A short video summarising the situation as of Summer 2019 regarding HIV criminalisation in Canada. For more information, please visit hivcriminalization.ca.
New report analyses the successes and challenges of the growing global movement against HIV criminalisation
A new report published today (May 29th 2019) by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE provides clear evidence that the growing, global movement against HIV criminalisation has resulted in more advocacy successes than ever before. However, the number of unjust HIV criminalisation cases and HIV-related criminal laws across the world continue to increase, requiring more attention, co-ordinated advocacy, and funding.
Advancing HIV Justice 3: Growing the global movement against HIV criminalisation provides a progress report of achievements and challenges in global advocacy against HIV criminalisation from 1st October 2015 to 31st December 2018.
Although the full report is currently only available in English, a four-page executive summary is available now in English, French, Russian and Spanish. The full report will be translated into these languages and made available later this summer.
The problem
HIV criminalisation describes the unjust application of criminal and similar laws to people living with HIV based on HIV-positive status, either via HIV-specific criminal statutes or general criminal or similar laws. It is a pervasive illustration of how state-sponsored stigma and discrimination works against a marginalised group of people with immutable characteristics. As well as being a human rights issue of global concern, HIV criminalisation is a barrier to universal access to HIV prevention, testing, treatment and care.
Across the globe, laws used for HIV criminalisation are often written or applied based on myths and misconceptions about HIV and its modes of transmission, with a significant proportion of prosecutions for acts that constitute no or very little risk of HIV transmission, including: vaginal and anal sex when condoms had been used or the person with HIV had a low viral load; oral sex; and single acts of breastfeeding, biting, scratching or spitting.
Our global audit of HIV-related laws found that a total of 75 countries (103 jurisdictions) have laws that are HIV-specific or specify HIV as a disease covered by the law. As of 31st December 2018, 72 countries had reported cases: 29 countries had ever applied HIV-specific laws, 37 countries had ever applied general criminal or similar laws, and six countries had ever applied both types of laws.
During our audit period, there were at least 913 arrests, prosecutions, appeals and/or acquittals in 49 countries, 14 of which appear to have applied the criminal law for the first time. The highest number of cases were in Russia, Belarus and the United States. When cases were calculated according to the estimated number of diagnosed people living with HIV, the top three HIV criminalisation hotspots were Belarus, Czech Republic and New Zealand.
The pushback
Promising and exciting developments in case law, law reform and policy took place in many jurisdictions: two HIV criminalisation laws were repealed; two HIV criminalisation laws were found to be unconstitutional; seven laws were modernised; and at least four proposed laws were withdrawn. In addition, six countries saw precedent-setting cases limiting the overly broad application of the law through the use of up-to-date science.
The solution
Progress against HIV criminalisation is the result of sustained advocacy using a wide range of strategies. These include:
- Building the evidence base Research-based evidence has proven vital to advocacy against HIV criminalisation. In particular, social science research has been used to challenge damaging myths and to identify who is being prosecuted, in order to help build local and regional advocacy movements.
- Ensuring the voices of survivors are heard HIV criminalisation advocacy means ensuring that HIV criminalisation survivors are welcomed and supported as advocates and decision-makers at all stages of the movement to end HIV criminalisation.
- Training to build capacity Successful strategies have focused on grassroots activists, recognising that training events must be community owned and provide opportunities for diverse community members to come together, hold discussions, set agendas, and build more inclusive coalitions and communities of action.
- Using PLHIV-led research to build community engagement capacity Research led by people living with HIV (PLHIV) provides a mechanism to engage communities to develop in-depth understanding of issues and build relationships, mobilise and organise.
- Using science for justice HIV criminalisation is often based on outdated and/or inaccurate information exaggerating potential harms of HIV infection. In addition, HIV-related prosecutions frequently involve cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven beyond a reasonable doubt.
- Engaging decision-makers through formal processes Activists have worked to bring about legal and policy changes not only by lobbying local decision-makers, but also by engaging in other formal processes including using international mechanisms to bring HIV criminalisation issues to the attention of state or national decision-makers.
- Acting locally and growing capacity through networks Many community organisations working to limit HIV criminalisation are actively supporting grassroots community advocates’ participation at the decision-making table.
- Getting the word out and engaging with media Activists have employed diverse strategies to extend the reach of advocacy against HIV criminalisation including pushing the issue onto conference agendas, presenting messaging through video, working through digital media forums, using public exhibitions to push campaign messaging, and holding public demonstrations. Sensationalist headlines and misreporting of HIV-related prosecutions remain a major issue, perpetuating HIV stigma while misrepresenting the facts. Activists are endeavouring to interrupt this pattern of salacious reporting, working to improve media by pushing alternative, factual narratives and asking journalists to accurately report HIV-related cases with care.
Acknowlegements
Advancing HIV Justice 3 was written on behalf of HIV JUSTICE WORLDWIDE by the HIV Justice Network’s Senior Policy Analyst, Sally Cameron, with the exception of the Global overview, which was written by HIV Justice Network’s Global Co-ordinator, Edwin J Bernard, who also edited the report.
We would especially like to acknowledge the courage and commitment of the growing number of advocates around the world who are challenging laws, policies and practices that inappropriately regulate and punish people living with HIV. Without them, this report would not have been possible.
We gratefully acknowledge the financial contribution of the Robert Carr Fund to this report.
A note about the limitations of the data
The data and case analyses in this report cover a 39-month period, 1 October 2015 to 31 December 2018. This begins where the second Advancing HIV Justice report – which covered a 30-month period, 1 April 2013 to 30 September 2015 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.
Similarly, despite the growing movement of advocates and organisations working on HIV criminalisation, it is not possible to document every piece of advocacy, some of which takes place behind the scenes and is therefore not publicly communicated.
Despite our growing global reach we may still not be connected with everyone who is working to end HIV criminalisation, and if we have missed you or your work, we apologise and hope that you will join the movement (visit: www.hivjusticeworldwide.org/en/join-the-movement) so we can be in touch and you can share information about your successes and challenges.
Consequently, this report can only represent the tip of the iceberg: each piece of information a brief synopsis of the countless hours and many processes that individuals, organisations, networks, and agencies have dedicated to advocacy for HIV justice.
Suggested citation: Sally Cameron and Edwin J Bernard. Advancing HIV Justice 3: Growing the global movement against HIV criminalisation. HIV Justice Network, Amsterdam, May 2019.
Canada: B.C.’s improved HIV prosecution guidelines remain out of step with scientific evidence and international guidance
Richard Elliott: B.C.’s improved HIV prosecution guidelines don’t go far enough
Opinion: B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.
Last month, the B.C. Prosecution Service changed its approach to HIV criminalization.
A new policy provides direction to prosecutors in cases where someone is accused of not telling their sexual partner they are HIV-positive.
While the Prosecution Service has taken an important step toward limiting misuse of criminal charges in these cases, overall this new policy remains out of step with scientific evidence and extensive international guidance. The result is that people living with HIV in B.C. continue to live under the shadow of unjust prosecution.
No other medical condition has been criminalized as HIV continues to be. Just imagine being told you are HIV-positive. The news is overwhelming at first, but you take on board the medical advice given to you and you learn that thanks to modern medicine you can live a fulfilling, healthy and long life.
You go on to meet someone and have consensual sex. You use a condom, which is the safer sex practice recommended as a cornerstone of HIV prevention since the virus was identified decades ago.
But, because you didn’t tell your sexual partner you have HIV, you can be charged with aggravated sexual assault. Even though HIV cannot pass through an intact condom, you could spend years in jail and be designated a “sex offender” for the rest of your life.
The Prosecution Service has refused to clearly rule out prosecuting people who use condoms. Instead, its new policy only says that using a condom is a factor that “may” weigh against prosecuting someone.
This flies in the face of evidence-based recommendations given by advocacy and human rights groups around the world. These include the international expert consensus statement published last year by leading HIV experts — including three leading Canadian scientists (two of them from B.C.) — concerned that criminal prosecutions in cases of alleged HIV non-disclosure are often based on a poor appreciation of the science.
People living with HIV and advocates across Canada had hoped B.C. would prove itself to be a leader and go even further toward justice than the federal government has done.
In December, Canada’s attorney general issued a directive to limit HIV non-disclosure prosecutions. But it only applies in the territories, where federal prosecutors handle criminal prosecutions. It was disheartening to learn that B.C.’s new policy does not reflect the longstanding scientific knowledge we have about condoms and their effectiveness.
B.C.’s policy shows minor progress in limiting the overly broad use of the criminal law against people living with HIV. It is a positive step, for instance, that it now states there will be no prosecution in cases where the person living with HIV has a “suppressed viral load” for at least four months — this means they have had treatment to suppress the virus in their body to ensure there’s no risk of transmission.
The new policy also says there should be no prosecution for having just oral sex, although with the caveat there must be “no other risk factors present.”
These positive updates reflect current scientific understanding, so it’s perplexing the Prosecution Service maintains an antiquated stance on condom use and persists in potentially prosecuting people who practice safer sex.
B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.
Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network
US: It's time to change Missouri HIV criminal statutes and end stigma
Missouri’s HIV criminal statutes are due for an update
AIDS Project of the Ozarks (APO) is a non-profit community-based organization serving a 29-county region in SWMO including over 800 clients with HIV/AIDS and their families. In the early years of the epidemic, with no effective treatment options, an HIV diagnosis was tantamount to a death sentence. My friends were dying and that’s why I became involved with this work. Not long after our founding in 1983, Missouri joined a great number of states in enacting strict laws that penalize people living with HIV (PLHIV) for engaging in sexual activity as one method to combat the epidemic.
Thankfully, much has changed in the 36 years since we were founded. With today’s medications, in a matter of months, people living with HIV are suppressing the virus in their bloodstream, rendering it incapable of transmission to another person. The Center for Disease Control confirmed this information in 2017.
Undetectable = untransmittable.
PLHIV are leading long, productive lives without the fear of exposing loved ones to the virus. Pre-exposure prophylaxis (PrEP) and condoms or other latex barriers are viable means of HIV prevention that unaffected partners can use to take control of their own risk of contracting the virus.
Yet, as the law stands in Missouri, if someone living with HIV cannot prove without a doubt that they have disclosed their HIV status to a sexual partner, they may be subject to Class B felony charges – the same as a 2nd-degree murder – even when no transmission of HIV has occurred. An HIV diagnosis is no longer a death sentence, however, our laws continue to treat it as such.
The stigma associated with HIV was built on top of misinformation during the 1980s. When APO started, we didn’t even put our name on the building directory because the fear of the stigma of HIV was an incredible barrier for people seeking testing and treatment. Today, we have a better medical understanding and more people are living longer with HIV. It is time to stop living bound by fear and paralyzed by stigma. As modeled by APO’s newly constructed facility with our large sign on one of Springfield’s busiest thoroughfares, it is time to come out from the shadows. It is time for our General Assembly to embrace public policy, grounded in today’s medical realities, and modernize HIV-specific criminal codes.
Reps. Holly Rehder (R-Sikeston; HB 167) and Tracy McCreery (D-Olivette; HB 166) have come together in bipartisan collaboration. Public health and HIV are not partisan topics. We applaud the House Health and Mental Health Policy Committee for advancing a House Committee Substitute for both bills forward on April 15.
We urge Springfield’s own – Speaker Elijah Haahr – to schedule floor debate time for HCB HB 167 & 166 with ample time for amendments and discussion to resolve several outstanding concerns. We thank both sponsors for their bipartisanship, and we urge the same from their colleagues. The time is now to change the law and end the stigma. To send a message to your representative, visit www.empowermissouri.org.
APO provides medical care, case management, education to the general public, and services to persons with HIV infection, their families and significant others in a confidential, caring environment. We also offer primary medical care to those who are not HIV positive, in a safe inclusive environment. Our walk-in testing schedule at APO (1636 S Glenstone, Suite 100, Springfield, MO 65804) is Mon, Tues, Thurs, and Friday 9am-Noon and 1-3pm; and at APO Downtown (303 Park Central West) 5:30 pm to 10:30 pm on Fridays and Saturdays with HIV, Hepatitis C, and syphilis, gonorrhea, and chlamydia testing. Safer-sex supplies are available at both locations.
US: Law student wins scholarship prize for writing about HIV criminalisation in Louisiana and its negative impact on women
Draconian state law criminalizing HIV exposure subject of winning paper by Tulane Law student
Louisiana is one of more than two dozen states with a law that criminalizes exposure to HIV, charging, prosecuting, jailing and labeling anyone who potentially exposes another to the virus as a sex offender.
An exposition of the broadly-written and punative state law and its impact on women is the subject of a paper written by third-year law student Rachel Brown, and the winner of the 2019 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights Law.
“Your submission, When the Body Is a Weapon: An Intersectional Feminist Analysis of HIV Criminalization in Louisiana, stood out among an impressive showing by other writers,” the selection committee wrote to Brown. “We received many excellent papers that demonstrated solid research, innovative ideas, sharp legal analysis, and excellent writing skills – and yours was the most remarkable.”
The prize, co-sponsored by If/When/How: Lawyering for Reproductive Justice, the Center for Reproductive Rights (CRR), and the Center on Reproductive Rights and Justice at Berkeley Law (CRRJ), encourages innovative analysis and advocacy in writing about reproductive rights and justice issues. It comes with a $750 award for Brown, plus publication in the Berkeley Journal of Gender, Law & Justice, one of the most prestigious national journals in gender law. Brown’s paper also will be adapted for other platforms, including the If/When/How website.
“The law’s draconian penalties devastate the lives of women convicted, all while failing to advance any legitimate public health or penological goal – ultimately, putting both HIV negative and positive persons at risk,” Brown said.
Brown’s paper provided analysis of how HIV criminalization in Louisiana is enforced in a discriminatory pattern, often targeting the populations mostly affected by the virus: women of color, trans women, sex workers and the poor. She initially wrote it for a law course called Feminist Legal Theory, taught by Saru Matambanadzo, the Moise S. Steeg Jr. Associate Professor of Law at Tulane.
“Rachel’s paper was a clear standout in our seminar,” said Matambanadzo. “She was among the more sophisticated thinkers in the course and her capacity to bridge activism with theory and her commitment to intersectional feminism is rare for a student at this stage. I’m excited that her hard work has been recognized by the Sarah Weddington prize.”
Brown, who has a master’s in social work from Tulane, said she is passionate about reproductive justice and chose the topic because of its severe adverse impacts on women. A third-year law student, she is the outgoing president of Tulane’s chapter of If/When/How: Lawyering for Reproductive Justice. She also is finishing a stint in the Civil Rights and Federal Justice Clinic.
After graduation in May, Brown plans to combine her social work background and new legal training to advance public policy in reproductive justice.
The PJP Update – April 2019
The April 2019 edition of the Positive Justice Project newsletter is available here.
Canada: Advocates recommend amending the criminal code to limit the overcriminalisation of non-disclosure and the inconsistency of provincial prosecutorial policies
Criminal Code changes needed to curb HIV non-disclosure prosecutions, experts say
The chair of the federal government’s justice committee is hoping input from various stakeholders will lead to Criminal Code changes limiting prosecutions of HIV non-disclosure across Canada.
On April 9, the House of Commons Standing Committee on Justice and Human Rights began inviting medical professionals, advocates and those living with the immunodeficiency virus to submit briefs on how to deal with the overcriminalization of non-disclosure and a “patchwork” of prosecutorial policy among the provinces.
The committee’s study comes almost five months after Canada’s Department of Justice directed its Crowns to limit their prosecutions of HIV non-disclosure in light of evolving science around risk of transmission.
But the Dec. 1 directive applies only to Crowns in Canada’s territories. Provincial prosecutors, on the other hand, follow their own set of prosecutorial policies.
Soon after this, Ontario directed its Crowns to limit non-disclosure prosecutions. And on April 16, British Columbia brought forth a revamped policy.
Most other provinces lack directives.
Defence lawyers and advocates have long been said that criminal law dealing with non-disclosure has lagged scientific findings that the risk of transmission can be quite low, depending on individual circumstances and sexual practices.
The committee will be hearing from stakeholders on the adequacy of the federal directive, how the justice system can work with the health sector to better understand the science of transmission and how to attain a uniform policy across the land.
As of April 17, the committee had heard from the Ontario AIDS Network and the Canadian HIV/AIDS Legal Network, as well as other organizations and several experts.
All submissions are due April 30 and a report will go before Parliament sometime in May, according to the committee’s chairman, Liberal MP Anthony Housefather.
“We’re looking at how do you create a system that can apply across the country, and, for me, that would only be through adjustments to the Criminal Code itself,” Housefather told The Lawyer’s Daily.“Now, we could come out with recommendations, theoretically, to the minister of justice to meet with his provincial and territorial counterparts to try to agree on a directive that would be applied in every province and territory. But, from what I understand right now, the best approach would be amendments to the Criminal Code.”
Housefather spoke of different policies currently in existence.
“Right now, we only have a federal directive that applies to very few Canadians,” said Housefather. “We have an Ontario directive that is slightly different from the federal directive. There is a directive in B.C. that was quietly put forward. And then most [other] provinces have no such directive. So, people are being prosecuted differently depending on the province or territory that they live in right now.”
Canadian HIV/AIDS Legal Network executive director Richard Elliott said the consultations will drive home the need for consistency.
“It should make clear that, in so far as it goes, the [federal] directive … issued in December, is OK,” said Elliott. “In our view — and [in] the view of other advocates with whom we work across the country on this — it doesn’t go far enough, but it is a step forward. What I think it should also make clear is even if the directive at the federal level went as far as it should go, and even if every provincial [attorney general] were to adopt an equally satisfactory directive applicable in their jurisdiction … we would still need an additional part of the solution here, which … is to amend the Criminal Code.”
Elliott noted differences in the federal, Ontario and B.C. directives and said uniform, coast-to-coast policy would “sweep away a patchwork of different policies in different jurisdictions.”
None of the policies is quite where it should be when it comes to limiting criminalization, said Elliott, who, like many, is calling for sexual assault and aggravated sexual assault charges to be taken off the table as charges for HIV non-disclosure.
Criminal charges, he said, should be limited to intentional transmission.
Criminal lawyer Cynthia Fromstein has been approached by people “frightened [and] concerned about their legal jeopardy and wanting to know what is and is not lawful behaviour.”
“These are people who have no intention of harming others by their actions,” said Fromstein, a sole practitioner in Toronto. “That is one reason it is truly necessary for there to be consistency across the country in policy and application of the criminal law.”
Like Elliott, Fromstein hopes the consultations will kick-start change.
“Amending the Criminal Code is going to be complex,” she said. “I think there is wide support for taking any kind of prosecution of non-disclosure out of the sex assault provisions. I think there is broad agreement [this] needs to be done. But then there are real questions: Should there be a specific law for HIV transmissions? Should there be a specific law for ‘causing a person to be infected with a serious illness,’ which is not necessarily [classified as] HIV? There are a lot of questions that have to be fine-tuned.”
US: Bipartisan list of lawmakers sponsor bill to modernise HIV laws in Georgia
Georgia lawmaker wants to decriminalize HIV
A Republican lawmaker introduced a bill that would modernize Georgia’s HIV laws, which activists say are outdated and stigmatize people living with HIV.
Under House Bill 719, a person charged with exposing someone to HIV — whether through sex or sharing needles — would have to show an “intent to transmit” the virus in order to be prosecuted, according to the bill. Current Georgia law makes it a crime for people living with HIV to have sex without disclosing their status.
The bill would also downgrade the punishment for people found guilty of the offense to a misdemeanor punishable by up to a year in prison. It’s currently a felony punishable by up to 10 years in prison.
“[The bill] moves these archaic laws created out of the HIV panic of the 1980s and brings them up-to-date with our current understanding of HIV,” Eric Paulk, HIV policy field organizer for Georgia Equality, told Project Q Atlanta. “Additionally, this bill will aid in reducing stigma and discrimination against people living with HIV, which it is not just fair, but good for public health.”
“Lastly, reforming these laws is an important step to health and HIV prevention justice, especially for black gay, bisexual, and transgender Georgians, who are disproportionately impacted by HIV and prosecutions under these laws,” he added.
HB 719 would also make employees of syringe services programs immune from being charged with possession, distribution or exchange of needles or syringes as part of the program. The measure would also remove a provision in state law that makes it a crime for people living with HIV to spit on people.
Rep. Deborah Silcox (photo), a Republican from Sandy Springs who sponsored the measure, introduced HB 719 on April 2, the final day of this year’s legislative session. It will come back up for consideration during the 2020 session.
HB 719 has a bipartisan list of co-sponsors. The Republicans include Reps. Sharon Cooper of Marietta and Mark Newton of Augusta. The Democrats who signed on to the measure are Reps. Michele Henson of Stone Mountain and Karla Drenner of Avondale Estates. Drenner is one of the five openly LGBTQ members of the legislature.
Cooper sponsored a measure that created a study committee to examine the state’s HIV criminalization laws in 2017.
The committee published its findings in December 2017, and some of those recommendations became part of HB 719. The committee found that “criminal exposure laws had no effect on detectable HIV prevention” and that these laws should be eliminated unless there was a clear intent to transmit the virus, according to the report.
Cooper, Silcox and Rep. Houston Gaines are the group of Republicans who introduced a package of HIV legislation during the 2019 session.
Cooper’s bill to create a pilot program to provide PrEP to people at high risk of contracting HIV passed both chambers and awaits Gov. Brian Kemp’s signature. Gaines’ bill to create a needle exchange program to help reduce HIV rates passed both chambers, and Kemp signed it into law on April 2. Silcox’s bill to make it easier for HIV-positive Medicaid recipients to receive the most effective medications passed unanimously in the House but got held up in the Senate over cost issues. It will return in 2020.
Georgia is one of three-dozen states that criminalize a lack of HIV disclosure. HIV criminalization laws are one of the reasons Georgia ended up in the lowest-rated category on the Human Rights Campaign’s annual State Equality Index.
Russia: Criminalisation of HIV infection is a futile measure that creates a false sense of security
Source: Radio Liberty (Радио Свобода) – April 17, 2019 – Deepl translation. For original article in Russian please scroll down.
HIV as a crime. Mikhail Golichenko – about the case of Alexandra
Everyone diagnosed with HIV infection is warned of liability under Article 122 of the Criminal Code of the Russian Federation – “HIV Infection”. The presence of such an article in the Criminal Code is dictated by the concern for the protection of public health. In theory. Of course, the organization of health care, including legal measures (among which there are also methods of prohibition supported by criminal sanctions) is an important prerogative of any state. For example, actions such as the circulation of counterfeit medicines are perfectly justified under criminal prohibitions – here the purpose of health protection has a direct logical link with the method of legal regulation and criminal prosecution. However, the usefulness of some other criminal prohibitions in terms of their role in health care is not entirely clear, but appears to have been chosen arbitrarily. One of these prohibitions is the article “HIV infection”.
Emotionally, this article in the Criminal Code can be explained: HIV infection is a chronic disease that can lead to death if not treated in time. Responsibility for HIV infection was included in the Soviet Criminal Code, but then it was only about infection due to violation of sanitary and epidemiological rules (as, for example, in the case of mass hospitalization of children in Elista in 1988). In 1996, the Criminal Code of the Russian Federation introduced a list of new offences for people living with HIV: “knowingly endangering their exposure to HIV” and “contracting HIV by a person who knew he had HIV”. Responsibility for the health of other people began to be placed on HIV-infected people, placing them in a situation of constant risk of criminal liability due to their chronic state of health. All over the world this is called criminalization of HIV infection.
Каждый, кому поставлен диагноз “ВИЧ-инфекция”, предупреждается об ответственности по статье 122 Уголовного кодекса РФ – “Заражение ВИЧ-инфекцией”. Наличие такой статьи в Уголовном кодексе продиктовано заботой об охране здоровья населения. В теории. Конечно, организация охраны здоровья, включая меры правового характера (среди которых присутствуют и способы запрета, подкрепленные уголовными санкциями), – важная прерогатива любого государства. Под уголовным запретом совершенно обоснованно находятся такие, например, действия, как обращение фальсифицированных лекарственных средств – здесь цель охраны здоровья имеет прямую логическую связь с методом правового регулирования, уголовным преследованием. Однако польза некоторых других уголовных запретов с точки зрения их роли в здравоохранении не вполне очевидна, они избраны, как представляется, произвольно. Одним из таких запретов является статья “Заражение ВИЧ-инфекцией”.
С эмоциональной точки зрения появление такой статьи в Уголовном кодексе можно объяснить: ВИЧ-инфекция является хроническим заболеванием, которое при отсутствии своевременного лечения может привести к смерти. Ответственность в связи с ВИЧ-инфекцией была включена еще в советский УК, однако тогда речь шла только о заражении в связи с нарушением санитарно-эпидемиологических правил (как, например, в случае с массовым внутрибольничным заражением детей в Элисте в 1988 году). В 1996 году в Уголовном кодексе Российской Федерации появился перечень новых составов преступления для людей, живущих с ВИЧ: “заведомая постановка в опасность заражения” и “заражение ВИЧ-инфекцией лицом, знавшим о наличии у него ВИЧ”. Ответственность за здоровье других людей стали возлагать на ВИЧ-инфицированных, поставив их в ситуацию постоянного риска уголовной ответственности в связи с хроническим состоянием здоровья. Во всём мире это называется криминализация ВИЧ-инфекции.
Ежегодно в России за “постановку в опасность заражения” и за заражение ВИЧ-инфекцией к уголовной ответственности привлекают около 40 человек. В большинстве случаев речь идет о делах, возникающих из отношений партнеров, когда один из партнеров внезапно узнает о ВИЧ-статусе другого и по тем или иным причинам (часто из мести) обращается с заявлением о возбуждении уголовного дела. Главным доказательством является, как правило, признание человека, живущего с ВИЧ, о том, что секс был без презерватива. Обвинительные приговоры по таким делам редко обжалуют, осуждённые предпочитают поскорее забыть позор процесса. Но иногда встречаются люди, которые чувствуют несправедливость самой идеи уголовной ответственности: тебя наказывают, по сути, из-за того, что ты болен ВИЧ.
Александра (имя изменено) выросла в детдоме. Не идеальный подросток, судя по характеристикам из детского дома. В 15 лет – первый брак, быстрая смерть мужа, и уже вдова. Примерно в это время у Александры диагностируют ВИЧ. Она покинула детский дом и пыталась прожить на непостоянные заработки, в том числе занимаясь уборкой квартир. Однажды её для уборки квартиры нанял Алексей, ему уже за 30. Алексей проявил к Александре интерес; узнав, что она сирота, предложил девушке пожить у него. Александра осталась у Алексея на ночь. Алексей не хотел использовать презерватив, а Александра боялась сообщить о своём диагнозе открыто, хотя и намекала на опасность ВИЧ-инфекции.
В какой-то момент у Алексея начали возникать подозрения, и он настоял на том, чтобы Александра сдала анализы на ВИЧ. Отношения развалились, вскоре Алексей узнал о результатах анализов. Хотя у него самого ВИЧ выявлен не был, он обратился в полицию с заявлением. Обвинительный приговор с назначением обязательных работ Александра обжаловала вплоть до Верховного суда. В январе 2019 года Верховный суд направил ее жалобу обратно в областной суд, который спустил кейс на пересмотр в суд первой инстанции. Александра не юрист, не правозащитник, но она чувствует, что справедливость на её стороне. И вот по каким причинам.
Состав преступления “постановка в опасность заражения” предполагает высокий порог для привлечения к ответственности – прямой умысел. Такой умысел характерен для ситуации, когда человек не только понимает, что может заразить партнёра, но и желает этого. То есть, к примеру, для ситуации, когда человек активно настаивает на том, чтобы секс был без презерватива. Александра этого не делала. В ситуации с Алексеем закон косвенно возлагает на Александру обязанность следить за здоровьем партнёра и либо обеспечить наличие у него презерватива на половом члене, либо сообщить о своём ВИЧ-статусе. Возможно, в ситуации равенства партнёр с ВИЧ не побоится раскрыть свой статус или настоять на использовании презерватива. Но Александра оказалась в зависимом от Алексея положении, поскольку проживала у него в квартире. Алексей был почти в два раза старше неё, имел значительный больший жизненный опыт, был физически сильнее. Девушка не нашла в себе сил сказать, что у неё ВИЧ, но активно намекала на то, что ВИЧ можно заразиться, как, к примеру, заразилась её подруга. Иными словами, для уголовной ответственности за постановку в опасность заражения в действиях Александры недостает прямого умысла.
Соображения социальной справедливости требуют, чтобы наивысшей степени общественного порицания – уголовной ответственности – граждане подвергались только за наиболее негативные поступки. Убийства, умышленное причинение вреда здоровью – такие поступки, без сомнения, требуют уголовной ответственности. Заражение ВИЧ-инфекцией – нанесение тяжкого вреда здоровью, и ведущие к этому умышленные действия заслуживают уголовной статьи. Однако для этого нет необходимости иметь специальную статью Уголовного кодекса, в которой ВИЧ-инфекция была бы выделена в качестве самостоятельного признака. Есть общие составы преступлений, связанных с причинением вреда здоровью. Наличие специального состава именно против заражения ВИЧ-инфекцией является законодательным отражением особой, возведенной в закон стигмы по отношению к людям, живущим с ВИЧ, а это не соответствует принципу социальной справедливости.
Использование презервативов – один из наиболее эффективных способов защиты от ВИЧ при половых контактах. Использование презерватива – вопрос заботы каждого о своем здоровье. Люди должны это понимать, причём должен понимать это каждый человек, вне зависимости от своего ВИЧ-статуса. Состав “постановка в опасность заражения” не учитывает, что в ситуациях интимного контакта далеко не каждый готов раскрыть партнёру свой ВИЧ-статус. Наличие специального состава преступления за постановку в опасность заражения создает у людей без ВИЧ ложное ощущение защищенности, когда несообщение партнером о своём положительном статусе по сути означает, что можно не использовать презерватив. Таким образом подрывается основа эффективного метода защиты населения от ВИЧ – формирование привычки населения использовать презервативы. Обжалуя свой приговор, Александра борется за здоровье населения, а не только за себя.
Тяжба вокруг обвинения Александры продолжается. Возможно, Александре снова придется обжаловать приговор вплоть до Верховного суда в надежде восстановить справедливость в отношении людей, живущих с ВИЧ.
Михаил Голиченко – адвокат, кандидат юридических наук
US: HIV criminalisation laws that require people convicted to be on the sex offender registry are ineffective and stigmatising
THE PUSH TO END ‘PUNISHMENT FEVER’ AGAINST PEOPLE WITH HIV
Advocates say laws that land people with HIV on the sex offender registry are outdated and dangerous.
Every five years, Mark Hunter has to pay around $300 to have his picture displayed in the newspaper and notices mailed to his neighbors, informing them that he is a sex offender. While on parole, he said, he pays about $60 a month in fees and has to attend a sex offender treatment class. His crime? In 2008, he was convicted of failing to tell two ex-girlfriends that he was HIV-positive.
Though neither partner contracted HIV, Hunter was still convicted under Arkansas’s HIV exposure law, which requires those who know they are HIV-positive to disclose their status to sexual partners. Sentenced to a dozen years in prison, he was released in 2011 after serving almost three.
But now, he must register as a sex offender, incurring the same obstacles, humiliation, and costs many others on registries face.
In Louisiana, where he now lives, Hunter’s driver’s license has “sex offender” written in capital letters under his photo, per the state’s registry requirements.
“When I saw it on my license, that was one of the most hardest things ever,” said Hunter, now 44. “Those two words on my license are still a hindrance to the life I want to live.”
Lousiana, Arkansas, Ohio, South Dakota, Tennessee, and Washington State require, or authorize courts to require, those convicted under HIV criminalization laws to be on the sex offender registry, according to the Center for HIV Law and Policy. Advocates, who condemn the statutes as ineffective, stigmatizing, and unscientific, are working to modernize the laws in the courts and state legislatures.
But even some of the fixes fall short, they say, including an amendment to Louisiana’s law that was enacted last year that removed biting and spitting as specifically identified means of transmission. Disclosure of HIV status is still required.
“We do not need to be punishing people through the criminal law,” said Robert Suttle, assistant director of the Sero Project, which advocates HIV criminalization law reforms. “This is a public health issue.”
Hunter, a hemophiliac, was diagnosed with HIV in 1981, at age 7. He said he and his family largely kept his status a secret.
“People were treated harshly who had this disease,” said Hunter. “They were treated like outcasts.”
But though the public’s perception of HIV has evolved, being on a sex offender registry carries a similar stigma. After he was released from prison in 2011, Hunter settled in Louisiana. He has found it difficult to find work, he said. Louisiana’s sex offender registry law requires him to register any address where he stays longer than seven days.
In the 1980s and 1990s, a flurry of HIV criminalization laws were enacted, many of which remain on the books. Today, 26 states have HIV-specific laws that criminalize exposure, according to the Centers for Disease Control and Prevention.
HIV became “swept up” in the era’s “punishment fever,” explained Trevor Hoppe, author of “Punishing Disease: HIV and the Criminalization of Sickness.”
“Legislators around the country were already in the mode of punishment,” said Hoppe. “It was kind of a general approach they were taking to many social problems.”
Because there is no national database that tracks prosecutions, it is difficult to know how many people have been charged, convicted, or placed on the registry as a result of HIV criminalization laws, according to Catherine Hanssens, executive director of the Center for HIV Law and Policy. A comprehensive study of Florida’s criminalization laws found that more than 600 people had been arrested for an HIV-related offense between 1986 and 2017.
Scientists, psychologists, healthcare providers, and HIV-positive advocates have condemned the laws over the decades since they were enacted, noting that there has been no association found between criminalization statutes and lower transmission rates.
“People with HIV are not out there passing HIV along in some intentional way,” said Dorian-gray Alexander, a member of the Louisiana Coalition on Criminalization and Health who is living with HIV. More than a third of the time, the transmission of HIV is between people who don’t know their status.
HIV criminalization statutes rarely take into account advances in treatment, condom use, or actual risk of transmission, according to advocates. For instance, in Arkansas, where Hunter was convicted, it is a felony to sexually penetrate another person without first disclosing one’s HIV-positive status. However, penetration is broadly defined as an “intrusion, however slight, of any part of a person’s body or of any object into a genital or anal opening of another person’s body.”
Cheryl Maples, an Arkansas attorney, plans to file a petition in federal court in the coming weeks that challenges the law’s constitutionality, she told The Appeal. Maples, whose uncle died of AIDS-related complications, has defended several people charged with HIV exposure. The state attorney general’s office did not respond to a request for comment.
“It is basically a crime that is against the LGBT community and other communities that are in disfavor,” said Maples. “People that are being charged with this are not predators.”
In Tennessee, sexual contact is not even required under the state’s aggravated prostitution statute. A person is in violation of the law if he or she knows they are HIV-positive and works “in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity.” Those convicted are placed on the sex offender registry and face up to 15 years in prison.
People convicted of aggravated prostitution can petition to be removed from the registry if they were victims of sexual violence, domestic abuse, or human trafficking. Last year, then-Governor Bill Haslam signed into law a bill that allows those convicted as juveniles with aggravated prostitution to have their records expunged if they were victims of human trafficking.
But regardless of why or when someone engages in sex work, sex workers living with HIV need “services, not handcuffs,” said Alex Andrews, co-founder of Sex Workers Outreach Project (SWOP) Behind Bars.
“When you put someone on a registry for having HIV, that’s public information,” said Andrews. “Put sex work on top of that and you have a really bad situation for survival.”
The state’s aggravated prostitution statute and HIV exposure law are both felonies that require sex offender registration. That’s different from the way Tennessee law governs the disclosure of other infectious diseases. It is a misdemeanor to engage in “intimate contact” without disclosing a diagnosis of Hepatitis B or C, but failure to disclose those diseases does not require sex offender registration.
As attempts are made to reform HIV criminalization laws, advocates worry about changes that tie criminalization solely to a person’s risk of transmission. Doing so, they warn, could marginalize those without access to treatment and those with detectable viral loads. (Those with undetectable viral loads, like Hunter, have “effectively no risk” of transmitting the virus, according to the CDC.)
Repealing HIV-specific laws is often insufficient, they add, because people can still be exposed to harsh punishments. People in states without such laws have been charged with attempted murder or assault with a deadly weapon for a range of incidents including spitting. (HIV cannot be transmitted through saliva.)
Modernizing statutes should focus on a person’s intent, and conduct likely to cause harm, not a failure to disclose, said Hanssens, the HIV law and policy center executive director. Any reform must also cease placing people on the registry, a practice she called “irrational and unconscionable.”
“You cannot treat consensual sexual contact as a criminal wrong simply because that particular person happens to have one or another disease,” said Hanssens. “It’s a pointless and dangerous and stigmatizing response to what is a public health issue.”
Hunter has joined HIV-positive advocates from across the country in speaking out about the harms of criminalization and the sex offender registry in particular. He also works to reduce the persistent stigma and fear surrounding HIV by helping young people tell their families they are HIV-positive.
“They need to understand that it’s not a death sentence,” said Hunter. “I’m married. My wife is not HIV-positive, and we are trying to have a child.”
He has started a nonprofit organization dedicated to HIV and AIDS education in his brother’s name, the Dr. Michael A. Hunter Foundation. His brother, like Hunter, was a hemophiliac who contracted HIV from a blood transfusion. He died from AIDS-related complications in 1994.
“I’m Mark, and I happen to be HIV-positive,” said Hunter. “I had to embrace that, and once I embraced it, I let go of a lot of the pain.”