Kenya: Petition challenging constitutionality of HIV criminalisation awaits governmental response

The government has 30 days to respond to a case challenging discriminatory laws that criminalize HIV exposure and transmission

The Attorney General and the Director of Public Prosecutions have been given 30 days from 20th July 2020 within which to file their responses to Petition 447 of 2019, a case challenging the constitutionality of Section 26 of the Sexual Offences Act. Section 26 of the Sexual Offenses Act creates a range of crimes that carry a mandatory minimum sentence of 15 years’ imprisonment despite global consensus amongst experts and institutions such the World Health Organization and UNAIDS that laws criminalizing HIV transmission and exposure weaken the ability of governments to end the AIDS epidemic.

The Petition was mentioned virtually before Justice Hon. Justice W. Koriron 20th July 2020 where the court also made the following directions:

  1. That all Respondents file their responses to the Petition within 30 days from the 20th July 2020;
  2. The Petitioners to file their submissions within 21 days after the lapse of the 30 days or upon service of responses by Respondents;
  3. The Respondents and Amicus curiae to file their submissions in response within 21 days after service by Petitioners;
  4. That the matter shall be heard on 4th January 2021 when parties shall highlight their submissions.

Petition 447 of 2019 was filed on 10 December 2018. The Petition highlights how the provision of the law is unconstitutional by virtue of being vague and incapable of enforcement and for violating the right to protection from discrimination. The court had previously admitted HIV Justice Worldwide and the Secretariat of the Joint United Nations Programme on HIV and AIDS (UNAIDS) as friends of the court. The Attorney General and the Director of Public Prosecutions are respondents in the petition.

Hearing of the Petition has been set on 4th January 2021 once all parties comply with the directions given by the court.

To contribute to the discussions on this forum, follow KELIN on our social media platforms: Twitter: @KELINkenya using these hashtags: #PositiveJustice; Facebook: http://www.facebook.com/kelinkenya.

Petition 447 of 2018
People living with HIV challenge discriminatory laws that criminalize HIV exposure and transmission

For more information, contact:

Allan Maleche, Executive Director

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

Karen C, Kuwinda Lane, Off Langata Road

P.O. Box 112-00202 KNH

Nairobi, Kenya |

Tel +254202515790; Cell +254708389870

Email: amaleche@kelinkenya.org

Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow

Earlier this month, advocates from all over the world came together for two hours to discuss the successes and challenges of the global movement to end HIV criminalisation.

All of the recordings of Beyond Blame: Challenging HIV Criminalisation for HIV JUSTICE WORLDWIDE are now available on the HIV Justice Network’s YouTube Channel.

“HUGE pleasure 2B at #BeyondBlame2020 conference – deftly curated, deeply informative; speakers were great; the passion & commitment to #HIVjustice was palpable. Much progress yet a sober reminder that the work is far from over.”

Kene Esom, Policy Specialist: Human Rights, Law and Gender, United Nations Development Programme (UNDP)

 

The full-length director’s cut version – with enhanced audio and video – is now available in English as well as with the audio track of the recorded simultaneous translation in French, Spanish, Russian, and Portuguese.

The English version is also available as a YouTube playlist in ‘bite-size’ chunks, with each segment of the webshow available as standalone videos.  This means, for example, if you just want to watch (or share) the segment on ‘women challenging HIV criminalisation in Africa‘, or on ‘bringing science to justice, and justice to science‘, it’s now possible.

“That webinar was perfectly executed. Great sound, engaging transitions (they actually played people on and off!), and multiple speakers in various collections. Having ALL OF THEM back at the end showed the breadth of this technical accomplishment and the depth of the speakers’ field of expertise. Not everyone may notice these things but boy, I sure do, and it was totally pro. I’ve seen big name conferences who couldn’t get this right… Congratulations all around, and especially to [director] Nicholas Feustel.

Mark S King, My Fabulous Disease

 

We have also made available for the first time the standalone recording of Edwin Cameron’s closing speech, which inspired so many.  The transcript is included in full below.

“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!

We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.

It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.

HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.

We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.

Let us rise today and say, “Enough!”

 

US: Advocates who fought to modernise HIV criminalisation laws for years are wary about what could happen around coronavirus

Will COVID-19 Make Modernizing HIV Criminal Laws Harder?

As states and municipalities struggle with how to enforce COVID-19 distancing and shutdown measures, many HIV criminal law reform advocates are looking warily at the news and waiting for history to repeat, or at least rhyme. Advocates expect new criminal laws on COVID-19 transmission, just like statutes enacted around HIV transmission, to come sooner or later.

These advocates say getting ahead of such laws is crucial—and that now is the time to remind lawmakers and law enforcement that statutes around infectious diseases must be grounded in public health and science, not inflamed by hysteria; in other words, avoid what happened with HIV laws decades ago.

It’s speculation at this point: In the three months since COVID-19 emerged in the U.S., no new criminal laws around transmission of the virus have been enacted. But prosecutions of transmission of COVID-19, deliberate or not, are probably going to happen, and there will be open questions: Did the victim contract the virus from one person who can be identified?

Belly Mujinga, a 47 year-old Black rail worker in the UK who was spat on by a man while on duty, died of COVID-19, but prosecutors will have a difficult time proving whether he contributed to Mujinga’s death, even if they find him and even if he does have the virus. Here in the U.S., most cases involving spitting usually occur when someone with HIV (and sometimes hepatitis C) is accused of spitting at police officers when arrests are being made—even though saliva is not a route of HIV transmission.

But if more incidents like this surface around COVID-19, lawmakers might be tempted to pass laws subjecting anyone coughing or spitting on another person—or just coughing in public—to misdemeanors, or even felonies. That’s something HIV advocates hope to prevent. They’ve been trying to overturn criminal laws like that for decades.

TheBody asked several HIV criminal law modernization advocates about what the novel coronavirus pandemic could mean for HIV laws, and vice versa. Most were cautiously optimistic that their years of educating lawmakers and law enforcement could make it easier to prevent new, draconian laws around criminal transmission of the COVID-19 virus. Some say that, if done right, the COVID crisis could present an opportunity to renew efforts in educating law enforcement, lawmakers, and the public that HIV criminal statutes are still on the books, still being enforced, and have done nothing to slow the transmission of the virus.

Trepidation in Iowa

A provision of the federal Ryan White Comprehensive AIDS Resources Emergency (CARE) Act in 1990 required states to certify their ability to prosecute any HIV-positive person who knowingly exposed another person, whether they actually transmitted it or not. Some states relied on existing statutes; others, like Iowa, wrote new ones around transmitting HIV. In almost every case, these new HIV laws went far beyond laws on the books.

Iowa revamped some of its HIV laws in 2014, allowing a tiered-sentencing system of felonies and misdemeanors, rather than a flat 25-year prison term. Those convicted under the law no longer have to register as sex offenders. But Iowa activists say there is much more to be done.

Tami Haught, organizing and training coordinator for the Sero Project, fought to modernize Iowa’s laws for years, and she’s wary about what could happen around coronavirus.

“I’m a pessimist,” Haught tells TheBody. “The fear of the unknown makes society reach for criminal laws. We don’t have a strong public health knowledge. People don’t understand disease, generally. If deaths continue to rise (from COVID-19), it worries me that legislators will create new laws to prosecute, spurred on by an uneducated public demanding new laws.”

Haught says new COVID-19 laws could be stopped, but that will require a broad and diverse team of advocates. “In Iowa, it took years for all [HIV] advocates to speak with one message, before going to the legislature. We shared our talking points with the League of Women Voters, not a usual subject, and the League made one of their top four goals the repeal of HIV laws in 2014. They had relationships with politicians that we didn’t have.”

Partisan Divide in Washington State

Lauren Fanning, with the Washington HIV Justice Alliance, is still celebrating a significant revision of that state’s HIV criminal laws, which reduce penalties for HIV exposure from a felony to a misdemeanor, require specific intent to transmit HIV and for transmission to occur, and remove the requirement for sex offender registration. It was accomplished on a party-line vote and signed into law by Gov. Jay Inslee in March.

“No Republican voted for [the reform],” Fanning says. Advocates didn’t get everything they wanted: Republicans demanded an amendment to keep one felony for limited circumstances—if an HIV-positive person transmits HIV to a minor or vulnerable adult, that is still a first-degree felony.

“A lot of Republicans in the legislature want to keep HIV laws and also criminalize other diseases,” Fanning says. “As long as it is not part of their reality, they will make it criminal. They don’t believe these diseases can affect them. They also wanted to quarantine people during the Ebola crisis.”

That’s why Fanning expects Republicans to introduce new COVID-19 transmission criminal laws, and she and other advocates will fight them. “We don’t need a new law. COVID-19 could apply to noxious or poisonous substances under existing law,” she says.

“We will be checking laws next year when the legislature is in session to see if something is slipped in. I told the health department to be prepared to step in front of any laws.”

Don’t Fill the Jails

Catherine Hanssens, founder and executive director of The Center for HIV Law and Policy (CHLP), says COVID presents an opportunity to build on the groundwork laid by HIV criminal law reform advocates, by “pointing out the futility and cruelty of criminal penalties.”

“[COVID] gives state advocates the opportunity to talk to lawmakers about responding to a virus with a police approach, and let them know that if you arrest someone without a mask to prevent transmission and then put them in jail, in close quarters, that is not productive.”

Hanssens and other advocates are calling for limited prisoner release. Correctional facilities, along with nursing homes, meat-packing plants, and anywhere people are confined to tight spaces, have very high rates of transmission of COVID-19.

As for how the COVID-19 pandemic might impact HIV criminal law reform, Hanssens said it might not hurt the movement, but it might put it on pause. “States are focused on dealing with the immediate pandemic. Getting legislators to focus on something that is not COVID-19 might not work now, and practically, it may not be strategically the best choice to push HIV criminal law reform right now.”

But that doesn’t mean continuing education and coalition-building can’t take place, Hanssens says. “This is a chance for all in anti-criminalization to see the necessity of looking outside our silo and make intersectionality a reality.” Out of concern that people with HIV would not be prioritized for scarce resources in emergency care in New York City, last month CHLP worked with the disability rights movement to draft principles for allocating resources. The principles say that older people and those with disfavored statuses should have equal access to other respiratory therapies, testing, medications, critical care beds, and staff time, which current guidance fails to adequately protect.

A Silver Lining in a Red State

Indiana, one of the nation’s highly conservative states, has several HIV criminal laws. If you know you have HIV and are accused of HIV nondisclosure to sexual or needle-sharing partners, or you attempt to donate or sell blood, semen, or plasma—you could face a felony. The state also has HIV-related sentence enhancements to its criminal battery in the form of bodily fluid laws, including fluids that do not transmit HIV.

IUPUI associate professor and HIV modernization activist Carrie Foote, Ph.D., says Indiana is making progress to modernize many of its draconian HIV criminal laws, but much work remains. Unlike most other states, Indiana also criminalizes transmission of viral hepatitis and tuberculosis, which is transmitted in similar ways to COVID-19. Because of that, Foote thinks lawmakers could try to criminalize COVID-19 as well.

At least one Indiana prosecutor has vowed to prosecute anyone who knowingly attempts to infect others with COVID-19 but didn’t say whether a new law was needed.

Foote hopes for the best-case scenario as the COVID-19 epidemic plays out: lawmakers not adding COVID-19 laws, and a new opportunity for advocates to show the problems of antiquated HIV and other disease-related criminal laws.

“For any disease, we need to say that laws should be science-based,” Foote says. “Any criminal laws should be based on intent to harm, which is hard to prove, and it should be hard to prove. It shouldn’t be so easy to take away freedom.”

Poland: Country’s Criminal Code amended to increase sentencing in cases of HIV exposure

New round of HIV criminalization in Poland

New round of HIV criminalization in Poland

This week, Polish President Andrzej Duda signed a law amending the country’s Criminal Code. Its content, coupled with other measures to combat COVID-19, was originally intended to create better conditions for overcoming the crisis. However, despite this, it, without any justification or prior approval, also included a number of provisions regarding the intensification of the criminalization of HIV.

According to the comments of activists familiar with the situation, the following amendments were made to the law of June 6, 1997 – the Polish Criminal Code :

“1) Article 161 is replaced by the following:

Section 161.

§ 1. Any person who knows that he is infected with HIV and exposes another person to the risk of infection shall be punished by imprisonment for a term of 6 months to 8 years.

§ 2. Any person knowing that he suffers from a venereal or [other] contagious disease, a serious chronic disease or a disease that threatens his life, and exposing the other person to the risk of infection, shall be punished by imprisonment of 3 months to 6 years.

§ 3. If the person who committed the act specified in § 2 exposes many people to the risk of infection, he shall be punished by imprisonment for a term of 1 to 10 years.

§ 4. The prosecution of a crime referred to in § 1 or § 2 takes place at the request of the victim. ”

According to experts, the changes made to the Criminal Code have significantly tightened the forms and methods of combating people living with chronic diseases, including HIV infection. Previously , according to them, the same acts were punished:

  • In paragraph 1, by imprisonment for a term of up to 3 years.
  • In subsection 2, a fine, restriction of liberty or imprisonment for a term not exceeding 1 year.
  • The provisions of § 3 have not previously been applied.

Regardless, since 2015, sentences of imprisonment (a fine or restriction of liberty) have been applied to all crimes established by this article of the Criminal Code. Thus, in the case of the offenses referred to in § 1 and § 2, the punishment, in addition to the fine and restriction of liberty, could also entail a real prison term.

It should be noted that according to experts, the criminalization of HIV throughout the world continues to be a serious barrier to the effective fight against infection. By exacerbating stigma and discrimination and counteracting the prevention, testing, treatment and care of people living with HIV, regulations that act as tools for criminalization are most often written or applied based on a false or outdated perception of the virus, and in particular about ways to transmit it.

Criminal or administrative prosecutions most often relate to activities where the risk of HIV transmission is negligible or completely absent, including: vaginal and anal sex, provided that “positive” partner uses uncontrolled contraception or undetectable viral load, oral sex, breastfeeding, bites, scratches spitting.

As of 2019, global monitoring has shown that a total of 75 countries (103 jurisdictions) have HIV-specific laws or determine HIV infection as a disease that is relevant to the law.

As of December 31, 2018, in 29 countries there were cases of applying HIV-specific laws, in 37 countries – general criminal or similar laws to HIV +, and in 6 – the use of both.

In more than three years of observation in 49 countries, at least 913 arrests, prosecutions, appeals and / or acquittals have occurred. The largest number of cases was recorded in Russia (314), Belarus (249) and the USA (158).

An analysis of the manifestations of criminalization shows that prosecution, aggravated by discrimination, most often affects precisely marginalized groups of the population, including drug users, ethnic minorities with a different gender identity or sexual orientation, uncertain immigration status, homeless people, sex -workers and others

Meanwhile, over the past few years, promising changes have taken place in the jurisdictions of many countries, especially those dealing with office work.

So, on January 1, 2019, in six countries of the world, precedent cases were established when the application of the law is limited by the data of modern science. Since 2016, 2 laws on the criminalization of HIV were repealed, 2 more were declared unconstitutional, 7 laws were changed, and at least 4 more bills were recalled.

Last month, it became known that the Legislative Assembly of Washington (USA) approved a bill that transferred to the administrative plane an offense related to the deliberate exposure of a person to the risk of sexual transmission of HIV. The previously mentioned act qualified as criminal and could entail a real criminal punishment.


Новый виток криминализации ВИЧ в Польше

На этой неделе президентом Польши Анджеем Дуда был подписан закон о внесении изменений в Уголовный кодекс страны. Его содержание вкупе с иными мерами по борьбе с COVID-19, изначально было призвано создать лучшие условия для преодоления кризисной ситуации. Однако, несмотря на это, оно без каких-либо оснований и предварительных согласований, также включило в себя ряд положений, касающихся усиления криминализации ВИЧ.

Согласно комментариям активистов, знакомых с ситуацией, в закон от 6 июня 1997 года – Уголовный кодекс Польши – были внесены следующие изменения:

«1) статья 161 заменяется следующей:

Статья 161.

§ 1. Любой человек, зная, что он инфицирован ВИЧ и подвергая другого человека риску инфицирования, подлежит наказанию в виде лишения свободы на срок от 6 месяцев до 8 лет.

§ 2. Любой человек, зная, что он страдает венерическим или [иным] контагиозным заболеванием, серьезным хроническим заболеванием или болезнью, которая угрожает его жизни, и подвергая другого человека риску инфицирования, подлежит наказанию в виде лишения свободы на срок от 3 месяцев до 6 лет.

§ 3. Если лицо, совершившее деяние, указанное в § 2, подвергает многих людей риску инфицирования, оно подлежит наказанию в виде лишения свободы на срок от 1 до 10 лет.

§ 4. Преследование за преступление, указанное в § 1 или § 2, происходит по ходатайству потерпевшего.»

Как отмечают специалисты, внесенные в УК изменения заметно ужесточили формы и методы борьбы с людьми, живущими с хроническими заболеваниями, в том числе ВИЧ-инфекцией. Ранее, по их словам, те же деяния наказывались:

  • В части § 1 – лишением свободы на срок до 3 лет.
  • В части § 2 – штрафом, ограничением свободы или лишением свободы на срок до 1 года.
  • Положения § 3 ранее не применялись.

Независимо от этого, с 2015 года наказания в виде лишения свободы (штрафа или ограничения свободы) применялись ко всем установленным данной статьей УК преступлениям. Таким образом, в случае правонарушений, указанных в § 1 и § 2, наказание, помимо штрафа и ограничения свободы, могло также повлечь за собой и реальноый тюремный срок.

Отметим, что по данным специалистов, криминализация ВИЧ во всем мире продолжает оставаться серьезным барьером для эффективной борьбы с инфекцией. Усугубляя стигму и дискриминацию и противодействуя профилактике, тестированию, лечению и уходу за людьми, живущими с ВИЧ, нормативные акты, которые действуют в качестве инструмента криминализации, чаще всего написаны или применяются на основании ложного или устаревшего представления о вирусе, и, в частности, о способах его передачи.

Уголовное или административное преследование чаще всего касается действий, где риск передачи ВИЧ незначителен или полностью отсутствует, в том числе: вагинальный и анальный секс при условии использования барьерной контрацепции или неопределяемой вирусной нагрузки у «позитивного» партнера, оральный секс, кормление грудью, укусы, царапины, плевки.

По сотоянию на 2019 год глобальный мониторинг показал, что в общей сложности 75 стран мира (103 юрисдикции) имеют ВИЧ-специфические законы или определяют ВИЧ-инфекцию релевантным для права заболеванием.

По состоянию на 31 декабря 2018 года в 29 странах имели место случаи применения ВИЧ-специфических законов, в 37 странах – общих уголовных или подобных им законов к ВИЧ+, и в 6 – использование тех и других.

За более чем три года наблюдений в 49 странах произошло не менее 913 арестов, судебных преследований, апелляций и / или оправдательных приговоров. Наибольшее количество случаев было зарегистрировано в России (314), Беларуси (249) и США (158).

Анализ вариантов проявления криминализации показывает, что судебное преследование, усугубляемое дискриминацией, чаще всего затрагивает именно маргинализированные группы населения, в том числе, лиц, употребляющих наркотики, относящихся к этническим меньшинствам, имеющих иную гендерную идентичность или сексуальную ориентацию, неопределенный иммиграционный статус, бездомных, секс-работниц и др.

Между тем в течение ряда последних лет в юрисдикциях многих стран, особенно касающихся делопроизводства, произошли многообещающие изменения.

Так, на 1 января 2019 года в шести странах мира были установлены прецедентные случаи, когда применение закона ограничивается данными современной науки. С 2016 года 2 закона о криминализации ВИЧ были отменены, еще 2 – признаны неконституционными, 7 законов – изменены, и еще минимум 4 законопроекта – отозваны.

В минувшем месяце стало известно, что законодательное собрание штата Вашингтон (США) одобрило законопроект, который перевел в административную плоскость правонарушение, связанное с умышленным подвержением лица риску половой передачи ВИЧ. Ранее указанное деяние квалифицировалось как преступное и могло повлечь за собой реальное уголовное наказание.

US: Lawmakers fail to pass HIV modernisation bill in Florida

Ending the Epidemic in Florida Must Include Ending HIV Criminalization

“Lawmakers Finally Pass HIV Modernization Bill in Florida to End HIV Epidemic by 2030.”

This should have been the headline at the end of the Florida legislative session in Tallahassee, which concluded on March 12. Instead, Florida lawmakers missed the opportunity to pass common-sense legislation for an easy bipartisan win that could benefit all Floridians. The HIV modernization bills sponsored by state Rep. Nick Duran and Sen. Jason Pizzo would have modernized Florida’s outdated HIV-specific laws written in the early ’80s, which do not reflect the scientific and social reality of HIV today. Florida is both the epicenter of the HIV epidemic in the United States and one of the states that continually sends people to prison for nondisclosure of HIV status. If we’re ever going to end the HIV epidemic in the U.S., we will have to end it in Florida. And we have to end HV criminalization in the state to achieve the goal of ending the epidemic.

The HIV prevention bills in the Florida House and Senate introduced this year were designed to align Florida’s outdated HIV laws with the current science of prevention and treatment. The new law would have required actual HIV transmission in order to convict—but it allows for exceptions “if he or she in good faith complies with a treatment regimen prescribed by his or her health care provider or with the behavioral recommendations of his or her health care provider or public health officials to limit the risk of transmission, or if he or she offers to comply with such behavioral recommendations, but such offer is rejected by the other person with whom he or she is engaging in sexual conduct.” It would also reduce harsh penalties (from a felony to a misdemeanor) for nondisclosure. Lastly, the bill would allow for organ donation between people of shared HIV status, which has been legal at the federal level since 2013.

While the bill did not advance this session, lawmakers did demonstrate resounding support for updating Florida’s law that makes it a felony for someone living with HIV to donate organs, tissue, blood, or plasma to someone else living with HIV. A provision to remove the felony and allow for such donations was added into a bill that unanimously passed the House and a bill that unanimously passed the Senate. Unfortunately, neither bill ultimately made it to the governor’s desk to be signed into law. According to a report by the Williams Institute, an average of 35 people are arrested in Florida every year for HIV-related offenses all across the state, but mainly in Central and North Florida.

The provision doesn’t just benefit people living with HIV by expanding their potential donor pool; when anyone receives an organ, everyone on the organ-donor waiting list benefits by being bumped up a spot. Last year, the national story of Nina Martinez and the first successful transplant of a kidney between two people of shared HIV status gave hope to those people who could benefit from the practice.

“Allowing patients with HIV to donate organs to people living with HIV who need them is just common sense,” said Howard Grossman, M.D., an HIV physician and researcher based in South Florida. “Organ donation already involves extensive screening, testing, and informed-consent protocols. What reason could rational people have to deny lifesaving therapy when it is readily available? Many states have already approved such procedures, with excellent results.”

But the states, including Florida, have more work to do. The Trump administration announced Ending the HIV Epidemic: A Plan for America in February, 2019. The end of HIV was mentioned again in the latest State of the Union address. The plan aims to reduce HIV transmissions by 90% by 2030. It allocates funding to the most impacted areas identified by the Centers for Disease Control and Prevention, including seven states, two cities, and 48 counties where at least 50% of people living with HIV in the U.S. currently reside, areas that have some of the highest diagnosis rates in the country. Most of those jurisdictions are in the southern states, and seven Florida counties have been identified as focus areas in the initiative (Broward, Duval, Hillsborough, Miami-Dade, Orange, Palm Beach, and Pinellas counties).

Fixing outdated criminalization laws must be part of the calculus when policymakers consider the range of social determinants of HIV. Without reforming laws that unjustly criminalize people based on their HIV status, we cannot end the epidemic. The American Medical Association has opposed HIV criminalization since 2014, when the organization published a statement calling for the modernization of laws as part of a public health response to the epidemic. Current Florida law criminalizes people living with HIV, working against public health policy by keeping people from seeking testing and treatment.

Florida saw broad, bipartisan support for HIV modernization last session, when House and Senate committees passed the HIV modernization bills, even though they ultimately did not pass the full chambers. We hope for broader HIV criminalization reform from the Florida Legislature. Last year, the Florida Infectious Disease Elimination Act (IDEA) was passed, expanding needle-exchange programs throughout the state. This law built on the success of a pilot project implemented by the University of Miami to help reduce HIV and hepatitis C transmissions, spearheaded by HIV advocate and professor Hansel Tookes, M.D., M.P.H.

The Florida HIV Justice Coalition represents just part of the worldwide HIV criminal reform movement, which has the support of major organizations and professional groups like the World Health Organization, American Medical Association, UNAIDS, and the Presidential Advisory Council on HIV/AIDS (PACHA).

There is no hyperbole in the claim that the current HIV modernization legislation will affect the lives of all Floridians. This session’s progress toward modernizing organ donation was an important step in the road to fully modernizing the HIV-specific laws of the state. Modernizing organ donation is long overdue, and its potential to save lives cannot be underestimated. The inclusion of people living with HIV as organ donors can also eliminate some of the undue stigma still prevalent in our state. That stigma underlies all of Florida’s outdated HIV laws.

The time to fully modernize Florida’s outdated HIV laws is now.

[Update]US: Bill progresses to the State Senate after Georgia House approves proposed reform to HIV criminalisation laws

Georgia House Passes HIV Criminal Justice Reform

The Georgia House voted to approve HIV criminal justice reforms Thursday. It still needs approval by the state Senate to become law.

Republican Rep. Deborah Silcox shepherded the bill through.

“It is my sincere hope that this bill will reduce the number of cases in Georgia and that one day soon, we can eliminate HIV in Georgia and in our country,” she said on the House floor.

Nearly 30 per 100,000 residents in Georgia were HIV positive in 2018, the second-highest rate in the country.

Currently, people can go to prison for up to 10 years for not disclosing that they have HIV in situations like sharing a needle, donating blood, or having sex. The new proposal would punish people with up to five years behind bars only if the intent to infect someone could be proven.

Democratic Rep. Sam Park co-sponsored the bill.

“HB 719 updates our lives to reflect best public health practices for preventing and treating HIV, which will save tens of thousands of lives in Georgia,” he said.

According to the Williams Institute at the UCLA School of Law, there were 571 arrests in Georgia under these laws between 1988 and 2017.

“It is time to end the fear and stigma. Too many Georgians do not get tested because they are still scared,” Park said. “It is time we do our part to help our fellow Georgians get the testing, treatment and prevention they need.”

“As we face a new pandemic, it is my sincere hope that we will continue to stand united to protect the lives of Georgians,” he added, in reference to the coronavirus pandemic.

As Republican Rep. Sharon Cooper pointed out when the bill passed out of committee last month, science about the virus has changed a lot since the laws were written in the 1980s.

“It is time for us to remove part of the stigma that keeps people that are HIV positive from getting treatment or even go to be identified, which then puts the rest of our population at risk for further infections,” she said.

“The law as it currently stands is really a holdover from a time when there was a lot of fear, a lot of stigma, and the science was really incomplete,” said Jeff Graham, executive director of Georgia Equality in a previous interview.

“With the tools we have today to prevent HIV transmission, there’s no reason that our law should be as punitive and stigmatizing as the current law is.”

He said the change “goes a long way to fighting HIV in Georgia.”

Graham explained that two major health breakthroughs have changed things, specifically: access to pre-exposure prophylaxis (or PrEP) that helps prevent HIV infection and the idea — promoted by the CDC — that with treatment it’s possible to prevent an HIV-positive person from transmitting the virus.

Graham said the new bill would provide those living with HIV a “strong defense” if charged with the crime.

“Right now, the burden has just been on the person living with HIV that they did disclose their HIV status,” he said. “And how do you effectively do that? How do you prove what happened in a conversation?”

“The current law is dangerous,” said HIV-positive activist Nina Martinez at the committee meeting. “People assume it’s safe to disclose when people have been harmed or even killed for disclosing. Just because people don’t want to disclose, it’s not criminal intent.”

Additionally, existing law allows punishment for up to 20 years in prison if someone living with HIV assaults a peace or correctional officer “using his or her body fluids (blood, semen, or vaginal secretions), saliva, urine, or feces.” That section has been removed in the proposed reform, which also fits with modern science, Graham said.

“The science is very clear: people do not contract HIV through those sorts of bodily fluids [like saliva, urine or feces]. It really is blood-to-blood contact. Through sexual intercourse,” he said. “Those are the only ways that people are become infected with HIV. The science is really solid about that.

“It’s really important the laws don’t reflect simple untruths.”


State Lawmakers Move Forward With HIV Criminal Justice Reform Proposal

A panel of Georgia state lawmakers unanimously approved proposed reforms to laws that punish those living with HIV for failing to disclose their diagnosis.

Currently, people can go to prison for up to 10 years for not disclosing that they have HIV in situations like sharing a needle, donating blood, or having unprotected sex. The new proposal would punish people with up to one year behind bars only if the intent to infect someone could be proven.

According to the Williams Institute at the UCLA School of Law, there were 571 arrests in Georgia under these laws between 1988 and 2017.

As Republican Rep. Sharon Cooper pointed out, science about the virus has changed a lot since the laws were written in the 1980s.

“It is time for us to remove part of the stigma that keeps people that are HIV positive from getting treatment or even go to be identified, which then puts the rest of our population at risk for further infections,” she said.

“The law as it currently stands is really a holdover from a time when there was a lot of fear, a lot of stigma, and the science was really incomplete,” said Jeff Graham, executive director of Georgia Equality.

“With the tools we have today to prevent HIV transmission, there’s no reason that our law should be as punitive and stigmatizing as the current law is.”

He said the change “goes a long way to fighting HIV in Georgia.”

Nearly 30% of adults in Georgia were HIV positive in 2018, the second-highest rate in the country.

Graham explained that two major health breakthroughs have changed things, specifically: access to pre-exposure prophylaxis (or PrEP) that helps prevent HIV infection and the idea — promoted by the CDC — that with treatment it’s possible to prevent an HIV-positive person from transmitting the virus.

Graham said the new bill would provide those living with HIV a “strong defense” if charged with the crime.

“Right now, the burden has just been on the person living with HIV that they did disclose their HIV status,” he said. “And how do you effectively do that? How do you prove what happened in a conversation?”

“The current law is dangerous,” said HIV-positive activist Nina Martinez at the committee meeting on Tuesday. “People assume it’s safe to disclose when people have been harmed or even killed for disclosing. Just because people don’t want to disclose, it’s not criminal intent.”

Additionally, existing law allows punishment for up to 20 years in prison if someone living with HIV assaults a peace or correctional officer “using his or her body fluids (blood, semen, or vaginal secretions), saliva, urine, or feces.” That section has been removed in the proposed reform, which also fits with modern science, Graham said.

“The science is very clear: people do not contract HIV through those sorts of bodily fluids [like saliva, urine or feces]. It really is blood-to-blood contact. Through sexual intercourse,” he said. “Those are the only ways that people are become infected with HIV. The science is really solid about that.

“It’s really important the laws don’t reflect simple untruths.”

The bill now moves to the rules committee, which decides whether to move it to the full chamber.

US: U.S. Representatives Barbara Lee and Jenniffer González Colón reintroduced bill to modernize discriminatory HIV/AIDS Laws

Congresswomen Lee, González Colón Reintroduce Bill to Decriminalize and Destigmatize HIV/AIDS

Washington, D.C. – Today, Congresswoman Barbara Lee and Congresswoman Jenniffer González Colón, Co-Chairs of the Congressional HIV/AIDS Caucus, reintroduced the Repeal Existing Policies that Encourage and Allow Legal (REPEAL) HIV Discrimination Act, which would modernize laws and policies to eliminate discrimination against those living with HIV/AIDS. Federal and state laws, policies, and regulations should not place a unique or additional burden on individuals solely as a result of their HIV status, and the bill offers a step-by-step plan to work with states to modernize their laws.

“HIV criminalization laws are based on bias, not science. Instead of making our communities healthier, these laws breed fear, discrimination, distrust, and hatred,” said Congresswoman Lee. “Punishments under these laws or statutes include decades-long sentences and sex offender registration, even for behaviors and situations that pose no HIV transmission risk. These dangerous and stigmatizing laws undermine public health and can contribute to worsening the HIV epidemic – and are one of the top 4 reasons why people living with HIV do not seek medical care. 

“Our laws should not perpetuate prejudice against anyone, particularly against those living with diseases like HIV. By introducing this legislation, we are sending a signal that discrimination and stigma have no place in our laws. We must all keep fighting to ensure everyone can live with dignity and respect, and to one day achieve an AIDS-free generation.” 

“An estimated 38,000 people become infected with HIV in the U.S. each year; a tragic statistic that we can help overcome through education and awareness, not through stigma and discrimination,” stated Rep. González Colón. “While modern science and medicine have advanced dramatically improved, some state legislatures are still passing laws that criminalize and penalize people infected with HIV without proof of an actual risk of transmission. That is why I’m joining Congresswoman Lee in introducing the REPEAL Act so that states reform their existing policies to eliminate the harmful consequences of dangerous and stigmatizing state laws that criminalize people living with HIV. As a country, we must come together to advance the dignity of people living with HIV.” 

Today, 34 states and 2 U.S. territories have criminal statutes based on outdated information regarding HIV/AIDS. This legislation would allow federal and state officials and community stakeholders to work together to repeal laws that target people living with HIV/AIDS. If passed, the act will be a key step toward ending unjust HIV criminalization laws in the United States. 

US: Bill to modernise Florida’s HIV criminalisation laws does not not address automatic enhancing of prostitution charges

Florida’s HIV Criminalisation laws target sex workers. A reform bill offers little relief.

67% of people arrested under state laws that criminalize HIV exposure and transmission are sex workers. But new legislation meant to modernize these laws would retain harsh penalties against them.

Florida is one of 26 states that have criminal laws that apply only to people living with HIV. In Florida, having consensual sex, donating blood or organs, or engaging in sex work without disclosing one’s status is a third-degree felony, subject to up to five years in prison and up to a $5,000 fine. The current laws—first enacted during the panic surrounding the HIV epidemic in the late 1980s and expanded in the late 1990s—do not take into account whether protection was used or whether a person’s viral load is undetectable, meaning they aren’t able to transmit the disease.

This session, a bill was introduced to the Florida legislature to modernize these laws. House Bill 427/Senate Bill 626 would have reduced the charges for engaging in consensual sex without HIV status disclosure to a first-degree misdemeanor, currently the penalty for exposure to other sexually transmitted diseases. Under the bill, which was first introduced in 2016, a person would be charged with a first-degree misdemeanor only if the prosecutor could prove they intended to transmit the virus. 

Proponents of the bill—an umbrella of LGBT rights organizations and HIV advocates called the Florida HIV Justice Coalition—say it will bring Florida in line with public health policy on the disease. But critics, among them health policy experts and sex worker rights organizations, say it doesn’t go far enough. The original legislation did not address the statutes that automatically enhance a prostitution charge, typically a second-degree misdemeanor, to a third-degree felony for sex workers living with HIV who don’t disclose their status.

Amir Sadeghi, the outreach coordinator for the Center for HIV Law and Policy, told The Appeal that this is a significant flaw because sex workers represent the majority of people arrested and convicted under current laws. Between the time the laws were passed in 1986 and 2017, 756 people have been arrested under Florida’s HIV- and STD-related criminal statutes, according to a study by the Williams Institute at the UCLA School of Law. The majority of those arrested—506 people—were charged with offenses related to sex work. Black women were almost twice as likely as white women to be convicted of an HIV-related offense. 

“We have an opportunity to fully modernize and reduce penalties and make sure people can only be prosecuted if someone can prove intent,” Sadeghi said. “Unfortunately the bill in Florida, because it stops short of doing that, it also stops short of making a meaningful improvement in the lives of people living with HIV.”

This month, the bill died in the House. A version of the bill is now under consideration in the Senate, but it does not address the criminalization of transmission. The health policy committee, the first to hear the bill this session, would not put it on the agenda unless a co-sponsor, Senator Jason Pizzo, agreed to a strike-all amendment that would make it legal for people living with HIV to donate organs to other people living with HIV who have been informed of their status, Kamaria Laffrey, an organizer with the coalition, told The Appeal. “It’s frustrating,” Laffrey said, “but our goal is always to keep the conversation going,” adding that, “In other states, it’s taken five to nine years for progress.” The coalition plans to reintroduce the full bill next year with the hope it can bypass the Health Policy committee.

Florida has the third-highest rate of HIV in the country. Although few studies have been conducted on the rate of the disease among sex workers in the state, the community is known to be more vulnerable to infection. This is due to the barriers that violence, poor working conditions, and police harassment pose to sex workers trying to obtain health services. “Sex workers want to be healthy, they want to be able to access medication, they want to be able to access healthcare services,” said Alex Andrews, the co-founder of the Sex Workers Outreach Project (SWOP) Behind Bars who is based in Florida. 

Public health advocates also say that criminalizing HIV exposure and transmission discourages people from getting tested, because you can only be charged if you know your status. This is a particular concern for sex workers, who have to balance potential violence from a client if they disclose their status with the likelihood of arrest if they don’t. “One of the phrases you hear in the community is ‘take the test and face arrest,’” said Jada Hicks, a staff attorney for the Center for HIV Law and Policy. “That highlights what the community thinks in terms of knowing your status and being criminalized for it.” 

One arrest for prostitution also puts a sex worker at risk of being charged for transmission or exposure. Under Florida law, anyone convicted of a prostitution offense is automatically tested for HIV and other STDs, and the results are shared with prosecutors. “People who are being prosecuted by this law are from marginalized communities; they don’t have the money for the defense,” Andrews said. “They have to live with the serious impact this is going to have on them.”


While the Florida legislature considers reform of its HIV laws, prosecutors in the state say they nonetheless enforce current laws. The Appeal contacted the 20 state attorneys offices in Florida. Twelve offices responded by publication time. Ten said they prosecute HIV exposure and transmission. “If it’s on the books and we can prove it beyond a reasonable doubt, we’re charging someone,” said Estella Gray, the communications officer for the state attorney’s office in the 13th Judicial Circuit (Tampa). “The idea that we’re not gonna prosecute HIV crimes—that’s unheard of in this circuit.” Howard Rosen, an assistant state attorney in the 11th Circuit (Miami), responded by email that the office would consider prosecution on a “case by case basis” that is “factually driven, also taking into account the position of any victim.” 

The law is not evenly enforced across the state. Hillsborough, Duval, and Pinellas counties account for 53 percent of arrests under current HIV law but only 16 percent of HIV cases throughout the state, according to the Williams Institute study. Miami-Dade and Broward counties represented 42 percent of HIV cases in the state but only 7 percent of HIV-related arrests.

Brad Sears, a scholar at the Williams Institute, said he’s had conversations with prosecutors who say that one of the functions of these laws is to pressure people, especially sex workers, to take a plea deal. Typically, if a sex worker who is HIV-positive is arrested for soliciation, “which usually involves creating a conversation [with police] … there’s not much else that’s needed,” Sears said. “It’s very hard to mount a defense against that.” The higher penalty associated with HIV status then “becomes a lever to get you to plead to one or more of the crimes” you’re charged with, Sears added. 

Other disparities are baked into the law as well. Sex workers who are HIV-positive can be charged with a felony simply for offering to commit a sex act without disclosing their status—meaning neither transmission nor sex occurred. But a person who procures another for prostitution—a client—must be proven to have “engaged in a sexual activity in a manner likely to transmit” HIV under Florida law, a much higher standard. 

Maintaining punitive penalties for sex workers who don’t disclose their status to sexual partners while lowering them for everyone else living with HIV, will further marginalize the community, Sadeghi said. “It will really reinforce the stigma with respect to sex workers as posing a unique danger to society … regarding sex workers as vectors for disease and not as people with dignity.”


In recent years, other states amended their HIV criminalization laws. In 2017, California reformed its laws so that penalties could only be imposed if a person acted with intent to harm another by transmitting the disease. The bill also eliminated the felony enhancement provision for sex workers living with HIV. 

In Florida, members of the HIV Justice Coalition told The Appeal it wasn’t possible to include sex workers in the bill if they wanted it passed by the conservative legislature. “We were told from various spaces that trying to add in a provision to protect sex workers was nonnegotiable, it was a nonstarter,” said Laffrey, an organizer for the coalition. “The bill absolutely would not be heard if it included them.” The bill was sponsored in the House by Nicholas Duran, a representative from Miami, and in the Senate by Pizzo, a former assistant state attorney for the Miami-Dade state attorney’s office. 

But Andrews of SWOP Behind Bars and other advocates say the bill won’t make much progress in without the sex worker community. “It’s disheartening to see people patting themselves on the back about a law that most impacts sex workers and gives them no relief,” Andrews said. 

Florida sex workers say that given the political realities of the state, the most significant progress in addressing the criminalization of HIV happens in communities, not the legislature. SWOP Behind Bars conducts free HIV and hepatitis C tests, distributes condoms, clean syrigines and pre-exposure prophylaxis to sex workers and homeless people in conjunction with local health and LGBT organizations such as the Center Orlando, Comprehensive Health Center, Miracle of Love, Ladies Intervention Project for Success, and the Orlando and Tampa Bay chapters of SWOP. Andrews estimates that they conduct three to 30 HIV tests a week. “In the year we’ve been doing it, we’ve had not one new case of HIV present itself in outreach,” she said.

“This year is basically the 1984 of the LGBT rights movement for sex workers,” Andrews added. LGBT people “were fighting just to stay alive, and that’s kind of where we are now. We need allies, we need people to support our work, and we need people to support our choice.”

[Update]Sweden: Parliament votes to abolish the obligation to disclose HIV status

Swedish Parliament Urges to Exempt HIV-Positive From Duty to Inform Partners

While hailed by the country’s leading tax-financed sexual education institution as a “big victory”, the decision sparked ire as many saw it as “legalising the spread of HIV”.

The Swedish Parliament has voted to urge the government to completely abolish the co-called “disclosure demand”, stipulating that those living with HIV must inform their partners about their disease.

According to the Swedish Parliament, the current legislation which obligates HIV-positive people to disclose their status to their sexual partner is “relatively ineffective from the medical viewpoint” and “a poor ideological marker”. Hence, it should be completely abolished.

“Society should not go in and force a duty of information. Here, the hope is that couples will solve this in a pragmatic way”, Barbro Westerholm, Liberal Party spokesman on LGBT issues, told the medical newspaper Dagens Medicin ahead of the vote.

In the same proposal, Parliament urged the government to assign an appropriate authority to propose preventive measures to promote the mental health of the LGBT community, citing studies indicating a higher incidence of mental health issues compared with the general population.

The proposal, sponsored by the Green Party, which is an important sidekick to the ruling Social Democrats, has been praised by the Swedish Association for Sexuality Education (RFSU), which for many years has fought to abolish the “disclosure demand”. The tax-financed organisation described the decision as a “big victory”. In the next step, RFSU President Hans Linde called to revise the current Infectious Diseases Act, Swedish Radio reported.

​Since 1985, HIV-positive people have a criminal obligation to inform possible sexual partners of their medical status. In 2013, however, the Public Health Authority (then the Infectious Diseases Institute) concluded that the risk of HIV transmission is minimal during intercourse with a condom, if the HIV-positive party is on well-functioning antiviral treatment.

Since then, anyone living with well-treated HIV, can be exempted from the disclosure demand after a decision by his or her physician.

According to the news outlet Fria Tider, however, Parliament has effectively “legalised the spread of HIV”, paving the way for the right to have unprotected sex without any obligations even for people who aren’t receiving treatment.

As of today, there are about 8,000 people living with HIV in Sweden, according to the Public Health Authority.

 


Published on the Swedish Parliament website on February 13, 2020 – Automatic Google translation. Scroll down for article in Swedish.

The Social Committee wants the government to review the disclosure duty of HIV positive people

The government should review whether the Communicable Diseases Act fulfills its function with regard to the duty of information for HIV-positive people. The government should also develop preventive measures to promote the mental health of LGBT people. This is the view of the Social Committee, which sends two notices to the government on this. SD has objections to one proposed announcement.

The Social Committee has considered proposals in motions from the general exercise period 2019 on public health issues. In connection with this, the Committee wants the Riksdag to send two requests, so-called announcements, to the Government:

  • The Public Health Authority has made the assessment that there is now no requirement that a person who receives good treatment for his / her HIV should inform his sexual partner about the HIV infection, because the risk of transmission of HIV during intercourse is very low. The Government should therefore ensure that an analysis is made of whether the Infection Protection Act fulfills its purpose with regard to the duty of information for HIV-positive people.
  • Studies show that the prevalence of mental illness is higher among LGBTQ people than in the general population. The Social Committee therefore wants the government to assign an appropriate authority to propose preventive measures to promote the mental health of LGBT people.

The proposals for announcements originate in motions from the Liberals. The Social Committee proposes that the Riksdag say no to other motion proposals, including with reference to the fact that work is already underway on several of the issues raised by the motions.

Swedish Democrats says no to announcement of the Communicable Diseases Act

Several parties have reservations and objections to various parts of the proposals that the Social Committee has considered. Among other things, the Swedish Democrats believe that the Riksdag should not make any announcement to the Government about a revision of the Communicable Diseases Act. According to the party, the provisions of the Protection Act on the duty of information for HIV-positive people are well-balanced as they are.

Debate and decision are expected to take place on February 19, 2020


Socialutskottet vill att regeringen ser över hivpositivas informationsplikt

Regeringen bör se över om smittskyddslagen fyller sin funktion när det gäller informationsplikten för hivpositiva. Regeringen bör även låta ta fram förebyggande åtgärder för att främja hbtq-personers psykiska hälsa. Det anser socialutskottet, som riktar två tillkännagivanden till regeringen om detta. SD har invändningar mot ena förslaget till tillkännagivande.

Socialutskottet har behandlat förslag i motioner från allmänna motionstiden 2019 om folkhälsofrågor. I samband med detta vill utskottet att riksdagen riktar två uppmaningar, så kallade tillkännagivanden, till regeringen:

  • Folkhälsomyndigheten har gjort bedömningen att det numera inte finns några krav på att en person som får bra behandling för sin hiv ska informera sina sexualpartner om hivinfektionen, detta eftersom risken för överföring av hiv vid samlag är mycket låg. Regeringen bör därför se till att det görs en analys av om smittskyddslagen fyller sitt syfte när det gäller informationsplikten för hivpositiva.
  • Undersökningar visar att förekomsten av psykisk ohälsa är högre bland hbtq-personer än hos befolkningen i allmänhet. Socialutskottet vill därför att regeringen bör ge en lämplig myndighet i uppdrag att föreslå förebyggande insatser för att främja hbtq-personers psykiska hälsa.

Förslagen till tillkännagivanden har sitt ursprung i motioner från Liberalerna. Socialutskottet föreslår att riksdagen säger nej till övriga motionsförslag, bland annat med hänvisning till att arbete redan pågår i flera av de frågor som motionerna tar upp.

SD säger nej till tillkännagivande om smittskyddslagen

Flera partier reserverar sig och har invändningar mot olika delar av de förslag som socialutskottet har behandlat. Bland annat anser Sverigedemokraterna att riksdagen inte ska rikta något tillkännagivande till regeringen om en översyn av smittskyddslagen. Enligt partiet är smittskyddslagens bestämmelser om informationsplikten för hivpositiva väl avvägda som de är.