Why people living with HIV should not be criminalised for donating blood

Preventing the transmission of blood-borne infection by imposing limitations on the donation of blood is an important and legitimate public health objective.

Since the beginning of the HIV epidemic, certain groups – including, but not limited to, gay men and other men who have sex with men – have been subjected to restrictions on their ability to give blood.

Sustained advocacy by gay rights organisations in many high-income countries has focused on the discriminatory nature of these so-called ‘gay blood bans’, highlighting significant advances in blood screening capabilities. This has led to a general softening of restrictions on blood donations for gay men in many of these countries – allowing donations with ‘deferral periods’, or allowing donations based on individual risk assessments.

However, this advocacy has generally not translated into the removal of HIV-specific criminal laws for donating blood, nor has there been a call for a moratorium on singling out people living with HIV for donating blood using non-HIV-specific general criminal laws – even though many of the same public health and human rights arguments apply to both the so-called ‘gay blood bans’ and to HIV criminalisation more generally.

That is why today, the HIV Justice Network has published Bad Blood: Criminalisation of Blood Donations by People Living with HIV. The report was written by Elliot Hatt and edited by Edwin J Bernard, based on research undertaken by Sylvie Beaumont, with additional input provided by Sarai Chisala-Tempelhoff and Paul Kidd (HIV Justice Network’s Supervisory Board); Sean Strub (Sero Project) and Robert James (University of Sussex).

We found that 37 jurisdictions in 22 countries maintain laws that criminalise people with HIV for donating blood. Notably, 15 jurisdictions in the United States (US) have laws which specifically criminalise blood donations by people living with HIV, while four US states – California, Illinois, Iowa, and Virginia – have repealed laws which previously criminalised this conduct.

Although prosecutions are relatively rare, we are aware of at least 20 cases relating to blood donation since 1987. Half of these cases have been reported in Singapore, including two as recently as 2021.

We argue that the criminalisation of blood donations by people with HIV is a disproportionate measure – even if the aim of protecting public health through the prevention of transfusion-transmitted infection is legitimate – and is the result of both HIV-related stigma and homophobia. It is not supported by science.

There is no good reason for any country or jurisdiction to have HIV-specific criminal laws – whether they focus on blood donation or on sexual exposure or transmission. HIV-specific criminal laws are discriminatory and stigmatising, especially since people with other serious blood borne infections – including hepatitis B and C and syphilis – are not singled out with specific laws, nor for prosecution under general criminal laws.

Blood donation criminal laws focused on HIV should be repealed, prosecutions based on general laws should end, and instead science-informed measures – such as individual donor risk assessments and universal blood screening – should be relied on to protect the public against transfusion-transmitted infection.

Read the report at: https://www.hivjustice.net/publication/badblood

US: Indiana legislators and other stakeholders meet to discuss changes to HIV criminal laws

HIV laws, funding for mental health in Indiana justice system weighed by lawmakers

Doctors and other advocates said multiple provisions in Indiana code regarding HIV are outdated and discriminatory.

Lawmakers and other stakeholders on Tuesday discussed possible changes to Indiana laws concerning HIV-specific criminal penalties and sentence enhancements.

The Republican-led summer study committee also weighed additional funding and other resources for the state’s psychiatric hospitals and community care centers that serve incarcerated individuals who have mental health or behavioral concerns.

Recommendations from the committee could result in proposed legislation during the next session in January.

Advocates push for changes to state’s HIV laws

Doctors and other advocates who spoke before the committee maintained that multiple provisions in Indiana code regarding HIV are outdated. They said the laws do little to prevent transmission and instead promote stigma and discrimination.

That includes current provisions that:

  • Require those with HIV or Hepatitis B to warn other people that they could be at risk of contracting the disease when engaging in sexual activity or sharing needles — even when transmission is not possible
  • Make it a felony for HIV-positive persons to donate or sell their semen, blood or plasma
  • Outline sentence enhancement charges that make it a felony for HIV-positive persons to expose others to any bodily fluid, including those known not to transmit HIV, such as saliva

Indiana is one of 20 states that have not modernized or repealed HIV criminal laws since they were enacted in the 1990s — during the peak of the HIV/AIDS epidemic.

“I’m deeply concerned that Indiana’s HIV criminal laws don’t reflect current scientific knowledge about this condition,” said Dr. Bree Weaver, an HIV specialist with the Indiana University School of Medicine. “These laws were written decades ago, during a time of limited medical understanding and tremendous fear of HIV and the people living with it.”

Weaver emphasized that scientific developments in the last 20 years have “substantially changed the realities” of living with HIV, noting that new science has also expanded researchers’ understanding about how the disease is — and is not — transmitted. It’s commonly — but incorrectly — assumed that spitting and biting are two forms of reasonable transmission, she said.

Dr. Carrie Foote, director of Indiana’s HIV Modernization Movement, said the group has in recent years worked with legislators to update the Indiana code “with more person-centered language, to improve how we talk about HIV.”

Past attempts at carrying such a bill in the Indiana General Assembly have failed, however — including in the most recent 2022 session.

Rep. John Young, R-Franklin, said during the meeting on Tuesday that while he believes the law should be modernized, he thinks the sentencing enhancement should remain in effect.

“No one should be forced to disclose, but I don’t see a problem with somebody being stigmatized because they committed a crime,” Young said. He specifically referenced law enforcement officers who could be spit on by aggressive individuals who mean to “intentionally” spread HIV during arrests, for example.

Foote, who has lived with HIV for 34 years, disagreed with that sentiment.

“Despite people living extremely well, doing what everybody else does in life — working, having families, and that sort of thing — we continue to face stigma in many areas of our life, and possible criminalization under Indiana law, due to our HIV status,” she said.

Newly diagnosed HIV cases in Indiana have stayed fairly stable in recent years, although there has been a slight uptick in 2022, said Jeremy Turner, director of the HIV, STD, and Viral Hepatitis Division at the Indiana Department of Health (IDOH). Still, AIDS cases continue to decline.

Sexual intercourse remains the number one route for HIV transmission in Indiana, even despite an increase of injections spurred by the opioid epidemic, Turner continued.

To help keep case numbers down, the state health department funds multiple initiatives to help Hoosiers prevent, diagnose and treat HIV and Hepatitis. The federal government has also made it easier for high-risk populations to access PrEP, a medicine taken to prevent getting HIV.

Foote recommended that lawmakers amend the criminal law to be based on the criminal intent to infect and transmit HIV. She added that a criminal law should only include punitive measures that are proportionate to the harm. The law also should not be specific to HIV, and must exclude diseases that are airborne or casually transmitted.

“If the HIV epidemic started today, and was a chronic, manageable condition with multiple methods of prevention available like we have today, we would not be enacting these laws,” Foote said. “We know this because we are protecting the public’s health without the use of the criminal laws for recent serious communicable disease challenges in our state such as Syphilis, COVID-19, and now monkeypox.”

Health care officials call for psychiatric hospital funding revamp

Separately, members of the study summer committee discussed a new model for certified community behavioral health clinics that would better ensure patients and offenders from Indiana psychiatric hospitals and the Indiana Department of Correction are connected with appropriate care upon their release.

Community leaders and advocates said their intention is to cut down the number of people returning to jail after they’ve received mental health and addiction recovery services.

People who were taken to jail and identified as having mental health needs are 1.5 times more likely than anyone else to be rearrested within six months, said Bernice Corley with the Indiana Public Defender Council.

She pointed to a new pilot program in Marion County, where a “holistic model” will be tested next year to help keep services available to incarcerated individuals during and after conviction. The goal is to help reduce recidivism and decrease the number of cases in Indiana’s criminal justice system.

“What we’re proposing here is looking at public defense, not in the representation once the client is guilty, but moving that mark of representation and wraparound services to that person post-conviction, as well as when they’re transitioning back into the community, and helping stabilize them,” Corley said, adding that the model could be considered on a larger, statewide level.

Jay Chaudhary, who oversees the Indiana Family and Social Services Administration’s Division of Mental Health and Addiction, said the six state psychiatric hospitals in Indiana currently treat about 600 individuals.

At least 83 of those people are ready to be discharged now but can’t be released yet, largely because of issues finding appropriate housing placements. He said that costs the state roughly $1,200-$1,500 per day for each person to be housed in a state hospital.

“Housing and transportation remain huge barriers to care,” Chaudhary said. “It’s hard to treat somebody with a mental illness if they don’t have stable housing, or if they can’t get the treatment.”

Representing Indiana’s 24 community mental health centers — which provide an array of behavioral health and addiction services — George Hurd said run-down group-living sites, a statewide shortage of 5,000 to 7,00 therapists, and difficulties that come with serving an aging population of Hoosiers in need of services prevents those in the system from accessing the best care possible.

Funding for community health centers is currently highly dependent on donations, Hurd said. Additional state dollars could help.

“We’ve done an excellent job reducing the number of persons in state operated-facilities,” Hurd said, noting that Indiana psychiatric hospitals housed some 50,000 at their peak. “The system has reached a point where more stable and consistent funding is needed to meet the current community safety net, and to advance it.”

Canada: Ruling from Ontario court of appeal opens the door for other people with HIV to seek to have their convictions overturned

‘I was made out to be a monster’: With her conviction for not disclosing her HIV status now overturned, one woman wants Canada’s laws to change

Jennifer Murphy was convicted for not disclosing her HIV status to a sexual partner, despite being unable to transmit the virus.

When Jennifer Murphy was found guilty of aggravated sexual assault, her face was splashed all over the news — her life changed due to a conviction that has now been overturned.

The 2013 conviction in a Barrie, Ont. courtroom was for not disclosing her HIV-positive status to a sexual partner in a consensual encounter. At the time, she had an undetectable viral load thanks to medication, and was therefore unable to transmit the virus.

“I was made out to be a monster,” she said in a statement to the Star last week.

Murphy was sentenced to more than three years in prison, minus 15 months for time served in pre-sentence custody.

“It was all over the news and my family and friends had to read that and feel the pain and agony,” she said. “They had to worry about their daughter or their mother and what would happen to her.”

Canadian law requires an individual living with HIV to disclose their status to a sexual partner if there is a realistic possibility of transmission. At the time of Murphy’s conviction, it was generally understood within the legal system that disclosure was not necessary if the individual had both a low viral load and used a condom. No condom was used in the Murphy case.

Earlier this month, the Ontario Court of Appeal overturned Murphy’s conviction and entered an acquittal, accepting fresh expert evidence that Murphy’s undetectable viral load meant there was no realistic possibility of transmission of the virus.

The decision opens the door for other people with HIV in Ontario, found guilty in situations similar to Murphy’s, to seek to have their convictions overturned.

“I want them to get justice, too,” she said.

The ruling also comes as the federal government plans to reform the law on HIV nondisclosure, impacting the whole country — a move advocates hope will see the justice system finally recognize that the science has evolved around HIV, and that a person with an undetectable viral load simply cannot transmit the virus.

They say the ongoing criminalization of HIV nondisclosure continues to perpetuate stigma against people living with HIV.

“The community has been calling on the government to act for years,” said Alexander McClelland, assistant professor at the Institute of criminology and criminal justice at Carleton University, and a member of the Canadian Coalition to Reform HIV Criminalization.

“People living with HIV, legal experts, have been calling out the heinous record of Canada being a leading country in the world for criminalizing HIV nondisclosure.”

There are a number of reasons why a person doesn’t disclose their HIV status to a sexual partner, he said, including fear of violence.

“Our faces are on the covers of newspapers framed as violent perpetrators,” he said. “As someone who has done research on this, I can tell you nothing is further from the truth. People living with HIV want to protect their partners, they want to protect themselves, they want to live lawfully and freely and be able to have positive, healthy sex lives.”

As Murphy put it, “Right now, you can be convicted despite doing everything right — taking medication and suppressing your viral load.”

After several months of community consultation, the coalition released its second consensus statement in July, calling for changes to the Criminal Code that would limit prosecutions to the “very rare” instance where there was intentional, actual transmission of the virus.

The statement, signed by dozens of organizations, describes Canada as a “global hot spot” for nondisclosure prosecutions, saying there had been more than 220 by the end of last year, with the Black, Indigenous and gay communities being disproportionately affected.

There are no HIV-specific offences in the Criminal Code. The consensus statement points out that police and prosecutors will typically use the charge of aggravated sexual assault in nondisclosure cases, which carries a maximum prison term of life, mandatory designation as a sex offender, and “almost certain deportation” for non-citizens.

Murphy was required to take sex offender counselling in prison, “which was degrading and humiliating,” and she also had to deal with other inmates also knowing about her case.

“The outside world was judging me while the inside world was doing the same,” she said. “I would put myself in segregation just to get away from everyone.”

The federal government announced at the end of July that it will hold consultations in October “on how best to modernize the criminal justice system’s response to nondisclosure of HIV status” given the scientific evidence on sexual transmission of HIV.

Faced with criticism as to whether further consultation is necessary, Justice Minister David Lametti said in an interview last week it will not be lengthy, but rather “focused and targeted” with expert advocacy groups.

“I’m going to try to put an end, a positive end, to all of this as soon as possible,” he said. “No one should underestimate my good faith on this.”

After studying the issue, the House of Commons standing committee on justice recommended in 2019 that the government create a specific Criminal Code offence for actual transmission of infectious diseases, including HIV. The coalition is against adding an HIV-specific offence to the code for fear of perpetuating further stigma.

“I understand very well the point that such an offence would, in all likelihood, lead to continued stigmatization of people living with HIV and that is something we do not want to do,” Lametti said.

The coalition is calling for Criminal Code reform that would prohibit the ability to prosecute nondisclosure cases under sexual assault offences, and to limit the use of any other offence to intentional, actual transmission of the virus, while stating that the use of the criminal law should be a measure of last resort.

“The science around HIV has evolved, we know more now,” Lametti said. “We know that there’s stigma that’s been attached, that sexual assault laws are not appropriate and cumbersome and lead to results that are frankly unjust.”

An undetectable viral load can be achieved by taking medication, and essentially means “you cannot see the virus based on the conventional systems that we have to detect it,” said infectious diseases physician Dr. Isaac Bogoch. He highlighted a slogan that has gained much traction in recent years: U = U, undetectable equals untransmittable.

“It’s not only scientifically accurate, but it’s a way that we can help destigmatize HIV infection because it’s simple, it’s easy to understand, and it’s universal,” said Bogoch, a physician with the HIV Clinic at Toronto General Hospital.

“These are individuals who will not be able to transmit HIV to others. They just won’t.”

It was a 2012 Supreme Court of Canada decision known as R. v. Mabior that found a low viral load and condom were required to avoid prosecution for HIV nondisclosure, and it was that standard that was applied to Murphy’s case in 2013. But the top court also said the double requirement “does not preclude the common law from adapting to future advances in treatment.”

Murphy’s appeal lawyer, Colleen McKeown, asked the Court of Appeal to “identify a new set of circumstances” in which there’s no realistic possibility of transmission — and therefore disclosure is not necessary — namely that the person has a suppressed viral load and is taking antiretroviral medication. The court’s ruling on that issue is pending.

“I hope that it offers a path forward for people who might be in a similar situation to see their convictions overturned as well,” McKeown said of the Murphy appeal. She said even individuals who pleaded guilty when the “legal landscape” was different could take steps to see if they could get their convictions overturned.

In the years since the Mabior decision, at least four provinces — Ontario, Quebec, British Columbia and Alberta — have adopted a mix of official guidelines and unofficial policies to curb HIV nondisclosure prosecutions.

In the territories, where federal prosecutors handle criminal cases, Crown attorneys have been told not to prosecute if there is an undetectable viral load, and to “generally” not prosecute where a condom was used or if the person engaged only in oral sex, even if the viral load was not suppressed.

In Ontario, Crowns were instructed through provincial guidelines in 2017 not to prosecute if the individual is on medication and had an undetectable viral load for at least six months, but is silent on condom use alone.

“The result of prosecutorial guidance is you get an inconsistent approach across Canada,” said India Annamanthadoo, policy analyst at the HIV Legal Network and member of the coalition. “Why we’re advocating for Criminal Code reform is that it will be a consistent approach across Canada.”

McClelland added that “being someone living with HIV, having an inconsistent understanding or uncertainty about what I could be prosecuted with and where, is a completely unreasonable way to live a life in Canada as a Canadian resident.”

The coalition is also calling on the government to end the deportation of non-citizens following a conviction, and to review past convictions.

“There are a lot of people who were convicted in discriminatory and unscientific circumstances and those convictions need to be reviewed,” said Annamanthadoo, “so people do not have to live under the label of a criminal and a sex offender.”

Murphy said she’s still absorbing the impact of the Court of Appeal’s decision.

“I am worried that, even with my conviction overturned, there will still be people who will judge me. I shouldn’t have to live with it, but I do,” she said. “It doesn’t erase the stories on the internet. All the negative publicity will still be there.”

But she said it means she gets to focus on changing the law, urging the federal government to take action and finally provide some certainty to people living with HIV.

“It’s a human rights issue. It discriminates against people who have an illness,” she said.

“I want the public to know that people with a suppressed viral load pose no threat to anyone.”

 

Mexico: New HIV law using stigmatising and obsolete language sparks request for constitutional challenge

Request for constitutional challenge against a new HIV law in Quintana Roo

Automated translation via Deepl.com – For article in Spanish, please scroll down.

The Mexican Network against the Criminalisation of HIV and the civil association Vida Positiva Playa filed in recent days a request to the Human Rights Commission of the State of Quintana Roo and the National Human Rights Commission to file unconstitutionality actions against the “Law of Prevention, Integral Care and Control for HIV in the State of Quintana Roo”, approved unanimously by the Congress of the State of Quintana Roo, in Mexico, on 24 May this year.

Although the purposes of the law in question include promoting non-discrimination of people living with HIV and strengthening the fulfilment of their human rights, the result has been to the contrary by using false, obsolete, stigmatising and discriminatory language that is not in accordance with the 2015 UNAIDS Terminology Guidelines and articles that directly violate human rights.

The law may also spoil an efficient response to HIV and AIDS by causing confusion by not complying with the principles of taxativity, i.e. it is not precise or clear in its statements, and by contradicting in some articles national laws, norms and guidelines on HIV prevention and detection and medical care for people with HIV, which are mandatory “for all health sector institutions”.

With expressions that mention in several articles such as “contagion of HIV/AIDS” and “people living with HIV/AIDS”, this law reinforces the myths in the general population that HIV and AIDS are the same and that, because it is “contagious” (in reality it is transmissible), one can acquire both HIV and AIDS by simply living with a person living with HIV.

On the other hand, referring to people with HIV as “HIV patients” implies that the individuals in question are seriously ill and have no control over their lives (Mexico’s General Health Law only speaks of “patients” if they are terminally ill and/or hospitalised. Persons who seek medical care without having the characteristics of a patient are called “users”).

A direct violation of the human right to refuse medical treatment and procedures, also enshrined in Mexico’s General Health Law, is found in Article 14 of the new law. According to this article, HIV testing is mandatory for “patients scheduled for surgical interventions and those who are going to undergo invasive diagnostic methods” and “pregnant women, so that the product does not have a vertical transmission of HIV”. On the other hand, Article 61, paragraph 2 violates the right to confidentiality of an HIV diagnosis by obliging people who have “jobs that involve direct contact with medical-surgical instruments or biological material”, i.e. practically all medical personnel, to inform their employer of their HIV status and the employer, according to medical criteria, must “procure a change in the carrier’s working conditions”, which may also allow for the dismissal of this person for living with HIV.


Solicitan demanda de acción de inconstitucionalidad contra una nueva ley de VIH en Quintana Roo

La Red Mexicana contra la Criminalización del VIH y la asociación civil Vida Positiva Playa presentaron en los últimos días una solicitud a la Comisión de los Derechos Humanos del Estado de Quintana Roo y la Comisión Nacional de los Derechos Humanos para que interpongan acciones de inconstitucionalidad contra la “Ley de Prevención, Atención Integral y Control para el VIH del Estado de Quintana Roo”, aprobada de forma unánime por el congreso del estado de Quintana Roo, en México, el 24 de mayo de este año.

Aunque entre los propósitos de la ley en cuestión se encuentran promover la no discriminación de las personas con VIH y fortalecer el cumplimento de sus derechos humanos, el resultado ha sido contrario al usar un lenguaje falso, obsoleto, estigmatizante y discriminatorio que no está conforme a las “Orientaciones Terminológicas de Onusida” de 2015 y artículos que violan directamente derechos humanos.

La ley también puede estropear una respuesta eficiente ante el VIH y el sida por causar confusión al no cumplir con los principios de taxatividad, es decir que no es precisa ni clara en sus declaraciones, y por contradecir en algunos artículos leyes, normas y guías nacionales sobre la prevención y la detección del VIH y atención médica de las personas con VIH, las cuales son obligatorias “para todas las instituciones del sector salud”.

Con expresiones que mencionan en varios artículos como “contagio del VIH/sida” y “personas que viven con VIH/sida” la presente ley fortalece los mitos en la población general que el VIH y el sida son lo mismo y que, por ser “contagioso” (en realidad es transmisible), se puede adquirir tanto el VIH como el sida por la simple convivencia con una persona que vive con el VIH.

Por otro lado, al referirse a las personas con VIH como “pacientes del VIH” dan a entender que los individuos en cuestión están seriamente enfermos y no ejercen control sobre su vida (La Ley General de Salud de México habla únicamente de “pacientes” si son personas que padecen enfermedades terminales y/o que están hospitalizadas. Personas que acuden a la atención médica sin tener las características de un paciente, son llamados “usuarios”).

Una violación directa al derecho humano de rechazar tratamientos y procedimientos médicos, plasmado también en la Ley General de Salud de México, se encuentra en el artículo 14 de la nueva ley. Según este artículo la aplicación de la prueba del VIH es obligatoria para “pacientes programados para intervenciones quirúrgicas y aquellos que vayan a ser sometidos a métodos diagnósticos invasivo” y “mujeres embarazadas, a efecto que el producto no tenga una transmisión vertical del VIH”.  Por otra parte, el artículo 61, parágrafo 2 viola el derecho a la confidencialidad de un diagnóstico del VIH al obligar a personas que tienen “puestos laborales que impliquen contacto directo con instrumental médico-quirúrgico o con material biológico”, es decir prácticamente a todo el personal médico, informar a su patrón de su condición serológica y este, según criterio médico, debe “procurar el cambio en las condiciones de trabajo del portador”, lo cual también puede permitir el despido de esta persona por vivir con VIH.

Canada: Government to seek input on how to modernize the criminal justice system’s response to HIV non-disclosure

Liberals to launch consultations on criminal justice response to HIV non-disclosure

OTTAWA – The Liberal government plans to launch consultations this October on the criminal justice system’s response to HIV non-disclosure.

Justice Minister David Lametti made the commitment as he met interested parties this week in the lead-up to the International AIDS Conference in Montreal on the weekend.

The consultations will seek input on how to modernize the criminal justice system’s response to the non-disclosure of HIV status, in light of growing scientific evidence related to the risk of sexual transmission of HIV, the virus that causes AIDS.

As the law is currently written, people who do not disclose their HIV status before having sex can be prosecuted for aggravated sexual assault, the most serious type of sexual offence in the Criminal Code — even in cases where there is little to no possibility of transmission, no intent to transmit and no actual transmission.

The way the law is enforced is “extremely punitive and overbroad,” said India Annamanthadoo, a policy analyst with the HIV Legal Network, noting advocates are aware of more than 200 cases being prosecuted since 1989.

Annamanthadoo said in an interview that the consultation is a good first step by the federal government, but it is not enough.

“We need to act swiftly and urgently,” she said. “So what we’re hoping is that this consultation is not going to be something that’s protracted, but rather something that leads to swift legislative reform.”

The Canadian Coalition to Reform HIV Criminalization, of which the HIV Legal Network is a part, said in a statement Wednesday that the government must recognize “we are not starting from scratch.”

US: Indiana legislators to meet this autumn to study for the first time the state’s HIV laws

Study committee to review Indiana’s HIV laws

Indiana legislators will meet this fall to study for the first time the state’s laws concerning HIV.

Current scientific knowledge has resulted in existing laws being outdated, critics say.

Human immunodeficiency virus, or HIV, was first officially reported in the United States in the early 1980s. The virus attacks the body’s immune system. If left untreated, HIV can lead to acquired immunodeficiency syndrome, or AIDS.

During the early years of the epidemic, information was scarce and often incomplete, particularly among the general public. And back then, there were no effective treatments for the virus.

In a letter earlier this year to House Speaker Todd Huston, a group of lawmakers wrote that states – including Indiana – “enacted HIV-specific criminal laws based on the perception of HIV at the time.”

The legislators characterized it as “a time of fear and stigma,” and many commonly held beliefs in the latter decades of the 20th century are now known to be inaccurate.

State Rep. Ed Clere, one of 16 legislators who signed the letter, said a group of lawmakers wrote a similar letter last summer, but that effort went nowhere.

That could all change as early as next year after Huston assigned the Interim Study Committee on Corrections and Criminal Code to review the laws governing HIV. The review will include “provisions related to biting, spitting, donating organs and donating blood.”

Existing HIV laws

Dr. Carrie Foote, chairwoman of the state’s HIV Modernization Movement, has long advocated for changes to Indiana’s criminal and public health codes.

The professor of sociology at Indiana University–Purdue University Indianapolis has been living with HIV since 1988 – the same year Indiana first enacted one of the statutes she hopes to see changed.

That 1988 law makes it a felony for a person living with HIV to donate bodily fluids, including blood, semen and plasma.

The Indiana Region of the American Red Cross said the organization carefully follows FDA guidelines for blood collection and testing.

“There is a patchwork of laws in the U.S. concerning disclosure of HIV status when presenting to donate blood. A small number of states criminalize such behavior, but most do not,” the nonprofit said in a statement. “Furthermore, criminalization is not an FDA-required measure. Therefore, the Red Cross does not rely on HIV criminalization statutes to protect the blood supply due to inconsistent laws.”

Some other laws enacted later are similarly outdated, Foote said. Those include HIV-related enhancements in the state’s malicious mischief statute determining punishments for exposing people to bodily fluids.

Another criminal law adds enhancements to previously existing state statute on battery, which makes it a misdemeanor when a person “in a rude, insolent, or angry manner places any bodily fluid or waste on another person” – basically, for spitting on someone.

However, that charge is enhanced to a felony if the perpetrator is living with HIV, hepatitis or tuberculosis. It’s further enhanced if a person living with HIV spits on a public safety official.

In effect, those enhancements can add years to the sentencing range for a person who is living with HIV – even though scientists now know HIV cannot be transmitted through saliva.

Foote believes people living with HIV are punished too harshly solely based on those laws.

Michael Moore, assistant executive director of the Indiana Public Defenders Council, said those sentencing enhancements apply if a person “knew or should have known” their HIV status.

Foote thinks some people living with HIV believe they can avoid such enhancements by remaining unaware of their HIV status. As a result, she said, “take the test and risk arrest” is a common mindset as a lack of knowledge can serve as a defense against Indiana’s HIV laws.

“Stigma keeps people from getting tested, keeps people from getting into care,” Foote said. “These laws that remain on the books from the ’80s and the ’90s in the early years, not one study has shown that they have any kind of prevention benefit.”

Foote also criticized the state’s laws requiring people living with HIV to disclose their status before engaging in sexual activity or sharing needles. The existing statute results in the criminal justice system viewing people as “guilty until proven innocent” when charged under those disclosure laws, she said.

Foote believes the burden is on the defense to prove innocence in HIV disclosure cases.

“Whereas, normally in criminal law,” she said, “you’re innocent until proven guilty.”

Fighting the stigma

Jeff Markley serves as executive director of the Positive Resource Connection, a local service organization which provides case management, prevention and education services for HIV, AIDS, hepatitis and other diseases in northeast Indiana.

He said changes to the state’s HIV laws are “long overdue” and that existing codes “don’t match the current science.”

“If you’re not … able to transmit the virus” through various outlawed acts, Markley said, “then the laws need to be changed to reflect that so that you’re not charged with something that is just not a real threat to anyone.”

Along with newer scientific knowledge about the virus, modern medical advances have significantly changed the outlook for people living with HIV.

“For someone who’s newly diagnosed today, with effective treatment they can live just as long as anybody without HIV. Life expectancy is the same, is normalized with treatment,” Foote said. “We also know that not only does treatment keep us alive and well, treatment is also prevention.”

Foote calls this U=U, or undetectable equals untransmittable. According to the National Institutes of Health, new research shows people with an undetectable viral load cannot sexually transmit HIV.

“Even things that might transmit HIV, like certain sexual behaviors and acts, when we’re treated, we essentially become unable to transmit the virus,” Foote said. “It’s almost like a functional cure in a way.”

Despite scientific advances, Foote said the stigma surrounding HIV still discourages people from getting tested.

“When you know your status, we can get into care, we can get on treatment,” Foote said. “We know that treatment is prevention. We need people to get tested if we want to end the epidemic.”

Markley said people still fear disclosure – even though there is less stigma around HIV than there was 30 years ago.

“People still have a fear about what might happen if they would disclose their status,” Markley said. “From an epidemiological standpoint, with very few (exceptions), there’s really not a need for anybody to disclose their status.”

He said people living with HIV haven’t forgotten the 1980s and 1990s: “the prejudice and the hate and the discrimination that occurred.”

“You’re always going to have some pockets of individuals who are not as informed or can’t quite wrap their head around all of the science and the information,” Markley said. “Sometimes they tend to be pretty loud and vocal and can make things difficult for other individuals.”

Looking forward

Since 2018, Rep. Clere has introduced multiple bills addressing HIV and the Indiana code. Some have passed, including House Bill 1340 in 2021.

That bill eliminated “stigmatizing language” from the code, Foote said. The new version uses “people first language” – for example, changing the wording from “carriers” to “people living with” HIV or other communicable diseases.

This year, though, a bill to remove HIV-related sentencing enhancements and repeal laws prohibiting people living with HIV from donating bodily fluids died in the House after making it out of committee.

This year’s study committee could be a turning point, Foote said. The fast-paced and brief regular session at the statehouse often leaves little time for in-depth discussion – particularly about HIV, a topic many legislators don’t have extensive knowledge about.

“There’s very little time to talk to the legislators,” Foote said, “to explain to them, ‘Here’s what we’re doing … Things have changed around HIV; we’re not in the 80s anymore.’ ”

The study committee will provide more of an opportunity to bring in experts and educate lawmakers, she said. Clere said the committee will allow for more extensive testimony on HIV.

“It’s exactly the sort of thing that we should be studying in the interim study process,” he said. “(It) offers an opportunity to take a more measured and thoughtful look at issues.”

Clere hopes the committee will help dispel outdated ideas about HIV.

“I’m optimistic that the study process will help address the fear and stigma, the stereotypes and the misinformation … and really get everyone up to speed on the science,” he said.

The Modernization Movement’s ultimate goal is to repeal and replace the state’s old HIV laws. Foote said any new statutes should not be based on HIV status. Instead, she said, they should incorporate the idea of intent and the possibility of harm.

“We’re not saying anyone that goes out and intentionally tries to harm another person – yeah, they should be tried just like anyone else who attempted to harm somebody in any other way,” Foote said. “But right now, the way these laws are written in Indiana, they don’t take that into account.”

She’s “extremely optimistic” about the possibility of a modernization bill passing during next year’s legislative session. Foote views it as a bipartisan issue. Although some lawmakers might be initially hesitant, she hasn’t seen strong opposition to the changes.

“Going into the next session, particularly because we have this study session, we’re going to make a lot of headway there,” Foote said. “So when we do go in, folks will understand a little bit better, and we’ll have more people (saying), ‘Yeah, we fully support that. Let’s move these forward.’ ”

Argentina: New HIV and STI law approved

Senate signed comprehensive HIV response into law

Automated Google translation – Scroll down for original article in Spanish

The bill was approved with 60 votes in favor and only 1 against. It also includes Viral Hepatitis, other Sexually Transmitted Infections and Tuberculosis. It repeals Law 23,798 that had been sanctioned in 1990.

The Chamber of Senators signed into law this Thursday the Comprehensive Response to HIV, Viral Hepatitis, other Sexually Transmitted Infections and Tuberculosis project that repeals the current rule 23,798 sanctioned in 1990. The initiative obtained 60 votes in favor and only one against the Senator Humberto Schiavoni, head of the Pro bloc.

The new president of the Health Commission, Pablo Yedlin from Tucuman, opened the round of speakers by stating that it is a “very important” issue that “has an old legislative history with a disease that is quite modern and that the HIV law that governs , it was historic because it allowed at a very hard time because we did not have many tools for treatment, to prevent vertical transmission from mothers to children, we did not have tools to cure this disease and many died from it.

Regarding the current law, he pointed out that “after 30 years it has aged well, it is very important, and it allowed patients who live with the virus to have access, from the State, to their treatments and it was a pioneering law in the world and without doubt in the region.

Along these lines, he thanked the civil organizations that “throughout Argentina have been fighting an important battle in search of their rights, to obtain this new law, which sometimes cost them to arrive, such as tests, condoms, over the years.”

“It is estimated that there are 140,000 people who live with the virus, 17% of this number are unaware of the diagnosis, perpetuating the cycle of infections. Unfortunately, 30% of the patients who are diagnosed do so in the late period of the disease and this makes treatment difficult. 65% are treated in the public sector,” described Yedlin and thanked the public health system that “takes care of serious health problems.”

And he continued: “4,500 cases are diagnosed per year with a rate of 11 per 100 inhabitants and the mortality rate from AIDS is getting lower and lower, and today it is declining at 2.8 per 100,000 inhabitants”, but he pointed out that “it is not the same in all the provinces because the AIDS mortality rate shows severe inequities in the country, that is why we must continue working on regulations that allow the country to be more equitable”.

“This law was worked on in consensus with all the political blocs”, highlighted the man from Tucuman and lamented that he lost “three times he lost parliamentary status and had to be represented”. Likewise, he compared the new initiative with the current law: “It is not only a law for HIV, but also for other sexually transmitted diseases that suffer some type of neglect, such as hepatitis B, which are very expensive to treat and are incorporated to have the same right”.

And he continued: “It is a law that, in addition to declaring the treatment in a national public way, the diagnosis is also declared by the development, the research, the medicines. It gives a comprehensive response, new combined methods”.

“We are making a law so that all patients can have access to a special retirement system that will allow those who age prematurely, with 50 years and 20 years of contributions, to access a retirement system. Those patients who have the virus or hepatitis B or C will have access to a non-contributory lifetime pension and are socially vulnerable. This law creates a National Monitoring Commission made up of different ministries and civil society”, explained the man from Tucuman and closed: “ It is a law that tries to overcome political cries and we all agree that patients deserve rights and we are doing justice for the law to materialize ”.

In his turn, the vice president of the Health Commission, Mario Fiad from Jujuy , advanced his positive vote because “this law came to update the current Law that has been in force for many years and that has the addition of including viral hepatitis B and C, other sexually transmitted infections and tuberculosis from a human rights perspective”.

However, he considered that “we are arriving late” because “we do not need these laws to know that the universe of these people who are affected by these pathologies have their enshrined rights.”

“Estamos legislando sobre temas ya legislados y, sobre todo, lo que es indiscutiblemente obligatorio e imperativo del Estado, y por eso nos surgen interrogantes ¿por qué no se logran hacer operativos todos esos derechos? ¿por qué razón los Diputados tenían que considerar necesario incluir un capítulo de sanciones en la Ley de VIH y Hepatitis tuberculosis para que la ley sea vigente y no tenga posibilidades de trabajar, ¿por qué no se cumple con la tarea de fiscalización y monitoreo por parte del Poder Ejecutivo para hacer que se cumpla la norma? por que los pacientes recurren cada vez más a la justicia para que, por vía de amparo, tengan el cumplimiento de las leyes”, explayó con críticas Fiad.

In addition, he questioned that “we have a universe of health laws that are not complied with” and pointed out the time it takes to regulate. “This has to call us to reflection, we have to monitor health regulations to be able to evaluate compliance,” she said.

In her speech, Silvina García Larraburu (FdT) from Rio Negro said: “We will be closing the day with a fairer, more equitable, more egalitarian country, without a doubt all the projects are very important and fundamental for a large number of people who They are militating and working to achieve the best project”

In turn, he said that he has been presenting initiatives since 2016 and mentioned that the project was worked on with more than 50 organizations. “The national AIDS law was a pioneer at the time, but after more than 30 years it needed a change because the health paradigm of human rights, in every sense, needed modernization. It had content that turned out to stigmatize you”, and compared that “the new law has a focus on human rights and a gender perspective. This legislation is going to be a model to imitate and one of the best legislations in the world”.

Tucuman Sandra Mendoza (FdT) described that “this law is a historical reparation to all the people who suffered and continue to suffer discrimination, stigma, fear and ignorance about HIV. It is a law that will dignify and save lives to have a fairer and more supportive Argentina”.

The project

Through the new law, Law 23,798, which had declared the fight against AIDS of national interest, and was sanctioned in 1990, is repealed.

In addition to HIV, the new law incorporates viral hepatitis, tuberculosis and sexually transmitted infections (STIs).

According to the text, “comprehensive and intersectoral response” and universal and free coverage of comprehensive assistance -medicines, supplies, vaccines, treatments, etc- are foreseen.

The rule prohibits the performance of the diagnostic test in pre-employment medical examinations, as well as during the course and as part of the employment relationship.

Nor can any educational institution, public or private, request it as a requirement for entry, permanence, promotion or for access to scholarships.

The diagnostic test will be voluntary, only with the consent of the person; free in all health subsystems; confidential; universal; and carried out with due individual advice before and after the test.

On the other hand, an exceptional early retirement is established for people with HIV and/or hepatitis B and/or C, which can be accessed from the age of 50, with proof of 20 years of contributions and 10 years after the diagnosis has elapsed. Retirement will be incompatible with those who have a job in a dependency relationship.

Likewise, a non-contributory lifetime pension is created for those who are in a situation of social vulnerability.

Among other points, the law states that every woman and/or person with the capacity to gestate must receive the necessary health information, related to their health, as well as that of their child, both during pregnancy and postpartum.

Also, every child born to a woman or person with the ability to gestate with HIV and/or Hepatitis B or C will have the right to free access to formula milk during the first 18 months.

The new law can be viewed here

 

Uganda: Final arguments in landmark case challenging HIV criminalisation law to be made within a week

Uganda Constitutional Court gives activists seven days to file final arguments in HIV criminalization suit

The Constitutional Court of Uganda gave plaintiffs seven days from June 7 to file their final arguments in a landmark case challenging sections of the HIV/AIDS Prevention and Control Act 2014 that criminalize HIV transmission and require disclosure of one’s serostatus to sex partners.

The Uganda Network on Law Ethics and HIV/AIDS (UGANET), leading a coalition of more than 50 civil society organisations, is challenging the HIV/AIDS Prevention and Control Act 2014 which they allege is discriminatory and an impediment to the fight against AIDS. Their petition was originally filed in 2016 and has been stalled in the court system for close to seven years.

Francis Onyango, lawyer for the petitioners, told RightsAfrica Tuesday in Kampala that the parties will have to wait further the ruling after final arguments are made.

Among the controversial provisions in the Act are mandatory HIV testing for pregnant women and their partners, and allowing medical providers to disclose a patient’s HIV status to others without consent.

The law also criminalizes HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status. Ugandan LGBTQI+ rights activists filed petitions to the Ugandan Parliament when the the bill was being considered.

Female sex workers also see the law as a hinderance to the fight against HIV because they are wrongly believed to harbor intentions to spread HIV to their clients. Sex work is illegal in Uganda, despite a spirited fight by activists for decriminalization.

Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights, the petitioners say. They also argue that criminalization of HIV transmission is overly broad and difficult to enforce.

They argue that the act is being used by state agencies as a tool of discrimination and humiliation. LGBT people have complained of forced anal examinations in recent arrests as part of mandatory HIV tests when they are in police custody. Many human rights organisations have called the law flawed and deeply troubling, and in contradiction of science and human rights.

Uganda is currently bidding to host the Society for AIDS in Africa’s (SAA) 2023 International Conference on HIV/AIDS and STIs in Africa (ICASA 2023).

Among the requirements for potential ICASA host countries, SAA demands that host countries have no discriminatory government policies based on gender, HIV status and religion.

 

Uganda: Legal Environment Assessment recommends changes to the penal code to address HIV and sex work criminalisation, stigma, discrimination and gender-based violence

Ugandan Laws Constraining Fight against HIV/AIDS – Report

 

A report titled “Legal Environment Assessment (LEA) for HIV/AIDS in Uganda” released by the Uganda AIDS Commission on Friday has revealed that some Ugandan laws, regulations and policies constrain effective HIV response in the country.

The Report is based on data collected during the period of July 2021 to February 2022.

The main objective of the Report was to assess the extent to which existing laws, regulations, and policies enable or constrain key protections for people affected by HIV in Uganda.

The Report also aimed to identify all relevant laws, policies, and strategies that affect, positively or adversely, the successful, effective, and equitable delivery of HIV prevention, treatment, care, and support services to people living with HIV and HIV-affected persons; to assess the key human rights issues affecting people living with HIV; to assess the availability, accessibility, and affordability of interventions that promote rights of people living with HIV and other people affected by or at risk of HIV in Uganda.

The Report also aimed to analyse the extent to which people living with HIV and those affected by or at risk of HIV in Uganda are aware of existing legal frameworks and support systems to access services; and to provide recommendations for the creation of an enabling legal, social, and policy framework to eliminate HIV-related stigma, discrimination, and violence against people living with, affected by or at risk of HIV in Uganda.

KEY FINDINGS

HIV Prevention and Control Act; Sections 41 and 43 criminalises attempted transmission of HIV, and intentional transmission of HIV respectively, thus discouraging HIV testing and the disclosure of positive test results. Intention to transmit HIV is difficult to prove in situations where people may not know their HIV status.

HIV Prevention and Control Act; Section 18 (2) allows a health worker to disclose HIV test results to a third party without the consent of the affected person, thus violating their right to privacy and potentially discouraging people from testing for HIV if they think their results may be disclosed to third parties without their consent.

Releasing HIV test results to another person without the consent of the client may also result in stigma or violence against the client.

HIV Prevention and Control Act Section 13 (b) provides for routine HIV testing of a pregnant woman, and Section 13 (c) provides for routine HIV testing of a partner of a pregnant woman.

However, health workers routinely make it appear mandatory for pregnant women and their partners to be tested for HIV, with or without their consent. This has the effect of violating their right to privacy and autonomy and discourages people from visiting health facilities.

Uganda’s Penal Code Act (PCA) Sections 136-139 criminalise sex work and other activities associated with prostitution with the effect of unfairly targeting key and vulnerable populations and exposing them to arbitrary arrest and mistreatment by law enforcement, while male clients rarely receive the same treatment.

The harassment of sex workers has the effect of increasing societal stigma towards them, denying them the livelihood, which is their only source of income, driving them and keeping them away from health and justice support services.

The Director General of the Uganda AIDS Commission, Dr Nelson Musoba, said that while the Government of Uganda is committed to the goal of ending AIDS as a public health threat by 2030, there is also increasing recognition that this goal cannot be achieved unless the country addresses structural barriers such as legal impediments, and issues such as human rights, stigma, discrimination, gender inequality and gender-based violence.

The President of the Uganda Law Society, Pheona Nabasa Wall said that although Uganda has HIV Prevention and Control Act (2014) and other regulations, prosecution under this law has been challenging partly due to its discriminative nature and challenges associated with proving most of the provisions under it.

Persons charged with HIV related offences are instead often subjected to public humiliation and bail applications, mandatory tests upon arrests, and in cases of defilement of children, maximum penalties are pleaded and recommended by prosecutors even in the absence of scientific evidence of transmission of HIV she said.

She added that HIV victims have a number of issues which include among others; stigma nutritional needs, denial of justice and palliative care, forced HIV testing, discrimination in gaining access to medical care, education, employment, and violation of right to medical privacy.

RECOMMENDATIONS

Review and repeal sections 136 & 139 of the Penal Code Act to decriminalise sex work.

Harmonise the legal provisions on abortion and decriminalise abortion in order to give women access to safe abortion services, guarantee autonomy and decision-making power over their reproductive lives (Provisions in Sections 142 and 143 of the Penal Code Act and Article 22 of the Constitution of Uganda present contradictions on the issue of abortion. Ministry of Health guidelines on abortion were suspended).

Repeal sections 167 to 169 of the Penal Code Act because they are archaic, out-dated, and no longer serve the purpose for which they were created. Uganda Police Force and the DPP should desist from charging and prosecuting individuals with these provisions.

Prosecute HIV-related cases such as those relating to intentional transmission of HIV under general criminal law, not HIV. specific laws.

Reform the law to make it explicit that pregnant mothers should be tested upon giving consent, after receiving full information from health care providers.

Reform the law to remove the provision for a health worker to disclose results to a third party without the consent of the client; instead support the process of disclosure by the client himself/herself.

The Report was launched by the Acting Minister of Justice and Constitution Affairs, Muluri Mukasa who applauded Uganda AIDS Commission and development partners for conducting the assessment.

The Report, he said, shades light on the impact of Ugandan laws in response to HIV/AIDS

Minister Muluri added that the Report findings will provide policy makers with evidence to carryout good legislation and develop policies and laws that will ensure that government does not default on its commitment to end HIV as a public health threat by 2030.

The full report can be downloaded here

US: Indiana to undertake a review of its criminal code for laws concerning HIV

Laws criminalizing HIV to be reviewed by legislative interim study committee

Heeding a call from a bipartisan group of legislators, Indiana will undertake a review of its criminal code for laws concerning HIV, with the focus on modernizing state statutes and helping to end the HIV epidemic.

Ten Republicans and six Democrats sent a letter in late March to Speaker Todd Huston, highlighting the bills that had been passed in previous sessions that updated and revamped Indiana’s laws as more became known about HIV. However, the legislators noted, the state’s criminal code still needs to be amended to reflect the research and biomedical advancement regarding the disease.

“During the early years of the epidemic, states enacted HIV-specific criminal laws based on the perception of HIV at that time — a time of fear and stigma when much less was known about HIV and there were no effective treatments,” the legislators wrote in their letter. “Many of these laws, including Indiana’s, criminalize behaviors that cannot transmit HIV — such as biting or spitting — and apply regardless of intent or whether HIV was actually transmitted.”

The Indiana General Assembly’s Legislative Council approved the review of HIV laws Tuesday morning as part of Resolution 22-06, which assigned study topics to legislative interim study committees.

The HIV study proposal was among the more than 110 topics suggested, according to George Angelone, executive director of the Legislative Services Agency. However, the list was narrowed to 32 topics spread across 11 interim study committees, one subcommittee and five special committees.

The Interim Study Committee on Corrections and Criminal Code will conduct the review of HIV laws.

Also, the group will take a look at efforts and programs to ensure patients and offenders released from Indiana’s psychiatric hospital and the Indiana Department of Correction are connected to the appropriate care. Sixteen Representatives, mostly Democratic, sent a letter to the Legislative Council leaders asking for this review.

Both letters are available online.

In addition, Indiana will again take a look at marijuana-related products.

The Interim Study Committee on Public Health, Behavioral Health, and Human Services has been charged with examining Delta 8, Delta 9 and other THC products regarding potential health benefits, possible decriminalization and other consequences.

After the Legislative Council hearing, Senate President Pro Tem Rodric Bray downplayed the possibility that Indiana would make any dramatic changes to prohibitions on marijuana. Still, he said the study would be helpful because many in the General Assembly are likely not familiar with the pros and cons of the products.

“We in Indiana have been slower to go in that direction than states surrounding us,” Bray said. “… I think this is going to be an important conversation to have this summer for where Indiana moves in the coming years.”

Senate Minority Leader Greg Taylor, D-Indianapolis, said he was glad to see his colleagues on the other side of the aisle looking at THC. However, he also said he was disappointed that an examination of veterans’ issues was not included as a study topic.

“We could make sure that our veterans are having adequate access to all the benefits that are available to them,” Taylor said. “It’s our responsibility to actually provide that pathway for people to get their benefits that they deserve.”