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

AG opposes suit seeking to decriminalise deliberate HIV transmission

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Joseph Wangui

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

New Jersey Repeals Outdated HIV Crime Laws and Fights Stigma

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Published in Insider NJ on 11/01/2022

Legislation to modernise criminalisation law passed by New Jersey Senate

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

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

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

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

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

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

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

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

House Courts and Criminal Code Committee to hear sentencing bills

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

One of the bill regarding sentencing is House Bill 1032.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Arielle Dreher

Russia: Laws that restrict migrants with HIV and deny them medical care increases the burden on the health care system

Legal barriers to migrants with HIV are not working

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

Laws that restrict the stay of foreign nationals with HIV, as well as the denial of free medical care, may be one of the causes of a hidden epidemic, writes the EECA Regional Platform.

The Regional Expert Group on Migrant Health conducted research in two EECA countries, Armenia and Uzbekistan. The aim was to identify the legal barriers to HIV faced by citizens of the countries who have returned from migration.

Challenges for migrants with HIV

Social isolation and stigmatization, lack of permanent relationships, language barriers, unstable material resources, and limited access to health care services are the main challenges faced by labour migrants with HIV.

Inability to obtain a legal patent because of HIV infection leads to administrative offences:

  • Among migrants: illegal labour activities, commercial sex services
    Among the citizens of host countries: illegal sale of patents and HIV certificates etc.

The problem with getting ARV treatment leads to resistance and a general deterioration of the health of migrants living with HIV. This ultimately increases the burden on the health care system: patients’ opportunistic infections need to be intensified, ART regimens need to be changed, etc. Moreover, returning migrants contribute to the spread of HIV in their home countries.

Currently, the Russian Federation, which receives the largest number of migrants from the EECA region, is one of 19 countries that restrict the stay of foreign nationals with HIV. People living with HIV entering Russia specify visiting relatives, tourism/travel or medical treatment as the purpose, rather than employment.

At the end of 2021, a law came into force in the Russian Federation which requires foreign nationals to be tested for HIV, banned substances and dangerous infectious diseases every 3 months. But foreign business associations, as well as the media, have reacted quite sharply to the Russian law. The business community sent a letter to the Russian Government asking it to simplify the rules and not to subject highly qualified specialists to testing.

Законодательные барьеры для мигрантов с ВИЧ не работают

Законы, которые ограничивают пребывание в стране иностранных граждан с ВИЧ, а также отказ в бесплатной медицинской помощи, могут быть одной из причин скрытой эпидемии, пишет Региональная Платформа ВЕЦА.

Региональная экспертная группа по здоровью мигрантов провела исследование в двух странах ВЕЦА — Армении и Узбекистане. Целью было определить правовые барьеры в связи с ВИЧ, с которыми сталкиваются граждане стран, вернувшиеся из миграции.

Проблемы мигрантов с ВИЧ

Социальная изоляция и стигматизация, отсутствие постоянных отношений, языковой барьер, нестабильный материальный уровень, ограниченный доступ к медицинским услугам — основные проблемы, с которыми сталкиваются трудовые мигранты с ВИЧ.

Невозможность получения легального патента из-за наличия ВИЧ-инфекции ведет к административным правонарушениям:

  • среди мигрантов: незаконная трудовая деятельность, коммерческие секс-услуги;
    среди граждан принимающей страны: нелегальная продажа патентов и сертификатов об отсутствии ВИЧ-инфекции и т.д.

Проблема с получением АРВ-терапии приводит к резистентности и общему ухудшению здоровья мигрантов, живущих с ВИЧ. Это в конечном итоге повышает нагрузку на систему здравоохранения: необходимо усиливать лечение оппортунистических инфекций пациентов, менять схему АРВТ и т.д. Более того, вернувшиеся домой мигранты способствуют распространению ВИЧ в своих странах.

В настоящее время Российская Федерация, принимающая наибольшее количество мигрантов из региона ВЕЦА, является одной из 19 стран, которые ограничивают пребывание иностранных граждан с ВИЧ. Люди, живущие с ВИЧ, въезжая в Россию, указывают в качестве цели не трудоустройство, а посещение родственников, туризм/путешествие или лечение.

В конце 2021 года в РФ вступил в силу закон, согласно которому иностранные граждане обязаны каждые 3 месяца сдавать анализ на ВИЧ, запрещенные вещества и опасные инфекционные заболевания. Но зарубежные бизнес-ассоциации, а также СМИ достаточно остро отреагировали на российский закон. Бизнес-сообщество направило письмо в Правительство РФ с просьбой упростить правила и не подвергать проверке высококвалифицированных специалистов.

US: Women account for 62 percent of HIV-related arrests despite making up just 17 percent of Kentucky’s HIV-positive population

Two-thirds of HIV-related arrests in Kentucky are women, study finds

Women account for 62 percent of HIV-related arrests despite making up just 17 percent of the state’s HIV-positive population, according to a report by the Williams Institute.

Story at a glance

  • At least 32 people have been arrested since 2006 under Kentucky laws that criminalize people living with HIV.
  • All but one of those arrests were related to sex work, and, in 44 percent of arrests, the HIV-related offense was the only reason for contact with law enforcement.
  • People living with HIV in Kentucky may face felony charges which carry a prison sentence of up to five years for engaging in sex work or donating blood, tissues, or organs.

Women account for nearly two-thirds of HIV-related arrests in Kentucky, new research has found, even though less than a quarter of the state’s population of people living with HIV are women.

At least 32 people have been arrested since 2006 under Kentucky laws that criminalize people living with HIV, according to a report by the Williams Institute, a public policy think tank studying issues related to sexual orientation and gender identity.

Women account for 62 percent of those arrests despite making up just 17 percent of the state’s HIV positive population, according to the report, which uses Uniform Crime Reporting data collected by Kentucky State Police.

All but one of the arrests were related to sex work, and, in 44 percent of HIV-related arrests, the HIV-related offense was the sole reason for contact with law enforcement.In Kentucky, people living with HIV, which lives in the blood and other bodily fluids, who engage in sex work or donate blood, tissues, or organs may face Class D felony charges, which carry a prison sentence of one to five years.

More than 15 percent of HIV-related arrests were “almost certainly for conduct that did not involve sex acts,” according to the report, which noted that arrests for allegations of sex work do not need to include actual sex acts.

“A person can be arrested for sex work in the state without engaging in actual sex acts,” the study’s lead author, Nathan Cisneros, said in a statement. “That means Kentucky law can apply a felony charge — which carries a prison term of up to five years — to people living with HIV without requiring actual transmission or even the possibility of transmission.”

More than two-thirds of U.S. states and territories have enacted HIV criminal laws, according to the Centers for Disease Control and Prevention.

US: Arrests for HIV crimes fell disproportionately on Black men in Virginia

Black people account for 68% of HIV-related arrests in Virginia

Incarcerating people for HIV-related offenses has cost Virginia at least $3.2 million.

LOS ANGELES – Since 2001, at least 97 people have been arrested under Virginia laws that criminalize people living with HIV, hepatitis B, and syphilis, according to a new report by the Williams Institute at UCLA School of Law. HIV-related crimes are disproportionately enforced on the basis of race and sex, with Black men being the most likely to be arrested and convicted.

Using data obtained from the Criminal Justice Information Services Division of the Virginia Department of State, researchers found that charges were filed in over 70% of HIV-related arrests in Virginia and more than half of them resulted in a guilty outcome, resulting in sentences averaging 2.1 years.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based upon a person’s HIV-positive status. More than two-thirds of U.S. states and territories have enacted HIV criminal laws.

Until this year, Virginia’s HIV criminalization statute contained a felony provision—which prohibited people living with HIV, Hepatitis B, or syphilis from engaging in sexual activity of any kind with the intent to transmit the infection—and a misdemeanor charge for engaging in sexual activity without disclosing a positive status.

“In reality, people have been charged with felony crimes under Virginia’s HIV criminal laws simply for not disclosing their status,” said lead author Nathan Cisneros, HIV Criminalization Analyst at the Williams Institute. “For two decades, Virginia law has singled out people living with HIV for criminal prosecution without requiring actual transmission or even the possibility of transmission. Moreover, the law ignored whether the person living with HIV is in treatment and virally suppressed, and therefore cannot transmit HIV.”

KEY FINDINGS

  • At least 97 people in Virginia have been arrested for HIV-related criminal offenses since 2001.
  • Black people account for 20% of Virginia’s population, but 58% of the state’s people living with HIV, and 68% of all those arrested for HIV-related offenses.
  • Men comprise 75% of people living with HIV in Virginia, but 87% of people arrested for HIV-related offenses.
    • Black men are 40% of people living with HIV in Virginia, but 59% of all people arrested for HIV-related offenses.
  • Nearly one-fifth (18%) of those arrested for HIV-related crimes had no other criminal history.
  • Charges were filed in over 70% of HIV-related arrests in Virginia. And over half (54%) of all charges filed resulted in a guilty outcome.
  • Guilty outcomes resulted in an average sentence of 2.1 years.
  • Incarcerating people for HIV-related offenses has cost Virginia at least $3.2 million.

Virginia is one of four states, including Missouri, Illinois, and Nevada, to modernize its HIV criminal laws in 2021. Virginia’s new law only criminalises actual, intentional transmission, which remains a felony, and it removes HIV-specific language. Virginia also revised its donation law to align with the federal HIV Organ Policy Equity Act.

Read the report

Belarus: 34 prosecutions for HIV infection in 2021

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

34 criminal cases related to the human immunodeficiency virus were opened in 2021. This was reported by the Investigative Committee.

December 1 is the International AIDS Day. The day was established to raise awareness about the acquired immunodeficiency syndrome. This date annually urges the entire world community not only to remember this as yet incurable disease, but also to be tolerant to those who are already carriers of the disease.

“Deliberately transmitting the disease is punishable under criminal law,” the agency said.

СК: в 2021 году возбуждено 34 уголовных дела по факту заражения ВИЧ

1 декабря, Минск /Корр. БЕЛТА/. В 2021 году возбуждено 34 уголовных дела по факту заражения вирусом иммунодефицита человека. Об этом БЕЛТА сообщили в Следственном комитете.

1 декабря отмечается Международный день борьбы со СПИДом. День учрежден с целью повышения осведомленности о синдроме приобретенного иммунодефицита. Эта дата ежегодно призывает всю мировую общественность не просто помнить об этой пока неизлечимой болезни, но и быть терпимыми к тем, кто уже является переносчиком этого заболевания.

“Умышленное заражение этим заболеванием преследуется в уголовно-правовом порядке”, – отметили в ведомстве.-0-

 

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

Lee introduces bill to end bias based on HIV status

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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