US: Updates on 4 states that may reform HIV Criminalisation laws

What’s New in HIV Criminalization in the United States: Congress, California, Florida, Georgia, Ohio and Utah

From TheBody.com

April 6, 2017

Table of Contents

Will Congress modernize HIV laws and policies? Advocates certainly hope so. Here’s an update, plus a look at four states that may reform laws that criminalize HIV non-disclosure and transmission — and one state that’s increasing penalties for people living with HIV.

REPEALing Policies That Encourage and Allow HIV Discrimination

On the federal level, Congress is considering HR 1739 or the REPEAL HIV Discrimination Act of 2017. If passed, the Act directs the attorney general, the secretary of Health and Human Services and the secretary of defense to initiate a national review of federal (including military) and state laws, policies, regulations and judicial decisions regarding criminal and related civil commitment cases involving people living with HIV or AIDS. This last part means that, if it were passed, federal agencies (including all branches of the military) would review past HIV cases and decisions based on current knowledge about HIV transmission.

“We’ve got incredible science data. Now we’ve got to get policymakers to understand,” Ken Pinkela, the military and federal policy director for the Sero Project, told TheBody.com. Though the Act would not force states to follow suit, having a mandate on the federal level would influence policies on the state level. Furthermore, not only would Pinkela personally benefit if the REPEAL Act were passed, but so would every other member of the military who has been criminalized and discharged because of their HIV status.

California Looks to Reduce HIV Criminalization

In February, California state lawmakers introduced SB 239. The bill reduces HIV transmission from a felony with three, five or eight years in prison to a misdemeanor with jail time of no more than six months.

The bill also lessens penalties for people engaged in sex work. Currently, if a person is convicted of prostitution or another sexual offense, he or she is subject to an HIV test. If this person tests positive and is later arrested again for prostitution or another sexual offense, existing law makes them guilty of a felony. The bill deletes both of these provisions, meaning that people arrested for sex work are no longer required to submit to an HIV test and, if they are arrested again, they are not subject to a felony based on HIV status.

SB 239 also requires any court or agency that has records related to the deleted provisions to destroy them by June 30, 2018. Finally, the bill requires a court to vacate related convictions.

“These [existing] laws are disproportionately used against women and people of color, and fuel stigma, violence and discrimination,” stated Naina Khanna, executive director of the Positive Women’s Network – USA, when the bill was introduced.

The numbers prove this. Nearly half (43%) of those criminalized under California’s HIV-specific criminal laws are women, though women make up only 13% of Californians living with HIV. Though blacks and Latinx people make up only half of Californians living with HIV, they are more than two-thirds of those who came into contact with the criminal justice system based on their HIV status. The intersections have hit black women particularly hard. They comprise 4% of the state’s HIV population, yet make up 21% of those with criminal justice encounters because of their status. In contrast, white men, who make up 40% of people in the state diagnosed with HIV, compose 16% of those who encounter the criminal justice system because of their HIV status.

The bill passed the Senate’s Public Safety Committee by a vote of 5 to 2. It is now before the Appropriations Committee.

“Florida Doesn’t Want to Be First in New HIV Cases”

Under Florida law, it’s a crime to not disclose HIV status prior to sex. This was how [65-year-old Gary Debaun was arrested and charged with unlawful sexual transmission of a disease. Prosecutors charge that Debaun forged medical records declaring that he was HIV-negative to show to his then-partner. Under current law, creating a false report to hide the presence of HIV or other communicable diseases is a third-degree felony]].

Debaun’s attorney attempted to use another outdated law to prevent his conviction — that since Florida law defines sex as between a man and a woman, “sexual intercourse” only applies to heterosexual sex. Though a lower court agreed and dismissed the case, the state’s appellate court overturned that ruling. In March, the state’s Supreme Court also rejected that argument. The district attorney’s office has stated that it plans to re-introduce the charges.

However, the law may be changing. In March, the Senate Criminal Justice Committee voted unanimously in favor of SB 628, which updates existing HIV criminalization laws. If passed, a person with HIV would no longer be considered acting with intent to transmit if he or she were undergoing treatment, used a condom or other method to prevent transmission or had offered to do so (even if the offer was rejected by the other person). The bill would also reduce non-disclosure in other instances and the creation of a false report to hide HIV status from a felony to a first-degree misdemeanor.

“Florida doesn’t want to be first in new HIV cases; we want to be first in the effort to end the HIV epidemic,” said Senator Rene Garcia, the bill’s chief sponsor. Thanking service providers and advocacy groups such as the AIDS Healthcare Foundation and the Sero Project, he stated, “Today’s unanimous vote by the Senate Criminal Justice Committee is an important step.” The bill is now in the Health Policy Committee.

Georgia Convenes a Committee

Under current Georgia law, a person living with HIV or hepatitis can be arrested and sentenced to up to ten years in prison if they do not disclose their status before having sex, sharing needles or donating blood. If a person with HIV or hepatitis throws bodily fluids (such as urine, blood, feces or saliva) on a peace officer or correctional officer, they face up to 20 years in prison. It does not matter that spit does not transmit. Over 50,000 Georgians live with HIV and approximately 3,000 are newly diagnosed each year.

Similar to other parts of the country, HIV criminalization laws have not only resulted in prison sentences, but have also had a chilling effect on people’s day-to-day safety. Testifying before the House Special Rules Committee, Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, recounted being sexually assaulted by a fellow student at Emory University nine years earlier. “Because of this law I immediately knew that I wasn’t going to report it to law enforcement,” she told them. “It was never going to be about consent, it was going to be about my HIV status. And so I was afraid of the very real possibility of going to prison for my own sexual assault because of this law.”

In February, Georgia Representative Sharon Cooper introduced House Resolution 240, which proposed creating a Joint Study Committee on Reforming HIV Related Criminal Laws. The following month, Senator Vincent Fort introduced the Senate counterpart, Resolution 465. “Most of these laws do not account for actual scientifically supported levels of risk by types of activities engaged in or risk reduction measures taken,” stated the resolution. “As a result, many of these state laws criminalize behaviors that the [Centers for Disease Control and Prevention] regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures[.]” The committee includes not only state senators, but also a representative from the Department of Health, a criminal defense attorney and a community-based HIV service provider.

Ohio Rethinks HIV Criminalization

In 2016, the Ohio Supreme Court announced that it would hear State of Ohio v. Orlando Batista, in which Batista was convicted of non-disclosure and sentenced to eight years in prison. At issue are the state’s HIV laws, which classify non-disclosure as a felonious assault. Like current California laws, if a person tested positive for HIV after being arrested for solicitation, that would increase the charge from a misdemeanor to a felony if they were arrested again.

As in other states, lawmakers, pressed by advocates and medical professionals, are beginning to rethink HIV criminalization. On March 2, the state’s Recodification Committee examined proposed amendments to its HIV criminal law. The Committee will vote on the amendments at a later date.

Utah Enacts Heavier Penalties for People With HIV

While some states are considering decriminalizing HIV, Utah is moving in the opposite direction. In March, Governor Gary Richard Herbert signed HB 369, or the Sexual Offenses and Statutory Nonconsent Amendments, into law.

As of 2013, 2,565 people living in Utah had been diagnosed with HIV, a rate of 115 per every 100,000 people. The following year, 120 people were newly diagnosed, a rate of five per every 100,000 people.

Initially, the bill criminalized HIV non-disclosure with the first draft making it a felony. In later drafts, non-disclosure became a misdemeanor.

Testifying against the bill in February, Troy Williams, the executive director of Equality Utah, expressed concern that the measure would discourage people from being tested and encouraged the state to instead promote testing and treatment. “We would want to do everything in our power to open the doors to encourage people to be tested,” he said. His concerns have been echoed by other advocates, including people living with HIV.

Those concerns seem to have been heard; the final law does not include criminalization for non-disclosure. It does, however, enhance penalties for people convicted of non-consensual sex offenses if they have HIV, hepatitis B or hepatitis C. The wording of the law does not acknowledge that people who are virally suppressed are not at risk of transmitting HIV through sex.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women.

Published in the Body on April 7, 2017

US: Promising development for Georgia advocates as State lawmakers create committee to assess HIV laws

Georgia lawmakers poised to study HIV decriminalization

Advocates for decriminalizing HIV in Georgia saw small wins last week as two measures from state lawmakers that would create committees to study the issue moved closer to passage.

Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, testified about one of the measures before the House Special Rules Committee on Wednesday.

“Our HIV non-disclosure statute makes it a felony crime for me not to disclose my HIV-positive status before engaging in private consensual conduct, without regard to whether or not measures are taken to prevent HIV exposure and transmission. Without harming anyone or intending to harm anyone, I could face up to 10 years of imprisonment,” Martinez told the committee.

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.

Rep. Dominic LaRiccia, a Republican from Douglas, challenged Martinez on her statement.

“Would you share briefly a specific instance, personally, of where you have been discriminated against and how it impacted your ability to move freely and do all the things that you do?” LaRiccia asked.

Martinez responded by discussing being the victim of an attack that she decided against reporting to law enforcement over concerns about her HIV status.

“About nine years ago I was sexually assaulted by an Emory undergraduate student. I was at Emory for graduate school, and because of this law I immediately knew that I wasn’t going to report it to law enforcement,” Martinez said.

“It was never going to be about consent, it was going to be about my HIV status. And so I was afraid of the very real possibility of going to prison for my own sexual assault because of this law,” she added.

Martinez also spoke on a panel about HIV decriminalization in November.

Rep. Buddy Harden, the Republican chair of the committee, quickly thanked Martinez for her testimony and the committee voted to approve the resolution. The measure, House Resolution 240, is from Rep. Sharon Cooper, a Marietta Republican.

But the resolution that passed last week was a watered down version of what Cooper initially proposed in February. It called for the creation of a Joint Study Committee on Reforming HIV Related Criminal Laws but was pared back to propose a House-only committee that will investigate reforms needed to address a variety of chronic illnesses, including HIV, as well as asthma, obesity, shingles and influenza.

The new language now calls on the study committee to “assess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose,” in addition to addressing the other chronic health issues.

Cooper’s revised resolution also states:

“WHEREAS, identifying the barriers to HIV awareness, testing, and early linkage to care would be in the state’s best interest; Georgia ranks fifth in the nation for new HIV diagnoses; the Atlanta-Sandy Springs-Marietta area is listed as eighth in cities with the highest rate of new HIV infection; it is estimated that one in 51 Georgians are at risk of contracting HIV in their future.”

Lawmakers create study committees to hear expert testimony and collect information about an issue ahead of possible legislative action. It is too late in the session to gain approval for a joint study committee – one that includes House and Senate members – so the measure approved last week was limited to a House study committee. That means it only needs House approval to create the nine-member study committee that would include five lawmakers and four health experts.

With just two days – Tuesday and Thursday – left in the session, it’s not clear if Cooper’s resolution will see a full House vote.

The other promising study committee is from Sen. Vincent Fort (photo), an Atlanta Democrat who introduced Senate Resolution 465. That resolution would create a nine-person panel and includes language from Cooper’s original resolution:

“[M]any of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures.”

Fort’s resolution received a favorable recommendation from a Senate committee but it’s not clear if the Senate Rules Committee will push the resolution to the full Senate for a vote.

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.

In February, state lawmakers joined with LGBT and HIV activists during a public hearing to explore the impact of the HIV epidemic among black Georgians as well as HIV criminalization laws.

Published in Project Q Atlanta on March 29, 2017

US: Two congresswomen, co-chairs of the HIV caucus in Congress, teamed up to introduce a bill aiming to modernise HIV laws

Ileana Ros-Lehtinen Wants to Change HIV/AIDS Laws

By KEVIN DERBY

March 29, 2017 – 9:45am

A South Florida Republican congresswoman is urging the federal government, the states and local governments to “modernize laws and policies to eliminate discrimination against those living with HIV/AIDS.”

U.S. Rep. Ileana Ros-Lehtinen, R-Fla., and U.S. Rep. Barbara Lee, D-Calif., are the co-chairs of the HIV Caucus in Congress. This week, Ros-Lehtinen and Lee teamed up to bring out the “Repeal HIV Discrimination Act.”

“This bill expresses the sense of Congress that federal and state laws, policies, and regulations should not place a unique or additional burden on individuals solely as a result of their HIV status, and offers a step-by-step plan to work with states to modernize their laws,” Ros-Lehtinen’s office announced.

Ros-Lehtinen made the case for why the bill was needed.

“The fear and stigma surrounding HIV have led to a number of criminal statutes and penalties that do not improve public health,” Ros-Lehtinen said. “Since the establishment of laws which unfairly penalize individuals living with HIV, we have made great medical advances that prove that antiretroviral therapy can reduce HIV transmission risk. My colleague, Barbara, and I are introducing the REPEAL HIV Discrimination Act in order to help eliminate needless and harmful statues and regulations which only shame individuals without providing meaningful benefits for HIV prevention and care.”

“HIV criminalization laws are based on bias, not science. Instead of making our communities healthier, these laws breed fear, discrimination, distrust, and hatred. Our laws should not perpetuate prejudice against anyone, particularly against those living with diseases like HIV. By passing this legislation, Congress would send a signal that discrimination and stigma have no place in our laws,” said Lee. “I am grateful for the continued partnership of my friend and colleague, Congresswoman Ros-Lehtinen, in the fight to ensure that all are able to live with dignity and respect, and to one day achieve an AIDS-free generation.”

The two congresswomen pointed to more than 33 states and two territories which, they insist, “have criminal statutes based on outdated information regarding HIV/AIDS.”

The caucus has more than 70 members in both the House and the Senate including Florida Democrats U.S. Rep. Kathy Castor, Ted Deutch, Alcee Hastings, Debbie Wasserman Schult and Frederica Wilson.

US: California bill to modernise HIV criminalisation statutes a step closer to becoming law

Bill to Modernize Discriminatory HIV Criminalization Laws Passes First Major Hurdle

San Francisco – A bill that would modernize California’s laws that criminalize and stigmatize people living with HIV today cleared its first major legislative hurdle. The Senate Public Safety Committee approved Senate Bill (SB) 239 by a vote of 5-2. The bill is authored by Sen. Scott Wiener (D-San Francisco) and Asm. Todd Gloria (D-San Diego) and cosponsored by the ACLU of California, APLA Health, 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 broad 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. SB 239 is also co-authored by Senators Toni Atkins (D-San Diego), Nancy Skinner (D-Berkley) and Holly Mitchell (D-Los Angeles) and Assemblymembers David Chiu (D-San Francisco) and Susan Eggman (D-Stockton.)

‘HIV is a public health issue, not a criminal justice issue. These laws, which stigmatize people living with HIV and discourage people from getting tested and into treatment, need to go. It’s time for California to lead, and to send a clear signal that we are taking a science-based approach and not a fear-based approach in how we treat HIV,’ said Senator Scott Wiener. ‘I want to thank Equality California and the entire coalition supporting this incredibly important bill for their partnership.’

SB 239 would update California criminal 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.

‘With today’s approval by the Senate Public Safety Committee, we become one step closer to making state law less stigmatized and more equitable,’ said Assemblymember Todd Gloria. ‘Make no mistake, SB 239’s purpose is to encourage more Californians to get tested for HIV. Anything that impedes that – like the shame and fear codified in our current statute – must be changed. I am grateful to the members of the Senate Public Safety Committee, Equality California, and all of the supporters of this bill who helped make today’s success possible.’

Legislators passed a number of laws three decades ago at the height of the HIV epidemic that criminalized behaviors of people living with HIV or added HIV-related penalties to existing crimes. These laws were based on fear and on the limited medical understanding of the time. When most of these laws were passed, there were no effective treatments for HIV and discrimination against people living with HIV was rampant. Current treatments for HIV-positive people leave them virtually incapable of transmitting the virus and preventative treatments such as PrEP (pre-exposure prophylaxis) for HIV-negative people reduce risk of contraction by up to 99 percent.

‘Our understanding of HIV and its transmission has improved by quantum leaps since these laws were enacted,’ said Rick Zbur, executive director of Equality California. ‘California’s HIV criminal laws do not further public health but, instead stigmatize people living with HIV and, discourage testing and necessary medical care. It’s time to bring California’s HIV laws into the 21 century.’

SB 239 now moves on to the Senate Appropriations Committee.

In addition to the organizations sponsoring the bill, it is currently supported by CHCR members which 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 (MALDEF), the Free Speech Coalition, Sex Workers Outreach Project (SWOP) and Erotic Service Providers Legal, Education, and Research Project (ESPLERP).

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Equality California is the nation’s largest statewide lesbian, gay, bisexual and transgender civil rights organization dedicated to creating a fair and just society. Our mission is to achieve and maintain full and lasting equality, acceptance, and social justice for all people in our diverse LGBT communities, inside and outside of California. Our mission includes advancing the health and well-being of LGBT Californians through direct healthcare service advocacy and education. Through electoral, advocacy, education and mobilization programs, we strive to create a broad and diverse alliance of LGBT people, educators, government officials, communities of color and faith, labor, business, and social justice communities to achieve our goals. www.eqca.org

US: Bill before California Senate bill would modernise HIV criminalisation laws in line with the latest science

A bill before the California Senate would change laws that make it a felony to expose someone to HIV, recognizing advances in the science of HIV treatment and prevention. The proposed legislation received strong support at a recent hearing at the state Capitol.

Proponents say Senate Bill 239 would modernize existing laws in accordance with the latest research, promote public health, and reduce discrimination and stigma against people living with HIV.

“These felony laws were passed during the dark days of the epidemic, when people were talking about quarantining those living with HIV,” bill co-author Senator Scott Wiener (D-San Francisco) told the Bay Area Reporter. “The laws single out people with HIV for uniquely harsh criminal treatment for the simple act of having sex – even if there’s no risk of transmission. HIV is a health issue, not a criminal issue, and it’s time to repeal these discriminatory laws.”

Existing laws make it a felony punishable by up to eight years in prison for a person with HIV to expose another person through unprotected sex if the HIV-positive person knows they are infected, does not disclose their status, and acts with the intent to infect the other person – regardless of whether infection actually occurred. It is also a felony under certain circumstances for an HIV-positive individual to donate blood, organs, or semen to an HIV-negative person. Current laws treat HIV transmission more harshly than other serious communicable diseases.

A study from the UCLA School of Law found that around 800 people in California came in contact with the criminal justice system due to their HIV status between 1988 and 2014, in most cases related to sex work. Black and Latino people and women were disproportionately affected.

“Since [these laws] were originally written the realities of what it means to have HIV, as well as the possibility of transmitting it, have changed completely, with new medications when taken regularly normalizing life expectancy and eliminating the possibility of transmission,” Dr. Edward Machtinger, director of the UCSF Women’s HIV Program, said at the March 8 hearing. “This new reality requires a reassessment of the public health implications of HIV-related legislation.”

Bill would amend state codes

As the B.A.R. previously reported, Wiener and Assemblyman Todd Gloria (D-San Diego), both gay men, introduced SB 239 at a February 6 news conference at Strut, the San Francisco AIDS Foundation’s health and wellness center for gay, bi, and trans men.

The March 8 briefing, hosted by the Legislative LGBT Caucus, featured testimony from people living with HIV as well as LGBT, public health, and civil rights advocates.

“It’s time to really change from a fear-based approach to a science-based approach,” Gloria said at the hearing. “A couple of states have beaten us to taking this action, but I think if California can do it, certainly the rest of the country can take this step as well.”

Assemblyman David Chiu (D-San Francisco) and lesbian Assemblywoman Susan Talamantes Eggman (D-Stockton) co-authored the legislation. Co-sponsors include the American Civil Liberties Union of California, Black AIDS Institute, Equality California, Lambda Legal Defense and Education Fund, and Positive Women’s Network-USA, all of which are part of the Californians for HIV Criminalization Reform Coalition.

SB 239 would amend sections of the state Health and Safety Code and Penal Code to make transmission of a communicable disease – not singling out HIV – a misdemeanor if a person knows they are infected, acts with the intent to transmit, engages in conduct that poses a substantial risk of transmission, and the other person does in fact become infected.

If passed, the proposal would overturn previous convictions under the old law, as well as expunge related criminal records and allow a person serving time to have their sentence dismissed. It would also repeal laws that require people convicted of prostitution to be tested for HIV and increase penalties if they test positive. A penalty enhancement for HIV-positive people convicted of sexual assault would not be changed.

Wiener’s communications director, Jeff Cretan, told the B.A.R. that the bill is scheduled for a hearing before the Public Safety Committee March 28, after which it would go before the Appropriations Committee and then to the full Senate for a vote.

Advocates support reform

Reform proponents say SB 239 would bring laws in line with current science, which shows that HIV-positive people who are on antiretroviral treatment with an undetectable viral load can live long and healthy lives and do not transmit the virus to others. In addition, the advent of PrEP, which reduces the risk of HIV infection by more than 90 percent if taken consistently, has changed the meaning of “unprotected” sex.

“We know that people with undetectable levels of virus are very, very unlikely to transmit [HIV],” San Francisco Supervisor Jeff Sheehy, a gay man and the first out HIV-positive person to sit on the board, told the B.A.R. “Many people at risk for contracting the virus are using PrEP to prevent getting infected. These laws, which should never have been passed in the first place, fail to acknowledge these new realities.”

Proponents contend that HIV criminalization laws do not promote public health, but rather discourage people from getting tested, seeking treatment, and disclosing their status to sex partners.

“HIV criminalization laws not only perpetuate discrimination against people living with HIV, they paradoxically discourage people from getting tested, since the laws create greater liability for those who know their status,” Eric Paul Leue, executive director of the Free Speech Coalition, a trade group for the adult entertainment industry that is a member of the CHCR coalition, told the B.A.R.

Existing laws can also discourage vulnerable people with HIV from reporting sexual abuse and violence, according to Naina Khanna, executive director of Positive Women’s Network-USA.

“A myth has been perpetuated that women are somehow protected by these laws, [but] they don’t protect us in any way,” Khanna said at the hearing. “These laws deter people from disclosing their status, they deter access to testing, they may deter people from seeking treatment, and consequently they actually increase risk for everybody. Policing and criminalization targets people of color, targets those who are unstably housed, folks who are homeless and on the streets, and people who are trans and gender non-conforming.”

SB 239 is part of a national and global movement to reform laws that target people living with HIV.

“SB 239 will go a long way toward eliminating a bias in the law and bringing California to the forefront in the effort to combat HIV-related stigma, discrimination, and criminalization,” Sero Project executive director Sean Strub told the B.A.R. “We can prosecute HIV or we can prevent it, but we can’t do both.”

Published in the Bay Area Reporter on March 23rd, 2017

US: Florida State Senate Committee Supports Public Health Measure To Modernize HIV Laws (Press Release)

Press release from the Sero Project

Tallahassee March 22, 2017

The Florida HIV Justice Coalition today applauded members of the Florida State Senate’s Criminal Justice Committee for voting unanimously yesterday in favor of Senate Bill 628.

SB 628 will modernize Florida statutes regarding sexually transmissible infections (STIs) to reflect advances in scientific knowledge and medical treatment, particularly as they concern prevention and treatment of HIV.

The Florida HIV Justice Coalition, comprised of physicians, healthcare workers, legal, public health and policy professionals, people living with HIV and other allies, has led a statewide effort to raise awareness and mobilize support for reform.

Senator Rene Garcia (R-Hialeah), the SB 628’s chief sponsor, said, “Florida doesn’t want to be first in new HIV cases; we want to be first in the effort to end the HIV epidemic. With the support of public health leaders, prosecutors, major HIV service providers in Florida, like the AIDS Healthcare Foundation, the Sero Project (a national network of people living with HIV) and others, we are going to get there. Today’s unanimous vote by the Senate Criminal Justice Committee is an important step.”

Leaders in providing services for people with HIV in Florida, as well as nationally, agree that early testing and ongoing adherence to treatment can stop the spread of HIV.

“Virtually all HIV transmission in Florida is from people who have HIV but do not know it, because they have not been tested, or are not on treatment,” said David Poole, Director of Legislative Affairs at AIDS Healthcare Foundation, Florida’s leading HIV service provider. “Getting tested, treated and virally suppressed prevents HIV transmission. That’s why updating these statutes is a vital HIV prevention strategy for Florida.”

“Public health policies and criminal statutes should be aligned to incentivize HIV testing and treatment. Any criminal act concerning transmission of sexually transmitted infections should be based on an intent to harm, a significant risk of harm and actual infliction of harm,” said Mrs. Kamaria Laffrey, a Winter Haven resident who has led the Florida HIV Justice Coalition and is a woman living with HIV. “We will continue to work with Senator Garcia and other legislators to improve SB 628 as it continues through the legislative process.”

“We commend and thank Senator Garcia for his leadership. We look forward to working with the legislature and our allies to improve public health and ensure equality and justice for all Floridians,” said Tami Haught, a woman living with HIV who coordinates state organizing for the Sero Project, a national organization working to modernize HIV-specific criminal statutes in 32 states.

The bill next moves to the Senate Health Policy Committee. Similar legislation, HB 605, has been filed in the House and will be heard first by that chamber’s Criminal Justice Committee.

Further information:

Kamaria Laffrey, Coordinator, Florida HIV Justice Coalition Kamaria.laffrey(at)seroproject.com

David Poole, Director of Legislative Affairs, AIDS Healthcare Foundation david.poole(at)aidshealth.org

[Update]Mexico: Legislation to criminalise HIV transmission withdrawn in San Luis Potosi State Congress

A House Representative withdraws opinion/ruling that would criminalize HIV transmission in San Luis Potosi

The opinion/ruling with draft decree that was intended to add the crime of risk of contagion to the penal criminal code of the State of San Luis Potosi was withdraw The document established penalties and sanctions to whom or who put someone else at risk of contagion of “a venereal disease or other serious infective period”.

A Member of San Luis Potosí friends fight against AIDS /, Andrés Costilla Castro denounced than this initiative was an attempt against the dignity of PLHIV and promoted stigma towards PLHIV in San Luis Potosí and because of that, they demanded for such decree to be eliminated.

The document was presented by Esther Angelica Martinez Cardenas of the PRI and approved by justice committees; Health and Social Welfare.

Costilla Castro reiterated that this initiative would put people with HIV under a status of potential criminals, and that it opposed their dignity as persons, attempting to take away human rights and stigmatising them because of a health condition.

The opinion/ruling read as follows:

The offence of contagion is committed if a person puts someone in danger of contagion, knowing they are suffering from a venereal disease or other serious illness during an infectious period, putting in danger of contagion the health of another person, by sexual intercourse, or other transmissible method; shall be sentenced from one month to three years in prison, and up to forty days of the value of the unit of measurement and valid update. If the condition or disease was incurable, a sentence of six months to five years in prison shall be imposed. In the case of spouses, boyfriends or concubines, only the case could proceed following a complaint by the offended party.

The opinion/ruling was removed during the session on Thursday to be analyzed again by the committees involved in the issue.

Diputada retira dictamen para penalizar el contagio de VIH en SLP

Fue retirado el dictamen con proyecto de decreto que planteaba la adición del delito de Peligro de Contagio al Código Penal del Estado de San Luis Potosí. El documento establecía penas y sanciones a quien o quienes pongan a otra persona en riesgo del contagio de “una enfermedad venérea u otra grave en período infectante”.

Por su parte el integrante de la organización Amigos Potosinos en Lucha Contra el Sida, Andrés Costilla Castro denunció que esta iniciativa atenta contra la dignidad y promueve el estigma hacia las personas con VIH en San Luis Potosí por lo que solicitaron fuera bajado este dictamen.

El documento, fue presentado por la priista Esther Angélica Martínez Cárdenas y aprobado por las Comisiones de Justicia; y Salud y Asistencia Social.

Costilla Castro reiteró que esta iniciativa colocaría a las personas con VIH bajo un estatus de posibles criminales, contraviniendo a su dignidad como personas, a tentando a sus derechos humanos y estigmatizándolos por su condición de salud,

El dictamen marcaba lo siguiente:

Comete el delito de peligro de contagio quien, a sabiendas de que padece una enfermedad venérea u otra grave en período infectante, ponga en peligro de contagio la salud de otra persona, por relaciones sexuales, u otro medio transmisible; será sancionado de un mes a tres años de prisión, y hasta cuarenta días del valor de la unidad de medida y actualización vigente

Si la enfermedad padecida fuera incurable se impondrá la pena de seis meses a cinco años de prisión. Cuando se trate de cónyuges, concubinarios o concubinas, sólo podrá procederse por querella de parte ofendida

El dictamen fue retirado durante la sesión de este jueves para ser analizado nuevamente por las comisiones involucradas en el tema.

Published in La Orquesta on March 17, 2017

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First article published on March 16, 2017 (English google translation, scroll down for Spanish article)

Congress a step away from criminalising HIV transmission…Again

The Secretary of health, international treaties and activists are against the proposal.

By María José Puente

This Thursday, in a plenary session, the State Congress will vote on a draft decree that adds the crime of Danger of Contagion to the Penal Code of the State of San Luis Potosí. If approved, the new legislation establishes penalties and sanctions to those who put someone else at risk of contagion of “a venereal or other serious illness when being infectious.”

The document, already approved by the Justice Commissions; and Health and Social Services , was presented to the Congress by Esther Angélica Martínez Cárdenas, from the PRI group. There, the deputy says that it is necessary for the Potosino penal code to adopt the federal standard, where the crime is mentioned and allows for a penalty of up to 5 years in prison, equal to the one raised in the State decision.

The text reads:

“The offense of contagion is committed by a person who, knowing that he suffers from a venereal or other serious illness in an infectious period, endangers the health of another person by sexual intercourse or other transmissible means; Will be sanctioned from one month to three years in prison, and up to forty days of the value of the current unit of measurement and update.

If the illness suffered is incurable, a sentence of six months to five years’ imprisonment shall be imposed. In the case of spouses, or concubines, the case may only proceed following a complaint by the offended party “.

For the organizations that defend the rights of the LGBT population and the Ministry of Health at the national and even state level, this homologation is not only anachronistic, but it also puts at risk the population suffering from ilnesses such as those mentioned there and particularly those who have been or may be diagnosed with HIV or AIDS.

REPEATED ERROR

In October of 2016, Juan Manuel Carreras, governor of San Luis; In conjunction with the Women’s Institute, attempted a similar legislative move, presenting a package of initiatives aimed at preventing violence against women.

The argument, said in an interview Jeús Paul Ibarra Collazo , head of Red Diversificadores Sociale was directed in such a way because the rate of contagion of women by way of their spouses could increase because part of the male population, openly heterosexual, actually had sexual relations with other homosexual men, contracted the disease and then, continued at the same time with their female partner, which resulted in her being infected as well.

Ibarra Collazo recognizes that the male homosexual population leads the statistics of HIV or AIDS, because by keeping alive what he calls internalized homophobia, the spread of the disease through sexual contact between men increases the number of cases.

Regardless of this, the Ministry of Health sent a press release specifically addressed to Juan Manuel Carreras, who asked him to take a second look at the initiative because, according to international treaties to which Mexico is a signatory, the measure that the governor and the IMES intended to boost is useless.

” The National Center for Prevention and Control of HIV / AIDS of the Ministry of Health calls for an analysis of this proposal in the framework of international and national recommendations in this area, since criminalization or criminalization of people with HIV is not a public policy that helps to reduce and control the epidemic, quite the contrary, it has been shown that the establishment of restrictions, indications or penalties for people with HIV does not prevent them from spreading the virus and there is little evidence that Criminal sanctions will ‘rehabilitate’ a person so as to avoid future risk behavior of HIV transmission, “the statement said.

After reception of the document and after a dialogue between the state agencies, Red Diversificadores Sociales and the pressure of the group Amigos Potosinos in Fight against Aids, the initiative seemed to have been withdrawn; However, this March 16, again and after already having been approved by the aforementioned committees, the article will be voted on by the 27 deputies that make up the Congress, without it being clear whether Congresswoman Esther Angélica Martínez Cárdenas is aware or not of the previous initiative.

STIGMA, DISCRIMINATION AND LACK OF PREVENTION POLICY

Although the Ministry of Health points out that “imposing penalties can only be justified in case of conduct that is legally condemnable, so that criminal law based on this objective can only legitimately be applied to a subset of cases of HIV transmission” it also highlights that “this does not have anything to do with the primary goal of preventing HIV transmission. “

This can also be seen as presented by APELCS : “It is very difficult to determine causality, deceit, intentionality and various factors involved in the transmission of HIV”, and also, as stated by Paul Ibarra, and reaffirmed by the Ministry of Health, establishing punitive measures for the contagion of HIV or any other disease could inhibit the will of the key subjects to undergo the screening tests that finally have proven to be a palliative way to avoid transmission.

That is, when there is a penalty for contagion, it automatically pose a warning sign on the carriers, whether men, women, children or girls, which can facilitate discrimination and stigma on a disease that, with the advance of science and effective public policies of prevention, has ceased to be a death sentence for a large part of the population.

APELCS , on the other hand, exhorts “the members of the Health Commissions; Justice and social services; In particular to Congresswoman Esther Angélica Martínez Cárdenas to reconsider the criminalization of HIV and to lower this initiative, as they would put people with HIV under the status of potential criminals, in contravention to their dignity as persons, undermining their human rights and stigmatizing them for their Health condition “.

Paul Ibarra , on the other hand, points out what seems to be obvious and that is that there is a dislocation between the powers of the state, since the return of this attempt to change the Criminal Code, denotes that the deputy who is promoting it did not take into account the antecedent in October, nor was aware of the pronouncement against by the Ministry of Health, RDS and APELCS scarcely 5 months ago.

Published in La Orquesta on March 16, 2017

___________________________________________________

Congreso, a un paso de penalizar el contagio de VIH… Otra vez

Secretaría de Salud, tratados internacionales y activistas están en contra de la propuesta.

Por María José Puente

Este jueves, en el Pleno del Congreso del Estado será votado un dictamen con proyecto de decreto que plantea la adición del delito de Peligro de Contagio al Código Penal del Estado de San Luis Potosí. De aprobarse, la nueva normativa establece penas y sanciones a quien o quienes pongan a otra persona en riesgo del contagio de “una enfermedad venérea u otra grave en período infectante”.

El documento, ya aprobado por las Comisiones de Justicia; y Salud y Asistencia Social, fue presentado en el Congreso por Esther Angélica Martínez Cárdenas, de la bancada priista. Ahí, la diputada expone que es necesario que el código penal potosino tome de molde la norma federal, donde el delito mencionado sí se contempla y establece una pena que puede llegar a los 5 años de prisión, igual que lo plantea el dictamen estatal.

Textualmente, en el dictamen se lee:

“Comete el delito de peligro de contagio quien, a sabiendas de que padece una enfermedad venérea u otra grave en período infectante, ponga en peligro de contagio la salud de otra persona, por relaciones sexuales, u otro medio transmisible; será sancionado de un mes a tres años de prisión, y hasta cuarenta días del valor de la unidad de medida y actualización vigente.

Si la enfermedad padecida fuera incurable se impondrá la pena de seis meses a cinco años de prisión. Cuando se trate de cónyuges, concubinarios o concubinas, sólo podrá procederse por querella de parte ofendida”.

Para las organizaciones de defensa de los derechos de la población LGBT y la propia Secretaría de Salud a nivel nacional y hasta estatal, dicha homologación es no solo anacrónica, sino que pone en riesgo a la población portadora de enfermedades como las que ahí se señalan y particularmente a quienes han sido diagnosticados o podrían serlo con VIH o Sida.

ERROR REPETIDO

En octubre de 2016, Juan Manuel Carreras, gobernador de San Luis; en conjunto con el Instituto de las Mujeres intentó una movida legislativa similar, presentando un paquete de iniciativas que tenían como objetivo prevenir la violencia contra las mujeres.

El argumento, dice en entrevista Jeús Paul Ibarra Collazo, titular de Red Diversificadores Sociales; se dirigía en el sentido de que el índice de contagio de mujeres por la vía de sus cónyuges podría ir en aumento porque parte de la población masculina, abiertamente heterosexual, en realidad mantiene relaciones sexuales con otros hombres homosexuales, contrae la enfermedad y luego, al continuar con su pareja mujer, ella también resultaba contagiada.

Ibarra Collazo reconoce que la población homosexual masculina lidera la estadística de contagio de VIH o Sida, pues al mantenerse vivo lo que él llama homofobia interiorizada, el contagio y diseminación de la enfermedad por contacto sexual entre hombres incrementa el número de casos.

Independientemente de ello, la Secretaría de Salud envió un comunicado de prensa específicamente dirigido a Juan Manuel Carreras, a quien le pidió echar un segundo vistazo sobre la iniciativa pues, según tratados internacionales a los que México está suscrito, la medida que el gobernador y el IMES pretendían impulsar es inservible.

“El Centro Nacional para la Prevención y Control del VIH/Sida de la Secretaría de Salud hace un llamado para que se analice esta propuesta en el marco de las recomendaciones internacionales y nacionales en la materia, ya que la penalización o criminalización de las personas con VIH no es una política pública que ayude a la disminución y el control de la epidemia, muy por el contrario está demostrado que el establecimiento de restricciones, señalamientos o penas a personas con VIH no impide que propague el virus y existe poca evidencia de que las sanciones penales ‘rehabilitarán’ a una persona de modo que evite un comportamiento futuro de riesgo de transmisión del VIH” sentencia el comunicado.

Recibido el documento y tras un diálogo entre las dependencias estatales, Red Diversificadores Sociales y la presión del grupo Amigos Potosinos en Lucha contra el Sida, la iniciativa parece haber sido retirada; sin embargo, este 16 de marzo, nuevamente y ya aprobado incluso por las comisiones mencionadas, el dictamen será votado por los 27 diputados que integran el Congreso, sin que quede claro si la diputada Esther Angélica Martínez Cárdenas tiene conocimiento de la iniciativa anterior.

ESTIGMA, DISCRIMINACIÓN Y ESCASA POLÍTICA DE PREVENCIÓN

Aunque la Secretaría de Salud apunta que “imponer penas solo puede justificarse en conductas que sean jurídicamente condenables, de modo que el derecho penal basado en este objetivo solo puede aplicarse legítimamente a un subconjunto de casos de transmisión del VIH” también remata que “esto no tiene nada que ver con el objetivo principal de prevenir la transmisión del VIH”.

Eso puede también verse como lo plantea APELCS: “Es muy difícil determinar la causalidad, el dolo, la intencionalidad ya que intervienen diversos factores en la trasmisión del VIH” además, como también secunda Paul Ibarra y reafirma la Secretaría de Salud, establecer medidas punitivas por el contagio de VIH o cualquier otra enfermedad podría inhibir la voluntad de los sujetos clave para someterse a las pruebas que finalmente sí han demostrado ser un paliativo para evitar el contagio.

Es decir, que al existir una pena por el contagio, automáticamente se establece una señal de alerta sobre los sujetos portadores, sean hombres, mujeres, niños o niñas, lo que puede favorecer la discriminación y el estigma sobre una enfermedad que, con el avance de la ciencia y las políticas públicas efectivas de prevención, ha dejado de ser, para una buena parte de la población, una sentencia de muerte.

APELCS, por su parte, exhorta “a las y los integrantes de las Comisiones de Salud; Justicia y asistencia social; en particular a la Diputada Esther Angélica Martínez Cárdenas a reconsiderar la penalización del VIH y a bajar esta iniciativa, pues colocarían a las personas con VIH bajo un estatus de posibles criminales, contraviniendo a su dignidad como personas, atentando a sus derechos humanos y estigmatizándoles por su condición de salud”.

Paúl Ibarra, por otro lado, señala lo que a ojos vistas parece saltar y es que existe una desarticulación entre los poderes del estado, pues el regreso de este intento de modificación al Código Penal, denota que la diputada que la promueve no tomó en cuenta el antecedente de octubre, ni tuvo conocimiento del pronunciamiento en contra hecho por la Secretaría de Salud, RDS y APELCS hace escasos 5 meses.

Published in La Orquesta on March 17, 2017

Canada: Advocacy groups hope law criminalising HIV non-disclosure will change soon

Advocates hope for change in HIV non-disclosure law after Ottawa meeting with provinces

Law criminalizing HIV non-disclosure needs to catch up with science, advocates say.

Advocacy groups are hoping the law criminalizing HIV non-disclosure in Canada will change after a meeting between Ottawa and the provinces in the spring.

Under Canadian law, people with HIV are required to disclose their health status to their partner before engaging in sexual activity. Those who don’t can be charged with aggravated sexual assault, whether or not HIV is actually transmitted, and face a maximum sentence of life in prison as well as permanent status as a registered sex offender.

Criminalizing non-disclosure only compounds the marginalization and fear in the lives of people living with HIV, advocacy groups say.

“This is a really important issue. The federal government has made a commitment to review the way our justice system handles HIV-related cases. And that’s something that we fully support and welcome,” Emilie Smith, a spokesperson with the Ministry of the Attorney General, told the Star in an email.

“Ontario is currently working with the federal government on this review — so that work has already started.”

The Supreme Court of Canada has ruled that a person with HIV can only keep their condition from a partner if they have a low viral load — the number of HIV virus particles in a millilitre of blood — and use a condom.

Advocates argue the law does not take into account science that says that as long as a person has an undetectable viral load, risk of transmission is practically zero, even if the person did not use a condom.

The Canadian medical community has also weighed in. In 2014, more than 70 national AIDS doctors and HIV researchers released a statement expressing concern for the Supreme Court’s approach to nondisclosure as “a poor appreciation of the science related to HIV contribut(ing) to an overly broad use of the criminal law.”

Internationally, the United Nations Programme on HIV/AIDS (UNAIDS) and the Global Commission on HIV and the Law both urged governments to limit the use of criminal law to cases of intentional transmission of the virus.

For advocates calling on lawmakers to catch up with science and reconsider its laws on HIV criminalization, the meeting between the federal government and the provinces cannot come soon enough.

In a 2013 report on the criminalization of non-disclosure and recommendations for police, the HIV & AIDS Legal Clinic Ontario underlined the “significant scientific consensus on certain key issues” as it relates to the virus.

“For over a decade, HIV has been medically understood as a chronic, manageable infection,” it reads, noting a low or undetectable viral load — usually the result of effective antiretroviral drug treatment — reduces the risks of HIV transmission through sex “to a point where the risk of transmission is negligible.”

The prosecutions are unfortunately having an impact on the most vulnerable people living with HIV, said Ryan Peck, the legal clinic’s executive director.

“There’s also the issue that the current approach to criminal law is impacting people’s decisions to test for HIV in the first place — the current use providing a disincentive to get tested.

“There is a deep fear that what people say to their health-care providers and public health authorities will end up in a court case against them.”

Last month, a protest was held outside the ministry’s office to protest the “overly broad and unjust” charges relative to HIV disclosure.

Ontario leads in the number of people charged with HIV status non-disclosure and 180 people have been charged across the country, Jonathan Valelly of Queers Crash the Beat said at the protest.

The protesters were calling for a moratorium on all HIV non-disclosure cases currently before the courts.

“This issue is just not that cut-and-dry. These cases are highly complex, and no two cases are exactly alike,” said Smith, the attorney-general spokesperson.

“What needs to happen and what is happening, is a conversation that looks at the law, how it is being applied as well as our understanding of HIV. We agree that a review is needed and the federal government has committed to look at the current law critically to see if there are changes to the Criminal Code that need to be made.”

Published in the Star on March 5, 2017

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.