The policy imposed an additional form of ritual humiliation on a reviled category of people without any plausible public-safety justification.
The U.S. Supreme Court today declined to hear Louisiana’s appeal of a decision against its 2006 law requiring that people on the state’s sex offender registry carry IDs or driver’s licenses that say “SEX OFFENDER” in orange capital letters. A year ago, the Louisiana Supreme Court concluded that the requirement amounted to compelled speech and could not be justified by the state’s legitimate interest in protecting public safety. In addition to raising First Amendment issues, Louisiana’s now-moribund law illustrates the longstanding tendency to impose additional punishment on people convicted of sex offenses in the guise of regulation.
The registries themselves, which require sex offenders to regularly report their addresses to local law enforcement agencies so that information can be made publicly available in online databases that also include their names, photographs, and physical descriptions, are primarily punitive, exposing registrants to ostracism, harassment, and violence while impeding their rehabilitation by making it difficult to find employment and housing. There is little evidence that the sort of public notification practiced by every state delivers benefits that outweigh those costs. Louisiana’s experiment in ritual humiliation, which branded registrants with orange letters they had to display in every transaction that required producing a government-issued ID, compounded those costs without offering any plausible benefits.
One problem with sex offender registries is that they cover a wide range of crimes, including many that do not involve violence, force, or physical contact. While people tend to imagine rapists or child molesters when they hear the term sex offender, the reality can be quite different, in ways that are important in assessing the danger that a person might pose to the general public or to people in particular age groups.
The second line of each record in the state’s registry shows the offender’s “tier,” which corresponds to various crimes classified by severity, ranging from Tier 1 (least serious, requiring registration for 15 years) to Tier 3 (most serious, requiring lifetime registration). Further down in the record, you can see the statute under which the registrant was convicted (e.g., “carnal knowledge of a juvenile”), which still omits potentially important details.
The driver’s license warning required by Louisiana’s law did not provide even that much information, meaning that anyone who saw it was invited to assume the worst. Tazin Hill, the man who challenged the law, completed his prison sentence in 2013. He was convicted of having sex with a 14-year-old when he was 32, which placed him in Tier 1. But anyone who saw his license had no way of knowing the nature or severity of his offense. Rebelling at this government-imposed badge of shame, Hill excised the “SEX OFFENDER” label from his license and covered the gap with clear tape, which resulted in the criminal charges that gave rise to this case.
Another problem with sex offender registries is the mistaken assumption that people who fall into this broad category are more likely to commit additional crimes than, say, robbers, burglars, or arsonists. When it upheld mandatory “treatment” of sex offenders in prison, for example, the Supreme Court relied on a highly dubious recidivism estimate that was repudiated by its original source but has nevertheless been cited repeatedly by lower courts. The “SEX OFFENDER” stamp on Louisiana driver’s licenses, even more than the registry, promoted such erroneous fears by implying that the bearer posed an ongoing threat, no matter the details of his crime, how long ago it occurred, or how he had behaved since he completed his sentence.
The empirically unjustified belief that sex offenders are highly prone to recidivism is especially inaccurate and damaging when applied to people convicted as minors, who are included in Louisiana’s registry and therefore had to carry “SEX OFFENDER” IDs or driver’s licenses. Judy Mantin, who this year testified before a state legislative committee that was considering revisions to Louisiana’s law in light of the state Supreme Court’s ruling, said her son “made a mistake” when he was 14 but today is “a very productive citizen.” She argued that “our children deserve a second chance in life.”
Legislators ostensibly have made the same judgment regarding adults convicted of sex offenses, who have notionally paid their debt to society once they complete their criminal sentences. Yet legislators imply otherwise by imposing additional burdens on those people for decades after their official punishment. In this case, any interaction involving a driver’s license—e.g., with cashiers, hotel clerks, bank tellers, employers, landlords, election officials, or airport security screeners—became a new invitation to close-range fear and loathing.
What was the justification for this requirement, which added to the burdens imposed by registration, public notification, and residence restrictions? The state argued that the “SEX OFFENDER” label facilitated law enforcement by alerting police officers to a person’s status. But police already could readily check that by consulting the state’s database. And as the Louisiana Supreme Court noted, the state could have eliminated even that slight inconvenience with a more discreet label: “A symbol, code, or a letter designation would inform law enforcement that they are dealing with a sex offender and thereby reduce the unnecessary disclosure to others during everyday tasks.”
Such a solution would not be adequate, the state argued in its petition to the U.S. Supreme Court, because “the Louisiana Legislature concluded that the public, and not merely law enforcement, needs to know of a sex offender’s status under limited circumstances.” Such as?
“A property manager needs to know a sex offender’s status when leasing an apartment—or the manager might incur liability if a tenant is raped on the premises,” the petition said. “A church or Red Cross facility may need to know a person’s status as a sex offender when providing shelter from a storm. People trick or-treating on Halloween may need a quick way to verify that their children are safe from predators.”
During a lower-court hearing, one of the state’s lawyers offered another example:
If I’m deciding who I want to be my babysitter and I know that I don’t want a sex offender to babysit my children, I say, “OK. I’d like to see your ID before I allow you to babysit my children.” And, “Oh, it says ‘sex offender.’ I’m not going to hire you.”
The Halloween scenario suggests the state’s desperation, not only because this particular hazard is an urban legend but also because it is difficult to imagine a situation in which parents would demand to see the driver’s licenses of neighbors handing out candy to trick-or-treaters. Even when the concerns are more reasonable, the public registry, for better or worse, already allowed anyone to look up an individual and see if he was listed; that was supposedly the whole purpose of creating a publicly accessible database in the first place.
“Louisiana’s branded-identification regime was an outlier in singling registrants out for public opprobrium,” Hill’s lawyers noted in their brief urging the Supreme Court not to consider the state’s appeal. “Just two other States require identification cards to display phrases like ‘SEX OFFENDER,’ while only six States have laws that require identification cards to include other types of sexual offense disclosure—typically a symbol or statute number recognizable only to law enforcement.”
Even as an outlier, Louisiana’s law suggests how ready politicians are to support practically any burden on sex offenders, whether or not it makes sense as a tool to promote public safety. Policies like these serve no useful purpose, but they do make life harder for a reviled category of people whose punishment never ends.
[Feature] It Takes More Than A Village to End HIV Criminalisation
The proverb says, “It takes a village to raise a child”. But what if a mother in the village is living with HIV, and some of the villagers stigmatise her? What if that stigma creates a situation where the mother living with HIV is unjustly criminalised because of her HIV status? Then it takes more than a village to get justice for that woman. It takes a global movement to end HIV criminalisation to sensitise and train lawyers and expert witnesses. It takes national communities of women living with HIV to support that woman following her release, and to educate the community in which she lives about HIV.
In 2016, a Malawi court convicted a woman living with HIV of “negligently and recklessly doing an act likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code. She had attended a village meeting with her baby which she breastfed as usual before passing the child to her grandmother. Another woman then asked her to hold her baby. It was alleged that this child began breastfeeding briefly before the woman realised what was happening. The child’s mother then reported the incident to the police. The woman was arrested and without legal advice or representation, pleaded guilty, was convicted, and sentenced to nine months’ imprisonment with hard labour.
In addition, the accused woman was taking antiretroviral therapy. The chances of HIV transmission through even long-term breastfeeding are very low (which is why WHO guidelines recommend it when access to infant formula and clean water are limited) and the chances of transmission during the brief period the baby allegedly fed were infinitesimally small. In fact, the accused woman’s own child, who was routinely breastfed, has not acquired HIV, calling into question any suggestion that she intended to cause harm to the other woman’s child. Perversely, for a system that unjustly condemned her for risking harm to the other woman’s child, her own baby was imprisoned with her, without any arrangements for appropriate feeding and care, negating any notion that the legal system’s purpose was to protect children.
Following media reports of her initial conviction, numerous individuals and organisations – including HJN and our HIV JUSTICE WORLDWIDE partners, ARASA and SALC – became involved in the case, ultimately changing the outcome for the woman and her family, and laying the groundwork for further anti-HIV stigma advocacy and education in the region. Her story demonstrates the vital role that education, training, strong networks, and community play in the pursuit of HIV justice.
Living with HIV-related stigma
When interviewed at her home in 2019, the woman referred to as “EL” talked about her life:
 The initials EL are used instead of her full name following a court order of anonymity to protect her privacy. The interview took place in 2019, during the village visit described later in this article.
“As kids, there were the two of us — me and my brother. My parents faced challenges raising us. Finding the basic necessities like soap and food was a tall order, let alone talking about going to school. It was difficult to get learning materials as well as proper clothes to wear at school. I worked hard in class but couldn’t get past Standard 5 at primary school. Eventually I dropped out, and my brother did the same, … My daily life was taken up doing house chores just like any other girl in the village, as well as helping my parents with farming. At 16, I got married.”
EL further described how she was diagnosed HIV-positive in 2015 after a de facto compulsory HIV test at an antenatal visit. She already had two children and was pregnant with her third. She had heard about HIV but did not know much about it. EL said that the healthcare workers provided a lot of assistance, giving her accurate information about HIV, including the importance of adhering to her antiretroviral treatment (ARVs).
EL said that she generally enjoyed life in her village, although at times she was subject to stigma and discrimination:
“When I went to fetch water at the community borehole, people would laugh at me, and whenever I wanted to participate in community work, you would find pockets of community members talking ill about me. Some people used to insult me, calling me names. But I persevered because my relatives, including the Village Headman himself, gave me support and always stood by my side.”
Members of EL’s family also faced discrimination. “Due to lack of information, a lot of people thought HIV was hereditary and because I was diagnosed HIV-positive, this meant that all my family members had HIV, and they were discriminated against,” EL said.
EL wonders if more could have been done to help her fight stigma. In particular, EL gained a lot of knowledge about HIV from the counselling she got when diagnosed, but perhaps she could have been better equipped with information to share with people in her community:
“A lot of people don’t know that if you adhere to ARVs, you reduce the risk of transmitting HIV to others. This information needs to be passed on to many people. There are also other issues to do with ARVs. A lot of people don’t have adequate information on the effects of ARVs and at the end of the day, they start pointing fingers at each other, giving people room to start speculating about issues to do with witchcraft.”
EL’s prosecution had repercussions for her whole village. One woman from the community explained:
“I was there and very close to where EL was sitting. Yes, she was carrying another woman’s child. This other woman had given the child to EL for safe keeping while she went to stand in a queue, but honestly speaking, I didn’t see EL breastfeed the child. I just heard some people who were sitting a distance from where we were sitting, as they started pointing accusing fingers at her.”
She said that things moved so fast that before they could think of anything to stop what she called “the rumour.” It had gotten out of hand and people started saying that EL had intentionally breastfed the child to transmit HIV.
After receiving a summons, EL voluntarily turned herself in at the police station. She was accompanied by the Village Headman (her grandfather) who wanted first-hand information about what crime she was alleged to have committed. That same day, police transferred EL to a larger town, where she was remanded for three days. At the age of 29, this was the first time that EL had ever left her village.
Days later, she appeared in court and the charge sheet was read out. EL recounted that she had not understood what was happening and could not make arguments because she had no legal representation. EL agreed with the summary of events as they were described, so she was found guilty and was imprisoned together with her youngest child.
She described life in prison as “hell”:
“After a week, my brother showed up to give me my ARVs. All this talk about a woman with HIV breastfeeding. I breastfed but I also found it tough to feed my baby while in prison because there was no provision of special food for babies. We were eating nandolo (pigeon peas) almost every day with Msima ya Mgaiwa (maize meal). And there was only one toilet for a cell of more than 50 people.”
After some time, relatives and other members of her community started visiting, giving her money she could use to buy soap and food for her baby. “When we heard from our Village Headman that she had been arrested, we were so devastated”, a woman from EL’s village explained. “We raised funds for some members to go and give her support only to learn that she had been transferred to one town, then another, but some of us did manage on several occasions to visit her and offer our support when she was in prison.”
Then, out of the blue, EL received a message that some people had come looking for her. She went to meet them: a lawyer, Wesley Mwafulirwa, and his paralegal. They explained why they were there and asked if she would like them to appeal on her behalf. She accepted enthusiastically. “I was excited but at the same time I was confused because I could not believe that I could be so lucky to have these people come to help me.”
Fighting the charges
Solicitor Wesley Mwafulirwa had volunteered to attend training to address legal barriers to prison health and human rights presented by the Southern African Litigation Centre (SALC). He travelled from Malawi to South Africa to attend the training which addressed useful regional and international mechanisms, and presented insights about legal practice and strategic litigation to support prison health and human rights, particularly for those facing heightened vulnerability to HIV and TB.
At the training, two lawyers spoke about their pro bono work. Wesley remembers one of them, Allan Maleche (Executive Director of KELIN), saying that each participant should take at least one case when they go back to their country. It was a turning point in Wesley’s career.
He had not been home long when he saw an article in the newspaper about an HIV-positive person convicted for trying to spread HIV. That person was EL.
Wesley, who lives in a small town in northern Malawi, drove for more than ten hours to get to the jail where EL was incarcerated. He explained his determination, saying “I was so fired up! I’d just come from SALC’s training … and I said, ‘I want to take up this case’.”
Wesley interviewed EL and offered to take her case pro bono. Wesley contacted SALC, who offered technical support. Their first step was to get an order for anonymity to protect EL’s identity and gain greater control over media reporting. Next, they faced an ethical question. They wanted to challenge the constitutionality of the law but that would take a long time. Because EL was in prison, they decided to undertake a criminal appeal instead. They applied for EL to be let out of custody on bail pending appeal. This is usually a difficult application to win, but they were successful and EL was released from prison.
In the appeal, the court was asked to consider whether the conviction could be justified, whether the penal provision was constitutional (arguing it was overly broad and vague), and whether the sentence was manifestly unjust. Wesley used his learnings from the SALC training to raise international principles and instruments relating to sentencing, which the court referenced and upheld. Michaela Clayton, then Executive Director of the AIDS and Rights Alliance for southern Africa (ARASA), and now a member of HJN’s Supervisory Board, provided expert testimony. Another expert witness, Dr Ruth Brand, identified through HJN’s global network, gave expert scientific evidence to show the risk of HIV transmission had been “infinitesimally small.”
The case was heard by Honourable Justice Zione Ntaba, who held that the proceedings in the trial court were irregular and “blatantly bias” against EL, compromising her right to a fair trial. Justice Ntaba found the charge sheet had been defective and therefore EL’s plea should not have been recorded as guilty. She noted the law must be sensitive to the accused’s knowledge or belief (or lack of) that HIV would be transmitted. Justice Ntaba decided the conviction could not be justified, acknowledging human rights principles against the overly broad criminalisation of HIV non-disclosure, exposure, or transmission. EL’s sentence was set aside. (The Constitutional challenge was referred to a full-member panel of the Constitutional Court although the case was not pursued.)
Notably, Justice Ntaba was a member of the African Regional Judges Forum to discuss HIV, TB and Human Rights (a process which is owned and planned by the judges and run with support from UNDP and funding from the Global Fund).
Fighting the stigma
Shortly after EL’s arrest, the Coalition of Women and Girls Living with HIV and AIDS in Malawi (COWLHA) and the Malawi branch of the International Community of Women Living with HIV/AIDS (ICW-Malawi) discussed the case at a roundtable meeting. At first, everyone was surprised and even laughed, questioning how she could have breastfed someone else’s child. They had never heard of a criminal case involving infant feeding and did not understand what they were dealing with.
During their discussions, COWLHA and ICW-Malawi agreed that the prosecution of EL was a manifestation of stigma and misinformation about HIV in the community. They learned more about the unjust measures that EL had experienced, like being imprisoned without being given a chance to be heard and not being given the chance to prepare and take her medication and things she needed to care for her child. COWLHA and ICW decided to get involved.
Concerned that EL could face social and community hostility after her release, COWHLA and ICW planned a visit to the village to provide psychosocial support to EL and to work with traditional community leaders to provide community sensitisation on HIV, addressing issues of stigma and discrimination. Their efforts helped change some community members’ ideas about HIV.
The community formed two support groups— one for youth and another for adults (notably both were predominantly female groups). They have conducted numerous activities, including home visits, supporting children to go to school, helping the elderly with house chores, and they have a garden where they grow vegetables and rice. They hoped to access loans to become self-reliant. They also had a list of issues they wanted to learn more about, including preventing mother-to-child transmission, sexual and reproductive health, positive living, stigma and discrimination, and treatment literacy.
Visiting EL at home
In September 2019, a three-member team comprising Edna Tembo (Executive Director of COWLHA), Charity Mkona (ICW Board Chair), and Peter Gwazayani (media consultant), set out for EL’s village.
The team was welcomed by the Group Village Headman, who took them to EL’s house. EL recognised Edna from the work COWLHA and ICW-Malawi had done in the community previously. EL welcomed the team with a big smile.
EL and her husband looked cheerful as they laid a mat on the veranda of their house for the visitors. Her mother later joined the discussion.
EL was interested to learn that HJN wanted to write about her case and the type of interventions that had been helpful, to share the story with advocates for HIV justice around the world.
EL recounted that when she returned to the village, “most members of my community received me with happiness, particularly my relatives. The day I arrived, they were jubilant. They celebrated with songs that we normally sing during special occasions in the village.”
EL lives with her husband, five children and her mother in a compound made up of three grass thatched houses. She introduced her children:
“The oldest is 13 and she goes to school, as do the second and third. The fourth, a little girl, is the child I was with in prison. She has not yet started school. And then there is this one, who I am breastfeeding. She is the fifth one. She has been tested for HIV on two occasions and will be going for the last test soon. The other two tests have come back HIV-negative.”
EL’s accuser and her family still lives in the same village which has presented some difficulties. EL said that on several occasions she had tried to greet them when they passed each other, but she had been ignored. “They don’t talk to me but from deep down in my heart, I have no grudges against them,” EL said. “I am just living my normal life,” EL says, although now she says that she would never agree to carry anybody else’s child, for any reason.
Moving beyond criminalisation
With respect to the community-level interventions, lawyer Annabel Raw, who worked at SALC during the time they supported the EL case said:
“As lawyers, we would never have thought to consider such an intervention had ICW-Malawi and COWLHA not shared their insights and been willing to support the client and her community. Their work has been so important to ensuring that meaningful justice was done to combat the actual root cause of the prosecution — stigma and discrimination — and to reconcile EL with her community.”
Engaging with the community also influenced ICW-Malawi and COWLHA’s thinking about HIV criminalisation. COWLHA’s Edna Tembo noted that:
Supporting people who have been prosecuted, particularly women, gives them power, … However, it is very important to stress that psychological support is absolutely vital for those who have been prosecuted. That includes family support, and a supportive community environment enabling acceptance of an individual accused.”
Tembo was also quick to emphasise that there is more work to be done. That work includes awareness raising and ongoing support to the community, especially to identify and train volunteers, empowering them to provide services at community level and to link them to health facilities and district offices for continued support and mentorship.
EL described her dreams for the future:
“My wish now is to see my children progress in school so that they become productive citizens in this community and help it grow. That’s my dream. If they get educated, they will be able to stand on their own and support others. My husband is not employed and it is a challenge to get money for school fees for our children. We would love to get a loan or training to have greater knowledge of economic empowerment because we want to be self-reliant. We would then love to lease some land to grow rice to sell to pay back the loan.
“It’s also my wish to see the lives of all people in the community uplifted. We farm but on a small-scale. If we were to be supported with funds, I’d love to see the community establish big rice farms, working in groups, harvesting for consumption and for sale. In so doing, we would be able to uplift our lives for the better.”
Learn more about Wesley’s experiences in EL’s case here and here.
Learn more about the African Regional Judges Forum here.
The full High Court judgement is available here, with a summary included here.
Read more about the successful HIV and AIDS Management Act community advocacy here.
This article is based on information provided by ICW-Malawi and COWLHA following their visits to EL’s village, and an interview with Wesley Mwafulirwa published by UNDP. HJN provided financial and logistical support for the village visits thanks to a grant provided to the HIV Justice Global Consortium from the Robert Carr Fund for civil society networks.
Russia: Over the past five years, Russian courts have acquitted only one defendant under Article 122 of the Criminal Code
Going to prison for the virus: No acquittals for HIV infection in Russia in three years
Translated with www.DeepL.com/Translator, please scroll down for original article in Russian.
Human rights activists, the WHO and the UN all oppose this provision in the Russian Criminal Code.
No chance of acquittal
In one of the most controversial articles of the Russian Criminal Code, the chances of an acquittal are 0 per cent. Cases are heard behind closed doors and verdicts are almost never published. The practice has been opposed by respected global organisations, and even the Russian government has proposed amendments. But for now, the case stands still and the defendants are sent to penal colonies. Where they will not receive proper treatment. We are talking about Article 122 of the Criminal Code of the Russian Federation (HIV infection).
According to the Judicial Department, it is virtually impossible to obtain acquittal for crimes related to HIV transmission. Over the past five years, Russian courts have acquitted only one defendant under Article 122 of the Criminal Code. And from 2018 to 2020, the statistics are quite depressing – all the defendants in such cases have only heard guilty verdicts. Even in cases of treason and espionage, courts acquit more often, Supreme Court documents show (in 3 years, courts have released as many as 5 defendants accused of crimes against state security).
Word and deed
In the winter of 2011, Samara resident Evgeny Kovalev (hereafter the names are changed – ed.) ended up in a drug treatment clinic. The young man had been addicted to illegal substances shortly before, but decided to get rid of his addiction and got registered at the clinic. During the process, they started taking various tests for Yevgeniy, including HIV tests. One of them showed that Kovalev’s organism had antibodies to the infection (they are present at any stage of the disease including asymptomatic stage). He had no symptoms of HIV but was diagnosed with HIV.
At that time Kovalev was dating a girl and was periodically having intimate relations with her. As he will later prove in court, the doctors did not tell him about the positive diagnosis. He only found out about it when he and his girlfriend visited the social centre where they were tested. Although the results of the tests were negative, the couple broke up after the unpleasant news and maintained their friendship. A few months later, however, the girl felt ill and went to the health centre, where the doctor gave her a number of referrals. This is how she found out that she was also infected.
The victim went to the police and Kovalev was detained. He was charged with intentional transmission of HIV (part 2 of article 122 of the Criminal Code). During the hearing, Evgeniy put forward the version that his ex-girlfriend could have been infected by another person, as they always used protection during sex. But the court sided with the victim, who claimed that she had never slept with anyone else. No other evidence was cited in the verdict.
In August 2011, the Kuibyshev District Court of Samara sentenced Kovalev to a real sentence (not specified in the text of the sentence) in a penal colony. Despite having a wife and an underage child, as well as a serious illness, the young man was taken into custody right in the courtroom. He was also charged with moral damages.
In September 2017, a resident of Feodosia (Crimea) reported her mobile phone missing to the police. Her acquaintance Oleg Osipov was suspected. He was summoned to the police station. During the interrogation, there was a conflict between him and an operative named Chudak. After a verbal altercation Oleg suddenly grabbed a decanter from the policeman’s desk, smashed it on a safe and started cutting his hands with broken shards (before that Osipov had not been found guilty of any offence: he had no criminal record, was not registered at a drug treatment facility or a psychiatric clinic). The operative tried to take away the glass, but was struck in the thigh during the scuffle.
After a few minutes, Osipov was restrained and taken to his cell. The man cleaned the wound, the cleaner was scrubbing the blood off the floor. They never found evidence that it was Oleg who had stolen the ill-fated smartphone.
But he was charged with other crimes. For assaulting a police officer in the line of duty (part 2 of article 318 of the Criminal Code). And of knowingly putting another person at risk of HIV infection (part 1 of article 122 of the Criminal Code). It turned out that in December 2012, Osipov learned about his disease and the dispensary took a receipt from him saying that he was warned about the need to comply with sanitary and hygiene standards to avoid infecting other people. This fact was considered by the Investigative Committee to be sufficient for the prosecution.
At trial, Oleg pleaded guilty and repented of what he had done. But the court decided that his correction is possible only in isolation from society and sentenced the man to two years and two months in a penal colony.
Osipov’s appointed lawyer, Oksana Pasichenko, told Sobesednik that she does not know the fate of her former client, but he is “most likely already at large”.
Incidentally, sometimes law enforcers themselves are prosecuted for deliberate HIV infection. In 2015, a police officer was detained in Kaliningrad who had infected nine women.
Despite Osipov’s unfortunate experience, often those accused under Article 122 of the Criminal Code who plead guilty still avoid real sentences. This happened, for example, to Alexey Lozhkin, a resident of Udmurtia who infected his girlfriend with HIV back in 2008. He repented in court and received a one-year suspended sentence.
Fear of confession
The first case of HIV in the USSR was registered in 1987. Lawmakers almost immediately criminalised intentional transmission of HIV; article 115.2 was added to the Criminal Code of the USSR, which later became article 122 of the Russian Criminal Code.
Russian law still does not clearly describe the circumstances under which criminal liability for HIV-positive individuals arises.
The law puts HIV-positive people before other citizens, says Mariya Godlevskaya, peer counselor of the E.V.A. association (she herself found out about her infection in 1999).
– That`s why many HIV-positive people are afraid to tell their environment about their status”, Godlevskaya says. – Article 122 of the Criminal Code puts people in a corner, criminalising anyone who has HIV. The sole responsibility for his or her health shifts to the individual. And yet there are cases when HIV-positive people are simply blackmailed by their former partners. Although it is known that a person on antiretrovirals cannot infect another person, the judicial practice simply does not take this into account.
WHO and the UN have long called for the decriminalisation of HIV infection. And in a number of countries the situation, albeit slowly, is beginning to change. For example, this year, the state of Illinois (USA) decriminalised HIV transmission. A similar proposal back in 2017 was put forward by the Russian government, but it was never approved.
Article 122 of the Russian Criminal Code punishes both HIV infection itself and “knowingly putting another person at risk of infection”. It can be punishable by imprisonment for up to one year. If the defendant knew he or she had the disease, he or she could be sent to prison for five years. If the victim is a minor or two or more people, the perpetrator faces up to 8 years in prison.
In the statistics of the Supreme Court, cases under Art. 122 are combined with cases under Art. 121 (infection with a sexually transmitted disease), so it is impossible to draw an exact conclusion about what kind of punishment the courts are choosing. It is known that in 2020, the number of actual and suspended sentences were about the same – 28 people went to prison and 29 remained free. Ten received restriction of liberty (unable to travel abroad) and one received compulsory labour.
Human rights activists believe that such measures do not work, although they are used in many countries around the world. The list of such measures does not include those countries which are considered to be developed.
Society is still full of myths about HIV and its terminal stage, AIDS. One of the main ones is the supposedly high mortality rate of the disease.
In reality, HIV-positive people live as long as the average person. As long as they take antiretroviral medication. In this case the person is not contagious. However, the Russian code makes no distinction between those who take medication and those who refuse treatment.
В тюрьму за вирус: В России за три года нет ни одного оправдательного приговора по статье о заражении ВИЧ
Против этой нормы в УК РФ выступают и правозащитники, и ВОЗ, и ООН.
Без шанса на оправдание
0% – таковы шансы, что обвиняемого оправдают по одной из самых спорных статей Уголовного кодекса России. Дела по ней рассматриваются в закрытом режиме, тексты приговоров практически никогда не публикуются. Против этой практики выступают авторитетные всемирные организации, свои поправки предлагало даже российское правительство. Но пока дело стоит на месте, а подсудимых отправляют в колонии. Где они не смогут получить надлежащего лечения. Речь идет о ст. 122 УК РФ (заражение ВИЧ-инфекцией).
Согласно данным судебного департамента, за преступления, связанные с передачей ВИЧ-инфекции, практически невозможно добиться оправдательного приговора. За последние 5 лет российские суды освободили всего одного обвиняемого по ст. 122 УК РФ. А с 2018-го по 2020-ый статистика совсем удручающая – все фигуранты подобных дел слышали лишь обвинительные вердикты. Даже по делам о госизмене и шпионаже суды оправдывают чаще, следует из документов Верховного суда (за 3 года суды освободили целых 5 обвиняемых в преступлениях против безопасности государства).
Слова и дело
Зимой 2011-го житель Самары Евгений Ковалев (здесь и далее имена изменены – ред.) оказался в наркологическом диспансере. Молодой человек незадолго до этого пристрастился к запрещенным веществам, но решил избавиться от пагубной зависимости и встал на динамический учет. В процессе у Евгения стали брать различные анализы, в том числе и на ВИЧ. Один из них показал: в организме Ковалева есть антитела к инфекции (они присутствуют на любой стадии заболевания, в т.ч. и на бессимптомной). Никаких симптомов ВИЧ у пациента не было, но по результатам анализа ему поставили диагноз – ВИЧ (Z-21).
В то время Ковалев встречался с девушкой и периодически вступал с ней в интимные отношения. Как впоследствии будет доказывать молодой человек суду, врачи не рассказали ему о положительном диагнозе. Он узнал об этом только во время совместного с подругой визита в социальный центр, где они сдали анализы. И хотя результаты анализа девушки были отрицательными, после неприятного известия пара рассталась, сохранив дружеские отношения. Впрочем, через несколько месяцев девушке стало плохо, она пришла в поликлинику, где врач ей выписал ряд направлений. Так она узнала, что тоже заражена.
Потерпевшая обратилась в полицию и Ковалева задержали. Ему предъявили обвинение в умышленном заражении ВИЧ-инфекцией (ч.2 ст.122 УК). В ходе слушаний Евгений выдвинул версию, что его бывшая девушка могла быть заражена другим человеком, поскольку они всегда предохранялись во время секса. Но суд встал на сторону потерпевшей, которая утверждала, что больше ни с кем не спала. Других доказательств в приговоре не приводится.
В августе 2011-года Куйбышевский районный суд Самары приговорил Ковалева к реальному сроку (в тексте приговора он не указан) в колонии. Несмотря на наличие жены и несовершеннолетнего ребенка, а также тяжелого заболевания, молодого человека взяли под стражу прямо в зале суда. Кроме того, с него взыскали моральный ущерб.
Срок за графин
В сентябре 2017-го жительница Феодосии (Крым) сообщила в полицию о пропаже мобильного телефона. Подозрение пало на ее знакомого Олега Осипова. Его вызвали в отдел полиции. В ходе допроса между ним и опером по фамилии Чудак произошел конфликт. После словесной перебранки Олег внезапно схватил со стола полицейского графин, разбил его о сейф и осколками начал резать себе руки (до того Осипов не был замечен ни в каких правонарушениях: судимостей не имел, на учете в нарко- и психдиспансере не состоял). Чудак попытался отнять стекло, но во время потасовки получил удар в бедро.
Через несколько минут Осипова удалось скрутить и отвести в камеру. Чудак зализывал рану, уборщица отмывала кровь с пола. Доказательств того, что именно Олег украл тот злосчастный смартфон, так и на нашли.
Но его обвинили в других преступлениях. В нападении на полицейского при исполнении (ч.2 ст.318 УК). И в заведомом поставлении другого лица в опасность заражения ВИЧ-инфекцией (ч.1 ст.122 УК). Выяснилось, что в декабре 2012-го Осипов узнал о своем заболевании и в диспансере у него взяли расписку о том, что он предупрежден о необходимости соблюдения санитарно-гигиенических норм для избежания заражения других людей. Этого факта СК посчитал достаточным для обвинения.
На суде Олег признал свою вину и раскаялся в содеянном. Но суд решил, что его исправление возможно лишь в условиях изоляции от общества и приговорил мужчину к 2 годам 2 месяцам колонии общего режима.
Адвокат Осипова по назначению Оксана Пасиченко сказала «Собеседнику», что не знает о судьбе своего бывшего подзащитного, но он, “скорее всего, уже на свободе”.
Кстати, иногда за умышленное заражение ВИЧ судят и самих стражей порядка. В 2015-м в Калининграде задержали полицейского, который заразил девятерых женщин.
Несмотря на печальный опыт Осипова, зачастую обвиняемые по 122 ст. УК, которые идут на признание вины, все же избегают реальных сроков. Так случилось, например, с жителем Удмуртии Алексеем Ложкиным, который еще в 2008-м заразил ВИЧ свою девушку. Он раскаялся в суде и получил 1 год условно.
Первый случай заболевания ВИЧ в СССР был зарегистрирован в 1987-м. Законодатели практически сразу криминализировали его умышленную передачу – так в УК РСФСР появилась ст. 115.2, позже превратившаяся в 122 ст. УК РФ.
В российском законодательстве до сих пор нет четкого описания обстоятельств, при которых наступает уголовная ответственность для ВИЧ-положительных.
Законодательство ставит ВИЧ-положительного человека ниже остальных граждан, считает равный консультант ассоциации «Е.В.А» Мария Годлевская (сама она узнала о том, что заражена, в 1999-м).
– Поэтому многие ВИЧ-положительные боятся рассказать окружению о своем статусе, – уверяет Годлевская. – Ст. 122 УК загоняет человека в угол, криминализируя любого, у которого есть ВИЧ-инфекция. Вся ответственность за здоровье ложится исключительно на него. А ведь есть случаи, когда ВИЧ-положительных просто начинают шантажировать их бывшие партнеры. И хотя известно, что находящийся на антиретровирусных препаратах не способен заразить другого, судебная практика данный момент попросту не учитывает.
ВОЗ и ООН давно требуют декриминализации заражения ВИЧ-инфекцией. И в ряде стран ситуация, хотя медленно, но начинает меняться. Так, в этом году штат Иллинойс (США) отменил уголовную ответственность за передачу ВИЧ. Аналогичное предложение еще в 2017-м выдвигало и правительстве России, но оно так и не было одобрено.
Ст. 122 УК РФ карает как за само заражение ВИЧ-инфекцией, так и за «заведомое поставление другого лица в опасность заражения». Может наказываться лишением свободы на срок до одного года. Если обвиняемый знал о наличии у него заболевания, его могут отправить в колонию на 5 лет. Если потерпевшим является несовершеннолетний, либо два и более лица, виновнику грозит до 8 лет лишения свободы.
В статистике ВС дела по 122 ст. объединены с делами по ст. 121 (заражение венерическим заболеванием), поэтому нельзя сделать точный вывод о том, какие наказания избирают суды. Известно, что в 2020-м число реальных и условных сроков было примерно одинаковым – 28 человек отправились в колонию, 29 остались на свободе. 10 получили ограничение свободы (не смогут выезжать за границу), один – обязательные работы.
Правозащитники же считают, что такие меры не работают, хотя применяются во многих странах мира. В том числе и тех, кого принято считать развитыми.
В обществе до сих пор есть много мифов вокруг ВИЧ и его терминальной стадии – СПИД. Один из главных – в якобы высокой смертности от этого заболевания.
На деле ВИЧ-положительные люди живут столько же, сколько в среднем обычный человек. При условии приема антиретровирусных препаратов. В этом случае человек не является заразным. Однако российский УК не делает разницы между теми, кто принимает препараты, и теми, кто отказался от лечения.
Argentina: Organisations call for Congress to start discussing new HIV, STIs and Hepatits bill
They demand that the HIV and STI bill be dealt with
Translated via Deepl.com. For original article in Spanish, please scroll down.
The new proposal was presented on October 26, 2020. It is the third time it reaches Congress, and different organizations demand that it be debated.
The current HIV regulation (regulation 23.798) dates back to 1990. With the change of contexts and perspectives, it is understandable that it is now outdated and insufficient to guarantee rights.
To reverse this situation, the new bill on HIV, Hepatitis, Tuberculosis and STIs is waiting to be discussed in Congress. As already mentioned, the 24-page document was presented at the end of October and is the result of a network of 40 organizations.
With respect to the current regulation, it establishes a change of perspective: the 1990 regulation has a biomedical approach, while the current draft establishes a gender and human rights approach. It seeks to focus on the social determinants of health and the elimination of stigma.
“It is urgent the treatment because we have a law in force from 1990 that may not be a long time for other laws but for an issue such as HIV or other viral pathologies, taking into account the progress in recent years of science and social behavior in relation to these pathologies, it is necessary to update this purely biomedical character and move to a regulation that is a comprehensive response, with a Human Rights approach,” said Matías Muñoz, president of the Ciclo Positivo Association.
In relation to the previous point, the interviewee commented that although HIV is a virus that runs through people’s blood, it not only has consequences on physical health, but there is a social problem around HIV that is related to stigma and discrimination.
“Currently, a person with HIV has the possibility of accessing treatment free of charge, but there are other social barriers that prevent them from having a good quality of life, such as discrimination in access to employment, job discrimination, dismissal for having HIV, problems in the educational system or with the close environment,” said Muñoz.
Is this the first time that a proposal with these characteristics has been presented? No, the National Front for People’s Health had already worked together with organizations on this project, which entered Congress in 2018, but was shelved.
Following the previous paragraph, on December 1, 2019 it lost parliamentary status. But it was not the first time it happened, in 2016 the same thing happened, despite having favorable opinion of the Social Action and Public Health Committee of the Chamber of Deputies.
It is important to highlight the support that the proposal has from different political parties. We highlight that it bears the signature of 17 deputies of the Frente de Todos, UCR, Coalición Cívica, Pro, Frente de Izquierda y los Trabajadores and Partido Socialista.
Key points of the new bill
In its article 1, it declares of public and national interest -among other things- the medicines, vaccines, procedures and medical products for the prevention, diagnosis, treatment and cure of HIV, Viral Hepatitis, Tuberculosis and STIs.
In another of its points, it establishes the integral and intersectoral response, which guarantees, for example, education and sensitization of the population, access to truthful, sufficient and updated information, and the reduction of risks and damages of stigma, discrimination and criminalization towards people with HIV, Viral Hepatitis, Tuberculosis and STIs.
It also includes palliative care and rehabilitation of these pathologies, including associated, derived and concomitant pathologies, as well as the adverse effects derived from them and/or their treatments.
This project contemplates universal and free coverage. The agents of the public health service, social security and prepaid medicine entities are obliged to provide comprehensive assistance to people affected by HIV, Viral Hepatitis, Tuberculosis and STIs.
In a clear way, the Ciclo Positivo Association highlights, among other points, the following:
– Prohibition of HIV, Hepatitis, TB and STI tests to enter a job position, in pre-employment medical examinations.
– Non-contributory pensions for people with HIV and Hepatitis B or C who have unmet needs. Provision of treatment for those who acquired the virus through vertical transmission and for other key populations such as women, transgender people, transvestites and non-binary people, etc.
– Creation of a National Commission on HIV, Hepatitis, TB and STIs integrated by different ministries, scientific societies and civil society organizations working on the issue.
– Extension of the provision of formula milk up to 18 months (previously only up to 6 months) for babies born to positive mothers.
– Creation of the National Observatory of Stigma and Discrimination within the orbit of INADI, in order to prevent the use of HIV infection, Hepatitis B or C, TB or any STI to prevent the exercise of rights.
There are expectations around this third presentation, due to the wide support of the project and the diffusion generated in the social networks in the last weeks, in order to promote its treatment in the Congress.
On this point, the president of Ciclo Positivo, said that “with the stir that has been achieved in the social networks in the last few days, the deputy Pablo Yedlin, president of the Health and Social Action Commission, told us that he is pleased with the possibility of having an opinion in the next few weeks”.
Although such a step would be taken after the primary elections, the claim must be kept in force. “We understand that we have a project supported by all the blocks, and for that reason, we consider that we can achieve the approval this year”, Muñoz concluded.
Exigen que se trate el proyecto de Ley de VIH e ITS
La nueva propuesta fue presentada el 26 de octubre del 2020. Es la tercera vez que llega al Congreso, y diferentes organizaciones reclaman que sea debatida.
La reglamentación vigente (normativa 23.798) de VIH data del año 1990. Con el cambio de contextos y perspectivas, es entedible que ahora esté desactualizada y que sea insuficiente para garantizar derechos.
Para revertir esta situación, el nuevo proyecto de Ley de VIH, Hepatitis, Tuberculosis e ITS espera ser tratado el Congreso. Como ya mencionamos, el documento de 24 páginas se presentó a fines de octubre, y es resultado de una red de trabajo con 40 organizaciones.
Respecto a la normativa vigente, establece un cambio de perspectiva, la de 1990 tiene un enfoque biomédico, en cambio, el proyecto actual fija un enfoque de género y de derechos humanos. Busca poner foco en los determinantes sociales de la salud y la eliminación del estigma.
“Es urgente el tratamiento porque contamos con una ley vigente del año 1990 que puede que para otras leyes no sea mucho tiempo pero para una cuestión como el VIH u otras patologías virales, teniendo en cuenta el avance de estos últimos años de la ciencia y el comportamiento social en relación a estas patologías, es necesario actualizar este carácter puramente biomédico y pasar a una normativa que sea de respuesta integral, con un enfoque de Derechos Humanos”, dijo Matías Muñoz, presidente de la Asociación Ciclo Positivo.
En relación al punto anterior, el entrevistado comentó que si bien, el VIH es un virus que recorre la sangre de las personas, no solamente tiene consecuencias en la salud física, sino que existe una problemática social alrededor del VIH que está relacionada con el estigma y la discriminación.
“Actualmente, una persona con VIH tiene la posibilidad de acceder a su tratamiento de manera gratuita, sin embargo hay otras barreras sociales que impiden que tenga una buena calidad de vida, como puede ser la discriminación en el acceso al empleo, la discriminación laboral, despidos por tener VIH, problemas en el sistema educativa o con el entorno cercano”, comentó Muñoz.
¿Es la primera vez que se presenta una propuesta con estas características? No, el Frente Nacional por la Salud de las Personas ya había trabajado en conjunto con las organizaciones sobre este proyecto, que ingresó al Congreso en 2018, pero fue cajoneado.
Siguiendo el párrafo anterior, el 1 de diciembre de 2019 perdió estado parlamentario. Pero no fue la primera vez que pasó, en 2016 sucedió lo mismo, a pesar de tener dictamen favorable de la Comisión de Acción Social y Salud pública de la Cámara de Diputados.
Es importante destacar el apoyo que tiene la propuesta de diferentes partidos políticos. Resaltamos que lleva la firma de 17 diputados y diputadas del Frente de Todos, UCR, Coalición Cívica, Pro, Frente de Izquierda y los Trabajadores y Partido Socialista.
Puntos claves del nuevo proyecto
En su artículo 1º, declara de interés público y nacional- entre otras cosas- los medicamentos, vacunas, procedimientos y productos médicos para la prevención, diagnóstico, tratamiento y cura del VIH, las Hepatitis Virales, la Tuberculosis y las ITS.
En otro de sus puntos, se establece la respuesta integral e intersectorial, que garantiza, por ejemplo, la educación y sensibilización de la población, un acceso a la información veraz, suficiente y actualizada, y la reducción de riesgos y daños del estigma, la discriminación y la criminalización hacia las personas con VIH, Hepatitis Virales, Tuberculosis e ITS.
Además se comprenden los cuidados paliativos y la rehabilitación de estas patologías, incluyendo las asociadas, derivadas y concomitantes, así como los efectos adversos derivados de las mismas y/o de sus tratamientos.
Este proyecto contempla la cobertura universal y gratuita. Los agentes del servicio público de salud, las obras sociales y las entidades de medicina prepaga, están obligadas a brindar asistencia integral a las personas afectadas por el VIH, las Hepatitis Virales, la Tuberculosis y las ITS.
De manera clara, la Asociación Ciclo Positivo, destaca, entre otros puntos, a los siguientes:
– Prohibición del test de VIH, Hepatitis, TBC e ITS para ingresar a un puesto de trabajo, en los exámenes médicos preocupacionales.
– Pensiones no contributivas para aquellas personas con VIH y Hepatitis B o C que tengan necesidades insatisfechas. Provisión de tratamientos para quienes adquirieron el virus por transmisión vertical y para otras poblaciones clave como mujeres, personas trans, travestis y no binaries, etc.
– Creación de una Comisión Nacional de VIH, Hepatitis, TBC e ITS integrada por distintos ministerios, sociedades científicas y organizaciones de la sociedad civil que trabajen el tema.
– Extensión de la provisión de leche de fórmula hasta los 18 meses (antes llegaba sólo a los 6 meses) para bebés de madres positivas.
– Creación del Observatorio Nacional de Estigma y discriminación en la órbita del INADI, en la búsqueda de que no se pueda utilizar la infección por VIH, Hepatitits B o C, TBC o cualquier ITS para impedir el ejercicio de los derechos.
Hay expectativas en torno a esta tercera presentación, por el amplio apoyo que tiene el proyecto y por la difusión que se generó en las redes sociales en las últimas semanas, para impulsar su tratamiento en el Congrego.
Sobre este punto, el presidente de Ciclo Positivo, dijo que “con el revuelvo que se ha logrado en las redes sociales en los últimos días, el diputado Pablo Yedlin, presidente de la Comisión de Salud y Acción Social, nos dijo que ve con beneplácito la posibilidad de tener dictamen en las próximas semanas”.
Si bien, dicho paso se daría después de las elecciones primarias, hay que mantener el reclamo vigente. “Entendemos que tenemos un proyecto apoyado por todos los bloques, y por eso, consideramos que podemos lograr la media sanción este año”, concluyó Muñoz.
Argentina: New HIV, STI and Hepatitis law under evaluation by Public Health Commission
There will be a new law on sexual diseases, HIV and viral hepatitis
Translation via Deepl.com. For original article in Spanish, please scroll down.
A new law is being evaluated to update the existing legislation to the scientific advances registered for sexually transmitted diseases, HIV and viral hepatitis.
For this purpose, the Senate Public Health Commission met with professionals from the HIV and STI Program of the Ministry of Public Health. A bill on Integral Assistance and Research on Acquired Immunodeficiency Syndrome, Sexually Transmitted Infections and Viral Hepatitis was analyzed.
In this regard, the legislative initiative seeks to update the regulatory framework on the matter, taking into account that both the current provincial Law No. 6660 and the national Law No. 23.798 date back to 1992 and 1990 respectively, and that the treatments and scientific advances in the field of AIDS and other Sexually Transmitted Infections have been greatly updated.
The bill declares of provincial interest the prevention, diagnosis, treatment, integral assistance, rehabilitation and research on Acquired Immune Deficiency Syndrome (HIV/AIDS), Sexually Transmitted Infections (STI) and Viral Hepatitis, including their derived pathologies, as well as the measures to avoid their propagation.
It also declares the prevention and early detection of HIV/AIDS, STIs and Viral Hepatitis in pregnant women to be of provincial interest and establishes the prevention of perinatal or vertical transmission as a priority.
The initiative promotes the quality of life, the inclusion, permanence and articulation of networks of people living with or affected by HIV/AIDS, STIs and Viral Hepatitis as a mechanism to eliminate discriminatory and exclusionary practices and provides for the repeal of Law 6.660.
The meeting recognized an increase in the rate of infection in the trans and homosexual population, but also in other heterosexual groups of different age groups and referred to the need to increase testing -which is done without the need for a doctor’s order-, to disseminate the use of condoms and to advance in actions against discrimination.
Dr. Laura Caporaletti and Dr. Marcela Monterichel, director and supervisor of the HIV, STI and Viral Hepatitis Program of the Ministry of Health, considered that it is necessary to provide the province with pioneering legislation that takes into account the medical advances that, for example, now consider HIV as a chronic disease.
They reported that the number of HIV cases in Salta is still striking despite a drop in 2020 due to the restrictions imposed by the pandemic, as well as the number of cases of congenital syphilis, emphasizing the control of pregnant women to avoid vertical transmission of infections during pregnancy, childbirth or breastfeeding. They suggested extending the delivery of milk until the baby is 18 months old and the management of a building for the use of patients from the interior of the country under treatment, under one of the NGOs.
Habrá nueva ley de enfermedades sexuales, VIH y hepatitis virales
Una nueva ley se evalúa para actualizar la legislación existente a los avances científicos registrados por enfermedades de transmisión sexual, VIH y hepatitis virales.
A esos efectos la Comisión de Salud Pública del Senado se reunió con profesionales del Programa de VIH e ITS del Ministerio de Salud Pública. Se analizó un proyecto de Ley de Asistencia Integral e Investigación sobre el Síndrome de Inmunodeficiencia Adquirida, las Infecciones de Transmisión Sexual y las Hepatitis Virales.
Al respecto la iniciativa legislativa busca actualizar el plexo normativo en la materia, teniendo en cuenta que tanto la actual Ley provincial N° 6660, como la Ley nacional N° 23.798, datan del año 1992 y 1990 respectivamente, habiéndose actualizado enormemente los tratamientos y avances científicos tanto en materia de SIDA como de otras infecciones de Transmisión Sexual.
El proyecto de Ley declara de interés provincial la prevención, diagnóstico, tratamiento, asistencia integral, rehabilitación e investigación sobre el Síndrome de Inmunodeficiencia Adquirida (VIH/SIDA), las Infecciones de Transmisión Sexual (ITS) y las Hepatitis Virales, incluyendo la de sus patologías derivadas, como así también, las medidas tendientes a evitar su propagación.
Asimismo, declara de interés provincial la prevención y detección temprana de VIH/SIDA, ITS y Hepatitis Virales en la mujer embarazada y establece el carácter prioritario de la prevención de la transmisión perinatal o vertical.
La iniciativa promueve la calidad de vida, la inclusión, permanencia y articulación de redes de personas que vivan o estén afectadas por VIH/SIDA, ITS y Hepatitis Virales como un mecanismo para eliminar las prácticas discriminatorias y de exclusión y dispone la derogación de la Ley 6.660.
Tasa de contagios
En el encuentro se reconoció un aumento en la tasa de contagio en la población trans y homosexual, pero también en otros grupos heterosexuales de distintas franjas etarias y se refirieron a la necesidad de incrementar testeos -que se hacen sin necesidad de pedido médico-, difundir el uso del preservativo y avanzar en acciones contra la discriminación.
Casos de SIDA
Las doctoras Laura Caporaletti y Marcela Monterichel, directora y supervisora del Programa de VIH, ITS y Hepatitis Virales del ministerio de Salud, consideraron que resulta necesario dotar a la provincia de una legislación pionera que contemple los avances médicos que por ejemplo hoy consideran al HIV como una enfermedad crónica.
Relataron que en Salta sigue siendo llamativo el número de casos de VIH pese a una baja en 2020 adjudicada a las restricciones que impuso la pandemia, del mismo modo que los casos de sífilis congénita, poniendo énfasis en el control de embarazadas para evitar la transmisión vertical de las infecciones tanto en la gestación, como en el parto o el período de lactancia. Sugirieron ampliar la entrega de leche hasta los 18 meses de vida del bebé y la gestión de un inmueble para uso de pacientes del interior en tratamiento, bajo alguna de las ONG.
Uganda to re-consider problematic HIV law provisions
Constitutional Court Judge Christopher Izama Madrama has instructed the Attorney General of the Government of Uganda to submit a formal reply to the HIV Constitutional Petition No. 4 of 2016, after it came up for mention in the Court on August 12th, 2021.
The petition, by a coalition of HIV, human rights, and LGBTQ organisations, seeks for the removal of three problematic clauses in the HIV Prevention and Control Act which was passed on May 13, 2014 by the Ugandan Parliament.
The Act allows for stringent punishments for the vague ‘crimes’ of attempted and intentional HIV transmission. The other problematic provisions in the Act are mandatory HIV testing for pregnant women and their partners and allowing medical providers to disclose a patient’s HIV status to others without consent.
This is the one of three pieces of good news from Uganda this week.
Earlier this year, HJN joined other civil society and human rights organisations in condemning the passage of Uganda’s Sexual Offences Bill which would have negatively impacted sex workers, the LGBTQ communities, and people living with HIV.
The Bill defined rape as ‘misrepresentation’, running the very real risk of being interpreted by the criminal legal system as HIV status non-disclosure. If the accused was found to be living with HIV, this would have resulted in the death penalty.
However, last week it was reported that President Museveni declined to sign the Bill into law, saying many provisions are redundant and already provided for in other laws.
In addition, last week Uganda’s Constitutional Court scrapped a controversial anti-pornography law whose provisions included a ban on women wearing miniskirts in public saying the law was “inconsistent with or in contravention of the constitution of the Republic of Uganda.”
Uganda: Constitutional Court begins hearing challenge to HIV criminalization law
The Constitutional Court of Uganda has begun hearing a landmark case on the right to health, in which LGBT and human rights defenders sued the state for criminalisation of HIV transmission and mandatory disclosure of one’s serostatus.
By Kikonyogo Kivumbi
The Uganda Network on Law Ethics and HIV/AIDS (UGANET), on behalf of a coalition of over 50 civil society organisations, is challenging the HIV/AIDS Prevention and Control Act 2014 which they allege is discriminatory and an impediment to the fight against AIDS. Among controversial provisions in the act are mandatory HIV testing for pregnant women and their partners and allowing medical providers to disclose a patient’s HIV status to others without consent. The law also criminalises HIV transmission, attempted transmission, and behavior that might result in transmission by those who know their HIV status.
Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights, the petitioners say. They also argue that criminalisation of HIV transmission is overly broad and difficult to enforce.
Ugandan homosexuals filled petitions and memoranda to the Ugandan Parliament when the the bill was being considered. The petitions can be accessed here.
Francis Onyango, the counsel for the petitioners told Rights Africa that he was optimistic that the Court wanted to fast-track the matter.
Uganda’s Attorney General has been given to October to file a defense in Constitutional Court.
The Uganda Harm Reduction Network, a network of activists for drug users also expressed concern that the law drives people who use drugs further from life-saving services they need.
“The act is also not concerned with the challenges that people who use drugs face, such as stigma and discrimination, police harassments and other human rights violations,” the Uganda Harm Reduction Network said in a statement issued after the law was passed.
If you work with civil society organisations based in Angola, Botswana, Comoros, Democratic Republic of Congo, Eswatini, Lesotho, Kenya, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Uganda, Zambia, and Zimbabwe, then this course is for you.
Illinois’ HIV-specific criminal law was first enacted in 1989, and then “modernized” in 2012. An in-depth investigational analysis examining the history of the law and how it has been applied, published in June by Injustice Watch and the Chicago Reader, found that the law had been used at least 80 times since 1989.
Even after the law was amended in 2012 to include “intent to transmit” as an element of the ‘crime’, it appears to have been (ab)used in 22 criminal cases over the past nine years.
That’s why the Illinois HIV Action Alliance was formed in 2019 with the lofty goal of completely repealing the law. This coalition of more than 25 state and national organisations – including our HIV JUSTICE WORLDWIDE partners, Positive Women’s Network-USA and the Sero Project – undertook a huge amount of awareness, education, and outreach.
Read this excellent article published by The Body in June to learn exactly what they did, and how.
Key to their surprisingly rapid success were two political champions, State Senator Robert Peters, and State Representative Carol Ammons.
“Illinois’ HIV criminalisation law was rooted in fear and racial biases,” Senator Peters noted in an Illinois HIV Action Alliance press release. “It was used to abuse people in our state, targeting people living with HIV and disproportionately affecting LGBTQ+ people, women, and Black and Brown communities.”
“Not a single study throughout the country shows HIV criminalisation has reduced HIV transmission in any jurisdiction where it exists,” added Representative Ammons. “It was far past time to get rid of this harmful law, and we thank Governor Pritzker for repealing it once and for all.”
Illinois Governor J.B. Pritzker’s Facebook page live-streamed the bill signing event, held at the LGBTQ Center on Halsted in Chicago’s ‘Boystown’ on Wednesday. The repeal of the HIV criminalisation law was part of a package of legislation that also included measures to make it easier for couples to receive marriage certificates with gender-neutral language, and to get new certificates if one or both legally change their names subsequent to the initial document being issued.
At the signing, Governor Pritzker called HIV criminalisation laws archaic: “They don’t decrease infection rates, but they do increase stigma,” he said. “It’s high time we treat HIV as we do other treatable transmissible diseases.”
The law’s repeal was effective immediately on signing, but the advocacy doesn’t stop there.
SPRINGFIELD — Gov. J.B. Pritzker signed a bill into law Tuesday that repeals criminal penalties for people who transmit HIV to others.
House Bill 1063, sponsored by Rep. Carol Ammons, an Urbana Democrat, and Sen. Robert Peters, a Chicago Democrat, deletes language adopted in Illinois and many other states during the early days of the HIV epidemic that made it a felony for an individual to engage in certain activities such as unprotected sex, donating blood or tissue or sharing nonsterile intravenous needles knowing that he or she was infected with HIV.
“Research has shown these laws … don’t decrease infection rates, but they do increase stigma,” Pritzker said. “It’s high time that we treat HIV as we do other treatable transmissible diseases, thereby treating our residents with dignity and furthering our mission to end this epidemic in Illinois.”
At a bill signing ceremony in Chicago, Pritzker said the legislation is one more step his administration is taking to ensure equal rights for members of the LGBTQ community.
Other steps have included providing financial aid to transgender students who otherwise would not qualify for federal aid, requiring curriculum in public schools that includes contributions of the LGBTQ community, and expanding Medicaid to cover gender-affirming surgery.
Pritzker was joined at the ceremony by Lt. Gov. Juliana Stratton, Democratic leaders in the General Assembly who helped pass the bill, the AIDS Foundation of Chicago and other LGBTQ rights activists.
Peters noted that the law in Illinois did not require that a person actually transmit HIV to be convicted of the crime, only that they engaged in activity that could have exposed another person to the virus.
“Too often, when faced with a challenge in society, we seek the hammer of criminalization,” Peters said. “When we faced the challenge of HIV, our country reacted out of fear, prejudice and hate, and with that brought down a violent and horrendous hammer. In turn, this caused more fear, pain and trauma for people living with HIV. It did nothing to bring safety or treatment or public health to our world.”
The bill decriminalizing HIV was one of four bills Pritzker signed Tuesday that were supported by advocates for LGBTQ rights.
Pritzker also signed two bills making it easier for transgender individuals to change their names and gender identity on marriage certificates.
Senate Bill 139 establishes a process for individuals to change the gender language on their marriage certificates while House Bill 2590 establishes a uniform standard that county clerks must adhere to for name changes on marriage certificates. Those bills were sponsored by Sen. Sara Feigenholtz and Rep. Ann Williams, both Chicago Democrats.
In addition, Pritzker signed a House Bill 3709, which prohibits insurance companies from imposing restrictions on coverage of fertility medications and treatments, enabling LGBTQ individuals and single parents to receive those treatments under the same conditions as heterosexual individuals. It also reduces the waiting time to receive those treatments for women over age 35.
That bill was sponsored by Rep. Margaret Croke, a Chicago Democrat and Sen. Laura Fine, a Glenview Democrat.
“For decades, our state insurance law discriminated against countless Illinoisans looking to welcome a child into their family, putting parenthood financially out of reach for same-sex couples, single women and others,” Croke said in a statement. “Setting things right and creating a more inclusive insurance law was long overdue.”
Bill decriminalizing HIV transmission passes Senate
The Illinois Senate on Tuesday passed a measure decriminalizing the transmission of HIV.
The measure has already passed the House and will need only a signature from Gov. J.B. Pritzker to become law.
House Bill 1063 would eliminate existing criminal statutes that penalize HIV transmission as a Class 2 felony. If Pritzker signs the bill, Illinois would join 11 other states that do not have laws criminalizing the transmission of HIV, including Arizona, New Mexico and Texas.
HB 1063 also would repeal existing laws allowing law enforcement or state’s attorneys to access a person’s HIV status. Under current criminal law, a person who transmits HIV to another person can be charged with “criminal transmission of HIV.”
Current law prohibits the forced disclosure of a person’s HIV status but provides exceptions for law enforcement officials or state’s attorneys to subpoena or petition for the HIV status of criminal defendants.
The Illinois HIV Action Alliance, which lobbied for the bill, praised its passage.
“The truth is HIV criminalization never improved safety or public health in Illinois — in instead, it has only caused suffering to people living with HIV, their families, and their communities. It has promoted stigma and discrimination, and it has discouraged testing, treatment, and disclosure for decades,” the group wrote in a written statement Tuesday.
Sen. Robert Peters, a Chicago Democrat, sponsored the bill in the Senate, and Rep. Carol Ammons, an Urbana Democrat, was lead sponsor in the House.
It passed out of the Senate by a vote of 37-17 on Tuesday, and passed from the House last month by a vote of 99-9.
Published May 5, 2021 in The Daily Herad
Senate committee advances bills on sex ed, decriminalizing HIV transmission
Legislation that would overhaul sex education in Illinois and a measure to decriminalize the transmission of HIV were among several bills that passed the Senate Executive Committee Wednesday.
The Executive Committee advanced an amendment to House Bill 1063, filed by Rep. Carol Ammons, an Urbana Democrat, and sponsored in the Senate by Sen. Robert Peters, a Chicago Democrat. It passed through the committee in an 11-4 vote to advance to the Senate floor.
Current Illinois law allows for individuals to be charged with “criminal transmission of HIV,” while also allowing for law enforcement to compel criminal defendants to test for HIV/AIDS in order to determine whether to charge them for the crime.
“Those living with HIV deserve to be able to receive treatment for their condition, and not risk arrest or incarceration,” Peters said in a release Wednesday. “It’s time we end the stigma surrounding sexually transmitted diseases and start treating them like the medical conditions that they are.”
The bill would eliminate the charge from Illinois statute, and would amend the AIDS Confidentiality Act — a statute that protects Illinoisans from having an HIV-positive status disclosed — to remove exemptions for law enforcement from the provision.
Lawmakers in the House voted 90-9 last month to pass the legislation. It now needs only majority support in the Senate to be sent to Gov. J.B. Pritzker for his signature.
Other legislation advanced by the committee Wednesday includes a provision that allows teachers unions to collectively refuse to go to work due to abnormally dangerous health and safety conditions, such as the COVID-19 pandemic, and another extending by three years the length lottery funds will go toward Alzheimer’s disease care.
Published April 15, 2021 in News Press Now
Illinois House votes to decriminalize HIV transmission
The Illinois House Judiciary Criminal Committee advanced two bills Tuesday with unanimous support, one to decriminalize transmission of HIV and another to expand protections for survivors of sexual assault.
An amendment to House Bill 1063, introduced by Democratic state Rep. Carol Ammons, of Urbana, changes several Illinois statutes related to persons living with HIV/AIDS and its transmission. On Wednesday, the House approved the bill 90-9, sending it to the Senate for consideration.
Under current Illinois law, a person who transmits HIV to another person can be charged with “criminal transmission of HIV.”
The AIDS Confidentiality Act, meant to protect Illinoisans from having an HIV-positive status disclosed or used against them, contains exceptions allowing law enforcement officials to subpoena or petition for the HIV status of criminal defendants in order to determine whether they should be charged for potential criminal transmission.
“We would not put a law on the books today that will criminalize COVID for people who refuse to test, and people who know they’re spreading COVID but refused to test and refuse to wear a mask, we would not then criminalize people for knowingly passing COVID,” Ammons told the committee.
Her legislation would repeal existing laws allowing law enforcement or state’s attorneys to access the HIV status of an individual and would remove criminal statutes for the transmission of HIV completely.
“This is why we’re trying to change this law is because this is the only (sexually transmitted infection) that we have on the books that literally criminalizes certain communities and is specifically targeted,” Ammons said.
Witnesses testifying in support of the bill told the committee that the criminal statute has been used in 22 cases since 2012, and fewer than 10 times since 2017.
“HIV and our knowledge about prevention and transmission has dramatically changed in the last 30 to 40 years,” Tom Hughes, executive director of the Illinois Public Health Association said in his testimony. “The (U.S. Centers for Disease Control and Prevention) recognizes that a person who is HIV positive, but who takes medication regularly stays virally suppressed, is undetectable on their viral load, and is effectively no risk for the transmission of HIV.”
According to Hughes, the criminalization of HIV status poses a significant obstacle to public health by incentivizing people to not get tested or disclose their status to their partner out of fear of criminalization.
Under questioning from committee member Rep. Deanne Mazzochi, R-Elmhurst, Hughes said that during his time working for the Illinois Department of Public Health, most cases involving the criminal transmission of HIV “revolved around communities of color” and had a disproportionately negative impact on those groups.
Mazzochi noted that after insulin, HIV medication was “one of our largest spends in the state of Illinois.” She indicated that she would support the measure as long as studies showed it would reduce HIV transmissions rather than increase rates once it became decriminalized.
Ultimately, Mazzochi and other Republicans on the committee joined the Democratic majority to send the legislation to the House floor in a 17-0 vote.
House Bill 1732, introduced by Rep. Maura Hirschauer, D-Batavia, expands protections for sexual assault survivors by amending the Civil No Contact Order Act. That law allows for “victims of non-consensual sexual conduct or penetration” to a receive a court order protecting that person, their family, household or someone providing them services from having contact with the perpetrator of the crime.
HB 1732 already passed the committee unanimously last month, but Hirschauer brought it back with an amendment. The version that passed previously allowed for family or household members of the victim to file the petition on their behalf.
Hirschauer’s amendment to her bill, which she presented to the committee Tuesday, requires a statement verifying that the victim consented to the petition for it to be filed this way. It also advanced to the House floor in a unanimous 17-0 vote.
Senate Bill 2277, which appeared before the Illinois Senate Criminal Law Committee on Tuesday, would also make civil no contact orders filed against those convicted of criminal sexual assault permanent instead of lasting 2 years. That measure was also passed committee unanimously.