US: Modernising California HIV-criminalisation laws is crucial to reduce the fear and discrimination that lead to more HIV infections

BY EDWARD MACHTINGER

Pebbles had a life filled with trauma – she had spent most of her youth in foster care and in the juvenile justice system. When she was 17, her mother died. Despite her other problems, it was her HIV diagnosis that caused her the most shame and isolation.

She was so stigmatized by having HIV, so ashamed, so fearful of rejection by family and friends, that she did not tell anyone that she had acquired the disease. This made it almost impossible for her to come to the clinic, to take her HIV medications, and to care for herself. As a result, despite our best efforts, she couldn’t take her HIV medications regularly and died of a completely preventable brain infection. She was 22 and left behind a 1-year-old daughter.

The overwhelming stigma her story illustrates is one of the greatest challenges I’ve encountered in my 20 years as a physician treating women and girls living with HIV. I see this every day in my clinic: Many of my patients do not feel safe revealing their status to anyone for fear of rejection or violence. To make matters worse, California still has a number of laws on the books that, instead of promoting public health, criminalize people living with HIV and add substantially to the stigma surrounding it.

These laws impose draconian penalties on people living with HIV even for activities that carry no risk of transmission. By treating HIV differently than other serious communicable diseases, these laws increase the sense of shame and isolation attached to HIV.

This legislation has never been shown to help prevent HIV transmission. Rather, it makes it less likely that people living with HIV will get tested and seek treatment that makes them incapable of transmitting the virus. These laws actually increase the risk of HIV transmission in our communities.

Since these laws were enacted in the 1980s and ’90s, we have developed potent HIV medications that, when taken regularly, suppress the virus so effectively that HIV-positive people can live long, healthy lives and be completely noncontagious to others – something confirmed by two international studies. We have also learned that HIV-related stigma is, itself, a serious public health issue.

A bill recently introduced in the California Senate would modernize the state’s laws targeting people living with HIV with criminal penalties and bring them in line with how we treat other serious communicable diseases. Senate Bill 239, authored by Sen. Scott Wiener, D-San Francisco, eliminates this form of HIV exceptionalism by incorporating the current scientific understanding of HIV, addressing HIV in the same manner as other serious communicable diseases, and eliminating extra punishment for people living with HIV who engage in consensual sexual activity.

There are many reasons for HIV-related stigma, but state laws that criminalize HIV are among the worst offenders. These laws, as they are currently written, are not only outdated and ineffective, but they are actually dangerous because they create a climate of fear and discrimination that lead to more HIV infections.

SB 239 is not a partisan or political issue, nor is it a matter of conflict in medical science. This is a basic issue of public health. The proposal to revise and modernize these laws is crucial to achieve our shared goals of reducing new HIV infections and helping those living with the virus to be safe, healthy and empowered.

Dr. Edward Machtinger is a professor of medicine and director of the Women’s HIV Program at UC San Francisco. He can be contacted at Edward.Machtinger@ucsf.edu.

Published in The Sacramento Bee on February 28, 2917

Russia: Government to examine possibility of removing HIV-specific criminal law and broadening prosecutions to all serious communicable diseases under general ‘bodily harm’ laws

The Russian government is considering removing Article 122 (Infection with Human Immuno-deficiency Virus) from the Criminal Code, according to an article published earlier this month on the RBC website.

Deputy Prime Minister Olga Golodets has instructed a number of ministries to work together to examine whether it is possible to eliminate this HIV-specific criminal law.

The Ministry of Justice, Ministry of Health, Ministry of Internal Affairs, the Federal Service, Prosecutor General’s Office, the Supreme Court and the Institute of Legislation and Comparative Law under the Government have been given a deadline of October 1, 2017.

Article 122. Infection with Human Immuno-deficiency Virus (HIV)

1. Posing a conscious threat to infect a person with HIV

Shall be punishable by restraint of liberty for a term of up to 

three years, or by compulsory labour for a term of up to one year,

or by arrest for a term of up to six months, or by deprivation of

liberty for a term of up to one year.

2. Infection of another person with HIV by a person who knew that 

he had such disease, Shall be punishable by deprivation of liberty

for a term of up to five years.

Federal Law No. 14-FZ of February 29, 2012 amended part 3 of

Article 122 of this Code

3. The act described in the second part of this Article, 

committed against two or more persons, or against an obvious juvenile,

Shall be punishable by deprivation of liberty for a term of up to

eight years with deprivation of the right to hold definite offices

and to engage in definite activities for a term of up to ten years

or without such.

4. Infection of another person with HIV through the improper

discharge by a person of his professional duties, shall be punishable

by compulsory labour for a term of up to five years accompanied by

deprivation of the right to hold specified offices or to engage in

specified activities for a term of up to three years or without

such or by deprivation of liberty for a term of up to five years

accompanied by deprivation of the right to hold specified offices

or to engage in specified activities for a term of up to three years.

Note: A person who has committed the deeds provided for by

Parts One and Two of this Article shall be released from criminal

liability if the other person subjected to the risk of being

infected, or infected, with HIV was warned in due time that

the former had such disease and agreed of his own free will to

commit the actions posing the risk of infection.

During their deliberations, the ministries will consider instead applying Articles 111, 112, 115 of the Criminal Code relating to the intentional infliction of ‘serious’, ‘average’ or ‘light’ bodily harm, respectively.

(Scroll to the bottom of the page for the full text of these Articles.)

Opportunities and threats

Without clear prosecutorial guidelines, however, it is possible that the punishment for alleged HIV transmission could be much more harsh under these general laws (from up to 5 years to up to 10 years) than under the present HIV-specific statute.

However, this may also be an opportunity to decriminalise potential or perceived HIV exposure without prior disclosure of known HIV-positive status, since no bodily harm has been inflicted.

Nevertheless, the article notes that applying general laws could also allow for prosecutions relating to other serious and dangerous communicable diseases, which has the potential to greatly expand the use of the criminal law against a number of vulnerable populations in Russia that are disproportionately impacted by, for example, hepatitis and TB.

The proposal to delete the article on HIV infection was advanced by lawyer Konstantin Dobrynin during a meeting on 3 February of the Council of the Government of guardianship in the social sphere of which he is a board member. Having such a law is parcularly discriminatory for patients with HIV, he said. “This article appeared in the legislation in 1996, since then has passed 21 years, the world has moved forward,” said Dobrynin.

Dobrynin stressed that the law usually does not consider as a defence the use of condoms and whether the patient is on treatment, noting that condom use and antiretroviral treatement creates a “negligible” probability of infection. “We propose to recognize the article about HIV infection as invalid and to register a new article for the infection of all kinds of infectious diseases, the list of which is to be approved by the State,” summarized Dobrynin.

[However], the proposal to create a separate article for all infectious diseases was not reflected in Golodets’ order.

During the 30-month period: April 2013 to October 2015, we found that Russia had the highest number of HIV-related cirminal cases in the world during this period (at least 115), followed by the United States.

The RBC article states that there were 19 convictions under Article 122 in the first half of 2016 and 45 in 2015. This means that only some of the cases we highlight on our site are reported in the news.

Tipping point

It is widely believed that Russia currently faces a tipping point in how it tackles its growing HIV epidemic.

The high level discussion on removing Russia’s HIV-specific criminal law is taking place at the same time as a number of other policy decisions relating to HIV, as Russia formulates its Action Plan to implement its Strategy to Combat the Spread of HIV.

A number of ministries are also considering the issue of entry, stay and residence restrictions on foreign-born residents of Russia who are living with HIV.

In 2015, the Russian Constitutional Court halted the deportation of foreigners living with HIV if they had family and/or immediate relatives living in Russia. In January 2017, the Ministry of Health proposed to further relax entry, stay and residency restrictions on foreigners with HIV but this proposal was blocked by the Ministry of the Interior and Ministry of Economic Development.

Since then, Deputy Prime Minister Olga Golodets has instructed these ministries to work together on this issue as well as to study how to provide medical care for foreign citizens of Russia living with HIV.

Another positive sign is that the Government recently rejected a law – which was meant to be enforced on January 1st 2017 – to mandate registration of all people with diagnosed HIV into a central database, primarily due to concerns that this would drive undiagnosed individiduals underground.

Agencies and organizations spoke out against the introduction of the registry for the HIV-infected and concluded that such a measure will not contribute to “the creation of a trust, a partnership that must be established between providers and patients,” the document stated.

Also, it will cancel the rule on anonymity of HIV testing, the government stressed. This can significantly reduce the number of people willing to take such a test.

The full text of Articles 111, 112 and 115 in English

from http://www.legislationline.org/documents/section/criminal-codes/country/7

Article 111. Intentional Infliction of a Grave Injury

1. Intentional infliction of a grave injury, which is hazardous for

human life or which has involved the loss of sight, speech, hearing,

or any organ or the loss of the organ's functions, or which has

expressed itself in the indelible disfiguring of a human face,

and also infliction of other harm which is dangerous to human life

or which has involved an injury to a person's health, joined with

considerable permanent loss of general ability to work by not less

then one third or by the full loss of an occupational capacity for

work, which capacity was evident to the guilty person, or which has

involved the interruption of pregnancy, mental derangement, or the

victim's falling ill to drug addiction or toxicosis, -

Shall be punishable by deprivation of liberty for a term of up

to eight years.

2. The same acts committed:

a) in respect of a person or his relatives in connection with his

official activity or the discharge of his public duty;

b) with respect to a minor or another person who is, knowingly for

the guilty person, in a helpless state, as well as with special

cruelty, torture or torments for the victim; 

c) by a generally hazardous method;

d) by hire;

e) out of malicious motives;

f) by reason of political, ideological, racial, national or

religious hatred or enmity, or by reason of hatred or enmity

with respect to some social group;

g) for the purpose of using the organs or tissues of the victim,

shall be punishable by deprivation of liberty for a term of 

up to 10 years with restriction of liberty for a term up to

two years or without such.

3. Acts provided for by the first or second parts of this Article,

if they are committed:

a) by a group of persons, a group of persons by previous concert,

or an organised group; b) against two or more persons, -

c) abolished

shall be punishable by deprivation of liberty for a term of 

up to 12 years with restriction of liberty for a term up to

two years or without such.

4. Acts stipulated in the first, second, or third part of this

Article, which have involved the death of the victim by negligence,

shall be punishable by deprivation of liberty for a term of up

to 15 years with restriction of liberty for a term up to 

two years or without such.

Article 112. Intentional Infliction of Injury to Health of Average Gravity

1. Intentional infliction of injury of average gravity, 

which is not hazardous to human life and which has not involved

consequences referred to in Article 111 of this Code, 

but which has caused protracted injury to health or 

considerable stable loss of general capacity for work by not less

than one-third, shall be punishable by restriction of liberty

for a term up to three years, or by compulsory labour for a term

of up to three years, or by an arrest for a term up to six months

or by deprivation of liberty for a term of up to three years.

2. The same act committed:

a) against two or more persons;

b) against a person or his relatives in connection with his

official activity or the discharge of his public duty;

c) with respect to a minor or another person who is, knowingly

for the guilty person, in a helpless state, as well as with

special cruelty, torture or torments for the victim;

d) by a group of persons, a group of persons by previous concert,

or an organised group; e) out of malicious motives;

f) by reason of political, ideological, racial, national or

religious hatred or enmity, or by reason of hatred or enmity

with respect to some social group -

g) abolished

shall be punishable by deprivation of liberty for a term of five years.

Article 115. Intentional Infliction of Light Injury

1. Intentional infliction of light injury which has temporarily

damaged health or caused an insignificant stable loss of general

capacity for work,

Shall be punishable by a fine of up to 40 thousand roubles,

or in the amount of the wage or salary or any other income of

the convicted person for a period of up to three months,

or punishable by compulsory works for a term of up to 480 hours,

or corrective labour for a term of up to one year, 

or by arrest for a term of up to four months.

2. The same deed committed:

a) through ruffian-like motives;

b) by reason of political, ideological, racial, national or

religious hatred or enmity, or by reason of hatred or enmity

with respect to some social group -

shall be punishable by compulsory works for a term of up to

three hundred and sixty hours, or by corrective labour for a term

of up to one year, or by restriction of liberty for a term of up

to two years, or by compulsory labour for a term of up to two years.

or by an arrest for a term of up to six months, 

or by deprivation of liberty for a term of up two years.

US: Rep. Sharon Cooper is sponsoring a resolution to reform Georgia's HIV Criminalisation laws

Lawmaker wants to reform Georgia’s HIV laws

By Regina Willis | Feb 21, 2017 | 11:27 AM

A Marietta Republican is sponsoring a measure to examine the state’s HIV criminalization laws, which advocates argue are outdated and stigmatize people with HIV.

Rep. Sharon Cooper (photo), who chairs the influential House Health & Human Services Committee, introduced House Resolution 240 on Feb. 14 to create a Joint Study Committee on Reforming HIV Related Criminal Laws.

“It was brought to my attention that a lot of the laws on our books are older, and that a lot of the laws on HIV were done in the eighties and we’ve certainly had a lot of change in science since that time,” Cooper said.

In Georgia, HIV criminalization laws make it a felony for an HIV-positive person to engage in sex without first disclosing their status. The laws also criminalize acts like spitting – when the behavior is directed at law enforcement officers with penalties that include up to 20 years in prison.

The current Georgia law also doesn’t take into account issues like condom usage or advising a partner to take PEP (post-exposure prophylaxis) after sexual intercourse – acts which reduce the likelihood of transmission. LGBT and HIV activists have blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

“The law in Georgia doesn’t require intent to infect, it doesn’t require likelihood of transmission because it has things like spit, urine, feces in it. It doesn’t require transmission,” Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, said during a panel discussion last year.

Lawmakers create study committees to hear expert testimony and collect information about an issue ahead of possible legislative action. Cooper’s resolution would create a 12-member committee – five members each from the House and Senate, along with a representative of the Prosecuting Attorneys’ Council and the state Department of Public Health – that would meet and issue a report of its findings by Dec. 1.

“Sometimes you have to take baby steps,” Cooper said. “Bring in the experts to give you the background and the academic backing to back up which route you decide to go.”

One option the committee could study is completely eliminating HIV criminalization laws, according to Cooper’s legislation:

“The best practice would be for states to reform these laws to eliminate HIV-specific criminal penalties except in two distinct circumstances. First, states may wish to retain criminal liability when a person who knows he or she is HIV positive commits a (non-HIV specific) sex crime when there is a risk of transmission (e.g., rape or other sexual assault). The second circumstance is when the individual knows he or she is HIV positive and the evidence clearly demonstrates that individual’s intent was to transmit the virus and that the behavior engaged in had a significant risk of transmission, whether or not transmission actually occurred.”

Another option the committee could explore is keeping current laws in place but updating them to reflect the actual routes of transmission that are possible, eliminating actions such as biting and spitting. The Center for Disease Control & Prevention supports reforming HIV criminalization laws.

HR 240 has been assigned to the House Special Rules committee and undergoes the same route to approval as other legislation. If it gets approval from the committee, then it moves to a House vote and then to the Senate for consideration.

The resolution has a handful of influential co-sponsors, including Rep. Wendell Willard, a Republican and chair of the Judiciary Committee, Rep. Carolyn Hugley, a Democrat and Minority Whip, and Rep. Bruce Broadrick, a Republican from Dalton.

Bill would OK expedited partner treatment for STDS

Cooper is also sponsoring another sexual and reproductive health related measure. House Bill 360 allows physicians to prescribe medications for certain sexually transmitted diseases – namely chlamydia and gonorrhea – to somebody’s partner without first examining the partner. Expedited partner therapy (EPT) is recommended by the CDC to help control the spread of certain STDs.

“Normally the physicians have to see somebody before they order a medication, and sometimes it’s very hard to get the partner to come in,” Cooper said.

“[EPT] allows one part of the duo to save face, and hopefully take the medicine and then make sure they are both clear so they are not just reinfecting each other,” she added.

Some 38 states currently allow this practice. HB 360 has been assigned to Cooper’s Health & Human Services Committee. Cooper said a version of this bill introduced last year was passed in the House and was held up in the Senate.

Neither the resolution or the bill has been scheduled for a hearing.

Canada: Canadian Coalition to Reform HIV Criminalization hopeful after meeting with federal justice officials but some provinces remain reluctant

Momentum building for HIV law reform

Coalition emerges from meeting with senior federal justice officials last week feeling hopeful, but provinces remain reluctant to commit to moratorium on new charges involving non-disclosure of HIV status

BY ROB EASTON

Chad Clarke says his nightmare and rebirth – he uses the two interchangeably to describe his experience with HIV laws and the justice system – made him stronger.

It started on February 12, 2009, when he turned himself in on an aggravated sexual assault charge brought by his former common-law partner. A judge found Clarke failed to disclose his HIV status, but Clarke says he didn’t know he was HIV+ at the time.

He didn’t see the light until he walked out of prison more than two years later in June 2011, but his resurrection as an HIV activist could not have happened without the experience of prison, which led to his resolve to fight so no one would have go through what he did.

Clarke found himself face to face with high-level officials in the federal justice ministry last week, telling his story and reading the testimonials of others who say they have been unfairly treated by the Canadian justice system because of their HIV status. Clarke is part of the Canadian Coalition to Reform HIV Criminalization, a group of researchers, lawyers, service providers and people living with HIV who’ve come together to capitalize on recent momentum around getting HIV-related laws changed.

Finally, Minister of Justice Jody Wilson-Raybould seems to be listening to the latest science about HIV transmission: it’s a manageable condition for the vast majority of people living with HIV who take antiretroviral medicines. According to the latest research, a person living with HIV with a suppressed viral load for at least six months cannot pass on the virus.

It’s a major reason why advocates are calling for an overhaul of the law. On World AIDS Day (December 1, 2016), the justice minister released a statement acknowledging that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Clarke feels vindicated after years of feeling alone. Over the phone from his home in Dresden, Ontario, following the meeting, he says, “I’m here to open people’s eyes and let them know what happens to people when they’re criminally charged.”

Behind bars, he told justice ministry officials, people living with HIV are branded dangerous to guards and other inmates. Once he was removed from his prison laundry job after a guard was concerned that he would “give AIDS” to other inmates by handling their clothes. “I just looked at the guard,” Clarke says.

HIV cannot be transmitted through clothes, saliva, touch or a toilet seat. HIV transmission requires an exchange of blood, semen, pre-seminal, rectal or vaginal fluids, or breast milk. It is most commonly transmitted through unprotected sex or sharing of injection drug equipment.

Though the federal government has begun to engage communities on how it might change prosecutorial guidelines to reflect up-to-date science and human rights principles around HIV, some provinces – particularly Ontario, where the bulk of prosecutions occur – continue to ignore further attempts at dialogue.

Police and Crown attorneys here have aggressively pursued aggravated sexual assault charges against people even when they don’t transmit the virus, says Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario (HALCO). The group has been calling for a moratorium on prosecutions in the province except in cases of intentional transmission.

“This is a very reasonable approach, and a number of communities are speaking up about the current over-broad use of the criminal law,” Peck says, citing a recent consensus statement from 70 leading HIV researchers and academics.

Emilie Smith, a spokesperson for Ontario’s Ministry of the Attorney General, responding via email to NOW’s request for comment, says that the Ontario government “is committed to working with the federal government to examine the law on this important issue.”

But she says that Crown prosecutors will continue to take direction on current HIV non-disclosure cases from the 2012 Supreme Court of Canada ruling on R. v. Mabior. Critics say the ruling outlines too low a threshold for conviction. The ministry, she says, has no further comment on the request for a moratorium until the federal government and provinces can agree on prosecutorial guidelines on the issue.

Clarke continues to push forward, telling his story and calling for greater justice for those still caught up in the system.

“There are other people out there who are experiencing this right now,” says Clarke. “It choked me up at one point when I was reading one of the testimonies, because this is not right. It’s not right.

“I can live with my HIV. It’s the PTSD that I don’t like,” says Clarke, who recently went on medication “to be able to sleep through the night, not have nightmares about people dying or stabbing one another in jail.”

Clarke, who used to be an X-ray technician, must also live the rest of his life as a registered sex offender, which affects his ability to find work. “I can’t even volunteer at an old folks home. They’re going to do a vulnerable sector screening check, and my name is going to come up on the registry.”

Published in Now on February 19th, 2017

US: Florida courts still waiting for Supreme Court decision on whether sex between same sex couples is actually intercourse under Florida statutes

It has been two years since the state’s highest court held legal arguments about the validity of a 1986 statute requiring HIV-positive people to reveal their infection before having “sexual intercourse.”

The case involves a man charged with a felony after failing to tell his male sex partner that he carries the human immunodeficiency virus. There’s the rub.

The legal issue before the court is . Really. That’s because of the way the law was written a hundred years ago, and now courts in different parts of Florida have disagreed on its application.

“In the history of Florida law the specific term, sexual intercourse has always been interpreted only to mean reproductive sexual conduct,” Gary De Baun’s lawyer argued.

Therefore, he claimed his client’s conviction should thus be reversed; that he did not violate the law as written, because it only applies to sexual conduct between a man and a woman.

Florida courts have disagreed, and the legal issue is before the Supreme Court for resolution. But it has been for a long while. It was argued on Feb. 4, 2015, and the court has still not ruled. Meanwhile, until the highest court of this case decides this case, prosecutors in multiple counties are reaching conflicting decisions.

The record in this case shows that Debaun’s partner asked him to take an HIV test, and that Debaun, who knew that he was infected, gave his partner fake test results, showing he was free of the virus that causes AIDS. A lower court threw out the charge, but it was reinstated on appeal. So until the court decides, Debaun lives in limbo.

Debaun’s lawyers are saying that since the legislature has failed to define intercourse as anything but sex between a man and a woman, the disclosure requirement cannot be applied to same-sex couples. If the court agrees, the case would be dismissed- if the court ever rules.

At the time, Justice Pariente criticized the legislature for its inaction, remarking “this issue could be solved easily by them.”

An experienced court watcher in Tallahassee told SFGN that cases “generally don’t take this long to decide. One of the moving parties should prod the court for a ruling.”

It’s ironic the delay has taken so long, because on April 7, 2014, the Florida Supreme Court designated this as a “high profile case of significant public and media interest.”

Well, apparently not that significant. We will see soon.

Published in FSGN on February 14, 2017

Canada: Community organisations in Ontario call for an immediate moratorium on all prosecutions and sound prosecutorial guidelines

Stop the witch-hunt of HIV criminalization

People living with HIV are being charged with some of the most serious offences in our criminal law, even in situations where there has been no transmission of HIV, no realistic possibility of transmission, and no intent to transmit.

Witch-hunts aren’t always sudden social paroxysms. They can be pursued slowly and with a veneer of legality — a steady erosion of rights and decency tapping into, and reinforcing deep-rooted fear, stigma and prejudice. Their harm isn’t limited solely to the injustices meted out to those directly targeted; they cast a broader shadow over entire communities.

It’s what’s happening here, courtesy of the provincial Ministry of the Attorney General that has so far refused to recognize both science and human rights when it comes to prosecutions for alleged nondisclosure of HIV.

People living with HIV are being charged with some of the most serious offences in our criminal law (such as “aggravated sexual assault”), even in situations where there has been no transmission of HIV, no realistic possibility of transmission, and no intent to transmit.

Simply put, they are being criminalized for having HIV, caught up in a justice system, from policing to prosecution to prison, that too often disregards evidence and the public interest.

(After the recent incident involving a Toronto police officer talking nonsense about how “AIDS” can be transmitted, it’s clear there is much work to be done on the policing front, too. Scientific consensus is that there is zero risk of HIV transmission through spit and a vanishingly minuscule possibility of transmission through a bite. At least scientifically speaking, we’re not in 1984.)

For many years, a group of committed people living with HIV, lawyers, academics and other advocates has called on the attorney general to put an end to this overly broad use of the criminal law.

In particular, this coalition has urged the adoption of sound guidelines for prosecutors to appropriately limit the use of criminal charges. Repeatedly, it has denounced problematic prosecutions that continue in Ontario — prosecutions accompanied by media coverage that, according to a recent study, disproportionately features black and/or immigrant men and often reflects racist stereotypes. Repeatedly, the coalition has suggested remedies for this ongoing injustice, drawing on a province-wide consultation.

But successive attorneys general have been unable or unwilling to rein in overzealous prosecutors, and have failed to develop prosecutorial guidance in line with science and numerous international recommendations.

As it stands, a so-called “HIV experts group” of crown prosecutors within the ministry now runs this horrible show in Ontario, leading the charge against people living with HIV. From the outside, we don’t know the group’s composition or how they make their decisions to pursue a particular prosecution.

Community organizations have requested a meeting. So, too, have scientific experts — who have pointed out that a correctly used latex condom is 100 per cent effective in blocking passage of HIV, as well as the science now establishing that someone with an undetectable viral load (including as a result of effective treatment with anti-HIV drugs) is effectively non-infectious. Yet this group of “HIV expert” prosecutors has not responded.

However, recent reports in the Star revealed an infamous guide for prosecuting cases of HIV nondisclosure, developed by Hamilton crown attorney Karen Shea — who has played an active role in advancing such cases around the province — for use by other prosecutors. (The government was ordered to release this document after years of wrangling in court.)

A Ministry spokesperson admitted the guide takes a “prosecution at all costs” approach and “doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”

It is therefore no surprise that we continue to see the misuse of charges of aggravated sexual assault, a criminal offence usually reserved for the most violent rapes, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

Such prosecutions damage individual lives and public health. As stated last month by Canada’s federal justice minister, “… the over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Enough is enough. Attorney General Yasir Naqvi — and Premier Wynne herself, who expressed her concern to us in-person three years ago — must stop this witch-hunt. More than 500 letters of concern have, as of this week, been sent to both by outraged community members.

We need an immediate moratorium on all prosecutions (except in those very rare cases of intentional transmission), and we need sound prosecutorial guidelines that respect science and human rights.

Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network, a member of the Ontario Working Group on Criminal Law and HIV Exposure. Stephen Lewis is board chair of the Stephen Lewis Foundation and co-director of AIDS-Free World, an international advocacy organization.

Published in The Star on February 8, 2017

US: Bill introduced in California to modernise outdated laws criminalising HIV

Sen. Scott Wiener and Assembly member Todd Gloria Announce Bill to Modernize Discriminatory HIV Criminalization Laws

APLA Health and other organizations join in support of bill to reform outdated laws that have not been updated since the 1980s and ‘90s

Today, California Sen. Scott Wiener (D-San Francisco) and Assembly member Todd Gloria (D-San Diego) introduced a bill to modernize laws that criminalize and stigmatize people living with HIV. Assembly member David Chiu is also a co-author of the bill, SB 239. SB 239 would amend California’s HIV criminalization laws, enacted in the 1980s and ’90s at a time of fear and ignorance about HIV and its transmission, to make them consistent with laws involving other serious communicable diseases.

The bill is co-sponsored by: APLA Health, the ACLU of California, Black AIDS Institute, Equality California, Lambda Legal, and Positive Women’s Network – USA. The organizations are part of Californians for HIV Criminalization Reform (CHCR), a coalition of people living with HIV, HIV and health service providers, civil rights organizations, and public health professionals dedicated to ending the criminalization of HIV in California. San Francisco Supervisor Jeff Sheehy also attended the announcement.

“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” Sen. Wiener says. “They need to be repealed. During the 1980s—the same period when some proposed quarantining people with HIV—California passed these discriminatory criminal laws and singled out people with HIV for harsher punishment than people with other communicable diseases. It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV. It’s time to repeal these laws, use science-based approaches to reduce HIV transmission (instead of fear-based approaches), and stop discriminating against our HIV-positive neighbors.”

SB 239 updates California law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It also brings California statutes up to date with the current understanding of HIV prevention, treatment, and transmission. Specifically, it eliminates several HIV-specific criminal laws that impose harsh and draconian penalties, including for activities that do not risk exposure or transmission of HIV. It would make HIV subject to the laws that apply to other serious communicable diseases, thereby removing discrimination and stigma for people living with HIV, and maintaining public health.

“It’s time for California to reevaluate the way it thinks about HIV and to reduce the stigma associated with the disease,” Assemblymember Gloria says. “Current state law related to those living with HIV is unfair because it is based on the fear and ignorance of a bygone era. With this legislation, California takes an important step to update our laws to reflect the medical advances which no longer make a positive diagnosis equal to a death sentence.”

“These laws are outdated and only serve to fuel the spread of HIV in our communities. They also disproportionately impact people of color and women,” APLA Health CEO Craig E. Thompson says. “Our understanding of HIV has changed significantly since the 1980s and our laws need to change to reflect that. Updating these laws will reduce stigma and prevent people from going to prison simply because they are living with a chronic disease. We appreciate the leadership of Senator Wiener and Assemblymember Gloria on this critical social justice issue.”

In addition to the organizations co-sponsoring the bill, other CHCR members supporting the legislation include the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund, the Free Speech Coalition, Sex Workers Outreach Project, and Erotic Service Providers Legal, Education, and Research Project.

Published on February 7, 2017 in AplaHealth

Canada: Prosecuting HIV: Is it a crime to have sex without disclosing? Public Roundtable in Toronto – Ontario on Feb 3, 2017

Public Roundtable on February 3, 2017 – Prosecuting HIV: Is it a crime to have sex without disclosing?

Posted on January 30, 2017

Prosecuting HIV: Is it a crime to have sex without disclosing? public roundtable discussion will take place:

Friday February 3^rd, 2017, from 3:30 pm to 5:30 pm

Canadiana Gallery – Room 160, 14 Queen’s Park Crescent West, Toronto, Ontario

The Supreme Court of Canada has ruled that when HIV+ people do not disclose their status to sex partners they are committing a serious crime (often, aggravated sexual assault) if there is a realistic possibility of HIV transmission. Many HIV+ people have been prosecuted and jailed even if their sex partners did not contract HIV. Efforts are now underway to use prosecutorial guidelines and other tools to make Canada’s criminal law less punitive towards HIV+ people, and updated information on these efforts will be presented at the panel.

Roundtable Panelists will include:

Maureen Owino, Director, Committee for Accessible AIDS Treatment
Ryan Peck, Executive Director, HIV&AIDS Legal Clinic Ontario (HALCO)
Amy Swiffen, Sociology Department, Concordia University, and Visiting Professor at the Centre for Criminology & Sociolegal Studies
Chris Tatham, Sociology Department, University of Toronto

The Panel Moderator is Audrey Macklin, Director, Centre for Criminology & Sociolegal Studies.

All are welcome to attend.

The event poster is available as a pdf on our website: http://www.halco.org/wp-content/uploads/2017/01/HIV-disclosure-public-roundtable-2017Feb3.pdf.

Canada: Preliminary discussions said to be underway to review current practices in HIV non-disclosure cases

Advocates eager for feds to review ‘over-criminalizing’ of HIV non-disclosure

Joanna Smith, The Canadian Press

Published Wednesday, December 28, 2016 11:50AM EST

OTTAWA — Marjorie Schenkels had unprotected sex three times with a friend, while they both had been drinking, as she was going through a difficult and volatile time in her life.

The Manitoba woman was also living with HIV — a diagnosis she had told only her mother about — and feared she would lose her friends if they, including the man she was having sex with, found out.

She also did not tell the man she had sex with those three times, and he also later tested positive for HIV, although the question of where he contracted it is a matter of contention.

A jury convicted Schenkels of aggravated sexual assault in December 2014.

She did not lie, or manipulate or exploit, the sentencing judge from the Court of Queen’s Bench of Manitoba wrote in the Mar. 1 decision that includes the details of her story.

“Rather, her silence was the result of fear and inability to accept the gravity of her situation,” the judge wrote as she sentenced Schenkels, who is now also a registered sex offender, to two years in prison less a day.

Schenkels is appealing her conviction, with arguments being heard Jan. 10.

There is no particular provision in the Criminal Code regarding the disclosure of HIV status, but there are certain circumstances in which failing to do so is a crime.

That can include having consensual sex — something the Liberal government is now open to changing.

“The over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” Justice Minister Jody Wilson-Raybould said in a statement published online Dec. 1, which was World AIDS Day.

“Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease,” she wrote.

The statement said Wilson-Raybould would be taking a closer look at how the criminal justice system deals with non-disclosure of HIV status, which could include reviewing current practices on laying charges and going ahead with prosecutions, as well as developing prosecutorial guidelines.

The justice department did not make anyone available for an interview, but spokesman Ian McLeod said in an email that preliminary discussions are underway.

The Supreme Court of Canada has ruled that the consent someone gives to engaging in sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status.

The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

The high court clarified in 2012 that this would not apply if someone is using a condom and also has a “low viral load,” but advocates argue the law has fallen far behind the science and creates more problems than it attempts to solve.

The fact that HIV non-disclosure falls under aggravated sexual assault or other offences makes statistics harder to come by than they are for other crimes, but the Canadian HIV/AIDS Legal Network has counted at least 180 people charged for offences related to HIV non-disclosure in Canada since 1989.

This relatively high number of prosecutions — and the fact that the issue is criminalized at all — has brought Canada under scrutiny on the world stage.

In July, Justice Edwin Cameron of the Constitutional Court of South Africa shamed Canada — alongside Zimbabwe — for its approach to the issue in his keynote address at the International AIDS Conference in Durban.

“I ask all Canadians to share the blame — not just us in Africa,” he said to resounding applause.

Canadian Health Minister Jane Philpott was in the room.

The changes the Liberal government ends up proposing will likely face some opposition over the ethical challenges surrounding the issues of disclosure in intimate relationships.

“I recognize that it’s difficult, but I think it’s important to draw some lines into when the criminal law is actually warranted and not warranted,” said Cecile Kazatchkine, a senior policy analyst with the Canadian HIV/AIDS Legal Network.

The United Nations Programme on HIV/AIDS (UNAIDS) has recommended prosecuting only those people who knowingly and intentionally transmit the virus to their partners, rather than simply not disclosing it, which some advocates say is not always possible, such as in abusive relationships.

Cynthia Fromstein, a Toronto-based defence lawyer who has represented clients facing HIV disclosure-related charges, said there is still “enormous” ignorance and fear surrounding HIV, which is only made worse by the current laws.

“The only time you see HIV, practically, is when someone’s picture is on the paper, being charged . . . with aggravated sexual assault,” said Fromstein.

Published in CTV News on Dec 28, 2016

El Salvador: New law for the prevention and control of HIV includes duty to disclose HIV-status to all sexual partners

English translation ((Para artículo en español, desplácese hacia abajo)

People who are HIV positive and who want to maintain a permanent or eventual relationship with their partner, should inform them of their status as a carrier of the virus, as established by a new law in the country.

The Legislative Assembly approved in the plenary session, Wednesday of this week, the new Law on Prevention and Control of Infection caused by the Human Immunodeficiency Virus.

The regulations were described by the Atlacatl Vivo Positivo Association as “a setback” in defending the human rights of HIV positive people. In the section that refers to the duty to communicate, article 15, third paragraph of the law states that “any person who has been notified of his / her serological condition is obliged to communicate this situation to his / her partner, whether permanent or casual,”

The director of the Atlacatl Association, Odir Miranda, said that the law is criminalizing people who HIV positive “because it is forcing us to reveal that we are HIV positive; The other is that I can accuse a person and say that she infected me and I have no way to prove whether it was her or someone else “Miranda said.

He added that another disadvantage to which the new regulations exposes them is that by forcing them to say they have the virus, they are not likely to obtain housing, life insurance and hardly likely to get jobs, he explained

That aspect of the law is very serious, says Miranda, because they can not be exposed to regulations that, instead of helping to defend the human rights of HIV-positive people, will criminalize them, he said.

The Atlacatl Association criticized the fact that the body governing the regulation is the Ministry of Health, as embodied by article 3 of the new law. Miranda questions this because, according to him, The Ministry of Health is judge and part with its functions.

He added that the state portfolio, as the lead agency, will not be impartial when imposing sanctions for complaints against discrimination in the hospitals of the public network and the Salvadoran Institute of Social Security.

“There are many complaints of discrimination that we have put against hospitals and so far nothing has been done,” Miranda said.

In practice the law is nothing new, what’s more, it would better if it was repealed because it rights woudd be better, he said.

The only thing that the Public Health Commission of the Legislative Assembly did with the new legislation, then approved by the plenary, was to empower the Ministry of Health and change the name of the National Commission against AIDS (Conasida) to the National Commission Against HIV (Conavih).

According to him, the law has wanted to sell itself as a human rights approach, but it does not have it because they have left out the Ministry of Labor and Education, who are part of the main bodies in the national response to HIV.

The National HIV Commission is made up of the Ministry of Health, the Higher Public Health Council (CSSP), the Ministry of Foreign Affairs, the Office of the Procurator for the Defense of Human Rights (PDDH), the Associations and Foundations whose objective is prevention of The Medical School, the Ministry of Social Inclusion and the National Institute of Youth.

When discussing the draft law that was approved on Wednesday, the Atlacatl Association proposed that the governing body be an institution detached from the Ministry of Health because the approach they sought was a multisectoral participation with the Attorney General’s Office, and the Supreme Court, among others.

With this framework of disadvantage, according to Miranda, they will ask the President of the Republic, Salvador Sánchez Cerén, to veto the new law because it gives a negative message to the country in response to HIV.

Miranda called the regulations a delay to what has been achieved in terms of fighting and responding to the disease. “We will target activities towards the Presidential House so that it does not sanction it,” he said. He even said that they could go to the Inter-American Court of Human Rights to denounce the law.

————————————————————————————————–

Portadores de VIH obligados a decir su condición a su pareja sexual

La Asamblea legislativa aprobó la nueva Ley de Prevención y Control de la Infección provocada por el Virus de Inmunodeficiencia. La ley aún debe ser sancionada por el presidente de la República, Salvador Sánchez Cerén.

Por Roberto Alas

Las personas que se encuentren con el Virus de Inmunodeficiencia Humana (VIH) y que quieran mantener una relación permanente o eventual con su pareja, deberá informarle su condición de portador del virus, según ha quedado establecido en una nueva ley del país.

La Asamblea Legislativa aprobó en la sesión plenaria, del miércoles de esta semana, la nueva Ley de Prevención y Control de la Infección provocada por el Virus de Inmunodeficiencia Humana.

La normativa fue calificada por la Asociación Atlacatl Vivo Positivo como “un retroceso” en la defensa de los derechos humanos de estas personas. En el apartado que se refiere al Deber de comunicar, el artículo 15 inciso tercero de la normativa establece que “toda persona que haya sido notificada de su condición serológica, está obligada a comunicarle tal situación a su pareja, ya sea permanente o eventual”, expone.

El director de la Asociación Atlacatl, Odir Miranda, aseguró que la ley está criminalizando a las personas con VIH positivo “porque nos está obligando a revelar que somos VIH positivo; lo otro es que yo puedo acusar a una persona y decir que me infectó y no tengo la manera de probar si fue ella u otra”, expuso Miranda.

Agregó que otra de las desventajas en la que los expone la nueva normativa es que al obligarlos a decir que tienen el virus, no son sujetos a obtener viviendas, un seguro de vida y difícilmente les dan empleo, explicó

Ese aspecto dentro de la ley es muy grave, dice Miranda, porque no pueden exponerse a tener una normativa que, en vez de ayudar a la defensa de los Derechos Humanos de las personas VIH positiva, va a criminalizarlos, aseguró.

La Asociación Atlacatl criticó que el ente rector de la normativa sea el Ministerio de Salud, tal como quedó plasmado en el artículo 3 de la nueva ley. Mirando cuestiona ese hecho porque, según él, el Salud es juez y parte dentro de sus funciones.

Agregó que la cartera estatal, como organismo rector, no será imparcial al momento de imponer sanciones por denuncias contra discriminación en los hospitales de la red pública y del Instituto Salvadoreño del Seguro Social.

“Existen muchas denuncias de discriminación que hemos puesto contra los hospitales y hasta ahora no se ha hecho nada”, lamentó Miranda.

Pare él, prácticamente la ley no tiene nada nuevo, es más, estaba mejor la que fue derogada porque les garantizaba mejor sus derechos, dijo.

Lo único que hizo la Comisión de Salud Pública de la Asamblea Legislativa con la nueva normativa, y aprobada por el pleno, fue darle facultades al Ministerio de Salud y cambiar el nombre de la Comisión Nacional contra el Sida (Conasida) por el de Comisión Nacional Contra el VIH (Conavih).

Según él, la ley la han querido vender con un enfoque de derechos humanos, pero no lo tiene porque han dejado afuera al Ministerio de Trabajo y al de Educación, quienes son parte de los entes principales en la respuesta nacional contra el VIH.

La Comisión Nacional contra el VIH está conformada por el Ministerio de Salud, Consejo Superior de Salud Pública (CSSP), Ministerio de Relaciones Exteriores, Procuraduría para la Defensa de los Derechos Humanos (PDDH), las Asociaciones y Fundaciones cuyo objetivo sea la prevención de la enfermedad, Colegio Médico, la Secretaría de Inclusión Social y el Instituto Nacional de la Juventud.

Cuando se discutió el anteproyecto de la ley que se aprobó el miércoles, la Asociación Atlacatl propuso que en ente rector fuese una institución desligada del Ministerio de Salud porque el enfoque que buscaban era una participación multisectorial en donde estuviese la Fiscalía General de la República, Corte Suprema de Justicia, entre otros.

Con ese marco de desventaja, según Miranda, pedirán al presidente de la República, Salvador Sánchez Cerén, que vete la nueva ley porque da un mensaje negativo del país en la respuesta al VIH.

Miranda tildó la normativa como un retraso a lo que se había logrado en cuanto a la lucha y respuesta a la enfermedad. “Vamos hacer acciones hacia Casa Presidencial para que no la sancione”, aseguró. Incluso, dijo que podrían acudir a la Corte Interamericana de Derechos Humanos para denunciar la normativa.