Bill to end HIV/AIDS discrimination introduced – A bill aiming to protect people with HIV/AIDS against discrimination was introduced in the Rajya Sabha Tuesday. The HIV/AIDS (Prevention and Control) Bill 2014 was introduced in the upper house amid din.
The draft of the bill was finalised in 2006, and civil society groups and HIV/AIDS-affected people have long been demanding passage of the draft legislation. Under the proposed law, HIV/AIDS-affected people will be provided protection against discrimination in employment, healthcare, education, travel and insurance, in both public as well as private sectors.
The bill proposes imprisonment and fine for those spreading hatred and discrimination against HIV patients. According to official information, a fine up to Rs.10,000 and two years’ imprisonment has been proposed as punishment for spreading hatred against people with HIV/AIDS.
The bill also proposes a legal commitment to provide Anti-Retroviral Therapy (ART) by the government to the patients as far as possible.
Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried
Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.
Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference. It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.
Switzerland: Decriminalisation of unintentional HIV transmission and exposure
Alec Von Graffenried, MP, Switzerland, 2013. “I am delighted my amendment was successful. We can still prosecute for malicious, intentional transmission of HIV. But I expect those cases will be very rare. What has changed is that now people living with HIV – which these days is a manageable condition – will be able to go about their private relations without the interference of the law. They can access medical services without fear. All the evidence suggests that this is a better approach for public health.”
Name of act
The Epidemics Act 2013
Summary
Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).
Why the law is important for HIV
Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.
How and why was decriminalization of HIV transmission and exposure introduced in parliament?
In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.
In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.
Was cross-party support secured and, if so, how? How was a majority vote secured?
The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.
During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.
How long did it take to pass the law?
It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.
Read and/or download the entire publication below.
Research agenda into the public health impact of overly broad HIV criminalisation highlights five areas where researchers and advocates can collaborate
A newly published report suggests a number of concrete ways that research into the impact of overly broad HIV criminalisation on public health can move the policy agenda forward, and help reform laws and create better policies for people living with HIV and most affected communities.
The workshop’s aim was to support, encourage and further develop emerging research on the public health implications of criminalising HIV non-disclosure, exposure and transmission. It was the first international meeting focused exclusively on sharing, critiquing and strengthening new empirical research on this topic.
The report explores three key themes that arose over the course of workshop discussions – (1) the relationship between research and advocacy; 2) the implications of HIV-related criminalisation for public health practice; and (3) the potential and limits of public health research for criminal law reform – and offers suggestions for new directions for future research on the public health implications of criminalizing HIV non-disclosure, exposure and transmission.
Workshop discussions emphasised that research on the public health implications of HIV-related criminalisation is able to do the following:
Identify the impacts of HIV-related criminalisation on HIV prevention, care, treatment and support. Research into such impacts is especially important in light of new approaches that respond to the HIV epidemic by increasing the uptake of HIV testing and counselling, linking HIV-positive people to health and social services, initiating HIV antiretroviral therapy as early as possible, and retaining people living with HIV/AIDS in medical care.
Elucidate the influence of criminalising HIV non-disclosure, exposure and transmission on the attitudes, opinions, beliefs and activities of people living with HIV/AIDS, people and communities at risk, service providers in public health and clinical settings and staff in ASOs and community-based organisations.
Inform efforts to respond to the potential discriminatory enforcement of criminal laws by identifying the demographic patterns associated with HIV-related criminal prosecutions.
Provide public health authorities with evidence required to become more engaged in the issue, to develop policy and programmes, and to comment publicly on an increasingly important facet of the HIV epidemic.
Identify legal, ethical and practice issues faced by public health and clinical staff as a result of HIV criminalisation, and provide evidence to support legally and ethically sound policy and practice.
Assess the efficacy and costs and benefits of different policy options to address HIV transmission.
Inform decisions by legislators, criminal prosecutors and courts in a number of jurisdictions.
The meeting identified five main suggestions for moving the research field forward.
1. Explore novel analytical and methodological approaches
Given the complexity of HIV criminalisation, applied and theoretical research agendas should be structured broadly, inquire into a wide range of possible “implications” and account for the intersectionality of factors such as race, class, migration, colonisation and gender. New research would benefit from a deeper engagement with socio-legal studies and criminology.
Further suggestions:
Ground research questions in a health and human rights or an intersectional/anti-oppression framework as alternatives to a public health implications framework.
Critically engage with mainstream feminist analysis that supports HIV criminalisation.
Use qualitative approaches, including narrative analysis, ethnographic methods and participatory action research to:
Capture issues of importance to, and respond to the needs of, communities of people living with and at risk of HIV;
Document and explore experiences of people who have been criminally charged and/or prosecuted as well as those who have brought forward police complaints;
Explore HIV criminalisation as a complex, constructed and varied social phenomenon.
2. Conduct intervention research
Research on the public health implications of criminalising HIV non-disclosure would be enhanced by studies exploring the processes and outcomes of interventions that offer alternatives to criminalisation and/or that seek to prevent HIV transmission.
Further suggestions:
Conduct research on and explore the implications of using restorative justice approaches for criminal offences related to HIV non-disclosure, exposure and transmission.
Evaluate the impact of new or existing case management strategies that focus on sexual activities that risk incarceration and HIV transmission:
Explore collaborations with HIV/AIDS Service Organisations (ASOs) and other community-based organisations as sites for intervention research. ASOs offer a less coercive and more supportive environment to address challenges of concern to the public health and the criminal justice systems;
Conduct ethnographic research on the “Calgary Model.” (See ‘A framework to consider for the non-disclosure of HIV/AIDS – the Calgary Health Region model’ halfway down this page) The Calgary Model is a policy-informed public health case management model that has been endorsed by policy makers in Canada, yet has not been empirically studied.
3. Conduct research on factors that underpin and drive HIV criminal prosecutions
Research on the criminalisation of HIV non-disclosure, exposure and transmission has yet to rigorously explore the various factors that encourage criminal prosecutions. There has been very little research involving people who initiate criminal complaints, their motivations
for doing so, their relationships with people living with HIV/AIDS and their experience of the criminal justice system. Relatedly, we know very little about police and prosecutors, their understandings of laws related to HIV non-disclosure, exposure and transmission, their knowledge of HIV and HIV transmission, and their attitudes towards people living with HIV/AIDS. There is a strong need for research that explores the underlying social, structural, behavioural and cultural factors that drive HIV-related criminalisation.
Further suggestions:
Prioritize police, prosecutors and complainants in new research.
Conduct research on the moral and other discourses that underpin criminalization and that inform the perspectives of the general population, those living with and at risk of HIV, legislators and policy makers and those who work in the criminal justice and public health systems.
Potential research foci include:
norms of sexual practice in communities as contrasted with principles of “good behaviour” applied by courts;
lessons from harm reduction and drug policy reformists who have had some success in working with police in opposing drug prohibition and the “war on drugs”;
critical analysis of how the “good versus bad” person living with HIV/AIDS is discursively constructed in media and elsewhere;
how issues of “personal responsibility” and “wrong” conduct get constructed, expressed and enacted, and to what end;
redesigning existing quantitative surveys to more robustly inquire into the attitudes, opinions and beliefs of respondents;
a moral mapping and deconstruction of pro-criminalisation arguments.
4. Continue to research the implications of criminalization for those who work in HIV prevention and in clinical and support services for people living with HIV/AIDS
Additional research on how criminalisation affects the work of various practitioners engaged in HIV prevention and the treatment, care and support of people living with HIV/AIDS can further our understanding of the broad implications of criminalizing processes. Comparative studies across national jurisdictions would yield important results.
Further suggestions:
Build on existing studies by incorporating mixed methodologies into research designs:
Investigate innovative and more rigorous approaches to sampling than has been the case in existing studies.
Explore how changes in front-line practice related to criminalisation may be connected with broader policy and program changes.
Investigate the discursive and other bases of public health response (e.g. explore the origins and impact of “unwilling and unable” terminology in Canadian public health policy).
5. Conduct media research
The mass media are an important source of public information about the criminalisation of HIV non-disclosure, exposure and transmission. While we have many accounts of how the media coverage of HIV criminal cases contributes to HIV-related stigma, we have little published research that draws on rigorous sampling methods to explore this question.
Further suggestions:
Conduct research to understand the impact of media coverage on communities and people living with and affected by HIV, the general public and legal and policy decision makers.
Inquire into the association between media coverage and stigma especially in relation to African, Caribbean and Black communities.
Systematically analyze the narrative and rhetorical conventions used by mainstream media when reporting on and editorialising about HIV criminal cases.
Investigate the use of media by police as an investigative tool.
This article is only a summary of the highlights of the report, and the entire meeting report is well worth reading.
This meeting concluded that the research agenda should include studies of:
(1) the impact of US HIV exposure laws on public health systems and practices;(2) enforcement of these laws, including arrests, prosecutions, convictions, and sentencing; (3) alternatives to HIV exposure laws; and (4) direct and opportunity costs of enforcement.
You can read the full research agenda, originally published in the American Journal of Public Health in August 2013, below.
We are pleased to share this first Newsletter Issue of 2014 containing several important developments. Perhaps most significantly, there have been a number of controversial recent anti-LGBT rulings and legislation around the world. In the same week in December, both Nigeria and Uganda adopted harsh new anti-LGBT related laws, which no doubt will have repercussions on the HIV response in those countries. Also, in December in response to the Supreme Court of India’s overruling of an earlier lower court decision to strike down an anti-sodomy law, effectively recriminalizing same sex behavior, former Commissioners of the Global Commission on HIV and the Law jointly issued a statement expressing dismay at the decision of the country’s top court. On a more positive note, in October Uzbekistan lifted all restrictions on entry, stay and residence for people living with HIV – see this UNAIDS infographic on current travel restrictions for PLHIV.
Legislative changes now protect persons living with HIV against discrimination in the workplace, and it is mandatory for employers with more than five regular employees on staff to develop a written policy on HIV and AIDS.
The law forms part of the regulations which will accompany the Occupational Health and Safety Act and is intended to prevent the spread of HIV in the workplace and also stem the associated stigma and discrimination.
HIV testing is not a precondition to employment and no employer is allowed to ask any person whether directly or indirectly about their HIV status.
Ghana: New supportive, human rights-focused HIV law expected to pass soon
The Ghana AIDS Commission and its partners have drafted a new legal framework, HIV and the Law which is expected to be passed into law soon. According to Ghana AIDS Commission’s Abu Mahama, the legal framework is to address issues bordering on HIV/AIDS and human rights, and it is also expected to protect those living with HIV/AIDS as well as those affected by the disease.
He said the Commission is also putting together a Stigma and Discrimination Strategy to reduce stigma and discrimination against People Living with HIV (PWHIV) in the country. Mr. Mahama further stated that the Ghana AIDS Commission is providing funds to government health facilities that provide Anti-Retroviral Therapy (ART) services to register PLHIV for the National Health Insurance Scheme (NHIS).
India: Gujarat high court rules that hospitals, media should respect privacy of PLHIV
AHMEDABAD: Gujarat high court on Thursday directed that the identity of HIV positive people should not be disclosed by hospitals, as it could deter other patients from coming for treatment. The bench of Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwala called for strict concealment of the HIV positive person’s identity in response to a PIL filed by advocate Vijay Nangesh.
India: Advocates push for enactment of enabling, supportive omnibus HIV/AIDS Bill
“When we first started talking about the HIV/AIDS Bill, we were talking about how our children needed to be taken care of. Today, those children are adults waiting to be married, and have a different set of problems, but there is no law yet,” Daisy David, a woman living with HIV says. After about three years of preparation in consultation with many groups, the HIV/AIDS Bill took final shape in 2006 and was submitted to the Law Ministry the next year.
The Law Ministry took three years to clear it, and sent it back to the Health Ministry. Since then it has been lying idle or being foot balled between the Health and Law Ministries, activists charged. Meanwhile, the community got tired of waiting for the State to take over and do the rest. So they took to the street again, campaigning for the bill to be tabled in the coming session of the Parliament.
“It is extremely disappointing, the way this Bill has been shuttling between the two Ministries. We demand that the government should table the Bill in this monsoon session,” says Reni Jacob of World Vision. He stresses the importance of bringing into force a law that will protect the rights of persons living with HIV and offer them a forum for redress. The Bill envisaged wholesome coverage of issues relating to persons living with HIV/AIDS addressing issues of stigma and discrimination, care and protection, treatment and ensuring their rights. “We have a lot of problems now, from access to anganwadis, health care, and education, to denial of property rights. We can only keep quiet because there is no law to protect us,” Ms. David says, detailing her own experiences.
The Bill protects people living with, and affected by HIV from discrimination in both private and public sectors, bringing the private sector into the ambit for the first time, Kumaravel of the Tiruvallur Network of Positive People explains. Also, the Bill puts an obligation on the State to provide complete treatment including antiretrovirals, diagnostics, treatment for opportunistic infections, and nutritional supplements to every person living with HIV in the country, adds Noori of the South Indian Network of People with HIV/AIDS.
Surekha N of the Lawyers Collective, which originally drafted the Bill, explained that it has recently been sent to the Law Ministry.
Global Commission newsletter highlights recent developments on HIV and the law around the world
Dear subscribers, We are delighted to share issue 2 of the Global Commission on HIV and the Law Newsletter – Issue 2 for 2013. Since the last Newsletter was released, there have been a number of significant developments on HIV and the law some of which are briefly described below in digest format.
UNAIDS launches first-ever Judicial Handbook on HIV, Human Rights and the Law: Interview with UNDP's Mandeep Dhaliwal
The meeting also looked at specific actions that can be taken by Judges, to create a more supportive environment for people with HIV and key populations that are at-risk. UNAIDS also launched the first-ever Judicial Handbook on HIV, Human Rights and the Law at the meeting.
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