Zimbabwe becomes the second country in Africa to fully repeal its HIV-specific criminal law

Last week, Zimbabwe’s parliament finally agreed to repeal the country’s HIV-specific criminal law, section 79 of the Criminal Code. The law which contained the provision to repeal section 79 – the Marriages Act – was originally gazetted in July 2019. It will now be signed into law by the president.

The significance of this cannot be underestimated. Zimbabwe becomes only the second country on the African continent to fully repeal its HIV-specific criminal law after the Democratic Republic of Congo repealed its law in 2018.

Although there have been remarkable advocacy successes elsewhere on the continent in preventing an HIV-specific criminal law being enacted in Malawi in 2017 and the suspension of one of Kenya’s two HIV-specific criminal laws on the grounds of unconstitutionality in 2015, it is rare for a sitting parliament to decide to completely repeal an HIV-specific criminal law.

That it did so is testament to a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honorable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care, who began pushing for a change in the law in 2018 having previously been in favour of the provision in order to protect her female constituents.

However, after attending a number of meetings, notably a November 2018 Symposium convened by Zimbabwe Lawyers for Human Rights and HIV JUSTICE WORLDWIDE partners, ARASA and SALC, along with other civil society organisations, she began to appreciate that HIV criminalisation does not, in fact protect women, but actually harms them.

We all know very well that in Zimbabwe and the world-over, we do not have diagnostic equipment which can tell us who gave HIV to the other and at what time. There is an assumption that whoever has manifested the disease first is the one who transmitted the virus. It can be anybody and it could be the other way round. If you are a woman and suddenly you find yourself positive, you will not tell your partner because of this law yet if the law was not there you would tell your partner and go and access ARVs to live happily ever after.

Hon Dr Ruth Labode, 2018

Zimbabwe was, in fact, the first African country to enact an HIV-specific criminal law, including it in the Sexual Offences Act of 2001. The law, which was supported by women’s rights groups who sought to address violence against women, made a criminal of anyone diagnosed HIV-positive who “intentionally does anything or permits the doing of anything” which (s)he “knows … will infect another person with HIV”.

The law was further amended in 2006 through the enactment of section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act, 2004. The new law, erroneously titled “Deliberate transmission of HIV”, did not require HIV transmission or for an accused to have an intention to transmit HIV: only that they undertake an act that includes “a real risk or possibility” of transmitting HIV. Further, section 79 was so broad it could be applied to anyone who knows they have HIV or who realises “there is a real risk or possibility” they might have HIV. The only defence was if the HIV-negative partner knew their partner had HIV and consented.

There were many attempts before the first reported prosecution in 2008. Since then, there have been at least 18 further HIV criminalisation cases, making Zimbabwe the country with the highest known rate of HIV prosecutions in Africa.

As prosecutions continued, it became apparent that Zimbabwe’s HIV-specific criminal law did not protect women. Numerous cases accused women, including where it was likely that the accused was infected by her accuser spouse (although she was diagnosed first) and where men have made allegations as revenge for complaints about domestic violence.

The disproportionate impact of the law on women was highlighted in a 2015 campaign, ‘HIV on Trial – a threat to women’s health’ by Zimbabwe Lawyer’s For Human Rights (ZLHR) at the same time that they – ultimately unsuccessfully – challenged the law at the Constitutional Court. The campaign highlighted the case of Samukelisiwe Mlilo, who features in a powerful 15 minute documentary, ‘Alone But Together – Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo’.

The focus then turned to repealing the law, and by 2019 the campaign to repeal the law was in full swing, supported by a wide range of stakeholders – including HIV JUSTICE WORLDWIDE, the Zimbabwe Network of People Living with HIV (ZNPP+) and UNDP.

That year, Zimbabwe Lawyers for Human Rights and HIV JUSTICE WORLDWIDE published a range of policy documents aimed at different stakeholders – including people living with HIV, the media and parliamentarians – highlighting six key messages:

Section 79 is vague, overly broad and open to unjust application.
HIV criminalisation violates human rights and increases HIV stigma.
HIV criminalisation laws are unscientific.
HIV criminalisation does not prevent HIV.
HIV criminalisation is a barrier to HIV testing, treatment and prevention.
HIV criminalisation is harmful to women.

Now that Zimbabwe has repealed its law, it’s surely only a matter of time before the other 30 countries on the African continent with HIV-specific laws follow suit. Advocates in Kenya – where the other HIV-specific criminal law is being challenged – and in Uganda – where the HIV-specific law is also being challenged – will be especially encouraged, as should all of us fighting for HIV justice around the world.

Argentina: Fourth attempt to debate bill on HIV, hepatitis, TB and STIs fails again, despite widespread support

The HIV Bill lost parliamentary status for the fourth time: what is it about and what approach does it seek to change?

For original article in Spanish, please scroll down.

More than 40 organisations are seeking to update a key law for people living with HIV, hepatitis, TB and STIs.

Two years ago, in 2020, the bill to update the law on HIV, Hepatitis, Tuberculosis and STIs was presented in the Chamber of Deputies, seeking to replace the old National AIDS Law (23.798) passed in 1990. The 24-page document was presented several times, after four failed attempts in 2016 and 2018, 2021 and 2022, it lost parliamentary status four times; it was agreed through a network of 40 organisations. What are the reasons why, despite its importance in health matters and despite presidential promises, it has not been debated in Congress? What changes does it propose?

The bill on HIV, Sexually Transmitted Infections (STIs), Viral Hepatitis and Tuberculosis is a proposal drafted by civil society organisations and networks of people with HIV and viral hepatitis, together with the Ministry of Health and academic and scientific societies, which seeks to update the current National AIDS Law (23.798) of 1990.

For the past few years they have been working collectively to give this legislation a comprehensive approach. It was not taken into account by the President despite the consensus of all political forces during the extraordinary sessions to deal with it.

The 6 central points that the HIV law seeks to introduce

1- The change of perspective: the 1990 law has a biomedical approach, and the current bill has a gender and human rights approach. It seeks to focus on the social determinants of health and the elimination of stigma.

2- Prohibition of testing for HIV, Hepatitis, TB and STIs in order to enter a job, in pre-employment medical examinations.

3- Non-contributory pensions for people with HIV and Hepatitis B or C who have unmet needs. Provision of treatment for those who have acquired the virus through vertical transmission and for other key populations such as women, transgender people, transvestites and non-binary people, etc.

4- Creation of a National Commission on HIV, Hepatitis, TB and STIs made up of different ministries, scientific societies and civil society organisations working on the issue.

5- Extension of the provision of formula milk for up to 18 months (previously only up to 6 months) for babies born to positive mothers.

6- Creation of the National Observatory of Stigma and Discrimination in the orbit of INADI, in order to ensure that HIV infection, Hepatitis B or C, TB or any other STI cannot be used to prevent the exercise of rights.

Why is the HIV law not being dealt with by Congress?

In an interview with A24.com, Dr Gustavo López, legal coordinator of Nexo Asociación Civil, said: “The law has already had several presentations and has never been as close to being dealt with as this time. The bill passed the health and budget commissions for the first time in history, considering that it is a bill drafted by civil society organisations working on the issue, with the signatures of legislators, and the approval of Anses and the Ministry of Health. But it has not been dealt with. There always seems to be something urgent that leaves aside what is important.

The bill is the result of the collective, plural and participatory work of more than 40 organisations and networks from all over the country (in which NEXO participates), who have been working since 2014.

According to López, “the last presentation with modifications and improvements to the previous presentations was in September 2020 with signatures of deputies from the UCR, Frente de Todos, the left, the PRO, the Cívica, that is to say, we achieved a good project without rifts”.

“But it was not possible, it lost its parliamentary status and was added to the list of extraordinary sessions. But it was not dealt with in the extraordinary session either. So we are going back with a similar bill, with very small tweaks that do not modify the previous bill but make it clearer,” he lamented.

Access to prevention and diagnostic tools

Meanwhile, consulted by A24. com, Leandro Cahn, political scientist, Master in Administration and Public Policy and Executive Director of Fundación Huésped, said: “We believe it is important that the bill guarantees a legal framework for timely and uninterrupted access to prevention tools against sexually transmitted infections (STIs), especially for those who have a higher exposure to HIV; treatment to ensure the highest quality of life for people living with HIV and thus make progress so that more people have undetectable viral load and therefore do not transmit the virus sexually to others”.

According to Cahn, the new HIV law would help break down barriers and limitations to accessing newer technologies such as post-exposure prophylaxis, HIV self-testing and pre-exposure prophylaxis (PrEP).

Limitations of the current AIDS law

For Lopez, the current law (23.798), passed in 1990, is still an excellent law, but it is time to improve it after more than 30 years. It has a basically biomedical perspective, unlike the bill that has been presented now, which has a gender and human rights approach with the aim of ensuring rights and guarantees for people with HIV. But not only HIV, it also includes people with viral hepatitis (hepatitis B and C for example, perhaps the best known along with A), tuberculosis (TB) and other sexually transmitted infections (STIs), which until now have not been specifically regulated.

The idea is that comprehensive care and prevention should be guaranteed free of charge regardless of health coverage. It puts the elimination of stigma, discrimination and criminalisation of people living with HIV centre stage.

In fact, the new submission, which has already been made, has already attracted 56 signatures from different parties. “We need them to give some time to see and read the project that would help many people not only to be supported and have their health is guaranteed, but also would ensure that their rights are respected, that it is fundamental, and that they do not suffer stigma and discrimination because of it. In INADI, where I also advise, we receive complaints from time to time about people being excluded from access to work due to their HIV positive status, for example”, asked the coordinator of Nexo AC’s legal department.

“The loss of parliamentary status on four occasions has to do on the one hand with different situations that have arisen over the years, political-partisanship in some cases, where consensus could not be reached to bring together all the blocks; The same with civil organisations and finally, the last time it had to do with circumstances unrelated to the law itself and more to do with the functioning of Congress and the need to find a way for the legislature to move towards the treatment and enactment of the law on AIDS, Hepatitis and STIs,” concluded Leandro Cahn.

This media learnt that there will be a presentation of the project on Tuesday 29 March at 11 am.

Zimbabwe: The Marriages Amendment Bill decriminalising the wilful transmission of HIV to be signed into law

Decriminalisation of HIV transmission a milestone development

From the time the first cases of HIV in Zimbabwe were identified in the mid-1980s, the understanding of the disease, its prevention, management and treatment has improved, so has science.

Today, the number of people acquiring HIV each year is falling in Zimbabwe, although levels are still relatively high, according to an international organisation, AVERT.

In 2018, there were 38 000 new infections (33 000 among adults and 4 800 among children). In comparison, 62 000 people became HIV positive in 2010 (47 000 adults and 15 000 children).

Zimbabwe’s HIV epidemic is generalised and largely driven by unprotected heterosexual sex.

Anti-retroviral drugs have been a game changer. People who are diagnosed early have been accessing them in both rural and urban public and private health facilities across Zimbabwe.

Those like Johana Kasirori, who has been living with HIV for 33 years, others like Tendayi Westerhof, who has had the virus for 20 years, adhere to their prescribed treatment regimen and have lived longer and healthy lives, turning HIV from a death sentence to a chronic condition.

Over the years, the country’s criminal law with regards to decriminalisation of HIV moved at a snail’s pace with debate after debate over the issue.

But today, the law has finally caught up.

Wilful transmission of HIV will be decriminalised once the Marriages Amendment Bill, which sailed through Parliament a fortnight ago, is signed into law by the President as Government and Parliament move to keep abreast with international standards.

Parliament’s moving in will end criminalising transmission through Clause 53 of the Marriages Bill which repeals Section 79 of the Criminal Law (Codification and Reform) which made it an offence to transmit HIV to a partner in certain circumstances.

The section about to be repealed made it an offence for anyone knowing they were infected with HIV or knowing there was a real risk or possibility that they were, and then intentionally did anything or permitted the doing of anything that would infect someone else or involved a real possibility of infecting another person.

Such people were guilty of deliberate transmission of HIV, whether or not they were married to the other person, and were liable for up to 20 years jail.

Convictions were extremely rare.

In his presentation in the National Assembly during the initial stages of the Bill, Justice, Legal and Parliamentary Affairs Minister, Ziyambi Ziyambi, said the new global thinking was that the law criminalising transmission stigmatised people living with HIV.

He said when the law was enacted, the thinking was that it would help to fight the spread of HIV by criminalising those that transmitted it to partners willingly.

“But the global thinking now is that that law stigmatises people living with HIV and studies have shown that it does not produce the intended results,” said Minister Ziyambi. “What the ministry is going to do is to repeal that section of the law and ensure that we keep up to speed with modern trends in the world.”

Welcoming the latest developments, Pan African Positive Women’s Coalition Zimbabwe (PAPWC ZIM) national director,Westerhof, said this was a milestone development, though it had taken so many years when the first HIV case was discovered in Zimbabwe around 1986.

“And we have been battling with this criminalisation of HIV and the stigma to people living with HIV was very rampant and l am glad that this Bill will be signed into law,” said Westerhof, who is also the People Living with HIV representative on the National AIDS Council Board.

She added: “However, whilst we are trying to keep up with international standards we also have to ensure that on the ground people are educated on the laws i.e. communities should be educated on the laws because now the decriminalisation has be put out.”

She urged any potential person living with HIV to continue taking those precautions of safer sexual practices and protect loved ones and not to take advantage of the new law.

“I’m glad that they realised that it is addressing issues of stigma and discrimination because we can never end HIV and AIDS as long as stigma and discrimination is there,” said Westerhof. “Remember we are to end AIDS by 2030, where we are all saying we want zero stigma and discrimination.”

Westerhof hopes that with the decriminalisation, there will be a decrease in gender based violence, especially on women and young women.

“It’s a good law and we uphold it whilst it has taken many years, but l think most of us were involved on debates that were going on through civil society, portfolio committees over many years etc,” she said.

“Finally, those efforts have yielded results. HIV transmission must never be criminalised. The debate over the years and the law makers have seen it fit that HIV must never be criminalised because the law was there.”

She called for the education of communities on it and also scale up efforts of preventing new HIV infections through the convectional means that include delaying early sexual debut by young people, practicing safe sex, making available sexual and reproductive health services such as PrEP.

“Now we hear in South Africa Dapivirine is now available we just hope it will also be available in Zimbabwe so that really we decrease the HIV infection rates and we make marriages safe havens, too, where people can enjoy their conjugal rights without the worry of one infecting the other if one partner is infected,” she said.

“So this is a great development and we are happy with it though a lot more work needs to be done.”

A young Zimbabwean HIV advocate, Anna Sango, said the removal of punitive laws, policies and practices and the promotion of protective legal and policy environment played a critical role in making people feel they can safely access health services.

“Decriminalising HIV is a move in the right direction,” she said. “In Zimbabwe this is progressive for the HIV and AIDS agenda. Now with effective treatment and increased awareness people living with HIV who consistently on treatment are reaching viral load suppressed meaning they cannot pass on the virus.”

She added that Zimbabwe as a country has aligned itself to ongoing and new initiatives that help reduce new infections such as the UNAIDS 90 90 90 targets as well as the 10 10 10 targets that speak to the “removal of punitive, legal and policy environments that deny or limit access to services”

“These all require a co-ordinated response and approach to be achieved. It is important to know that zero discrimination is more than a slogan, it is essential for achieving universal health coverage,” she said.

A representative of people living with diseases who is also a TB Champion for StopTB Partnership Zimbabwe and Global Fund co-ordinating committee, Tariro Kutadza, said criminalisation of HIV and Aids transmission has not produced an fruits anywhere in the world.

She said HIV and Aids transmission remains a puzzle.“HIV is a sexually transmitted infection (STI), which has different facets unlike others like syphilis, gonorrhoea etc,” she said. “HIV has a lot, the cycle, mutilation, the types all those issues and also the impact of HIV — social economic etc.

“It is a whole big issue so to bring about things which cannot be proven becomes very difficult unlike gonorrhoea, syphilis etc where you can point out that I got this from my husband etc.”

Kutadza said she does not know what the issue of wilful transmission brings to someone who was born with HIV and Aids.

“For one to say I have slept with someone and that one incident or so entail to passing HIV to someone is a puzzle,” she said. “When science is silent, sometimes we should also be silent.”

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

AG opposes suit seeking to decriminalise deliberate HIV transmission

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Joseph Wangui

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

New Jersey Repeals Outdated HIV Crime Laws and Fights Stigma

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Published in Insider NJ on 11/01/2022

Legislation to modernise criminalisation law passed by New Jersey Senate

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

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

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

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

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

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

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

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

House Courts and Criminal Code Committee to hear sentencing bills

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

One of the bill regarding sentencing is House Bill 1032.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Arielle Dreher

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

Lee introduces bill to end bias based on HIV status

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Call to protect people living with HIV from criminal prosecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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