic possibility of transmission. At the time of Murphy’s conviction, it was generally understood within the legal system that disclosure was not necessary if the individual had both a low viral load and used a condom. No condom was used in the Murphy case.

The federal government says it wants to reform the law around nondisclosure, recognizing that a low viral load alone means there can be no realistic possibility of transmission. Consultations with advocacy groups are set to take place this month.

Canada has been described as a “global hot spot” by advocacy groups for HIV nondisclosure prosecutions, with more than 220 by the end of last year. Individuals are usually convicted of the crime of aggravated sexual assault, which carries a prison sentence and mandatory registration on the sex offenders registry.

Brown said there needs to be a plan to review those cases for circumstances similar to Murphy’s, where individuals had been convicted of a serious criminal offence despite being unable to transmit the virus — in other words, convicted because the law had not caught up with the science.

Reviewing wrongful convictions is also one of the four main demands put to the government in a statement released this year by the Canadian Coalition to Reform HIV Criminalization and signed by dozens of organizations.

Without commenting on specific cases, a spokesperson for Justice Minister David Lametti pointed out that individuals can appeal their case if they believe there has been an error. “Many errors and miscarriages of justice are corrected by appeal courts across the country,” said Chantalle Aubertin.

But Brown said that’s an “exhaustive and expensive” process, even more so for individuals convicted for HIV nondisclosure, who may already face stigma along with barriers to employment due to having a criminal record. It’s not a process they can navigate on their own, he said.

In the Murphy case, Brown said she had to file a formal motion seeking an extension of time to bring her appeal, retain an infectious diseases expert, and have lawyers spend multiple days arguing over admissibility of evidence.

“It was a lengthy process that lasted well over three years and an expensive one as well, even with lawyers who were prepared to donate their time for free,” Brown said.

“Simply saying that people can take their case before the appeal courts fails to recognize those barriers that exist, and that’s why it’s important that a wrongful conviction review be created to address these concerns.”

Under the current wrongful conviction review process, once an individual convicted of any crime has exhausted all of their rights to appeal, they can request that their case be reviewed by a special group at the justice department — a process that can take years. The minister then ultimately decides whether the application should be granted or dismissed.

“This is the process now, and it is one we accept needs to be improved,” Aubertin said.

Last year, a report to the government from former judges Harry LaForme and Juanita Westmoreland-Traoré recommended the creation of an independent commission to proactively review cases that might have resulted in wrongful convictions, saying such a body was “urgently required.”

Aubertin said Lametti is “fully committed” to the creation of a commission, and that the policy work necessary to create it is underway.

“Minister Lametti would like the commission ready to launch by the end of his mandate — but it is important that we take the time to do this properly. Too much is at stake,” she said.

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