Mexico: Sexual connotation removed from BCS article on “danger of contagion” but full repeal denied

To avoid discrimination, article of the BCS Penal Code on “danger of contagion” was reformed

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

The sexual connotation was removed from the wording of Article 168 of the BCS Penal Code, which addresses the “Danger of Contagion”.

La Paz, Baja California Sur (BCS). This week, the Legislative Power approved a citizen’s initiative to reform article 168 of the Penal Code for Baja California Sur, referring to “danger of contagion”, in whose wording the sexual connotation was removed, following a citizen’s initiative.

The text defined the danger of contagion as “whoever, with the knowledge that he or she suffers from a serious and transmissible disease, puts the health of another in danger of contagion, through sexual relations or any other transmissible means”, as stated.

Therefore, a generic term was proposed and approved by the assembly, to read as follows: “Whoever, with the knowledge that he or she is suffering from a serious and transmissible disease, endangers the health of someone else by any transmissible means”.

In its opinion, the Standing Committee on Constitutional Points and Justice established that the previous wording does indeed refer, in particular, to sexual relations as a means of committing the crime, which could result in a form of discrimination against people suffering from HIV.

It is worth mentioning that, in the original initiative, it was proposed to repeal the article in its entirety, however, the deputies considered reforming the law.

“The text referring to ‘sexual relations’ was deleted, with the aim of not falling under the assumption of the unconstitutionality action number 139/2015, where the Supreme Court of Justice of the Nation invalidated the contested normative part, that is, the added expression ‘sexually transmitted infections’,” explained the president of the Constitutional and Justice Commission, José María Avilés Castro.

Para evitar discriminación, reforman artículo del Código Penal de BCS sobre “peligro de contagio”

Se suprimió la connotación sexual en la redacción del Artículo 168 del Código Penal en BCS, misma que aborda el “Peligro de Contagio”

La Paz, Baja California Sur (BCS). Esta semana, en el Poder Legislativo se aprobó una iniciativa ciudadana que reforma el artículo 168 del Código Penal para Baja California Sur, referente al “peligro de contagio”, en cuya redacción se suprimió la connotación sexual; esto, tras una iniciativa ciudadana.

El texto definía al peligro de contagio como “a quien con conocimiento de que padece una enfermedad grave y transmitible, ponga en peligro de contagio la salud de otro, por relaciones sexual u otro medio transmitible”, según lo expuesto.

Por lo anterior, se propuso un término genérico y fue aprobado por la asamblea, para quedar de la siguiente forma: “A quien con conocimiento de que padezca una enfermedad grave y transmitible ponga en peligro de contagio la salud de alguien por cualquier medio transmitible”.

La Comisión Permanente de Puntos Constitucionales y de Justicia en su dictamen estableció que la redacción anterior efectivamente hace alusión, en forma particular, a las relaciones sexuales como medio de comisión del delito, lo que se podía traducir en una forma de discriminación a las personas que padecen VIH.

Conviene mencionar que, en la iniciativa original se proponía derogar el artículo en su totalidad, sin embargo, los diputados consideraron reformar la Ley.

“Se suprimió el texto referente a ‘relaciones sexuales’, con la finalidad de no caer en el supuesto de la acción de inconstitucionalidad número 139/2015, donde la Suprema Corte de Justicia de la Nación invalidó la parte normativa impugnada, esto es, la expresión adicionada ‘infecciones de transmisión sexual’”, explicó el presidente de la comisión de Puntos Constitucionales y de Justicia, José María Avilés Castro.

Mexico: Proposal for reform of HIV and STI criminalisation law put forward to Puebla Justice Commission for consideration

Proposed repeal of penalties for people with sexually transmitted diseases

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

Because they are discriminatory, they are proposing to the State Congress to repeal the sanctions applicable to those who are carriers of a sexually transmitted disease that could put other people at risk of infection.

Jocelyn Olivares López, a member of the National Regeneration Movement (Morena), said that articles 213 and 214 of the Puebla Penal Code violate the human rights of people diagnosed with one of these diseases.
She pointed out that the discrimination experienced by people with AIDS or any sexually transmitted infection is unfortunate, as prevention and care of the diseases are put on the back burner and their criminalisation is encouraged.

“The purpose is to eliminate the sanctions established for those who, knowing that they suffer from a sexually transmitted infection or any other chronic or serious disease that can be transmitted sexually or by any other direct means, put the health of another person at risk of infection”.
The initiative proposed by the Morena legislator was turned over to the Commission for the Procuration and Administration of Justice of the LXI Legislature for its study and corresponding resolution.

Proponen derogar sanciones aplicables a portadores de enfermedades venéreas

Por ser discriminatorias, proponen al Congreso del Estado la derogación de las sanciones aplicables a quienes siendo portadores de una enfermedad de transmisión sexual pudieran poner en riesgo de contagio a otras personas.

La diputada por el Movimiento de Regeneración Nacional (Morena), Jocelyn Olivares López, dijo que los artículos 213 y 214 del Código Penal de Puebla vulneran los derechos humanos de las personas diagnosticadas con alguno de estos padecimientos.
Señaló que es lamentable la discriminación que viven las personas con Sida o alguna infección de transmisión sexual, pues se deja en segundo plano a la prevención y atención de las enfermedades y se fomenta su criminalización.

“El propósito es eliminar las sanciones establecidas a quien sabiendo que padece un mal venéreo o cualquier otra enfermedad crónica o grave que sea transmisible por vía sexual o por cualquier otro medio directo, pusiere en peligro de contagio la salud de otra persona”.
La iniciativa planteada por la legisladora de Morena fue turnada a la Comisión de Procuración y Administración de Justicia de la LXI Legislatura para su estudio y resolución correspondiente.

Mexico: HIV Criminalisation reform one of the pending issues in Mexico City backlog of legislative reforms

Congress is behind on reform to decriminalise HIV

Translated via Deepl.com. Scroll down for the original article in Spanish.

Congress is behind on reform to decriminalise HIV

The local Congress has an initiative on the agenda to remove the stigmatisation of people with HIV from Article 159 of the Penal Code, said the Attorney General of Justice, Ernestina Godoy. This Article establishes that a person can go to prison for up to 10 years for living with a “serious illness” for the crime of “danger of contagion”. “The Mexico City Congress is now debating proposals to repeal the criminal offence of danger of contagion, because it stigmatises and criminalises people living with HIV,” said the Prosecutor. “This would be a very important step forward in the fight against discrimination. ,
The reform is one of the pending issues in the backlog of this legislature, and the head of government, Martí Batres, said that the law criminalises people with HIV, which is why he asked legislators to remove it. “Today (Friday), which is World AIDS Day, we reiterate the call we made to the Congress of Mexico City to repeal Article 159,” said Batres. He added that criminal behaviour should be included in the Penal Code. “And we must decriminalise those behaviours that are not part of criminal activities, that is why today (Friday) we reiterate this call to repeal Article 159 of the Penal Code,” he insisted. “It criminalises an intention and a risk, not criminal behaviour”. The Head of Government underlined that the provision will contribute to building a city of human rights.

Adeuda Congreso reforma para despenalizar VIH

El Congreso local tiene agendada una iniciativa para suprimir la estigmatización de las personas con VIH del Artículo 159 del Código Penal, señaló la Fiscal General de Justicia, Ernestina Godoy. Este Artículo establece que una persona podrá ir a prisión hasta 10 años por vivir con una “enfermedad grave” por el delito de “peligro de contagio”. “El Congreso de la Ciudad de México debate ahora propuestas para derogar el tipo penal de peligro de contagio, debido a que estigmatiza y criminaliza a las personas que viven con VIH”, planteó la Fiscal. “Esto sería un avance muy importante en la lucha contra la discriminación”.
La reforma es uno de los pendientes acumulados en los rezagos de esta legislatura.El Jefe de Gobierno, Martí Batres , expuso que tal ordenamiento criminaliza a las personas con VIH, por lo que se pidió a los legisladores quitarlo. “Hoy (viernes), que es el Día Mundial de Lucha contra el SIDA, reiteramos el llamado que hicimos al Congreso de la Ciudad de México para derogar el Artículo 159”, urgió Batres. El Mandatario agregó que en el Código Penal deben estar las conductas criminales. “Y debemos descriminalizar aquellas conductas que no forman parte de actividades delictivas, por eso el día de hoy (viernes) reiteramos este llamado para derogar el Artículo 159 del Código Penal”, insistió. “Criminaliza una intención y un riesgo, y no una conducta criminal”. El Jefe de Gobierno subrayó que la disposición abonará en construir una Ciudad de derechos humanos.

US: Tennessee’s aggravated prostitution statute violates the Americans with Disabilities Act

Justice Department Finds that Enforcement of Tennessee State Law Discriminates Against People with HIV

he Justice Department announced today its finding that the State of Tennessee, including its Bureau of Investigation (TBI) and the Shelby County District Attorney’s Office (SCDAO), violated the Americans with Disabilities Act (ADA) by enforcing the state’s aggravated prostitution statute against people living with human immunodeficiency virus (HIV). Today’s announcement comes on World AIDS Day, an international day dedicated to raising awareness of the AIDS pandemic.

The department’s comprehensive investigation found that the state and the SCDAO subject people living with HIV to harsher criminal penalties solely because of their HIV status, violating Title II of the ADA.

“Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “People living with HIV should not be treated as violent sex offenders for the rest of their lives solely because of their HIV status. The Justice Department is committed to ensuring that people with disabilities are protected from discrimination.”

Tennessee’s aggravated prostitution statute elevates what would otherwise be misdemeanor conduct to a felony because the individual has HIV, regardless of any actual risk of harm. A person convicted of aggravated prostitution faces three to 15 years in prison and a fine up to $10,000, while a person convicted of a misdemeanor charge based on the same conduct is subject to a sentence of no more than six months and up to a $500 fine. While the aggravated prostitution statute applies statewide, it has been enforced most frequently in Shelby County.

Aggravated prostitution is also categorized as a “violent sexual offense” mandating registration by those convicted on the Tennessee Sex Offender Registry, in most cases for life. The state maintains the registry through the TBI. Individuals placed on the registry due to convictions for aggravated prostitution are restricted in where they may live, work and go in public, and have experienced increased homelessness and unemployment. These individuals also face public disclosure of information about their HIV status, which can lead to harassment and discrimination. The department opened this investigation in response to complaints about enforcement of the statute.

The department’s letter provides Tennessee, TBI and the SCDAO, with written notice of its findings and details the minimum remedial measures necessary to address them.

The Justice Department plays a central role in advancing the ADA’s goals of equal opportunity, full participation, independent living and economic self-sufficiency for people with disabilities. For more information on the Civil Rights Division, please visit www.justice.gov/crt. For more information on the ADA, please call the department’s toll-free ADA Information Line at 1-800-514-0301 (TTY 1-833-610-1264) or visit www.ada.gov.

US: Louisiana debates overhaul of controversial HIV criminalisation law

State task force weighs revising Louisiana law criminalizing HIV exposure

By Meghan Friedmann

Some state legislators are pushing to change Louisiana’s HIV criminalization law, which mandates up to 10 years in prison and 15 years on the sex offender registry for people convicted of intentionally exposing people to the virus.

Advocates for changing the 1987 law say it is overly broad and results in false accusations and convictions even when no HIV transmission occurs. They also say the law relies on a flawed understanding of how HIV is spread, and that it discourages HIV testing because it shields people who do not know their status from criminal liability.

Proponents for keeping the law say it protects people from getting HIV, and that there shouldn’t be leniency for those who put others at risk of infection.

The state’s Task Force to Study HIV Criminalization, which met last week, is taking up those issues. The panel, which includes legislators and health care professionals, could ultimately ask the Legislature to consider revising the law.

Legislator members include State Rep. Aimee Freeman, D-New Orleans, who co-authored the House resolution that convened the panel; Rep. Vanessa LaFleur, D-Baton Rouge, and Rep. Wayne McMahen, R-Minden.

“I do hope the members of the (Legislature) will see the reasons for this change,” Freeman said in an interview. “It’s just to update a law that’s using old science.”

McMahen, the task force’s lone Republican legislator, said in an interview that he was open to updating the law but hadn’t yet made any decisions on what changes should occur.

“You want a pathway forward, but you’ve got to have guardrails on that pathway too, to protect both sides of the population,” McMahen said, referring to people who are HIV positive and people who are not. “This was a fact-finding, information-gathering task force. … then we need to see what we can come up with.”

It remains to be seen whether the issue will be supported by other lawmakers or by Gov.-elect Jeff Landry, the state’s hard-right attorney general who has promised to be tough on crime.

A Landry spokesperson said she could not provide comment by deadline. Landry is widely expected to call a special session on crime in January.

At issue is a statute that holds that “no person shall intentionally expose another to HIV through any means or contact without the knowing and lawful consent of the victim, if at the time of the exposure the infected person knew he was HIV positive.”

Convictions result in a decadelong prison sentence or a $5,000 fine, or both, with slightly steeper penalties for those convicted of exposing a first responder to the virus. Louisiana also requires people convicted of crimes involving HIV to register as sex offenders.

A defendant can only avoid conviction if they prove the person exposed knew the defendant had HIV and knew the act could result in an infection, or if they prove both that they disclosed their status and either a medical professional told them they were noninfectious, or they “took practical means to prevent transmission.”

Between 2011 and 2022, at least 176 people were arrested under Louisiana’s HIV criminalization statute. About 91% of those arrested were Black men, a population that makes up 44% of state residents living with HIV.

During last week’s task force meeting, Rep. Larry Bagley, R-Stonewall, expressed skepticism over whether it was necessary to change the law. Bagley is not a member of the task force but sat in as McMahen’s proxy.

“With somebody that would pass HIV along knowingly, I wouldn’t have any sympathy at all for them, and as a legislator, I would never vote to change those laws where we’re going to allow those things,” he said. “Regardless of what is said it can lead to your death. … I’m going to take a pretty strong stance there.”

But other task force members who support changes stressed that an HIV diagnosis is no longer a death sentence and noted that modern-day treatment options can make it impossible for HIV-positive individuals to infect others.

George Nawas, a clinical assistant professor at Xavier University, said HIV is the only sexually transmitted infection that Louisiana criminalizes. HIV criminalization may work against public health by reducing test rates, he added. In 2020, Louisiana had the fourth-highest HIV case rate in the country.

“(The law) is putting responsibility on people living with HIV if at the time of the exposure the infected person knew he was HIV positive. One of the things that we know to end the HIV epidemic is to encourage people. … to get tested,” Nawas aid. “So by someone reading this statute here … people are discouraged to know their status.”

Belize: Senate follows House of Representatives and votes for repeal of HIV criminalisation law

Law which makes it a crime to spread HIV repealed

Ву Ааrоn Нumеѕ: Fоllоwіng frоm thе Ноuѕе оf Rерrеѕеntаtіvеѕ, thе Ѕеnаtе соnѕіdеrеd thе аmеndmеntѕ tо thе Сrіmіnаl Соdе, ѕресіfісаllу ѕесtіоnѕ 46(а) аnd 73(а) соnсеrnіng сrіmіnаl rеѕроnѕіbіlіtу fоr trаnѕmіѕѕіоn оf thе humаn іmmunоdеfісіеnсу vіruѕ (НІV) whісh lеаdѕ tо Асquіrеd Іmmunоdеfісіеnсу Ѕуndrоmе (АІDЅ).

Іn thе Ноuѕе, Міnіѕtеr оf Неаlth, Кеvіn Веrnаrd, ѕtаtеd: “Рunіtіvе lаwѕ аrе nоt thе mоѕt еffесtіvе wау tо соmbаt thіѕ еріdеmіс. Тhеу саn, іn fасt, роѕе ѕіgnіfісаnt bаrrіеrѕ tо НІV рrеvеntіоn, trеаtmеnt, аnd саrе. Ву сrіmіnаlіzіng thе trаnѕmіѕѕіоn оf НІV/АІDЅ, wе run thе rіѕk оf drіvіng thе dіѕеаѕе undеrgrоund, dіѕсоurаgіng thоѕе аt rіѕk frоm ѕееkіng tеѕtіng, соunѕеlіng, аnd trеаtmеnt fоr fеаr оf lеgаl rерrіѕаl. Тhеrеfоrе, Маdаm Ѕреаkеr, thе Міnіѕtrу оf Неаlth аnd Wеllnеѕѕ fіrmlу bеlіеvеѕ thаt thе bаttlе аgаіnѕt НІV/АІDЅ ѕhоuld nоt bе fоught іn thе соurtrооm, but іn оur соmmunіtіеѕ, оur hоѕріtаlѕ, аnd оur сlіnісѕ. Wе ѕhоuld fосuѕ оur еffоrtѕ оn еduсаtіоn, рrеvеntіоn, саrе, аnd ѕuрроrt rаthеr thаn рunіѕhmеnt. Wе ѕhоuld аіm tо rеduсе thе ѕtіgmа аnd dіѕсrіmіnаtіоn thаt ѕurrоundѕ thіѕ dіѕеаѕе tо еnсоurаgе mоrе реорlе tо gеt tеѕtеd, tо knоw thеіr ѕtаtuѕ, аnd tо ѕееk trеаtmеnt. Аnd ѕо, dеfіnіtеlу, Маdаm Ѕреаkеr, thе rереаl оf thіѕ ѕесtіоn, 46А, аnd 73А, іѕ а ѕtер tоwаrdѕ а mоrе соmраѕѕіоnаtе, mоrе еffесtіvе аррrоасh tо аddrеѕѕіng НІV/АІDЅ.”

Іn thе Ѕеnаtе, Місhаеl Реуrеfіttе ѕuggеѕtеd аn ехсерtіоn fоr іnѕtаnсеѕ оf rаре аnd ѕехuаl аѕѕаult, роіntіng оut thаt а rаріѕt іѕ nоt lіkеlу tо rеvеаl thеіr НІV ѕtаtuѕ bеfоrе соmmіttіng thе асt.

Ѕеnаtоr Јаnеllе Сhаnоnа rесаllеd hеr јоurnаlіѕm dауѕ аnd nоtеd thаt ѕtіgmа аnd dіѕсrіmіnаtіоn rеmаіn rеаl fоr реrѕоnѕ wіth НІV аnd thаt а dіѕсuѕѕіоn оn ѕехuаl hеаlth аnd рrоtесtіоn іѕ nееdеd mоrе thаn еvеr.

Веlіzе hаѕ аvеrаgеd mоrе thаn 200 іnfесtіоnѕ frоm НІV реr уеаr іn thе lаѕt dесаdе wіth а hаndful оf dеаthѕ rероrtеd.

US: Kentucky removes felony penalties for people living with HIV who donate organs and for the possession of HIV self-tests

Newly legal at-home HIV test kits to be distributed

A new law taking effect on Thursday nullifies two HIV-related felonies in state law, and advocacy groups will celebrate by handing out HIV self-test kits.

What You Need To Know

House Bill 349 takes effect on Thursday, which decriminalizes HIV self-test kits

Advocates will distribute free kits Thursday in Louisville and Lexington

HB 349 also removes felony penalties for people who donate organs, skin or other human tissue while being HIV positive

 

Kentucky’s “HIV Is Not a Crime Coalition” announced it will hold events in Louisville and Lexington on Thursday, June 29, to distribute free HIV home-test kits legally for the first time ever in Kentucky.

In Louisville, the kits will be available starting at 11 a.m. outside the headquarters of VOCAL-KY at 4th Street and Broadway. In Lexington, kits will be distributed starting at 1 p.m. at the AVOL office at 1824 Hill Rise Dr. Suite 100.

House Bill 349, which earned bipartisan passage during the 2023 legislative session, takes effect on Thursday. Among other things, the measure addresses two HIV-related issues: it removes felony penalties for people who donate organs, skin or other human tissue while being HIV positive, and it decriminalizes the possession or use of HIV self-tests.

Gov. Andy Beshear (D) signed HB 349 into law on March 31, and it has been hailed as one of the most sweeping HIV modernization laws in the nation, according to the Kentucky Fairness Campaign.

US: Nearly 200 people have been charged under Ohio’s antiquated HIV-criminalization laws

Ohio’s ‘unjust’ HIV-criminalization laws still in effect, state’s revised code shows

by:

COLUMBUS, Ohio (WCMH) — Ohio is home to several statutes criminalizing HIV, including a felony charge and prison sentence for those with the virus who fail to disclose their status to sexual partners.

HIV-positive Ohioans can be charged with second-degree felonious assault and receive a prison sentence of up to eight years for engaging in sexual conduct without divulging their medical history, Ohio’s Revised Code states. Ohio law also bars those with HIV from donating blood or plasma and penalizes those individuals for exposing others to their bodily fluid, like by spitting or biting.

However, HIV is not transmitted through saliva or unbroken skin and there are no documented cases of the virus spreading through spitting, according to the Centers for Disease Control and Prevention. Those living with HIV also cannot pass the virus through sex when they have reached an undetectable level of HIV in their blood, achieved through medication estimated to be 100% effective.

These antiquated laws have more severe punishments than for reckless homicide, sexual battery, or arson, according to the Ohio Health Modernization Movement. The organization has led the movement calling for reform of Ohio’s provisions that “incorrectly assume an HIV diagnosis is a death sentence.”

“The impact of Ohio’s unjust HIV laws reach far beyond their original intention,” the OHMM said. “They are unproductive because they are unsupported by science. This has led to unjust felony convictions that punish not only the perceived perpetrator, but the community at large.”

Nearly 200 charges under Ohio’s HIV-criminalization laws

One hundred and ninety-two cases across 65 Ohio counties have been confirmed to be connected to statutes criminalizing HIV, according to the OHMM. Of those cases, 104 have been charged for spitting, 60 for felonious assault, 13 for solicitation, four for loitering and one for prostitution.

The OHMM argues the HIV-related criminal prosecutions, of which more than a dozen have been tried in the last few years, are costly. Ohio spends more than $1 billion a year to run its prison system, at a cost of more than $25,000 an inmate.

“The money spent to incarcerate people under HIV criminal laws would be better spent on HIV prevention efforts and supporting the over 20,000 Ohioans living with HIV,” the organization said.

Further, there is no evidence that HIV criminalization laws promote public health by increasing disclosure, HIV testing or practice of safe sex, the OHMM said. The laws have also had zero impact on rates of HIV diagnosis.

The OHMM has built a coalition with Equality Ohio, Equitas Health and the AIDS Healthcare Foundation to call for significant alterations to Ohio’s Revised Code. The group proposals outline several changes including requiring prosecution to prove that a person intentionally transmitted HIV and switching all HIV-specific charges from a felony to a misdemeanor.

“Ohio’s six separate HIV criminalization laws are not based in science, they do not promote public health, and they perpetuate dangerous stigma against people living with HIV,” the organization said. “The time to modernize Ohio’s HIV laws is now.”

Thousands in Ohio living with HIV

More than 27,000 Ohioans are living with HIV and nearly 9,000 are taking a form of medication called PrEP, according to data from AIDSVu and the Ohio Department of Health.

PrEP is a once-daily pill taken to reduce a patient’s likelihood of developing HIV from sex or injection drug use. PrEP reduces the risk of getting HIV from sex by about 99% when taken as prescribed, according to the CDC.

There are two pills available for use as PrEP: Truvada and Descovy. Truvada is for patients at risk through sex or injection drug use, while Descovy is for patients only at risk through sex. PrEP can also be taken through a shot known as Apretude.

Data shows the number of PrEP prescriptions in Ohio has been steadily increasing while the rate of transmission has been slowly decreasing over the past decade.

However, a federal ruling recently struck down provisions requiring health insurance to provide free preventative care services, like PrEP. In response to the ruling, the Justice Department requested a court order to halt the decision while the case is appealed. In the interim, insurers and employers are able to decide whether to continue covering preventative healthcare.

Still, programs have been established that provide PrEP for free or at a reduced cost. Learn more here.

Belize: Government approves amendment to outdated section of the Criminal Code related to HIV transmission

Belize Govt to amend legislation dealing with HIV transmission

The Belize government is to seek parliamentary approval to amend a section of the Criminal Code as it relates to HIV transmission from mother to child.

The Ministry of Human Development, in collaboration with the Ministry of Health and Wellness had proposed that there be a change to the legislation that currently allows an HIV-positive person knowingly engaging in risky sexual behaviour and infecting another carries a penalty and that included mother to child transmission.

Human Development Minister Dolores Balderamos-Garcia said 22 years ago, Parliament  passed a law making it a criminal offense to what “we would say knowingly transmit HIV.

“Now, back then, HIV was quite frightening because it was before the days of the anti-retroviral medications and before we learnt more about the human rights approach as we call it. So we did pass an amendment to the Criminal Code, making it an offense to know that you have HIV and to be engaging in risky sexual behaviour. So we went ahead and did that.”

But  Balderamos-Garcia said after many years later, health authorities here have come to realise not only that it was unnecessary, but also that it flies in the face of modern human rights norms, especially as it comes to the health issues.

“So the Ministry of Human Development, myself, and also Minister Kevin Bernard and the Ministry of Health, we decided – of course based on the recommendation of partners – that it is really time to remove [it]”.

“What it did was it attracts unnecessary attention and further stigmatises the issue of HIV. I mean there are other sexually transmitted infections which are in the mix, if we could say, but it wasn’t necessary to cause the stigma and discrimination further on the HIV.”

Balderamos-Garcia said other sections of the Criminal Code can suffice where somebody does something very reckless or deliberate, but in relation to what has happened now in the evolution of the fight against HIV and other sexually transmitted infections, “it is not necessary to have that law now for the certification, as they call it and the validation that we are removing the mother to child transmission of HIV then in terms of the international norms, we have to remove that penal provision.

“So we are very pleased to do it and I can report that Cabinet has approved and it is a joint paper of the Ministry of Human Development and the Ministry of Health,” she told reporters.

New HIV Justice Academy content: Lessons from the Central African Republic’s HIV law reform success

In the mid-2000s, many countries across Africa adopted HIV laws. Many of these laws contained important protections covering discrimination, privacy, and access to medications. Unfortunately, they also included overly broad and ill-informed HIV criminalisation provisions.

The Central Africa Republic (CAR) adopted an HIV law in 2006 which not only criminalised HIV non-disclosure, exposure or transmission, it also required people living with HIV to undergo treatment as prescribed by a doctor and engage in protected sex and an obligation to disclose their HIV-positive status to sexual partners.

Given the significant problems with these aspects of the law, multiple law reform attempts were made but none were successful until a new law – Law 22-016 on HIV and AIDS in the Central African Republic – was finally enacted on 18 November 2022.

How did it happen? What changed? Why was the law finally reformed?

Christian Tshimbalanga is a lawyer from the Democratic Republic of Congo with many years’ experience working on human rights and HIV in Africa. Through his work with UNAIDS, Christian provided critical support to the law reform process following it through until Parliament voted on the law. Cécile Kazatchkine (Senior Policy Analyst at the HIV Legal Network) asked Christian to share lessons learned to help others working to reform problematic HIV laws.

Their 25 minute, French-language audio conversation is now available as an additional case study in Chapter 5 of the HIV Justice Academy’s free HIV Criminalisation Online Course: How to advocate against HIV criminalisation. A translated transcript of the conversation is also available in the English, Spanish and Russian version of the course.

Christian’s role was to accompany the process until the law was voted on in Parliament. Several elements of Christian’s account stood out for us:

  • In his role as an UNAIDS representative and technical partner, Christian was able to devote significant time to the law reform process, monitoring what was happening and pushing the bill through each stage of the process. Having a dedicated person on the ground to accompany the legislative process on a day-to-day basis was critical to the success.
  • Civil society was a key partner. The Central African Network of People Living with HIV (RECAPEV) and the Central African Network on Ethics and Rights (RCED) pushed hard for the law to be revised. UNAIDS provided them with a small amount of financial support which enabled them to increase their capacity to sustain this advocacy.
  • Local partners and international organisations were also partners in the law reform efforts, including the National AIDS Council (CNLS), the Ministry of Health and the Minister of Justice, as well as UNDP, UNAIDS, and the French Red Cross (the principal recipient of Global Fund funding in CAR).
  • A memorandum outlining the new bill was drafted by various stakeholders including civil society. It informed parliamentarians about the relevant public health and human rights issues and the scientific evidence related to HIV.
  • Following the example of a previous forum in Madagascar on a draft law on sexual and reproductive health, a forum was organised for (primarily male) parliamentarians and their (female) spouses. Because issues of this intimate nature are often discussed in the home, involving spouses was strategic. Several people living with HIV opened the forum by talking about their lived realities and the persistence of HIV-related stigma and discrimination in CAR.

While worthy of celebration, the new legislation is not a complete victory. It does not fully decriminalise HIV but it does provide a much narrower definition of the prohibited conduct. Under the 2006 law, a person living with HIV could be prosecuted simply for HIV ‘exposure’ without neither intent nor transmission. The 2022 Act criminalises “intentional transmission of the virus,” defined as, inter alia, the fact that a person who knows his or her status intentionally transmits the virus through unprotected sexual relations without disclosing his or her seropositivity. A list of circumstances where the criminal law should not be applied is also included (e.g., in the case of transmission of the virus from a mother to her child).

For more information on the 2022 Act, see the HIV Justice Network’s Global HIV Criminalisation Database.

To enrol in the HIV Criminalisation Online Course, visit the HIV Justice Academy and sign up.  It’s free!