Human rights are key to ending the epidemics

OPINION: End epidemics by breaking down human rights barriers to health

Access to healthcare is a right, not a luxury. We have an historic opportunity to rid the world of HIV, TB and malaria. Let’s seize that opportunity.

Peter Sands is the executive director of The Global Fund to Fight AIDS, Tuberculosis and Malaria and Antonio Zappulla is the chief executive of the Thomson Reuters Foundation.

Among the many challenges involved in improving health services, one is both pervasive and largely hidden. Human rights-related barriers to health, some explicit, others expressed in behaviours and norms, prevent millions of people from access to lifesaving prevention and treatment.

Think of a girl who is forced to get married at 15 and needs her husband’s permission to undergo an HIV test, or to get a bed net to protect herself and her children from malaria. Or a gay man who is beaten up by police and charged with sodomy when he secretly visits the home of a community health care worker to obtain condoms. Or a group of miners working 14 hours a day deep in a mine without ventilation and health insurance despite widespread tuberculosis.

Money alone cannot ensure and protect basic human rights for people most at risk from infectious diseases.

If the media stokes the appetite for a witch hunt against LGBT+ people or condones violence against women, how will society behave? If laws allow abuse and discrimination to be justified, how can social justice be achieved?

Stigma, ignorance, prejudice and lack of opportunities are some of the toughest road blocks to remove. But the combined power of the law and the media can make a difference.

Fair and balanced news coverage is critical in informing public opinion. Respect for human rights is essential to ensure access to health services. Combined, they become the key to unlocking systemic change.

In sub-Saharan Africa, women and girls are twice as likely to be HIV-positive compared to young men. Contributing factors include gender inequality, violence and limited access to education. Meanwhile, men who have sex with men, people who inject drugs, sex workers and transgender people often lack access to health programmes. The root cause? Social taboos, punitive laws and fear of arrest.

Framing health as a human right creates an obligation on states to ensure accessible, acceptable and affordable health care of appropriate quality. But this conception of health as a human right is not shared around the world. You have only to look, for example, at how HIV non-disclosure, exposure and transmission is still criminalized in 86 jurisdictions worldwide.

We will never end the epidemics of HIV, TB and malaria –  which killed 3 million people in 2017 alone – unless we dismantle social and human rights barriers to health services.

Everyone has a right to healthcare, encompassing dignity and respect. Not only is this a basic human right, but it is critical to fostering social stability and boosting economic growth. It is predicted that drug-resistant TB will cost the global economy approximately US$17 trillion by 2050 if progress is not made fast enough.

The Global Fund and the Thomson Reuters Foundation are joining forces to combine the power of an international health financing organization with global media and legal expertise, to help break down barriers to health services.

Each year, the Global Fund mobilizes and invests more than US$4 billion to support health programs run by local experts in more than 100 countries. Through its “Breaking Down Barriers” Initiative, the Global Fund is working with countries to reduce human rights-related barriers to health services: to ensure that everybody, including the most marginalized, also have access to prevention, treatment and care services; to see that health care workers are trained not to discriminate against, turn away, or fear people living with HIV or TB; to ensure that police are sensitized to support LGBT people to access prevention and treatment, rather than subject them to extortion, arbitrary arrest and violence; and to inform women, girls and others most affected by disease and violence about their rights and access to legal support. In the last three years, over US$120 million have gone to these and other programs to reduce stigma and discrimination and increase access to justice, an unprecedented investment in human rights as a critical component of our efforts to end HIV, TB, and malaria.

But more needs to be done. In its new partnership with the Global Fund, the Thomson Reuters Foundation will facilitate legal services and support for civil society partners in key countries, including development of “know your rights” training, capacity-building for health practitioners, services providers and their clients, plus guidance for NGOs and civil society groups working in challenging social contexts. The Thomson Reuters Foundation will also train journalists on human rights and health issues, and support awareness-raising on human rights-related barriers to health. Our hope is that by combining forces, we can achieve real impact.

Access to healthcare is a right, not a luxury. We have an historic opportunity to rid the world of HIV, TB and malaria. Let’s seize that opportunity.

On Human Rights Day, please endorse the EECA Statement against HIV Criminalization

Today, December 10, 2019, Human Rights Day, National and Regional Networks and Civil Society Organizations on HIV Criminalization in the EECA Region are asking you to support the movement against HIV criminalization by endorsing the following Statement.

Download a pdf of the Statement in English or Russian.

Endorse the Statement in English here.  EПодпишите заявление на русском языке здесь.

On November 25-26, 2019, the “Decriminalization of HIV transmission in the EECA region: the role of civil society and advocacy tools” meeting was held in Minsk, Belarus, by the Eurasian Women’s Network on AIDS (EWNA), the Global Network of People Living with HIV (GNP+) and CO “100 PERCENT LIFE”. Activists representing national, regional and international networks discussed the current situation with HIV criminalization in the EECA region and options available to strengthen the movement in order to counter that HIV criminalization in the EECA region.

HIV criminalization is a global issue that undermines human rights and impedes the development of public health and, as a result, weakens the efforts to eradicate the HIV epidemic. An analysis of recent HIV criminalization cases shows that they do not reflect the demographics of local epidemics, and the likelihood of persecution is compounded by discrimination against marginalized groups on the basic of drug use, ethnicity, gender identity, immigration status, sex work and sexuality.

The Global Commission on HIV and the Law, the United Nations Development Program (UNDP) and the Joint United Nations Program on AIDS (UNAIDS), among others, declare that any use of criminal law against people living with HIV should be strictly limited to exceptional cases of intentional and malicious HIV transmission to another person and only where real harm occurred. However, the law and law enforcement practice go beyond this limitation in many countries.

According to HIV Justice Worldwide, Europe and Central Asia is the region with the second highest number of laws criminalizing HIV exposure, non-disclosure and transmission. 18 of the 19 countries where such laws have been adopted are in the EECA region. Many of them allow criminal prosecution for actions that do not pose a risk of HIV or pose a low risk only. These laws do not recognize condom use or low viral load as a means of protection against prosecution. They criminalize oral sex, individual breastfeeding cases, as well as bites, scratches, bites, or spitting. Such laws were developed in the times when efficient ARV therapy was not yet available and the HIV diagnosis was equated with a death sentence. The implementation of such laws is most often informed by myths, misconceptions on HIV transmission ways, and stigma against people living with HIV and vulnerable communities.

The laws of the EECA countries criminalizing the HIV transmission vary in their severity and in specific sanctions. The Russian Federation and Belarus are global and regional leaders in terms of the number of criminal cases related to HIV6. In Uzbekistan, a person living with HIV can be prosecuted regardless of whether his/her partner wants to initiate a criminal case. In 2019, a punishment was introduced in the law in Tajikistan for those who refuse to receive HIV therapy7. In many EECA countries, the punishment for any crime involving an HIV-positive person is exacerbated by the positive HIV status.

Concerned by the fact that prosecutions are not always informed by the best available scientific and medical evidence, 20 of the world’s leading HIV scientists have presented the Expert consensus statement on the science of HIV in the context of criminal law.

The criminalization of HIV transmission is a growing human rights issue in Eastern Europe and Central Asia. This fact is also confirmed by the first regional report, prepared in 2017 using the data of the communities of women living with HIV. The study was organized and conducted by EWNA with the support of GNP+ and HIV Justice Worldwide.

The study has shown that HIV criminalization is a gender issue10. The stories and cases documented in the report and other recently conducted studies illustrate that women are more likely to be persecuted, as they are often the first to become aware of their status through regular HIV testing during pregnancy, but they are less likely to safely disclose their HIV positive status to their partner due to gender inequality in the family, economic dependence and high levels of violence. In addition, women living with HIV are less likely to receive adequate legal assistance and to have competent representation in court. In their stories, women talk about violence, threats, and blackmail associated with their HIV-positive status. The laws adopted were designed to protect women from HIV. Unfortunately, this is not the case in the reality as HIV criminalization makes women more vulnerable to violence and structural disparities. HIV criminalization increases the vulnerability of women to deprivation of parental rights, property loss, and poverty.

EECA activists make essential efforts to advocate for the decriminalization of HIV infection. Thus, the active advocacy work conducted by the community of people living with HIV pushed Belarus to adopt an important legislative amendment: the HIV-positive partner should be exempt from criminal liability if he or she has timely warned the HIV-negative partner about HIV and the latter has voluntarily agreed to take actions, which created a risk of infection. However this step alone is not sufficient to solve the issue of HIV criminalization.

We call attention of the EECA countries to the fact that in a society with low stigma and discrimination, people are more likely to be voluntarily tested for HIV and, learning about their status, begin ARV treatment.

We urge communities of people living with HIV and other criminalized and marginalized communities, in particular sex workers, LGBT people, people who use drugs, to unite and take a consolidated position to counter HIV criminalization, presenting a united front against HIV stigma and discrimination embedded in the law.

We urge governments and parliamentarians to use general law to prevent HIV transmission in the harm to health context and, instead of applying criminal law in any cases other than actual infection transmission by malicious intent, take steps to encourage people to be tested, take ARV treatment, communicate their HIV status and have safe sex without fear of stigma, discrimination and violence. This can be achieved by adopting and applying anti-discrimination laws and organizing public information campaigns to dispel myths about HIV, as such campaigns are evidence-based and are led by people living with HIV.

We urge prosecution agencies and prosecutors, to use scientific evidence and evidence-based medicine, in particular the evidence included in the Expert consensus statement on the science of HIV in the context of criminal law, in pre-trial and trial proceedings, in order to limit or prevent abuse of criminal prosecution in cases of allegations of HIV transmission or exposure or in cases of non-disclosure of HIV status.

We urge the media to stop demonizing people living with HIV, presenting us as criminals and as sources of infection. We request the media to consider HIV related issues from the perspective of human rights and use facts and evidence-based medicine while covering such issues.

We encourage donors to invest in communities and advocates opposing HIV criminalization, which undermines human rights and public health.

HIV JUSTICE WORLDWIDE fully supports HIV2020; no Beyond Blame at AIDS 2020

The nine organisations comprising the HIV JUSTICE WORLDWIDE Steering Committee have today (September 18, 2019) announced that they have unanimously agreed to support HIV2020, the international meeting that will take place in Mexico City between July 5-7, 2020.  

HIV2020, which is being led by people living with HIV (PLHIV) and other key populations, will be an alternative meeting for individuals who are unable to enter the United States or unwilling to attend the International AIDS Society’s conference in San Francisco next year.

HIV JUSTICE WORLDWIDE is a coalition of global, regional and national PLHIV networks and human rights defenders that campaigns to end HIV-related criminalisation.

Last week, two HIV JUSTICE WORLDWIDE Steering Committee members, the Global Network of People Living with HIV (GNP+) and the International Community of Women Living with HIV (ICW), issued a joint endorsement for this community-led event.

“We know that it was not an easy decision for GNP+ and ICW, the only two global networks of people with HIV, to lend their support to an alternative conference rather than the San Francisco conference,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network which serves as the secretariat for HIV JUSTICE WORLDWIDE.

“GNP+ and ICW have partnered with the International AIDS Society (IAS) for years to ensure that the voices of those most affected by policies and research are at the tables where decisions are made. However, it has become increasingly clear that not only does the IAS not view key population groups as equal partners, but also that entering the United States at this time poses grave danger to our communities.

“As a global coalition working to end HIV-related criminalisation, we are choosing not to place our communities, who are at particular risk for surveillance, policing, and violence, in harm’s way. As a consequence, Beyond Blame, our biennial pre-conference usually held prior to IAS international conferences will not take place in San Francisco, but instead will be incorporated into the HIV2020 programme in Mexico City.”

Beyond Blame: Challenging HIV Criminalisation is HIV JUSTICE WORLDWIDE’s flagship meeting for activists, advocates, judges, lawyers, scientists, healthcare professionals and researchers working to end HIV criminalisation. Previous meetings were held in Melbourne (2014), Durban (2016), and Amsterdam (2018).

In Amsterdam, more than 150 attendees from 33 countries attended the one-day meeting. Participation was extended to a global audience through livestreaming of the meeting on the HIV JUSTICE WORLDWIDE YouTube Channel.

Registration for HIV2020 in Mexico City will start on September 23, 2019. Please visit www.hiv2020.org for more information.

We are proud to be joining with others who have issued HIV2020 solidaridy statements in recent days:

ABOUT HIV JUSTICE WORLDWIDE

HIV JUSTICE WORLDWIDE aims to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV positive status. We are working to shape the discourse on HIV criminalisation and to share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration. This work is based on an understanding that:

  • HIV criminalisation is discriminatory, a violation of human rights, undermines public health, and is detrimental to individual health and well-being;
  • HIV criminalisation is part of a larger problem of scapegoating, targeting, harassing and policing of vulnerable and marginalised communities;
  • efforts to end HIV criminalisation should be led by those most affected, including people living with HIV and organisations, networks, and institutions led by people living with HIV and/or those most impacted by these laws and prosecutions;
  • the knowledge and perspectives of those most impacted by an issue should be central to the decision-making processes; and
  • regional differences matter, and we respect local knowledge and local leadership.

The HIV JUSTICE WORLDWIDE Steering Committee currently comprises:

In June 2017, HIV JUSTICE WORLDWIDE invited organisations from around the world who share our values and principles to join the movement. Today, more than 100 organisations have joined the vibrant global community of advocates fighting to abolish HIV-related criminalisation.

HIV JUSTICE WORLDWIDE is supported by a grant from the Robert Carr Fund for civil society networks

RCF new logo colour adjusted

US: It’s time Ohio’s laws reflected our new understanding of the science of HIV

Ohio’s HIV laws should be based on science, not hysteria

Even if you weren’t a fan of the National Basketball Association in 1991, you probably remember the day in November that Earvin “Magic” Johnson, the dazzling point-guard of the Los Angeles Lakers announced he was retiring from the game after testing HIV-positive. How many more years did you give Magic? Three, four, maybe five?

Over the last 28 years, we’ve watched Magic briefly return to the NBA, coach the Lakers, announce NBA games, host a talk show, open movie theaters and coffee shops, buy a stake in the L.A. Dodgers and serve as Lakers president.

It would have been impossible in 1991 to conceive of Magic cycling through all those career choices because we couldn’t have imagined him having the time. But now, it’s fairly common to hear of people who’ve lived for decades after a positive diagnosis.

Their longevity shouldn’t be used to minimize the seriousness of the virus. If left untreated, HIV will cause AIDS, and AIDS will kill. But the advancements in treatment and prevention are reason enough to reconsider some of the decades-old laws that were drafted to punish people who sleep with others without informing them that they’re HIV-positive. Those laws were largely based on the belief that there was nothing on the other side of an HIV diagnosis but sickness and death.

In Ohio, a person who is HIV-positive can be sentenced up to eight years in prison and made to register as a sex offender for engaging in sexual conduct without disclosing their status.

What if that person uses a condom?

It doesn’t matter.

What if the person is faithfully taking pre-exposure prophylaxis, or PReP, which, according to the Centers for Disease Control and Prevention, “reduces the risk of getting HIV from sex by about 99%”

That doesn’t matter, either.

What if long after the fact, the partner tests negative for the virus?

Not even that matters. The offense, according to the law, is not telling. The crime isn’t the transmission. The crime isn’t even the likelihood of transmission. Just the not telling. Even if the person is reasonably trusting the science that says transmitting the virus is virtually impossible.

Greg Cote told Columbus radio station WOSU last month that he has made himself into a walking billboard proclaiming that he’s HIV-positive. As a policy, everybody should be as honest as he is. Even so, Cote hasn’t been intimate with anybody, he said, because if a bitter lover claims they weren’t informed, it can be difficult for people with HIV to prove to the satisfaction of jurors that they were, indeed, honest and forthcoming about their status.

A 2004 episode of The Chappelle Show included a sketch about “The Love Contract,” which was described as a way that people engaged in casual sex could prove in court that their partners consented. As absurd as the idea of a pre-coital contract sounds, advocates for Ohio’s HIV-positive residents say that or something close to that is required for them to prove that they haven’t been dishonest with their partners.

The Ohio Health Modernization Movement advises sexually active HIV-positive people to do one of the following things: save email or text messages that indicate that a potential partner has been informed of the person’s status; take that potential partner to a doctor’s visit or a caseworker’s visit so a third-party can confirm a disclosure was made; discuss one’s status in front of a third-party who can attest that a disclosure was made; video a conversation of a disclosure or, lastly, do what Chappelle did in that comedy sketch and have a potential partner sign a document. This document would acknowledge the partner’s awareness of the positive person’s status.

The best way for a HIV-positive people to protect themselves from criminal prosecution for consensual sex is to not getting tested. After all, Ohio law doesn’t allow people who don’t know that they’re HIV-positive to be charged with not telling their partners that they are. And this, advocates say, provides a regrettable incentive for people to avoid finding out if they’re carrying the virus.

The advocates’ position lines up with the federal government’s. In a 2014 report, the Civil Rights Division of the U.S. Department of Justice cited a CDC finding that the stigma associated with an HIV diagnosis discourages many from learning their status. That DOJ report notes that “intentional HIV transmission is atypical and uncommon” and suggests that states rewrite their laws to focus on two types of offenders: HIV-positive rapists whose crimes put their victims at risk of contracting the virus and people who intend to transmit HIV through behavior that carries a “significant risk of transmission.”

Such a focus is warranted. Prosecutors shouldn’t be pursuing those who aren’t trying to infect their partners, especially those who’ve been made to believe that they can’t. The American Medical Association has called for a complete repeal of HIV criminalization laws, but the Ohio Health Modernization Movement favors changing a failure to disclose one’s status from a felony to a misdemeanor.

After retiring in 1991, Magic tried to return to the court in 1992, but many players expressed a fear of playing against him. But in 1996, Magic did return with hardly anybody objecting. Players had a better understanding, then, about how the virus is transmitted. And we have an even better understanding of things in 2019. It’s time our laws reflected that new understanding.

Jarvis DeBerry is a columnist at Cleveland.com and a member of the editorial board. Reach him at jdeberry@cleveland.com or on Twitter at @jarvisdeberry.

Kenya: Advocates argue that HIV criminalisation law is impeding progress in Kenya’s response to the epidemic

Group criticises sexual offences law in war against HIV

In Summary

  • Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.
  • But the state argues that the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights

The government could be shooting itself in the foot in the ongoing efforts to contain the spread of HIV and Aids by allowing the Director of Public Prosecutions (DPP) to arrest and commence criminal trial against those suspected of spreading the virus.

The state has been calling on the public to come out openly and seek testing and treatment.

However, recent events where the DPP wants a 42-year-old woman in Nakuru jailed for breastfeeding and infecting her neighbour’s nine-month-old baby with HIV last year, could undo the gains already made in containing the spread of the virus.

It is feared that such prosecution may discourage others from going public about their status and seeking treatment among other state interventions aimed at curbing the virus.

The law under which the woman was charged, Section 26 of the Sexual Offences Act, is also the subject of litigation at the High Court by HIV positive persons (PLWHA) who want it repealed.

The woman’s lawyer, Ms Jenifer Mugweru, is appealing the orders issued by a magistrate on October 18, requiring her to provide her blood samples to be tested for HIV.

INFORMED CONSENT

The woman who is out on a Sh50,000 bond is said to have committed the offence on September 18, 2018 at Gichobo area in Njoro Sub-County.

The HIV and Aids Prevention and Control Act (Hapca), which has been in force since 2009, provides at Section 14 that, “No person shall undertake an HIV test in respect of another person except: (a) with the informed consent of that other person.”

Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available.

“Informed consent for HIV testing means that the person being tested for HIV agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed,” the HIV and Aids Tribunal ruled in one of its decisions.

In their application challenging Section 26 of the Sexual Offences Act, and its subsections, people living with HIV and Aids argue that it could undermine government efforts to eradicate or contain HIV and Aids spread.

They have interpreted section 26 of the Sexual Offences Act to imply that a person living with the disease is a potential criminal, who needs to be prosecuted and jailed, should it be established that he or she is “spreading” HIV/Aids.

POTENTIAL CRIMINAL

Section 26(1) of the Sexual Offences Act provides that “any person who, having actual knowledge that he or she is infected with HIV or any other ‘life threatening’ sexually transmitted disease, intentionally, knowingly and wilfully does anything or permits the doing of anything which he or she knows ….

“ … (a) Will infect another with HIV or any other ‘life threatening’ sexually transmitted disease … Shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life.”

The effect of this section and its subsidiary sections is that it perpetuates discrimination, stigma and fear against persons with HIV/Aids.

Living with the disease makes a person a criminal waiting to be arrested, prosecuted and visited with a lengthy jail term.

“It therefore discourages people from testing for HIV, seeking treatment and disclosing their status,” the litigants said in court papers.

According to people living with HIV and Aids, knowledge of one’s HIV status is important because it allows one to seek treatment and greatly reduces if not eliminates the risk of further transmission.

It also makes it possible to employ a range of other transmission prevention strategies and can improve expansion of HIV diagnosis and treatment, therefore a necessary condition for a successful HIV response.

“Section 26 of the Act thereby threatens progress gained and severely constrains further progress in Kenya’s response to the HIV epidemic,” the PLWHA argue.

PRIVACY

The section, according to the group, also intrudes on the privacy of marriage between consenting parties, it creates stigma and discrimination against couples in which one partner has HIV and the other does not (discordant couples).

It criminalises consensual physical intimacy between partners, threatens to separate families by removing a parent or partner from the family to be incarcerated (it criminalises procreation between discordant couples).

The group says the section creates stigma and discrimination against breastfeeding whereas this is the means by which most people in Kenya nourish their infants, and the only practical means by which to do so for many as well as the medically suggested means including people with HIV.

“And in that it threatens to separate children from their parents by removing the parent from the child to be incarcerated for lengthy periods on the basis of their HIV status, whereas it is in the presumptive interest of the child to be raised by both parents,” said PLWHA in court papers.

The group also takes issue with the meaning of the term “life-threatening sexually transmitted disease” or what constitutes it, saying it has not been explained in the Act, and the law is therefore vague in that respect.

VICTIM’S INTENTION

The state in defending the law disagrees with the arguments being advanced by the group, saying the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights.

The group wants the court to declare Section 26 of the Sexual Offences Act unlawful. The case is still pending in the high court.

Further, that it is important to appreciate why section 26 of the Sexual Offences Act was enacted.

“While examining whether a particular law is unconstitutional, the court must have regard not only to its purpose but also its effect. The purpose of section 26 of the Sexual Offences Act was to address the intentional spread of HIV and Aids,” state counsel Anne Wanjiku Mwangi in court papers.

Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.

US: Growing number of Ohio public health experts and advocates call for reform of HIV criminalisation law

Experts: Ohio law on HIV status disclosure hurts public health

COLUMBUS, Ohio — A growing number of Ohio public health experts and advocates are now working to stop what they call the criminalization of HIV.

Daphne Kackloudis, Chief Public Policy Officer at Equitas Health, told News 5 Ohio’s current law charging someone who fails to disclose their HIV status with a felony in all cases is hurting public health.

Kackloudis said the threat of up to eight years in prison is causing too many people to avoid getting tested, because according the current law if someone doesn’t get tested, and isn’t aware of their status they can’t be prosecuted.

“It is a disincentive for someone to get tested, and that’s not good for an individuals health and the public health,” Kackloudis said.

“We want them to get on antiretroviral therapy to get as healthy as possible, and be virally suppressed so they can not transmit HIV.”

Kackloudis believes the potential penalty should be moved back to a misdemeanor in cases where those charged are on HIV medication and are a far less infection risk.

She said the current law allows someone to file charges against an HIV-positive partner, even if they didn’t get the virus from that partner.

Kackloudis is a member of the Ohio Health Modernization Movement , which is also making an effort to change Ohio law.

She also made it clear she fully understands why the law was created, and said the proposed change in the law would still allow for full prosecution of those who willingly give others HIV.

Graig Cote of Columbus, who has been HIV positive for 33 years, told News 5 changes in the law are needed because it’s too difficult to prove if someone made proper disclosure of their status or not, unless there was a witness or if it was in writing or recorded.

“If we don’t change the laws, people don’t get tested, if they don’t get tested they don’t know if they’re HIV positive,” Cote said.

“We’re not asking for a free ride, we’re just asking that the laws catch up with the science.”

Cote said he hopes the proposed change in Ohio law is ready to present at the statehouse in the first quarter of 2020, and again made it clear the effort would not keep those who willingly spread HIV from facing full prosecution.

“People who want to infect somebody need to be stopped, there’s no dispute about that,” Cote said.

Ukraine: The Ukrainian Helsinki Human Rights Union raises awareness on the need to decriminalise HIV-status

Valeria Rachynska: “We must finally stop the witch-hunting and decriminalize HIV-status”

On 18 October, 2019 in the premises of IA “Glavkom” UHHRU conducted the press-conference on the topic: “Why Ukraine must decriminalize HIV-status”. The main topics of the presentations included: raising awareness on actual HIV statistics in Ukraine, issues of overcoming stigma in relation to people living with HIV (PL HIV), and position of the lawyers regarding legal criminalization of HIV status (article 130 CC of Ukraine).

Oleksandr Pavlichenko, UHHRU Executive Director: “Despite the fact that recently we achieved significant success in treating HIV in Ukraine, obsolete legislative provisions are still in force – article 130 of the CC. This article treats all Ukrainian citizens with HIV+ status as potential criminals, envisages punishment of up to 3 years of imprisonment and gave base for dozens of court decisions each year. From the legal point of view of the European Convention on Human Rights the formulation incorporated in this article is vague, it cannot be considered as a law, and needs to be amended”.

Olena Stryzhak, Chairman of the Board of CO “Positive Women”: “Our organization for 5 years already advocates the amendments to the legislation and 3 years ago we submitted the package of amendments in which we insisted on decriminalization of HIV-status. All years of our work, both as service organization and as organization protecting human rights, prove that HIV stigma and criminalization lead to the situation where people are afraid of disclosing the status, which further hinders effective treatment and socialization of PL HIV”.

Valeriya Rachynska, Director of the Department for Work with the Regions, “All-Ukrainian Network of People Living with HIV/AIDS”: “First of all, I would like to mention that in addition to legislative problems there is one more problem – general indifference of mass media to highlighting the situation with HIV/AIDS. If that was not the case everybody would know that in July 2018 there was an official WHO Statement stressing that people having HIV status, who undergo antiretroviral therapy and have minimal viral load have practically no chances for HIV sexual transmission. The risk is equal to zero. In Ukraine, 92% of PL HIV, which take ART, have minimal viral load. It is the obsolete legislative provision that additionally stigmatize them and assaults their dignity. We must finally stop the witch-hunting and decriminalize HIV-status”.

Svitlana Moroz, Chairman of the Board of Eurasian Women’s Network on AIDS: “Our organization pays special attention to the problem of HIV-status criminalization. We are monitoring 12 countries in the region and have information of absolutely outrageous cases related to PL HIV criminalization. For example, when raped women is afraid to apply to court against the rapist, because she has positive status. Current legislation not only makes criminals out of HIV+ people, it shifts the blame for getting infected exclusively on PL HIV and creates wrong perception of the citizens’ protection. Following this logic, the state shall prohibit discordant couples and HIV+ women giving birth. Besides, Ukrainian criminal legislation contradicts the Law on AIDS where a lot is said about counteracting PL HIV stigmatization. Article 130 of the CC of Ukraine fosters stigma, hinders access to treatment, and in general does not takes into account scientific achievements in fighting HIV/AIDS during the recent 20 years”.

Justification of the legal position of CO “Positive Women” regarding immediate HIV status decriminalization can be found at the link.

Ukrainian Helsinki Human Rights Union implements the project the project “Development of the legal network for protection of the people living with HIV/AIDS, representatives of key PLHIV communities and persons ill with TB” with the financial support of the Charitable organization “All-Ukrainian Network of the People Living with HIV/AIDS” in the framework of implementation of the project “Releasing the Burden of TB and HIV infection through creation of the open access to timely and quality diagnostics and treatment of the TB and its resistant forms, expanding evidence based prevention, diagnostic and treatment of HIV infection, and creation of stable and sustainable health protection systems”, which is implemented with the financial support of the Global Fund to Fight AIDS, TB and Malaria.

US: Florida HIV Criminal laws undermine public health goals and must be modernised

HIV in Florida is on the rise. Here’s how we can change that.

The state has mishandled the epidemic in the past, but lawmakers can get it right now

By Jennie Smith-Camejo, Kamaria Laffrey, Christine Hanavan and Alejandro Acosta
Published Sep. 19

Last week, Floridians learned that as governor, Rick Scott rejected $70 million in federal funding to fight the state’s HIV epidemic between 2013-2017. During those years, New York invested heavily in testing, treatment, and services for people living with HIV—and reduced its rate of new diagnoses by 30 percent. Of the 10 states with the most annual HIV diagnoses, only Florida saw an increase—a whopping 11 percent. 23,413 Floridians have had their lives altered as a result.

Florida’s new governor, Ron DeSantis, just announced that his administration will lead a “robust program” to reduce HIV and AIDS in the state. HIV advocates will work with him to fulfill this promise.

Yet ending the epidemic in Florida requires more than promises. Access to care and services for people living with HIV is key. Modern antiretroviral treatments reduce the amount of the virus in the body so low tests can’t detect it. After six months, the person cannot transmit HIV to their sexual partners as long as they stay undetectable. The CDC confirmed that maintaining an undetectable viral load is 100% effective at preventing HIV transmission, even without condoms. Ensuring every person with HIV is diagnosed and is linked to care and support to stay in care (stable housing, mental healthcare, transportation for medical appointments, etc.) keeps the person with HIV healthy and prevents transmission.

Further, Florida legislators must align our laws with modern science. Currently, outdated laws criminalize people with HIV for consensual sex. People can be convicted of a felony even when no transmission occurred or was possible. One accusation can ruin a life.

These laws are different from other criminal laws. The burden of proof lies on the person living with HIV to prove they told their partner. But intimate conversations rarely take place in writing. And no intent to “harm”–or actual harm–is required for conviction. Disputes about facts routinely work in favor of the accuser, ruining lives. Headlines about such cases further stigmatize HIV, driving people living with HIV back underground, afraid to disclose or sometimes even to get medication because of the legal and social consequences of criminalization and stigma.

These laws undermine the public health goals of testing and treatment. The National HIV/AIDS Strategy recommended that state governments review their criminal laws for this very reason. And a 2017 study authored by CDC staff found that laws criminalizing HIV have “no detectable prevention effect.”

Florida government can right this wrong by funding care and services and by modernizing the state’s criminalization laws. The Florida HIV Justice Coalition, a group of people living with HIV and organizations working with communities affected by HIV, formed to help legislators align our laws with science and public health.

Together, we can make Florida a state where no one is afraid to seek HIV testing or care.

Jennie Smith-Camejo, of Miami, is communications director for Positive Women’s Network, USA. Kamaria Laffrey, of Winter Haven, is the Southern engagement community coordinator for the Sero Project. Christine Hanavan, MSW, of Orlando, is a community organizer for Sex Workers Outreach Project Behind Bars. Alejandro Acosta, of Fort Lauderdale, is the HIV advocacy manager for Equality Florida.

 

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.