2022 in review: A turning point for HIV justice?

Looking back on all that happened in 2022, we are cautiously optimistic that 2022 will be seen as a turning point in the global movement to end HIV criminalisation. We celebrated promising developments in case law, law reform and policy in many countries and jurisdictions over the past year, building on the momentum of 2021. Although there is much more work yet to do, it’s clear that progress is being made — thanks primarily to the leadership of people living with HIV.

Continuing a trend that began two years ago, overall there seems to have been a decline in the number of HIV-related prosecutions. This year we identified media reports of 49 new HIV criminalisation cases in 16 countries plus seven US states. This compares to 54 new cases in 20 countries last year (which was still fewer than reported in previous years). This year, the highest number of case reports came from Russia, followed by the United States (with multiple cases in the state of Florida), and France.

It is possible that we are seeing fewer media reports because there are actually fewer cases, but we must always consider these known cases to be illustrative of what is likely a more widespread, poorly documented use of criminal law against people living with HIV. The media, public health authorities and law enforcement may still be distracted by the global financial crisis precipitated by Russia’s invasion of Ukraine and the impact of COVID-19 — a pandemic that continues to disproportionately impact people living with HIV.

After being near the top in previous years, Belarus has been bumped off the ‘most cases’ list. Last year, the Belarus Investigative Committee reported 34 new HIV-related criminal cases. It’s highly likely that this year there were some (unreported) cases, but it’s also clear that the number of cases has been slowing down since 2020, possibly due to ongoing discussions with the government to limit the use of the criminal law.

Canada used to be a global leader in HIV criminalisation, but no new cases were reported this year. In fact, the only case reports from Canada were about the overturning of a conviction by the Ontario Court of Appeal after it accepted there was no realistic possibility of transmission as the accused woman had an undetectable viral load, and another Ontario Court of Appeal acquittal based on the accused man’s elite controller status. These positive rulings follow many years of sustained advocacy, which has also led to the federal government opening a public consultation on reforming the criminal law. The Canadian Coalition to Reform HIV Criminalization has welcomed this consultation as a first step to concrete action on law reform.

Earlier this year, Taiwan’s Supreme Court also recognised the prevention benefit of treatment by upholding the acquittal of a man with an undetectable viral load who was accused of alleged HIV exposure. But elsewhere in Asia, Singapore continues to unjustly prosecute gay men living with HIV under draconian laws, despite being celebrated for recently repealing their colonial-era law that criminalised sex between men. Singapore is also the world leader in prosecuting gay men for not disclosing a possible HIV risk before donating blood. That’s why we issued our Bad Blood report in September, which concludes that the criminalisation of blood donations by people with HIV is a disproportionate measure — the result of both HIV-related stigma and homophobia, and not supported by science.

In the United States, we continued to see a reduction in the number of states with HIV-specific criminal laws thanks to the ongoing advocacy by networks of people living with HIV supported by human rights and public health organisations. In 2022, Georgia modernised its law and New Jersey became the third US state to fully repeal its HIV-specific criminal law. President Biden again highlighted HIV criminalisation in his World AIDS Day proclamation stating that “outdated laws have no basis in science, and they serve to discourage testing and further marginalize HIV-positive people.” In October, the Presidential Advisory Council on HIV/AIDS unanimously passed an historic resolution on molecular HIV surveillance that will be critical to protecting the human rights and dignity of people living with HIV. But problematic new laws continue to be enacted despite strong opposition from civil society. In November, Pennsylvania’s Governor, Tom Wolf, signed into law an overly broad, unscientific statute that makes it a felony to pass on a communicable disease, including HIV, when someone “should have known” they had the disease.

There was also mixed news from the African continent. In March, Zimbabwe became the second African country to repeal its HIV-specific law (the Democratic Republic of Congo repealed its law in 2018). This victory is testament to the effectiveness of a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honourable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care. She began pushing for a change in the law in 2018, having previously been in favour of the provision which she thought protected her female constituents. And in October, the Central African Republic also enacted a new HIV law that focused primarily on social protections for people living with HIV, without any criminalising provisions.

Also in October, the Lesotho High Court issued a positive judgment following a constitutional challenge to sections of the Sexual Offences Act that impose a mandatory death sentence on persons convicted of sexual offences if they were living with HIV. Following interventions from members of the HIV JUSTICE WORLDWIDE coalition and others, the Court ruled that people living with HIV have the same right to life as all others — and commuted the sentence.

The news elsewhere on the continent, however, wasn’t so positive. After six years of waiting, a constitutional challenge to some of the most problematic, criminalising sections of Uganda’s HIV/AIDS Prevention and Control Act was dismissed outright in November. We are anxiously awaiting the ruling in a similar challenge in neighbouring Kenya. It was filed five years ago and has since been postponed several times. This year, we also lost Ugandan nurse and HIV criminalisation survivor, Rosemary Namubiru, who was a posthumous recipient of the Elizabeth Taylor Legacy Award at this year’s International AIDS Conference.

Women — who were accused in around 25% of all newly reported cases this year — also face criminal prosecution in relation to breastfeeding or comfort nursing, mostly across the African continent. In addition, women living with HIV continue to be threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries. That’s why this year we created the short film, Mwayi’s Story, to highlight the injustice and facilitate discussion about HIV and breastfeeding. We also worked with our HIV JUSTICE WORLDWIDE coalition partners to publish a paper in the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases to highlight these problematic and unjust approaches to women with HIV who breastfeed or comfort nurse.

This year, we learned from the Eurasian Women’s Network on AIDS, working with the Global Network of People Living with HIV, about how women living with HIV are both disproportionately impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region and also leaders in research, advocacy and activism against it. Their report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. Case studies include a woman in Russia who was prosecuted for breastfeeding her baby and several women in Russia who were blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.

The disproportionate impact of HIV criminalisation on women was also the focus of a World AIDS Day statement by the Organization of American States (OAS) calling on Member States to end HIV criminalisation. Earlier in the year, Argentina had enacted a new, comprehensive and non-punitive HIV, STI and TB law.

Nevertheless, there is still so much more to do to reach the global target of fewer than 10% of countries with punitive laws and policies that negatively impact the HIV response. To keep up the momentum, we continued to produce reports and analysis — including our flagship Advancing HIV Justice 4: Understanding Commonalities, Seizing Opportunities — as well as contributed to peer-reviewed journal articles, such as So many harms, so little benefit in the Lancet HIV and Punishing vulnerability through HIV criminalization in the American Journal of Public Health. We’re also doing our best to ensure we change the media narrative on HIV criminalisation, including by contributing to The Guardian’s World AIDS Day podcast on HIV criminalisation.

Our greatest achievement this year was the creation of the HIV Justice Academy. We are very proud of this online platform for e-learning and training which we believe will be a catalyst in building the wider movement to end punitive laws and policies that impact people living with HIV in all their diversity. Already available in English and French, we’ll be launching in Spanish and Russian early next year.

Did we turn the corner in 2022? Only time will tell, but if there is one thing we know for sure it is that changing hearts and minds with respect to HIV criminalisation is a long road with many ups and downs along the way. We know that important progress was made in 2022 and that we begin 2023 with fresh analysis, new tools and a renewed spirit of solidarity.

Democratic Republic of Congo: Decriminalisation can be achieved when all stakeholders, including people with HIV, are included in the process

The AIDS epidemic and the justice system: Fighting against the criminalisation of HIV in the DRC

Translated from French with Deepl.com – Scroll down for original article.

By Ms MUJINGA BIMANSHA Marie-Josée, Conseiller à la Cour de Cassation, Country Focal Point, HIV and Human Rights

It has been observed that 3 decades after the appearance of HIV infection and despite all the efforts undertaken and the progress made in scientific and medical terms, particularly through the production of ARVs, this epidemic continues to resist.

This resistance is linked to certain major obstacles that render the response ineffective. These include the violation of human rights through discrimination and stigmatisation of people living with HIV/AIDS, vulnerable people such as women, young girls, children and key populations.

In the Democratic Republic of Congo, Article 45 of Law No. 08/11 of 14 July 2008 on the protection of the rights of people living with HIV and those affected, criminalised anyone who deliberately transmitted HIV infection.

4 years after the promulgation of the aforementioned law, several cases were brought to court on the basis of the aforementioned provision, but most of the perpetrators were acquitted for lack of evidence to prove that they had committed the offence.

It was subsequently observed that the public had begun to stigmatise the victims who brought their complaints before the courts, who began to live in hiding.

This situation raised the question of the criminalisation of HIV because, on the one hand, people living with HIV (PLHIV) and their perpetrators (AP) began to go underground for fear of being stigmatised and discriminated against and, on the other hand, because the judges hearing these cases were finding it difficult to establish the offences in the cases brought before them.
This law had a negative impact on the national response, because PLHIV and IP had difficulty accessing justice and all HIV-related services.

To remedy this situation, a national dialogue was organised under the aegis of the Ministry of Justice through the country’s HIV and Human Rights Focal Point and all the components of the response, at the end of which a number of recommendations were made that led to the reform of the aforementioned law. In particular, the dialogue facilitated the drafting of the National Strategic Plan for the fight against AIDS, a review of the legal framework, and a study on the stigma index for PLHIV and key populations. In addition, training materials, pleas and arguments for the non-discrimination of key populations were developed at national level.

Around 3,500 magistrates and 6,000 court officers (OPJs, lawyers, IPJs, clerks) have been trained in rights and HIV and in the criminalisation of HIV. Forums have also been organised with members of parliament, who have been made aware of HIV issues and the need to revise provisions that criminalise HIV. Religious leaders have also been made aware of HIV-related issues.

As a result, in 2016 we were able to get Parliament to repeal Article 45, which penalised HIV.

We must remember that to achieve this reform of the law we based ourselves on the realities of the country, given the negative consequences of penalising provisions in the response to HIV. We have held many discussions with parliamentarians on the issue of criminalising HIV. We have identified the right allies among parliamentarians to bring the issue before the National Assembly. We have also involved the judiciary, HIV and human rights associations and the media in the discussions.

So it was by combining our efforts with all the players mentioned above, including the government through the Ministry of Justice, and technical and financial partners, in particular the UNDP, and by organising training and awareness-raising activities that we achieved the desired result.

In conclusion, the process of decriminalisation is certainly a long one, but it is necessary to involve all the components mentioned above through training and awareness-raising, including people living with HIV themselves, and vulnerable groups to achieve a good result.

While mobilisation in the DRC led to the reform of the law on HIV, the process was not without its difficulties in a context of stigmatisation and homophobia that is still present.

Legislative reform can take time, and can even discourage certain allies and partners. We believe, however, that efforts still need to be made to ensure greater ownership of non-penalising laws on HIV, including by building the capacity of those involved in the justice system.

Epidémie de sida et le système de justice: Lutter contre la criminalisation du VIH au RDC

Par Mme MUJINGA BIMANSHA Marie-Josée, Conseiller à la Cour de Cassation, Point Focal Pays, VIH et Droits Humains

Il a été constaté que 3 décennies après l’apparition de l’infection à VIH Sida et malgré tous les efforts entrepris et les progrès enregistrés sur les plans scientifique et médical notamment par la production des ARV, cette épidémie continue à résister.

Cette résistance est liée à certains obstacles majeurs qui rendent la riposte inefficace. Il s’agit notamment de la violation des droits humains qui se traduit par la discrimination et la stigmatisation à l’égard des personnes vivant avec le VIH sida, les personnes vulnérables telles que les femmes, les jeunes filles, les enfants et les populations clés.

S’agissant de la République Démocratique du Congo, la loi n° 08/11 du 14 juillet 2008 portant sur la protection des droits des personnes vivant avec VIH et personnes affectées, criminalisait en son article 45, toute personne qui transmettait volontairement l’infection de VIH.

4 ans après la promulgation de ladite loi, plusieurs cas ont été portés en justice, sur base de la disposition précitée mais la plupart des auteurs poursuivis ont été acquittés faute des preuves d’établir cette infraction à leur charge.

Il a été constaté par la suite, que la population avait commencé à stigmatiser les victimes qui se plaignaient en justice, qui ont commencé à vivre en clandestinité.

Cette situation a remis sur la table la question de la pénalisation en matière de VIH car d’une part, la personne vivant avec le VIH (PVVH) ainsi que leurs auteurs (PA) ont commencé à vivre en clandestinité par crainte de la stigmatisation et de la discrimination à leur égard et d’autre part, parce que les juges saisis de ces cas rencontraient des difficultés à retenir les infractions pour les cas qui leur étaient soumis.
Cette loi, a joué négativement sur la riposte nationale parce que les PVVH et PA avaient du mal à accéder à la justice et à tous les services liés au VIH.

Pour remédier à cette situation, un dialogue national a été organisé sous l’égide du Ministère de la Justice à travers le Point Focal pays VIH et Droits HUMAINS ainsi que toutes les composante à la lutte à l’issue duquel ont été prises certaines recommandations qui ont milité à le réforme de la loi précitée. Notamment, le dialogue a facilité l’élaboration du Plan Stratégique National de lutte contre le sida, une revue du cadre légal, une étude sur l’index stigma des PVVH et population clé. De plus, l’élaboration des supports de formation et des plaidoyers, des argumentaires pour la non-discrimination des populations clés ont été tenus au niveau national.

Environ 3.500 magistrats, 6.000 auxiliaires de justice (OPJ, avocats, IPJ, Greffiers) ont été formés sur les questions des droits et VIH et sur la problématique de la criminalisation du VIH. Des forums ont été également organisés avec les parlementaires qui ont été sensibilisés sur les questions du VIH et sur la nécessité de réviser les dispositions pénalisantes en matière de VIH. Les leaders religieux ont été aussi sensibilisés sur les questions liées au VIH.

C’est ainsi qu’en 2016 nous avons pu obtenir du parlement l’abrogation de l’article 45 qui était pénalisant pour le VIH.

Nous devons retenir que pour réussir cette réforme de la loi nous nous sommes basés sur les réalités du pays eu égard aux conséquences négatives des dispositions pénalisantes dans la riposte contre le VIH. Nous avons multiplié les échanges sur la question avec les parlementaires sur la question de la pénalisation du VIH. Nous avons identifié les bons alliés parmi les parlementaires pour porter la question devant l’Assemblée nationale. Nous avons également associé aux échanges, les acteurs judiciaires, les associations de lutte contre le VIH et de défense des droits de l’homme ainsi que les médias.

Ainsi donc, c’est en conjuguant les efforts avec toutes les composantes précitées y compris le gouvernement à travers le ministère de la Justice, ainsi que les partenaires techniques et financiers, notamment le PNUD, et en organisant des activités, des formations et de sensibilisation que nous sommes parvenu au résultat escompté.

En conclusion, le processus de la dépénalisation est certes long mais il faut associer toutes les composantes précitées par la voie de formation et sensibilisation, y compris les personnes vivant avec VIH elles-mêmes, et les groupes vulnérables pour parvenir à un bon résultat.

Si la mobilisation en RDC a conduit à la réforme de la loi sur le VIH le processus n’a pas été sans difficulté dans un contexte de stigmatisation et d‘homophobie toujours présente.

Les reformes législatives peuvent prendre du temps et entrainer même le découragement des certains alliés et partenaires. Nous estimons cependant que les efforts restent à faire pour une meilleure appropriation des lois non pénalisantes sur le VIH et cela en passant également par le renforcement des capacités des acteurs de justice.

Russia: Court finds refusal to let migrant woman stay in Russia because of her HIV status unlawful

Court in Krasnodar invalidates refusal to allow a foreigner with HIV to stay in Russia

Translated via Deepl.com. For original article in Russian, please scroll down.

The Krasnodar Territory Department of the Russian Federal Consumer Rights Protection and Human Health Control Service decided that Uzbek citizen X. was undesirable in Russia because of her HIV positive status. The Leninskiy Court in Krasnodar found the ban discriminatory and unlawful.

The foreigner went to court to challenge the decision to ban her from staying in Russia, pointing out that her parents, brother and sister reside in Russia and have Russian citizenship, and she has never violated the law. When Rosia appealed to Rospotrebnadzor to cancel the decision, they replied that the procedure for cancellation or suspension under this category was not regulated by law and that the contested decision could only be cancelled on the basis of a court decision.

The court found that under the law On the Prevention of the Spread of Disease Caused by HIV in the Russian Federation, foreigners and stateless persons with such status may stay in the country if they do not violate administrative and criminal law. The Russian Constitutional Court has also confirmed the illegality of such restrictions.

As a result, the Leninskiy Court in Krasnodar ordered the regional department of Rospotrebnadzor to reverse the decision on the undesirability of the Uzbekistani citizen, who is now allowed to enter the country.

Суд в Краснодаре признал незаконным отказ во въезде в Россию иностранке с ВИЧ

Управление Роспотребнадзора по Краснодарскому краю приняло решение о нежелательности нахождения в России гражданки Узбекистана Р.Р. из-за ее положительного ВИЧ-статуса. Ленинский суд Краснодара признал запрет дискриминационным и незаконным.

Иностранка обратилась в суд, оспаривая решение о запрете пребывания в России, указав: ее родители, брат и сестра проживают в России и имеют российское гражданство, она ни разу не нарушала законодательство. Когда Розия обратилась в Роспотребнадзор с требованием отменить решение, там ответили – порядок отмены или приостановления по этой категории законодательно не урегулирован и отмена оспариваемого решения возможна только на основании решения суда.

Суд установил, что по закону “О предупреждении распространения в Российской Федерации заболевания, вызываемого ВИЧ” иностранцы и лица без гражданства с подобным статусом могут находиться в стране, если не нарушают административное и уголовное законодательство. Незаконность такого ограничения подтверждает и Конституционный суд России.

В итоге Ленинский суд Краснодара обязал региональное управление Роспотребнадзора отменить решение о нежелательности пребывания гражданки Узбекистана, которой теперь разрешен въезд в страну.

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: Pennsylvania’s governor signs bill subjecting people with a communicable disease to harsher penalties

Pennsylvania’s Governor Wolf has signed bill HB 103. HB 103 creates two new, unnecessary, and broadly applicable felony offenses and subjects people with a communicable disease, such as HIV, to harsher penalties under law. As passed, HB 103 would create two new felonies:

A new third-degree felony offense for something as small as “expelling” saliva on a police officer, punishable by up to seven years in prison and up to $15,000 in fines; and
A new second-degree felony offense if the person knew or “should have known” they had a reportable, communicable disease if their actions could have transmitted a communicable disease—punishable by up to TEN YEARS in prison and up to $25,000 in fines.

From LGBTQ Nation – By Daniel Villarreal

Democratic governor signs law punishing HIV transmission with up to 10 years in prison

As of 2022, 35 states have outdated and discriminatory laws that criminalize HIV exposure (and predominantly punish Black people).

Pennsylvania’s Gov. Tom Wolf (D) just signed a new law that makes it a felony to pass on a communicable disease when they “should have known” that they had it, the HIV Justice Network reported.Opponents of the law worry it will be used to punish people with HIV or other STDs who unknowingly transmit it to sexual partners. Such HIV criminalization laws have disproportionately been used to target Black men and other men of color.

The law, known as HB 103, punishes people with up to 7 years in prison and $15,000 in fines for “expelling” saliva, blood, or another bodily fluid onto a police officer.

While the offense, a third-degree felony, has to be “intentional,” one could see an arrestee being charged with it if they accidentally spit onto an officer while talking or bleed onto an officer during a violent arrest.

The law also charges people with a second-degree felony if they knew or “should have known” that they had a communicable disease after transmitting it to someone else. The offense is punishable by up to 10 years in prison and $25,000 in fines.

This not only would apply to anyone who transmits HIV; it could also apply to people who unintentionally transmit hepatitis, influenza, chickenpox, and COVID-19.

The bill has been opposed by the Elizabeth Taylor AIDS Foundation, the Anti-defamation League of Pennsylvania, the American Civil Liberties Union of Pennsylvania, the Pennsylvania HIV Justice Alliance, the Positive Women’s Network-USA, the Sero Project, the AIDS Law Project of Pennsylvania, Advocates for Youth, and many other groups.

“As a person living with HIV who was born and raised in Pennsylvania, the passing of HB 103 serves as a reminder that as we get closer to ending the HIV epidemic, we have a long way to go to end HIV stigma and the criminalization of people living with HIV,” said Louie Ortiz-Fonseca, Director of LGBTQ Health & Rights with Advocates for Youth.Medical professionals have said that HIV criminalization laws do nothing to stop the spread of the virus and may even encourage people not to get tested for fear that the knowledge could subject them to criminal penalties.

A 2018 Williams Institute study on HIV criminalization in Georgia found that “Black men and Black women were more likely to be arrested for HIV-related offenses than their white counterparts.” While 26 percent of HIV-related arrests were of white males, 46 percent of HIV-related arrests were of Black males.

Additionally, 11 percent of those arrested were white females, while 16 percent were Black females.As of 2022, 35 states have laws that criminalize HIV exposure, according to the Centers for Disease Control and Prevention (CDC).

Many of the laws were passed at a time when little was known about HIV and millions were dying from the virus.“Many of these state laws criminalize actions that cannot transmit HIV – such as biting or spitting – and apply regardless of actual transmission, or intent,” the CDC wrote.

“After more than 40 years of HIV research and significant biomedical advancements to treat and prevent HIV transmission, many state laws are now outdated and do not reflect our current understanding of HIV.”

Lesotho high court finds imposition of death sentence solely on the basis of HIV status unconstitutional

Court decision upholds that people living with HIV have the same right to life as all others

Joint news release from the Southern Africa Litigation Centre, AIDS and Rights Alliance for Southern Africa, Lesotho Network of People Living with HIV and AIDS, HIV Legal Network and HIV Justice Network

On 25 October 2022, the High Court of Lesotho in the case of MK v Director of Public Prosecutions and Others issued a judgment on a constitutional challenge to certain sections of the Sexual Offences Act that impose mandatory HIV testing on persons accused of sexual offences, and subsequently impose a death sentence on persons convicted of sexual offences solely based on their HIV-positive status.

The case was supported by the Southern Africa Litigation Centre (SALC), AIDS and Rights Alliance for Southern Africa (ARASA), HIV Legal Network – all members of HIV JUSTICE WORLDWIDE (HJWW) Steering Committee coordinated by the HIV Justice Network (HJN) – as well as Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN). Lesotho Network of People Living with HIV and AIDS (LENEPWHA) was admitted as Amicus Curiae. The petitioner and Amicus Curiae were represented by Advocate Molati, Advocate Mokhathali, Advocate Masaeso, Advocate Mohau (K.C) and Advocate Letuka.

The petitioner challenged the constitutionality of section 32(a)(vii) of the Sexual Offences Act which appeared to impose a mandatory death sentence on people convicted of sexual offences who were HIV-positive and were aware of their status. The petitioner also challenged section 30 of the Act, which requires mandatory HIV testing for persons arrested and charged under the Act. The petitioner argued that the imposition of a mandatory death sentence solely on the grounds of HIV status, and mandatory HIV testing upon arrest, breached the constitutional rights to life, equality and non-discrimination, equal protection of the law, privacy, and dignity and that they contribute to stigma against people living with HIV.

In a judgment written by Justice Makara, the High Court, sitting as a Constitutional Court, declared that section 32(a)(vii) of the Sexual Offences Act was unconstitutional to the extent that it imposes a death sentence solely on the basis of a person’s HIV status, as this was discriminatory and amounted to inhumane treatment. The Court said that people convicted of sexual offences should be sentenced according to the mitigating or aggravating circumstances rather than HIV status alone, and that the law should be interpreted so as not to require a mandatory death sentence for a person living with HIV.

“People living with HIV have the right to life, as all people do. Imposing the death penalty based on a person’s HIV-positive status is the most extreme form of discrimination possible. We welcome the Lesotho High Court’s decision to end this terrible human rights violation.” Edwin J Bernard, HIV Justice Network, global coordinator, HIV JUSTICE WORLDWIDE.

“While recognizing the serious impact of sexual violence, the judgment is an acknowledgment that the over-broad use of criminal laws and sanctions solely based on HIV status is unjust and not justified by a scientific and human-rights based approach” Maketekete Alfred Thotolo, Executive Director, LENEPWHA.

Download the pdf of the news release here

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.

Uganda: Mandatory testing of people under arrest is contrary to the provisions of the Patients Charter and the Constitution of Uganda

Activists warn on mandatory HIV testing of suspects

Health rights activists and lawyers have warned of evasion of privacy and confidentiality for arrested suspects once they are subjected to mandatory testing for HIV/Aids, Tuberculosis (TB) and malaria.
On Tuesday, the office of the Director of Public Prosecutions (DPP) launched a programme that will see all arrested suspects, who will be detained in the pilot 16 police stations around the Kampala Metropolitan Area, subjected to mandatory screening for HIV/Aids, TB and malaria.

This, according to the office of the DPP, is aimed ensuring the right to health for employees of the criminal justice system, victims of crime and suspects.
But the president of the Uganda Law Society, Mr Bernard Oundo, yesterday warned that despite government having the mandate to protect its citizens against certain killer diseases, it has to do so with an enabling piece of legislation.

Ms Esther Dhafa, the programme officer for strategic litigation at Center for Health, Human Rights and Development, warned that the move is contrary to the provisions of the Patients Charter and the Constitution.
“Every patient has a right to be given adequate and accurate information about diagnostic procedures to be conducted on them, and the proposed treatment to enable them make an informed decision,” Ms Dhafa cautioned.
Ms Dhafa added that even after the mandatory tests are conducted, the safety and confidentiality of the information regarding one’s status is not guaranteed and could end up in wrong hands.

Likewise, another health rights activists, Mr Gracias Atwiine Germany, said the programme is a setback in in the fight against HIV/Aids.
“Forced disclosure and testing of people living with different health conditions will escalate stigma and discrimination,” Mr Atwiine said.
However, last evening, Ms Jacquelyn Okui, the spokesperson of the office of the DPP, said the only mandatory tests should be for TB and malaria and not HIV/Aids.
“The tests for HIV shall not be mandatory. However, suspects of crime will be encouraged to undergo testing for both their benefit and the benefit of others in the criminal justice system,” she said.