Kazakhstan: 0.1% of people diagnosed with HIV in 2022 filed a report for alleged HIV transmission

Why Kazakhstan’s HIV-positive people do not go to the police?

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

Knowingly infecting another person with the immunodeficiency virus is a crime, but most criminal cases break up before trial.

Last year, 3,900 Kazakhstani people got the bad news of their HIV test result – 11.5% more than a year earlier (3,500).

Infecting another person with HIV is a criminal offence. Article 118 of Kazakhstan’s Criminal Code provides that if a person infects another person, he or she faces up to five years in prison. The only exception to this is if the HIV-positive person warned his or her partner and the partner volunteered to take the risk.

Law enforcement agencies record reports of those infected every year. But compared to the total annual statistics of new patients at AIDS centres, the number of those who report intentional infection to the police is negligible. In 2022, out of 3,900 infected people, only four, or 0.1%, filed a report. In previous years of the five-year period, such appeals were also few: from 5 to 12. This is data from the Committee on Legal Statistics and Special Accounts of the General Prosecutor’s Office of the Republic of Kazakhstan.

It is noteworthy that not every such criminal case goes to court. It is not uncommon for cases to be closed on various grounds. This is influenced by many factors, including the evidence base. For example, last year, law enforcement agencies had 6 criminal cases pending. Four of them were received in 2022, and the other two are the previous years’ cases. By the end of the year, only 2 cases were sent to court, and 4 were closed. According to the Legal Statistics Committee report, these 4 cases were terminated on one of the following grounds: lack of corpus delicti, expiration of the statute of limitations, death of a suspect, and “due to refusal to give consent of the prosecutor’s office to prosecute a person who has privileges or immunity from prosecution”. Such persons, according to Chapter 57 of the Criminal Procedure Code, include diplomatic officials, judges, prosecutors and members of parliament. Which of the listed grounds was applied to terminate specifically these criminal cases is not specified in the statistics.

The gender ratio of victims can also be traced in the reports. Most often, it is women who submit statements to the police. Cases of minors being infected with HIV are also recorded. In 2019, 2021 and 2022 the parents of 9 school, college and lyceum students who were infected with HIV contacted the police.

Почему ВИЧ-инфицированные казахстанцы не обращаются в полицию?

Осознанное заражение другого человека вирусом иммунодефицита – преступление, но основная часть уголовных дел распадается до суда.

В прошлом году плохие новости о своем результате ВИЧ-теста узнали 3,9 тыс. казахстанцев — на 11,5% больше, чем годом ранее (3,5 тыс.).

Заражение ВИЧ-инфекцией другого человека — уголовно наказуемое преступление. Статья 118 уголовного кодекса РК гласит: если человек с положительным статусом ВИЧ заразил другого, его могут лишить свободы на срок до пяти лет. Исключение сделают только в том случае, если ВИЧ-инфицированный предупредил партнера и тот добровольно пошел на риск.

Правоохранительные органы ежегодно фиксируют заявления зараженных. Но в сравнении с общей годовой статистикой новых пациентов СПИД-центров, число тех, кто обращается в полицию в связи с умышленным заражением, ничтожно мало. В 2022 году из 3,9 тыс. зараженных заявления написали всего 4 человека, или 0,1%. В предыдущие годы пятилетки таких обращений тоже было немного: от 5 до 12. Это данные комитета по правовой статистике и спецучетам Генпрокуратуры РК.

Примечательно, что далеко не каждое такое уголовное дело доходит до суда. Нередки случаи, когда дела закрывают по разным основаниям. На это влияет много факторов, в том числе доказательная база. Например, в прошлом году в производстве у правоохранительных органов находились 6 уголовных дел. Из них 4 поступили в 2022 году, ещёе 2 — переходящие дела предыдущих лет. До конца года в суд было направлено только 2 дела, а 4 — закрыты. По информации из отчета комитета правовой статистики, производство по этим 4 делам было прекращено по одному из следующих оснований: отсутствие состава преступления, истечение срока давности, смерть подозреваемого, а также “в связи с отказом в даче согласия прокуратуры на привлечение к уголовной ответственности лица, обладающего привилегиями или иммунитетом от уголовного преследования”. К числу таких лиц, согласно главе 57 Уголовно-процессуального кодекса РК, относятся дипломатические работники, судьи, прокуроры, депутаты парламента. Какое из перечисленных оснований было применено для прекращения конкретно этих уголовных дел, в статистике не указывается.

Можно проследить в отчетах и гендерное соотношение потерпевших. Чаще всего заявления в полицию пишут женщины. Фиксируются и случаи заражения ВИЧ-инфекцией несовершеннолетних. В 2019-м, 2021-м и 2022 году в полицию обратились родители 9 школьников, учащихся колледжей и лицеев, которые были заражены ВИЧ.

Mexico: Civil society urges Supreme Court to rule against the constitutionality of law penalising HIV or STI exposure

Changes to the Penal Code of Querétaro, would endorse “discrimination”.

Translated with www.DeepL.com, please scroll down for English version

Currently, the Penal Code of the State of Querétaro imposes penalties on anyone who “knowing that he or she suffers from a serious illness in an infectious period (…) puts the health of another in danger of contagion”.

Querétaro, 10 March 2023.- The Supreme Court of Justice of the Nation (SJCN) should be careful, since if it were to endorse the constitutionality of the “Garrote Law”, approved by the Congress of Querétaro during the pandemic, it would be endorsing discrimination, emphasised Luis Felipe Zamudio, director of the Centre for Guidance and Information on HIV-AIDS (COIVIHS).

This is in reference to article 127-BIS of the State Penal Code, which establishes penalties, comparable to the crime of injury, for anyone who “knowing that they suffer from a serious illness during an infectious period (…) puts the health of another at risk of contagion through sexual relations or any other transmissible means”.

In this sense, Zamudio warned that Querétaro, like other states in the country, “criminalises with this article in its Penal Code, those who have a sexually transmitted infection or live with HIV, since the Civil Registries also prevent access to marriage for those who live with this health condition.

For this reason, Zamudio stressed that civil organisations are keeping an eye on what happens in the SCJN, as the decision taken by its plenary will have repercussions for all states.

“It would be endorsing discrimination and would lead to a very serious problem. This would also be a catastrophe in terms of human rights, because then we would be talking about the fact that the Supreme Court does not have all the experience it should have, and that is what the ministers are there for,” he argued.
He also stressed that part of the political agenda of COIVIHS is to repeal this reform of the Penal Code and will ask local deputies who are on the Commission on Health, Vulnerable Groups or Human Rights, as well as the Human Rights Ombudsman (DDH), to make a proposal to reform local legislation.

It should be recalled that recently, Minister Yasmín Esquivel Mossa had planned to endorse the constitutionality of the “Garrote Law”, however, after receiving opinions from her colleagues on the Court, she announced that she was withdrawing her proposal.

Reformas al Código Penal de Querétaro, avalaría “discriminación”
Actualmente, el Código Penal del Estado de Querétaro impone penas a quien “sabiendo que padece una enfermedad grave en período infectante (…) ponga en peligro de contagio la salud de otro”.

Querétaro, 10 de marzo del 2023.- La Suprema Corte de Justicia de la Nación (SJCN) deberá de ser cuidadosa, ya que de avalar la constitucionalidad de la “La ley Garrote”, aprobada por el Congreso de Querétaro en la pandemia, estaría avalando la discriminación, enfatizó Luis Felipe Zamudio, director del Centro de Orientación e Información en VIH-Sida (COIVIHS).

Esto al hacer referencia al artículo 127-BIS del Código Penal del Estado y que establece imponer penas, equiparables al delito de lesiones, a quien “sabiendo que padece una enfermedad grave en periodo infectante (…) ponga en peligro de contagio la salud de otro, por relaciones sexuales u otro medio transmisible”.

En este sentido, Zamudio alertó que Querétaro, al igual que otros estados del país” criminaliza con este artículo en su Código Penal, a quien tiene una infección de transmisión sexual o vive con VIH, ya que, también se impide en los Registros Civiles el acceso al matrimonio, a quien vive con esta condición de salud.

Por ello, Zamudio recalcó que las organizaciones civiles están al pendiente de lo que ocurra en la SCJN, pues la decisión que tome su pleno, repercutirá para todos los estados.

“Estaría avalando la discriminación y se metería en un problema muy fuerte. Eso además sería una catástrofe en materia de derechos humanos, porque entonces hablaríamos de que la Suprema Corte no del todo, tiene toda la experiencia, que debería de tener y que para eso están ahí los ministros y las ministras”, argumentó.
Asimismo, subrayó que parte de la agenda política de COIVIHS, es lograr derogar esta reforma del Código Penal y se solicitará tanto a los diputados locales que estén en la Comisión de Salud, Grupos Vulnerables o de Derechos Humanos, al igual que a la Defensoría de los Derechos Humanos (DDH), para que realicen una propuesta y se logré reformar la legislación local.

Cabe recordar que, recientemente, la ministra Yasmín Esquivel Mossa tenía previsto avalar la constitucionalidad de la “Ley Garrote”, sin embargo, tras recibir opiniones de sus compañeros de la Corte, anunció que retiraba su propuesta.

Mexico: Nayarit congress repeals laws criminalising the transmission of HIV and other infectious diseases

Nayarit Congress approves reforms to combat discrimination against people living with HIV

Translated with Deepl.com. Please scroll down for article in Spanish

The Congress of Nayarit approved reforms to the State Penal Code so that people with HIV and diseases transmitted by intimate contact are not discriminated against and enjoy their right to the development of their personality and privacy.

The proposal was presented by the president of the 33rd Legislature, Congresswoman Alba Cristal Espinoza Peña, who endorsed the request of groups of people with these diseases.

“Society and legislators, this is the way to continue searching for a more inclusive and respectful Nayarit, it is once again the result of the combination of society and legislators, we have to break the stigmatising barriers”, declared Espinoza Peña.

By removing the crime of contagion from the Penal Code, this vulnerable sector will no longer have to suffer discrimination for having a sexually transmitted disease.

Nayarit joins the states of Aguascalientes, Jalisco, San Luis Potosí and Tabasco, where their Penal Codes do not provide for a specific crime for the transmission of sexually transmitted diseases through intimate relations; this does not mean that it will not be prosecuted, but that it will be subject to the crime of injury.

In this same session, the deputies reformed the Law on Women’s Access to a Life Free of Violence and the Penal Code, regulating violence by extension (vicarious violence) as a criminal offence, in order to inhibit violence against the partner or ex-partner through manipulation or affecting the children.

Aprueba Congreso de Nayarit reformas para combatir discriminación hacia personas con VIH

El Congreso de Nayarit aprobó reformas al Código Penal del Estado para que personas que padecen VIH y enfermedades transmitidas por contacto íntimo, no sean discriminadas y gocen su derecho al desarrollo de la personalidad e intimidad.

La propuesta fue presentada por la presidenta de la 33 Legislatura, diputada Alba Cristal Espinoza Peña, quien hizo suya la petición de colectivos de personas con estos padecimientos.

“Sociedad y legisladores, ese es el camino para poder seguir buscando un Nayarit más incluyente y más respetuoso, es una vez más el resultado de la combinación de la sociedad y legislador, tenemos que romper las barreras estigmatizantes”, declaró Espinoza Peña.

Al eliminar el delito de contagio del Código Penal, este sector vulnerable ya no tendrá que sufrir discriminación por contar con una enfermedad de transmisión sexual.

Nayarit se suma a los estados de Aguascalientes, Jalisco, San Luis Potosí y Tabasco, lugares donde sus Códigos Penales no tienen previsto un delito en particular para el contagio de enfermedades de transmisión por relaciones íntimas; ello no significa que no será perseguido, sino que se sujetará a través del delito de lesiones.

En esta misma Sesión las y los diputados reformaron la Ley de Acceso a las Mujeres a una Vida Libre de Violencia y el Código Penal, regulando la violencia por extensión (violencia vicaria) como delito penal, ello para inhibir la violencia contra la pareja o expareja a través de la manipulación o afectación de las y los hijos.

New principles lay out human rights-based approach to criminal law

New legal principles launched on International Women’s Day to advance decriminalization efforts

The International Committee of Jurists (ICJ) along with UNAIDS and the Office of the High Commissioner for Human Rights (OHCHR) officially launched a new set of expert jurist legal principles to guide the application of international human rights law to criminal law.

The ‘8 March principles’ as they are called lay out a human rights-based approach to laws criminalising conduct in relation to sex, drug use, HIV, sexual and reproductive health, homelessness and poverty.

Ian Seiderman, Law and Policy Director at ICJ said, “Criminal law is among the harshest of tools at the disposal of the State to exert control over individuals…as such, it ought to be a measure of last resort however, globally, there has been a growing trend towards overcriminalization.”

“We must acknowledge that these laws not only violate human rights, but the fundamental principles of criminal law themselves,” he said.

For Edwin Cameron, former South Africa Justice of the Constitutional Court and current Inspecting Judge for the South African Correctional Services, the principles are of immediate pertinence and use for judges, legislators, policymakers, civil society and academics. “The 8 March principles provide a clear, accessible and practical legal framework based on international criminal law and international human rights law,” he said.

The principles are the outcome of a 2018 workshop organized by UNAIDS and OHCHR along with the ICJ to discuss the role of jurists in addressing the harmful human rights impact of criminal laws. The meeting resulted in a call for a set of jurists’ principles to assist the courts, legislatures, advocates and prosecutors to address the detrimental human rights impact of such laws.

The principles, developed over five years, are based on feedback and reviews from a range of experts and stakeholders. They were finalized in 2022. Initially, the principles focused on the impact of criminal laws proscribing sexual and reproductive health and rights, consensual sexual activity, gender identity, gender expression, HIV non-disclosure, exposure and transmission, drug use and the possession of drugs for personal use. Later, based on the inputs of civil society and other stakeholders, criminalization linked to homelessness and poverty were also included.

Continued overuse of criminal law by governments and in some cases arbitrary and discriminatory criminal laws have led to a number of human rights violations. They also perpetuate stigma, harmful gender stereotypes and discrimination based on such grounds as gender or sexual orientation.

In 2023, twenty countries criminalize or otherwise prosecute transgender people, 67 countries still criminalize same-sex sexual activity, 115 report criminalizing drug use, more than 130 criminalize HIV exposure, non-disclosure and transmission and over 150 countries criminalize some aspect of sex work.

In the world of HIV, the abuse and misuse of criminal laws not only affects the right to health, but a multitude of rights including: to be free from discrimination, to housing, security of the person, movement, family, privacy and bodily autonomy, and in extreme cases the very right to life. In countries where sex work is criminalized, for example, sex workers are seven times more likely to be living with HIV than where it is partially legalized. To be criminalized can also mean being deprived of the protection of the law and law enforcement. And yet, criminalized communities, particularly women, are often more likely to need the very protection they are denied.

UNAIDS Deputy Executive Director for the Policy, Advocacy and Knowledge Branch, Christine Stegling said, “I welcome the fact that these principles are being launched on International Women’s Day (IWD), in recognition of the detrimental effects criminal law can, and too often does have on women in all their diversity.”

“We will not end AIDS as a public health threat as long as these pernicious laws remain,” she added. “These principles will be of great use to us and our partners in our endeavors.”

Also remarking on the significance of IWD, Volker Türk, High Commissioner for Human Rights, said, “Today is an opportunity for all of us to think about power and male dominated systems.”

His remarks ended with, “I am glad that you have done this work, we need to use it and we need to use it also in a much more political context when it comes precisely to counter these power dynamics.”

“Frankly we need to ask these questions and make sure that they are part and parcel going forward as to what human rights means,” he said.

In conclusion, Phelister Abdalla, President of the Global Network of Sex Work Projects, based in Kenya noted: “When sex work is criminalized it sends the message that sex workers can be abused…We are human beings and sex workers are entitled to all human rights.”

US: Bill put forward in Minnesota would repeal HIV criminalisation law

Democrats propose repealing law against knowingly exposing someone to HIV

Five Minnesota House Democrats are proposing eliminating the law that makes it a crime to knowingly expose someone to HIV or other sexually transmitted diseases.

The lawmakers’ bill (HF267) would repeal a 1995 law that allows prosecutors to charge someone who “knowingly harbors an infectious agent” and engages in behaviors that could transfer it to another person, such as through sex, sharing needles or by donating blood, sperm or organs. A person who takes steps to prevent transmission, as advised by health professionals, is not guilty of a crime under the law.

“This is part of a national — really international — movement to repeal laws that criminalize HIV,” said Rep. Leigh Finke, DFL-St. Paul. “These are old, outdated, homophobic statutes.”

Laws criminalizing the spread of HIV are not uncommon. Most were enacted at the height of the AIDS epidemic in the late 1980s and 1990s. Thirty-five states have laws that criminalize exposing others to HIV without their consent, according to the Centers for Disease Control and Prevention.

The laws were enacted before the development of antiretroviral treatments, which can reduce the presence of HIV so much that it is undetectable and untransmittable. Many laws don’t account for those developments or else reflect the limited understanding people had at the time of HIV transmission by criminalizing actions like spitting or oral sex.

The CDC as well as the Department of Justice advise that states repeal those laws or “modernize” them, noting that they have not been shown to be effective in curbing the spread of HIV. The laws may even be counterproductive by disincentivizing people from getting tested and knowing their status.

Minnesota’s current law largely conforms to what the CDC recommends, however. The law applies to all communicable diseases, not just HIV. The law does not apply to people who take preventative measures such as wearing a condom or taking a viral suppression medication. And the law does apply to acts that don’t lead to transmission like spitting or oral sex.

While criminal cases are rare, they do occur. In the past five years, four people have been charged in Minnesota courts with knowingly transferring a disease, one of whom was convicted.

In 2018, Simon Santiago Vicente was charged with two felonies for raping a 20-year-old woman in the restaurant he managed in Lino Lakes. The woman called 911 during the attack and dispatchers reported hearing her say “no” repeatedly.

Police arrived and found Vicente on top of the woman in one of the booths. After being arrested and taken to the Anoka County jail, Vicente reported that he is HIV positive and had not been taking medications to treat it since 2016.

Vicente ultimately pleaded guilty and was sentenced to 62 months in prison for criminal sexual conduct and 55 months for transferring a communicable disease. The sentences were concurrent, so Vicente won’t serve additional time in prison because he transferred HIV.

Asked about that case, Finke said: “I think convicting a rapist for rape is sufficient.”

“I don’t think there’s a meaningful reason for us to have statutes that criminalize a rapist because that rapist has HIV. He’s a rapist and should be criminalized for rape,” she said.

Even if the law were repealed, prosecutors may still be able to seek longer sentences in sexual assault cases that result in victims contracting a communicable disease by arguing it is an aggravating factor.

The bill is co-authored by Democratic Reps. Athena Hollins of St. Paul, Jessica Hanson of Burnsville, Alicia Kozlowski of Duluth and Brion Curran of Vadnais Heights.

US: New bill would repeal Minnesota’s criminal statute on HIV exposure and transmission

HF 267, a bill that would repeal Minnesota’s criminal penalties for “transmission of a communicable disease from one person who knowingly harbors the agent to another”, has been introduced on January 11 and will be sent to the House’s Public Safety Committee for debate.

Current Minnesota law makes it a crime to knowingly engage in behaviour deemed to be a possible mean of transmission of a communicable disease via sexual intercourse, blood, sperm, organ or tissue donation, or sharing of needles or syringes for the purpose of injecting drugs.

 

Ukraine: New protective HIV law adopted, but criminal liability for HIV exposure or transmission remains

The Parliament of Ukraine has adopted the Bill “On amendments to the Law of Ukraine “On combating the spread of diseases caused by the human immunodeficiency virus (HIV), and on legal and social protection of people living with HIV”, which applies modern approaches to HIV prevention, testing and treatment based on WHO guidelines.

Barriers to HIV testing have been reduced by enshrining in law the long-standing practice that testing can be carried out by non-governmental organisations on a peer-to-peer basis.

The archaic concept of ‘risk groups’ has been abolished, with the law referring instead to practices that may involve some risk. There are also key populations to which the state should direct its efforts to prevent the spread of HIV.

From now on, a person is considered to be “living with HIV” only from the moment of laboratory confirmation of the diagnosis. If a rapid test shows that you have HIV antibodies, you are not yet considered to be living with HIV.

The law guarantees universal access to HIV services regardless of legal status in Ukraine, which is in line with the European Convention on Human Rights.

Pre-exposure prophylaxis, or PrEP, is introduced into the legal sphere

Self-testing is introduced into legislation: you can test yourself for HIV – on your own or with the help of a counsellor.

Minors can get tested on their own initiative from the age of 14 (under 14 – at the request of their parents).

Every blood donation will be subject to an HIV test before it can be used – this is now part of the law.

The law explicitly prohibits the humiliation of people on the basis of belonging to various key populations, such as MSMs.

New progressive regulations will be adopted at the Ministry of Health level, on testing procedures, diagnosis, etc.

All of the above are innovations from draft law 6364, which was adopted as a whole by the Verkhovna Rada at its first plenary session this year.

The new law is the result of many years of efforts by many governmental and non-governmental partners, including the Centre for Public Health of Ukraine, 100% Life – PLWH Network, UNAIDS and many others, as well as community organisations such as the All-Ukrainian Association of People with Drug Addiction, Positive Women, the National LGBTI Consortium, Legalife-Ukraine.

 

US: New bill in North Dakota aims to modernise outdated HIV-criminalisation law

Letter: North Dakota has a chance to destigmatize HIV and AIDS

Opinion:

“Folks living with HIV/AIDS are valuable contributors to their families, communities, and warrant equal treatment under the law,” Fargo resident Kara Gloe writes.

House Bill 1281 is an opportunity to right a wrong. The current law is discriminatory and codifies stigma faced by people living with HIV/AIDS. Similar laws don’t exist for herpes, hepatitis or other STIs with no cure. Considering there have only been three convictions under this law, it’s a solution to a problem North Dakota has never had. Frankly, it does more harm than good.

As a mental health therapist serving people living with HIV/AIDS in North Dakota, every client discusses the stigma. For many, someone discovering their status without their consent is a fear constantly running through their minds. For many, it is or has been the reason they are isolated, stuck in unhealthy relationships, suffer from substance use disorder, etc. It’s a major contributing factor to depression, anxiety and/or has caused or contributed to trauma. It is the reason they stopped attending church or have lost their community. I have heard how others’ ignorance plagues my clients, either as thousands of paper cuts or as full frontal emotional and psychological assaults.

Medical advances take us further away from the AIDS epidemic and failed health policy of the 1980s. HIV is no longer a terminal illness, but rather a manageable long-term disease not unlike diabetes. People having access to resources needed to heal trauma and develop coping skills for thriving, instead of just surviving, benefits everyone. Folks living with HIV/AIDS are valuable contributors to their families, communities, and warrant equal treatment under the law. I hope North Dakota legislators and their constituents will send the message that North Dakotans agree.

 

US: Bill to modernise Indiana HIV laws advances to the full House

Legislation to modernize Indiana’s HIV laws clears House committee

People with HIV would no longer be subject to harsher criminal penalties under legislation that advanced out of a House committee Wednesday.

If you put your bodily fluid or waste on someone – like, say, spitting on them – it’s a misdemeanor in Indiana. But laws passed decades ago said that if you know you have HIV, it becomes a felony.

Carrie Foote said such laws reflect an outdated understanding of how HIV spreads. Foote, who was diagnosed with HIV in 1988, leads the state’s HIV Modernization Movement.

“HIV is not transmitted that way,” Foote said. “HIV is transmitted in very specific ways: sexually or if you share intravenous drugs with somebody.”

The measure, HB 1198, initially got rid of harsher penalties for putting bodily fluid on a law enforcement officer when you have HIV.

The statewide police union, represented by Ed Merchant, didn’t like that. He said police prefer the law the way it is – even if officers aren’t at risk from contracting HIV from things like spit.

“This provides our officers with better cover,” Merchant said. “It penalizes – it makes a felony for doing that.”

Rep. Wendy McNamara (R-Evansville) attempted a compromise – the bill now leaves in a felony if a person with HIV puts blood on a public safety official.

Other parts of the bill completely eliminate criminal penalties for donating blood or semen when you know you have HIV. Advocates said testing has eliminated the risks of such donations – and people with HIV can even be organ donors now.

More importantly, Dr. David Welsh said, those criminal penalties cause people to avoid getting tested for HIV in the first place – if they don’t know they have the virus, they can’t get charged.

Welsh represents the Indiana State Medical Association.

“Outdated laws can interfere with how we interact with our patients and can cause patients to distrust their physicians,” Welsh said.

The bill does make it a felony if a person with HIV isn’t following a treatment plan provided by a doctor and shares a needle or makes sexual contact with someone else without telling them they have HIV.

The measure is headed to the full House.

Kenya: Petitioners intend to appeal High Court decision to dismiss challenge to the criminalisation of HIV transmission

KELIN disappointed by High Court judgment in HIV criminalisation case

The Kenya Legal and Ethical Issues Network on HIV & AIDS (“KELIN”) is disappointed with the Nairobi High Court’s decision dismissing Petition 447 of 2018.

The Petition was filed in December 2018. It asked that the Court declare section 26 of the Sexual Offences Act 3 of 2006 to be unconstitutional, void and invalid, and therefore struck from the law. This law criminalises deliberate transmission and or exposure of life-threatening sexually transmitted diseases, including HIV.

On 20 December 2022, Justice Ong’udi in the Nairobi High Court dismissed the Petition, upholding the law’s constitutionality.

“We are disappointed with both the outcome and the Court’s process,” said Mr Allan Maleche, the Executive Director of KELIN. “The judgment failed to consider the undisputed expert evidence. That evidence showed how this law, and its application, are not only contrary to international scientific consensus on the nature and risk of HIV transmission, but that it is also harmful to proven strategies to prevent and treat HIV effectively”, he said.

Ms Nerima Were, KELIN’s Head of Programmes, said that in addition, KELIN regretted that the Court elected not to have an oral hearing and instead decided the case on the papers only. It also declined to consider the amici curiae’s submissions, despite that they had previously been admitted as friends of the Court on 27 January 2020. Ms Were said that “For such an important case, where understanding HIV science was critical to ensuring justice, the Court would have benefitted from hearing the Petitioners and counsel, and from considering the international expertise of the friends of the court, UNAIDS and HIV Justice Worldwide.”

Mr Maleche said that while the judgment somewhat narrows the interpretation of the offence, for as long as it remains on the books, it will continue to obstruct an effective HIV response. The Petitioners intend to appeal the judgment.

Who were the parties?

The petitioners were KELIN, people living with HIV and an HIV-negative spouse.

  • The first petitioner was a man living with HIV who had been charged with a crime under section 26 of the Sexual Offences Act for allegedly biting a police officer’s thumb during his arrest.
  • The second petitioner was a woman living with HIV who was on HIV treatment and had an undetectable viral load. She was charged under section 26 of the Sexual Offences Act after being falsely accused of breastfeeding another person’s child.
  • The third petitioner was a woman living with HIV. After she disclosed her HIV-positive status to her spouse, he violently assaulted her and threatened to report her to the police under section 26 of the Sexual Offences Act.
  • The fourth petitioner was a woman living with HIV who was married to the fifth petitioner, who is HIV-negative. The sixth petitioner was similarly a woman living with HIV who was married to an HIV-negative spouse. These petitioners were concerned that the HIV-positive spouses risked prosecution under section 26 of the Sexual Offences Act, even though they were all aware of each other’s HIV-statuses, and that the HIV-positive spouses were on treatment and taking precautions to prevent transmission.

The respondents were the Attorney General, the Director of Public Prosecution (“DPP”).

The National AIDS Control Council (“NACC”) joined as an interested party.

There were two friends of the court (or amici curiae): the Joint United National Programme on HIV and AIDS (“UNAIDS”) and HIV Justice Worldwide (“HJWW”) (“the friends of the Court”).

What were the parties’ arguments?

The Petitioners argued that section 26 of the Sexual Offences Act infringes the principle of legality because it is vague and arbitrarily enforced. They demonstrated that – by virtue of the law’s vague language – it is being applied in circumstances where there is scientifically a minimal or no risk of HIV transmission, and in circumstances where there is no established intent to transmit HIV.

The Petitioners demonstrated that section 26 of the Sexual Offences Act had been used to harass and extort people living with HIV, to test them without informed consent, as a tool of gender-based violence against women living with HIV, to publicise people’s confidential health information unjustifiably, and to advance HIV stigma and misinformation.

The Petitioners argued that the law therefore infringes constitutionally protected rights unjustifiably, including article 28 (the right to inherent dignity), article 29(f) (the right to freedom and security of the person), article 27 (the right to freedom from discrimination), article 49(1)(d) (the rights of arrested persons), article 50(1) (the right to a fair trial), article 31 (the right to privacy), and article 45 (the right to family).

The Petitioners provided undisputed expert evidence to show that the law did not prevent HIV transmission.

The Attorney General, with the support of the DPP, opposed the Petition. He argued that section 26 of the Sexual Offences Act was not unconstitutional and was clear and unambiguous.

The NACC also opposed the Petition. It argued that the law properly aimed to punish people who deliberately infect other people and did not infringe any constitutional rights.

HJWW and UNAIDS were admitted as friends of the Court on 27 January 2020. HJWW provided an international context to HIV criminalisation generally and to section 26 of the Sexual Offences Act specifically. UNAIDS sought to provide the court with information on international standards, policies and recommendations regarding the use of criminal law against HIV non-disclosure, exposure and transmission. The Court declined to consider the submissions of the friends of the court.

What was the court’s decision?

The High Court dismissed the Petition.

It considered that it was beyond its mandate to consider the undisputed evidence that the law undermined public health interventions and efforts to prevent HIV transmission.

The Court did not consider that section 26 of the Sexual Offences Act was unconstitutional. It held that, properly interpreted, an offence is only committed if a person has actual knowledge of their HIV status, and intentionally, knowingly and wilfully does infects a person with HIV or other sexually transmitted disease. It therefore did not consider the provision vague or ambiguous.

It held further that the Petitioners had not shown that section 26 of the Act violated their constitutional rights.

The Court nonetheless acknowledged that the Petitioners had “clearly showcased” that the law had been used to “harass and charge them wrongfully” as people living with HIV. It held that the Petitioners were at liberty to seek redress for any non-compliance by the authorities with the law.

It held that a person’s HIV-positive status should never be announced in open Court or published in order to protect the dignity of the person concerned.

What is the effect of the High Court’s decision?

The Court’s decision means that, unless the judgment is successfully overturned on appeal, section 26 of the Sexual Offences Act remains valid law in Kenya.

The Court has confirmed, however, that the offence should be restrictively applied only where three elements are proved beyond a reasonable doubt:

  • First, the perpetrator must act intentionally and with a specific intention to infect another person;
  • Second, the perpetrator must have actual knowledge of their HIV status; and
  • Third, the prosecution must prove that the perpetrator actually infected the other person with HIV.

The Petitioners have a right appeal the judgment to the Court of Appeal.