New report from Williams Institute finds that HIV criminalisation in Arkansas disproportionately impacts Black men

Enforcement of HIV Criminalization in Arkansas

Overview

The Williams Institute analyzed data from the state of Arkansas about individuals who came into contact with the state’s criminal system through allegations of HIV-related crimes. We analyzed both law enforcement arrest data and data from the state’s Department of Corrections and sex offender registries to understand the beginning and end stages of the criminalization cycle. In total, we estimate that at least 108 people have had contact with Arkansas’ criminal system because of allegations of HIV crimes.

Findings

  • There have been at least 119 charges at arrest for allegations of HIV-related crimes since 1990, including four charges for failure to disclose one’s HIV status to a medical professional.
  • Arrests continue to the present day, with the latest arrest in 2022—the latest year for which data were available.
  • Enforcement is highly concentrated by geography:
    • 18% of all arrests originated with Little Rock Police Department, followed by Fort Collins Police Department (10%).
    • Likewise, Pulaski County originated one-third of all HIV-related arrests, followed by Sebastian County with 12% of arrests, and Miller County with 5% of arrests. In contrast, most counties had one or no arrests.
  • The racial composition of people arrested for allegations of HIV-related crimes skews Black: Black people were 48% of all HIV-related arrests, but only 15% of the state’s population, and 43% of people living with HIV in the state:
      • Black men in particular were overrepresented—7% of the state’s population, 31% of people living with HIV, and 44% of HIV-related arrests.
  • Four in five arrests (80%) that proceeded to the prosecution phase resulted in a guilty outcome. Only one case resulted in a not guilty outcome, and the remaining cases had charges dropped or prosecutors declined to pursue the case.
  • The youngest person with an HIV-related conviction was 18 years old.
  • Fourteen people were currently on the sex offender registry for an HIV-related conviction in 2023.
    • Half of these people were Black men, although Black men made up only 22% of the overall sex offender registry.
  • Twenty-one people across two snapshots of people in Arkansas Department of Corrections (DOC) custody (in 2007 and 2023) had HIV-related convictions mandating a sentence:
    • The average sentence per count for the HIV-related conviction was 24 years.
    • Four people only had HIV-related convictions; they had no other current or prior convictions.
    • Black men were 57% of all people with an HIV-related DOC sentence, compared to 38% of all people in DOC custody.

Download the full report

Costa Rica: Organisation of People Living with HIV responds to proposed law to reinstate HIV Criminalisation

Policies that criminalise HIV are policies of death

Translated via Deepl.com. For article in Spanish, please scroll down

The Positivxs Organisation, an association of people living with HIV and STIs, told Yafit Ohana that “policies that criminalise HIV are policies of death”.

The organisation’s statements follow “the appearance of Ms Yafit Ohana before the Human Rights Commission of the Legislative Assembly of Costa Rica. In that dialogue, she confirmed that she had met several times with the President of the Republic, Rodrigo Chaves Robles, to propose the creation of a law criminalising intentional HIV transmission with penalties equal to those for murder. Ms. Ohana also said that her criminalization proposal is relevant because it aims to protect Costa Rican women and children.

In this regard, the members of Asociación Positivxs, an association of people living with HIV and STIs, want to communicate:

Policies that criminalize people living with HIV have been part of Costa Rica’s history. It is no secret that LGBTIQA+ people were persecuted under the excuse of preventing the transmission of the virus by the government of Oscar Arias Sanchez and the Ministry of Health led by former Minister Edgar Mohs through mandatory HIV testing for public sector work and raids on LGBTIQA+ bars between 1986 and 1987. It is always important to remember the open letter to the Ministry of Health by activists and social organisations of sexually diverse people in the daily newspaper Nación in 1987.

But years have passed, science has advanced and a virus like HIV is no longer a death sentence. Over the last ten years, science has talked tirelessly about it: Undetectable is untransmissible, i.e. a person who has access to antiretroviral treatment and takes it regularly has no chance of transmitting the virus through sex, breastfeeding or childbirth. Because of this, sister organisations working on HIV in the country and independent activists worked to update the General Law on HIV. This change happened in the last government and removed the criminalisation for transmitting the virus in order to respond to Human Rights guidelines.

Why should Costa Rica go back to targeting its most vulnerable populations? We know that policies that criminalise HIV exist in countries such as Canada and some states in the United States. But according to UNAIDS reports in 2021, what these laws have done is to accentuate the wounds of inequality in the most vulnerable populations and keep people living with HIV away from health centres when we need them most.

People living with HIV are men, women, children, we are migrants, we are non-binary people, we are substance users, we can be anyone, anywhere. We are people who simply because we are alive deserve a peaceful life where we are not criminalised for living with a virus.

Regarding Ms Ohana’s unfortunate statements, it is also important to mention that there are women with HIV and there are children with HIV and that policies that criminalise the transmission of the virus under the argument of sexual violence, also criminalise us.

We believe that instead of talking about us as sexual predators and thinking that we are going to transmit the virus voluntarily, the work of the State and public opinion should be to discuss and work to create policies that ensure access to health in a supportive, timely and humane way.

There is still a lot of work to be done in the country when it comes to HIV, for example there are these problems:

People are still dying from AIDS-related causes.
There are still trans sisters who experience violence within the Costa Rican health system.
There are still many obstacles to getting a woman cleared for HIV testing.
There are still ongoing logistical problems that affect access to treatment.
Rules and regulations have not yet been passed to enforce the provisions of the Comprehensive HIV/AIDS Law Reform 9797.

“For this reason we want to urge CONASIDA, the representatives of society before CONASIDA, the Ministry of Health and all those who wish to join us in putting pressure on the various state authorities to propose policies, laws, rules and regulations that put an end to the problems that exist in the country when it comes to HIV,” they said.

“To achieve this, it is necessary to leave behind policies based on hate and generate policies that heal the wounds of inequality that this country has inflicted on people with HIV throughout history,” they concluded.

Las políticas que criminalizan el VIH son políticas de muerte, señala organización de personas con VIH a Yafit Ohana

La Organización Positivxs, una asociación de personas con VIH e ITS, la señaló a Yafit Ohana que “las políticas que criminalizan el VIH son políticas de muerte”.

Las declaraciones de la organización se dan luego de “la comparecencia de la señora Yafit Ohana ante la Comisión de Derechos Humanos de la Asamblea Legislativa de Costa Rica. En dicho diálogo la señora confirmó que se reunió varias veces con el Presidente de la República, Rodrigo Chaves Robles, para proponer la creación de una ley que penalice la transmisión intencional del VIH con penas iguales a las de un asesinato. Ohana también afirmó que su propuesta de criminalización es pertinente pues pretende proteger a las mujeres y a la niñez costarricense”.

Al respecto, las personas que integramos la Asociación Positivxs, una asociación de personas con VIH e ITS, queremos comunicar:

Las políticas que criminalizan a las personas que vivimos con VIH han sido parte de la historia de Costa Rica. No es un secreto que las personas LGBTIQA+ fuimos perseguidas bajo la excusa de prevenir la transmisión del virus por el gobierno de Oscar Arias Sánchez y el Ministerio de Salud dirigido por el ex-ministro Edgar Mohs a través de la obligatoriedad de las pruebas de VIH para trabajar en el sector público y las redadas a bares de personas LGBTIQA+ entre 1986 y 1987. Siempre es importante recordar la carta abierta al Ministerio de Salud que hicieron activistas y organizaciones sociales de personas sexualmente diversas en el diario Nación en 1987.

Pero los años han pasado, la ciencia ha avanzado y un virus como el VIH ya no representa una sentencia de muerte. Durante los últimos diez años la ciencia a hablado incansablemente sobre: Indetectable es intransmisible, es decir, una persona que tenga acceso a tratamiento antirretroviral y lo consuma de forma regular no tiene ninguna posibilidad de transmitir el virus por vía sexual, lactancia o parto. Debido a ello, organizaciones hermanas que trabajan VIH en el país y activistas independientes trabajaron por actualizar la Ley General de VIH. Cambio que sucedió en el gobierno pasado y eliminó la penalización por transmitir el virus con el fin de responder a los lineamientos de Derechos Humanos.

¿Por qué Costa Rica debería volver a atacar a sus poblaciones más vulnerables? Sabemos que las políticas que criminalizan el VIH existen en países como Canadá o algunos estados de los Estados Unidos. Pero según informes de ONUSIDA en 2021, estas leyes lo que han hecho es acentuar las heridas de desigualdad en las poblaciones más vulnerables y alejar a las personas que vivimos con VIH de los centros de salud cuando más lo necesitamos.

Las personas con VIH somos hombres, mujeres, infancias, somos personas migrantes, personas no binarias, somos personas usuarias de sustancias, podemos ser cualquier persona en cualquier lugar. Somos personas que simplemente por el hecho de estar con vida merecemos una vida tranquila en la que no se nos criminalice por vivir con un virus.

Sobre las lamentables declaraciones de la señora Ohana, también es importante mencionar que existimos mujeres con VIH y que existen infancias con VIH y que políticas que criminalizan transmitir el virus bajo el argumento de la violencia sexual, también nos criminaliza a nosotras.

Creemos que en lugar de hablar de nosotres como depredadores sexuales y pensar que vamos a transmitir el virus de forma voluntaria, la labor del Estado y la opinión pública debe ser discutir y trabajar por crear políticas que aseguren el acceso a la salud de forma solidaria, oportuna y humana.

Aún queda mucho trabajo que hacer en el país cuando se habla de VIH, por ejemplo están estos problemas:

Aún mueren personas por causas relacionadas al sida.
Aún hay hermanas trans que viven violencia dentro del sistema de salud costarricense.
Aún hay muchos obstáculos para que le den el visto bueno a una mujer para que se haga pruebas de VIH.
Aún hay constantes problemas logísticos que afectan el acceso al tratamiento.
Aún no se han aprobado normas y reglamentos que hagan cumplir lo escrito en la Reforma de la Ley Integral de VIH-sida 9797

“Por ello queremos exhortar a CONASIDA, a las representaciones de sociedad ante CONASIDA, al Ministerio de Salud y a todas las personas que se deseen sumar a presionar a las distintas autoridades estatales para que propongan políticas, leyes, normas y reglamentos que acaben con los problemas citados existen en el país cuando se habla de VIH”, expresaron.

“Para lograrlo es necesario dejar atrás políticas basadas en el odio y generar políticas que sanen las heridas de desigualdad que este país ha causado en las personas con VIH a lo largo de la historia”, concluyeron.

Russia: Parliament to consider requirement for certificate indicating HIV status before marriage

Russians may be obliged to report their HIV status before getting married

The decision on the need to provide certificates has already been taken in Ingushetia.

In the State Duma it has been proposed to require Russians to disclose their HIV status before marriage. This proposal was expressed in conversation with the tg-channel “Abzats” deputy Vitaly Milonov. The decision on the need to provide certificates has already been adopted in Ingushetia.

Milonov said that he supports such an initiative and considers it worthy of being adopted at the federal level. The obligation to provide a certificate confirming the absence of HIV, he said, “will save families from many risks”.

The Ingush authorities are discussing the possibility of a complete ban on marriage without a certificate. As well as fines for the parents of the groom, in case the marriage broke up due to detected deception.

Milonov suggested softening the law at the federal level and not to prohibit marriage because of a positive certificate, as the decision should be made by the spouses themselves.

Россиян могут обязать отчитываться о своем ВИЧ-статусе перед заключением бракаРешение о необходимости предоставления справок уже приняли в Ингушетии.

В Госдуме предложили обязать россиян отчитываться о своем ВИЧ-статусе перед заключением брака. Такое предложение высказал в разговоре с тг-каналом «Абзац» депутат Виталий Милонов. Решение о необходимости предоставления справок уже приняли в Ингушетии.

Милонов заявил, что поддерживает подобную инициативу и считает ее достойной федерального уровня. Обязанность предоставлять справку, подтверждающую отсутствие ВИЧ, по его словам, «спасет семьи от многих рисков».

Напомним, что власти Ингушетии обсуждают возможность полного запрета на вступление в брак без справки. А также штрафы для родителей жениха, в случае если брак распался из-за выявленного обмана.

Милонов предлагает смягчить закон на федеральном уровне и не запрещать бракосочетание из-за справки с положительным результатом, так как решение должны принимать сами супруги.

Belize: Senate follows House of Representatives and votes for repeal of HIV criminalisation law

Law which makes it a crime to spread HIV repealed

Ву Ааrоn Нumеѕ: Fоllоwіng frоm thе Ноuѕе оf Rерrеѕеntаtіvеѕ, thе Ѕеnаtе соnѕіdеrеd thе аmеndmеntѕ tо thе Сrіmіnаl Соdе, ѕресіfісаllу ѕесtіоnѕ 46(а) аnd 73(а) соnсеrnіng сrіmіnаl rеѕроnѕіbіlіtу fоr trаnѕmіѕѕіоn оf thе humаn іmmunоdеfісіеnсу vіruѕ (НІV) whісh lеаdѕ tо Асquіrеd Іmmunоdеfісіеnсу Ѕуndrоmе (АІDЅ).

Іn thе Ноuѕе, Міnіѕtеr оf Неаlth, Кеvіn Веrnаrd, ѕtаtеd: “Рunіtіvе lаwѕ аrе nоt thе mоѕt еffесtіvе wау tо соmbаt thіѕ еріdеmіс. Тhеу саn, іn fасt, роѕе ѕіgnіfісаnt bаrrіеrѕ tо НІV рrеvеntіоn, trеаtmеnt, аnd саrе. Ву сrіmіnаlіzіng thе trаnѕmіѕѕіоn оf НІV/АІDЅ, wе run thе rіѕk оf drіvіng thе dіѕеаѕе undеrgrоund, dіѕсоurаgіng thоѕе аt rіѕk frоm ѕееkіng tеѕtіng, соunѕеlіng, аnd trеаtmеnt fоr fеаr оf lеgаl rерrіѕаl. Тhеrеfоrе, Маdаm Ѕреаkеr, thе Міnіѕtrу оf Неаlth аnd Wеllnеѕѕ fіrmlу bеlіеvеѕ thаt thе bаttlе аgаіnѕt НІV/АІDЅ ѕhоuld nоt bе fоught іn thе соurtrооm, but іn оur соmmunіtіеѕ, оur hоѕріtаlѕ, аnd оur сlіnісѕ. Wе ѕhоuld fосuѕ оur еffоrtѕ оn еduсаtіоn, рrеvеntіоn, саrе, аnd ѕuрроrt rаthеr thаn рunіѕhmеnt. Wе ѕhоuld аіm tо rеduсе thе ѕtіgmа аnd dіѕсrіmіnаtіоn thаt ѕurrоundѕ thіѕ dіѕеаѕе tо еnсоurаgе mоrе реорlе tо gеt tеѕtеd, tо knоw thеіr ѕtаtuѕ, аnd tо ѕееk trеаtmеnt. Аnd ѕо, dеfіnіtеlу, Маdаm Ѕреаkеr, thе rереаl оf thіѕ ѕесtіоn, 46А, аnd 73А, іѕ а ѕtер tоwаrdѕ а mоrе соmраѕѕіоnаtе, mоrе еffесtіvе аррrоасh tо аddrеѕѕіng НІV/АІDЅ.”

Іn thе Ѕеnаtе, Місhаеl Реуrеfіttе ѕuggеѕtеd аn ехсерtіоn fоr іnѕtаnсеѕ оf rаре аnd ѕехuаl аѕѕаult, роіntіng оut thаt а rаріѕt іѕ nоt lіkеlу tо rеvеаl thеіr НІV ѕtаtuѕ bеfоrе соmmіttіng thе асt.

Ѕеnаtоr Јаnеllе Сhаnоnа rесаllеd hеr јоurnаlіѕm dауѕ аnd nоtеd thаt ѕtіgmа аnd dіѕсrіmіnаtіоn rеmаіn rеаl fоr реrѕоnѕ wіth НІV аnd thаt а dіѕсuѕѕіоn оn ѕехuаl hеаlth аnd рrоtесtіоn іѕ nееdеd mоrе thаn еvеr.

Веlіzе hаѕ аvеrаgеd mоrе thаn 200 іnfесtіоnѕ frоm НІV реr уеаr іn thе lаѕt dесаdе wіth а hаndful оf dеаthѕ rероrtеd.

US: New Mexico looking at introducing HIV Criminalisation law for negligent exposure to HIV

HIV cases could prompt new legislation over spa practices

“A bill and legislation put forth that would criminalize this specific behavior is most definitely warranted. We would support it for sure,” the NM Attorney General’s office said.

ALBUQUERQUE, N.M. —

VIP Beauty Salon and Spa in Albuquerque, New Mexico, was shut down on Sept. 7, 2018, after undergoing an inspection by the New Mexico Department of Health. According to NMDOH, they identified practices that led to blood-borne infections. As of 2023, five former clients have been infected with HIV (Human Immunodeficiency Virus).

X, 62, pleaded guilty to five felony counts of practicing medicine without a license in June 2022. On October 5, 2022, X was sentenced to three and a half years in prison.

What is a ‘Vampire Facial?’

  • Plasma-rich protein facial.
  • Procedure draws blood, then separates plasma from the blood using a centrifuge.
  • Injects plasma into your skin (face) to create a “youthful look.”

“This would be a situation where people who were infected would be dealing with it in the court system. There are some ways that prosecutors can use existing laws to address this exposure, especially if you could point out that there’s basically criminal negligence, if that’s the case,” KOAT legal analyst John Day said.

“New Mexico hasn’t chosen to criminalize the exposure the way other states have. That’s certainly an issue that could be addressed. However, it points out the importance of doing research. If you’re going into any kind of medical clinic, you need to be doing some due diligence. If it looks too good to be true, it probably is,” Day added.

Belize: Parliament approves repeal of HIV criminalisation provisions

Outdated HIV-AIDS laws removed from books

by Marco Lopez

BELMOPAN, Fri. June 30, 2023

The Criminal Code was amended during Friday’s Sitting of the House of Representatives to repeal provisions related to the deliberate and reckless spreading of HIV-AIDS. During his presentation on the amendment, Minister of Health and Wellness, Hon. Kevin Bernard explained that the punitive laws pose barriers to treating the illness. The bill, which was taken through all its stages and passed, will go to the Senate for final assent and is aimed at encouraging infected persons to seek treatment.

Hon. Dolores Balderamos Garcia rose to remind the House that 22 years ago she was the member who brought the amendments to the National Assembly.

“It really is a momentous day for me – on this particular repeal proposal. I must admit to the honorable House that some 22 years ago, I was the minister at the time who really pushed and promoted the criminalization of the knowing or reckless transmission of HIV. We felt at the time, Madam Speaker, that it was the correct and responsible thing to do, and it may have had its day, like I say, 22, 23 years ago,” Balderamos Garcia said.

Since then, the creation of antiretroviral medication to treat HIV has made the ailment one that infected persons can live with. The human rights approach in tackling the HIV endemic has resulted in a shift of methodology in addressing the stigma and discrimination which prevent persons from getting to know their status and seeking treatment.

The repeal of the law also remedies an unintended effect of the legislation which criminalized infected mothers who would transmit the virus to their offspring during childbirth.

She maintained that other areas of the Criminal Code can address cases of reckless transmission of the virus, and explained that the spread of other sexually transmitted illnesses like the Human Papillomavirus or gonorrhea were not criminalized.

All these bills were taken through all stages during Friday’s sitting and will go to the Senate for assent.

US: Kentucky removes felony penalties for people living with HIV who donate organs and for the possession of HIV self-tests

Newly legal at-home HIV test kits to be distributed

A new law taking effect on Thursday nullifies two HIV-related felonies in state law, and advocacy groups will celebrate by handing out HIV self-test kits.

What You Need To Know

House Bill 349 takes effect on Thursday, which decriminalizes HIV self-test kits

Advocates will distribute free kits Thursday in Louisville and Lexington

HB 349 also removes felony penalties for people who donate organs, skin or other human tissue while being HIV positive

 

Kentucky’s “HIV Is Not a Crime Coalition” announced it will hold events in Louisville and Lexington on Thursday, June 29, to distribute free HIV home-test kits legally for the first time ever in Kentucky.

In Louisville, the kits will be available starting at 11 a.m. outside the headquarters of VOCAL-KY at 4th Street and Broadway. In Lexington, kits will be distributed starting at 1 p.m. at the AVOL office at 1824 Hill Rise Dr. Suite 100.

House Bill 349, which earned bipartisan passage during the 2023 legislative session, takes effect on Thursday. Among other things, the measure addresses two HIV-related issues: it removes felony penalties for people who donate organs, skin or other human tissue while being HIV positive, and it decriminalizes the possession or use of HIV self-tests.

Gov. Andy Beshear (D) signed HB 349 into law on March 31, and it has been hailed as one of the most sweeping HIV modernization laws in the nation, according to the Kentucky Fairness Campaign.

US: Nearly 200 people have been charged under Ohio’s antiquated HIV-criminalization laws

Ohio’s ‘unjust’ HIV-criminalization laws still in effect, state’s revised code shows

by:

COLUMBUS, Ohio (WCMH) — Ohio is home to several statutes criminalizing HIV, including a felony charge and prison sentence for those with the virus who fail to disclose their status to sexual partners.

HIV-positive Ohioans can be charged with second-degree felonious assault and receive a prison sentence of up to eight years for engaging in sexual conduct without divulging their medical history, Ohio’s Revised Code states. Ohio law also bars those with HIV from donating blood or plasma and penalizes those individuals for exposing others to their bodily fluid, like by spitting or biting.

However, HIV is not transmitted through saliva or unbroken skin and there are no documented cases of the virus spreading through spitting, according to the Centers for Disease Control and Prevention. Those living with HIV also cannot pass the virus through sex when they have reached an undetectable level of HIV in their blood, achieved through medication estimated to be 100% effective.

These antiquated laws have more severe punishments than for reckless homicide, sexual battery, or arson, according to the Ohio Health Modernization Movement. The organization has led the movement calling for reform of Ohio’s provisions that “incorrectly assume an HIV diagnosis is a death sentence.”

“The impact of Ohio’s unjust HIV laws reach far beyond their original intention,” the OHMM said. “They are unproductive because they are unsupported by science. This has led to unjust felony convictions that punish not only the perceived perpetrator, but the community at large.”

Nearly 200 charges under Ohio’s HIV-criminalization laws

One hundred and ninety-two cases across 65 Ohio counties have been confirmed to be connected to statutes criminalizing HIV, according to the OHMM. Of those cases, 104 have been charged for spitting, 60 for felonious assault, 13 for solicitation, four for loitering and one for prostitution.

The OHMM argues the HIV-related criminal prosecutions, of which more than a dozen have been tried in the last few years, are costly. Ohio spends more than $1 billion a year to run its prison system, at a cost of more than $25,000 an inmate.

“The money spent to incarcerate people under HIV criminal laws would be better spent on HIV prevention efforts and supporting the over 20,000 Ohioans living with HIV,” the organization said.

Further, there is no evidence that HIV criminalization laws promote public health by increasing disclosure, HIV testing or practice of safe sex, the OHMM said. The laws have also had zero impact on rates of HIV diagnosis.

The OHMM has built a coalition with Equality Ohio, Equitas Health and the AIDS Healthcare Foundation to call for significant alterations to Ohio’s Revised Code. The group proposals outline several changes including requiring prosecution to prove that a person intentionally transmitted HIV and switching all HIV-specific charges from a felony to a misdemeanor.

“Ohio’s six separate HIV criminalization laws are not based in science, they do not promote public health, and they perpetuate dangerous stigma against people living with HIV,” the organization said. “The time to modernize Ohio’s HIV laws is now.”

Thousands in Ohio living with HIV

More than 27,000 Ohioans are living with HIV and nearly 9,000 are taking a form of medication called PrEP, according to data from AIDSVu and the Ohio Department of Health.

PrEP is a once-daily pill taken to reduce a patient’s likelihood of developing HIV from sex or injection drug use. PrEP reduces the risk of getting HIV from sex by about 99% when taken as prescribed, according to the CDC.

There are two pills available for use as PrEP: Truvada and Descovy. Truvada is for patients at risk through sex or injection drug use, while Descovy is for patients only at risk through sex. PrEP can also be taken through a shot known as Apretude.

Data shows the number of PrEP prescriptions in Ohio has been steadily increasing while the rate of transmission has been slowly decreasing over the past decade.

However, a federal ruling recently struck down provisions requiring health insurance to provide free preventative care services, like PrEP. In response to the ruling, the Justice Department requested a court order to halt the decision while the case is appealed. In the interim, insurers and employers are able to decide whether to continue covering preventative healthcare.

Still, programs have been established that provide PrEP for free or at a reduced cost. Learn more here.

Belize: Government approves amendment to outdated section of the Criminal Code related to HIV transmission

Belize Govt to amend legislation dealing with HIV transmission

The Belize government is to seek parliamentary approval to amend a section of the Criminal Code as it relates to HIV transmission from mother to child.

The Ministry of Human Development, in collaboration with the Ministry of Health and Wellness had proposed that there be a change to the legislation that currently allows an HIV-positive person knowingly engaging in risky sexual behaviour and infecting another carries a penalty and that included mother to child transmission.

Human Development Minister Dolores Balderamos-Garcia said 22 years ago, Parliament  passed a law making it a criminal offense to what “we would say knowingly transmit HIV.

“Now, back then, HIV was quite frightening because it was before the days of the anti-retroviral medications and before we learnt more about the human rights approach as we call it. So we did pass an amendment to the Criminal Code, making it an offense to know that you have HIV and to be engaging in risky sexual behaviour. So we went ahead and did that.”

But  Balderamos-Garcia said after many years later, health authorities here have come to realise not only that it was unnecessary, but also that it flies in the face of modern human rights norms, especially as it comes to the health issues.

“So the Ministry of Human Development, myself, and also Minister Kevin Bernard and the Ministry of Health, we decided – of course based on the recommendation of partners – that it is really time to remove [it]”.

“What it did was it attracts unnecessary attention and further stigmatises the issue of HIV. I mean there are other sexually transmitted infections which are in the mix, if we could say, but it wasn’t necessary to cause the stigma and discrimination further on the HIV.”

Balderamos-Garcia said other sections of the Criminal Code can suffice where somebody does something very reckless or deliberate, but in relation to what has happened now in the evolution of the fight against HIV and other sexually transmitted infections, “it is not necessary to have that law now for the certification, as they call it and the validation that we are removing the mother to child transmission of HIV then in terms of the international norms, we have to remove that penal provision.

“So we are very pleased to do it and I can report that Cabinet has approved and it is a joint paper of the Ministry of Human Development and the Ministry of Health,” she told reporters.

New HIV Justice Academy content: Lessons from the Central African Republic’s HIV law reform success

In the mid-2000s, many countries across Africa adopted HIV laws. Many of these laws contained important protections covering discrimination, privacy, and access to medications. Unfortunately, they also included overly broad and ill-informed HIV criminalisation provisions.

The Central Africa Republic (CAR) adopted an HIV law in 2006 which not only criminalised HIV non-disclosure, exposure or transmission, it also required people living with HIV to undergo treatment as prescribed by a doctor and engage in protected sex and an obligation to disclose their HIV-positive status to sexual partners.

Given the significant problems with these aspects of the law, multiple law reform attempts were made but none were successful until a new law – Law 22-016 on HIV and AIDS in the Central African Republic – was finally enacted on 18 November 2022.

How did it happen? What changed? Why was the law finally reformed?

Christian Tshimbalanga is a lawyer from the Democratic Republic of Congo with many years’ experience working on human rights and HIV in Africa. Through his work with UNAIDS, Christian provided critical support to the law reform process following it through until Parliament voted on the law. Cécile Kazatchkine (Senior Policy Analyst at the HIV Legal Network) asked Christian to share lessons learned to help others working to reform problematic HIV laws.

Their 25 minute, French-language audio conversation is now available as an additional case study in Chapter 5 of the HIV Justice Academy’s free HIV Criminalisation Online Course: How to advocate against HIV criminalisation. A translated transcript of the conversation is also available in the English, Spanish and Russian version of the course.

Christian’s role was to accompany the process until the law was voted on in Parliament. Several elements of Christian’s account stood out for us:

  • In his role as an UNAIDS representative and technical partner, Christian was able to devote significant time to the law reform process, monitoring what was happening and pushing the bill through each stage of the process. Having a dedicated person on the ground to accompany the legislative process on a day-to-day basis was critical to the success.
  • Civil society was a key partner. The Central African Network of People Living with HIV (RECAPEV) and the Central African Network on Ethics and Rights (RCED) pushed hard for the law to be revised. UNAIDS provided them with a small amount of financial support which enabled them to increase their capacity to sustain this advocacy.
  • Local partners and international organisations were also partners in the law reform efforts, including the National AIDS Council (CNLS), the Ministry of Health and the Minister of Justice, as well as UNDP, UNAIDS, and the French Red Cross (the principal recipient of Global Fund funding in CAR).
  • A memorandum outlining the new bill was drafted by various stakeholders including civil society. It informed parliamentarians about the relevant public health and human rights issues and the scientific evidence related to HIV.
  • Following the example of a previous forum in Madagascar on a draft law on sexual and reproductive health, a forum was organised for (primarily male) parliamentarians and their (female) spouses. Because issues of this intimate nature are often discussed in the home, involving spouses was strategic. Several people living with HIV opened the forum by talking about their lived realities and the persistence of HIV-related stigma and discrimination in CAR.

While worthy of celebration, the new legislation is not a complete victory. It does not fully decriminalise HIV but it does provide a much narrower definition of the prohibited conduct. Under the 2006 law, a person living with HIV could be prosecuted simply for HIV ‘exposure’ without neither intent nor transmission. The 2022 Act criminalises “intentional transmission of the virus,” defined as, inter alia, the fact that a person who knows his or her status intentionally transmits the virus through unprotected sexual relations without disclosing his or her seropositivity. A list of circumstances where the criminal law should not be applied is also included (e.g., in the case of transmission of the virus from a mother to her child).

For more information on the 2022 Act, see the HIV Justice Network’s Global HIV Criminalisation Database.

To enrol in the HIV Criminalisation Online Course, visit the HIV Justice Academy and sign up.  It’s free!