Mexico: Activist calls for end to HIV criminalisation in Tlaxcala congress

Collective of the LGBTQI + community pronounces against the criminalization of HIV in Tlaxcala

Translated from Spanish with Google Translate – Scroll down for original article

Antonio Escobar Muñoz, activist and director of the HIV and Human Rights Program of the LGBTQI+ Tlaxcala Collective, made a statement at the state congress against the criminalization of HIV. This practice has been widely criticized by international organizations due to its negative impact on human rights and public health.

It is important to note that the criminalization of HIV is a global phenomenon that undermines both human rights and public health efforts. In Mexico, there are laws that criminalize the exposure or transmission of HIV, which has generated a debate about the need to reform or repeal these provisions.

This initiative seeks to eliminate stigmatisation and discrimination against people with HIV and ensure their access to health and justice services.

Se pronuncia colectivo de la comunidad LGBTTIQ + ante rechazo de la criminalización de VIH en Tlaxcala

Antonio Escobar Muñoz, activista y director del Programa de VIH y Derechos Humanos del Colectivo LGBTTTI+ Tlaxcala, realizó un pronunciamiento en el congreso del estado en contra de la criminalización del VIH. Esta práctica ha sido ampliamente criticada por organismos internacionales debido a su impacto negativo en los derechos humanos y la salud pública.

Es importante destacar que la criminalización del VIH es un fenómeno mundial que socava tanto los derechos humanos como los esfuerzos de salud pública. En México, existen leyes que penalizan la exposición o transmisión del VIH, lo que ha generado un debate sobre la necesidad de reformar o derogar estas disposiciones.

Esta iniciativa busca eliminar la estigmatización y discriminación hacia las personas con VIH y garantizar su acceso a servicios de salud y justicia.

New case study and documentary examines how Zimbabwe repealed its HIV criminalisation law

Today, the HIV Justice Network (HJN), supported by the International AIDS Society (IAS), released a video documentary, “It is Time!” – How Zimbabwe Decriminalised HIV, along with a case study report examining Zimbabwe’s successful repeal of its HIV-specific criminal law.

The report, Reforming the Criminal Law in Zimbabwe: A Case Study, explores how advocates, legal experts, and community leaders worked together to repeal Section 79 of Zimbabwe’s Criminal Code, which criminalised HIV non-disclosure, exposure, or transmission. It outlines key strategies used in the campaign and lessons for other countries seeking to end HIV criminalisation.

The 24-minute documentary “It is Time!” brings this story to life through interviews with those involved in the multi-year effort. It also explores how advocates responded when a new law threatened to reintroduce HIV criminalisation.

Zimbabwe’s experience highlights several key strategies:

Coalition-building: Bringing together civil society, legal experts, and policymakers strengthened the advocacy effort.
Public health and human rights messaging: Advocates demonstrated how criminalisation undermined Zimbabwe’s HIV response.
Scientific evidence: Expert testimony helped policymakers understand the realities of HIV transmission.
Legislative strategy: Repealing Section 79 as part of a broader legal reform helped ensure success.

The documentary “It is Time!” is now available on the HIV Justice Network YouTube channel.

Reforming the Criminal Law in Zimbabwe: A Case Study (English, pdf, 9 pages) can be downloaded here.

The documentary and case study will also be added to the HIV Criminalisation Online Course, available for free as part of the HIV Justice Academy.

The case study and video were launched during a webinar co-hosted by HJN and IAS, featuring discussions on the significance of Zimbabwe’s law reform for the global movement against HIV criminalisation from:

Marlène Bras, Director of HIV Programmes at the IAS;
Dr Ruth Labode, former legislator, and chairperson of the Parliamentary Portfolio Committee on Health in Zimbabwe;
Immaculate Owomugisha, a Ugandan lawyer and human rights activist who also sits on HJN’s Supervisory Board; and
HJN’s Senior Policy Analyst, Alison Symington.

A recording of webinar can now be viewed in English and in French on the IAS+ website.

US: Advocates hope report update will finally push Ohio to end HIV criminalisation

‘Guilty until our status is proven innocent’: Update on Ohio’s outdated HIV criminalization laws

With six Ohio decades-old laws still currently on the books that criminalize living with HIV, there is a new effort to give voice to the negative consequences and long-term impacts of the laws.

The Equality Ohio Education Fund and Ohio Health Modernization Movement (OHMM) released an update last week to their 2024 report, “The Enforcement of HIV Criminalization in Ohio,”which documents the use of Ohio’s HIV criminalization laws from 2014 to 2020 and the consequences of HIV criminalization across the state.

Key findings of the 2024 report include:

From 2014 to 2020, there were at least 214 confirmed HIV-related prosecutions in Ohio, of which over half (120 cases) came from the state’s “harassment with a bodily substance” law and about a third (77 cases) came under Ohio’s felonious assault law. The remainder (17 cases) were related to sex work.
The enforcement of Ohio’s HIV criminal statutes is geographically concentrated, with at least 26% (56 cases) of prosecutions occurring in Cuyahoga County (Cleveland). The other most-represented counties include Hamilton County (Cincinnati), with at least 26 cases, Lucas County (Toledo) with at least 16 cases, Franklin County (Columbus) with at least 15 cases and Montgomery (Dayton) and Warren counties, each with at least 10 cases.
Ohio’s HIV criminalization laws disproportionately impact Black communities, with at least 36% of defendants identifying as Black. Statewide, 29% of all defendants (62 people) were Black men.
In Cuyahoga County, 68% of HIV-related cases impacted Black Ohioans.

Most of the charges examined in the report fall under two Ohio laws.

One law makes it a crime for a person living with HIV (or hepatitis or tuberculosis) to “harass” someone with their bodily fluids. That would include spitting or throwing urine, feces or blood at another person.

Under the other law, a person can be charged with felonious assault if they have sex with another person without telling them that they are living with HIV.

The penalties for failing to disclose HIV status in Ohio are stiff regardless of whether the virus was actually transmitted or whether it was even possible for a person to transmit the virus. Possible sentences for individuals living with HIV can be anywhere from two to 29 times longer than those for Ohioans who are HIV-negative.

Most of the laws were passed decades ago, at a time fueled by fear and absent scientific understanding about how HIV is transmitted and before advancements in HIV-related treatment were widely introduced. Laws still remain in place in 34 states.

Giving voice

New to the report are the stories of three Ohioans who have been impacted by the state’s HIV criminalization laws.

Adam Reilly, OHMM legislative co-chair, said the goal of including these narratives is to humanize the laws to help Ohioans connect HIV criminalization to actual people.

“These are real people: your neighbors or even your family who have been directly affected,” said Reilly. “We hope that people finish reading the report, see the injustice and take action.”

One of those narratives came from Bryan C. Jones, a longtime HIV decriminalization advocate who lived with HIV for more than 42 years before passing away in December.

“To this day I’m still scared of having sex with someone,” Jones said. “The law says we are innocent until proven guilty, but for us [persons living with HIV/AIDS], we’re guilty until our status is proven innocent.”

Another narrative came from Anna – a pseudonym to protect her – a 37-year-old Black trans woman from Cleveland who was arrested for solicitation by an undercover detective. During the arrest, she confirmed her status of living with HIV.

“They asked me, was I HIV positive? I told them, ‘yeah,’” Anna said. “And next thing I know, they just blew it all out of proportion. Transgender woman, HIV positive, soliciting. They was trying to give me five years in prison.”

Anna took a plea deal, was sentenced to 18 months in a men’s prison – without access to gender-affirming care – and had to register as a sex offender, a consequence of Ohio’s laws that does not exist as a penalty in other states.

A part of her plea deal included making a mandated statement about her HIV status to the media.

“I [felt] like I was nobody. I mean, it’s like they made a debacle out of me,” Anna said. “Could you imagine walking out the courtroom and there’s cameras everywhere?”

The third narrative came from Kelley, a 46-year-old woman in Warren living with HIV. Kelley was was arrested and charged with felonious assault after her ex fiance claimed that she did not disclose her HIV status to him, which she states is untrue.

Kelley served five years of an eight year prison sentence.

“To this day, I still don’t understand why this is felonious assault,” Kelley said.

The hope for new legislation

Two bills were introduced in the Statehouse in late 2024 by then-Rep. Sara Carruthers (R-Hamilton) to bring the six laws more in line with modern science and research.

Although neither bill advanced beyond an initial November hearing, advocates are hoping future legislation is introduced to accomplish the same science-based approach.

“Spread the word about these narratives and contact your representatives,” the OHMM’s Reilly said. “The more that lawmakers hear from their constituents, the more that they will see that there is a want, a need and a desire to modernize these laws.”

At the very least, advocates hope the updated report educates more Ohioans and inspires strong emotion. In his other role as outreach and testing manager at Caracole – the Cincinnati-based AIDS-service organization – Reilly said he regularly speaks with clients who don’t know about the six laws, including those who are living with HIV.

“I have never had an experience of someone saying, ‘These laws sound like a good idea,’” Reilly said. “Maybe if people know more about the laws, they will become enraged and something can change.”

IGNITE ACTION

Read the updated report “The Enforcement of HIV Criminalization in Ohio” by going here.
To access The Buckeye Flame’s full 2025-2026 Guide to Ohio’s LGBTQ+ Legislation, click here.

Mexico: Legislative progress expected on HIV decriminalisation bill in the State of Mexico

Repeal of the offence of ‘Danger of contagion’ is still pending in the legislature

The repeal of the offence of risk of transmission in the state territory is still pending on the local legislative agenda, said the president of the Network of Diverse Defenders of the State of Mexico, Jorge Leonardo Espinoza López.

The activist recalled that last year, in the framework of the International Day of the Fight Against AIDS, the deputy Luisa Esmeralda Navarro Hernández, Meme Nava, presented to the local Legislature a bill to reform section V of article 238 and repeal the second paragraph of article 241 and article 252 of the Penal Code of the State of Mexico, related to the risk of contagion, which is the criminalisation or criminalisation of people living with HIV who, by omission or action, transmit the virus to another person.

They argue that people are stigmatised

Espinoza López said that several sexual diversity associations in the state are seeking the repeal of this article of the State of Mexico Penal Code, as it stigmatises people living with this condition ‘it inhibits people from wanting to be diagnosed because they will be criminalised, even stigmatised by their partner or family’.

The president of the Network of Diverse Defenders of the State of Mexico suggests that once the crime of danger of contagion has been repealed, it will be possible to improve sex education and more and more people from diverse communities will approach health services.

Espinoza López mentioned that the initiative presented by Meme Nava is already being analysed by the respective parliamentary commissions, so they hope that the issue can progress this legislative year, and that the crime of danger of contagion will soon be annulled, as happened in Mexico City in 2024.

There is a willingness to abort the issue of repealing the crime of ‘danger of contagion’.

He recognised that the legislators of the State of Mexico have shown a willingness to address this issue, and therefore said he was confident that, as in the previous legislature, the demands of the diversity community would be heard on issues that have been in dispute for many years.

Finally, Espinoza López said that in addition to the issue of repealing the crime of danger of contagion, there are other pending issues such as the recognition of trans children and adolescents, the recognition of non-binary people, the creation of a specialised prosecutor’s office to attend to people of sexual diversity and the trans labour quota.

US: Lawmakers approve bill to reform HIV transmission laws in Maryland

Bills to repeal ‘antiquated’ law criminalizing transfer of HIV sail through House, Senate

Repeal supporters call current law discriminatory and ineffective at stopping spread of HIV.

Legislation that would remove a criminal penalty for intentionally transferring HIV to another person sailed through both the House and Senate chambers this week, garnering bipartisan support in the process.

That might be a surprise to some. In fact, Sen. Will Smith (D-Montgomery), who chairs the Judicial Proceedings Committee, said he was skeptical of the legislation when it first came to his committee last year. He ended up sponsoring the Senate version this year.

“I’ve had reservations on it. I, frankly, was not comfortable with it initially, and that’s because I didn’t understand the scope of how things are actually playing out,” Smith said Tuesday, after the Senate passed Senate Bill 356.

Smith and other supporters say the current law is counterproductive, antiquated and discriminatory. Repealing it would not only help destigmatize those living with HIV, the virus that causes AIDS, but could actually help improve public health, they say.

“The law was, for right or wrong, thought to help curb the transmission of HIV,” said Del. Kris Fair (D-Frederick), who sponsored House Bill 39. “What public health experts and criminal justice organizations have taught us … is that we’ve actually seen the exact opposite.”

The Senate passed its version of the bill 33-11 on Tuesday, picking up two Republican votes. The House version passed 100-36 on Thursday, also picking up a couple Republican votes. One of the bills must still be passed by the other chamber before it can be sent to the governor for his signature, but with each chamber already passing a bill, the legislation is in good shape.

Since 1989, during the height of the AIDS crisis, Maryland has said that “an individual who has the human immunodeficiency virus may not knowingly transfer or attempt to transfer the human immunodeficiency virus to another individual.” A violation is a misdemeanor, punishable by a fine up to $2,500 or up to three years in prison.

Fair says the law actually hinders public health efforts, “causing people not to get tested, to stigmatize people living with HIV, criminalized otherwise rather innocuous behavior … that would have nothing to do with the transmission or potential transmission of HIV.”

Currently, people living with HIV “walk around on a day-to-day basis with this weird Sword of Damocles hanging over their heads. This code basically dictates their day-to-day lives,” Fair said.

“Because of the way that it’s written, because of the way it’s interpreted and because of the way it’s used by law enforcement and by the criminal justice system, innocuous day-to-day interactions that could be physical in nature or not, suddenly get applied to this code,” he said.

Fair said that the charge can be misused. He said that there have been situations where people with HIV have been charged after spitting on or biting someone, even though HIV does not spread through saliva. He also said that people can weaponize the law.

“A few examples include relationships that have soured – two consenting individuals were in a consensual sexual relationship,” he said. “But they had some kind of falling out, and then one person goes and files charges against their former partner because they’re mad at them … they’re stuck having this criminal charge levied against them.”

According to a report from the Williams Institute, there have only been 148 HIV-related charges in Maryland from 2000-2020, when the first HIV-related charge was issued in Maryland to the most recent charge as of 2024. The Williams Institute reports that more than 80% of the cases in that timeframe were dropped.

“It’s such an ineffective and misused tool,” Fair said. Despite that, efforts to repeal the law have been more than a decade in the making. Del. Shirley Nathan-Pulliam (D-Baltimore City and Baltimore County) introduced the first version of the bill in 2013.

“As a nurse, she recognized the way that this kind of criminalization of the day-to-day lives of Marylanders further stigmatizes the issue around HIV and actually frustrated public health efforts to reduce the transmission,” Fair said.

Fair took up the effort in 2023, when it passed the House for thei first time, but did not move in the Senate.

When the bill came up last year, Smith let it die in his committee.

“I was uncomfortable with it,” he said. “This was just not high up on the ledger. So I didn’t move on it.”

A year later, Smith is on board with the legislation and agreed to sponsor it because he believes the current law is “very discriminatory.”

“No other communicable disease was pulled out separately,” he said of the law that he said was “skewed towards, frankly, Black men.”

He also added that there are other charges, such as reckless endangerment, that are more appropriate to use in the case of someone maliciously spreading HIV.

“For me it was a way to say, ‘We can get rid of this antiquated thing that was really created for discriminatory practice,’ and also treat all of these dangerous communicable disease the same way,” Smith said.

US: Lawmakers support bill to update HIV transmission charges in North Dakota

North Dakota House votes to repeal ‘discriminatory’ HIV law

With a 50-43 vote, the House passed a bill to downgrade the crime of intentional HIV transmission from a felony to a misdemeanor, aligning the charge with other intentional disease transmission.

The criminal charge associated with knowingly infecting someone with HIV could change in North Dakota after lawmakers voted Wednesday, Feb. 19, to downgrade the crime from a felony charge to a misdemeanor.

According to state law, HIV is the only infectious disease that carries a felony charge if it is knowingly transmitted to another person.

Those found guilty of doing so face 20 years in prison and a $20,000 fine, while knowingly infecting someone with any other sexually transmitted disease is punishable by a fine up to $1,000.

House Bill 1217 would move the penalty for spreading HIV to the same misdemeanor class as other sexually transmitted diseases.

Bill sponsor Gretchen Dobervich, D-Fargo, said in a House Human Services hearing on the bill that the existing law, which was enacted in the 1980s, is discriminatory against people with HIV.

Dobervich added that in 35 years of the law being in effect, no one has been prosecuted.

“There has been a lot of discussion on this bill, and one of the things that keeps coming up is that HIV can be terminal. And it can — so can a lot of other infectious diseases,” she said. “This bill reflects the tremendous body of evidence that modernizing HIV laws decreases the risk of HIV, as people who are at risk of HIV are more likely to seek testing.”

There was no further discussion on the House floor before lawmakers passed the bill with a 50-43 vote, sending it to the Senate for consideration.

The state Department of Health and Human Services, American Civil Liberties Union and representatives of two health care clinics voiced support for the bill in its hearing. There was no opposing testimony.

Mexico: Criminalisation of HIV in Tamaulipas has a negative impact on public health

Danger of contagion: Tamaulipas criminalizes people with HIV

Translated with Deepl.com – Scroll down for original article in Spanish

The offence that penalises HIV carriers who have sexual contact with others is still in force. Morena has not supported the initiative to repeal it presented by deputy Magaly Deandar.

Tamaulipas criminalises and stigmatises people with HIV or any other disease considered ‘contagious’, ‘incurable’ or a ‘bad gene’. The offence of risk of transmission, a measure that punishes the risk of spreading a virus with imprisonment, is still in force.

The Penal Code of Tamaulipas maintains this offence with penalties ranging from six months to three years in prison. In twenty-five other states in Mexico, the penalties include the impediment to marry, denial of custody of one’s children and financial fines.

State law stipulates that a person who knowingly carries a venereal disease or HIV in an infectious period and who puts another person at risk of infection through sexual relations commits the offence of danger of contagion. In the case of spouses or cohabiting partners, the offence only proceeds if the offended party files a complaint.

In particular, article 203 of the Penal Code of Tamaulipas punishes HIV carriers. In a large part of the country, the ‘danger of contagion’ sanctions other sexually transmitted diseases.

Criminalisation encourages discrimination

According to the Mexican Network of Organisations against the Criminalisation of HIV, the criminalisation of the ‘risk of HIV transmission’ or similar concepts that appear in the legislation of the federal states generate more harm than benefits in terms of impact on public health.

This criminalisation undermines respect for and guarantees of human rights by promoting fear, stigma and discrimination, reinforcing the idea that people living with HIV or AIDS are criminals, dangerous and immoral.

The organisation points to the criminalisation of HIV patients, turning carriers into both victim and perpetrator. Focusing efforts on judging and punishing rather than promoting the prevention of contagion.

Tamaulipas seeks to decriminalise the danger of contagion

In 2022, deputy Magaly Deandar Robinson presented an initiative to repeal Article 203 in the Tamaulipas Congress. The Morenista argued that this measure violates human rights rather than recognising the institutional vacuum on the part of the public health service.

‘More than a question of laws, it is a question of human rights. That is how it should be for everyone,’ the legislator for Reynosa explained in an interview for Elefante Blanco,

Despite international recommendations from organisations such as the United Nations (UN), this proposal was rejected by the Morena majority. However, Deandar Robinson emphasised, the state congress could take it up for a second time in the next three months.

Magaly Deandar recognised that although this illicit act sought to stop the HIV pandemic, it ended up criminalising and making it difficult for people and carriers to approach specialised care centres.

‘It is the perfect time to reactivate the government to carry out HIV prevention tasks,’ she added.

In 2024, Mexico City, Nayarit, Jalisco, Aguascalientes, San Luis Potosí and Tabasco removed the danger of contagion from their penal codes.

Peligro de contagio: Tamaulipas criminaliza a personas con VIH

El delito que sanciona a las personas portadoras de VIH que tienen contacto sexual con otras sigue vigente. Morena no ha acompañado la iniciativa para derogarlo presentada por la diputada Magaly Deandar.

Tamaulipas criminaliza y estigmatiza a personas con VIH o alguna otra enfermedad considerada «contagiosa», «incurable» o un «mal venero». El delito de peligro de contagio, medida que castiga con cárcel el riesgo de propagación de un virus, sigue vigente.

El Código Penal de Tamaulipas mantiene este ilícito con penas que van de los seis meses a tres años de prisión. En otros veinticinco estados de México, las penas incluyen el impedimento para casarse, negar la custodia de sus hijos y multas económicas.

La ley estatal estipula que comete peligro de contagio la persona con conocimiento de ser portador de un mal venéreo o VIH en periodo infectante y que pone en riesgo de contagio a otra mediante relaciones sexuales. En el caso de cónyuges o concubinos, el delito procede únicamente si él o la agraviada lo denuncia.

De manera particular, el articulo 203 del Código Penal de Tamaulipas castiga a portadores de VIH. En gran parte del territorio nacional, el “peligro de contagio” sanciona otras enfermedades de transmisión sexual.

Criminalización fomenta la discriminación

De acuerdo con la Red Mexicana de Organizaciones contra la Criminalización del VIH, la penalización del “riesgo de contagio del VIH” o figuras análogas que aparezcan en las legislaciones de las entidades federativas generan más daños que beneficios en términos de impacto en la salud pública.

Esta penalización atenta contra el respeto y garantía de los derechos humanos al promover el miedo, el estigma y la discriminación, fortaleciendo la idea de que quien vive con VIH o SIDA es criminal, peligroso e inmoral.

Dicha organización señala la criminalización de la que son víctimas los pacientes con VIH al convertir al portador en víctima y victimario. Centrando los esfuerzos en juzgar y castigar en lugar de fomentar la prevención del contagio.

Tamaulipas busca despenalizar el peligro de contagio

En 2022, la diputada Magaly Deandar Robinson presentó una iniciativa para derogar dicho el artículo 203 en el Congreso de Tamaulipas. La morenista argumentó que esta medida vulnera los derechos humanos antes que reconocer el vacío institucional por parte del servicio de salud publica.

“Más que un tema de leyes, es un tema de derechos humanos. Así debería de ser para todos”, explicó la legisladora por Reynosa en entrevista para Elefante Blanco,

Pese a las recomendaciones internacionales por organismos como la Organización de las Naciones Unidas (ONU), esta propuesta fue rechazada por la mayoría de Morena. Sin embargo, enfatizó Deandar Robinson, el Congreso estatal podría retomarla por segunda ocasión en los próximos tres meses.

Magaly Deandar reconoció que aunque esta ilícito buscó frenar la pandemia por VIH, terminó por criminalizar y dificultar el acercamiento de las personas y portadores a los centro de atención especializados.

“Es el tiempo perfecto para reactivar al gobierno para realizar tareas de prevención contra el VIH”, agregó.

En 2024, Ciudad de México, Nayarit, Jalisco, Aguascalientes, San Luis Potosí y Tabasco retiraron el peligro de contagio de sus códigos penales.

US: Senator introduces bill to decriminalise HIV in Pennsylvania

Pennsylvania bill calls for decriminalization of HIV

HARRISBURG, Pa. (WTAJ) — A member of the Senate announced plans to introduce legislation that would decriminalize HIV in the Commonwealth.

The bill, authored by Senator Vincent Hughes (D – Montgomery, Philadelphia), would end criminal penalties based on someone having the HIV virus. Hughes argued that in Pennsylvania, people living with HIV have been prosecuted under laws for conduct that would not be seen as a crime because of the virus.

The Centers for Disease Control and Prevention (CDC) published information regarding risk factors involved with HIV transmission, which worked to dispel the myth that HIV can be transmitted through saliva. Hughes noted that the CDC’s work shows that activities like oral sex or spitting present a low or negligible risk of HIV transmission.

Within the published works, the CDC also noted that condoms and pre-exposure prophylaxis (PrEP) are effective in preventing the transmission of HIV.

In Pennsylvania prostitution is typically a misdemeanor, however, people living with HIV who are charged can face felonies as well, even if the transmission would not be possible because either no physical contact occurred or the nature of the contact was not a method of transmission. Criminalization laws for HIV do not reflect the science around prevention, transmission and treatment but instead stigmatize people living with the virus, Hughes noted in his legislation.

The Commonwealth could also face legal challenges if laws on discrimination, with Hughes noting that in 2023 the Department of Justice issued findings that Tennessee is violating the Americans with Disabilities Act by enforcing its aggravated prostitution law.

In 2023, a presumed 36,302 Pennsylvania residents were living with HIV. The overall HIV rate in the Commonwealth in 2022 was 7.2 per 100,000 population, with counties like Berks, Dauphin, Delaware, Lackawanna, Lehigh and Philadelphia seeing an increase. Philadelphia was noted to have the highest rate of 25 per 100,000 population.

From 2018 through 2023, 49,620 men were recorded to have characteristics of HIV which led to a diagnosis, with women accounting for 15,979 diagnoses. There were 229 late diagnoses in 2023, however, over 600 people were diagnosed on time or early.

Australia: HIV advocates renew their call to the NSW Government to repeal the Mandatory Disease Testing Act

HIV organisations call for repeal of mandatory disease testing

HIV advocates and health experts have renewed their call to the NSW Government to immediately repeal the Mandatory Disease Testing Act 2021, following the release of the NSW Ombudsman’s report which brings into question the health benefits of the legislation for frontline workers.

The NSW Ombudsman report monitoring the operation and administration of the Mandatory Disease Testing Act 2021, tabled in Parliament on 5 February, found the Act does not have “clear and measurable benefits” for workers.

The report recommends the NSW Government consider whether the Act “should be continued at all”. The report also found that the Act is mostly being used in situations where there is no risk of blood-borne transmission to a frontline worker.

NSW Ombudsman Paul Miller said the evidence showed there was not effective.

“Our aim with the report is that it provides the platform for a clear-minded and evidence-based evaluation of the effectiveness of the scheme”.

“The MDT Act tries to balance important competing policy considerations,” said Mr Miller. “The scheme aims to enable testing to be undertaken very quickly, so that the test results might allay the stress and anxiety the worker may be facing, or so that those results can be taken into account in a worker’s medical treatment. At the same time, the Act aims, as it must, to provide protections and procedural fairness to those being tested. It may be that these competing policy concerns are irreconcilable.”

“We did not observe clear and measurable benefits of the MDT scheme for workers. Given that lack of clarity, it is questionable whether the significant and complex legislative and administrative burden of the MDT scheme is warranted for such a small number of exposures,” Miller said.

ACON, Bobby Goldsmith Foundation, Positive Life NSW and the HIV/AIDS Legal Centre have always maintained that the Act is not grounded on evidence but on outdated misconceptions about how HIV and other blood-borne viruses are transmitted, which perpetuate stigma and discrimination.

The HIV organisations say that the laws do not reduce the risk of transmission. Treatments that prevent the transmission of HIV are readily available, and these treatments are prescribed by doctors who are trained in identifying potential risk.

The Ombudsman also found that the Act is disproportionately targeting Aboriginal and Torres Strait Islander people, and the protections for those subject to a Mandatory Testing Order are ineffective.

The report adds that those making decisions about applying a Mandatory Testing Order are not in a position to make determinations and suggests that resources “currently applied to the scheme would be better directed toward providing better avenues of advice and support directly to frontline workers exposed to bodily fluids in the workplace”.

ACON CEO Michael Woodhouse said the report shows the legislation has no bennefit to frontline workers.

“The Ombudsman’s report shows that mandatory disease testing offers no benefit to frontline workers. It only serves to create unnecessary fear about HIV and other blood-borne viruses.

“In the unlikely event that a frontline worker is exposed to HIV, there are simple treatments available that will prevent transmission. These are more effective strategies than mandatory testing.

“NSW does not [support] ineffective laws that only promote fear and discrimination.” Woodhouse said.

HIV/AIDS Legal Centre Principal Solicitor Vikas Parwani also voiced support for the government to review the legislation.

“The Mandatory Disease Testing Act should be repealed in its entirety. Invasive procedures like blood tests, when performed without consent, are a serious infringement on bodily autonomy and human rights. Unsurprisingly, the report confirms that mandatory testing orders are being used in circumstances where there is virtually no risk of HIV transmission, and often, against marginalised communities with limited access to legal recourse.

“In addition, by perpetuating outdated myths about HIV transmission and further stigmatising people living with HIV, the scheme also undermines Australia’s world leading public health response.” Parwani said.

Positive Life NSW CEO Jane Costello also welcomed the report and urged the government to take action.

“Positive Life NSW and the community of people living with HIV that we represent, welcome the NSW Ombudsman’s report and its recommendation that the Mandatory Disease Testing Act should not be continued.

“The Act is unscientific, relies on an outdated understanding of HIV transmission and lacks an evidence base. Mandatory disease testing and the inherent misconceptions around the ways in which HIV can be transmitted perpetuate stigma and discrimination against all people living with HIV and must cease.” Costello said.

The Bobby Goldsmith Foundation’s CEO Nick Lawson said the laws should immediately be repealed.

“Bobby Goldsmith Foundation strongly supports the call for the immediate repeal of the Mandatory Disease Testing Act. This legislation not only lacks a foundation in contemporary scientific evidence but also disproportionately impacts Aboriginal and Torres Strait Islander communities.

“Alongside our sector partners, we believe it is crucial to focus on supporting the broader communities’ frontline workers so that their health and wellbeing are protected without perpetuating stigma and discrimination.” Lawson said.

“We remain steadfast in our commitment to promoting dignity, respect and inclusion for all people living with HIV.”

Similar legislation was introduced in Western Australia by both the Barnett Liberal and McGowan Laborgovernments similarly against the recommendations of experts in the field of HIV. There were suggestions in 2019 that WA’s mandatory disease testing laws were being overused.

Mexico: Initiative to repeal of HIV criminalisation article in Federal Criminal Code sent to Justice Commission

Proposal to remove the crime of “danger of contagion” from the Federal Penal Code

Translated from Spanish with Deepl.com. Scroll down for original article.

In order not to undermine human rights and avoid the discrimination faced by people living with HIV (Human Immunodeficiency Virus) and AIDS (Acquired Immune Deficiency Syndrome), Congresswoman Laura Hernández García (MC) proposed repealing article 199 bis of the Federal Criminal Code, which refers to the crime of ‘danger of contagion’.

The article to be repealed establishes that anyone who, knowing that he or she is ill with a venereal disease or other serious disease during an infectious period, endangers the health of another by sexual intercourse or any other transmissible means, will be punished with three days to three years in prison and up to forty days in fines.

In addition, if the disease is incurable, it will be punishable by six months to five years in prison, and in the case of spouses, concubines or common-law wives, it will only be possible to proceed by complaint of the offended party.

The initiative, sent to the Justice Commission, considers that this decriminalisation contributes to eliminating barriers that limit the prevention and timely detection of the virus. It also strengthens public policy measures that contribute to combating the HIV pandemic within the framework of public health.

It states that HIV is a public health and human rights problem that, as of 2023, affects 39.9 million people around the world, who, due to stigma and discrimination, see their human rights violated and face barriers to exercising their rights and accessing health services that allow them adequate treatment.

These barriers, it stressed, signify institutional violence, which is why it is necessary to repeal article 199 Bis of the Federal Criminal Code, as the crime of danger of contagion ‘cannot remain in force’.

It called for building a new perspective on HIV, AIDS and people living with the condition, with a culture based on information that promotes non-discrimination, equal treatment, prevention and testing.

It explains that of the 33 penal codes that operate in Mexico, 27 provide for the crime of danger of contagion, which is often used against people with HIV, so this proposal is a first step to repeal it in the states where it still exists.

It points out that punitivism and criminalisation have different consequences for people living with HIV, such as loss of employment or housing, being forced to live in isolation from their families and society, as well as being subjected to physical violence.

It places HIV-positive people – especially women – at greater risk of violence and abuse, and ignores the reality that some may lack the capacity to disclose their HIV status or may not be able to negotiate condom use with their partner.

It adds that such criminalisation restricts the institutional public health response to HIV, as it results in fewer people attending health services for testing to avoid being exposed, diagnosed or punished, which does not help them, if necessary, to start treatment or share their diagnosis.

The disease affects not only those living with the virus, but also their families and those in their social environment. This is why there must be no criminal offence that violates their human rights and their access to health services.

The perspective of the response to the virus must focus on public health, not punitivism, the proposal emphasises.

Con el propósito de no socavar los derechos humanos y evitar la discriminación que enfrentan las personas que viven con VIH (Virus de Inmunodeficiencia Humana) y Sida (Síndrome de Inmunodeficiencia Adquirida), la diputada Laura Hernández García (MC) planteó derogar el artículo 199 bis del Código Penal Federal, que se refiere al delito de “peligro de contagio”.

El artículo que se pretende derogar establece que el que a sabiendas de que está enfermo de un mal venéreo u otra enfermedad grave en período infectante, ponga en peligro de contagio la salud de otro, por relaciones sexuales u otro medio transmisible, será sancionado de tres días a tres años de prisión y hasta cuarenta días de multa.

Además, si la enfermedad fuera incurable será de seis meses a cinco años de prisión, y cuando se trate de cónyuges, concubinarios o concubinas, sólo podrá procederse por querella del ofendido.

La iniciativa, enviada a la Comisión de Justicia, considera que esta descriminalización contribuye a eliminar barreras que limitan la prevención y detección oportuna del virus. Además, fortalece las medidas de política pública que abonan al combate de la pandemia del VIH en el marco de la salud pública.

Expresa que el VIH constituye un problema de salud pública y de derechos humanos que, a 2023, afectaba a 39.9 millones de personas alrededor del mundo, y quienes, debido al estigma y discriminación, ven violentados sus derechos humanos y enfrentan barreras para ejercer sus derechos y acceder a servicios de salud que les permitan un tratamiento adecuado.

Esas barreras, destaca, significan violencia institucional, por lo que es necesario derogar el artículo 199 Bis del Código Penal Federal, pues el delito por peligro de contagio “no puede seguir vigente”.

Se pronunció por construir una nueva perspectiva en torno al VIH, el Sida y las personas que viven con esta condición, con una cultura basada en la información que fomente la no discriminación, el trato igualitario, la prevención y la realización de pruebas.

Explica que de los 33 códigos penales que operan en México, 27 prevén el delito de peligro de contagio, que suele usarse contra personas con VIH, por lo que esta propuesta es un primer paso para que se derogue en los estados donde aún existe.

Refiere que el punitivismo y la criminalización tienen diferentes consecuencias para las personas que viven con VIH, como la pérdida del empleo o la vivienda, que se les orille a vivir aisladas de sus familias y de la sociedad, así como ser objeto de violencia física.

Coloca a las personas seropositivas –en especial a las mujeres– en una situación de mayor riesgo de violencia y abusos, e ignora la realidad de que es posible que algunas carezcan de la capacidad para revelar su estado serológico o no están en condiciones de negociar con su pareja el uso de preservativo.

Agrega que esa criminalización restringe la respuesta institucional al VIH en materia de salud pública, pues provoca que menos personas acudan a servicios de salud a realizarse pruebas de detección para evitar ser visibilizadas, diagnosticadas o castigadas, lo cual no ayuda a que, en caso necesario, inicien el tratamiento o compartan su diagnóstico.

La enfermedad no sólo afecta a quien vive con el virus; también a sus familias y a quienes forman parte de su entorno social. Por eso es necesario que no exista ninguna figura penal que vulnere sus derechos humanos y su acceso a servicios de salud.

La perspectiva de la respuesta al virus debe enfocarse en la salud pública, no en el punitivismo, enfatiza.