Kenya: Attorney General urges the Court to dismiss petition challenging the constitutionality of HIV criminalisation statute

AG opposes suit seeking to decriminalise deliberate HIV transmission

The law says any person who deliberately infects another with life threatening STD is guilty of an offence.

Attorney-General Paul Kihara Kariuki wants the High Court to dismiss a petition that seeks to decriminalise deliberate transmission of HIV or any other life-threatening sexually transmitted disease.

He says the petition filed by six people living with HIV/Aids lacks merit since the law that is being challenged, Section 26 of the Sexual Offences Act, is necessary to curb the spread of the disease.

“In examining the purpose, effect, historical background behind the enactment of the disputed law, and the intention of the legislature, we urge the court to take judicial notice of the fact that Kenya and in general Africa, continues to be ravaged by the scourge despite the scientific gains that have been made towards reducing the mortality rate,” states the AG.

“By passing the disputed law the Legislature was not acting in a vacuum but responding to a situation in which the State needed to intervene”.

The law says any person who deliberately and intentionally infects another with HIV or any other life threatening sexually transmitted disease is guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than 15 years but which may be enhanced for life.

It also allows the taking and storage of samples, such as blood and urine, from those accused of spreading life threatening sexually transmitted diseases until the finalisation of the criminal case.

The said law also provides that any person who hinders or obstructs the taking of an appropriate samples from the accused is guilty of an offence of obstructing the cause of justice.

Upon conviction, such a person is liable to imprisonment for a term of not less than five years or to a fine of at least Sh50,000

The petitioners argue that the law creates criminal sanctions and punishes persons living with HIV and is thus unconstitutional for violating their rights, such as the right to freedom from discrimination.

Criminal sanctions are not of any use in the reduction of transmission of HIV and are wholly inappropriate where a person does not know he or she is HIV positive or does not understand how HIV is transmitted. Laws such as Section 26 of the Sexual Offences Act merely increases stigma and discrimination of people living with HIV and makes it less likely that they will pursue health affirming behaviour,” state the petitioners.

They also argue that the law limits the right of people living with HIV to consensually start a family with any person of their choice who is not infected with the virus. They said the law is being used to harm persons living with HIV.

Section 26 fails to consider the scientific gains made in the fight against HIV, where there are treatments that suppress the viral load of an infected person to the extent of rendering the chances of transmission to be extremely low or all together nonexistent,” they argue.

But the AG argues that the rights of persons living or affected by HIV are not absolute and that this must be weighed and interpreted with limitations provided under the Constitution.

Mr Kihara says the disputed section of the law only prohibits deliberate transmission of HIV and does not create an obligation to persons who suffer from HIV/Aids to disclose their status to their sexual partners, thereby maintaining their right to privacy.

He states that the law was enacted to protect the vulnerable population of young girls and women.

A declaration of unconstitutionality of the impugned law will undermine public health goals and create a legal vacuum in enforcement of laws protecting persons from deliberate HIV transmission. In light of such legal vacuum, the general public and more particularly the vulnerable population stands to suffer irreparable loss,” says the AG.

We humbly call on this court to breathe life into Section 26 of the Sexual Offences Act and not to stifle the intention of the law maker.

While referring to data from the National Aids Control Council (an Interested Party in the case), state counsel Gracie Mutindi told the court that 21,000 Kenyans (4,333 children and 16,664 adults) die of HIV related causes every year.

It is her position that the disputed law neither constitutes discrimination against people living with HIV simply due to their health status nor does it violate a patient’s right to privacy. Furthermore, the right to privacy is not absolute.

She also denied the petitioners’ allegations that the disputed law violates their right to dignity, freedom from cruel, inhuman and degrading treatment by the manner in which it authorises the taking of blood, urine or tissue samples from persons suspected to have infected another with HIV or any other life threatening sexually transmitted disease.

The taking of blood, urine or any other medical or forensic evidence as provided is not done for sadistic pleasure. It is rather aimed at ensuring that all material is availed to enable the court reach a just determination,” states Ms Mutindi

She contends that the right to privacy cannot be used as a tool for circumventing a just legal process intended to prove an offence. The case will be mentioned on February 10.

By Joseph Wangui

[Update]US: New Jersey Governor signs new law repealing old HIV criminalisation statute

New Jersey Repeals Outdated HIV Crime Laws and Fights Stigma

The new law “is a step in the right direction toward reforming the system” regarding HIV and STI prosecutions in New Jersey.

In January, New Jersey Governor Phil Murphy signed legislation that decriminalizes sexual activity by people living with HIV or a sexually transmitted infection (STI) in specific instances. What’s more, the law tackles HIV stigma because it requires that whenever a person is prosecuted under appropriate circumstances, the names of both the accused and the accuser be kept confidential.

The summary of the legislation—S3707/A5673—reads: “Repeals statute criminalizing sexual penetration while infected with venereal disease or HIV under certain circumstances; requires that in prosecutions for endangering another by creating substantial risk of transmitting infectious disease, name of defendant and other person be kept confidential.”

The legislation’s primary sponsors included Senators Joe Vitale (D–Middlesex) and M. Teresa Ruiz (D–Essex) and Assembly Members Valerie Vainieri Huttle and Joann Downey, according to a press release from Governor Murphy.

“Unfortunately, over the years, there has been a culture of criminally targeting HIV-positive individuals in general, rather than targeting those who intentionally expose others. The criminal code is meant to punish actions that harm others, not discriminate against people living with a chronic health condition,” Senator Ruiz said in the press release. “Signing this piece of legislation into law is a step in the right direction toward reforming the system.”

HIV criminalization refers to the use of laws to target people who have HIV—notably African-AmericanLatino and LGBTQ populations—and punishing them because of their HIV status, not because of their actions. Under outdated laws, people with HIV can be sentenced to prison in cases where HIV was not transmitted, simply for allegedly not disclosing their status.

Of note, repealing HIV laws does not mean that people can’t be held accountable for intentionally transmitting HIV. Other laws may apply to the situation.

“Hyacinth AIDS Foundation applauds Governor Murphy signing S3707/A-5673, which would repeal New Jersey specific HIV criminalization statute. New Jersey’s HIV criminal law was based on stigma and fear, rather than modern science,” Axel Torres Marrero, Hyacinth’s senior director of public policy and prevention, said in the press release. “In 2022 it no longer reflects the current science of treatment and transmission of HIV. Today we recognize that no one should be singled out and punished solely on the basis of their HIV status. Taken together with the attorney general’s recent guidance that only a clear, successful intent to do harm should be punished, today New Jersey acknowledges that health care policy and the fight to end the AIDS epidemic must be anchored in the updated science of treatment and transmission of HIV.”

Marrero was referring to HIV-related guidance issued in October by Andrew Buck, who was the acting attorney general at the time. When deciding whether to charge someone under the state’s HIV crime laws, Buck directed prosecutors to consider three factors:

  • Whether the individual forced or coerced their partner to engage in sexual activity;
  • Whether the individual engaged in sexual activity for the purpose of transmitting HIV to their partner; and/or
  • Whether the individual was adhering to a medically appropriate HIV treatment plan at the time of the sexual activity.

“It is virtually impossible,” the guidance states, “to imagine a scenario where it would be appropriate for a prosecutor to charge an individual…when that person’s HIV viral load was undetectable at the time of the sexual activity and no aggravating factors existed.”

One of the goals of the new HIV law and the guidance is to base possible prosecutions on updated science, notably that people with HIV who take meds and maintain an undetectable viral load do not transmit HIV sexually, a fact referred to as Undetectable Equals Untransmittable, or U=U.

Another goal is to fight HIV stigma and encourage testing and treatment. “For decades, the HIV epidemic has had devastating effects on New Jersey, particularly in our LGBTQ+ communities and communities of color,” the governor said in the press release“Repealing the outdated law will eliminate the stigma and fear associated with testing for HIV and other sexually transmitted infections, encouraging more individuals to be proactive in learning about their health. This new law, coupled with advances in modern science and medicine, will bolster our efforts to end the HIV/AIDS epidemic in New Jersey.”

In related news, New Jersey also passed a series of harm reduction laws. One allows more syringe exchanges to open; another makes it legal to possess a syringe; and a third creates a review panel to study overdoses.

New Jersey isn’t the only state to decriminalize HIV. Last year, Illinois became the second state to repeal its discriminatory HIV laws (California did so in 2017). And lawmakers in Missouri, Nevada and Virginia have reformed similar laws. For more, see “Breaking HIV Laws: A Roundup of Efforts to Decriminalize HIV.”


Published in Insider NJ on 11/01/2022

Legislation to modernise criminalisation law passed by New Jersey Senate

Senate Passes Vitale-Ruiz Bill to Modernize NJ Statutes Related to HIV/AIDS Transmission

Trenton – In an effort to modernize New Jersey’s statutes related to the transmission of HIV/AIDS and reduce the stigma suffered by individuals living with HIV/AIDS and other sexually transmitted infections (STI), legislation sponsored by Senators Joe Vitale and M. Teresa Ruiz that would eliminate crimes that are solely applicable to individuals living with HIV/AIDS and STIs was passed by the Senate.

The bill, S-3707, would repeal current statutes that make it a crime for a person to commit an act of sexual penetration under certain circumstances while knowing that he or she is infected with a venereal disease, HIV, or AIDS. The bill maintains and updates the provisions of the statute that criminalizes endangering another person, therefore maintaining an avenue for prosecution in appropriate cases involving the transmission of non-airborne infectious or communicable diseases, without specifically targeting individuals living with HIV/AIDs and sexually transmitted infections.

“While working with advocates to identify areas to improve our harm reduction system of care, they identified updating these statutes to reflect what we now know about the transmission of certain diseases, especially in light in the advances in treatment, as a huge priority,” said Senator Joe Vitale (D- Middlesex). “The current law serves only to criminalize some of our most vulnerable populations, primarily those with HIV, dismissing what we know about the treatment of HIV and how it is and can be transmitted. I am thankful to the advocates who brought this issue to our attention, not only for leading the way on solid public health policy, but also in serving those in need in New Jersey.”

The current laws in place target individuals based on their HIV/AIDS status, rather than their actions. They disproportionately impact certain communities that are more likely to be living with the virus including members of the LGBTQ+ community, Black and Latinx people and transgender women. The new legislation will work to remove the negative stigma and criminalization that these communities and others currently face.

“This legislation is a step in the right direction of inclusivity and removing the stigmatization that surrounds individuals living with HIV. Over the years, there has been criminalization targeting HIV-positive individuals, rather than those who are intentionally harming others,” said Senator Ruiz (D-Essex). “The criminal code is meant to punish actions that harm others, not discriminate against people living with a chronic health condition.”

The bill passed the Senate by a vote of (25-11).

US: Indiana Criminal Code Committee to hear bill removing sentencing enhancements for battery and malicious mischief related to HIV

House Courts and Criminal Code Committee to hear sentencing bills

A trio of Republican Indiana House bills will be heard before the Courts and Criminal Code Committee on Monday, including two pieces of legislation focused on sentencing.

One of the bill regarding sentencing is House Bill 1032.

Authored by Rep. Sean Eberhart, R-Shelbyville, HB 1032 would remove sentencing enhancements for battery and malicious mischief that relate to the human immunodeficient virus, or HIV.  The bill would also repeal offenses concerning the donation, sale or transfer of blood or semen that contains HIV.

In the bill’s fiscal note, LSA states that any reduction in the Department of Correction’s population due to the bill would be minor and that it found no convictions or sentences since 2014 for felonies involving the transmission of HIV.

US: Washington State decriminalises HIV exposure and removes stigmatising language in state law

Failing to share HIV status downgraded from felony to misdemeanor in Washington

The Washington State Board of Health this week adopted new rules to decriminalize HIV exposure, remove stigmatizing language in state law and end legal discrimination against people living with HIV.

Previously, state law criminalized HIV exposure; a person living with HIV could be prosecuted for not disclosing their status to a sexual partner and could serve jail time. HIV is no longer in the criminal code in Washington state, and nondisclosure could result in a misdemeanor instead of a felony.

The board was tasked with rewriting the rules after legislation passed in 2020 directing them to work in consultation with state agencies and community stakeholders.

Dr. Bob Lutz, who serves on the State Board of Health, said the process involved consulting with local health jurisdictions, the Department of Corrections and the Department of Labor & Industries. Last October, the proposed revisions were opened for formal public comment, and after hearings and more meetings in late 2021, the board held a final hearing and vote Wednesday to adopt changes .

The updated state law will also include new language to reflect that it’s possible for a person to employ “practical means to prevent transmission,” such as modern HIV treatment that can eliminate the virus to the point of being undetectable, and prevention methods for not transmitting sexually transmitted infections, like condoms.

Dale Briese, an HIV advocate in Spokane and peer navigator, said the new rules are a step forward.

Briese, along with other advocates and community leaders, met with Board of Health staff several times in the past two years to get to the language in the rule presented to the board on Wednesday.

“I am comforted that these rules initiate for the first time the public health model for citizens that are in medical care, and are acting out of ‘good faith’ that they will have less potential legal ramifications,” Briese wrote in his prepared testimony.

Advocates who commented on the legislation also noted that there is still work to be done, especially to clarify how the law impacts community members living with HIV who have reached the point in their treatment where the virus is undetectable. It’s not clear in the new language whether these people would need to disclose their HIV status, despite the fact that they would be incapable of spreading it.

Even still, all three people who commented on the specific rule change applauded the efforts of the board and the state.

There were many more public comments during the hearing on the new rule, but they were primarily from people who thought the state was amending state law that pertains to quarantine orders, as well as people who wanted to comment on vaccine mandates for children.

Before the Board’s Wednesday meeting, misinformation spreading on social media led some people to believe that the board was considering mandatory quarantine “camps.” Board members clarified early during the hearing that their scope of work applied to the HIV-related language in the state’s public health law.

Since 2003, Washington state law has allowed public health officers to enforce quarantine orders if they are not voluntarily followed, and a superior court can be involved in this process. The board’s rulemaking on Wednesday did not change or alter the health officer’s ability to enforce quarantines, however. The board followed specific guidance from the Legislature, making changes only pertaining to how people living with HIV are treated by public health officials and other entities.

“Most counties have developed voluntary (quarantine centers), so people don’t infect their roommates or family,” Board Chairman Keith Grellner said on Wednesday.

“There are certainly lots of examples of those, but I am not aware of any mandatory quarantine or isolation center.”

Dr. Tao Sheng Kwan-Gett, the chief science officer at the Department of Health, said it was ironic that the intent of the rule and legislation were to remove stigma and initiate the healing process after past inequities in the HIV community brought on by this law, but that many people had used the meeting as an opportunity to spread division instead.

“I feel bad that the misinformation distracted from the intent of this,” he said.

He added that he was proud of the department and board for working closely with the community impacted to bring about the changes.

By Arielle Dreher

US: Congressmember Barbara Lee files bill to initiate review of federal laws to end stigma and discrimination based on HIV status

Lee introduces bill to end bias based on HIV status

Oakland Congressmember Barbara Lee took the occasion of World AIDS Day to introduce a bill that, if passed, would facilitate a review of federal and state laws to determine whether they add “unique or additional burdens upon people living with HIV.”

“This is an important bill to end the stigma and the terrible punitive consequences of people being penalized by having a virus,” Lee said.

Lee, a Democrat, spoke to the Bay Area Reporter late November 30. She said that she has been introducing this legislation for a decade.

“The first time was in 2011,” Lee said. “I was appointed to the United Nations Commission on HIV and the law in 2008, maybe, and we went around the world to look at laws criminalizing HIV-positive people. We had four to five roundtable meetings, and it dawned on me that I was the only American on the committee and I said ‘wait a minute, why not look at the United States?'”

Upon research, Lee said she found out “we were one of the bad actors.” Indeed, as of 2021, 35 states criminalize the behavior of people with HIV through HIV-specific laws, according to the U.S. Centers for Disease Control and Prevention. These include 14 states that criminalize behavior at low risk of transmitting HIV, such as biting or oral sex, and 14 states that have a maximum sentence length of over 10 years (or even life) even if people with HIV took measures to prevent transmission.

“The bill didn’t pass,” Lee said, but some of it was repurposed for technical assistance to states provided by the U.S. Department of Justice during the Obama administration.

At the time, under California law HIV-positive persons could be prosecuted and imprisoned for up to eight years for engaging in unprotected sexual intercourse with the intent to transmit HIV, even if no actual viral transmission occurred.

Lee said she approached state lawmakers to ask for any takers who’d want to change the law but didn’t find any until the 2016 election of gay state Senator Scott Wiener (D-San Francisco).

“I went and talked to many of the California legislators and I was with the Elizabeth Taylor AIDS Foundation, and I found nobody in the Legislature who would take it up till I talked to Scott,” Lee said. “He was very brave and bold. … It was incredible it took Scott that long, because many members thought it wasn’t important.”

Wiener’s Senate Bill 239, which requires proof that transmission of HIV did occur in order for a person to be prosecuted for intentionally transmitting the virus to a sex partner, passed and was signed by then-Governor Jerry Brown in 2017. It went into effect the following year.

Wiener told the B.A.R. December 1 that he is supportive of Lee’s federal legislation.

“Barbara Lee is an extraordinary leader in the fight to end discrimination against and criminalization of people living with HIV. I fully support her legislation and applaud her for taking this on,” he said.

Lee’s Repeal HIV Discrimination Act of 2022 states, “Not later than 90 days after the enactment of this act, the attorney general, the secretary of health and human services, the secretary of defense, and the director of the White House Office of National AIDS Policy, acting jointly, shall initiate — a review of federal laws, policies, regulations, and judicial precedents and decisions regarding criminal and related civil commitment cases involving people living with HIV/AIDS, including in regard to the Uniform Code of Military Justice; and an updated national review of state laws, policies, regulations, and judicial precedents and decisions regarding criminal and related civil commitment cases involving people living with HIV/AIDS.”

No more than 180 days later, a report of the review is to be published. This report is to contain judgments of whether laws, policies, regulations, and judicial precedents and decisions create undue or additional burdens on people living with HIV, and determine whether these are “public health-oriented” and “evidence-based.”

Finally, the law states “the designated officials shall develop and transmit to the president and the Congress, and make publicly available, such proposals as may be necessary to implement adjustments to federal laws, policies, or regulations, including to the Uniform Code of Military Justice, that reflect the reports and guidance required under this Act either through executive order or through changes to statutory law.”

However, “nothing in this act shall be construed to prohibit the prosecution of individuals who act with the specific intent to do harm to another person by transmitting HIV through means likely to result in actual transmission, and who in fact transmit HIV.”

Lee said she is confident this bill will become law if it can get through the Senate, which is split 50-50 between Democrats and Republicans. Vice President Kamala Harris serves as a tie-breaker.

“You know the politics of the Senate,” Lee said. Nevertheless, “I’m certain if we got it to the president’s desk, he’d sign it.”

Lee said she’s “cautiously optimistic” about the bill’s prospects in both houses of Congress because there has been some bipartisan cooperation on it. Representative Jenniffer González-Colón (R-Puerto Rico), co-chair of the Congressional HIV/AIDS caucus, was the lead co-sponsor. (González-Colón is a non-voting member of Congress, since she represents a U.S. territory.)

González-Colón’s office did not respond to an immediate request for comment December 1.

Lee said “it took a while to get the White House on board,” but the Biden administration has been helpful with the parts of the legislation relating to the Uniform Code of Military Justice.

A senior Biden administration official, speaking on background during a press call early December 1, said in response to a question posed by USA Today about state laws that discriminate against HIV positive people, that the administration will be working with the U.S. Department of Health and Human Services and the Department of Justice to support efforts to reform and eliminate those laws, because they don’t reflect the most up-to-date science.

Also on World AIDS Day, the CDC released a report showing that Black and Latino gay and bisexual men are not seeing the same improvements as white men, as the B.A.R. also reported.

US: Identical bills filed in Florida Senate and House of Representatives to bring outdated criminal law in line with science

Florida Lawmakers Introduce Bills to Modernize HIV Criminal Law on World AIDS Day

Coinciding with World AIDS Day, Senator Jason Pizzo (D-Miami) and Representative Felicia Robinson (D-Miami Gardens) have introduced identical bills in the Senate (SB 1074) and House of Representatives (HB 813) to bring an outdated criminal law in line with the contemporary understanding of HIV. Florida’s laws written at the height of the HIV/AIDS epidemic makes it a felony punishable by up to 30 years in prison for a person living with HIV to have sexual contact without first disclosing the diagnosis to their potential sexual partner, regardless of whether the contact presents any risk of transmission. The bills limit criminal liability to situations in which the person living with HIV intends to cause harm and engages in conduct that can transmit HIV.

“This modernization of Florida’s HIV-focused criminal laws is long overdue,” said Rep. Robinson upon filing the bill in the House. “Today, people living with HIV who are receiving appropriate treatment live long, healthy lives—and those same treatments make it impossible to transmit HIV sexually. Given these advances, the criminal law should stop treating HIV differently from any other transmissible infection.”

Advocates view the prospects for these bills as good given how COVID-19 has changed public perceptions regarding transmissible disease and the appropriate role of the government in controlling choices about the risks that people take, particularly in the privacy of their own homes.

“Imposing criminal penalties to attempt to control a transmissible disease was never sound public policy—and COVID-19 has made that clear to more people,” said Sen. Pizzo. “We hope to see bipartisan support this session for fixing these laws that turn law-abiding citizens into criminals based on the fact that they are living with a manageable, transmissible disease and choose to live their lives like anyone else.”

Kamaria Laffrey, who leads the Florida HIV Justice Coalition, noted the benefits to public health and efforts to end the HIV epidemic in Florida: “We want people to get tested for HIV and to remain engaged in care and treatment if they test positive, but the threat of criminal prosecution under the current law is a barrier to these things,” said Laffrey. “By eliminating criminal penalties and reducing the intense stigma associated with HIV, we make it easier for people to seek the testing and care they need and for everyone to have frank conversations about the risks involved in any sexual encounter.”

States including Virginia, Nevada, Colorado, Iowa, and Michigan have recently revised similar HIV criminalization laws, recognizing the significant advances in science for treatment and prevention from the laws’ original enactments.

Since 1988, World AIDS Day has been observed on December 1, and is a time to raise awareness of the HIV/AIDS Epidemic and remember those lost to AIDS.

Equality Florida is the largest civil rights organization dedicated to securing full equality for Florida’s LGBTQ community. Through education, grassroots organizing, coalition building, and lobbying, we are changing Florida so that no one suffers harassment or discrimination on the basis of their sexual orientation or gender identity. www.equalityflorida.org 

Belgium: 26 organisations call for ending the criminalisation of HIV non-disclosure when people are undetectable or used protection

Call to protect people living with HIV from criminal prosecution

Article translated with www.DeepL.com/Translator. For original article in French please scroll down.  

“An HIV-positive person on treatment with an undetectable viral load does not transmit the virus,” said Sarah Schlitz (Ecolo), Federal Secretary of State for Equal Opportunities.

Ex Aequo, a non-profit organisation that promotes health and aims to reduce the number of new HIV/AIDS infections among men who have sex with men, is calling on Wednesday for an HIV-positive person whose viral load has been rendered undetectable by treatment, or who uses a means of protection, to no longer be exposed to criminal prosecution if he or she does not announce his or her serological status before having sex. The call is supported by the Federal Secretary of State for Equal Opportunities Sarah Schlitz (Ecolo) and 25 other associations.

“An HIV-positive person on treatment with an undetectable viral load does not transmit the virus”, says Sarah Schlitz. “The images and fears associated with the early years of the HIV epidemic are still very strong. This creates a climate of discrimination and prevents the 20,000 people living with HIV in our country from living their lives in peace.

Widely followed treatments
The announcement in a Swiss journal in 2008 that people with an undetectable viral load had no risk of transmission was confirmed by a large study with HIV-positive couples initiated in 2010. “More than 90% of people living with HIV in Belgium take their treatment,” adds Mike Mayné, president of the association Ex Aequo. “There is no longer any reason to force these people to say they are HIV-positive before having sex, which is a vector of rejection… There is no risk of having sex with an HIV-positive person whose viral load is undetectable, which is not the case with a person who thinks he or she is negative until proven otherwise, and who may not have been tested to know his or her HIV status for several weeks, months or years. He pleads for the consideration of viral load to be anchored in jurisprudence.

“For a long time, there were debates about poisoning, but this did not lead to a decision on the grounds that, in this case, there must be an intention to kill,” recalls Charlotte Pezeril, director of the Observatoire du sida et des sexualités. “There was finally a first conviction in June 2011 which set a precedent.

Some convictions
The Huy criminal court ruled in favour of a newly infected woman and sentenced an HIV-positive man at an advanced stage to three years in prison (two of which were suspended) for “voluntarily administering, without the intention of killing, substances that can cause death or seriously alter health”, according to article 402 of the penal code.

In a case of paid homosexual intercourse, the Brussels correctional court then sentenced in October 2015 (decision confirmed on appeal in May 2017) to 18 months in prison the man paid for attempted administration, without taking into account his treatment and viral load in the proceedings.

There are only a few convictions in Belgium, according to a non-exhaustive data collection, which is also difficult. More broadly, “there was a wave of penalisations that emerged in the years 2000-2010, when we were at a time when effective antiviral treatments had been found”, observes Charlotte Pezeril. “At the beginning, HIV was a great cause for mobilisation, giving rise to solidarity with sufferers, and as long as there was no treatment, the messages called for partners to share responsibility and protect themselves with condoms. With the introduction of penalties, the focus of responsibility has shifted to those who have been diagnosed.

A perilous path
In Canada, where convictions have multiplied, the question of treatment has become central and since 2017 it has been necessary to prove that there is a real risk of transmission. Sarah Schlitz said that she and the Minister of Justice are examining the possibility of clarifying the text on the transmission of a virus when it is not intentional, in the context of the reform of the criminal code. Charlotte Pezeril drew attention to the proposal to insert “malicious dissemination of pathogens”, which is also under discussion.

While this virus is at the heart of a pandemic that has brought about major societal changes, this criminalisation could, in her opinion, open up a dangerous path: “We are now starting to see convictions in Australia for the transmission of syphilis. Now that HIV is treatable and we have case law, why not penalise the transmission of other sexually transmitted infections, or even other transmissible diseases… Penalisation does not seem to be a good public health policy and it has perverse effects in terms of prevention.


Appel pour prémunir les personnes vivant avec le VIH de poursuites au pénal

“Une personne séropositive au VIH sous traitement avec une charge virale indétectable ne transmet pas le virus” a appuyé la secrétaire d’État fédérale à l’Égalité des chances, Sarah Schlitz (Ecolo).

Ex Aequo, asbl de promotion de la santé visant une diminution des nouvelles infections au VIH/sida auprès des hommes qui ont des relations sexuelles avec d’autres hommes, plaide mercredi pour qu’une personne séropositive dont la charge virale est rendue indétectable par son traitement, ou utilisant un moyen de protection, ne soit plus exposée à des poursuites pénales si elle n’annonce pas son statut sérologique avant un rapport sexuel. Cet appel est soutenu par la secrétaire d’État fédérale à l’Égalité des chances Sarah Schlitz (Ecolo) et 25 autres associations.

« Une personne séropositive au VIH sous traitement avec une charge virale indétectable ne transmet pas le virus », met en exergue Sarah Schlitz. « Les images et les peurs liées aux premières années de l’épidémie du VIH restent très fortes. Cela crée un climat propice à la discrimination et empêche les 20.000 personnes vivant avec le VIH dans notre pays de vivre leur vie sereinement».

Traitements largement suivis
L’annonce dans une revue suisse de 2008 de l’annihilation du risque de transmission pour les personnes ayant une charge virale indétectable a été confirmée par une large étude avec des couples sérodifférents initiée en 2010. « Plus de 90% des personnes vivant avec le VIH en Belgique prennent leur traitement », ajoute Mike Mayné, président de l’association Ex Aequo. « Il n’y a donc plus de raison d’obliger ces gens à dire qu’ils sont porteurs avant un rapport sexuel, ce qui est vecteur de rejet… Il n’y a pas de risque d’avoir des rapports sexuels avec une personne séropositive dont la charge virale est indétectable, ce qui n’est pas le cas avec une personne qui pense être négative jusqu’à preuve du contraire, et qui n’a peut-être pas fait de test pour connaître son statut sérologique depuis plusieurs semaines, mois ou années ». Il plaide pour que la considération de la charge virale trouve ancrage dans la jurisprudence.

« Il y a eu pendant longtemps des débats autour de l’empoisonnement, mais cela n’a pas abouti au motif qu’il faut dans ce cas retenir une intention de tuer », rappelle Charlotte Pezeril, directrice de l’Observatoire du sida et des sexualités. « Il y a finalement eu une première condamnation en juin 2011 qui a fait jurisprudence ».

Quelques condamnations
Le tribunal correctionnel de Huy a donné raison à une femme nouvellement contaminée et a condamné un homme séropositif à un stade avancé à trois ans de prison (dont deux ans de sursis) pour avoir « administré volontairement, mais sans intention de tuer, des substances qui peuvent donner la mort ou altérer gravement la santé », selon l’article 402 du code pénal.

Dans une affaire de rapport homosexuel rémunéré, le tribunal correctionnel de Bruxelles a ensuite condamné en octobre 2015 (décision confirmée en appel en mai 2017) à 18 mois de prison l’homme payé pour tentative d’administration, sans prise en compte de son traitement et de sa charge virale dans les débats.

Il n’est question que de quelques condamnations en Belgique, selon une collecte des données non exhaustive, qui s’avère en outre difficile. Plus largement, « il y a eu une vague de pénalisations qui a émergé dans les années 2000-2010, alors qu’on était à une période où on avait trouvé des traitements antiviraux efficaces », observe Charlotte Pezeril. « Au début, le VIH était une grande cause de mobilisation suscitant solidarité avec les malades et tant qu’il n’y avait pas traitement, les messages appelaient à la coresponsabilité des partenaires, à se protéger avec des préservatifs. Avec les pénalisations, la responsabilisation ne s’est plus portée que sur les personnes diagnostiquées ».

Voie périlleuse
Au Canada où les condamnations se sont démultipliées, la question du traitement est devenue centrale et il faut depuis 2017 prouver qu’il y a un risque réel de transmission. Sarah Schlitz a indiqué examiner, avec le ministre de la Justice, la possibilité de clarifier le texte sur la transmission d’un virus lorsqu’elle n’est pas intentionnelle, dans le cadre de la réforme du code pénal. Charlotte Pezeril quant à elle attire l’attention sur la proposition d’insérer la « dissémination malveillante d’agents pathogènes », également en discussion.

Alors que ce virus est au coeur d’une pandémie qui a amené de grandes changements sociétaux, cette pénalisation pourrait selon elle ouvrir une voie périlleuse: « On commence aujourd’hui à avoir en Australie des condamnations pour transmission de syphilis. Maintenant que le VIH est traitable et qu’on a une jurisprudence, pourquoi ne pas aller pénaliser la transmission d’autres infections sexuellement transmissibles, voire d’autres pathologies transmissibles… La pénalisation ne semble pas être une bonne politique de santé publique et elle a des effets pervers au niveau de la prévention ».

 

Brazil: Litigation clinic and HIV organisation request leave to submit an amicus brief in discrimination case against the airforce

Armed Forces accused of discriminating against people with HIV

Automated translation via Deepl. For original article in Portuguese, please scroll down. 

FGV Law Group and NGO want to act in a lawsuit against the Air Force

A group from FGV Direito and another that campaigns on behalf of people living with HIV requested on Tuesday (30) from the TRF (Federal Regional Court) of the 2nd region, in Rio de Janeiro, their permission to file an amicus curiae (friend of the court) in a lawsuit against the Armed Forces for discrimination against people living with HIV.

Although Brazilian law condemns any form of prejudice and discrimination against HIV-positive people, the Armed Forces require an HIV test and, if the result is positive, prevents the person from entering the military.

However, there is ample scientific evidence showing that people with HIV may not develop the disease if they are under treatment. Many even have undetectable viral loads for years, which means that they do not transmit the virus.

The lawsuit that motivated the action of the two entities is in progress since 2018 and is brought by a business administrator from Rio de Janeiro who was barred from entry-level competition in the Air Force for being a person living with HIV. “Unfit for purpose”, says the medical report of the Air Force.

Seropositive for 11 years, he has always worked in administrative activities, has proof of full physical and mental health and is being treated with antiretroviral drugs, in addition to clinical follow-up.

Through an injunction, Silva joined the Air Force, but six months later, in the first internal competition, he had his promotion to second lieutenant annulled and was excluded from the Armed Forces. He appealed the decision in the TRF, and the appeal has not yet been judged.

It was almost an ambush. It is evident that the same thing would happen [a positive result for HIV],” says lawyer Eloisa Machado, professor of the Strategic Litigation of Human Rights Clinic at FGV Law in São Paulo, who filed the amicus curiae request together with GIV (Life Incentive Group).

The friend of the court is a process in Brazilian law that guarantees the participation of public agencies and civil society entities in judicial proceedings. The action is based on manifestations on controversial issues or those requiring technical knowledge for analysis. The FGV students studied the suit for six months, according to Machado.

For the lawyer, competition edicts and internal military norms attribute to people living with HIV a definitive incapacity, preventing not only entry into the Armed Forces but also eventual promotions of people who contracted the virus after being admitted.

“Our attempt [as amicus curiae] is perhaps to reverse this latest area of formal discrimination against people living with HIV,” Machado says.

According to her, a revision of the statute in the Armed Forces is necessary, since a positive diagnosis of the HIV virus solely does not mean inability to exercise any functions.

The mathematics professor from USP Jorge Beloqui, from GIV, reinforces that, without this updating of the rules, more cases of discrimination, without any scientific basis, will continue to occur.

For him, the consequences of discrimination at work on a person living with HIV go beyond an isolated case and end up affecting all HIV-positive people.

Although criticised, this attitude from the Air Force is not illegal. In previous positions on the subject, the technical advisory of the Ministry of Defense reported that, by law, the Armed Forces have “autonomy to decide not to accept candidates who present some kind of debilitation that prevents them from exercising their positions”.

Private companies and other public institutions, on the other hand, are prohibited from asking for an HIV test for job applicants. Law No. 11,199/2002 considers that it is discrimination towards people with HIV and people with AIDS to require an HIV test in competition applications or selection to enter public and private service.

The Ministry of Defence’s press office had not replied regarding the publication of this text.


Forças Armadas são acusadas de discriminar pessoas com HIV

Grupo da FGV Direito e ONG querem atuar em processo contra a Aeronáutica

Um grupo da FGV Direito e outro que milita a favor das pessoas vivendo com HIV-Aids solicitaram nesta terça (30) ao TRF (Tribunal Regional Federal) da 2ª região, do Rio de Janeiro, sua permissão como amicus curiae (amigo da corte) em ação movida contra as Forças Armadas por discriminação de pessoas vivendo com HIV.

Embora a legislação brasileira condene qualquer forma de preconceito e discriminação aos portadores de HIV, as Forças Armadas exigem o exame que detecta o vírus e, diante de um resultado positivo, impede que a pessoa ingresse na carreira militar.

Ocorre que há fartas evidências científicas demonstrando que as pessoas com HIV podem não desenvolver a doença se estiverem sob tratamento. Muitas, inclusive, estão com cargas virais indetectáveis há anos, o que significa que também não transmitem o vírus.

O processo que motivou a atuação das duas entidades tramita desde 2018 e é movido por um administrador de empresas do Rio de Janeiro que foi barrado em concurso de ingresso na Aeronáutica por ser pessoa vivendo com HIV. “Incapaz para o fim que se destina”, diz o laudo médico da Aeronáutica.

Soropositivo há 11 anos, ele sempre trabalhou em atividades administrativas, tem comprovação de plena saúde física e mental e está em tratamento com antirretrovirais, além de acompanhamento clínico.

Por meio de uma liminar, Silva chegou a ingressar na Aeronáutica, mas, seis meses depois, no primeiro concurso interno, ele teve sua promoção para segundo tenente anulada e foi excluído das Forças Armadas. Ele recorreu da decisão no TRF, e o recurso ainda não foi julgado.

Foi quase uma emboscada. É evidente que ia dar a mesma coisa [resultado positivo para o HIV]”, diz a advogada Eloísa Machado, professora da Clínica de Litigância Estratégica de Direitos Humanos da FGV Direito de São Paulo, que ingressou com o pedido de amicus curiae junto com o GIV (Grupo de Incentivo à Vida).

O amigo da corte é uma figura do direito brasileiro que garante a participação de órgãos públicos e entidades da sociedade civil em processos judiciais. A atuação se dá com base em manifestações sobre assuntos polêmicos ou que necessitem de conhecimento técnico para análise. Os alunos da FGV estudaram a ação durante seis meses, segundo Machado.

Para a advogada, os editais de concurso e as normas internas militares imputam às pessoas vivendo com HIV uma incapacidade definitiva, impedindo não só o ingresso nas Forças Armadas como eventuais promoções de pessoas que contraíram o vírus depois de serem admitidas.

“Nossa tentativa [como amicus curiae] é talvez reverter esse último espaço de discriminação formal contra pessoas convivendo com HIV”, afirma Machado.

Segundo ela, é necessária uma revisão no estatuto nas Forças Armadas, já que apenas o diagnóstico positivo do vírus HIV não significa incapacidade para exercício de quaisquer funções.

O professor de matemática da USP Jorge Beloqui, do GIV, reforça que, sem essa atualização das normas, mais casos de discriminação, sem nenhum embasamento científico, vão continuar ocorrendo.

Para ele, as consequências da discriminação no trabalho sobre uma pessoa vivendo com HIV vão além de um caso isolado e acabam atingindo todos os soropositivos.

Embora criticada, essa atitude da Aeronáutica não é proibida. Em posicionamentos anteriores sobre o assunto, a assessoria técnica do Ministério da Defesa informou que, por lei, as Forças Armadas têm “autonomia para decidir não aceitar candidatos que apresentarem algum tipo de debilitação que os impeça de exercer seus cargos”.

Já as empresas privadas e outras instituições públicas estão proibidas de pedir o exame de HIV aos aspirantes a vagas de trabalho. A lei nº 11.199/2002 considera discriminação aos portadores do HIV e das pessoas com Aids a exigência de exames de detecção do vírus em inscrições de concurso ou seleção para ingressar no serviço público e privado.

Procurada, a assessoria de imprensa do Ministério da Defesa não se manifestou até a publicação deste texto.

 

Mexico: Two deputies present a bill in Mexico City to reform the law around HIV exposure and transmission

“They go against penalties for HIV transmission “

The deputies Ana Francis López and Temístocles Villanueva, from Morena, presented an initiative to eliminate the penalties of three months to 10 years in prison stipulated in the Penal Code against those who transmit the Human Immunodeficiency Virus (HIV) to another person, even when having knowledge of their diagnosis.

Although the law is not explicit in mentioning HIV as a transmission that warrants imprisonment, it has been used to initiate proceedings against people living with the virus.

As was the case of a man who was arrested by the Attorney General’s Office on June 3, for incurring “danger of contagion.”

The deputies accuse the law to be ambiguous. They point out that the term “incurable diseases” is imprecise, and gives rise to the jurisdictional authority deciding which are the diseases that are considered serious.

The initiative of López and Villanueva proposes to reform Article 76 in order to eliminate the penalties for danger of contagion and to repeal Article 159 of the Penal Code of Mexico City; it was turned over to the Commissions for the Procurement and Administration of Justice for analysis.

Civil organisations have fought for this repeal, something recommended by UNAIDS, since they state that it criminalises those living with HIV, .

“The Joint United Nations Program on HIV and AIDS has insisted that countries must carry out reforms and make commitments in the framework of the 2030 Agenda for sustainable development, in order to eliminate discriminatory laws,” they quote in the proposal.


Van contra penas por transmisión de VIH

Los diputados Ana Francis López y Temístocles Villanueva, de Morena, presentaron una iniciativa para eliminar las penas de tres meses a 10 años de prisión contempladas en el Código Penal en contra de quienes transmitan el Virus de Inmunodeficiencia Humana (VIH) a otra persona, aun teniendo conocimiento de su diagnóstico.

Aunque la ley no es explícita al mencionar al VIH como una transmisión que amerite prisión, se ha utilizado para iniciar procedimientos contras personas que viven con el virus.

Como lo fue el caso de un hombre que fue detenido por la Fiscalía General de Justicia el 3 de junio pasado, por incurrir en “peligro de contagio”.

Los diputados acusan que la ley es ambigua, pues señalan que el término “enfermedades incurables” es impreciso, lo que da pie a que la autoridad jurisdiccional decida cuales son las enfermedades que se consideran graves.

La iniciativa de López y Villanueva propone reformar el Artículo 76 para eliminar las penas por peligro de contagio y derogar el Artículo 159 del Código Penal de la Ciudad de México; fue turnada a las comisiones de Procuración y Administración de Justicia para su análisis.

Organizaciones civiles han pugnado por esta derogación, ya que acusan que criminaliza a quienes viven con VIH, algo que ONUSIDA ha recomendado.

“El Programa Conjunto de las Naciones Unidas para el VIH y el SIDA ha insistido en que los países deben realizar reformas y adquirir compromisos en el marco de la Agenda 2030 para el desarrollo sostenible, con el fin de eliminar las leyes discriminatorias”, citan en la propuesta.

Kyrgyzstan: CEDAW recommends the decriminalisation of HIV transmission through consensual sex

Concluding observations from the Committee on the Elimination of Discrimination against Women on the fifth periodic report of Kyrgyzstan

43.       The Committee welcomes the decision of the Constitutional Chamber of the Supreme Court of 27 January 2021 to declare unconstitutional the provisions precluding persons living with HIV/AIDS from adoption, guardianship and foster parenting. However, the Committee is concerned about the criminalisation of HIV/AIDS transmission through consensual sexual relations between adults, impediments to access to healthcare, discriminatory terminology, reported isolation from children and barriers to access childcare facilities for women living with HIV/AIDS.

44.       The Committee recommends that the State party:

(a)        Decriminalise the transmission of HIV/AIDS (article 149 of the Criminal Code) through consensual sexual relations between adults;

(b)        Ensure access to healthcare, including confidential testing, antiretroviral treatment, psychological support and the confidentiality of information regarding women’s HIV status, and impose deterrent penalties for the disclosure of such status;

(c)        Eliminate repressive elements of epidemiological investigation and review the wording of HIV infection codes;

(d)        Ensure that women living with HIV/AIDS are not isolated from their children based on their HIV status and have adequate access to childcare facilities free from stigmatization; and

(e)    Prohibit the practice of employers requiring HIV certificates for accessing and keeping employment.

 

In September 2021 EWNA jointly with Women’s Network of Key Communities submitted the alternative report with particular focus on HIV criminalisation in Kyrgyzstan