Uganda: HIV law deters communities from seeking HIV services and should be reformed

Kaleba scolds Parliament: The AIDS law is poisonous

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

HEALTH  HIV/AIDS 

The founder of The Aids Support Organization (TASO), Noerine Kaleeba, has castigated members of parliament, saying they approved the AIDS law which is awash with numerous contentious clauses.

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

In 2014, Parliament endorsed the HIV and AIDS Prevention law, which came into effect the same year on July 31, when President Yoweri Museveni assented to it. The law seeks to provide for a legal framework geared towards the prevention and control of HIV.

Kaleeba said the contentious clauses (41 and 43) of the law provide for prosecution on grounds of attempted and intentional transmission of HIV, respectively. Among the provisions of the piece of legislation is criminal penalty for risk and intentional transmission of the virus.

The law requires mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus. Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

Speaking during the 29th Centre General Meeting (CGM) of TASO Mulago last week, Kaleeba regretted that these provisions in the law do not only stigmatise and discriminate against people living with HIV but also deter communities from seeking HIV services such as HIV Testing and subsequently HIV treatment.

TASO founder Noeline Kaleebu together with another founder Peter Ssebanja take to the flow during the 29 AGM for TASO Mulago 

She said that the clauses have fueled domestic violence in homes since the couples each blame one another for intentionally transmitting the virus. She said it is naïve to think that the person who tests first is the one who infects the other, it could be the other way round.

“Honestly, how can it be proven that indeed the HIV of the accuser was got from the accused? There is fear that public knowledge of one’s HIV positive status would be used against them due to personal differences,” she says.

She argued that this will ultimately discourage people from testing to know their status fearing that if found positive, their status could be used against them in courts of law at any point in time. It should thus be noted that one who does not know their status cannot be held liable under this law.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as criminals or potential criminals,” She says. Adding, “People will inadvertently live with the virus without accessing treatment and by the time they get to know their status it will be too late.”

Kaleeba says that both members of the previous parliament and the President (who signed the law) acted out of ignorance, and therefore made a mistake. She prays that the 10th parliament doesn’t have to keep the error, and this is urgent.

She also hailed the appointment of Winnie Byanyima as the new executive director of UNAIDS, saying it has come at the right time as we are closing the chapter of HIV/AIDS. She said Byanyima is an exceptionally good manager, and her appointment will elevate our country.

“She will definitely give a mirage to Uganda even for those who didn’t know Uganda, will come to know the country, whether they like it or not. The world will say the new UNAIDS ED comes from Uganda, and that way our reputation will be elevated. People living with HIV, therefore, need to double their efforts especially on issues of taking their medication,” she said.

“Strict adherence to treatment is where the war is. When you religiously adhere to your medication, your viral load becomes undetectable, meaning you will not transmit to others. Let us be exemplary and merit Bwanyima’s confidence.”

Responding to Kaleeba’s concerns, the guest of honour, Florence Nambozo, who is also woman MP for Sironko and chairperson HIV/AIDS committee, assured over 800 people who turned up for the CGM that she will talk to her fellow members of parliament to make sure that the law is amended.

She said Uganda is making good progress in the HIV fight and urged people living with HIV to stick to treatment since the ARVs are available and free in all government health facilities.

The Centre Program Manager TASO Mulago, Godfry Mafabi revealed that by end of July TASO Mulago had recorded a cumulative total of 7754 compared to last years’ 1145 in care against a target of 8371 to be achieved by September 2019.

Mafabi said that since the last AGM 918 clients were initiated on ART, of these 23 were children and 139 adolescents, and 756 were adults compared to 663 who were started on ART between 17 August- July 18. The suppression rate is currently at 97% surpassing the new national target of 95% target.

However, the institution is still faced with challenges of funding since the time the donors pulled out. The number of staff was also reduced at the facility to 27 from 75, which is a big setback. We are using expert clients to handle new clients, he said.

Canada: Further reform is needed to redress the harms HIV criminalization brings to the lives of women living with HIV

Recommendations on changes to HIV criminalization don’t go far enough

Earlier this summer, the House of Commons Standing Committee on Justice and Human Rights released a report on Canada’s approach to criminalizing those who don’t disclose that they’re living with HIV to sexual partners.

If the Standing Committee’s recommendations are adopted, they could diminish the harms experienced by women living with HIV under Canada’s current approach to criminalization.

But further consideration and consultation are required in order to fully address the harms that the law introduces to the lives of women living with HIV.

The Supreme Court of Canada articulated the current legal approach in 2012. In so doing, the court interpreted consent and fraud provisions of Canada’s sexual assault laws and ruled that people diagnosed with HIV must disclose their status to sexual partners before engaging in sexual acts that pose a “realistic possibility of transmission.”

The court also stated that there is no legal obligation to disclose prior to sex if a condom is used and the person living with HIV has a consistently low measure of HIV in their blood. This legal understanding of a “realistic possibility” contradicts current scientific knowledge that just one of these conditions is sufficient to eliminate transmission risk.

Scientific evidence endorsed by the federal government demonstrates that an undetectable viral load eliminates the risk of sexual transmission of HIV, regardless of condom use. Similarly, there is a negligible risk of transmission when condoms are used properly, no matter an individual’s viral load.

Today, in addition to being inconsistent with current scientific evidence, HIV nondisclosure prosecutions are widely seen as unjust as they can result in harsh sentences for actions that result in little or no harm.

Canadian prosecutors and courts apply the criminal offences of sexual assault and aggravated sexual assault to prosecute cases of HIV nondisclosure. The latter — one of the most serious offences in Canada’s Criminal Code — carries the possibility of a lifetime sentence and mandatory registration as a sexual offender.

Experts discuss the misuse of sexual assault law in prosecuting cases of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Women living with HIV & the law

“The law is a bigger risk to us than HIV.” Sophie

The criminalization of HIV nondisclosure was purportedly intended to protect women while reducing HIV transmission risk by promoting disclosure and safer sex practices. Instead, research indicates that punitive approaches have the opposite effects, many of them significantly harmful.

As health scientists at Simon Fraser University, we work alongside experts on two studies: the Canadian HIV and Women’s Sexual and Reproductive Health Study (CHIWOS), with researchers also from the University of Toronto, McGill University, University of Manitoba, University of Saskatchewan and McMaster University; and the Women, ART and the Criminalization of HIV (WATCH) study with health partners based at McMaster University.

Findings from these studies indicate that criminalization reinforces socially dominant power dynamics, stigma, marginalization and fear experienced by women living with HIV. Specifically, the current legal requirements ignore the dangers women face in both negotiating the use of condoms and status disclosure due to power inequities, particularly in dependent, violent and non-consensual relationships.


À lire aussi : Why a fulfilling sexual life with HIV matters


“I was raped by three [people …] And if I had told [them] I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” Julie

Women living with HIV who don’t disclose their status when they are sexually assaulted may themselves be convicted of a sexual offence.

Not only does criminalization contradict scientific evidence around HIV transmission risk, it compromises women’s health-care engagement and deters HIV testing since those who do not know their status cannot be prosecuted. Yet access to HIV testing, treatment and support services is scientifically proven to decrease transmission risk.

Furthermore, women who aren’t prosecuted are still harmed by the law. For example, women who have experienced emotional and physical violence by abusive partners may face the threat of partners falsely reporting that the woman didn’t disclose her HIV status.

Living under the fear of being charged has significant consequences for women’s emotional, mental and physical well-being. This is particularly important given the high rates of physical and sexual violence experienced by women living with HIV in Canada.

“It seems like an impossible situation to prove your innocence.” Miranda

These findings were shared with the Standing Committee through expert testimony by members of CHIWOS and WATCH. Such contributions are integral in moving toward an approach to criminalization that considers the realities of people living with HIV.

Women living with HIV and others share their experiences and knowledge of the criminalization of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Recommendations could go further

The Standing Committee’s report makes recommendations in a positive direction, but the recommendations need to go further to reduce harms to women living with HIV.

Firstly, the committee recommends creating a new offence in the Criminal Code for nondisclosure of an infectious disease where transmission happens. This recommendation says prosecutions should never be pursued in cases where: an individual has an undetectable viral load; condoms were used; the sexual partner of a person living with HIV is taking pre-exposure prophylactics; or the sexual act carries a negligible risk of transmission (oral sex, for example).

This suggested requirement of a new offense where actual transmission occurs would minimize, though not fully eliminate, opportunities for the law to be used as a tool of violence against women.

Though the creation of a new offence would address the current problematic use of sexual assault laws, failing to consider the intent of not disclosing is significant. In 2008, the United Nations urged states to limit prosecution of HIV nondisclosure to extremely rare cases of actual and intentional transmission.

Heed women’s experiences

Without including the element of intent, the committee has not fully addressed the vulnerability of women who may unintentionally transmit HIV during their own sexual assault or an unprotected sexual encounter. Given the widespread violence experienced by women living with HIV in Canada, this is a substantial deficiency in the recommendations.

And, given the report’s recognition that criminalization has not achieved its public-health goal of reducing HIV transmission, transmission of any infectious disease should be addressed by public-health mechanisms rather than the law.

Secondly, the report recommends ensuring that the same conditions are applied cross-country to consider whether prosecutions should proceed in cases where people haven’t disclosed that they are living with HIV. This recommendation would address the disparities in prosecutions of HIV nondisclosure and reduce various harms to people living with HIV.

Finally, the report recommends a review of all past convictions for HIV nondisclosure and increased access to anonymous testing. These measures are significant in beginning to redress the harms introduced by the current legal approach.

But to fully do that, Canada must heed all the experiences of women living with HIV.

US: Charges of HIV exposure for spitting, despite absence of risks, prove that Georgia needs to modernise its HIV laws

HIV-positive man’s arrest for spitting called ‘plain and simple discrimination’

A 31-year-old man in Rome, Ga., was charged with exposing police officers to HIV after allegedly spitting on them, which HIV activists said highlights why the state needs to fix its HIV laws.

Authorities said JS was swearing at people and making obscene gestures near the intersection of Maple Road and Park Road on Aug. 25, according to the Marietta Daily Journal. S allegedly spat on officers after being apprehended by the Floyd County Police Department.

S was charged with criminal trespass, two misdemeanor counts of disorderly conduct, three misdemeanor counts of willful obstruction of police officers and three felony counts of assault on police officers by someone with HIV, according to the Floyd County Sheriff’s Office. He is being held without bond in the Floyd County Jail.

HIV cannot be transmitted by spitting, according to the Centers for Disease Control & Prevention. S’s arrest highlights why Georgia needs to modernize its HIV laws, according to Nina Martinez of the Georgia HIV Justice Coalition.

“In 2019, it’s not breaking news that saliva does not transmit HIV,” she told Project Q Atlanta. “And yet, the punishment for a person living with HIV who spits on a police officer is potentially 20 times greater than that for someone not living with HIV who commits the same offense. This is state-sanctioned discrimination, plain and simple.”

Malcolm Reid, another member of the Georgia HIV Justice Coalition, agreed with Martinez.

“Although we don’t know much about this specific case, we do know that there is no chance of HIV transmission through spit,” he said. “This proves once again that the laws in Georgia need to catch up to science. HIV is not a crime.”

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure. Activists and lawmakers have tried for years to modernize state law by decriminalizing HIV. 

A Republican lawmaker introduced an HIV decriminalization bill on the final day of this year’s legislative session. It will be back in the 2020 session in January.

An Athens man was arrested in July after allegedly having sex with a woman without informing her he had HIV. He was charged with reckless conduct by a person with HIV. He remains in Athens-Clarke County Jail nearly two months later on a $3,000 bond, according to the Clarke County Sheriff’s Office.

A gay Atlanta man was arrested for HIV exposure in South Carolina in 2015. He claimed he disclosed his status before having sex with the alleged victim. The charges were later dropped.

Uganda: Recent case of woman, unjustly jailed for allegedly injecting a baby with HIV, highlights the need to act against HIV criminalisation

Woman Who was Wrongfully Jailed for Premeditated HIV Infection Speaks Out
“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

By Kampala Post Reporter

On the evening of August 29, 2019, Sylvia Komuhangi walked out of the Gulu High Court premises accompanied by a female prisons security official. She had a smile plastered on her face. It was not a beaming smile. It was a restrained smile, the kind of smile that projects more relief than joy.

The 32-year-old secondary school teacher, who was wrongfully sentenced to two years in jail for injecting a baby with HIV-infected blood, walked a 50-meter stretch to the parking lot area where her lawyer, Immaculate Owomugisha waited. Komuhangi and Owomugisha shook hands, hugged and clasped their hands around each other’s waist for a while. The journalists present at court took pictures of the two, and then Owomugisha stepped back to let Komuhangi share her thoughts with the media.

With half a dozen video cameras and audio recorders in position, Komuhangi responded to the first question asking how it felt to regain her freedom after eight months in Kitgum Central prison, 805 kilometers away from her home in Rukungiri.

“I feel so happy,” she said. “It was so difficult.”

A Friendly Visit Gone Wrong

On December 27, 2018, Komuhangi was arrested and charged at Kitgum Magistrate’s Court with the offence of committing a “negligent act likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda.”

During her trial, at the Magistrate’s Court, the prosecution stated that at about 9 P.M. on December 26, 2018, Komuhangi carried the alleged victim away from her babysitter to the bedroom and then returned later, with the baby crying.

The prosecution continued that when the mother, Eunice Lakot, examined her baby, she found swellings in both armpits. She took the baby to Kitgum hospital for diagnosis, where doctors reportedly confirmed that the swellings were caused by injections. Consequently, a medical professional tested Komuhangi for HIV, and she was found positive. Next, the child was given Post-exposure Prophylaxis (PEP), an antiretroviral medication that prevents infection to anyone exposed to HIV during the first ninety-six hours. Subsequently, Komuhangi was arrested.

After regaining her freedom, Komuhangi narrated that she had traveled to Uganda’s northern region from the Kampala for a tour in late December 2018, and spent several nights at a friend’s house in Kitgum Town. After a visit to the Kidepo Valley National Park, she returned to Kitgum Town to find her friend’s home surrounded by local authorities. “We were arrested there and then,” she narrates.

“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

The conviction was handed out by the Chief Magistrate of Kitgum, Hussein Nasur Ntalo, on Thursday, July 4th. On Komuhangi’s release, Lakot, the mother of the baby, shared that the most recent results showed that her baby is HIV negative. Lakot, nevertheless, said she was not happy with the High Court’s ruling, but the baby’s maternal grandmother, Rose Oryem, said they would not challenge the court’s decision.

Komuhangi’s story was covered by leading media houses in the country, including the Daily Monitor, the country’s leading independent media house. It caused a public uproar in a country whose laws make it a crime to “willfully and intentionally” transmit HIV and also give the legal right to medical staff to disclose a patient’s HIV status to others without his or her consent.

In fact, Komuhangi is not the first convict as a result of those laws. In 2014, a 64-year-old nurse in Kampala, Rosemary Namubiru, was accused of injecting a toddler with her HIV-positive blood in the process of administering treatment. Namubiru was put on trial amid pressure from several local and international organisations, including the Global Commission on HIV and the Law, who castigated the quality of the media reporting in the immediate aftermath of her arrest.

“The media engaged in unabashed and unverified sensationalism. Rosemary was branded a ‘killer,’ guilty of maliciously and intentionally attempting to transmit her own HIV infection to a child,” said the Commission’s statement.

“Subsequent to those allegations, the baseless rumour-mongering escalated: various news reports branded Rosemary a fiendish serial offender; a nurse who was mentally ill; a nurse without credentials…. Sadly, we’re convinced that the charge was originally laid because of the media frenzy,” added the statement.

Taking Action Against HIV Criminalization

When Komuhangi’s case hit the media headlines, it took a similar tone to that of Namubiru. As a result, it caught the eye of the Uganda Network on Ethics, Law and HIV/AIDS (UGANET), a non-governmental organisation whose goal is to advocate for the development and strengthening of an appropriate policy, legal human rights and ethical response to HIV/AIDS in Uganda.

Owomugisha, who is the UGANET head of advocacy and strategic litigation, says cases that involve HIV are not subjected to sufficient rigor, with sentiments often carrying the day at the expense of proper investigation, prosecution, and objectivity in court.

“Most convictions are based on unfair, inaccurate and overblown facts,” she says. “The media usually joins to hype up stories [and] this sensationalism crowds out good judgment, resulting in a miscarriage of justice.” Speaking particularly about Komuhangi’s case, Owomugisha said the media continued a pattern of HIV criminalization by condemning the suspect even before the initial trial.

“Several media houses were set on the loose name-calling such as “murderer and killer.” The media buzz was everywhere, including on the radio airwaves for days. This undressed Komuhangi of all dignity,” she said.

UGANET decided to offer legal representation to Komuhangi, resulting in a swift appeal against her conviction. Within two months from the first time the appeal was first lodged before the Gulu High Court, she had regained her freedom. Justice Stephen Mubiru, who handled the appeal, quashed the conviction, saying that forensic tests showed that DNA traces found on the cloth that Komuhangi used to wrap the baby belonged to her but did not contain any blood.

“I could not find any connection between her piece of cloth and the blood said to have been injected into the baby because the swelling found on the baby could have been a mere rash,” he added, according to a detailed report in the Daily Monitor newspaper.

Another of Komuhangi’s lawyers, Louis Odong, said the ruling sent a message to people who criminalize HIV victims not to engage in the practice while Owomugisha added that the court’s decisions had restored “dignity to Sylvia Komuhangi and many like her.”

“We commend the court decision for setting an example that if courts scratched below the surface news, they would realize HIV positive status alone does not equate to malicious intent,” she said.

The Executive Director of UGANET, Dora Kiconco Musinguzi, whose organisation works with 32 other HIV law and human rights groups, said the criminalization of people living with HIV, not only undermines the HIV response by compromising public health and human rights but that there is also no evidence of benefit from those laws.

“As a community of HIV actors, we remind the nation that we cannot end AIDS, or reach epidemic control with HIV criminalization coupled with heightened HIV discrimination. Human rights and dignity need to be accorded to all. We need to stop stigma and end HIV criminalization,” she stated.

Kiconco said that in light of court’s decision, the community of people living with HIV and organisations that UGANET works with recommend that the Constitutional Court should fast track the hearing of Petition No. 24 of 2016, through which their issues were presented to the country’s second-highest judicial organ for interpretation.

“More lives continue to be adversely affected by the HIV criminal law. Justice delayed is justice denied,” she added. Kiconco also called on Parliament to re-visit the HIV criminal laws with a view to law reform as “some of the laws are unfair, vague and will encourage trumped-up charges often.”

She said the law had been diverted from its original intent to create an environment where HIV is criminalized and where complications arise for persons living with HIV. The final appeal from Kiconco was directed to actors at all levels of the justice sector to increase rigor while handling HIV-related cases and to the media fraternity to exercise restraint while reporting on matters regarding the HIV criminal law.

“Our Constitution espouses a key principle – innocent until proven guilty. Abusing victims with names such as ‘monster and murderer’ is wrong. This jeopardizes their chance for a fair hearing,” she emphasized.

US: “People living with HIV are being prosecuted because the law is not keeping pace with science”

Living With H.I.V. Isn’t a Crime. Why Is the United States Treating It Like One?

States’ nondisclosure statutes, used to persecute marginalized populations, discourage testing and treatment.

By Chris Beyrer and 

Dr. Beyrer is an infectious disease epidemiologist. Mr. Suttle was convicted under Louisiana’s H.I.V. criminalization statute.

Michael Johnson, a former college athlete convicted in 2015 of not disclosing his H.I.V.-positive status to sexual partners, was released on parole from a Missouri prison last month. Mr. Johnson, who is gay and black, had maintained his innocence, and there was no proof that he had transmitted the virus. And yet that didn’t seem to matter in the court of public opinion, or in the court of law.

On Dec. 20, 2016, a Missouri appeals court ruled that Mr. Johnson’s trial had been “fundamentally unfair.” H.I.V. nondisclosure is inherently difficult to prove yet seemingly easy to condemn, as shown time and again by judges and juries worldwide. Nowhere is this truer than in the United States, where people with H.I.V. are still being prosecuted under outdated or misapplied laws.

During the early years of the AIDS epidemic, an H.I.V. infection was tantamount to a death sentence. Through major advances in antiretroviral therapies, H.I.V. is now a manageable, chronic condition. A person whose infection is newly diagnosed can expect to live a near-normal life span, and most seropositive people will never progress to further AIDS-defining complications.

Today we also know much more about how difficult H.I.V. is to spread. When used correctly, condoms are highly effective means of prevention. Research has also shown that when people are treated with antiretroviral drugs so that their viral load cannot be detected by standard blood tests, the virus cannot be transmitted to sexual partners. This true of both heterosexual and male same-sex couples. Simply put, scientific evidence on actual harm and transmission does not support the singling out of people living with H.I.V. through the heavy hand of criminal law. 

Mr. Johnson’s trial was rightly deemed unjust due to prosecutorial misconduct. But injustice remains deeply entrenched within the society that created the laws that criminalized his actions in the first place. At least 29 states, mostly in the Midwest and Deep South, have laws that make H.I.V. nondisclosure, exposure or transmission a crime.

These laws constitute one more layer of marginalization for those whom the criminal justice system already disproportionately prosecutes, convicts and harshly sentences: black people, trans women, migrants, people who sell sex, people who inject drugs and L.G.B.T.Q. youths. Such laws have not been shown to reduce H.I.V. transmission, but they do discourage those at risk from getting tested, which undermines public health rather than protects it.

The United States has the unfortunate distinction of being among the countries most aggressively prosecuting people living with H.I.V., after Russia and Belarus, according to a recent report by H.I.V. Justice Worldwide. In these places, people living with the virus could be just one disgruntled partner away from finding themselves in a courtroom.

In the United States there are thousands of cases where H.I.V.-specific charges were filed, or people faced heightened charges or punishments simply because they had the virus. We don’t know how many others have been threatened or blackmailed with criminal prosecution — the law becomes a weapon in abusive relationships — but those numbers are surely considerable. In almost all cases, this all-too-real risk is greater than any (highly unlikely) risk of actual H.I.V. transmission.

Prompted by concerns that the law was being applied contrary to scientific evidence, last summer a group of 20 H.I.V. scientists from around the world issued an expert consensus statement intended to assist experts involved in cases of alleged H.I.V. exposure, transmission or nondisclosure. They urged governments and people working in the justice system to ensure that the significant advances in H.I.V. science are taken into account in H.I.V.-related legal cases.

As the global scientific community continues to learn more about the disease and its transmission risks, lawmakers and criminal justice systems must similarly evolve their thinking to align with evidence, not fear. Scientists and clinical providers have obligations here, too. They should use their knowledge to support law reform efforts and provide expert testimony, using the consensus statement to educate and advocate change. No one should be forced to endure what Michael Johnson, and so many others living with H.I.V., have had to suffer.

Chris Beyrer is a professor in public health and human rights at the Johns Hopkins Bloomberg School of Public Health.

Robert Suttle is the assistant director of the Sero Project, which works to end unfair H.I.V.-related prosecutions.

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Ukraine: Svetlana Moroz, chair of the Eurasian Women’s AIDS Network, talks about the campaign to decriminalise HIV

HIV criminalisation creates an atmosphere of false effectiveness of the State

Google translation – Scroll down for article in Russian

Global changes in Ukrainian politics in the spring and summer of 2019 generated a new wave of “high expectations” of civil society in relation to changes in the field of legislation. As a result, along with calls to immediately punish all corrupt officials and restructure the domestic economy, the concept of “decriminalization” has come into use in the media over the past half year.

The most famous today are public campaigns to decriminalize medical cannabis and sex work. Both topics are considered “hot” from the point of view of journalists and there is no doubt that a serious public discussion in this area awaits us in the coming months.

Unfortunately, the topic of decriminalization of HIV today is far from the focus of media attention. The draft amendments to the Legislation in this area was submitted for discussion to state bodies by human rights defenders at the beginning of 2017, but either because of the catastrophic stigmatization of the topic, or because of the total disinterest of officials in solving the problem, it is still “under the cloth” .

About why article 130 part 1 of the Criminal Code of Ukraine is so bad, how much the idea of ​​HIV transmission has changed over the past 30 years, and what do we need to do to remove the label “Potential Criminal” from tens of thousands of Ukrainians, we are talking with the chairman of the board of the Eurasian Women’s AIDS Network Svetlana Moroz.

Svetlana, I know that you have a lot of experience in protecting the rights of people living with HIV and you often represent Ukraine at international conferences on this topic. Is it true that the criminalization of HIV is a common place in the Criminal Codes of countries with different ideologies?

According to the HIV Justice Network and the Global Commission on HIV and Legislation, as of July 2018, 68 countries criminalize not reporting an HIV diagnosis, putting people at risk of transmission and transmitting HIV, and HIV-positive status can be considered aggravating and punishment of circumstance.

There is also information about prosecutions for HIV-positive status in 69 countries. The leaders in the number of criminal cases related to HIV are Belarus, Canada, Russia and the USA. Yes, in that order.

But, on the other hand, for the period 2012-2018. In several countries, such as Venezuela, Ghana, Greece, Honduras, Zimbabwe, Kenya, Malawi, Mongolia, Tajikistan, Switzerland, and two US states, laws criminalizing HIV transmission have been repealed. And this is also a fact.

What damage does HIV criminalization do in real life?

The criminalization of HIV is the application of existing criminal or other laws to people living with HIV (PLHIV) who establish responsibility for putting them at risk of infection and becoming infected with HIV.

Excessive use of laws that criminalize PLHIV is a public health problem, as it discredits evidence-based strategies for HIV prevention, treatment, care and support for PLHIV, and ignores scientific advances related to the risk of HIV transmission. Criminalization reinforces the stigma associated with HIV status and identifies HIV-positive people as potential criminals, which in turn further increases discrimination.

Thus, the fear of prosecution can deter many people living with HIV, in particular women and members of key groups (people who use drugs, sex workers, migrants, men who have sex with men and people from sex) from receiving the necessary treatment and support, prevents information disclosure and increases the vulnerability of people living with HIV to violence.

Much less commonly discussed is how these laws affect healthcare providers. When a criminal trial was conducted in the United States over an HIV-positive patient, his doctor was called as a witness. She told how she was in a situation where she was forced to violate professional ethics, confidentiality and trust of her patient. When the prosecutor congratulated her on the fact that she helped to put the “scum” behind bars, the doctor felt devastated, because she could not help her patient and even harmed him by violating the main oath – “do no harm”.

In Russia, it is enough for an HIV-positive person to bite or scratch a policeman to get a few months on top of the main sentence. In Belarus, people living with HIV, living in families with children for a long time, receive real terms, depending on who was first registered with the doctor.

How has the perception of HIV transmission changed over the past 30 years?

Science took a big step forward. We live in an era of highly active antiretroviral therapy (ART), which has made HIV infection a chronic disease. Three critical studies have shown that the risk of transmitting the virus to HIV-positive people with sufficiently suppressed ART viral load is zero.

At the same time, taking an HIV-negative person with pre-exposure prophylaxis (PCP) as prescribed by a doctor almost always protects against HIV infection. These facts helped lawyers defend themselves against criminal prosecution on charges of transmitting HIV and putting it at risk of being brought forward from misconceptions about HIV as a “deadly weapon”.

What is the main illusion of the criminalization of HIV?

Criminal prosecution of PLHIV places the responsibility for HIV solely on them, thus creating an atmosphere of false peace for the rest of society for their health. People think their partners will warn that they have HIV under pain of criminal liability. In reality, this rarely happens, because the very dynamics of intimate contact, especially random contacts, exclude such information. As a result, people do not practice safe sex because they believe that if the partner does not report having HIV, then he is healthy and you can’t protect yourself. In many cases, the additional burden of possible criminal responsibility for concealing HIV-positive status only exacerbates the problems, making it difficult to talk openly about HIV in building relationships, in the work community and in the family.

Criminalization creates an atmosphere of false state effectiveness: it is being eliminated from the implementation of effective HIV information and prevention programs.

When my organization began working in prisons in the Donetsk region in 2005, I listened with horror and indignation to the stories of social workers about how HIV + men who did not infect their wives and to whom their spouses had no complaints were serving their sentences. My colleague from Kharkov received a suspended sentence only because she was pregnant (a mitigating factor), otherwise, she would have been in prison for not informing the nurse about her HIV status.

What is the main goal of your advocacy campaign for decriminalizing HIV?

The maximum program is to remove HIV infection from criminal law and use general legislation, for example, causing harm to health where the intent of HIV infection has been proven. Otherwise, it is a stigma built into the laws.

We will also consider as a big advance the cancellation of Part 1 of Article 130 of the Civil Code of Ukraine (Intentionally putting another person in danger of contracting the human immunodeficiency virus or other incurable infectious disease that is dangerous to human life – is punishable by arrest for up to three months or restriction of liberty for up to five years , or imprisonment for up to three years), which human rights activists and activists have been talking about for many years, but the proposed laws were lost in bureaucratic corridors back in 2016. Our country has a very progressive AIDS Law, but the Criminal Code contradicts it.

And, of course, the minimum program – in our country, where laws are still in place that criminalize the transmission of HIV, the courts must, in accordance with the standards of the criminal process, require evidence of intent to transmit HIV. It is impossible to presume or justify the existence of intent by circumstances such as knowledge and / or non-reporting by the accused of their HIV-positive status, participation in unprotected sex, having a baby without taking measures to prevent mother-to-child transmission of HIV, or sharing injecting drug use equipment .

It should be noted that people living with HIV suffer from multiple criminalization, since many of them belong to marginalized groups – people who use drugs and have sex work. They are being persecuted for possession of drugs for personal use and for engaging in sex work. This, of course, is a separate big problem, worthy of increased attention of human rights defenders of Ukraine.

Interview conducted by:  Sergey Myasoedov (Ukrainian Helsinki Human Rights Union)


Криминализация ВИЧ создает атмосферу ложной эффективности работы государства

Глобальные изменения в украинском политикуме весной-летом 2019 года породили новую волну «больших ожиданий» гражданского общества применительно к изменениям в сфере законодательства. В итоге, наряду с призывами немедленно наказать всех коррупционеров и реструктурировать отечественную экономику, в СМИ за последние пол-года в обиход вошло понятие «декриминализация».

Наиболее известными на сегодня являются общественные кампании по декриминализации медицинской конопли и секс-работы. Обе темы считаются «горячими» с точки зрения журналистов и несомненно, что в ближайшие месяцы нас ожидает серьезная общественная дискуссия в этой сфере.

К сожалению, тема декриминализации ВИЧ на сегодня далека от фокуса внимания СМИ. Проект изменений Законодательства в этой сфере был передан правозащитниками на обсуждение в гос органы еще в начале 2017 года, но, то ли в силу катастрофической стигматизированности темы, то ли в силу тотальной незаинтересованности чиновников в решении проблемы, он до сих пор находится «под сукном».

О том, почему статья 130 часть 1-я УК Украины так плоха, насколько изменились представления о передаче ВИЧ за последние 30 лет, и что же нам нужно сделать, чтобы убрать с десятков тысяч украинцев ярлык «Потенциальный преступник» беседуем с председательницей правления Евразийской Женской Сети по СПИДу Светланой Мороз.

Светлана я знаю, что у вас очень большой опыт работы по защите прав людей, живущих с ВИЧ и вы часто представляете Украину на международных конференциях по данной тематике. Правда ли, что криминализация ВИЧ является общим местом в Уголовных Кодексах стран с различной идеологией?

Согласно данным HIV Justice Network и Глобальной комиссии по ВИЧ и Законодательству по состоянию на июль 2018 года, в 68 странах предусмотрена уголовная ответственность за несообщение диагноза ВИЧ, поставление в опасность инфицирования и передачу ВИЧ, а ВИЧ-положительный статус может рассматриваться в качестве отягчающего ответственность и наказание обстоятельства.

Также имеется информация о случаях уголовного преследования в связи с ВИЧ-положительным статусом в 69 странах. Лидерами по количеству уголовных дел, связанных с ВИЧ, являются Беларусь, Канада, Россия и США. Да, в такой последовательности.

Но, с другой стороны, за период 2012-2018 гг. в ряде стран, например, в Венесуэле, Гане, Греции, Гондурасе, Зимбабве, Кении, Малави, Монголии, Таджикистане, Швейцарии и двух штатах США, были отменены законы, предусматривающие уголовную ответственность за передачу ВИЧ. И это тоже факт.

Какой ущерб наносит людям криминализация ВИЧ в реальной жизни?

Криминализация ВИЧ – это применение существующих уголовных или других законов в отношении людей, живущих с ВИЧ (ЛЖВ), устанавливающих ответственность за постановку в опасность заражения и заражение ВИЧ-инфекцией.

Чрезмерное использование законов, которые криминализуют ЛЖВ, является проблемой общественного здравоохранения, поскольку дискредитирует основанные на фактических данных стратегии в отношении профилактики ВИЧ-инфекции, а также лечения, ухода и поддержки ЛЖВ, и игнорирует научные достижения, связанные с риском передачи ВИЧ-инфекции. Криминализация усиливает стигму, связанную с ВИЧ-статусом, и идентифицирует ВИЧ-положительных людей, как потенциальных преступников, что, в свою очередь, еще больше повышает дискриминацию.

Таким образом, страх перед судебным преследованием может удерживать многих людей, живущих с ВИЧ, в частности женщин и представителей ключевых групп (люди, употребляющие наркотики, секс работницы_ки, мигранты, мужчины, имеющие секс с мужчинами и транслюди) от получения необходимого лечения и поддержки, препятствует раскрытию информации и повышает уязвимость людей, живущих с ВИЧ, к насилию.

Намного реже обсуждается то, как эти законы влияют на медицинских работников. Когда в США шел уголовный процесс над ВИЧ-положительным пациентом, в качестве свидетеля была вызвана его врач. Она рассказала, как оказалась в ситуации, когда была вынуждена нарушить и профессиональную этику, конфиденциальность и доверие своего пациента. Когда прокурор поздравил ее с тем, что она помогла отправить за решетку «подонка», врач почувствовала себя опустошенной, поскольку она не смогла помочь своему пациенту и даже навредила ему, чем преступила главную клятву – «не навреди».

В России достаточно ВИЧ-положительному человеку укусить или поцарапать полицейского, чтобы получить несколько месяцев сверху к основному приговору. В Беларуси люди, живущие с ВИЧ, долгое время прожившие в семьях, имеющие детей, получают реальные сроки, в зависимости от того, кто первый был поставлен на учет к врачу.

Как изменилось представление о передаче ВИЧ за последние 30 лет?

Наука сильно шагнула вперед. Мы живем в эпоху высоко активной антиретровирусной терапии (АРТ), которая сделала ВИЧ-инфекцию хроническим заболеванием. Три важнейших исследования доказали, что риск передачи вируса ВИЧ-положительными людьми с достаточно подавленной АРТ вирусной нагрузкой равен нулю.

В то же время, прием ВИЧ-отрицательным человеком доконтактной профилактики (ДКП) в соответствии с предписаниями врача почти всегда защищает от инфицирования ВИЧ. Эти факты помогли юристам в защите от уголовного преследования по обвинениям в передаче ВИЧ и поставлении в опасность инфицирования, предъявленным из неверных представлений о ВИЧ как о «смертельном оружии».

В чем состоит главная иллюзия криминализации ВИЧ?

Уголовное преследование ЛЖВ перекладывает ответственность за ВИЧ исключительно на них, создавая таким образом атмосферу ложного спокойствия остальных членов общества за свое здоровье. Люди думают, что под страхом уголовной ответственности их партнеры предупредят, что у них ВИЧ. В реальности это происходит редко, потому что сама динамика интимного контакта, особенно случайных контактов, исключает подобное информирование. В итоге люди не практикуют защищенный секс, потому что считают, если партнер не сообщил о наличии у него ВИЧ, значит он здоров и можно не предохраняться. Во многих случаях дополнительное бремя возможной уголовной ответственности за сокрытие ВИЧ-положительного статуса только усиливает проблемы, мешая открыто говорить о ВИЧ при установлении отношений, в рабочем коллективе и семье. В результате общество не защищено существующим уголовным законодательством в отношении ЛЖВ от ВИЧ-инфекции, а даже наоборот.

Криминализация создает атмосферу ложной эффективности работы государства: оно устраняется от реализации эффективных программ информирования и профилактики ВИЧ.

Когда моя организация начинала работать в местах лишения свободы в Донецкой области в 2005 году, я с ужасом и негодованием слушала истории соцработников о том, как отбывают свои сроки ВИЧ+ мужчины, которые не инфицировали своих жен и к которым их супруги не имели никаких претензий. Моя коллега из Харькова получила условный срок, только потому что была беременная (смягчающий фактор), иначе, сидела бы в тюрьме за то, что не сообщила медсестре о своем ВИЧ-статусе.

Какова основная цель вашей правозащитной деятельности в связи с кампанией по декриминализации ВИЧ?

Программа максимум – убрать ВИЧ-инфекцию из криминального законодательства и использовать общее законодательство, например, причинение вреда здоровью там, где доказан умысел инфицирования ВИЧ. Иначе, это встроенная в законы стигма.

Большим продвижением мы также посчитаем отмену части 1 статьи 130 КК Украины (Заведомое поставление другого лица в опасность заражения вирусом иммунодефицита человека либо иной неизлечимой инфекционной болезни, опасной для жизни человека, – наказывается арестом на срок до трех месяцев или ограничением свободы на срок до пяти лет, или лишением свободы на срок до трех лет), о которой правозащитники и активисты говорят много лет, но предложенные законы потерялись в бюрократических коридорах еще в 2016 году. В нашей стране существует очень прогрессивный Закон о СПИДе, но Криминальный Кодекс ему противоречит.

И, конечно, программа минимум – в нашей стране, где все еще действуют законы, предусматривающие уголовную ответственность за передачу ВИЧ, суды должны в соответствии со стандартами уголовного процесса требовать доказательства о наличии умысла передачи ВИЧ. Нельзя предполагать или обосновывать наличие умысла такими обстоятельствами, как знание и/или несообщение обвиняемым своего ВИЧ-положительного статуса, участие в незащищенном половом контакте, рождение ребенка без принятия мер по профилактике передачи ВИЧ от матери к ребенку, либо совместное использование инструментария для инъекционного употребления наркотиков.

Тут нужно отметить, что люди, живущие с ВИЧ, страдают от множественной криминализации, поскольку многие из них принадлежат к маргинализированным группам – к людям, употребляющим наркотики и занимающимся секс-работой. Их преследуют за хранение наркотиков с целью личного употребления и за занятие секс-работой. Это конечно же отдельная большая проблема, достойная повышенного внимания правозащитников Украины.

Интервью  вёл: Сергей Мясоедов (Украинский Хельсинкский союз по правам человека)

US: Rep. Tracy McCreery plans to file new bill again next year to change Missouri’s HIV criminalisation statute

Next Steps: ‘Decriminalizing’ HIV in Missouri

As elected officials vacate Jefferson City and return to their families and jobs, The Missouri Times is bringing you updates on big initiatives that didn’t quite make it through before May 17. The “Next Steps” series will showcase progress made on certain legislative issues and a look ahead to what could come.


Missouri’s statute regarding people living with HIV do not reflect “current reality,” according to lawmakers and advocates working to “decriminalize” the disease. 

Missouri statute mandates an individual who is knowingly infected with HIV not act in a “reckless” way that could expose another person to the disease without his or her knowledge or consent. Violating the statute could result in a Class A or B felony, depending on if another individual contracted HIV. 

The way the statute is written deters people from finding out his or her status and seeking appropriate treatment, advocates say. The statute also suggests an HIV diagnosis is equivalent to a death sentence — but with modern science and medicine, that’s not necessarily the case.  

“We need to make sure our laws reflect our current reality,” Rep. Tracy McCreery, a Democrat from the St. Louis area, told The MIssouri Times. “Now, people who are living with HIV live very full, healthy lives. We feel like the statutes need to be updated to be medically accurate so prosecutors have tools to use at their disposal that reflect the current reality of that disease.” 

Both McCreery and GOP Rep. Holly Rehder filed bills in the 2019 legislative session that would have changed the state’s statute regarding people with HIV to base prosecution more on an “intent” basis. Although their bills had minor differences, McCreery said the fact both women filed and supported the legislation is indicative that the need for change is bipartisan. 

What happened to legislative efforts this year? 

Rehder’s HB 167 made it to the House floor where it was debated before it eventually stalled. The bill sought to tweak the criminal statute for someone who exposed another individual to HIV. It would have also ensured protections for someone who took “practical means” to prevent the transmission of the disease such as through compliance with medical treatment or the use of a condom, for some examples. 

“Right now, Missouri laws are medically inaccurate and stand as a disincentive to know your status if you have HIV, even though with proper treatment, a person’s life expectancy is almost equal to someone without the virus,” Rehder previously told The Missouri Times.

McCreery’s HB 166 made it through the House Health and Mental Health Policy Committee but did not progress further. 

Both bills would apply the law to all serious infectious or communicable diseases instead of just HIV. 

Stil, McCreery said the legislative efforts saw success — particularly from an educational standpoint as lawmakers were especially engaged in debate on the House floor before the session ended — and has set them up in a better position for the upcoming session. 

“Although we ran out of time with this session with the bill … I think we’re in a much better place starting out in January because now that we’ve had a debate on this bill on the floor, I feel like a lot more colleagues are more supportive of the legislation now and had an ‘aha’ moment on the floor when they realized current statutes were written so long ago and are not based on accurate science,” McCreery said. “I feel like that was a victory.” 

“Ultimately we’re both trying to get at the same things: We both think HIV should be decriminalized because if we do that, Missourians would be encouraged to know their status, and then they wouldn’t be facing the possibility of criminal charges by knowing their status,” she added. 

So what’s next? 

The momentum is there; they just need to capitalize on it, McCreery said of herself and Rehder for the upcoming session. She said she plans to file a similar bill again next year and doesn’t doubt Rehder will too. (Rehder did not respond to a request for comment for this story.)

“We feel we have done a great job of not only getting the conversation started, but we now believe we truly have started to break down the stigma surrounding HIV,” McCreery said. 

 

Ahead of next session, members of the nonprofit Empower Missouri plan to grow the Missouri HIV Justice Coalition as well as meet with prosecuting attorneys and lawmakers — particularly those who sit on committees that might hear the legislation. The organization is also seeking a Senate sponsor for the legislation in the coming session. 

“What we have does not work, and it’s important that we change it,” Jeanette Mott Oxford, executive director of Empower Missouri, told The Missouri Times. 

Oxford maintained there is still a stigma surrounding HIV that has fueled laws like the one currently on the books in Missouri. 

“There are certain things where the public perception works against good public policy, and this is one of those areas where our current law actually rewards ignorance,” Oxford said. “We want to create a world in which everybody is anxious to know their status, will go be tested, and trust that the public health officials won’t go help prosecute them.” 

‘Show-Me’ statistics

More than 12,000 people in Missouri are living with HIV, according to data from AIDSVu, a product of Emory University’s Rollins School of Public Health. Caldwell, Jackson, and Mississippi Counties reported the most number of cases per 100,000 people in 2016. 

It affects mostly men and minorities in Missouri: More than 46 percent of people living with HIV in Missouri in 2016 are Hispanic or Latinx, nearly 44 percent are black, and more than 5 percent are white. Additionally, more than 82 percent of people living with HIV in Missouri are men. 

The Centers for Disease Control and Prevention (CDC) designated Missouri as one of seven states with a “substantial rural burden” for people living with HIV. Within the state, the nation’s health protection agency flagged more than a dozen counties considered vulnerable or at-risk for outbreaks: Bates, Cedar, Crawford, Hickory, Iron, Madison, Ozark, Reynolds, Ripley, St. Francois, Washington, Wayne, and Wright. 

Kaitlyn Schallhorn is a reporter with The Missouri Times. She joined the newspaper in March 2019 after working as a reporter for Fox News in New York City. Throughout her career, Kaitlyn has covered political campaigns across the U.S. and humanitarian aid efforts in Africa. She is a native of Missouri who studied journalism at Winthrop University in South Carolina. Contact Kaitlyn at kaitlyn@themissouritimes.com.

Jamaica: “Criminalisation related to HIV is a seductive distraction from what we really should be focusing on”

Is Criminalising HIV Helpful?

According to the 2017 Knowledge, Attitudes and Behaviour Survey by Jamaica’s Ministry of Health, one out of every five persons with multiple sexual partners never used a condom the last 10 times they had sex.

Fortunately, due to certain features of HIV and of our immune system, HIV does not always get transmitted every time someone is exposed. According to a top scientific journal, there is a one in 300 chance of the virus being passed from a man with HIV to a woman during sex. The overall risk goes up with each additional sexual act. The possibility exists that infection can occur the first time you have sex. The risk increases in certain situations, including the presence of sexually transmitted infections like syphilis and the time period just after becoming infected.

Avoiding HIV testing, some persons wrongly presume themselves to be infected based on the possibility that they had been exposed, or they wrongly presume themselves to be negative if a partner tests negative. No public-health initiative, indeed no law, obviates the importance of individuals taking responsibility for their health, embracing their right to pleasurable sex, yes, and empowered to seek out accurate information, getting tested regularly, and using protection.

Because we have become so accustomed to all the things that are wrong with our health system and legal system, we assume a state of powerlessness and thereby continue to embrace the status quo. Unfortunately, the set-up of some clinics is such that your diagnosis is made obvious by virtue of walking into a particular room.

The absence of anti-discrimination laws contributes to unfair treatment of persons living with HIV who are pressured out of their jobs, with a downhill spiral of their economic and health status. There is increasing access to redress for those who experience discrimination, and stigma from healthcare workers may be decreasing, but not nearly enough. The implementation of evidence-based prevention measures is slow, and I am hard-pressed to think of anything that could justify the withholding of such measures, especially in light of the fact that HIV infections have not stopped, many persons with HIV are deterred from accessing treatment, and majority of those in care have not attained optimal health status.

Criminalisation related to HIV is a seductive distraction from what we really should be focusing on.

INTERNATIONAL PRECEDENTS

In Scotland, a 20-year old man was convicted based on similarities in the genetics of HIV in his blood sample and his wife’s sample. His wife had reportedly contracted HIV from him during sexual intercourse in the two to three months right after he had become infected during a prior incarceration. The risk of transmitting HIV is 30 times greater in the first few weeks of becoming newly infected due to the large amount of HIV circulating in the body before the immune system manages to get a temporary hold on this new germ.

In Canada, a man was convicted under existing laws, charged with assault with a deadly weapon, after having sex without a condom with at least two women, despite a nurse’s insistence that he should disclose his HIV status. The Crown found that under Section 268 of Canada’s Criminal Code, the man’s sexual partners’ lives had been endangered, and no transmission needed to have actually occurred.

More than 60 countries have had prosecutions related to exposure, non-disclosure or transmission of HIV. One-half of these countries have done so under pre-existing laws, the others under specific legislation related to HIV. Adequate protection and remedies can be found in existing criminal laws, and the stigma of HIV-specific criminalisation can be avoided.

PUBLIC HEALTH AND THE LAW

Jamaica’s Joint Select Committee to review the Sexual Offences Act recommended that the law “should be amended to make it a criminal offence for someone to wilfully or recklessly infect a partner.” Concerns have been voiced as to whether criminalising HIV transmission will discourage persons from knowing their status.

According to researchers at the University of Edinburgh, a 25 per cent drop in HIV testing could result in a 50 per cent increase in HIV infections. Persons may be deterred from testing as they may believe that not knowing their status means that they are not at risk of being charged under the proposed law.

Although testing may be available virtually everywhere, stigma and privacy concerns are serious impediments to HIV testing being truly universally accessible.

During discussions, it is not always clear what exactly it is being proposed should be criminalised. What is the evidence to be relied on to prove that transmission occurred from person A to person B? Techniques for proving transmission from one person to another still require standardisation, are costly, and not widely available.

SCIENCE AND THE LAW

Another concern is whether a laboratory could be served a warrant, demanding that it hand over blood samples from patients. It may be possible to deduce ‘clusters’ of individuals linked by similarities in the genetic make-up of the HIV virus. Based on such clusters, individuals could become stigmatised based on assumptions that they belong to a particular social sexual network, for example, sex work or intravenous drug use, be it true or not. Information about the genetic make-up of a human being can be deduced based on unique ‘footprints’ left on the virus by an individual’s immune system.

Currently, this may seem like innocuous information, but if a particular genetic feature is subsequently found to be linked to one’s risk for cancer or lifespan, for example, one can imagine this information being (mis)used to influence insurance premiums or reproductive decisions.

Further, there is scientific proof that HIV is not transmitted from someone living with HIV who sticks to their antiretroviral medications resulting in totally suppressed HIV virus to the point where it is undetectable in the blood and semen and other body fluids.

The World Health Organization has adopted this as an important strategy in stopping the HIV epidemic. There remains room for improvement in raising awareness of these positive developments among patients, clinicians, and advocates, not to mention lawmakers.

Discussions about criminalisation of HIV can easily fall trap to fearmongering. A fundamental question is whether such legislation is helpful or would pose a hindrance to getting the thousands of Jamaicans who do not know their status to test and to retaining those who are receiving care.

[The views expressed are my own, and not necessarily those of any affiliate past or present.]

Dr White is medical director at Para Caribe Consulting Medical Doctors. Email feedback to yourhealth@gleanerjm.com and yohann.white@caribewellness.com; Social Media: @CaribeWellness.

South Africa: Constitutional Court Justice, Edwin Cameron, calls on countries to tackle discriminatory laws if they want to reach Sustainable Development Goals 16

Justice Cameron calls for banishing of discriminatory laws worldwide

Retiring Constitutional Court Justice, Edwin Cameron, has called on countries around the world to tackle discriminatory laws within their criminal justice systems as a means to fully embrace the prescripts of Sustainable Development Goal 16 (SDG16 ).

SDG16 calls for advances in ending violence, promoting the rule of law, strengthening institutions and increasing access to justice for all.

Cameron was among the keynote speakers at the 2019 United Nations High Level Political Forum on Sustainable Development in New York and pointed to the degradation of institutions in his own country as a case in point.

The forum is being held under the theme  “empowering people and ensuring inclusiveness and equality”.

But it’s an assessment of the role criminal law plays in excluding people from society that is of most concern to Cameron who sits on South Africa’s apex court.

“Discriminatory criminal laws that target people based on their sexual orientation, I speak with personal knowledge of that as a proudly and openly gay man, gender identity, drug use or those that criminalise sex work or adolescents exploring their sexuality with each other – an issue on which the Court on which I sit, a few years ago struck down a criminal prohibition on youngsters under 16 having sexually exploratory contact with each other. Or women making reproductive health decisions – all these laws do leave people behind but they do more than that. They actively push them down and back, they are an unjust, irrational targeting and persecution of people through the criminal law.”

He explained that criminal law was being misused and distorted to target certain groups disproportionately – among them people who use drugs, people who offer sexual services for reward, men who have sex with men, women seeking reproductive services and people living with HIV among others.

SABC News team asked him how he viewed South Africa’s implementation of the targets contained in SDG16.

“What I can say is the degradation of independent intuitions in our country over the last 9 years undoubtedly affected law enforcement, we have degradation of crime intelligence, degradation of the independent prosecuting authority, degradation of the police at the top ranks – it enfeebled and affected law enforcement throughout. What we do know as judges and law enforcement officials is that abstract policies, grand visions, laws – we’ve got lots of those in South Africa. If there’s an issue, we in SA have known over the last 25 years of democracy how to throw laws and policies at it. What we need in SA is application.”

On the question of ending violent crime, particularly in the South African context, he warned that harsher sentences were not the answer.

“We know that harsh sentences do not deter crime, what does deter crime is the certainty of detection, arraignment and prosecution. It’s not high sentences. So if we in South Africa can get our law enforcement agencies, crime intelligence agencies, CID agencies back operating again – I do believe we can because we have a president who’s committed to social justice, a president who is committed to a functioning disinterested bureaucracy and government services. I believe we can reduce crime and I think it’s a practicable result but of course it takes a lot of institutional work, there’s no magical answer but it can be done with a lot of hard work from all of us.”

Cameron will step down from the Constitutional Court on August 20th – exactly 25 years after his appointment to the bench by former President Nelson Mandela in 1994.

US: Michael Johnson’s release has reignated calls to overhaul HIV exposure laws.

He Emerged From Prison a Potent Symbol of H.I.V. Criminalization

Last week, Michael L. Johnson, a former college wrestler convicted of failing to disclose to sexual partners that he was H.I.V. positive in a racially charged case that reignited calls to re-examine laws that criminalize H.I.V. exposure, walked out of the Boonville Correctional Center in Missouri 25 years earlier than expected.

Mr. Johnson, 27, was released on parole on Tuesday after an appeals court found that his 2015 trial was “fundamentally unfair.” His original sentence was longer than the state average for second-degree murder.

Reached by phone two days after his release, Mr. Johnson said he was rediscovering freedom through convenience store snacks, cartoons and his cellphone.

“I’m feeling really, really good,” he said.

But there were periods when he felt intimidated by people who did not believe he had a right to stand up for himself, he added.

His case, which encompasses a half-dozen years of court appearances, unflattering headlines and stints in solitary confinement, has galvanized advocates working to update laws that they say further stigmatize and unfairly penalize people with H.I.V.

Mr. Johnson, who was a black, gay athlete at Lindenwood University in St. Charles, Mo., has become a public face of people who are disproportionately affected by the virus and entangled in the criminal justice system. (If current trends continue, about half of all black men who have sex with men in the United States will eventually learn they have H.I.V., according to the Centers for Disease Control and Prevention.)

Mr. Johnson’s legal troubles began in 2013, when he was arrested after a white man he had had consensual sex with told the police he believed that Mr. Johnson had given him the virus.

Five other men, three of them white, would later testify that Mr. Johnson had not only failed to disclose his H.I.V. status before engaging in consensual sex, but had willfully lied about it.

Mr. Johnson has publicly maintained that he informed all six men he was H.I.V. positive before having sex without a condom.

After a weeklong trial in 2015 in St. Charles County, a conservative, predominantly white area northwest of St. Louis, Mr. Johnson was convicted on multiple felony counts, including recklessly infecting another with H.I.V., which carries a 10-year minimum sentence.

The jury sought the maximum penalty of 60½ years even though prosecutors offered no genetic evidence that Mr. Johnson had infected any of his partners, according to BuzzFeed News.

The judge ultimately sentenced him to 30 years in prison.

Today, some of the people who put him in prison say the sentencing and parts of the prosecution were mishandled.

“We’re still operating under laws that were based on views that are outdated and are proven inaccurate by science,” said Tim Lohmar, the St. Charles County prosecuting attorney, whose office’s handling of the trial has been criticized.

Missouri is one of about 34 states with laws that make it a crime to expose another person to the virus without disclosure or add additional penalties for people with H.I.V. who are convicted of separate offenses, such as sex work, according to the nonprofit Center for H.I.V. Law and Policy. In six states, a person may be required to register as a sex offender if convicted of an H.I.V.-related crime.

Many of these laws were written in the 1980s and 1990s under a fog of fear about the virus and how it was transmitted, and before the advent of effective treatments. In those years, Magic Johnson’s sweat on the basketball court and Greg Louganis’s blood on a diving board panicked fans and teammates. Parents pulled children from school in 1985 because an H.I.V.-positive boy with hemophilia was in their seventh-grade class.

Back then, an H.I.V. diagnosis meant debilitating symptoms and almost certain death.

For the last five years, Steven Thrasher, a journalism professor at Northwestern University, has chronicled Michael L. Johnson’s case for BuzzFeed News and recently completed his doctoral dissertation on race and H.I.V. criminalization.

Dr. Thrasher, who greeted Mr. Johnson outside the correctional facility on Tuesday, said he was first drawn to the case because of its parallels with the history of black sexuality and lynching.

“Black men would just get lynched anytime they had sex with white women in the Reconstruction period,” he said. “There was no consensual sex that could be had between white women and black men.”

Mr. Johnson’s wrestler’s body — he called himself “Tiger Mandingo” online — was a source of fascination for some of his partners. But when Mr. Johnson tested positive for H.I.V., Dr. Thrasher wrote, he became “the perfect scapegoat.”

“It was not that he had no agency or responsibility in the story,” Dr. Thrasher said on Thursday, but “he was really holding all of this anxiety and all of this worry about AIDS and stigma and H.I.V. and queerness in America all on his shoulders.”

Mr. Lohmar, the St. Charles County prosecutor, said on Thursday that “nothing about the trial was unfair,” except for his team’s failure to present certain evidence to the defense in time.

Because prosecutors did not disclose some evidence to the defense until the morning of the trial — recorded phone conversations Mr. Johnson made while in the county jail — an appeals court decided to overturn the conviction 17 months after the original sentencing.

Instead of a new trial, Mr. Johnson, who previously had a clean criminal record, accepted a plea deal in which he did not admit guilt but agreed to a 10-year sentence.

Eric M. Selig, the lawyer who negotiated on Mr. Johnson’s behalf, said the original sentence was disproportionate to the crime.

“We don’t charge people with other incurable diseases, like hepatitis, with a criminal offense for exposing others,” he said.

During his incarceration, Mr. Johnson wrote thank-you notes to friends and strangers who had written to him in support, which he said helped him deal with homophobia in prison and self-doubt.

“You lose your confidence,” he said. “I kept every single letter.”

In theory, H.I.V. exposure laws are meant to encourage H.I.V.-positive individuals to disclose their status before having sex, and to practice safer sex, with the ultimate goal of preventing the spread of the virus.

But there is no evidence that these laws have reduced risky behavior or encouraged disclosure, said Catherine Hanssens, the executive director of the Center for H.I.V. Law and Policy, which provided legal support for Mr. Johnson’s case.

In the eyes of the law, an H.I.V. diagnosis is conflated with malice, she added.

“These laws effectively treat an H.I.V. diagnosis itself as evidence that the person acted with bad intentions when sex or other types of physical contact are involved in a crime,” she said.

Additionally, many laws do not reflect recent treatment options that can give patients a life expectancy almost as long as the general population. A pill taken daily can almost eliminate transmission, experts say. But there remain large barriers to eradicating the virus, including the high cost of antiretroviral drugs, access issues, medical mistrust and other social barriers in poor and black communities.

While some states, like California, have reduced penalties for H.I.V. exposure, Missouri has one of the most punitive laws in the country. This year lawmakers introduced two bills into the Legislature that would have slightly reduced the penalty, but they never made it to a vote.

Mr. Lohmar said he learned of Mr. Johnson’s release after receiving a call from one of the witnesses in the trial, who was upset that he was not notified.

Mr. Johnson said he planned to return to college, learn a second language and share his story through advocacy organizations like the Ryan White Planning Council in Indiana. Younger people especially need to learn about the virus to prevent it from spreading, he said.

“You can’t do it without education.”

Alain Delaquérière contributed research.