US: Webinar on HIV criminalisation primarily aimed at defense lawyers organised by NACDL and CHLP on Dec 15

On December 7, 2017, the National Association of Criminal Defense Lawyers (NACDL) and The Center for HIV Law & Policy (CHLP), will co-host a webinar on HIV Criminalization that will provide participants with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer, geared toward criminal defense attorneys, but open to all, will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases.

Date:   Thursday, December 7, 2017

When:  1:30 p.m. – 3:00 p.m. ET

Cost:   FREE

CLE credit:  Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

Register:  Click here to register.

Note:   Confirmed registrants will receive a web link via email the morning of the event.

Registrants will be sent a link to the written CLE materials in advance of the webinar.

Presenters

Dr. David Wohl (Chapel Hill, NC)

David Alain Wohl, MD is a Professor of Medicine in the Division of Infectious Diseases at the University of North Carolina (UNC). He is Site Leader of the UNC AIDS Clinical Trials Unit at Chapel Hill, Director of the North Carolina AIDS Education and Training Center (AETC) and Co-Directs HIV Services for the North Carolina state prison system. In 2014, he became Co-Director of the UNC-Duke-Clinical RM Ebola Response Consortium. Dr. Wohl’s research aims to optimize the treatment of HIV including the identification of the most effective therapeutic approaches, and minimizing adverse effects of therapy. He also is active in investigations focused on HIV vulnerable populations, such as the incarcerated. He is active within the US AIDS Clinical Trials Group and HIV Prevention Trials Network and served two terms as a member of the US Department of Health and Human Services Antiretroviral Guidelines Panel. As part of the response to the 2013-16 Ebola outbreak in West Africa, Dr. Wohl led UNC clinical research efforts to test interventions for Ebola Virus Disease in Liberia and now directs a clinical cohort of Ebola survivors. In addition to his research and administrative activities, Dr. Wohl maintains a large HIV continuity clinic at UNC.

Stephen Scarborough  (Atlanta, GA)

Stephen R. (Steve) Scarborough is a criminal defense attorney in Atlanta whose practice focuses on appellate and post-conviction matters in state and federal courts. A graduate of Emory University and Yale Law School, he has been a longtime public defender, a staff attorney at the Southern Regional Office of Lambda Legal, and an attorney in private practice representing persons accused in serious felony cases. He is interested in the intersection of the criminal law and public health and has represented several persons who were accused of HIV-related offenses or were subject to enhanced sentences on account of their status. He is part of a community effort to replace Georgia’s outdated, HIV-specific reckless conduct statute, which imposes felony liability in a broad range of cases where transmission of HIV is nearly or totally impossible.

UK: Professor Matthew Weait reflects on the first convictions for intentional HIV transmission in England & Wales

Daryll Rowe guilty – but is criminal law the right way to stop the spread of HIV?

Daryll Rowe infected five male sexual partners with HIV, and tried unsuccessfully to infect a further five. Yesterday, he was convicted in the Crown Court at Lewes on ten counts of causing, and attempting to cause, grievous bodily harm. He will be sentenced in January.

This is the first case in the UK in which a person has been convicted of intentionally harming, or attempting to harm, others with HIV – prior to this, all UK convictions have been for reckless transmission. It is a uniquely harrowing and distressing case, and the impact of Rowe’s actions on the complainants cannot be underestimated.

Unsurprisingly, the trial has provoked much media comment, and his behaviour widespread condemnation – the details of Rowe’s actions, after all, are particularly shocking.

But whatever judgement we might pass on Rowe’s behaviour from a moral or ethical perspective, the criminalisation of HIV transmission and exposure more generally raises a number of important questions, not least regarding its impact on HIV-related stigma and efforts to reduce, and ultimately eradicate, the virus.

Ever since its discovery as the causative agent of AIDS in 1983, countries across the world have used the criminal law, both to censure those who have exposed others to the risk of infection or have in fact infected others, to control the spread of the virus.

The first of these rationales, a retributive one, reflected the fact that, until the mid-1990s, HIV was untreatable and almost inevitably led to death. It is therefore not surprising that states should have treated HIV as a weapon, and its effects as serious bodily harm.

The second rationale, a deterrent one, assumes that punishment will deter the accused – and others – from engaging in risky activity. It therefore has a supposed legitimacy from a public health perspective.

Both of these justifications are problematic.

The false path

Regarding retribution, criminal law requires that the defendant manifest a high degree of fault at the time – typically, that he acted intentionally, as Rowe did, or recklessly. As to intention, this can be established in English law and many other jurisdictions if (a) it is proven that it was the defendant’s purpose to infect, or (b) it may (but need not) be inferred if infection was virtually certain to occur, and the defendant foresaw that consequence as virtually certain.

Proving purposive intention is extremely difficult – a deliberate intention to engage in sexual activity which carries with it the risk of onward transmission is not the same as intending to transmit. It is also very difficult, in the case of HIV, to establish intention in the alternative way because, as has been confirmed in a number of clinical consensus statements, from Canada, Australia, and Sweden, the probability of transmission in any one incident of sexual intercourse is extremely low.

What’s more, where a deliberate (but unsuccessful) attempt to transmit HIV during sex is prosecuted, is it legitimate to punish someone for failing to achieve a consequence which is, statistically speaking, extremely unlikely to materialise? Critically, in the case of HIV, the accused is unable, as a matter of fact, to exercise agency over the outcome. (There is arguably a difference between swinging a bat at someone’s knee and missing, and having sex during which a virus may, but on any one occasion probably won’t, infect a partner.)

Recklessness (the conscious taking of an unjustifiable risk), however, is a lesser form of culpability. It is easier to prove, and a far more common basis for criminalisation. Until now, reckless transmission has been the basis for all UK convictions.

Rowe was found guilty of intentionally harming, or attempting to harm, others with HIV. But criminalising reckless transmission is particularly problematic. From a retributive perspective, this amounts to punishing people living with HIV who have sex during which HIV is transmitted, not because they had any desire that this should happen but because they were aware that it might. This places the entire burden of minimising the risk on them (even in cases where a partner is in fact aware of the risks), and is even more problematic where reckless exposure (as opposed to transmission) is criminalised.

This is not just because no physical harm has been caused, but because there is an absence of clarity as to what degree of risk is acceptable. In Canada, for example, there needs to be a “significant risk”, though what this means is contentious. It is now widely accepted that when a person diagnosed with HIV is on effective treatment and has an undetectable viral load, transmission is all but impossible. In the words of a current, high-profile, campaign to encourage testing and treatment, Undetectable = Untransmittable, or U=U.

A deterrent?

Criminalisation can also create obstacles to delivering beneficial public health outcomes.

First, because a person living with HIV can only be convicted for transmission, attempt, or exposure if he knew his HIV positive status at the relevant time, those who are in fact positive but don’t know can’t, by definition, be deterred by the prospect of punishment.

Second, and critically, criminalisation contributes to the stigma associated with HIV infection. Sensationalist press coverage, focusing on exceptional “newsworthy” cases, does little if anything to normalise HIV infection or to inform the general public about the fact that the vast majority of people living with HIV take every precaution against putting partners at risk. Instead, it fuels ignorance and misunderstanding.

Indeed, the print media in the UK and elsewhere has a long tradition of sensationalising HIV transmission and exposure cases, often at the expense of accurate reporting – whether about the trials themselves, or about the characteristics of those convicted.

This may make people wary of disclosing their status to partners, adhering to treatment, or getting tested in the first place.

Indeed, there is now near universal consensus among expert bodies, including UNAIDS and the Global Commission on HIV and the Law, that the use of the criminal law, where it is used at all, should be limited to the most egregious of cases and that exposure and reckless transmission should be decriminalised. Where states do use criminal law against those who deliberately and maliciously harm others, the highest standards of forensic evidence should be deployed.

Any moral judgement we pass on defendants in particular cases (who, it is worth remembering, were themselves infected by someone else) should not deflect attention from what must be our main priority: the total eradication of HIV.

We know definitively that regular testing and early treatment can significantly reduce the number of new infections, and we know that stigma, fuelled by criminalisation and press coverage, impedes this.

Rowe’s behaviour was found to be criminal. But we should reflect on whether criminal law – in general – does more harm than good, and ensure wherever, and whenever, possible that HIV is understood and treated as a public health priority rather than as an opportunity for blame and punishment.

Africa: Civil society organisations deliver statement condemning HIV criminalisation at African Commission on Human and People's Rights

MEDIA RELEASE: Civil society statement on the criminalisation of HIV at the 61st Ordinary Session of the African Commission on Human and People’s Rights

6 November 2017

BANJUL, The Gambia—Civil society organisations working on HIV and human rights, delivered a statement at the 61st Ordinary Session of the African Commission on Human and People’s Rights condemning the disturbing trend of the enactment of repressive HIV specific laws which often contain provisions that criminalise HIV, transmission, non-disclosure and exposure. These laws also often provide for compulsory HIV testing, disclosure of HIV status and involuntary partner notification.

“These provisions are overly broad and disregard the best available scientific evidence. They fail to pass the human rights test of necessity, proportionality and reasonableness; rather, they have the effect of exacerbating stigma, discrimination and prejudice against people living with HIV. These measures undermine both an effective public health response to the HIV epidemic, as well as the human rights of people living with HIV,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA).

In sub-Saharan Africa, while there were no HIV-specific criminal laws at the start of the 21st century, 31 countries have since then enacted overly broad or vague HIV-specific criminal statutes. These laws and policies provide, inter alia, for the criminalisation of HIV transmission, exposure and non-disclosure despite the fact that in all of these countries there are existing penal provisions which can be invoked in those rare cases of intentional HIV transmission. The number of prosecutions continues to rise at an alarming rate in countries where HIV specific criminal laws have been promulgated. To date, prosecutions have been documented in 16 countries.[1]

“We are concerned that the current advancements in the HIV response in Africa are being threatened by the misguided use of criminal sanctions by States, to – as they argue – ‘control the spread of the HIV epidemic’. These laws, policies and practices violate the rights of people living with HIV and of all healthcare users to informed consent, bodily integrity, dignity, freedom from inhuman and degrading treatment, and fair trial rights, amongst others. The protection of these rights is specifically provided for in Article 4 (bodily integrity), Article 5 (dignity), Article 7 (fair trial), and Article 16 (right to health) of the African Charter,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre.

Women living with HIV face surveillance and state control in terms of their reproduction, family planning, childbirth, child feeding, and child raising choices. In many contexts, HIV criminalisation laws, policies, and practices have a disproportionately punitive effect on women, as evidenced by recent cases. For example, in Malawi a woman living with HIV was prosecuted for breastfeeding. In addition, there are numerous examples of prosecutions of people living with HIV in Zimbabwe, Uganda, and Nigeria, particularly women. In our patriarchal societies, it is women who already disproportionately face the burden of the HIV epidemic due to their inability to negotiate protective sexual intercourse in relationships, and are often the first to be tested for HIV.

“We, however, would like to recognise the positive developments made by some African countries due to consistent advocacy on the part of civil society. Two countries have strongly rejected HIV criminalisation: Mauritius in 2007 and Comoros in 2014. Furthermore, Mozambique revised its HIV law in 2014 to remove HIV criminalisation, and in Kenya the High Court has ruled that section 24 of HIV Prevention and Control Act 2006, which forced people with HIV to disclose their status to any ‘sexual contacts’, was found to contravene the Kenyan constitution that guarantees the right to privacy,” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).

As HIV and human rights organisations we call on the African Commission on Human and People’s Rights to take leadership in protecting the rights of people living with and affected by HIV, including women living with HIV by:

  • Encouraging and reminding member states about their obligations under the African Charter and the Maputo Protocol, including Resolutions adopted by the Commission;
  • Reminding states of their duties and mandates to protect and promote the rights of people living with and affected by HIV, including women and girls who are vulnerable to HIV, by prioritising the urgent needs for access to justice and the upholding of the rights to bodily integrity, autonomy, and health;
  • Calling on states to repeal laws that unjustly criminalise HIV transmission, exposure, and non-disclosure.

The full statement can be found here: HIV_Criminalisation_statement__African_Commission_SALC_ARASA.pdf

Signed:

AIDS and Rights Alliance for Southern Africa http://www.arasa.info

Centre for Human Rights Education, Advice and Assistance http://chreaa.org

Centre for the Development of People http://www.cedepmalawi.org

Coalition of Women Living with HIV in Malawi https://cowlhamalawi.wordpress.com

Southern Africa Litigation Centre https://southernafricalitigationcentre.org

Women Lawyers Association of Malawi https://womenlawyersmalawi.com

Zambia Network of Religious Leaders Living With or Affected by HIV and AIDS http://zanerela.weebly.com

[ENDS]

US: Scientific advances and determined advocates are forcing US states to re-evaluate HIV criminal laws

Science battles politics in growing state-by-state debate over HIV felony charges

  • California Gov. Jerry Brown signed a bill last month making California the fourth state to revise criminal laws regarding HIV exposure.
  • Medical studies say there is effectively no risk of transmitting HIV while taking current drug regimens.
  • Advocates are pushing states across the country to reevaluate HIV criminal laws.

In six U.S. states, individuals living with HIV who are found guilty of knowingly exposing a partner are required to be registered as a sex offender. They can face felony charges, or felony-level punishments, in 32 states.

But as breakthrough HIV drug treatments and medical studies show there is essentially no risk of sexually exposing someone to HIV while taking antiretroviral drug therapy (ART), states are being forced to play catch-up to the science, and stigma, of the AIDS virus.

There are 1.1 million people living with HIV in America, according to the Centers for Disease Control and Prevention. Between 2003 and 2013, ProPublica reported (in the most recent data available) 2,352 records of HIV-related charges, with at least 541 convictions or guilty pleas.

“It’s not easy to get people to agree with science,” said Bruce Richman, executive director at the Prevention Access Campaign, an organization that seeks to provide the public with accurate information about HIV exposure. “It conflicts with their long, deeply held beliefs about transmission risks.”

Last month Gov. Jerry Brown signed bill SB 239, making California the fourth state to rewrite HIV exposure laws that were enacted in the 1990s during the AIDS epidemic. Before the legislative reform, a person living with HIV who violated the California law could spend eight years in prison, with additional time if the person was a sex worker. The punishment resembled a typical sentence for voluntary manslaughter — three, six or 11 years in prison.

The bill reduced charges from a felony to a misdemeanor, with maximum sentencing in a county jail now set at six months, and is no longer HIV-specific but includes other communicable diseases, such as hepatitis. Anyone who intentionally attempts to transmit a disease without success will be charged with a misdemeanor with a maximum sentence of 90 days.

While the bill passed in the California Assembly 44-13, not all legislators agreed with the decision.

“I’m of the mind that if you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regimen of medications to maintain any kind of normalcy, it should be a felony. It’s absolutely crazy to me that we should go light on this,” Sen. Joel Anderson said as he debated the bill, according to a report in the Los Angeles Times.

“This isn’t about making people sick; it’s about people living with HIV being able to live their lives and not be subject to felonies that people with other communicable diseases are not subject to,” said Jo Michael, legislative manager at LGBT advocacy group Equality California. In fact, Michael said this legislation will lead to more individuals seeking treatment. “HIV was singled out, and that increases the stigma,” Michael said. “If you want to lower new infection rates and have fewer people living with it over time, addressing the disparity in discrimination is a way to do it.”

Two recent medical studies — the PARTNER study, which followed 900 heterosexual and gay couples for 16 months; and Opposites Attract study, which followed 358 gay couples — have determined that the risk of transmission while taking ART is effectively zero.

“We can achieve full suppression of viral replication, and we know from the data: If the medication is taken continuously and over the time of the infection, there is no breakthrough infection anymore,” said Hendrik Streeck, director of the Institute of HIV Research at the University Duisburg-Essen in Germany, which conducts research on therapy methods and vaccine development.

Without taking ART, condoms and PrEP (a medicine that lowers the risk of infection), reduce the risk of getting HIV by more than 90 percent.

Scientists from the National Institutes of Health and Paris-based pharmaceutical company Sanofi are also moving closer to developing a vaccine for AIDS.

According to research at the William Institute of Law at UCLA, the California law before its reform disproportionately affected women and people of color, and 95 percent of HIV-specific criminal incidents impacted sex workers or suspected sex workers.

Recent CDC statistics show that individuals living below the poverty line are two times more likely to be HIV-positive than those living above it.

States are still resistant to reforming HIV laws

Despite the latest science, many states remain hesitant to change laws adopted in the 1990s. In total, 29 states impose felonies on an individual who fails to disclose their HIV status before sex, and three states (Louisiana, Minnesota and New Jersey) impose punishments equivalent to that of a felony offense, with sentences of at least two years in prison.

In Tennessee a person living with HIV who knowingly exposes others can be quarantined by the state’s Department of Health “after exercising other appropriate measures” if he or she is determined to be a threat to the public. This health code does not require a conviction under the Tennessee HIV-exposure law.

State HIV criminal laws stem from a federal initiative in 1990 under the Ryan White Comprehensive AIDS Resources Emergency Act, which made funding for AIDS treatment and care contingent on states passing laws to prosecute individuals who knowingly exposed someone to HIV.

In 1995, AIDS was the leading cause of deaths for adults 25 to 44 years old. There were 51,414 deaths that year, the peak of the epidemic. Since new drugs to treat HIV became available between 1995 and 1996, the number of HIV-related deaths per year in the United States have sharply declined. In 2014 there were 6,721 deaths, according to the Centers for Disease Control and Prevention.

Iowa was among the first states to take small steps in reforming HIV laws, along with Colorado. In 2014, Iowa eliminated a requirement for convicted individuals to register as sex offenders, and it created a tiered penalty system, which now looks at whether transmission of HIV occurred and whether or not exposure was intentional. Additionally, other diseases were elevated to be included under the law, such as hepatitis or tuberculosis. However, someone who exposes a partner to HIV can still face up to five years in prison — up to 25 years in prison if the virus is transmitted.

In 2016, Colorado eliminated felony penalty enhancements involving sex workers living with HIV and modernized language having to do with HIV and other sexually transmitted infections in its public health code. It also reduced the sentence enhancement for sexual assault if a person is HIV-positive to twice the original sentence and requires proof of transmission.

Catherine Hanssens, executive director of The Center for HIV Law & Policy, says these state measures still don’t reflect the latest science regarding HIV.

“The rest of the country does not understand that it is not easily transmittable and easily manageable,” Hanssens said. “[HIV] is serious, but it can be managed.”

Advocates are pushing against many state legislatures that show little inclination to reform their laws.

“There are efforts to change the laws under way across the country from Florida to Ohio to Washington state,” said Kate Boulton, staff attorney at the HIV Center for Law & Policy. She says it is a highly complex process, depending on the political climate of the states.

“It has a lot to do with how the individual legislation works and how connected to policymakers the advocates are,” Hanssens said.

An Ohio Supreme Court challenge fails

Ohio could have been the next state to reform their HIV criminalization laws, but the Ohio Supreme Court decided to uphold its current HIV codes in a ruling on Oct. 27. Orlando Batista appealed after being charged with a second-degree felony assault in 2016 for transmitting HIV to his girlfriend without disclosure and receiving a charge of eight years in prison.

The American Civil Liberties Union advised the court that his conviction violated the equal-protection clause by singling out people living with HIV, and it forced disclosure of personal medical diseases that violated his right to freedom of speech.

Elizabeth Bonham, staff attorney at ACLU, had been hopeful the law would be struck down in its entirety. “This was a disappointing decision and a setback for the rights of people living with HIV, but we will continue fighting against the stigma and against criminalization,” she said in an email the day the Supreme Court decision was released.

In Georgia, reform of HIV laws might take even longer, as advocates are still in the process of trying to update their legislators on the medical science of HIV transmission.

“I live in a state where legislators aren’t educated on HIV. The laws don’t protect me. … There is no room for defense for people like myself,” said Nina Martinez, who was diagnosed with transfusion-acquired HIV (passed along through blood) when she was 8 years old.

Martinez was present last week when Georgia State Legislator Betty Price — former Trump Department of Health and Human Services Secretary Tom Price’s wife — used the word “quarantine” in a suggestion for how to stop the spread of HIV in a meeting on improving health-care access.

“I feel like we’re back in the ’90s, but we’re in 2017,” Martinez said.

In Indiana the health codes are tied to HIV laws. Individuals given an HIV-positive diagnosis are asked to sign an acknowledgement that their health providers have a “duty to warn” — meaning doctors and health-care providers are permitted to break client/patient confidentiality agreements in cases having to do with HIV exposure. This could make people less likely to seek out a diagnosis or disclose information to their therapists or doctors.

“Health providers become an extension of the laws,” said Carrie Foote, chair of the HIV Modernization Movement in Indiana, which was formed last summer.

People living with HIV caught in the crosshairs

Aside from health providers, residents who seek diagnosis open themselves to potential criminal action merely by knowing their status. “If you don’t know your HIV status, it’s not a crime,” Foote said.

Travis Spoor was diagnosed with HIV in 2012, but he had never been linked to care when he was sentenced to three years in prison in Indiana for failing to disclose his HIV status to a sexual partner, even though he did not transmit HIV. Foote said it will be incredibly difficult for him to start getting treatment in the Indiana jails, since he had not been receiving care before his arrest.

“He should have been linked to care. Our system failed him, and it’s still failing him,” Foote said.

HIV is the only disease criminalized under Indiana laws. “It is not based on whether someone intended to harm or did harm. It’s based solely on their HIV status,” Foote said.

EQCA legislative manager Michael said, “Wherever laws like this exist, they are harming people.”

Nationally, California Congresswoman Barbara Lee reintroduced the REPEAL (Repeal Existing Policies that Encourage and Allow Legal) HIV Discrimination Act in the House for the third time in March 2017, requesting that the Department of Justice, Department of Health and Human Services and the Department of Defense review and modernize federal and state law regarding HIV-positive individuals. The same bill was introduced twice by Delaware Sen. Christopher Coons in the Senate and rejected both times.

“I don’t think this has particularly strong prospects in the current congressional climate,” said Boulton in an email.

Indiana HIV activist Foote remains determined.

“It shouldn’t matter how liberal or conservative your state is. It has to do with the fact that we have a health epidemic,” she said. “We have a public health issue. In this case, states are using the state law in an unwarranted way to treat a health issue, where there’s no evidence that works. … [HIV] criminalization has a unit effect, a family effect, and it has a ripple. It negatively affects all of us.”

— By Jessica Mathews, special to CNBC.com

Published on CNBC on Nov 7, 2017

Mexico: The Network against the Criminalisation of HIV report that 30 out of 32 states criminalise "exposure to infection" in Mexico

In Mexico 30 states criminalize HIV as “a crime of exposure to infection”  (Google translation. For article in Spanish, please scroll down)

The Network against the Criminalisation of HIV, a coalition formed by 29 associations in favour of human rights in Mexico, reported that 30 of the 32 states that make up the Mexican Republic include in their Penal Codes the category “Crime of exposure to infection”, which punishes people who transmit or can transmit a “non-curable disease” to another person.

“The aim of the network is not to start a witch hunt, because it was surprising that in the last two years this law has been discussed in three different state congresses,” he explained to Leonardo Bastida, member of the association, Letra S.

According to the organisations, this legal statute endangers people with HIV, as it criminalizes and undermines strategies aimed at combating the epidemic. Specifically, laws sanction the possibility of transmitting an illness, even if it happens involuntarily.

According to Bastida, since the year 200 have registered 39 criminal proceedings for this cause, of which 15 are located in Veracruz, nine in Sonora, five in Tamaulipas, five more in the State of Mexico, three in Chihuahua, one in Mexico City and one more in Nuevo León.

According to the activists, these criminalizing laws emerged in the first half of the 20th century and focused mainly on penalizing the “contagion” of syphilis, but over the years they were modified and included various diseases.

Only Aguascalientes and San Luis Potosí do not have this legalstatute in their penal codes, while in Sonora the law could be toughened, since there is currently a proposal that is being analyzed to establish sentences of up to 15 years in prison. Activists and the State Human Rights Commission seek to repeal Article 113 of the Criminal Code, which includes this criminal category.

The network detailed that in the case of Veracruz, legislators approved in 2015 an amendment to the local penal code to add to the “crime of contagion” the term “sexually transmitted infections. In addition, with the amendment of article 158, sentences of 6 months to 5 years in prison were established.

Faced with this situation, a group of social organizations presented an appeal of unconstitutionality to the Supreme Court of Justice of the Nation. The activists trust that the SCJN will rule in favor of the lawsuit.

Members of the Network against Criminalization warned that these types of laws do not help to combat the increase in HIV cases and only contribute to stigmatization and make it difficult for strategies focused on combating HIV transmission to meet their goals.

With information from EFE.

—————————————————-

En México 30 estados criminalizan el VIH como “delito de peligro de contagio”

La Red contra la Criminalización del VIH, una coalición conformada por 29 asociaciones a favor de los derechos humanos en México, informaron que 30 de los 32 estados que conforman la república mexicana contemplan en sus Códigos Penales la categoría “Delito de peligro de contagio”, la cual castiga a las personas que transmitan o puedan transmitir una “enfermedad no curable” a otra persona.

“El objetivo de la red es que no empiece una cacería de brujas, porque fue sorprendente que en los últimos dos años se haya discutido en tres congresos estatales diferentes esta ley”, explicó a Leonardo Bastida, integrante de la asociación, Letra S.

De acuerdo con las organizaciones, dicha figura penal pone en peligro a las personas con VIH, ya que las criminaliza y resta fuerza a las estrategias enfocadas a combatir la epidemia. Específicamente, las leyes sancionan la posibilidad de transmitir alguna enfermedad, aunque suceda de forma involuntaria.

De acuerdo con Bastida, desde el año 200 se han registrado 39 procesos penales por esta causa, de los cuales 15 se ubican en Veracruz, nueve en Sonora, cinco en Tamaulipas, cinco más en el Estado de México, tres en Chihuahua, uno en la Ciudad de México y uno más en Nuevo León.

Según explicaron los activistas, estas leyes criminalizadoras surgieron en la primera mitad del siglo XX y se enfocaban principalmente a penalizar el “contagio” de la sífilis, pero con el pasar de los años se fueron modificando e incluyeron diversas enfermedades.

Sólo Aguascalientes y San Luis Potosí no cuentan con esta figura en sus códigos penales, mientras que en Sonora se podría endurecer la ley, ya que actualmente existe una propuesta que está siendo analizada para establecer penas con hasta 15 años de prisión. Los activistas y la Comisión de Derechos Humanos del Estado buscan derogar el artículo 113 del Código Penal, el cual incluye esta categoría penal.

La red detalló que en el caso de Veracruz, los legisladores aprobaron en 2015 modificar el código penal local para agregar al “delito del contagio” el término “infecciones de transmisión sexual. Además con la modificación del artículo 158 se establecieron penas de 6 meses a 5 años de cárcel.

Ante este panorama, un grupo de organizaciones sociales presentaron un recurso de inconstitucionalidad a la Suprema Corte de Justicia de la Nación. Los activistas confían en que la SCJN falle a favor de la demanda.

Los integrantes de la Red contra la Criminalización alertaron que este tipo de leyes no ayudan a combatir el aumento de casos de VIH y sólo contribuyen a la estigmatización y dificultan que las estrategias enfocadas a combatir la transmisión del VIH cumplan sus metas.

Con información de EFE.

Malawi: Human right groups condemn new HIV bill as discriminatory, paternalistic and harmful to the HIV response

Malawi rights bodies defy criminalising the transmission of HIV:  Bill deeply flawed

Stakeholders have described the new HIV and AIDS Bill as ‘a bad law’ and a disaster to happen as it is discriminatory and will impede the fight against AIDS.

The bill includes mandatory HIV testing for pregnant women and their partners, and allows medical providers to disclose a patient’s HIV status to others. The bill also criminalizes HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status.

Human rights groups and activists who converged in Lilongwe recently for the media advocacy meeting on HIV and Aids Bill described the new bill on HIV and AIDS as a debauched law in the offing.

Centre for Human Rights Education, Advice and Assistance (CHREAA) organised the meeting.

Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights, the rights activists said. The criminalization of HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status is overly broad, and difficult to enforce.

Female Sex workers Association executive member, Zinenani Majawa, speaking on behalf of sex workers in in Malawi said: “This Bill targets us because men will always be saying this sex worker infected me with the disease.”

Majawa vehemently quashed the bill, saying it does not give any hope towards the HIV positive response.

The sex workers representative argued that Section 43 and 44 will also be difficult to apply with due adherence to fair trial rights including the right to be presumed innocent, adding that it is not correlating on the obligation for the state to prove criminal conduct beyond a reasonable doubt.

“This is because in most circumstances, there is no scientific means to prove the direction of HIV transmission beyond a reasonable doubt,” said Majawa.

During the meeting the stakeholders nudged holes on the new bill, saying, for example section 43 that targets deliberate transmission was seen to be similarly overboard.

“Phylogenetic analysis is expensive it requires the use of complex computational tools to estimate how closely related the samples of HIV taken from complainants and defendants are in comparison to other samples,” argued some stakeholders.

‘Vilification of women’

Making a presentation on the new Bill, Women Lawyers Association (WLA) President Sarai Chisala said, in its current format, despite the many admirable aspects of the HIV Bill, the provisions that create criminal measures to enforce various HIV management efforts have the effect of infantilizing, criminalizing, stigmatizing and potentially victimizing women – particularly women who are already living with HIV.

Said Chisala: “Rather than being protective and preventive, the law is paternalistic, positing women as both victims and vectors of HIV. Yet in reality women living with HIV rarely describe themselves as “victims” when relaying how they became infected, and the language of vectors is especially harmful for those most marginalised members of society such as female sex workers.”

Chisala further explained that the HIV Bill both demonizes and infantilizes women, they are painted as carriers of the disease but also as potentially careless and callous mothers; and women of loose morals.

“In a country where more than half of the women are married before the age of 18, and it is within these relationships – and oftentimes violent relationships, a product of harmful cultural practices – that they either become infected or learn of their infection, in this manner, lives that are already filled with violence are suddenly even more fraught with danger, Chisala said.

Sarai added that there are clear public health implications to a pandemic such as HIV and AIDS and the role that the government opts to play in the management of the pandemic has a severe impact on the course of the disease.

According to the WLA president: “legislation can be used to set out the manner in which issues such as voluntary counselling and testing; partner notification; medical care and treatment of AIDS related illnesses; and, epidemiological surveillance, amongst other things, are handled,” adding; “The UNAIDS Handbook for Legislators on HIV/AIDS, Law and Human Rights (the Handbook) suggests that laws should require specific informed consent before HIV testing is done for fear of risking violation of a person’s right to both privacy and personal liberty, the Handbook also goes on to stress that targeting specific groups for compulsory testing is in violation of the non-discrimination principle under international human rights law.”

The WLA leader also noted with consternation that the overly punitive crafting of many of the provisions in the HIV Bill, that were intended to prevent the spread of HIV and AIDS, are instead more likely to lead to disproportionate demonization and vilification of women living with HIV.

Some of the organizations which have openly challenged the newly introduced bill includes, female sex workers, Child Rights Information and Documentation Centre, Coalition of Women Living with HIV, AIDS Rights Alliance, Mango Network, Southern Africa Litigation Centre, Centre for Development of People, CHREAA, Youth Watch Society just to mention a few.

Published in the Nyasa Times on Nov 2, 2017

Webinar on Wednesday, Nov. 15: HIV Criminalisation Beyond Non-Disclosure: Advocacy Toolkits on Intersections with Sex Work and Syringe Use

Introducing HIV Criminalization Beyond Non-Disclosure: Advocacy Toolkits on Intersections with Sex Work and Syringe Use 

Webinar: Wednesday, November 15, 3:30-4:30 pm ET

The toolkits highlight the intersections between advocacy for HIV criminal law reform, decriminalization of sex work, and safe syringe access. These different advocacy communities share many common goals and constituencies, yet do not generally work in close collaboration or collectively strategize.
The webinar will introduce you to these intersections and include a discussion of how the toolkits can enhance your own advocacy, as well as Q and A. 
Click here to register!

Canada: Endorse the Consensus Statement by the Canadian Coalition to Reform HIV Criminalization

Endorse the CCRHC Consensus Statement: End Unjust Prosecutions for HIV Non-disclosure

Posted on October 27, 2017

We find ourselves at a crucial moment in our efforts to reform discriminatory and unjust laws and practices that criminalize people living with HIV.

The Canadian Coalition to Reform HIV Criminalization (CCRHC) has developed a Community Consensus Statement on actions federal, provincial and territorial governments must take to address the overly broad use of the criminal law in cases of alleged HIV non-disclosure.

In developing this statement, the CCRHC consulted with people living with HIV, service providers, communities affected by HIV and over-criminalization, scientific experts and others, through multiple rounds of in-person and electronic consultation throughout Canada.

We are now seeking wide endorsement by organizations in Canada involved in human rights and the response to HIV with the aim of building a common advocacy agenda aimed at limiting unjust and harmful prosecutions.

Please read and sign on to the Community Consensus Statement on behalf of your organization today using this link:  https://www.surveymonkey.com/r/CCRHCstatement.

 

Mexico: 20 NGOS set up the Network against HIV criminalisation in Mexico

A network of organisations fights against HIV criminalisation law in Mexico Google translation (see below for original article in Spanish)

Mexico, Oct 29 (EFE) .- Twenty NGOs have set up the Network against HIV Criminalization after several Mexican sates try to tighten existing but little known laws, that sanction the possibility of spreading the virus or other sexually transmitted infections.

“The objective (of the network) is to stop a witch hunt, because it was surprising that in the last two years three different (state) congresses have been discussing” this law, stated Leonardo Bastida, head of Information of the group Letter S.

In Mexico, 30 of the 32 states contain in their criminal codes the “crime of transmission”, which sanctions those who can transmit a non-curable disease to another person.

“The possibility of transmission is sanctioned, even if it is involuntary, for example, by ignorance, said Bastida, who produced a study that determined that since 2000, 39 criminal proceedings were filed for that cause.

There are 15 reported cases in Veracruz, nine in Sonora, five in Tamaulipas and in the State of Mexico, three in Chihuahua, one in Mexico City and one in Nuevo Leon.

Most of these were resolved with administrative fines, although a person in Sonora is serving a 10-year sentence, despite the fact that “you can not clearly see how the virus is acquired.”

Many state penal codes were born in the first half of the twentieth century with this concept, although at the beginning there was talk of venereal diseases and it was usually circumscribed to syphilis.

The codes were modified to include new terms. And even in states like Coahuila (in the north) a specific chapter on HIV was created.

Currently, only Aguascalientes and San Luis Potosí do not criminalize this crime, although in the second state they tried only a year ago, without success, to legislate in this regard.

In the southeastern state of Quintana Roo, the issue is still hot after a congresswoman proposed tightening legislation, with sentences of up to 15 years.

“For her, this was to benefit and to reduce HIV cases, but we told her that this was not the right way,” Édgar Mora, president of the Círculo Social Igualitario association, told Efe.

Together with other NGOs, the State Human Rights Commission and the National Commission of Human Rights (CNDH), they established discussion groups with a group of legislators and it was agreed, although the vote on the plenary is still pending, to overturn the article 113 of the Criminal Code of Quintana Roo.

For the 26 NGOs that have formed the Network of organizations against HIV Criminalization, there is a fear that, if laws are tightened, prevention and detection will decrease.

“That people stop being tested for HIV for fear of getting positive and, subsequently, having to face justice,” Mora said.

In Veracruz, the Chamber of Deputies approved in 2015, unanimously, to modify the local penal code to add the term “contagion” to the term “sexually transmitted infections”, Patricia Ponce, member of the Multisectoral Group on HIV / AIDS and STI from Veracruz, told Efe.

Even before the law existed, there was no definite sanction. With the reform of article 158, six months to five years of imprisonment were stipulated.

“Any person who in a ‘willful’ way transmits HIV is penalized, which is a very ambiguous word,” said the doctor.

Several state-run NGOs unsuccessfully attempted to repeal the article by the state Congress and, with the support of the CNDH, filed an unconstitutional appeal to the Supreme Court of Justice of the Nation (SCJN), where it is still under discussion.

Ponce is confident that the resolution of the Supreme will be favorable. “It is important that the Supreme Court declares in favour of health, life, and human rights,” he said.

Otherwise, she fears that other states will bet on criminalizing laws. “The deputies, and congressmen are deeply ignorant” in the matter, he explained.

In Mexico, it is estimated that there are about 220,000 people with HIV, although about 100,000 of them are unaware of it.

The hardening of the laws would also impact on the LGBT community. “We have not understood in 30 years what HIV is, and this results in stigma, discrimination and the replication of speeches against homosexuality,” Bastida said.

On a global scale, 68 countries have laws in force, with Russia accounting for the highest number of defendants in the last two years with 23 cases, according to the HIV Justice Network.

Published in La Vanguardia on Oct 29, 2017

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Una red de ONG lucha contra ley que criminaliza el VIH en México

México, 29 oct (EFE).- Una veintena de ONG se han configurado en la Red contra la Criminalización del VIH, después de que varios estados mexicanos intentan endurecer las leyes, ya existentes aunque poco conocidas, que sancionan la posibilidad de contagiar el virus u otras infecciones de transmisión sexual.

“El objetivo (de la red) es que no empiece una cacería de brujas, porque fue sorprendente que en los últimos dos años se haya discutido en tres congresos (estatales) diferentes” esta ley, explicó a Efe Leonardo Bastida, jefe de Información de la entidad Letra S.

En México, 30 de los 32 estados contienen en sus códigos penales el “delito de peligro de contagio”, que sanciona a quien pueda transmitir una enfermedad no curable a otra persona.

Se sanciona “la posibilidad” de transmisión, aunque sea de forma involuntaria, por ejemplo, por desconocimiento, afirmó Bastida, quien elaboró un estudio que determinó que, desde el 2000, se registraron 39 procesos penales por dicha causa.

Se reportan 15 casos en Veracruz, nueve en Sonora, cinco en Tamaulipas y en el Estado de México, tres en Chihuahua, uno en la Ciudad de México y otro en Nuevo León.

La mayoría de estos se resolvieron con multas administrativas, si bien una persona en Sonora cumple una pena de 10 años, pese a que “no se puede comprobar de forma clara cómo se adquiere el virus”.

Muchos códigos penales estatales nacieron en la primera mitad del siglo XX con esta figura, si bien al principio se hablaba de enfermedades venéreas y se circunscribía habitualmente a la sífilis.

Los códigos fueron modificándose para incluir nuevos términos. E incluso en estados como Coahuila (norte) se creó un capítulo específico sobre VIH.

Actualmente, solo Aguascalientes y San Luis Potosí no tipifican este delito, aunque en el segundo estado hace apenas un año se buscó, sin éxito, que se legislara al respecto.

En el suroriental estado de Quintana Roo, el tema sigue candente después de que una diputada propusiera endurecer la legislación vigente, con penas de hasta 15 años.

“Por parte de ella, esto era para beneficio y para disminuir los casos de VIH. Pero le manifestamos que esta no era la manera adecuada”, contó a Efe el presidente de la asociación Círculo Social Igualitario, Édgar Mora.

Junto a otras ONGs, la Comisión Estatal de DD.HH. y la Comisión Nacional de los Derechos Humanos (CNDH) se establecieron mesas de discusión con un grupo de legisladores y se acordó, si bien aún falta la votación del pleno, la derogación del artículo 113 del Código Penal de Quintana Roo.

Para las 26 ONGs que han conformado la Red de organizaciones contra la Criminalización del VIH, existe el miedo de que, si se endurecen las leyes, disminuya la prevención y la detección.

“Que la gente deje de hacerse la prueba del VIH por temor a salir reactiva y, posteriormente, tener que enfrentar la justicia”, relató Mora.

En Veracruz, la Cámara de Diputados aprobó en 2015, por unanimidad, modificar el código penal local para agregar al delito “del contagio” el término “infecciones de transmisión sexual”, dijo a Efe la integrante del Grupo Multisectorial en VIH/Sida e ITS de Veracruz Patricia Ponce.

Si bien antes existía la ley, no había sanción determinada. Con la reforma del artículo 158, se estipularon de seis meses a cinco años de cárcel.

“Queda penalizada cualquier persona que de manera ‘dolosa’ transmite el VIH, que es una palabra muy ambigua”, indicó la doctora.

Varias ONGs estatales intentaron sin éxito que el Congreso estatal derogara el artículo y, con el apoyo de la CNDH, presentaron un recurso de inconstitucionalidad a la Suprema Corte de Justicia de la Nación (SCJN), donde todavía se está debatiendo.

Ponce se muestra confiada en que la resolución del Supremo será favorable. “Es importante que la Corte Suprema declare a favor de la salud, de la vida, y de los derechos humanos”, indicó.

De lo contrario, teme que otros estados apuesten por leyes criminalizadoras. “Los diputados, diputadas y congresos son profundamente ignorantes” en la materia, explicó.

En México se estima que hay unas 220.000 personas con VIH en México, si bien unos 100.000 de ellos lo desconocen.

El endurecimiento de las leyes impactaría, además, sobre el colectivo LGBT. “No hemos entendido en 30 años qué es el VIH, y ello deriva en estigma, discriminación y la réplica de discursos contra la homosexualidad”, denunció Bastida.

A escala global, 68 países mantienen leyes vigentes en la materia, siendo Rusia el que mayor número de procesados registra por dicha causa en los últimos dos años con 23 casos, según HIV Justice Network.

Mexico: Lawmakers and civil organisations commit to reform HIV criminalisation law in Quintana Roo

They will reform Penal Code to protect people with HIV

Lawmakers and civil organizations agree to push for changes to article 113

Saturday, October 21, 2017

Considering that article 113 of the Criminal Code of Quintana Roo may violate the human rights of people suffering from diseases such as HIV / AIDS, members of the 40th Legislature committed themselves to progress the analysis of a reform to modify it, or as the case may be, repeal it.

This Friday, Deputy Laura Esther Beristain Navarrete, president of the Commission on Health and Social Welfare and Deputy Alberto Vado Morales, president of the Culture Commission, met with civil organizations dedicated to issues such as HIV prevention and Human Rights of the LGBTQI Community, as well as representatives of the National Human Rights Commission and the Human Rights Commission of the State of Quintana Roo.

After looking at the drafting proposals with respect to the reform of article 113 of the Criminal Code of the State and listening to the arguments of the civil organizations and human rights organizations, it was agreed to push before the Justice Commission of the Congress this article that has been in force since 1991, they said.

It should be noted that Article 113 in its current wording, according to the organizations, criminalizes people living with HIV, implying that people suffering from this disease can be subject to a criminal trial solely because of their health condition, which is a matter of brevity, said the deputies.

During the meeting, topics such as the need to avoid legislative lag and to advance in the opinion of issues that have already been presented by the president of the Health Commission, Laura Beristain and the deputy Alberto Vado, such as reforms to the Civil Code for equal marriages and rights of affiliation of the LGBTTTI community; to the Criminal Code to deal with hate crimes against this sector of the population; the HIV Prevention and Treatment Act and reforms to promote gender identity of transgender people.

For his part, the president of the organization Círculo Social Igualitario, Edgar Mora Ucan, indicated that the repeal of article 113 of the Criminal Code is a watershed moment to legislate with a vision for human rights.

“This is a transcendental fact for the state, is creating the precedent of legislating with a vision for human rights. Only two states in the country do not have this legislation and in Quintana Roo it is being done. The door is being opened to legislate on other human rights issues, “he said.

Published in La Jornada Maya on October 21, 2017

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Reformarán Código Penal para proteger a personas con VIH

Acuerdan legisladores y organizaciones civiles impulsar cambios al artículo 113

La Jornada Maya

Sábado 21 de octubre, 2017Por considerar que el artículo 113 del Código Penal de Quintana Roo puede ser violatorio de los derechos humanos de las personas que padecen enfermedades como VIH Sida, diputados integrantes de la 40 Legislatura se comprometieron a avanzar en el análisis de una reforma para modificarlo y, en su caso, derogarlo.

Este viernes la diputada Laura Esther Beristain Navarrete, presidente de la Comisión de Salud y Asistencia Social y el diputado Alberto Vado Morales, presidente de la Comisión de Cultura, se reunieron con organizaciones civiles dedicadas a temas como la prevención del VIH y promotores de los derechos humanos de la Comunidad LGBTTTI, así como con representantes de la Comisión Nacional de Derechos Humanos y la Comisión de Derechos Humanos del Estado de Quintana Roo.

Luego de un análisis de las propuestas de redacción con respecto a la reforma del artículo 113 del Código Penal del Estado y con los argumentos de las organizaciones civiles y de los organismos de Derechos Humanos se acordó impulsar ante la Comisión de Justicia del Congreso, la derogación de dicho artículo que se encuentra vigente desde 1991, según señalaron.

Cabe destacar que el Artículo 113 en su redacción actual, de acuerdo con las organizaciones, criminaliza a las personas que viven con VIH, lo que implica que las personas que padecen esta enfermedad pueden estar sujetas a un juicio penal únicamente por su condición de salud, tema que es de atenderse a la brevedad, consideraron los diputados.

Durante el encuentro se abordaron temas como la necesidad de evitar el rezago legislativo y que se avance en el dictamen de temas que ya han sido presentados por la presidente la de la Comisión de Salud, Laura Beristain y el diputado Alberto Vado, tales como reformas al Código Civil para los matrimonios igualitarios y derechos de filiación de la comunidad LGBTTTI; al Código Penal para la atender los crímenes de odio hacia este sector de la población; la Ley de Prevención y Tratamiento del VIH y reformas para impulsar la identidad de género de las personas transgénero.

Por su parte el presidente de la organización Círculo Social Igualitario, Edgar Mora Ucan, indicó que la derogación del artículo 113 del Código Penal es parte-aguas para legislar con visión hacia los derechos humanos.

“Este es un hecho trascendental para el estado, está creando el precedente de legislar con visión hacia los derechos humanos. Solo dos estados en el país no cuentan con esta legislación y en Quintana Roo se está haciendo. Se está abriendo la puerta para que se legisle sobre otros temas en materia de derechos humanos” aseguró.