New Zealand: Does the transmission of HIV still amount to grievous bodily harm? Interview with Jason Myers, AIDS Foundation Director, on the Court of Appeal current deliberation

Is deliberately spreading HIV grievous bodily harm?

A court’s being asked to determine whether spreading HIV still amounts to causing grievous bodily harm.

A man is appealing a grievous bodily harm conviction, after a jury found him guilty of knowingly infecting his partner with HIV.

He’s arguing the disease doesn’t amount to grievous bodily harm, because it can be easily treated.

Aids Foundation executive director Jason Myers said he isn’t surprised to see a case like this before the courts.

“Back in the eighties, early nineties it was a death sentence for many people. What you’ve essentially got in 2017 is a long-term manageable chronic disease.”

Canada: Legalities around disclosing HIV and other STIs in Canada

Have an STI? What you’re legally obligated to disclose

Jenelle Marie Pierce was 16 when she found out she had genital herpes.

“I was made to sleep on the floor at slumber parties because people thought they were going to contract my herpes from me,” the now 35-year-old from Caledonia, Mich., told Global News. “People can be cruel and really it’s just a product of a lack of information.”

Finding out you have a sexually transmitted infection (STI) may seem like the end of your love life, but according to experts, it’s not true. With the right amount of education, communication in disclosing your status and safe sex practices, you can foster a healthy intimate relationship.

In Canada, STI infections are on the rise. Between 1998 and 2015 (the most recent national data available), chlamydia — the most commonly reported STI in Canada — has risen from 39,372 to 116,499 annual cases among all ages and genders, and gonorrhea rates increased from 5,076 to 19,845 in the same time period. Infectious syphilis rates rose dramatically from 501 to 4,551 cases.

But aside from the obvious health implications these infections have, their emotional burden can be almost equally dangerous. A 2014 study published in the journalAIDS Patient Care and STDs found that STI-related stigma was associated with decreased odds of testing for STIs and decreased willingness to notify a partner of an STI among young African American men.

A similar study from 2009 that was published in Perspectives on Sexual and Reproductive Health also found that STI-related stigma was a barrier to adolescents’ screening behaviour.

“I’ve been called everything from a slut to a whore. People assume that you are a cheater, you are promiscuous … But it [affects] people from all walks of life, all backgrounds. It’s across the board. People from everywhere contract these infections.”

The key is to be open and ethical about your STI to prevent the spreading of any infections.

Legalities around disclosing

In Canada, it’s a crime not to disclose HIV or another STI before having sex that poses a “significant risk of serious bodily harm.” However, most prosecutions have been strictly related to HIV and hardly any have been related to herpes, syphilis, chlamydia or other STIs.

The legal obligation to disclose your status was established in the 1990s, but for people with HIV, the law became harsher in 2012. That’s when the Supreme Court of Canada decided that people living with HIV are obligated to tell their partner about their status before engaging in sex that poses a “realistic possibility of HIV transmission.”

In practice, what that means is if you’re going to engage in vaginal or anal sex and are HIV positive but don’t tell your partner ahead of time, you could face criminal prosecution if you don’t use a condom or if you use a condom but have a viral load higher than “low.”

According to advocates, this test has been applied inconsistently by the courts without proper regard to the science.

“The science is now established that there is effectively zero risk of transmission to a sexual partner if you have an undetectable viral load,” Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, told Global News.

There have been conflicting court decisions for people with HIV with an “undetectable” viral load. Some have been prosecuted and other’s haven’t.

At least 184 people have faced charges related to HIV non-disclosure after sex in Canada, one of the highest rates of HIV criminalization in the world, Elliott added. Only a few prosecutions have been related to herpes and syphilis. There haven’t been any prosecutions for non-disclosure of chlamydia, gonorrhea or HPV.

Public health

Besides the legal obligations laid out by the Canadian criminal code, some experts believe it’s important to be transparent about your STI in the name of public health.

“You want to be upfront, you want to tell the person, and you also want to reassure them that you will be performing safe and intimate contact,” Jason Tetro, a Canadian microbiologist, told Global News.

Tetro, who used to work in HIV research and policy, says STIs are becoming more and more resistant to antibiotics, which means they’ll be even more of a headache to treat — so, why not be open from the beginning, before any sexual contact?

“If you happen to be exposed you may be facing a very long and difficult antibiotic treatment before you’re clean, so the fact is, if we all work together to make sure we are not spreading these bugs, it’s going to improve public health overall.”

Having the awkward conversation

There are two approaches to talking to your partner, according to Pierce.

The first is being completely open about your STI status from the get-go. For those who are comfortable laying it out on the table, they can add their status to their dating profiles. The reason behind this approach, explained Pierce, is that you have a lower chance of getting your feelings hurt.

The second approach is more discreet. Just like any relationship that grows organically, some private matters like revealing your STI, are not discussed until trust is gained.

Of course, you need to disclose before there is any sexual contact.

“The idea behind that is that nobody actually puts everything out there on the table when they start dating. That’s kind of the whole dating process, it’s learning about somebody as you go,” Pierce said.

“Nobody says ‘I have horrible debt and my dad is an alcoholic and my brother is in prison’… [it’s a] myriad of things that might be a deal breaker for somebody.”

It really depends on who you are, there is no right or wrong way to do it, she added.

Once you’ve figured out the timing, you then need to figure out the method.

Avoid finding yourself in the heat of the moment. Find a private and quiet place to have the conversation, and approach it in a practical way, Pierce says. Lay out the facts in a neutral and non-emotional manner, because you don’t want to influence their response.

“It’s OK to acknowledge that it might be awkward or weird, but be as open and clear-cut as you can.”

Once you’ve disclosed your status and laid out the options for safe and protected sex, you have to let them decide if they want to take the relationship to the next level. Pierce’s biggest piece of advice? Don’t take the person’s response — positive or negative — personally.

Pierce, who has had a successful career and has had many healthy relationships, says you shouldn’t get discouraged. It’s better to be honest and straightforward, and foster a partnership with someone who will work with you to keep the STI contained to one person.

Published in Global News on October 16, 2017

Mexico: Mexican advocates attend the "HIV is not a crime" forum to fight HIV criminalisation laws

Representatives of civil organizations rejected, during the forum “HIV is not a crime”, the approval of a law initiative in Veracruz and Quintana Roo that aims to punish and criminalize, by up to 25 years in prison, those who are carriers of HIV-AIDS and infect another person.

While in Quintana Roo a bill is being proposed that aims to punishHIV transmission by 25 years of imprisonment, a similar initiative was also approved in Veracruz, which sanctioned 5 years of imprisonment.

In the case of Veracruz, the organizations indicated that a constitutional challenge is already in motion for that initiative to be repealed.

“We filed an appeal for unconstitutionality because now anyone can go and report that you infected the virus, but HIV is not contagious but transmitted and there is no way to verify that one person passed it on to another,” said Patricia Ponce, member of the Multisectoral Group on HIV and AIDS in the State of Veracruz.

A similar initiative was presented in San Luis Potosí, which proposed to sanction with one and up to three years of imprisonment the person who, having a risk of HIV transmission, had sex and up to 10 years if it was transmitted. However, local civil organizations managed to stop its approval, said Alberto Macías Narváez member of “Friends Potosinos in Fight against AIDS.”

“The argument we used to stop this initiative was that it is virtually impossible to prove that someone transmitted you AIDS, and the health system does not even have the equipment to do this type of studies, therefore, we can not prove who it is the person responsible for a transmission, “Macias said.

A member of the civil organization “Círculo Social Igualitario de Quintana Roo” named Edgar Mora, said that in that state the initiative that plan for up to 25 years imprisonment to those who transmit this disease is being discussed and, therefore, organizations are having a dialogue with the deputy Laura Esther Beristain, who promoted this proposal of law.

The idea is to make the lawmaker see that there are no methods to prove that a person was responsible for the infection and, if this initiative is approved, more stigmas will be generated around the disease and people will avoid undergoing diagnostic tests, he said.

“People are now avoiding HIV testing because people prefer not to know whether or not they live with the virus for fear their partner knows they have the disease and, as a result, the person is incarcerated.

“Unfortunately there is already a lot of psychosis because in social networks there have been widely spread messages like: ‘Sidosos, they go to jail’,” Mora shared.

Leonardo Bastida, member of the Civil Association “Letter S, AIDS, Culture and Everyday Life”, explained that in a study conducted in 2016 by the organization to which he belongs, it was identified that from 1990 to 2015, at least 20 people in the country were prosecuted for transmission of sexual diseases, mostly HIV-AIDS.

So far, organizations have pointed out that the best way for MPs to legislate in favour of people with HIV is to ensure the coverage of antiretroviral treatments and to strengthen plans for the control and management of HIV.

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Original article in Spanish

Rechazan leyes que criminalizan VIH

Evlyn Cervantes

Cd. de México (11 octubre 2017).- Representantes de organizaciones civiles rechazaron, durante el foro “VIH no es un crimen”, la aprobación de una iniciativa ley en Veracruz y Quintana Roo que pretende castigar y criminalizar, hasta con 25 años de cárcel, a quienes sean portadores de VIH-sida y contagien a otra persona.

Mientras en Quintana Roo se discute una iniciativa de ley que pretende castigar con 25 años de prisión la transmisión de VIH, en Veracruz también se aprobó una iniciativa similar que sanciona con 5 años de prisión el contagio.

En el caso de Veracruz, las organizaciones señalaron que ya se promueve una acción de inconstitucionalidad para que esa iniciativa sea derogada.

“Metimos un recurso de inconstitucionalidad porque ahora cualquier persona puede ir y denunciar que tú le contagiaste el virus, pero el VIH no se contagia sino se transmite; no hay manera de comprobar que una persona se lo transmitió a otra”, planteó Patricia Ponce, miembro del Grupo Multisectorial en VIH SIDA E ITS del Estado de Veracruz.

Una iniciativa similar se presentó en San Luis Potosí, la cual proponía sancionar con uno y hasta tres años de prisión a la persona que, teniendo un riesgo de contagio de VIH, tuviera relaciones sexuales y hasta con 10 años a quien lo transmitiera. No obstante, organizaciones civiles locales lograron frenar su aprobación, explicó Alberto Macías Narváez integrante de “Amigos Potosinos en Lucha contra el Sida”.

“El argumento que utilizamos para frenar esta iniciativa fue que es prácticamente imposible demostrar que alguien te transmitió el sida, y el sistema de salud no cuenta ni siquiera con los equipos para hacer este tipo de estudios; por lo tanto, no podemos demostrar quién es el responsable de una transmisión”, indicó Macías.

Un integrante de la organización civil “Círculo Social Igualitario de Quintana Roo” llamado Edgar Mora, expuso que en esa entidad se discute la iniciativa que prevé hasta 25 años de cárcel a quien transmita esta enfermedad y, por ello, las organizaciones están gestionando un diálogo con la diputada Laura Esther Beristain, quien promovió esta propuesta de ley.

La idea es hacerle ver a la legisladora que no existen métodos para acreditar que una persona fue responsable del contagio y, que de aprobarse dicha iniciativa, se generarán más estigmas en torno al padecimiento y las personas evitarán someterse a pruebas de diagnóstico, abundó.

“Ahora las personas están evitando hacerse pruebas de diagnóstico de VIH porque las personas prefieren no saber si viven o no con el virus por temor a que su pareja sepa que tiene la enfermedad y, que en consecuencia, la persona sea encarcelada.

“Desafortunadamente ya hay mucha psicosis porque en redes sociales se han difundido ampliamente mensajes como: ‘Sidosos, se van a la cárcel'”, compartió Mora.

Leonardo Bastida, miembro de la Asociación Civil “Letra S, SIDA, Cultura y Vida Cotidiana”, detalló que en un estudio realizado en 2016 por la organización a la que pertenece, se identificó que de 1990 a 2015, al menos 20 personas en todo el País fueron procesadas por transmisión de enfermedades sexuales, en su mayoría VIH-sida.

Hasta el momento, las organizaciones señalaron que la mejor forma de que los diputados legislen a favor de las personas portadoras de VIH es que se garantice la cobertura de tratamientos antirretrovirales y se fortalezcan los planes de control y manejo sanitario de esta enfermedad.

US: "Undetectable = Uninfectious" isn't reflected in HIV criminalisation laws in several U.S. states

Undetectable = Uninfectious. So why are people with HIV still being criminalised for having sex

By now, most people in the HIV community know that having an undetectable viral load means being uninfectious. It’s just science! But this information isn’t reflected in laws in several U.S. states, dating back to the 1980s and 1990s, that criminalize people with HIV for having sex without telling partners their HIV status — even if they use a condom on top of being undetectable.

Thankfully, there’s a movement of HIV-positive people underway that’s slowly getting states to strip back their outdated criminalization laws. It’s called the Sero Project — and at the 2017 AIDSWatch conference in Washington, D.C., we talked with folks from all over the country who are part of it.

“There’s still criminalization that impacts so many people — and it’s driven by fear,” says Paul Yabor, a longtime Philadelphia-based HIV activist (who sadly died earlier this year after this video was made).

“I’ve experienced this,” says Ken Pinkela, Sero’s director of communications and military policy, who was imprisoned and dishonorably discharged from the U.S. Army for having sex without disclosing his status. “Wrongful accusals and allegations that didn’t exist.”

Says Gina Brown, a community organizer for the Southern AIDS Coalition: “The thing that bothers me the most is that [these laws] keep people from knowing their status. So, if I know that I can go to jail because I have sex with someone whether I use a condom or not — you know, I don’t want to know! And I do community work in New Orleans, and I hear that all the time.” She also decries “the fact that no other sexually transmitted virus is criminalized.”

Says Derrick Mapp, HIV health counselor and national trainer at San Francisco’s The Shanti Project: “Me being HIV-positive — I’m not a criminal. It’s something that happens. Spitting, scratching and fighting — these things don’t transmit HIV.” Yet, HIV-positive folks have often ended up doing years in jail for exactly those actions.

Remember Eric Leonardos from the TV show Finding Prince Charming? He’s part of the decriminalization fight as well: “Martin Luther King Jr. says that an unjust law is no law at all,” he declares. “And these are unjust laws and they have no place.”

Watch our video (edited by Michael Faber) and hear them in their own words. Then consider reaching out to Sero and getting involved in the fight. They’ve already had victories in California, Colorado and Iowa. Maybe, with your help, your state could be next!

Tim Murphy has been living with HIV since 2000 and writing about HIV activism, science and treatment since 1994. He writes for and has been a staffer at POZ, and writes for the New York Times, New York Magazine, Out Magazine, The Advocate, Details and many other publications. He is also the author of the NYC AIDS-era novel Christodora.

Published in the Body on Oct 10, 2017

US: California Governor signs landmark bill reforming outdated HIV criminalisation laws

Governor Signs Bill Modernizing California HIV Laws

October 6, 2017

CONTACT: Naina Khanna, naina.khanna.work@gmail.com, 510.681.1169

or Jennie Smith-Camejo, jsmithcamejo@pwn-usa.org, 347.553.5174

Sacramento, Calif.— Governor Jerry Brown today signed into law landmark legislation to reform outdated laws that unfairly criminalized and stigmatized people living with HIV. Senate Bill (SB) 239 was authored by Sen. Scott Wiener (D-San Francisco) and Asm. Todd Gloria (D-San Diego) and cosponsored by Equality California, the ACLU of California, APLA Health, Black AIDS Institute, Lambda Legal and Positive Women’s Network – USA. These organizations are part of Californians for HIV Criminalization Reform (CHCR), a broad coalition of people living with HIV, HIV and health service providers, civil rights organizations and public health professionals dedicated to ending the criminalization of people living with HIV in California.

“Today California took a major step toward treating HIV as a public health issue, instead of treating people living with HIV as criminals,” said Senator Wiener. “HIV should be treated like all other serious infectious diseases, and that’s what SB 239 does. We are going to end new HIV infections, and we will do so not by threatening people with state prison time, but rather by getting people to test and providing them access to care. I want to thank Governor Brown for his support in helping to put California at the forefront of a national movement to reform these discriminatory laws.”

“State law will no longer discourage Californians from getting tested for HIV,” said Asm. Gloria. “With the Governor’s signature today, we are helping to reduce the stigma that keeps some from learning their HIV status and getting into treatment to improve their health, extend their lives, and prevent additional infections. I want to thank Governor Brown for signing SB 239. This action keeps California at the forefront in the fight to stop the spread of HIV.”

SB 239 updates California criminal law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It also brings California statutes up to date with the current understanding of HIV prevention, treatment and transmission. The bill fulfills a key goal of the National HIV/AIDS Strategy and is consistent with guidance from the U.S. Department of Justice and with California’s “Getting to Zero” HIV transmission reduction strategy.

“The passage of SB239 marks tremendous progress for Californians living with HIV. Laws that criminalize HIV positive status are not based on science–they are based solely on hysteria and fear–and essentially create an underclass of people diagnosed with a disease, placing us at risk for discrimination and even violence,” said Naina Khanna, executive director of Positive Women’s Network, a national membership body of women living with HIV and a proud co-sponsor of SB 239. “Today, California has proved once again that is a national leader on protecting safety, dignity and human rights for all its residents.”

Beginning in the late 1980s and at the height of the HIV epidemic, lawmakers passed several laws criminalizing otherwise legal behaviors of people living with HIV and added HIV-related penalties to existing crimes. These laws were based on fear and the limited medical understanding of the time. When most of these laws were passed, there were no effective treatments for HIV and discrimination against people living with HIV was rampant. Research now demonstrates that people living with HIV on effective treatment cannot transmit the virus to their partners. HIV-negative individuals can now take medication, known as PrEP (pre-exposure prophylaxis), to reduce the risk of acquiring HIV by up to 99 percent. SB 239 ensures that these advances inform our laws and the manner in which we address our public health response to HIV.

“With his signature, Governor Brown has moved California’s archaic HIV laws out of the 1980s and into the 21^st century,” said Rick Zbur, executive director of Equality California. “SB 239 will do much to reduce stigma and discrimination against people living with HIV – it is not only fair, but it’s good public health. When people are no longer penalized for knowing their status, it encourages them to come forward, get tested and get treatment. That’s good for all Californians.”

In addition to the organizations sponsoring the bill, SB 239 was supported by CHCR members including the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund (MALDEF), the Free Speech Coalition and the Sex Workers Outreach Project (SWOP).

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Californians for HIV Criminalization Reform (CHCR) is a coalition of organizations and individuals dedicated to ending the criminalization of HIV in California. Our mission is to mobilize a broad coalition, including individuals and communities who are disproportionately impacted by HIV, to replace fear-based, stigmatizing laws that criminalize HIV-status with evidence-based, nondiscriminatory laws that protect public health.

HIV JUSTICE Toolkit to support advocacy against HIV criminalisation now online

HIV JUSTICE WORLDWIDE today announced the launch of the HIV Justice Toolkit, which aims to support advocates to oppose HIV criminalisation at all levels – from educating communities and lawmakers to defending individual cases.

Curated by Sally Cameron, Senior Policy Analyst at the HIV Justice Network (HJN) with input and assistance from HJN’s Global Co-ordinator, Edwin J Bernard and HJN’s Research/Outreach Co-ordinator, Sylvie Beaumont, the Toolkit’s creation was faciliated by the HIV JUSTICE WORLDWIDE Steering Committee, designed by Thomas Patterson/NAM, and supported by a grant from the Robert Carr civil society Networks Fund.

“We are delighted at the launch of this timely HIV Justice Toolkit. Advocates will find that the use of this Toolkit will increase collaborative and targeted responses for the most vulnerable – in our case women living with HIV, who often suffer the most because of HIV criminalisation. The Toolkit is timely in galvanising action and encouraging activists and communities to proactively mount evidence-based advocacy campaigns to end HIV criminalisation.”

Lynette Mabotte, Southern and East Africa Regional Programmes Lead,

AIDS and Rights Alliance for Southern Africa (ARASA)

The Toolkit is a comprehensive compendium of almost 300 documents and videos, organised under twelve main headings, each of which is broken down into futher subsections.

How HIV criminalisation undermines the HIV response
What the experts says
Organising advocacy
Understanding the law
Initiating policy and law reform
Supporting fair and robust trials
Using science to prove your argument
Working with police
Educating prosecutors
Educating judges
Getting the message right
Other toolkits

The entire Toolkit is also searchable by keyword.

“This easy-to-read summary of critical resources is a tremendous contribution to the fight to end HIV criminalisation. We will reference and utilise this important new addition to the HIV JUSTICE WORLDWIDE site frequently.”

Sean Strub, Executive Director, Sero Project

Although the Toolkit is currently only available in English, where documents already exist in other languages, these are included.

HIV JUSTICE WORLDWIDE are now working on a French version of the Toolkit, with other languages (i.e. Spanish and Russian) due in 2018, depending on demand, capacity and funding.

Explore the resources contained within the HIV Justice Toolkit at: http://toolkit.hivjusticeworldwide.org/

If you find the Toolkit useful and/or you have resources you would like featured in the Toolkit please contact us.

New video advocacy tool: How to organise to change the law – the story of the Colorado Mod Squad

The Toolkit also features a new video advocacy tool, ‘The Colorado Story’ which explains in 15 minutes how a group of dedicated advocates in Colorado ‘modernised’ their HIV-related laws to improve the legal environment for people living with HIV.

Featuring Barb Cardell and Kari Hartel of the Colorado Mod Squad and Colorado State Senator, Pat Steadman, the video was written and introduced by HJN’s Edwin J Bernard, with interviews by Mark S King, and directed / produced by Nicholas Feustel for the HIV Justice Network/HIV JUSTICE WORLDWIDE.

About HIV JUSTICE WORLDWIDE

HIV JUSTICE WORLDWIDE is a growing, global movement to shape the discourse on HIV criminalisation as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration.

The mission of HIV JUSTICE WORLDWIDE is to seek to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV-positive status.

We believe that this HIV criminalisation is discriminatory, a violation of human rights, undermines public health, and is detrimental to individual health and well-being.

To learn more, visit http://www.hivjusticeworldwide.org

Azerbaijan: Civil society organisations calling for international action to condemn LGBTI crackdown using HIV as thinly veiled 'excuse'

Alarming stories of physical violence, verbal abuse, forced medical examinations and detentions of LGBTI people have been emerging from Azerbaijan over the past two weeks.

The signatories of this statement are appalled by the situation being described by LGBTI activists and lawyers based in the country:

Members of the LGBTI community have reported being assaulted, forcibly medically examined, fined or forced to reveal contact details from their mobile phones.
Media reports published over the weekend (1 October) also included references to detainees being electrocuted.
The Azerbaijan authorities confirmed that the detentions took place and defended them by claiming that the raids were motivated by public health concerns (implying that it is a coincidence that LGBTI people are being detained).

We welcome the news from the Ministry of Internal Affairs (followed a statement on 2 October) that all detainees have been released. However, this update does not signal the end of the crisis. Intergovernmental bodies and international institutions have an undeniable responsibility to speak out now and support the victims.

The undersigned human rights organisations are calling on international institutions to put their human rights mandates into practice. We urge them to use all possible mechanisms available to strongly condemn the situation in Azerbaijan, such as public statements and bilateral diplomacy.

Given the seriousness of the human rights abuses reported from multiple sources, the reaction from international institutions needs to be stronger, more visible, and more sustained. So far, the public response from international institutions has been slow.

The civil society organisations who have signed this joint statement urge the international community to:

Be more vocal in their condemnation of the treatment of LGBTI people in Azerbaijan
Push for a thorough, independent investigation into the police raids
Keep the victims of these raids at the forefront of their minds and actions

Resources needed to support victims and their communities

The LGBTI community in Azerbaijan (and their allies) now require specific assistance for multiple needs: ranging from immediate financial resources to cover fines and court fees, legal assistance and medical care to more long-term requirements such as relocation, resettlement and psychosocial support. Some victims are reportedly being released into homelessness/precarious housing, in some cases without the support of their family. Local activists and NGOs do not have the capacity or immediate resources to deal with this crisis alone.

This is where the LGBTI movement in Europe can mobilise to support our community members in Azerbaijan. ILGA-Europe have launched an urgent appeal for donations to help organisations to support the victims; these funds will be re-granted to activists working directly with people who have been detained.

Human rights violations are always shocking. While these developments could not have been predicted, we can control how we choose to respond.

Signed:

ILGA-Europe – the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association

Civil Rights Defenders

COC Netherlands

Stonewall

International Partnership for Human Rights

The Equality Network

European AIDS Treatment Group

Human Rights First

TGEU – Transgender Europe

Kaleidoscope Trust

Human Dignity Trust

African Rainbow Family

UK Lesbian & Gay Immigration Group (UKLGIG)

All Out

Sidaction

HIV Justice Network

Apoyo Positivo

Namibia: Michaela Clayton, director of ARASA, talks about HIV criminalisation in a interview with The Namibian

IT is very difficult to prove that someone infected another person knowingly with HIV and to then prosecute them, said Michaela Clayton, director of the AIDS and Rights Alliance for Southern Africa, last week.

Clayton said this in an exclusive interview with The Namibian on the issue of criminalising intentional HIV infection and to prosecute those believed to have transmitted the disease maliciously.

“It is very difficult to prove who the source of the infection is, because you will have to exclude every other sexual contact and every other potential risk that the person might have been exposed to in terms of HIV infections,” she said.

“You will then have to prove that the person knew that they were infected with HIV at the time of the intercourse, and that they failed to disclose that to their partner,” said Clayton, adding that many sexual offence cases were thrown out of court because “there would be no one to witness and there is no physical evidence”.

Criminalisation of intentional HIV transmission has become a concern in the management of the disease, with many countries adopting laws that allow for prosecuting those who knowingly spread the virus.

A 2008 Arasa study found that criminalising HIV did not stop the spread of the virus, but that criminalising the spread of HIV and prosecuting those implicated only increases stigma.

Clayton said the focus of lawmakers should be on how to use the law “to respond to the spread of HIV and effectively deal with the epidemic”.

Recently, the Confidénte newspaper reported about a woman who demanded money from her partner for allegedly knowingly infecting her with ‘a chronic disease’.

Pictures of the two individuals were widely shared on social media platforms, and many critics argued that intentional infection should not be criminalised as it would increase stigma and could lead to suicides and mental problems. Clayton said although it was difficult to prove the source of the infection, Namibia has laws that can be used to get justice for the person claiming to have been intentionally infected with HIV, such as “assault with intent to do grievous bodily harm”.

Clayton said the police could be approached and a case opened, and the accused person could potentially be prosecuted for assault, but then the accuser would have to prove that they had not had sexual contact with any other person.

She said a person would also not be found guilty if they had been on anti-retroviral therapy (ART), “which at times suppresses viral load and makes it impossible to infect another person”.

“If you are on ARV and you adhere to your treatment, your viral load can go down to undetectable on a test. When your viral load is undetectable, it is almost impossible to infect another person,” she said.

CRIMINALISATION AROUND THE WORLD

A report published last year indicates that 72 countries have adopted laws that criminalise intentional HIV infection. In most countries, HIV infection is listed as the only chronic disease subject to criminalisation.

The report further states that about 61 countries have recorded prosecutions for HIV “non-disclosure, potential or perceived exposure and/or unintentional transmission”.

According to Aljazeera reports from last year, the US has laws that allow for HIV positive people to be criminally charged for spitting on or biting someone.

Aljazeera also reported that an HIV positive person could end up serving a lengthy prison sentence for not disclosing their status before having sex or sharing needles.

According to the report, the criminalising of HIV infection has become concerning in Africa.

“The rise of reported prosecutions in Africa during this period [2016] (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on the continent, is especially alarming,” stated the report.

US: PJP update – September 2017

The September 2017 edition of the Positive Justice Project newsletter is available here.

US: Missouri’s laws should encourage people to seek testing, not motivate them to avoid it

Laws motivate many to avoid testing, treatment for HIV

I agree with the sentiments expressed by St. Charles County Prosecuting Attorney Tim Lohmar when interviewed following the conviction this month of former Lindenwood University wrestler Michael Johnson. Missouri’s HIV-specific criminal codes are dated and medically inaccurate and should be changed to reflect current medical knowledge.

Missouri law makes sex by an HIV-positive person subject to criminal prosecution unless the person living with HIV can prove he disclosed his HIV status. Since disclosure is very difficult to prove, many times coming down to he-said/she-said, such laws penalize knowing your status.

I’m in no way downplaying the seriousness of knowing your status and not disclosing it in a relationship. However, our laws currently motivate many to avoid being tested and treated. That is clearly not in the best interest of health in our communities and could potentially harm many of our families.

I believe Missouri can do more to reduce the rate of transmitted diseases. That’s why I sponsored House Bill 88, a needle exchange bill, in 2017. Needle exchange participants are five times more likely to enter an addiction treatment program. That’s huge.

Needle exchanges have proven that they do not increase drug use and they help prevent serious disease outbreaks caused by needle sharing. They also protect non-drug users with whom the addicted person may be in a relationship. While governor of Indiana, Vice President Mike Pence signed a needle exchange bill to respond to their outbreak of hepatitis C and HIV. Missouri can and should do this as well.

We need to modernize Missouri’s laws that encourage people to not seek diagnosis and treatment. I look forward to working on this again in the upcoming legislative session and know many others in the Legislature see the need as well.

Published in St Louis Post Dispatch on Sept 29, 2017