US: New bill in Indiana would remove sentence enhancements and criminal offences related to HIV

Indiana has harsher legal penalties for those living with HIV. A bill would change that.

Getting diagnosed with HIV was a death sentence in 1988, when Carrie Foote was 18 years old.

Thirty-five years later, the sociology professor at IUPUI has only the normal quirks of aging to worry about. Her chronic disease, with advancements in medicine, is entirely manageable with treatment.

But Indiana’s laws haven’t caught up to this reality. Laws on the books since the 1980s single out people living with HIV and give them stiffer penalties for certain acts, from donating blood or semen to spitting on another individual, despite advancements in scientific knowledge on how HIV is transmitted. Lawmakers are attempting for the fourth year to rectify the disparity, and have gained more support than in previous years.

“All we’re saying is just treat us fairly,” Foote told IndyStar after House Bill 1198’s first hearing Wednesday.

The bill, written by Rep. Wendy McNamara, R-Evansville, proposes eliminating the part of Indiana law that says those who know they have HIV and donate blood or semen can be punished with a felony. Clinical studies since this law was written have shown that people who undergo treatment can achieve an undetectable amount of HIV in their blood stream, which means they aren’t able to transmit HIV to other people. The U.S. Food and Drug Administration tests all donated blood and throws out any with traces of infectious disease.

Under existing law, purposefully spitting or putting some other bodily fluid, like feces, on another person is a misdemeanor. But it’s a felony for those who have HIV. The bill proposes removing the enhanced sentence for people living with HIV, as the modern scientific consensus shows these kinds of fluids do not transmit HIV, according to the CDC.

This is the fourth session where such a bill has been introduced. After hearing testimony Wednesday, the Courts and Criminal Code committee held the bill for a vote next week.

Foote, who chairs the statewide HIV Modernization Movement, said progress has been made every year in the Statehouse, starting with the removal or modernization of some language in the law that stigmatized people living with HIV ― changing “carrier” into “person with a communicable disease,” for example. The movement is a coalition of health providers, public health authorities, community leaders, legal experts and people living with HIV that formed in 2016 to work toward changing state laws.

This year, the bill gained new support from the Indiana Prosecuting Attorneys Council. The council was swayed by testimony from Indiana Department of Health and Eskinazi Hospital officials during a summer study committee on the advancements in medical knowledge of how HIV is transmitted, assistant executive director Courtney Curtis said.

The council then researched how often it files charges related to these parts of the law. Indiana prosecutors haven’t filed any charges related to HIV-positive blood donors since at least 2015, and have only done so ten times in the law’s history, she said. They charge more cases relating to assault with bodily fluids, but this charge is not “clogging up our system,” she said.

Lawmakers do plan to work with the council to tighten up language in a section of the bill to ensure it meshes cleanly with Indiana code before next week’s vote.

In a study of court case filings from 2015 to 2022 by IUPUI and the UCLA School of Law, 98% of the 130 cases of battery by bodily fluid involved acts that cannot transmit HIV. The other 2% involved sex, which carries the risk of transmission if a person has a detectable amount of HIV in their system.

The persistent stigma affects people of color more. Though Black people made up 13% of the U.S. population in 2019, they made up 40% of the population of people living with HIV, according to the CDC. Only 9% of Black people who were eligible for HIV prevention treatment actually got it in 2020, compared to 65% of white people.

Tony Gillespie, vice president of the Indiana Minority Health Coalition, remembers a time when the city of Gary, where he’s from, had no services for Black gay men living with HIV. Having now lived with HIV for 30 years, he said he’s encouraged by the progress made in both Gary and with this legislation.

“I’m encouraged because this is such a move in the right direction in making science-based decisions and not fear-based,” he said.

The bill is met with skepticism from the Indiana state police union. Legal representative Ed Merchant said the Fraternal Order of Police is opposed to eliminating the enhanced charge for people with HIV who, for example, spit on an officer. The bill would keep in place the part of the law that says those with an intent to harm someone else can be charged with a felony, but Merchant said the FOP believes existing law gives officers “better cover.”

Indiana remains one of 35 states that have laws criminalizing HIV exposure as of late 2022, according to the CDC.

McNamara attributes this to a generational stigma rooted in fear-mongering from the 1980s and 90s. Anyone growing up at that time remembers turning on the TV and hearing about people dying from HIV/AIDS, she said.

“That fear predominates a lot of the mindset of my generation,” she said. “And I think that’s what makes it hard.”

Mexico: LGBTQ+ community calling for the repeal of HIV criminalisation statute in Quintana Roo Public Health Law

LGBTQ+ community calls for changes to Quintana Roo Health Law

Translated via Deepl.com. Please scroll down for original article in Spanish.

The LGBTQ+ community is calling for the repeal of the criminalisation of HIV transmission in the Quintana Roo Health Law.

The LGBTQ+ community, in a working meeting with local Congresswoman Estefanía Mercado Asencio, requested the repeal of Article 113 of the Quintana Roo Health Law, which criminalises the transmission of sexually transmitted diseases, specifically HIV.

The repeal of this article, found in Title Eight, Chapter II, Communicable Diseases, has been requested for several Legislatures, but has been ignored, said Omar Ortiz, the President of the Civil Association “Información y Educación Sexual”.

At the meeting, which was attended by people representing sexually diverse populations, people involved in the HIV response and mothers of various sexually diverse populations, a request was made to encourage municipalities to have a Sexual Diversity Unit, as in Solidaridad, which is the only municipality with such a unit, and for the State Government to have a Secretariat for Sexual Diversity.

“We were attending to the pending legislative agenda, with respect to what is already advanced and what is pending in the matter, at the local level; we talked about article 113 of the Health Law, which criminalises the issue of HIV, as well as the fact that Solidaridad is the only municipality that has a Unit for the Attention to Sexual Diversity, and she, as a deputy, has the possibility of presenting an initiative so that all municipalities have this position,” he pointed out.

“The article criminalises the fact of transmission, when it is an issue that cannot be scientifically proven; I cannot prove that you have transmitted HIV to me because there is no scientific or laboratory mechanism that allows us to know that it was you and not another partner or my sexual contacts, nor at what moment it happened. There is no way to apply that article, it is basically up to interpretation and that cannot be in the law.

Another issue they asked the Congresswoman to address is the creation of the Unit for Comprehensive Care of Sexually Diverse Populations and Children and Adolescents who require specialised endocrinology care, which responds to the needs of social minorities, such as the transgender population, in order to carry out their transition process under medical supervision, without endangering their lives and health.

Exige comunidad LGBTQ+ cambios a Ley de Salud de Quintana Roo

La comunidad LGBTQ+ pide derogar la criminalización del hecho de la transmisión del VIH en la Ley de Salud de Quintana Roo.

La comunidad LGBTQ+, en reunión de trabajo con la Diputada local, Estefanía Mercado Asencio, solicitó derogar el artículo 113 de la Ley de Salud de Quintana Roo ya que, criminaliza el hecho de la transmisión de enfermedades venéreas, en específico del VIH.

El citado artículo, ubicado en el Título Octavo, Capítulo II, Enfermedades Transmisibles, se ha pedido su derogación desde hace varias Legislaturas, pero ha sido ignorado, apuntó el Presidente de la Asociación Civil “Información y Educación Sexual”, Omar Ortiz.

En el encuentro donde participaron personas de la diversidad sexual, de respuesta del VIH y madres de poblaciones de la diversidad, se solicitó la promoción de una iniciativa para que los Ayuntamientos tengan una Unidad de la Diversidad Sexual, como en Solidaridad, que es el único con esta instancia, y que el Gobierno del Estado tenga una Secretaría de la Diversidad Sexual.

“Estuvimos atendiendo la agenda Legislativa pendiente, respecto a lo ya avanzado y lo pendiente que tenemos en la materia, en el terreno local; hablamos del artículo 113 de la Ley de Salud, que criminaliza el tema del VIH, así como que Solidaridad es el único Ayuntamiento que tiene una Unidad para la Atención a la Diversidad Sexual, y ella, como diputada, tiene la posibilidad de presentar una iniciativa para que todos los municipios cuenten con esta figura”, señaló.

“El artículo criminaliza el hecho de la transmisión, cuando es un tema que científicamente no se puede probar; yo no puedo probar que tú me hayas transmitido el VIH porque no existe un mecanismo científico, de laboratorio, que permita saber que fuiste tú y no otra pareja o mis contactos sexuales, ni en qué momento se dio. No hay manera de aplicar ese artículo, está básicamente a interpretación y eso no puede ser en la ley”.

Otro tema que pidieron a la Congresista es la creación de la Unidad de Atención Integral a Poblaciones de la Diversidad Sexual y Niños, Niñas y Adolescentes que requieran atención especializada en endocrinología, que responda a la necesidad de las minorías sociales, como la población trans, a fin de realizar su proceso de transición bajo vigilancia médica, sin poner en peligro su vida y salud.

US: Presidential Advisory Council on HIV/AIDS (PACHA) issues resolution on Molecular HIV Surveillance and Cluster Detection

PACHA Unanimously Approves Resolution to Create Safeguards for People Living with HIV

PACHA UNANIMOUSLY APPROVES RESOLUTION TO CREATE SAFEGUARDS FOR PEOPLE LIVING WITH HIV

Directs CDC to Adapt Surveillance Activities to Better Protect Human Rights for Vulnerable Communities

October 18, 2022–PWN commends and applauds the Presidential Advisory Council on HIV/AIDS (PACHA) for their leadership in unanimously passing an historic resolution that is critical to protecting the human rights and dignity of people living with HIV, the Resolution on Molecular HIV Surveillance and Cluster Detection Response.

This resolution responds to concerns raised by public health officials and community advocates, especially networks of people living with HIV and human rights and data privacy experts, and urges the Centers for Disease Control and Prevention (CDC) to change their guidance on cluster detection and response (CDR) activities. Specifically, the resolution clearly and forcefully recommends that the CDC direct jurisdictions funded for such activities adapt their implementation of CDR to account for local conditions, including health data privacy protections and laws criminalizing people living with HIV.

“Basically, PACHA told the CDC that local context matters: if jurisdictions do not have adequate safeguards to protect the human rights and privacy of people living with HIV, the CDC must allow for a moratorium on CDR activities,” said Kelly Flannery, policy director at Positive Women’s Network-USA. “There is still room to create more robust protections for people living with HIV, such as informed consent standards. Going forward, we must ensure that there are no further developments and integration of new public health surveillance technologies impacting people living with HIV absent community input, oversight, and specifically involvement from networks of PLHIV.”

In the resolution, PACHA also urged CDC to work in partnership with networks of people living with HIV to create a stronger system of informed consent around the use of molecular HIV surveillance data. U.S.-based networks of PLHIV have been sounding the alarm about molecular HIV surveillance (MHS) since 2018, when the federal government first required that states and jurisdictions scale up the use of molecular surveillance technologies and activities as a condition of HIV prevention funding. By 2019, MHS was named one of the core pillars of the federal “End the HIV Epidemic” (EHE) Plan.

“As a result of massive mobilization and outcry by networks of people living with HIV and our allies, yesterday, we finally saw a response addressing community concerns,” said Venita Ray, co-executive director of Positive Women’s Network-USA. “Now it’s time for the CDC to take swift action to implement the recommendations from PACHA and networks of PLHIV.”

This resolution is a tremendous step forward for communities that are dually most impacted by HIV and by surveillance and policing – especially Black, Indigenous and People of Color, migrants, queer and transgender people, people who use drugs, those who work in in the sex trade, and those with the least access to quality, affordable healthcare. We are deeply appreciative to PACHA leadership and to the PACHA Stigma and Disparities Subcommittee for their tremendous efforts in response to concerns from networks of people living with HIV.

Now that it has now been unanimously approved by PACHA, what happens next will speak to the character and integrity of the CDC. Failing to implement these recommendations would represent an egregious breach of public trust. We will be closely monitoring the adoption of these important recommendations throughout the federal response.

The full PACHA resolution is available here.

Canada: Federal government opens its promised public consultation on HIV criminalisation law reform

Ottawa launches public consultation on reforming the criminal law on HIV non-disclosure

The federal government has opened its promised public consultation to help develop a policy roadmap for reforming the criminal law on HIV non-disclosure.

After reading the newly posted consultation paper on HIV non-disclosure, lawyers and other members of the public are invited to share their views until Nov. 20, via an online survey.

“HIV is first and foremost a public health matter and non-disclosure of HIV status is a complex issue,” Justice Minister David Lametti said in an Oct. 20 announcement. “Our government recognizes that the criminalization of people living with HIV can lead to stigmatization and significant hardships. This is why we are consulting Canadians on the best approach to reform the criminal law regarding HIV non-disclosure. It will help us find solutions, and will lead to better outcomes for affected populations.”

The government estimates 63,000 people live with HIV in Canada and 10 per cent may be unaware of their status.

“HIV non-disclosure” refers to criminal cases where a person living with HIV, who is aware of their status and knows they are infectious, does not disclose their HIV status before otherwise consensual sexual activity that poses a realistic possibility of transmission.

Questions asked in the consultation paper include:

Whether charges under the Criminal Code’s sexual assault provisions are appropriate in HIV non-disclosure cases;
Whether an intention to transmit, or actual transmission, should be requirements for criminal charges to be laid;
Whether criminal law should apply in cases where an accused has taken precautions to protect their sexual partner(s) from transmission; and
Whether a new HIV, sexually transmitted infection (STI), or infectious-disease-specific offence should be created to address HIV non-disclosure cases.

Right now those living with HIV, who don’t disclose their status prior to sexual activity that poses a risk of transmission, can be charged with various offences, including aggravated sexual assault — the most serious sexual assault offence in the Criminal Code.

However, criminalization can lead to the stigmatization of people living with HIV, which can often discourage individuals from being tested or seeking treatment, the Department of Justice (DOJ) says in a press release.

The DOJ notes that there has been considerable progress made in treating HIV and in the scientific evidence on rates of transmissibility.

The consultation is among the Liberal government’s commitments in its 2SLGBTQI+ Action Plan, launched last August. “Reforming the criminal law regarding HIV non-disclosure is an essential step in ensuring that Canadian justice policy advances the dignity and equality of 2SLGBTQI+ people,” the DOJ said.

In 2020, 1,639 newly diagnosed cases of HIV were reported in Canada, with most receiving appropriate treatment, the government noted.

On Dec. 1, 2017, the DOJ published a report, the Criminal Justice System’s Response to Non-Disclosure of HIV, that included a summary of the scientific evidence on sexual transmission of HIV and that was produced by the Public Health Agency of Canada.

On Dec. 8, 2018, the Attorney General of Canada also issued a directive related to the prosecution of HIV non-disclosure cases under federal jurisdiction which specifies, among other things, that prosecutions should not occur when an individual takes appropriate measures to prevent transmission of HIV (such as taking appropriate treatment to maintain a suppressed viral load), and that prosecutors must consider whether criminal charges are in the public interest.

Canada: Federal government must review past criminal cases of HIV nondisclosure for possible wrongful convictions

Ottawa urged to review past HIV cases for wrongful convictions

Canada has been described as a “global hot spot” by advocacy groups for HIV nondisclosure prosecutions. One lawyer hopes to change that.

The federal government must review past criminal cases of HIV nondisclosure for possible wrongful convictions, says the president of Ontario’s Criminal Lawyers’ Association.

Such a review would highlight the pressing need for a permanent commission to proactively review wrongful convictions in all cases, said Daniel Brown — something that a panel of retired judges recommended to the government, but which has yet to take shape.

“Yes, we want the government to carefully consider how this commission should be established, but they’ve had more than enough time to get this commission off the ground,” Brown said, “and if the government was motivated to see a wrongful conviction commission, it would exist already.”

Brown was speaking in the wake of the recent successful appeal of his firm’s client, Jennifer Murphy.

She had been convicted of aggravated sexual assault in 2013 for not disclosing her HIV-positive status in a consensual sexual encounter, despite having a low viral load due to antiretroviral medication which made it impossible for her to transmit the virus.

Canadian law requires an individual living with HIV to disclose their status to a sexual partner if there is a realistic possibility of transmission. At the time of Murphy’s conviction, it was generally understood within the legal system that disclosure was not necessary if the individual had both a low viral load and used a condom. No condom was used in the Murphy case.

The federal government says it wants to reform the law around nondisclosure, recognizing that a low viral load alone means there can be no realistic possibility of transmission. Consultations with advocacy groups are set to take place this month.

Canada has been described as a “global hot spot” by advocacy groups for HIV nondisclosure prosecutions, with more than 220 by the end of last year. Individuals are usually convicted of the crime of aggravated sexual assault, which carries a prison sentence and mandatory registration on the sex offenders registry.

Brown said there needs to be a plan to review those cases for circumstances similar to Murphy’s, where individuals had been convicted of a serious criminal offence despite being unable to transmit the virus — in other words, convicted because the law had not caught up with the science.

Reviewing wrongful convictions is also one of the four main demands put to the government in a statement released this year by the Canadian Coalition to Reform HIV Criminalization and signed by dozens of organizations.

Without commenting on specific cases, a spokesperson for Justice Minister David Lametti pointed out that individuals can appeal their case if they believe there has been an error. “Many errors and miscarriages of justice are corrected by appeal courts across the country,” said Chantalle Aubertin.

But Brown said that’s an “exhaustive and expensive” process, even more so for individuals convicted for HIV nondisclosure, who may already face stigma along with barriers to employment due to having a criminal record. It’s not a process they can navigate on their own, he said.

In the Murphy case, Brown said she had to file a formal motion seeking an extension of time to bring her appeal, retain an infectious diseases expert, and have lawyers spend multiple days arguing over admissibility of evidence.

“It was a lengthy process that lasted well over three years and an expensive one as well, even with lawyers who were prepared to donate their time for free,” Brown said.

“Simply saying that people can take their case before the appeal courts fails to recognize those barriers that exist, and that’s why it’s important that a wrongful conviction review be created to address these concerns.”

Under the current wrongful conviction review process, once an individual convicted of any crime has exhausted all of their rights to appeal, they can request that their case be reviewed by a special group at the justice department — a process that can take years. The minister then ultimately decides whether the application should be granted or dismissed.

“This is the process now, and it is one we accept needs to be improved,” Aubertin said.

Last year, a report to the government from former judges Harry LaForme and Juanita Westmoreland-Traoré recommended the creation of an independent commission to proactively review cases that might have resulted in wrongful convictions, saying such a body was “urgently required.”

Aubertin said Lametti is “fully committed” to the creation of a commission, and that the policy work necessary to create it is underway.

“Minister Lametti would like the commission ready to launch by the end of his mandate — but it is important that we take the time to do this properly. Too much is at stake,” she said.

Central African Republic: New HIV law focussing on the social protection of people living with HIV voted by parliamentarians

Central African Republic: HIV and AIDS bill passed

Translated via DEEPL.com – For the original article in French, please scroll down.

The bill was passed by acclamation by parliamentarians at the plenary session of 6 October 2022. The Central African Republic is one of the countries most affected by the HIV/AIDS pandemic in Central Africa with a prevalence rate of 2.7% (2021). This bill reinforces Law n°06.030 of 12 September 2006 establishing the rights and obligations of people living with HIV/AIDS, with a focus on the social protection of people living with HIV (PLWHA).

The Minister of Public Health and Population, Dr Pierre SOMSE, validly defended the draft law in front of the elected representatives who did not hesitate to give their approval by acclamation.

In the report of the Joint Commission presented by Deputy Armel BIROT, it emerged that the Central African Republic is still one of the countries most affected by the HIV and AIDS pandemic in Central Africa. Thus, the CAR, through the Ministry of Health with the support of partners, wants to take up the challenge of an AIDS-free generation by taking into account all the issues raised by this pandemic and preserving human capital.

Although there are shortcomings in the document, this did not prevent the MPs from appreciating the content of the document, unlike the 2006 law, which was full of gaps and shortcomings relating to the rights of PLHIV.

The HIV/AIDS pandemic continues to have consequences on the national economy, the low mobilization of financial resources for the fight, stigmatization and discrimination against people living with HIV/AIDS, shortcomings in the psycho-social and legal care related to this pandemic.

Minister Pierre SOMSE emphasized the elements contained in the present law, among which are HIV testing which is now from 18 to 12 years old, prevention against the disease, repression of discrimination which raises a legal problem and the promotion of human rights.

“The bill meets the expectations of the Ministry of Health,” said Minister Pierre SOMSE.

UNAIDS Country Director Cris FONTAINE welcomed the vote saying: “This is a great victory for people living with HIV and people at high risk of HIV infection. The protections in this law improve access to HIV services. It is also a victory for all the people of the Central African Republic. When people have access to HIV services, we can eliminate this terrible disease.

The UNAIDS country director said the process of implementing this bill is to “make sure that the population is aware of the law, what it says, and why it is important. Then plan the next step which is to ensure that mechanisms are in place to enforce the law.

According to the national coordinator of the Central African Network of People Living with HIV (RECAPEV), Bienvenu GAZALIMA, access to a balanced diet before taking antiretrovirals (ARVs) remains one of the difficulties to overcome. In the Central African Republic, the number of PLWHA is estimated at around 88,000 people. About 54,000 are on ARV treatment according to the UNAIDS country office, said the national coordinator of RECAPEV. “ARVs are available, but you need a balanced diet to be able to take these drugs.

The situation of PLHIV in CAR still remains a challenge with regard to human rights violations linked to stigmatisation and discrimination.

The new law can be previewed in French at https://academy.hivjustice.net/fr/resource/loi-relative-au-vih-et-au-sida-en-republique-centrafricaine/

Centrafrique : le projet de loi relatif au VIH et au SIDA est voté

Le projet de Loi est voté par acclamation par les députés réunis en session plénière le 6 octobre 2022. La République Centrafricaine est l’un des pays les plus affectés par la pandémie du VIH/SIDA en Afrique Centrale avec un taux de prévalence de 2,7 % (2021). Ce projet de loi vient renforcer la Loi n°06.030 du 12 septembre 2006 fixant les droits et obligations des personnes vivant avec le VIH/ SIDA avec un point d’orgue sur la protection sociale des Personnes Vivant avec le VIH (PVVIH).

Le Ministre de la Santé Publique et de la Population, Dr Pierre SOMSE, a valablement défendu le projet de Loi devant les Elus du peuple qui n’ont pas hésité à donner leur approbation par acclamation.

Dans le rapport de la Commission Mixte présenté par le député Armel BIROT, il ressort que la République Centrafricaine reste toujours l’un des pays les plus affectés par la pandémie du VIH et du SIDA en Afrique Centrale. Ainsi, la RCA à travers le ministère de la santé avec l’appui des partenaires veut relever le défi d’une génération sans SIDA en prenant en compte toutes les questions soulevées par cette pandémie et préserver le capital humain.

Il y’a des insuffisances dans le document certes, cela n’a pas empêché les députés d’apprécier le contenu du document contrairement à la loi 2006 qui a regorgé des lacunes et insuffisances relatives aux droits des PVVIH.

La pandémie du VIH/SIDA ne cesse d’enregistrer des conséquences sur l’économie nationale, la faible mobilisation des ressources financières pour la lutte, la stigmatisation et discrimination à l’égard des personnes vivant avec le VIH/SIDA, des faiblesses quant à la prise en charge psycho-sociale et juridique liée à cette pandémie.

Le Ministre Pierre SOMSE a mis l’accent sur les dimensions contenues dans le présent texte de loi entre autres le dépistage qui passe désormais de 18 ans à 12 ans, la prévention contre la maladie, la répression des discriminations qui pose un problème de droit et la promotion des droits humains.

« Le projet de loi répond aux attentes du Ministère de la Santé », a souligné le Ministre Pierre SOMSE.

Le directeur-pays de l’ONUSIDA, Cris FONTAINE, s’est réjoui de ce vote en ces termes : « Il s’agit d’une grande victoire pour les personnes vivant avec le VIH et les personnes à haut risque d’infection par le VIH. Les protections prévues par cette loi améliorent l’accès aux services liés au VIH. Il s’agit également d’une victoire de tout le peuple de la République Centrafricaine. Lorsque les gens ont accès aux services VIH, nous pouvons éliminer cette terrible maladie ».

Le directeur pays de l’ONUSIDA a précisé que le processus de mise en œuvre de ce projet de loi est de « s’assurer que la population est consciente de loi, de ce qu’elle dit, et pourquoi elle est importante. Ensuite projeter la prochaine étape qui consiste à s’assurer que des mécanismes sont en place pour appliquer la loi ».

Selon le coordonnateur national du Réseau Centrafricain des Personnes vivant avec le VIH (RECAPEV), Bienvenu GAZALIMA, l’accès à une alimentation équilibrée avant de prendre les Antirétroviraux (ARV) reste l’une des difficultés à surmonter. En République Centrafricaine, l’effectif des PVVIH est estimé à environ 88 000 personnes. Environ 54 000 sont mises sous traitement ARV selon le bureau-pays de l’ONUSIDA, a précisé le coordonnateur national du RECAPEV. « Les ARV sont disponibles certes, mais il faut une alimentation équilibrée pour pouvoir prendre ces médicaments ».

La situation des PVVIH en RCA reste toujours un défi concernant les violations des droits humains liées à la stigmatisation et la discrimination.

US: Indiana bipartisan legislative panel unanimously recommends scrapping most of the state’s HIV criminalisation laws

Indiana Panel Recommends Repealing HIV Penalties

INDIANAPOLIS (WISH) — Members of a bipartisan legislative panel on Tuesday said Indiana’s HIV laws are unnecessarily discriminatory and don’t accomplish anything.

The general assembly convenes interim study committees every year to look into policy matters between legislative sessions. A panel tasked with reviewing the state’s criminal code voted unanimously on Tuesday to recommend lawmakers scrap most of the state’s penalties concerning people who live with HIV.

“Our understanding of HIV has changed a lot since the 1980s when this was enacted, and a lot of the testimony proved out that a lot of our current laws surrounding the criminal penalties for HIV are no longer valid,” committee chair Rep. Wendy McNamara, R-Evansville, said.

Current state law makes it a felony for someone living with HIV to donate blood or semen. There also are laws requiring people with HIV to disclose their status to sexual or needle-sharing partners and imposing harsher penalties for battery involving body fluids if the accused attacker is HIV-positive. McNamara said testimony over the past few weeks revealed prosecutors rarely use such laws and there is no risk of transmission when someone is taking their required viral suppression medications. Rep. Matt Pierce, D-Bloomington, said Indiana law does not penalize people with other serious diseases in the same way.

“Now we have a situation where we have drugs that treat the disease. There’s actually drugs that prevent it from spreading and it’s no longer a death sentence,” he said. “So, it makes sense to change those laws.”

Lawmakers filed legislation this year to repeal several penalties, including those dealing with blood donations. The legislation passed out of a House committee, but never got a floor vote. McNamara said her panel’s endorsement could give similar legislation a boost next year. She said lawmakers would leave some penalties in place for cases where someone tried to deliberately infect another person with HIV.

Any changes to the criminal code still have to go through the legislative process. Lawmakers won’t begin debating bills until the next legislative session begins in January.

Why people living with HIV should not be criminalised for donating blood

Preventing the transmission of blood-borne infection by imposing limitations on the donation of blood is an important and legitimate public health objective.

Since the beginning of the HIV epidemic, certain groups – including, but not limited to, gay men and other men who have sex with men – have been subjected to restrictions on their ability to give blood.

Sustained advocacy by gay rights organisations in many high-income countries has focused on the discriminatory nature of these so-called ‘gay blood bans’, highlighting significant advances in blood screening capabilities. This has led to a general softening of restrictions on blood donations for gay men in many of these countries – allowing donations with ‘deferral periods’, or allowing donations based on individual risk assessments.

However, this advocacy has generally not translated into the removal of HIV-specific criminal laws for donating blood, nor has there been a call for a moratorium on singling out people living with HIV for donating blood using non-HIV-specific general criminal laws – even though many of the same public health and human rights arguments apply to both the so-called ‘gay blood bans’ and to HIV criminalisation more generally.

That is why today, the HIV Justice Network has published Bad Blood: Criminalisation of Blood Donations by People Living with HIV. The report was written by Elliot Hatt and edited by Edwin J Bernard, based on research undertaken by Sylvie Beaumont, with additional input provided by Sarai Chisala-Tempelhoff and Paul Kidd (HIV Justice Network’s Supervisory Board); Sean Strub (Sero Project) and Robert James (University of Sussex).

We found that 37 jurisdictions in 22 countries maintain laws that criminalise people with HIV for donating blood. Notably, 15 jurisdictions in the United States (US) have laws which specifically criminalise blood donations by people living with HIV, while four US states – California, Illinois, Iowa, and Virginia – have repealed laws which previously criminalised this conduct.

Although prosecutions are relatively rare, we are aware of at least 20 cases relating to blood donation since 1987. Half of these cases have been reported in Singapore, including two as recently as 2021.

We argue that the criminalisation of blood donations by people with HIV is a disproportionate measure – even if the aim of protecting public health through the prevention of transfusion-transmitted infection is legitimate – and is the result of both HIV-related stigma and homophobia. It is not supported by science.

There is no good reason for any country or jurisdiction to have HIV-specific criminal laws – whether they focus on blood donation or on sexual exposure or transmission. HIV-specific criminal laws are discriminatory and stigmatising, especially since people with other serious blood borne infections – including hepatitis B and C and syphilis – are not singled out with specific laws, nor for prosecution under general criminal laws.

Blood donation criminal laws focused on HIV should be repealed, prosecutions based on general laws should end, and instead science-informed measures – such as individual donor risk assessments and universal blood screening – should be relied on to protect the public against transfusion-transmitted infection.

Read the report at: https://www.hivjustice.net/publication/badblood

US: Indiana legislators and other stakeholders meet to discuss changes to HIV criminal laws

HIV laws, funding for mental health in Indiana justice system weighed by lawmakers

Doctors and other advocates said multiple provisions in Indiana code regarding HIV are outdated and discriminatory.

Lawmakers and other stakeholders on Tuesday discussed possible changes to Indiana laws concerning HIV-specific criminal penalties and sentence enhancements.

The Republican-led summer study committee also weighed additional funding and other resources for the state’s psychiatric hospitals and community care centers that serve incarcerated individuals who have mental health or behavioral concerns.

Recommendations from the committee could result in proposed legislation during the next session in January.

Advocates push for changes to state’s HIV laws

Doctors and other advocates who spoke before the committee maintained that multiple provisions in Indiana code regarding HIV are outdated. They said the laws do little to prevent transmission and instead promote stigma and discrimination.

That includes current provisions that:

Require those with HIV or Hepatitis B to warn other people that they could be at risk of contracting the disease when engaging in sexual activity or sharing needles — even when transmission is not possible
Make it a felony for HIV-positive persons to donate or sell their semen, blood or plasma
Outline sentence enhancement charges that make it a felony for HIV-positive persons to expose others to any bodily fluid, including those known not to transmit HIV, such as saliva

Indiana is one of 20 states that have not modernized or repealed HIV criminal laws since they were enacted in the 1990s — during the peak of the HIV/AIDS epidemic.

“I’m deeply concerned that Indiana’s HIV criminal laws don’t reflect current scientific knowledge about this condition,” said Dr. Bree Weaver, an HIV specialist with the Indiana University School of Medicine. “These laws were written decades ago, during a time of limited medical understanding and tremendous fear of HIV and the people living with it.”

Weaver emphasized that scientific developments in the last 20 years have “substantially changed the realities” of living with HIV, noting that new science has also expanded researchers’ understanding about how the disease is — and is not — transmitted. It’s commonly — but incorrectly — assumed that spitting and biting are two forms of reasonable transmission, she said.

Dr. Carrie Foote, director of Indiana’s HIV Modernization Movement, said the group has in recent years worked with legislators to update the Indiana code “with more person-centered language, to improve how we talk about HIV.”

Past attempts at carrying such a bill in the Indiana General Assembly have failed, however — including in the most recent 2022 session.

Rep. John Young, R-Franklin, said during the meeting on Tuesday that while he believes the law should be modernized, he thinks the sentencing enhancement should remain in effect.

“No one should be forced to disclose, but I don’t see a problem with somebody being stigmatized because they committed a crime,” Young said. He specifically referenced law enforcement officers who could be spit on by aggressive individuals who mean to “intentionally” spread HIV during arrests, for example.

Foote, who has lived with HIV for 34 years, disagreed with that sentiment.

“Despite people living extremely well, doing what everybody else does in life — working, having families, and that sort of thing — we continue to face stigma in many areas of our life, and possible criminalization under Indiana law, due to our HIV status,” she said.

Newly diagnosed HIV cases in Indiana have stayed fairly stable in recent years, although there has been a slight uptick in 2022, said Jeremy Turner, director of the HIV, STD, and Viral Hepatitis Division at the Indiana Department of Health (IDOH). Still, AIDS cases continue to decline.

Sexual intercourse remains the number one route for HIV transmission in Indiana, even despite an increase of injections spurred by the opioid epidemic, Turner continued.

To help keep case numbers down, the state health department funds multiple initiatives to help Hoosiers prevent, diagnose and treat HIV and Hepatitis. The federal government has also made it easier for high-risk populations to access PrEP, a medicine taken to prevent getting HIV.

Foote recommended that lawmakers amend the criminal law to be based on the criminal intent to infect and transmit HIV. She added that a criminal law should only include punitive measures that are proportionate to the harm. The law also should not be specific to HIV, and must exclude diseases that are airborne or casually transmitted.

“If the HIV epidemic started today, and was a chronic, manageable condition with multiple methods of prevention available like we have today, we would not be enacting these laws,” Foote said. “We know this because we are protecting the public’s health without the use of the criminal laws for recent serious communicable disease challenges in our state such as Syphilis, COVID-19, and now monkeypox.”

Health care officials call for psychiatric hospital funding revamp

Separately, members of the study summer committee discussed a new model for certified community behavioral health clinics that would better ensure patients and offenders from Indiana psychiatric hospitals and the Indiana Department of Correction are connected with appropriate care upon their release.

Community leaders and advocates said their intention is to cut down the number of people returning to jail after they’ve received mental health and addiction recovery services.

People who were taken to jail and identified as having mental health needs are 1.5 times more likely than anyone else to be rearrested within six months, said Bernice Corley with the Indiana Public Defender Council.

She pointed to a new pilot program in Marion County, where a “holistic model” will be tested next year to help keep services available to incarcerated individuals during and after conviction. The goal is to help reduce recidivism and decrease the number of cases in Indiana’s criminal justice system.

“What we’re proposing here is looking at public defense, not in the representation once the client is guilty, but moving that mark of representation and wraparound services to that person post-conviction, as well as when they’re transitioning back into the community, and helping stabilize them,” Corley said, adding that the model could be considered on a larger, statewide level.

Jay Chaudhary, who oversees the Indiana Family and Social Services Administration’s Division of Mental Health and Addiction, said the six state psychiatric hospitals in Indiana currently treat about 600 individuals.

At least 83 of those people are ready to be discharged now but can’t be released yet, largely because of issues finding appropriate housing placements. He said that costs the state roughly $1,200-$1,500 per day for each person to be housed in a state hospital.

“Housing and transportation remain huge barriers to care,” Chaudhary said. “It’s hard to treat somebody with a mental illness if they don’t have stable housing, or if they can’t get the treatment.”

Representing Indiana’s 24 community mental health centers — which provide an array of behavioral health and addiction services — George Hurd said run-down group-living sites, a statewide shortage of 5,000 to 7,00 therapists, and difficulties that come with serving an aging population of Hoosiers in need of services prevents those in the system from accessing the best care possible.

Funding for community health centers is currently highly dependent on donations, Hurd said. Additional state dollars could help.

“We’ve done an excellent job reducing the number of persons in state operated-facilities,” Hurd said, noting that Indiana psychiatric hospitals housed some 50,000 at their peak. “The system has reached a point where more stable and consistent funding is needed to meet the current community safety net, and to advance it.”

Canada: Ruling from Ontario court of appeal opens the door for other people with HIV to seek to have their convictions overturned

‘I was made out to be a monster’: With her conviction for not disclosing her HIV status now overturned, one woman wants Canada’s laws to change

Jennifer Murphy was convicted for not disclosing her HIV status to a sexual partner, despite being unable to transmit the virus.

When Jennifer Murphy was found guilty of aggravated sexual assault, her face was splashed all over the news — her life changed due to a conviction that has now been overturned.

The 2013 conviction in a Barrie, Ont. courtroom was for not disclosing her HIV-positive status to a sexual partner in a consensual encounter. At the time, she had an undetectable viral load thanks to medication, and was therefore unable to transmit the virus.

“I was made out to be a monster,” she said in a statement to the Star last week.

Murphy was sentenced to more than three years in prison, minus 15 months for time served in pre-sentence custody.

“It was all over the news and my family and friends had to read that and feel the pain and agony,” she said. “They had to worry about their daughter or their mother and what would happen to her.”

Earlier this month, the Ontario Court of Appeal overturned Murphy’s conviction and entered an acquittal, accepting fresh expert evidence that Murphy’s undetectable viral load meant there was no realistic possibility of transmission of the virus.

The decision opens the door for other people with HIV in Ontario, found guilty in situations similar to Murphy’s, to seek to have their convictions overturned.

“I want them to get justice, too,” she said.

The ruling also comes as the federal government plans to reform the law on HIV nondisclosure, impacting the whole country — a move advocates hope will see the justice system finally recognize that the science has evolved around HIV, and that a person with an undetectable viral load simply cannot transmit the virus.

They say the ongoing criminalization of HIV nondisclosure continues to perpetuate stigma against people living with HIV.

“The community has been calling on the government to act for years,” said Alexander McClelland, assistant professor at the Institute of criminology and criminal justice at Carleton University, and a member of the Canadian Coalition to Reform HIV Criminalization.

“People living with HIV, legal experts, have been calling out the heinous record of Canada being a leading country in the world for criminalizing HIV nondisclosure.”

There are a number of reasons why a person doesn’t disclose their HIV status to a sexual partner, he said, including fear of violence.

“Our faces are on the covers of newspapers framed as violent perpetrators,” he said. “As someone who has done research on this, I can tell you nothing is further from the truth. People living with HIV want to protect their partners, they want to protect themselves, they want to live lawfully and freely and be able to have positive, healthy sex lives.”

As Murphy put it, “Right now, you can be convicted despite doing everything right — taking medication and suppressing your viral load.”

After several months of community consultation, the coalition released its second consensus statement in July, calling for changes to the Criminal Code that would limit prosecutions to the “very rare” instance where there was intentional, actual transmission of the virus.

The statement, signed by dozens of organizations, describes Canada as a “global hot spot” for nondisclosure prosecutions, saying there had been more than 220 by the end of last year, with the Black, Indigenous and gay communities being disproportionately affected.

There are no HIV-specific offences in the Criminal Code. The consensus statement points out that police and prosecutors will typically use the charge of aggravated sexual assault in nondisclosure cases, which carries a maximum prison term of life, mandatory designation as a sex offender, and “almost certain deportation” for non-citizens.

Murphy was required to take sex offender counselling in prison, “which was degrading and humiliating,” and she also had to deal with other inmates also knowing about her case.

“The outside world was judging me while the inside world was doing the same,” she said. “I would put myself in segregation just to get away from everyone.”

The federal government announced at the end of July that it will hold consultations in October “on how best to modernize the criminal justice system’s response to nondisclosure of HIV status” given the scientific evidence on sexual transmission of HIV.

Faced with criticism as to whether further consultation is necessary, Justice Minister David Lametti said in an interview last week it will not be lengthy, but rather “focused and targeted” with expert advocacy groups.

“I’m going to try to put an end, a positive end, to all of this as soon as possible,” he said. “No one should underestimate my good faith on this.”

After studying the issue, the House of Commons standing committee on justice recommended in 2019 that the government create a specific Criminal Code offence for actual transmission of infectious diseases, including HIV. The coalition is against adding an HIV-specific offence to the code for fear of perpetuating further stigma.

“I understand very well the point that such an offence would, in all likelihood, lead to continued stigmatization of people living with HIV and that is something we do not want to do,” Lametti said.

The coalition is calling for Criminal Code reform that would prohibit the ability to prosecute nondisclosure cases under sexual assault offences, and to limit the use of any other offence to intentional, actual transmission of the virus, while stating that the use of the criminal law should be a measure of last resort.

“The science around HIV has evolved, we know more now,” Lametti said. “We know that there’s stigma that’s been attached, that sexual assault laws are not appropriate and cumbersome and lead to results that are frankly unjust.”

An undetectable viral load can be achieved by taking medication, and essentially means “you cannot see the virus based on the conventional systems that we have to detect it,” said infectious diseases physician Dr. Isaac Bogoch. He highlighted a slogan that has gained much traction in recent years: U = U, undetectable equals untransmittable.

“It’s not only scientifically accurate, but it’s a way that we can help destigmatize HIV infection because it’s simple, it’s easy to understand, and it’s universal,” said Bogoch, a physician with the HIV Clinic at Toronto General Hospital.

“These are individuals who will not be able to transmit HIV to others. They just won’t.”

It was a 2012 Supreme Court of Canada decision known as R. v. Mabior that found a low viral load and condom were required to avoid prosecution for HIV nondisclosure, and it was that standard that was applied to Murphy’s case in 2013. But the top court also said the double requirement “does not preclude the common law from adapting to future advances in treatment.”

Murphy’s appeal lawyer, Colleen McKeown, asked the Court of Appeal to “identify a new set of circumstances” in which there’s no realistic possibility of transmission — and therefore disclosure is not necessary — namely that the person has a suppressed viral load and is taking antiretroviral medication. The court’s ruling on that issue is pending.

“I hope that it offers a path forward for people who might be in a similar situation to see their convictions overturned as well,” McKeown said of the Murphy appeal. She said even individuals who pleaded guilty when the “legal landscape” was different could take steps to see if they could get their convictions overturned.

In the years since the Mabior decision, at least four provinces — Ontario, Quebec, British Columbia and Alberta — have adopted a mix of official guidelines and unofficial policies to curb HIV nondisclosure prosecutions.

In the territories, where federal prosecutors handle criminal cases, Crown attorneys have been told not to prosecute if there is an undetectable viral load, and to “generally” not prosecute where a condom was used or if the person engaged only in oral sex, even if the viral load was not suppressed.

In Ontario, Crowns were instructed through provincial guidelines in 2017 not to prosecute if the individual is on medication and had an undetectable viral load for at least six months, but is silent on condom use alone.

“The result of prosecutorial guidance is you get an inconsistent approach across Canada,” said India Annamanthadoo, policy analyst at the HIV Legal Network and member of the coalition. “Why we’re advocating for Criminal Code reform is that it will be a consistent approach across Canada.”

McClelland added that “being someone living with HIV, having an inconsistent understanding or uncertainty about what I could be prosecuted with and where, is a completely unreasonable way to live a life in Canada as a Canadian resident.”

The coalition is also calling on the government to end the deportation of non-citizens following a conviction, and to review past convictions.

“There are a lot of people who were convicted in discriminatory and unscientific circumstances and those convictions need to be reviewed,” said Annamanthadoo, “so people do not have to live under the label of a criminal and a sex offender.”

Murphy said she’s still absorbing the impact of the Court of Appeal’s decision.

“I am worried that, even with my conviction overturned, there will still be people who will judge me. I shouldn’t have to live with it, but I do,” she said. “It doesn’t erase the stories on the internet. All the negative publicity will still be there.”

But she said it means she gets to focus on changing the law, urging the federal government to take action and finally provide some certainty to people living with HIV.

“It’s a human rights issue. It discriminates against people who have an illness,” she said.

“I want the public to know that people with a suppressed viral load pose no threat to anyone.”