Bangladesh: Communicable Disease Prevention, Control and Elimination Act, 2016 which includes jail time and a fine for not being screened and/or treated for many communicable diseases, including HIV, is approved by cabinet

The cabinet yesterday approved a proposed law aiming at preventing and controlling communicable diseases in the country.

The proposed law titled Communicable Disease Prevention, Control and Elimination Act, 2016 has a provision of jail term and fine for a person who is affected with such a disease but does not undergo medical tests for detection.

Briefing reporters after a cabinet meeting at the Secretariat, Cabinet Secretary M Shafiul Alam said the affected persons concerned would also have to be examined in related and specified institutes to detect the types of their diseases.

If a patient avoids medical tests to detect presence of diseases considered as transmittable, they would face one-year imprisonment or Tk 2 lakh fine, he added.

Alam said one of the goals of the draft law is to protect people from communicable diseases as well as taking proper measures to create mass awareness about germs related diseases like Kala-Azar, HIV, Influenza, Nipah, Ebola and Typhoid.

Under the proposed law, a patient or the affected persons would have to be screened and isolated to protect common people from being affected, he observed.

Experts have termed the proposed law a “landmark and a milestone.”

“It’s a landmark decision of the government. With enactment of the law, Bangladesh’s health sector will move one step forward,” said Prof Dr AKM Shamsuzzaman, director of Communicable Disease Control of the Directorate General of Health Services (DGHS).

He told The Daily Star that communicable diseases would be eliminated more quickly with the implementation of the law.

Communicable diseases like malaria, dengue, Filariasis, Kala-azar, all types of influenza, Nipah, HIV, viral hepatitis, among others, would be brought under the legal framework of the law, he added.

Prof Shamsuzzaman further said, “We used to face difficulties in dealing with diseases which appear suddenly on any part of the country. With the enactment of the law, the health department will be able to involve other government bodies concerned including the law-enforcement agencies for controlling such outbreaks.”

Emerging threats of diseases like Zika and communicable diseases which transmit frequently on bordering areas would be dealt under legal framework, he said, thanking the government for approving the proposed law.

The health ministry moved to enact the law in 2014 but couldn’t do so due to various bureaucratic tangles, according to insiders.

The draft law was prepared in line with and replacing the Bangladesh Malaria Eradication (Repeal) Ordinance, 1977 and the Prevention of Malaria (Special Provisions) Ordinance, they said.

As per the proposed law, the authorities concerned will create quarantine facilities for affected persons. The law also creates a scope for the government to take all kinds of assistance from other countries to prevent communicable diseases.

New report shows HIV criminalisation is a growing, global concern but advocates are fighting back

A new report released today shows that HIV criminalisation is a growing, global phenomenon. However, advocates around the world are working hard to ensure that the criminal law’s approach to people living with HIV fits with up-to-date science, as well as key legal and human rights principles.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

What do we mean by ‘HIV criminalisation’?

HIV criminalisation describes the unjust application of the criminal law to people living with HIV based solely on their HIV status – either via HIV-specific criminal statutes, or by applying general criminal laws that allow for prosecution of unintentional HIV transmission, potential or perceived exposure to HIV where HIV was not transmitted, and/or non-disclosure of known HIV-positive status.

Such unjust application of the criminal law in relation to HIV is (i) not guided by the best available scientific and medical evidence relating to HIV, (ii) fails to uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and (iii) infringes upon the human rights of those involved in criminal law cases.

What is the impact of HIV criminalisation?

Understanding the potential negative impact of HIV criminalisation on public health is critical to making informed policy decisions.

The last few years have seen increasing interest among researchers in the area of HIV criminalisation and a push into new areas of enquiry to examine the impacts of the unjust application of criminal law.

The report summarises a body of research which shows that instead of delivering a public health benefit, HIV criminalisation is a poor public health strategy, exacerbating racial and gender inequalities and negatively impacting a number of key areas including: testing; disclosure; sexual behaviour; and healthcare practice.

How many countries around the world have HIV criminalisation laws?

Since our last report, we found an increase in the number of countries that specifically allow for HIV criminalisation: these could be stand-alone HIV-specific criminal laws, part of omnibus HIV laws, or criminal and/or public health laws that specifically mention HIV.

Some of this increase is due to laws enacted since 2013 in Botswana, Cote d’lvoire, Nigeria, Uganda and Veracruz state (Mexico), and some is due to improved reporting and research methodology.

Our analysis shows that a total of 72 countries have adopted laws that specifically allow for HIV criminalisation, either because the law is HIV-specific, or because it names HIV as one (or more) of the diseases covered by the law. This total increases to 101 jurisdictions when the HIV criminalisation laws in 30 of the states that make up the United States are counted individually.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_6

How many countries have prosecuted people living with HIV?

Prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries. This total increases to 105 jurisdictions when individual US states and Australian states / territories are counted separately.

Of the 61 countries, 26 applied HIV criminalisation laws, 32 applied general criminal or public health laws, and three (Australia, Denmark and United States) applied both HIV criminalisation and general laws.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_7

Where have prosecutions recently taken place?

We found reports of at least 313 arrests, prosecutions and/or convictions in 28 countries during the report period, covering 1 April 2013 to 30 September 2015.

Of note, we are now able to include data on reported prosecutions in Belarus and Russia, which are likely to have been taking place at least since the enactment of a Belarusian public health law in 1993 and a Russian HIV criminalisation law in 1995.

The highest number of cases during this period were reported in:

• Russia (at least 115) • United States (at least 104) • Belarus (at least 20) • Canada (at least 17) • France (at least 7) • United Kingdom (at least 6) • Italy (at least 6) • Australia (at least 5) • Germany (at least 5).

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_8

HIV criminalisation in sub-Sarahan Africa of increasing concern

Where there was no HIV criminalisation at the start of the 21st century, 30 sub-Saharan African countries have now enacted overly broad and/or vague HIV-specific criminal statutes.

Most of these statutes are part of omnibus HIV-specific laws that also include protective provisions, such as those relating to non-discrimination in employment, health and housing. However, they also include a number of problematic provisions such as compulsory HIV testing and involuntary partner notification, as well as HIV criminalisation.

During the period covered by this report four countries in sub-Saharan Africa passed new HIV criminalisation laws: Botswana, Cote d’lvoire, Nigeria and Uganda.

Very few countries in Africa are now unaffected by problematic HIV criminalisation laws. The rise of reported prosecutions in Africa during this period (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_9

Where has advocacy improved legal environments?

Important and promising developments in case law, law reform and policy have taken place in many jurisdictions, most of which came about as a direct result of advocacy.

During the report period, although an additional 13 jurisdictions in nine countries proposed new HIV criminalisation laws, seven of these were not passed, primarily due to swift and effective advocacy against them at an early stage. Advocacy in another ten jurisdictions in seven countries challenged, improved or repealed HIV criminalisation laws.

The legal environment relating to HIV criminalisation has improved in a small number of countries in sub-Saharan Africa, most notably in Kenya. On 18 March 2015, Kenya’s High Court ruled that its HIV criminalisation provision – Section 24 of the HIV Prevention and Control Act 2006 – was unconstitutional because it was vague, overbroad and lacking in legal certainty, particularly in respect to the term ‘sexual contact’.

The Court also found it contravened Article 31 of the Kenyan Constitution which guarantees the right to privacy because the law created an obligation for people with HIV to disclose their status to their ‘sexual contacts’, with no corresponding obligation for recipients of such sensitive medical information to keep it confidential.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_10

Using science as an advocacy tool

Increased knowledge about reduced infectiousness due to antiretroviral therapy has led to advocacy that resulted in a number of jurisdictions revising or revisiting their criminal laws or prosecutorial policies relating to HIV criminalisation, although progress has been frustratingly slow.

Following the ‘Swiss statement’, published in January 2008, a growing number of courts, government ministries and prosecutorial authorities have accepted antiretroviral therapy’s impact on reducing the risk of both HIV exposure and transmission.

However, scientific advances alone will neither ‘end AIDS’ nor end HIV criminalisation. Although the impact of antiretroviral therapy on infectiousness is an important advocacy tool, it must be remembered that many people with HIV do not have access to treatment (or are unable to achieve an undetectable viral load when on treatment) and that everyone has a right to choose not to know their status and/or start treatment and should not be stigmatised nor considered ‘second class citizens’ should they wish to delay diagnosis or antiretroviral therapy.

More work required

Despite the many incremental successes of the past few years, much more work is required to strengthen advocacy capacity. This is why a coalition of seven organisations launched HIV Justice Worldwide in April 2016.

We also need to be aware that HIV criminalisation does not exist in vacuum, and is often linked to punitive laws and policies that impact sexual and reproductive health and rights, especially those aimed at sex workers and/or men who have sex with men and other sexual minorities.

And, bearing in mind the stigma faced by those with, for example, hepatitis C and concerns over the sexual transmission of the Ebola and Zika viruses, as we move forward to eliminate – or modernise – HIV criminalisation laws, we must ensure that our work does not inadvertently lead to the further criminalisation of other communicable and/or sexually transmitted infections.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

A note about the limitations of the data

The data and case analyses in this report covers a 30-month period, 1 April 2013 to 30 September 2015. This begins where the original Advancing HIV Justice report – which covered the 18-month period, 1 September 2011 to 31 March 2013 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

US: American Psychological Association adopts resolution opposing HIV criminalisation

The American Psychological Association (APA) has adopted an evidence-informed resolution on HIV criminalisation in the United States.

It was developed with feedback from the APA Committee on Legal Issues and the HIV Medicine Association – who themselves issued a Policy Statement on HIV Criminalization in 2015 – along with the Sero Project and The Center for HIV Law and Policy.

According to the background document:

We believe an APA resolution will strongly encourage states with HIV criminalization laws to repeal such laws and provide psychologists practicing in relevant states with guidance on the impact that HIV-specific laws may have on their patients, clients, and the general public’s health.

The resolution, adopted by the Council of Representatives in February 2016 and published on March 15th, can be read in full on the APA website.

It includes the following key messages:

THEREFORE be it resolved that APA opposes HIV criminalization and recommends the repeal or reform of these laws to eliminate HIV-specific criminal penalties with the exceptions of 1) a person with known HIV committing a sex crime where there is risk of transmission, and 2) a person with known HIV who has the intent to transmit the virus and is engaged in a behavior with a high risk of transmission;

BE IT FURTHER RESOLVED that laws that are not in alignment with the current scientific evidence on HIV transmission should be repealed;

BE IT FURTHER RESOLVED that laws that criminalize behaviors posing low or negligible risk for HIV transmission should be repealed or reformed and better aligned with contemporary scientific evidence regarding HIV transmission probabilities for specific behaviors and the efficacy of risk-reduction activities (e.g., consistent condom use);

BE IT FURTHER RESOLVED that laws that target PLHIV and engender harsher sentencing should be repealed;

BE IT FURTHER RESOLVED that laws that increase likelihood of incarceration for PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that undermine national HIV prevention efforts should be repealed;

BE IT FURTHER RESOLVED that criminalization laws that increase the risk of and intimate partner violence to, and control of women and other vulnerable people with HIV should be repealed;

BE IT FURTHER RESOLVED that laws that specifically target and criminalize PLHIV should be repealed;

BE IT FURTHER RESOLVED that laws that discriminate and stigmatize against PLHIV should be repealed;

BE IT FURTHER RESOLVED that psychologists practicing in states with HIV-specific criminalization laws are encouraged to better understand the impact of these laws on their patients who have HIV or who may be at elevated risk for HIV infection.

Australia: New campaign launched by state PLHIV organisation to amend HIV disclosure requirement in New South Wales’ Public Health Act

Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review.

The Public Health Act is a key piece of NSW legislation which impacts the lived experience of people living with HIV. For many years, Positive Life has advocated for a number of key changes to the Act to reflect the current reality of HIV as a chronic manageable health condition, to better support efforts to end HIV transmission and to acknowledge prevention of HIV transmission is a shared responsibility regardless of sero-status. With charges under the Crimes Act laid against a man relating to the alleged infection of another man in January, now unrelated accusations against a sex worker extradited to Western Australia, Positive Life will again advocate for change to the Public Health Act as part of a required review of the legislation.

Despite an update in 2010, Positive Life argues some sections of the Public Health Act need change, and even removal from the Act to protect the interests of people living with HIV, reduce stigma and discrimination and enhance HIV prevention and testing in the broader community. A key example is the removal of Section 79, known as the ‘disclosure provision’.

Section 79 requires anyone who knows they have a sexually transmissible infection (STI) including HIV to inform a person before they have sex, and for that person to voluntarily accept the risk of acquiring that infection. In NSW, if you are HIV-positive and don’t disclose your status before sex you are guilty of an offence under the Act. The requirement to disclose your HIV status before sex hasn’t changed from the 1991 version of the Act, except for the inclusion of a ‘reasonable precautions’ provision.

This provision provides a defence to prosecution if ‘reasonable precautions’ have been taken during sex to prevent transmission. However, the definition of ‘reasonable precautions’ remains unclear and this amendment falls short of the current reality of HIV. Removing Section 79 will provide a more comprehensive approach to the rights and responsibilities of the community regardless of sero-status.

With today’s HIV treatments, if a HIV-positive person is on treatments and has an ‘undetectable viral load’, the chances of condomless sex resulting in HIV infection are extremely low. However under the current Section 79, without change to the law or a court deciding that an undetectable viral load is a ‘reasonable precaution’, a person with HIV could still be committing an offence under the Act for not disclosing their status before sex.

Under Section 79, criminalising HIV discourages testing and encourages anonymous sex. Put simply, if you don’t know you have HIV you cannot be found guilty of an offence under the Act for not disclosing your status. Equally, anonymous sex reduces your chances of being identified for prosecution. In an era where more than 90% of people with HIV are on treatment and have an undetectable viral load, people who are infected with HIV but unaware of their status are more of a risk for transmission than people on treatment with a suppressed viral load.

Fear of prosecution inhibits honesty with sexual partners and medical providers, so Section 79 may actually increase the transmission of HIV and other STIs, rather than decrease it. An honest and open relationship with our doctor is crucial to maintain good health regardless of our sero-status. For example, contracting an STI such as gonorrhoea is a risk for anyone who is sexually active, and if the symptoms are hidden, we don’t know we’ve picked up an STI. If we can’t speak openly about the sex we have, it’s likely we won’t be tested for STIs and instead transmit any unknown infection to others.

Under Section 79, forced disclosure of our status as a person with HIV can encourage HIV-related stigma and discrimination, both real and perceived. Disclosure of our status as a person with HIV can, in rare circumstances, lead to violence. More often forced disclosure leads to rejection, loss of control over who knows of our status, discrimination on the basis of our status, or the premature ending of relationships.

Section 79 as it stands does not account for PrEP. Today, many HIV-negative people are already importing pre-exposure prophylaxis or ‘PrEP’, and following the announcement on World AIDS Day last year of an expanded trial of the HIV-prevention medication, many more will be taking PrEP as the trial is rolled out in coming months. A benefit of PrEP is it encourages HIV-negative people to take control of their own health and reduce their own risk of acquiring HIV. Reducing HIV transmission is a shared responsibility and Positive Life believes this principle should be reflected in the Public Health Act.

With the coming review of the Public Health Act, Positive Life will share more about other changes we believe should be made to the Act to reflect the modern reality of HIV as an ongoing manageable health condition. In the meantime, if you have questions or comments about our proposed changes to HIV disclosure requirements in the Act, please make contact on 1800 245 677 (freecall) or by email.

Originally published on Gay News Network

Stop the Prague Public Health Authority’s persecution and intimidation of people living with HIV [Press release]

Pan-European Networks of communities of people living with and affected by HIV, doctors and scientists call upon the Government of the Czech Republic to immediately stop the Prague Public Health Authority’s persecution and intimidation of people living with HIV, and to return to evidence-based and proven practices in HIV prevention, testing and care in the Czech Republic.

Brussels, 19 February 2016 – The signatories of this open letter, representing communities of people living with, and affected by HIV, doctors and scientists addressing HIV and co-infections in Europe, are extremely concerned that the Prague Public Health Authority has initiated a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).

We understand that the Czech police are currently conducting investigations and are considering pressing charges against these men claiming that they have violated the provisions of Sections 152 and 153 of the Czech Criminal Code.

There is no evidence that punitive approaches to regulating the consensual sexual behaviour of people with living HIV are an effective HIV prevention or public health tool, but there is evidence that such approaches can be counterproductive by further stigmatising people with HIV, sending those in need of testing and treatment underground, harming individual and public health.

In addition, the release of medical information to the police appears to be a grave violation of personal freedoms of individuals living in the Czech Republic. The initiation of criminal prosecution against people living with HIV for alleged intentional gross bodily harm – despite the lack of a single complainant – raises grave concerns regarding the inappropriate application of criminal law to people living with HIV.

We also understand that a number of non-governmental organizations have recently spoken out against the acts of the Prague Public Health Authority and subsequent police investigation and they will approach the Czech liaison at the UN High Commissioner for Human Rights. Please also note that the responsible UNAIDS representative has already been informed and will receive further briefing from us.

With this letter we express our outrage at these human rights violations, and support the groups within the Czech Republic who initially raised objections and are working to support both people with HIV and the public health of all those living in the country.

Our main objections to the recent development are based on several arguments:

It violates the fundamental human right to personal integrity and privacy (Art 7 Sec. 1 of the Charter of Fundamental Rights and Freedoms), and breaches the Czech Republic’s international obligations under the existing National HIV/AIDS Strategy;
It is counterproductive to public health, ignoring well established WHO and UNAIDS recommendations on appropriate use of public health and criminal law as it relates to HIV. Evidence shows that criminalisation of HIV non-disclosure, potential or perceived exposure or non-intentional transmission deter people from getting tested and force them to hide their HIV status and/or sexual orientation, thus reducing opportunities for treatment which greatly reduces infectiousness.
There is a substantial body of evidence to show that the overly broad HIV criminalisation, in any form, is harmful for both individuals and society as it leads to increased latency of the epidemic, deters people from getting tested and treated, and thus ultimately contributes to a growing epidemic. We recognize that there has been a constant and alarming increase in the rate of new HIV infections in Europe in the last ten years. However, the active discrimination and violation of the human rights of any group of society will not contribute to the curbing of the epidemic.
The proposed prosecution of people living with HIV for alleged intentional spread of infectious diseases, or in fact the transfer of any health-related data of individual from the health care system to law enforcement organisations is potentially a violation of the European Union’s Data Protection Directive.

We demand that the Government of the Czech Republic adheres to the international principles and treaties, and scientific evidence universally accepted in the practice of HIV prevention, and we also demand that the current level of HIV care in the country is maintained and improved to assure at-risk groups feel that getting tested for HIV is and should be a reasonable decision for them. Nothing is as effective in linking to and retention in care than disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.

The signatories will continue to support local non-governmental organisations and other actors in their efforts to prevent HIV criminalization becoming a public health policy. We call on the Government of Czech Republic to ensure that the Prague Public Health Authority reverses this policy and ends police investigations of people with HIV simply for being diagnosed with an STI and instead relies on good public health practice as the most effective strategy to deal with HIV/AIDS.

Speaking on behalf of millions of people living with and affected by HIV across Europe, as well as experts in HIV science, public health and human rights, the signatories are ready to provide advice, guidance and the collection of good practices relating to HIV prevention to the government.

Contact:

HIV Justice Network: Edwin J Bernard, edwin@hivjustice.net

European AIDS Treatment Group: Tamás Bereczky on tamas.bereczky@eatg.org

Download and share the letter (with references). Also available on the EATG website

Open Letter to Prague Public Health Authority

Footnote: At the request of Czech AIDS Society a number of organisations representing European networks of communities of people living with and affected by HIV, doctors and scientists wrote today to head of Prague’s Public Health Authority to raise our concern about the initiation of a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).

We hereby would like to stress that disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men has proved have proved to be effective in responding to the epidemic, to link to and retain persons in care. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.

Letter to Dr. Zdeňka Jágrová, Hygienicka, Head of the Prague Public Health Authority

Czech Officials Launch Criminal Investigation Into 30 Gay Men Over HIV Exposure

Czech Republic: Prague Public Health Authority initiates criminal prosecutions of 30 gay men living with HIV following an STI diagnosis

Late last month, Prague’s Public Health Authority initiated criminal investigations against 30 gay men living with HIV that had been diagnosed with a sexually transmitted infection (STI) during the previous year.

The Public Health Authority appear to believe that since these men acquired an STI this is proof that they must have practiced condomless sex and have therefore violated Sections 152 and 153 of the Czech Criminal Code, which a 2005 Supreme Court ruling confirmed could be used to prosecute any act of condomless sex (including oral sex) by a person living with HIV as “spread of infectious diseases”.

There are no individual complainants in these cases.

The Czech AIDS Society responded to the publication of initial media reports on January 26th, with a press release that highlighted:

They have already begun to provide legal counseling to several of these men.
Most of them have an undetectable viral load and/or only have sex only with other men living with HIV (known as ‘serosorting’).
Being diagnosed with an STI does not, in and of itself, prove that condomless sex took place because most STIs can be acquired even when condoms are used.
Fear of punishment will lead to people living with HIV and at risk of a sexually transmitted infection not getting tested or treated.

“Czech AIDS Society has long struggled against the criminalisation of the private life of people living with HIV in cases where there is no HIV transmission. We believe that the HIV epidemic must be fought not through repression, but through the treatment which, in most cases, reduces the viral load of HIV-positive patients to undetectable levels thus eliminating the risk of transmission.”

They went on to make a number of media appearances pointing out that applying criminal law to potential HIV exposure does not reduce the spread of HIV, undermines HIV prevention efforts, promotes fear and stigma, punishes behaviour that is not blameworthy and ignores the real challenges of HIV prevention in the Czech Republic.

They also published a second press release, entitled “Professional failure of public health officials” on February 10th that was strongly critical of the actions of Prague’s Public Health Authority, noting that they have greatly undermined trust in the confidentiality of the public health system which will likely lead to an increase in new HIV infections.

On February 12th, the head of Prague’s Public Health Authority, Ms. Zdenka Jagrova (pictured above), issued a statement in response, suggesting that the Authority is legally obliged to initiate such criminal complaints and that “it would be a professional failure if [we] did not do so…

[We] did not check sexual orientation of HIV-positive people who got infected with another contagious, sexually transmitted disease. It is not an attack on the gay community, but in 2014 no HIV-positive woman in Prague was diagnosed with a sexually transmitted disease. A public health authority is obliged to protect the public health of the population and must act in the same manner as in case of other infectious diseases, for instance TB….This campaign aiming at questioning our practices is clearly intended to assert alleged rights of a minority at the expense of the rights of the majority, i.e. in particular the right to health, irrespective of who and how threatens the health. We consider attempts to create a privileged group that would be excluded from generally defined responsibilities very dangerous.”

A number of organisations representing communities of people living with and affected by HIV are now working together with UNAIDS to support the Czech AIDS Society, including the circulation of a Change.org petition.

It appears that none of the cases have yet been passed to the Public Prosecution office for formal prosecution. However, the investigation has set a dangerous precedent and we understand that public health departments in other regions of the Czech Republic are now considering following the Prague example.

US: A panel of health experts blasts HIV criminalisation laws as a failure that keep people from getting tested and ignore the current state of science

A panel of health experts blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

And the laws – in place in Georgia and states across the South – or prosecuting people for HIV exposure using other criminal statues – which happens in Texas and four other states – also ignore that partners in consensual sex acts share responsibility for their sexual health, according to Scott Schoettes, a senior attorney and HIV Project Director at Lambda Legal.

“The story is about the AIDS monster out there trying to infect everyone and that is not the case,” Schoettes said (top photo). “Sexual health is a shared responsibility. It creates a sense of false security for the person who is negative – ‘There is this law in place and I can sit back and wait for someone to tell me.'”

He said the laws keep people with HIV from getting tested and few, if any, of the laws require prosecutors to show that an HIV-positive person had any intent to infect a sex partner. Nevermind, he adds, that it’s difficult to prove that someone did disclose their HIV status before sex and once convicted, some state laws call for them to be labeled as sex offenders.

“It becomes a he said, he said and the person with HIV, when you get into that courtroom, is naturally at a disadvantage. A lot of people think that when you have HIV, you have done something wrong. We are still fighting that misperception,” Schoettes said. “When you have a jury that is deciding the fate of someone, they are disconnected from the culture of the folks that they may be actually adjudicating.”

And that can mean steep sentences for people convicted under HIV criminalization laws. In July, Michael Johnson – a black, gay, HIV-positive college wrestler in Missouri – was sentenced to 30 years in prison for infecting a sex partner and putting four others at risk, though prosecutors didn’t show in court that Johnson was the man who infected him. In South Carolina, former gay Atlanta man Tyler Orr faces two counts of exposing another person to HIV and up to 20 years in prison – though he says he did disclose his HIV status to his sex partner.

Schoettes’ comments came during a panel discussion during the 2015 National HIV Prevention Conference in downtown Atlanta earlier this month. He was joined by Randy Mayer, chief of the HIV, STD and Hepatitis Bureau of the Iowa Department of Public Health; Tami Haught, an activist who led efforts in Iowa to reform its HIV criminalization law; David Knight, a trial attorney with the Civil Rights Division of the U.S. Department of Justice; and Terrance Moore, deputy executive director with the National Alliance of State & Territorial AIDS Directors.

‘It’s not a slam dunk’

Knight said the HIV criminalization laws don’t reflect the current state of science and risk surrounding HIV and pointed to a document released earlier this year by the Justice Department calling on states to reform their HIV criminalization laws.

“Two things that we really want to think about is that intentional transmission is atypical and uncommon, and HIV stigma hampers prevention,” Knight said.

The Justice Department document calls on states to tighten their HIV criminalization laws to scrap HIV-specific criminal penalties with two exceptions – when an HIV-positive person commits a sex crime where there is risk of transmission and when there is clear evidence that an HIV-positive person intended to infect another person and engaged in risky behaviors to do so.

But changing HIV criminalization laws in the three-dozen states that have them is a tough haul, Mayer (second photo) and Haught said. They built coalitions across groups and enlisted public health experts to help revise the law in Iowa, a measure passed in 1998 that carried harsh penalties and 25-year prison terms that were often doled out to those convicted.

“In my experience, almost everyone got the 25 years even though that was the maximum,” Mayer said. “It’s not a slam dunk. It’s not an easy sell. Many people, even people living with HIV find themselves on both sides of this issue.”

Iowa lawmakers revised the state’s HIV criminalization law in 2014 to treat HIV like other communicable diseases such as hepatitis and tuberculosis. The law also requires that prosecutors prove intent to transmit, Mayer said.

“We had to bring in the different coalitions and bring in partners. Lawmakers don’t care what is fair and what is right. But they will listen to the public health side of the law,” Haught said. “Iowa’s law was significantly modernized and everyone is better for it.”

The panelists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, they should be pushed to treatment options. The Centers for Disease Control & Prevention has said getting HIV-positive people tested and connected to care and treatment is key to controlling the disease. Undiagnosed HIV infections fuel the HIV epidemic, Eugene McCray, director of CDC’s Division of HIV/AIDS Prevention, said during the Atlanta conference.

“Getting people into care is a better way to reduce transmission than these laws,” Mayer said.

Originally published in Project Q