Argentina: New bill presented to parliament by 60 organisations to improve HIV response, including reduction of HIV criminalisation

Por una nueva Ley de VIH/Sida, Hepatitis, Tuberculosis e ITS

Automatic translation via Deepl. For original article in Spanish, please scroll down.

August 16 marked the 30th anniversary of the enactment of the National HIV/AIDS Law passed in 1990. This week, a bill for a comprehensive response to HIV, viral hepatitis, tuberculosis and STIs was formally presented to the Chamber of Deputies. The bill was drafted by the National Front for the Health of People with HIV, which brings together more than 60 organisations, including the Argentine Network of Positive Youth and Adolescents (RAJAP), the Argentine Network of Women living with HIV and AIDS, the National Furia Trava Board of Directors, and the Argentine Homosexual Community (CHA), among others. Two projects have already been presented, one in 2016 and the other in 2018, but both lost parliamentary status.

By Christian García for SUDAKA TLGBI

The new modifications presented aim to provide a comprehensive response to all the inequalities that have been intensified in recent decades. Article 2 establishes that a comprehensive response is understood as “one that guarantees research, prevention, diagnosis, treatment, cure, interdisciplinary assistance (social, legal, psychological, medical, pharmacological and others), education and awareness of the population, access to truthful, sufficient and updated information, reduction of risk and harm, stigma, discrimination and criminalization of people with HIV, viral hepatitis, tuberculosis and STIs.

The project addresses the rights of people in prison or shelter settings, working rights and conditions, pensions and retirement, obstetric violence, positive diagnosis of HIV and Viral Hepatitis, blood, tissue and organ donation, among others. It proposes to prohibit discriminatory practices in the labour field including pre-employment testing which is still carried out, in violation of a resolution of the Ministry of Labour of 2015. There is also a strong emphasis on universal and free coverage by public health service agents, social works, prepaid medicine entities and all those who provide medical care services to members.

Another of the project’s central points is the creation of a National Commission on HIV, Viral Hepatitis, Tuberculosis and STIs which is made up of state agencies, scientific societies and civil society organizations working on HIV, Viral Hepatitis and Tuberculosis. Another article also establishes the creation of a National Observatory on HIV, Viral Hepatitis, Tuberculosis and STI Stigma and Discrimination within INADI’s orbit “in order to make visible, document, deter and eradicate violations of the human rights of affected persons”.

Gonzalo Valverde, RAJAP seropositive activist, welcomed the initiative considering that the law passed in 1990 was very advanced for the time in terms of access to rights, but that “due to the terminology it uses and the current realities it is very outdated, since it does not cover viral hepatitis, tuberculosis and other STIs. In addition, he said that a law is needed that not only considers the biomedical aspects “but also social, political, economic, labor aspects or access to housing, education, among other points.

President Alberto Fernandez had stated on the social network Twitter before taking office, that “The State will once again assume its responsibility in the response to HIV” anticipating the complaints and denunciations that organizations had been expressing about the lack of medicines during the previous government and the necessary updating of the law. “Ensuring treatment, expanding testing, expanding condom distribution, funding research and guaranteeing CSE,” he emphasized on December 1, 2019. If so, this project would add to the progress made in terms of rights such as the Comprehensive Sex Education Law, the Equal Marriage Law, the Gender Identity Law, the Micaela Law and the Transvestite-Trans Labour Quota approved by presidential decree.

The Bill, with the file in the House of Representatives 5040-D2020, has the signatures of representatives of the Frente de Todxs block (Ana Carolina Gaillard, Leonardo Grosso, Cecilia Moreau, Mara Brawer, Mónica Macha, Itai Hagman, Ayelén Sposito), the Unión Cívica Radical (Brenda Austin, Ana Carla Carrizo), the Coalición Cívica (Maximiliano Ferraro), the Frente de Izquierda y de los Trabajadores (Romina Del Plá), and the PRO (Silvia Gabriela Lospennato).

History of HIV/AIDS regulations

Law No 23789 – Adopted in 1990. It declares the fight against AIDS (Acquired Immunodeficiency Syndrome), including HIV detection and research, to be of national interest. Furthermore, it declares the mandatory testing of blood for the virus and its antibodies in blood intended for transfusions and for donors of organs for transplants.

Law n° 24455 – Sanctioned in 1995. It establishes that the social works and associations of social works of the national system must incorporate medical coverage, psychological and pharmacological assistance to AIDS patients and drug addicts.

Law n° 2554. Enacted in 2002. It establishes the obligation to make the human immunodeficiency virus diagnostic test available to pregnant patients, and to carry it out with informed consent. It obliges health establishments to cover the test, as well as to have an interdisciplinary team that advises and supports the patient and her family from the moment the test is positive until the end of the postpartum period.

Since 2007 the State, through the Directorate of AIDS and Sexually Transmitted Diseases (DSyETS), has been distributing free penis condoms in hospitals and health centres, community canteens, neighbourhood clubs, trade unions, dance halls, meeting places, etc.

El 16 de agosto pasado se cumplieron 30 años de la promulgación de la Ley Nacional de VIH/SIDA aprobada en el año 1990. Esta semana se presentó formalmente ante la Cámara de Diputados de la Nación un proyecto de ley de respuesta integral al VIH, las Hepatitis Virales, la Tuberculosis y las ITS. El proyecto fue redactado por el Frente Nacional por la Salud de Personas con VIH, el cual nuclea más de 60 organizaciones, como la Red Argentina de Jóvenes y Adolescente Positivos (RAJAP), Red Argentina de Mujeres viviendo con VIH y sida, Consejo Directivo Nacional Furia Trava, Comunidad Homosexual Argentina (CHA), entre otras. Con anterioridad ya fueron presentados dos proyectos, uno en el año 2016 y otro en el 2018, pero ambos perdieron estado parlamentario.

Por Christian García para SUDAKA TLGBI

Las nuevas modificaciones presentadas tienen como objetivo brindar una respuesta integral a todas las desigualdades que se fueron intensificando en las últimas décadas. En su artículo 2 establece que se entiende por respuesta integral “a aquella que garantiza la investigación, prevención, diagnóstico, tratamiento, cura, asistencia interdisciplinaria (social, legal, psicológica, médica, farmacológica y otras), educación y sensibilización de la población, acceso a la información veraz, suficiente y actualizada, reducción de riesgos y daños, del estigma, la discriminación y la criminalización hacia las personas con VIH, Hepatitis Virales, Tuberculosis e ITS”.

El proyecto contempla los derechos de las personas en contexto de encierro o instituciones de albergue, derechos y condiciones laborales, jubilaciones y pensiones, violencia obstétrica, diagnóstico positivo de VIH y Hepatitis Virales, donación de sangre, tejidos y órganos, entre otras. Propone que se prohíban las prácticas discriminatorias en el ámbito laboral incluyendo los exámenes pre-ocupacionales que todavía se siguen realizando, incumpliendo una resolución del Ministerio de Trabajo del 2015. También se hace fuerte énfasis en la cobertura universal y gratuita por parte de los agentes del servicio público de salud, las obras sociales, las entidades de medicina prepaga y todos aquellos que brinden servicios médicos asistenciales a las personas afiliadas.

Otro de los puntos centrales del proyecto es la creación de una Comisión Nacional de VIH, Hepatitis Virales, Tuberculosis e ITS que esté conformada por agencias estatales, sociedades científicas y con las organizaciones de la sociedad civil con trabajo en VIH, Hepatitis Virales y Tuberculosis. También, otro artículo establece la creación de un Observatorio Nacional sobre estigma y discriminación por VIH, Hepatitis Virales, Tuberculosis e ITS en la órbita del INADI “con el fin de visibilizar, documentar, disuadir y erradicar las vulneraciones a los derechos humanos de las personas afectadas”.

Gonzalo Valverde, militante seropositivx de RAJAP, celebró la iniciativa considerando que la ley aprobada en 1990 fue muy avanzada para la época en términos de acceso a derechos, pero que “por las terminologías que usa y las realidades actuales queda muy desactualizada, ya que no contempla a las Hepatitis Virales, la Tuberculosis y las otras ITS”. Además, sostuvo que es necesaria una ley que no contemple únicamente los aspectos biomédicos “sino también aspectos sociales, políticos, económicos, laborales o el acceso a la vivienda, a la educación, entre otros puntos”.

El Presidente Alberto Fernández había manifestado en la red social Twitter antes de asumir su cargo, que “El Estado va a volver a asumir su responsabilidad en la respuesta al VIH” anticipando los reclamos y las denuncias que las organizaciones venían expresando sobre el faltante de medicamentos durante el Gobierno anterior y la necesaria actualización de la Ley. “Asegurar el tratamiento, expandir el testeo, ampliar la distribución de preservativos, financiar la investigación y garantizar la ESI”, enfatizó el 1 de Diciembre del 2019. De ser así, este proyecto se sumaría al avance de derechos conquistados como la Ley de Educación Sexual Integral, la Ley de Matrimonio Igualitario, la Ley de Identidad de Género, la Ley Micaela y el Cupo Laboral Travesti-Trans aprobado por decreto Presidencial.

El Proyecto de Ley, con el expediente en Diputados 5040-D2020, cuenta con las firmas de representantes del bloque Frente de Todxs (Ana Carolina Gaillard, Leonardo Grosso, Cecilia Moreau, Mara Brawer, Mónica Macha, Itai Hagman, Ayelén Sposito), la Unión Cívica Radical (Brenda Austin, Ana Carla Carrizo), la Coalición Cívica (Maximiliano Ferraro), el Frente de Izquierda y de los Trabajadores (Romina Del Plá), y el PRO (Silvia Gabriela Lospennato).

Historización de la normativa de VIH/SIDA

Ley n° 23789 – Se aprobó en el año 1990. Declara de interés nacional la lucha contra el SIDA (Síndrome de Inmunodeficiencia Adquirida), incluyendo la detección e investigación del VIH. Además, declara la obligatoriedad de realizar pruebas de detección del virus y de sus anticuerpos en la sangre destinada a transfusiones y a los donantes de órganos para trasplante.

Ley n° 24455 – Sancionada en el año 1995. En ella se establece que las obras sociales y asociaciones de obras sociales del sistema nacional deben incorporar cobertura médica, asistencia psicológica y farmacológica de pacientes de SIDA y drogodependientes.

Ley n° 2554. Promulgada en el año 2002. Se establece la obligatoriedad de hacer disponible a la paciente embarazada el test diagnóstico del virus de inmunodeficiencia humana, y realizarlo con consentimiento informado. Obliga a los establecimientos sanitarios a dar cobertura al test, como así, también contar con un equipo interdisciplinario que asesore y contenga a la paciente y su familia desde el momento en el que el resultado del test de positivo hasta finalizar el puerperio.

Desde el año 2007 el Estado, a través de la Dirección de SIDA y enfermedades de transmisión sexual (DSyETS), distribuye preservativos de penes gratuitos en los hospitales y centros de salud, comedores comunitarios, clubes de barrio, sindicatos, boliches bailables, lugares de encuentro, etc.

Canada: Alberta Court of Appeal upholds mandatory registration of sex offenders even if the assault conviction was based on HIV non-disclosure

In split decision, Alberta Court of Appeal endorses mandatory sex offender registration

An HIV-AIDS legal advocate says Alberta’s top court has turned a deaf ear to the concerns of Canada’s HIV-AIDs community by upholding the automatic, lifetime listing of convicted sex offenders in a national registry, even if the assault conviction is based on a failure to disclose HIV or AIDS.

In a Sept. 3 split decision in R. v. Ndhlovu 2020 ABCA 307, the majority for the Alberta Court of Appeal overturned a 2016 ruling by now retired Alberta Court of Queen’s Bench Justice Andrea B. Moen, who found that Eugen Ndhlovu should not be subjected to mandatory registration and reporting for life under the Sex Offenders Information Registration Act (SOIRA), even though he had been convicted of two counts of sexual assault.

The Toronto-based Canadian HIV/AIDS Legal Network (CHALN) and the HIV and AIDS Legal Clinic Ontario (HALCO) applied for and were granted joint intervener status by the Alberta Court of Appeal. They argued that when sexual activity is consensual, an accused with HIV or AIDS with a suppressed viral load and no realistic possibility of transmitting HIV should not be prosecuted and that automatic listing of such offenders in the national sex offender registry is overbroad and grossly disproportionate under the Charter. CHALN and HALCO were the only interveners in the case.

However, the Court of Appeal declined to assess what it described as a “hypothetical” scenario involving a sexual offence stemming from non-disclosure of HIV.

“As this Court has previously found, assessing hypotheticals afresh on appeal is not ideal,” Justice Frederica Schutz wrote for the majority, including Justice Frans Slatter. “More specifically, in this matter the issues raised by the Intervenors including inter alia, assessing the risk of HIV transmission posed by an offender’s viral load, are outside the bounds of the facts and evidence presented in this case, particularly if the offender was to stop taking his medication.”

Richard Elliott, executive director of the Canadian HIV-AIDS Legal Network said more than 200 people a year in Canada plead guilty to, or are convicted of, sex-related charges due to HIV non-disclosure. Most typically, he said, the charge is aggravated sexual assault.

“There’s an ongoing problem here with what we characterize and many increasingly recognize as the overly broad use of the criminal law in this domain, and it has these very serious, harsh consequences,” he told The Lawyer’s Daily. “In addition to the ordinary sentencing provisions about years of imprisonment — including potential maximum life imprisonment for an aggravated sexual assault charge — there’s also this added punitive feature of mandatory lifetime designation as a sex offender.”

The Court of Appeal’s choice to ignore the issue was, at the very least, a surprise, said Elliott.

“The court itself granted us intervener status, presumably on the basis that they felt that the argument we proposed to advance had some relevance to the issue,” he said. “So having done that, it’s a bit strange to then not address the issue that you authorized the interveners to bring forward. So I’m not really sure what the point was.”

SOIRA was amended by the Conservative government of former prime minister Stephen Harper in 2011 to remove judicial discretion and require mandatory lifetime registration for anyone convicted of more than one sexual offence. The registry is only accessible by law enforcement officials. Those registered under SOIRA are also required to report to law enforcement authorities once a year for life. Both Justice Schutz and Justice Slatter are Harper appointees.

At his 2015 trial, Ndhlovu, then 19, was found guilty of sexually assaulting two women at a 2011 house party. Justice Moen later sentenced him to six months in jail followed by three years of probation. But she found the provisions in the Criminal Code related to SOIRA violated s. 7 of the Charter because she concluded they are overbroad and grossly disproportionate.

In a 2018 challenge by the Crown, Justice Moen found that those provisions could not be saved by the Charter’s s. 1 reasonable limits clause. The Alberta Court of Appeal majority disagreed.

“I conclude the sentencing judge erred in finding that the respondent had established a deprivation of his right under s. 7 to life, liberty or security of the person that was not in accordance with the principles of fundamental justice,” wrote Justice Schutz. “In the result,” she added, “ss 490.012 and 490.0 13(2.1) of the Criminal Code are constitutionally valid.

“The registration and reporting requirements under SOIRA are not so onerous as to be divorced from the purpose of the legislation,” the majority found.

In a dissenting opinion, Justice Ritu Khullar, appointed by Prime Minister Justin Trudeau in 2018, found that sections 490.012 and 490.013(2.1) of the Criminal Code violate an individual’s s. 7 liberty rights and are overbroad because they apply to sex offenders who are a very low risk to reoffend, like Ndhlovu.

“The Crown failed to show that s 490.013(2.1), which requires lifetime registration for offenders who have committed more than one designated offence, minimally impairs the liberty interest of very low risk offenders,” wrote Justice Khullar. “It also failed to establish that s 490.0 12 requiring mandatory registration, or s 490.013(2.1), contributed to any extent to preventing or investigating sexual crimes, so both provisions are disproportionate under the final stage of the Oakes test.”

The Oakes test is an analysis of the Charter’s limitations clause created by the Supreme Court of Canada in its decision in R. v. Oakes [1986] 1 S.C.R. 103.

The split Alberta Court of Appeal decision now opens the way potentially for the issue of mandatory, lifetime registration under SOIRA to go before the Supreme Court of Canada. Lawyer Elvis Iginla of Edmonton-based Iginla & Co., who served as counsel for Ndhlovu, did not respond to a request for an interview.

Professor Lisa Silver with the University of Calgary Faculty of Law called the majority decision a “very old school way of looking at constitutional law.”

“The majority does talk about in their reasons the importance of deference to Parliament,” she told The Lawyer’s Daily. “And in paragraph 88, the majority goes on to say policymakers are entitled to make choices within a reasonable range of options. The courts are not Parliament’s micro-managers.

“Of course,” she added, “the flip side of it is that courts have a duty to be that judicial scrutiny, that oversight, when it comes to legislation to ensure that it is consistent with the Charter.”

Silver said there is an increased possibility that the Supreme Court of Canada would grant leave to appeal the Appeal Court decision because Justice Khullar’s strong dissent brings out a different perspective on s. 7 of the Charter by highlighting privacy interests.

“That to me is an issue of national importance,” she said, “and it’s also an issue that hasn’t been fully developed in the Supreme Court of Canada.”

The Supreme Court of Canada might also intervene because the majority may have made an error by accusing the sentencing judge of reformulating the objective of the SOIRA amendments, said Silver.

However, she noted, a decision is already pending from the Supreme Court in Attorney General of Ontario v. G., which relates to mandatory listing on the Ontario sex offenders’ registry (Christopher’s Law) for a person who was deemed not criminally responsible.

The Ontario Court of Appeal unanimously allowed G’s appeal and concluded that the provincial and federal sex offender registries infringed G’s s. 15 Charter rights (and those of individuals in his situation), and that such infringements cannot be saved under s. 1. The Court of Appeal declared Christopher’s Law and SOIRA to be of no force or effect in their application to individuals in G’s situation. The Attorney General of Ontario appealed to the Supreme Court of Canada and arguments have been heard.

“Even though it’s not the same kind of offender,” said Silver, “it doesn’t make a difference when it comes to the Charter argument. I wonder, though, if the Supreme Court of Canada, when they come to their decision in G., is going to make the kind of broad comments about these kinds of legislation and how the Charter applies to them.”

Elliott agreed that there is a good chance the Supreme Court will want to review the Alberta Court of Appeal decision upholding mandatory registration of sex offenders.

“This is a live issue, and it seems to me that it may well be the sort of issue that the Supreme Court is ultimately going to have to revisit,” he said. “If they chose to revisit it, whether it’s in granting leave to appeal from this decision or in a subsequent case that may come along, certainly our concern will still remain as long as HIV non-disclosure is being captured under the law of sexual assault and these consequences therefore attach to people.”

Canada: Statement about Court of Appeal decision that a condom alone is not enough to preclude duty to disclose HIV status

Statement: Court decision means lawmakers must act to end unjust, unscientific prosecutions of People Living with HIV

The following statement is issued jointly by the Canadian HIV/AIDS Legal Network (“Legal Network”), the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA), and the HIV & AIDS Legal Clinic Ontario (HALCO).

August 7, 2020 — This week, the Ontario Court of Appeal released its decision in R. v N.G., a case in which a young man living with HIV appealed his conviction on aggravated sexual assault charges for not disclosing his HIV-positive status before sexual intercourse — despite using a condom in every instance. There was no allegation that HIV was transmitted and no evidence of any incorrect condom use.

We appeared before the Court as interveners when the appeal was heard in February. We argued that correct condom use is, and should be, sufficient to prevent criminal prosecution, based on sound science, a proper reading of the law, and various public policy reasons. Regrettably, the Court has disagreed, upholding N.G.’s conviction.

The Court’s decision underscores the importance of the federal government bringing forward legislative changes to the Criminal Code to prevent the continued misuse of criminal charges that are contrary to science, lead to unjust convictions and ultimately undermine public health.

The decisions of the trial judge and the Court of Appeal were based on the 2012 Supreme Court of Canada decision in R. v. Mabior. Both courts said they were bound to follow that decision and saw insufficient reason to depart from it. That case has often been interpreted as saying that the law always requires both a low viral load and condom use in order to negate a “realistic possibility of HIV transmission,” which the Supreme Court declared is the legal threshold triggering a duty to disclose. However, the Supreme Court was not so categorical in its decision, and recognized that the law could adapt in the future.

It is wrong to insist that both a low viral load (i.e., the presence of HIV in significantly suppressed in the body) and condom use are required in order to negate a realistic possibility of HIV transmission. Since the Supreme Court’s decision eight years ago, there have been cases in which, based on the scientific evidence before them, courts have concluded that a low viral load on its own negates a realistic possibility of transmission. This recognizes the global consensus that a person with a suppressed viral load cannot sexually transmit HIV — in other words, “Undetectable = Untransmittable.”

It’s time for the law to catch up with the science and recognize that condoms can also negate a realistic possibility of transmission.

The consensus of scientific experts across Canada and around the world, as noted in the original 2014 consensus statement of Canadian scientists and the more recent 2018 international Expert Consensus Statement, is that “correct use of a condom during sex means HIV transmission is not possible.” One court in Canada has already recognized this, acquitting on the basis of condom use alone (in a 2018 Nova Scotia case), meaning there are inconsistent court decisions in different parts of the country.

The Attorney General of Canada and Department of Justice have previously recognized in 2017 that the “overcriminalization of HIV” is an ongoing problem, contributing to HIV stigma and undermining testing, treatment and public health. Based on a scientific and legal review, in 2018 the Attorney General issued a directive to federal prosecutors that there should generally be no prosecution for alleged HIV non-disclosure in the case of condom use, because there is likely no realistic possibility of transmission. (This directive applies only in the territories, not the provinces.)

Continuing to criminalize people living with HIV — even when condoms are used — is also discriminatory and an overly broad application of the criminal law that is harmful and bad for public health. The injustice is compounded by the severe consequences of a conviction for aggravated sexual assault, including years in prison, mandatory lifetime designation as a sex offender and, in some cases, deportation. These are grossly disproportionate penalties for a sexual encounter that is otherwise consensual, and in which a person has taken a highly effective precaution that means either zero risk or at most a negligible risk of HIV transmission. The burden of overly broad use of the criminal law also falls disproportionately on Black, Indigenous and gay communities, as recognized by Justice Canada in its 2017 report.

In June of last year, the House of Commons Standing Committee on Justice and Human Rights recognized there is a need for reforms to the Criminal Code that would end the use of sexual assault charges to deal with HIV non-disclosure and limit any criminalization to cases of actual transmission. The ruling from the Ontario Court of Appeal means that it is all the more urgent that the government act on these calls for change and put an end, through legislative amendments, to the unscientific and unjust use of the criminal law.

For more information:

Watch a video explaining the criminalization of people living with HIV in Canada.
Read the brief: The Criminalization of HIV in Canada: Current Status and the Need for Change.

HIV criminalisation presentations and posters at AIDS2020

There were a number of presentations, mostly e-posters, at AIDS2020:Virtual that focused on HIV criminalisation. We have compiled them all below given that access was (and remains) limited.

The only oral presentations specifically covering HIV criminalisation were delivered by HIV Justice Network’s Executive Director, Edwin J Bernard, presenting in three pre-recorded video sessions.

Below you will find the presentation ‘Bringing Science to Justice’ for the IAPAC 90-90-90 Targets Update, produced for the session, ‘Creating Enabling Environments for Optimal HIV Responses’. This eleven minute presentation, that also includes a number of video clips, covers the following:

The detrimental implications of HIV criminalisation on human rights and public health
The impact of the ‘Expert consensus statement on the science of HIV in the context of criminal law’
Lessons learned from HIV criminalisation on punitive responses to COVID-19
Conclusion: It is more critical than ever to commit to, and respect, human rights principles; ground public health measures in scientific evidence; and establish partnerships, trust, and co-operation between scientists, law- and policymakers and the most impacted communities.

Update (29 July): During a California HIV/AIDS Policy Research Centers virtual satellite session, Dr. Ayako Miyashita Ochoa of UCLA Luskin School of Public Affairs, Department of Social Welfare, interviewed activist Marco Castro-Bojorquez about the modernisation of California’s HIV-specific criminal law as an example of of evidence-based policymaking.

There were a number of poster presentations that also focused on HIV criminalisation in the following countries/jurisdictions:

PEF 1737 United States
PEF 1738 England & Wales
PEF 1739 Australia
PEF 1740 Niger
PEF 1742 Malawi
PEF 1781 Florida, USA
PEF 1794 Uganda
PEF 1841 Taiwan

The abstracts are below. Click on the title to download the pdf of the poster.

Amy Baugher, Centers for Disease Control and Prevention (PEF 1737) Men who have sex with men living in states with HIV-specific criminalization laws report high community stigma – NHBS, 2017.

BACKGROUND: In 2017, 36 states had laws penalizing persons with HIV (PWH) for sexual or no-risk behavior (e.g., spitting). Research shows these laws do not impact sexual risk behaviors or diagnosis rates. Citizens likely are unaware of these laws; we do not expect direct behavioral effects. However, laws reflect states’ values and may mirror community attitudes towards PWH. Understanding how structural factors relate to stigma is important for stopping HIV stigma.
METHODS: National HIV Behavioral Surveillance used venue-based sampling methods to interview men who have sex with men (MSM) in 23 U.S. cities from June-December 2017. Using Center for HIV Law and Policy reports, we categorized states’ HIV-specific laws as of June 2017. We compared MSM”s perceptions of community attitudes towards PWH between MSM living in states with versus without HIV laws. We obtained adjusted prevalence ratios using log-linked Poisson models assessing the relationship between law and four community stigma attitudes (discrimination, rights, friendship, punishment), which we then compared between black MSM in states with versus without laws.
RESULTS: Two-thirds of MSM lived in states with HIV-specific laws. MSM in states with laws were more likely to report black race (38% versus 15%), poverty (23% versus 12%), or incarceration (25% versus 19%). Multivariable models found laws were related to perceived community beliefs that PWH “got what they deserved” (aPR=1.13, 95% CI: 1.03-1.24), but not other attitudes. Compared to black MSM in states without laws, black MSM in states with laws were more likely to believe persons in their community would discriminate against PWH (64% versus 50%), not support PWH’s rights (25% versus 16%), not be friends with PWH (24% versus 13%), and believe HIV was deserved punishment (32% versus 22%).
CONCLUSIONS: MSM in states with HIV laws were disproportionately from marginalized groups. Laws were related to perceived community attitudes that HIV was deserved punishment; understanding specific stigma attitudes can inform interventions. Although black MSM reported high community stigma overall, stigma was significantly higher for black MSM in states with HIV laws. States may consider repealing or reforming HIV laws and focusing on effective prevention efforts to End the HIV Epidemic.

Deborah Gold, National AIDS Trust (PEF 1738) Improving the application of the law: Updating guidelines for prosecutors in England and Wales regarding sexual transmission of infection.

BACKGROUND: In England and Wales it is possible to be prosecuted for the sexual transmission of infection under the Offences Against the Person Act 1861 or the Criminal Attempts Act 1981. After the first prosecutions in 2003, National AIDS Trust (NAT) successfully advocated for legal guidance for prosecutors and worked with the Crown Prosecution Guidance (CPS) to develop this.
DESCRIPTION: In 2018 NAT requested that the guidance be updated. In January 2019 the CPS shared a draft of their revised guidance with NAT, who then coordinated a joint response from NAT and other key stakeholders. This successfully ensured that the new guidance reflects medical developments such as Undetectable=Untransmittable and clinical guidance. Developments in case law have led the CPS to take the view that HIV/STI status deception may be capable of vitiating consent to sex. NAT is concerned that this could result in people who lie about their HIV status being prosecuted for rape or sexual assault, even with safeguards used and no transmission occurring. NAT prepared a briefing articulating legal, policy and public health arguments against this position, and presented it at a meeting with the CPS. As a result the CPS have added several caveats, but we still believe their position to be unacceptable and discussions are ongoing.
LESSONS LEARNED: The successes we have had in improving the guidance demonstrate the importance of long-standing proactive engagement, relationship-building and collaboration. Collaborating with a range of key stakeholders including clinicians and lawyers enabled NAT to leverage wider authority and expertise. However, the issue of HIV status deception has illustrated the implications for HIV of legal developments in related but not directly transferable areas. Confidence in our understanding of the law and persistence in making our arguments heard has been crucial in ensuring ongoing engagement on this issue.
CONCLUSIONS: The updated guidance will help to ensure that prosecutions for reckless or intentional transmission are conducted in a way that minimises harm to both individuals and the wider community. Regarding the issue of HIV status deception, possible next steps include securing parliamentary engagement, pro bono legal opinions, and further representations from local government and public health bodies.

Alexandra Stratigos, HIV/AIDS Legal Centre (PEF1739) Crime and punishments – deportation proceedings against people convicted of criminal transmission of HIV .

BACKGROUND: A significant portion of people convicted of HIV transmission in Australia are not Australian citizens. Due to not holding citizenship, those convicted of serious criminal offences (which includes facing a prison term of 12 months or more), are at risk of having their visas cancelled and being removed from Australia. The HIV/AIDS Legal Centre (HALC) has represented a number of these clients in both their criminal and subsequent immigration proceedings to assist these clients in preventing their removal from Australia.
DESCRIPTION: Where a person is not an Australian citizen and commits a criminal offence they are at risk of detention and removal from Australia. In two recent case studies of people with HIV convicted of HIV transmission, following the completion of their custodial sentences steps were then taken to cancel their visas and place them into immigration detention. Both clients had their visas cancelled and had to take steps to appeal the decisions. Part of the reason for the cancellation was the perception of ongoing risk to the Australian community. Neither client had been convicted of intentionally transmitting HIV to their sexual partner. HALC continues to represent one of the clients mentioned and the other has now exhausted all appeal options.
LESSONS LEARNED: There are often many and varied reasons for HIV non disclosure and, from HALC”s experiences, following criminal and public health interventions it is unlikely that a person with HIV would continue to place their sexual partners at risk of contracting HIV. Decision makers in migration proceedings appear to be unwilling to accept that a person with HIV would no longer place their sexual partner at risk of HIV transmission as the decision makers note in their decisions that they there remains a risk to the community.
CONCLUSIONS: The outcomes of these cases demonstrates the need for ongoing advocacy and law reform in the removal of offences for HIV non-disclosure, exposure and transmission, except where actual intent can be established to a criminal law standard. The cases also demonstrate the ongoing need for continued robust representation of those, often vulnerable migrants, who are facing visa cancellation.

Kassoumou Ibrahim, Association des Jeunes Juristes du Niger (PEF1740) Decriminalization of HIV transmission: Advocacy experience of the Civil Society Coalition for the decriminalization of HIV in Niger.

BACKGROUND: To effectively fight against HIV, Niger adopted Law No. 2007-08 of April 30, 2007 related on HIV prevention, care and control. This law included problematic provisions, including the criminalization of exposure, HIV transmission, and the non-disclosure of HIV to the sexual partner. Actually, PLWHIV continue to be victims of the application of the provisions criminalizing the transmission of HIV through several criminal prosecution cases in 2017.
DESCRIPTION: In June 2018, 13 civil society organizations created the “National Coalition for the Decriminalization of HIV in Niger”. This one benefited from the technical and financial support of HIV JUSTICE WORLDWIDE. Its advocacy objectives, by 2021, are to : repeal of offenses criminalizing exposure and transmission of HIV ; research and disseminate reliable and convincing data on the impact of HIV criminalization on access to HIV-related services. Since its creation, the Coalition has carried out the following activities: National workshop for consulting civil society stakeholders on the exposure, transmission and non-disclosure of HIV in Niger; The development of the Memorandum of December 20, 2018 entitled ‘exploring ways and means to resolve the problems of legal proceedings against people living with HIV in order to reduce to zero the new infections, deaths and discrimination linked to AIDS; Organization of several advocacy meetings during the ‘zero discrimination’ day (March, 2019) for public decision-makers and partners.
LESSONS LEARNED: Judicial police officers and magistrates have to exercise greater caution when considering a criminal prosecution, and in particular, carefully assess the latest scientific data on the risks of transmission and the consequences of the infection; National AIDS Control Program needs a comprehensive assessment of the application of criminal legislation on the transmission, exposure and non-disclosure of HIV status in order to measure its impact on the effectiveness of national response.
CONCLUSIONS: The criminalization of HIV transmission undermines public health efforts and does not take into account the reality of PLWHIV and especially women who are not always able to disclose their HIV status without fear of reprisals or violence, or to impose the wearing a condom. The threat of possible criminal prosecution only increases their vulnerability.

Laura Ferguson, University of Southern California (PEF1742) Removing legal barriers to accessing HIV services in Malawi: Impact of regional- and national-level interventions.

BACKGROUND: Building on the work of the Global Commission on HIV and the Law, and in order to promote an enabling environment for achieving the 90-90-90 targets, UNDP has supported regional-and national-level work on removing legal barriers to accessing HIV services in sub-Saharan Africa. Covering over 20 countries, this work consists of regional-level capacity building for duty-bearers and rights-holders from the different countries and in-country activities tailored to local realities.
DESCRIPTION: In 2019/20, we evaluated the impacts of this work through a review of project documents and key informant interviews with stakeholders including civil society representatives, government officials, and UNDP staff, and conducted an in-depth case study in Malawi.
LESSONS LEARNED: Participation in regional spaces empowered national-level stakeholders in their country level work. A participatory legal environment assessment (LEA), jointly owned by government and civil society, served as the starting point and the resulting document, providing an overview of the strengths and weaknesses of HIV-related national laws and policies, has served as a cornerstone for subsequent activities. For example, national advocacy efforts informed by the LEA, and participation by the Chair of the Parliamentary Committee on HIV in regional activities, were key to shaping a revised HIV law to better align with international human rights law. The new law has led to the reform of the institutional framework for the national HIV response. Judges participated in regional judges’ fora where they could request information on HIV-related science, discuss lived experiences with key populations’ representatives and hear about how legal issues were being addressed across the region. Lawyers from across the region took part in joint training. After one such training, and with technical support from regional partners to create a strong case, a lawyer chose to appeal the conviction of a woman under Malawi’s law criminalizing HIV transmission. The presiding judge had attended regional judges’ fora and, drawing on a firm understanding of HIV transmission dynamics, overturned the original ruling.
CONCLUSIONS: A mix of regional and national level activities allows for tailoring of activities to national contexts while also providing space for peer networking and support where ‘difficult’ issues might more easily be discussed.

Wyatt Deihl, Rollins College (PEF 1781) Racial and gender disparities in Florida newspaper coverage of HIV related arrests.

BACKGROUND: According to the Centers for Disease Control and Prevention (CDC), as of 2016, 108,003 people live with HIV (PLHIV) in Florida, which also has the highest rates of new HIV diagnoses in the country. Numerous complexities worsen Florida’s HIV risk environment, including sex work, human trafficking, injection drug use, and sex tourism. These topics are often bases for HIV-related arrests that journalists cover. HIV criminalization describes statutes that criminalize otherwise legal conduct or that enhance penalties for illegal conduct based on a person’s positive HIV status.
METHODS: This study employed a systematic review of Florida news articles on HIV-related arrests published between 2009-2019. Through qualitative content analysis, our study analyzed how race, gender, and journalistic tone coalesce in reports of HIV-related arrests.
RESULTS: A 2018 report from the Williams Institute indicated that white Floridian women are primarily arrested for HIV-related crimes. The systematic review found zero news reports on HIV-related arrests of white Floridian women, and only one article identified a female perpetrator whose race was undisclosed. Sixty-four other articles reported solely on the HIV-related arrests of men, predominantly black men. We identified two categories of articles where HIV was either central to the arrest, or the person’s HIV-positive status was reported but exhibited little pertinence to the arrest.
CONCLUSIONS: Journalistic and police reporting behaviors risk inadvertently stigmatizing PLHIV at a time when public awareness of HIV depends on perceptions of HIV. This information will be used to shape equitable local nonprofit campaigns for community prevention, and HIV decriminalization efforts, while also combating the perpetuation of HIV misinformation.

Richard Mayanja, Uganda Martyrs University (PEF1794) Protective shield or punitive sword?: A critique of the Uganda HIV and AIDS control and prevention Act, 2014 from a human rights perspective.

BACKGROUND: The purpose of the research: To assess the compliance of the Uganda HIV and AIDS Control and Prevention Act, 2014 (the Act) with international human rights law standards.
Problem: In 2014, the Government of Uganda enacted a law to control and prevent HIV and AIDS. However, human rights advocates contest that the law contains provisions that don”t comply with international human rights law standards.
METHODS: Study period: August 2014 – August 2015 Study design: Qualitative design. Data collection: The study used a document analysis method. Method of analysis: The study identified international human rights law standards related to HIV and AIDS and used them as benchmarks for the review, analysis and synthesis of the literature.
RESULTS: The study established that: The Act carries provisions that comply with international human rights law standards. These include HIV counselling, testing, and treatment; state responsibility in HIV and AIDS control; the establishment of the HIV and AIDS Trust Fund; HIV-related human biomedical research; and prohibition of discrimination in various settings on grounds of HIV status. The Act also contains provisions that are not compliant with international human rights law standards. These include mandatory HIV testing, disclosure without consent, criminalization of actual and attempted HIV transmission, and criminal penalties for vaguely defined conduct. The Act lacks provisions that would make it more effective in controlling and preventing HIV and AIDS. These include commitments by the state to be accountable for its obligations stated in the Act; definition of what constitutes discrimination in various settings; and addressing challenges such as the causes of discrimination, inadequate professional human resources at health facilities, lack of HIV-friendly services in health facilities, and unregulated informal sector in complying with the law.
CONCLUSIONS: The study identified the compliance and non-compliance of the Act to international human rights law standards. It made recommendations to the Government of Uganda, organisations of people living with HIV and AIDS, organisations that advocate for human rights, and national human rights institutions, on the need to eliminate, revise and add some provisions in the Act to create an enabling legal environment that conforms with international human rights law.

Yi Chi Chiu, Persons with HIV/AIDS Rights Advocacy Association of Taiwan (PEF 1841) Fight against virus or human being? Case study on human rights violation regarding HIV criminalization in Taiwan.

BACKGROUND: Taiwan ranks top amongst the most progressive Asian countries, including being the first to pass marriage equality in Asia. Yet, stigma and discrimination of certain sub-populations, specifically people living with HIV (PLHIV) continue to prevail, as reflected in the Article 21 of HIV special law which overly criminalizes HIV non-disclosure, exposure and transmission.
METHODS: Using qualitative and quantitative approaches, Persons with HIV/AIDS Rights Advocacy Association (PRAA) of Taiwan makes a case on how the current criminal justice system in Taiwan adapt the narrative of ‘HIV as a weapon’ to prevent PLHIV from asserting their rights.
RESULTS: Article 21 states that individuals with knowledge of their HIV-positive status, by concealing the fact, engage in unsafe sex with others or share injection syringes, diluted fluids, and thus infect others, shall be sentenced for 5 to 12 years. Data showed over 30 cases were identified from 2012 to 2019, the majority of prosecutions were associated with sexual activities. However, unsafe sex was often defined exclusively with use of condom, and the court rarely recognized scientific advancements in antiretroviral therapy and suppressed viral load. Cases included: prosecution from ex-partner whom knew defendant’s HIV status before their relationship; state prosecution without plaintiff by turning 14 HIV-positive witnesses into defendants; 13-year incarceration despite medical expert’s testimony on the unlikelihood of HIV transmission. Those who haven’t been prosecuted continued to face both physical and emotional health threats, such as a woman threaten by her admirer to disclose her status if she turns him down. Bias and prejudice, worsen by difficulties in proving self-disclosure or condom use commonly resulted in convictions.
CONCLUSIONS: Article 21 and out-of-date judicial interpretation of HIV transmission risks gravely deprive the rights of PLHIV and further perpetuates stigma against PLHIV and affected communities through special criminal law on HIV. There’s a strong case to be made for abolishing Article 21 under the Constitution of Taiwan and the International Bill of Human Rights. Training and support on HIV advancements shall be given to all members of judicial and criminal law system to further inform any application of criminal law in cases related to HIV.

Kenya: Petition challenging constitutionality of HIV criminalisation awaits governmental response

The government has 30 days to respond to a case challenging discriminatory laws that criminalize HIV exposure and transmission

The Attorney General and the Director of Public Prosecutions have been given 30 days from 20^th July 2020 within which to file their responses to Petition 447 of 2019, a case challenging the constitutionality of Section 26 of the Sexual Offences Act. Section 26 of the Sexual Offenses Act creates a range of crimes that carry a mandatory minimum sentence of 15 years’ imprisonment despite global consensus amongst experts and institutions such the World Health Organization and UNAIDS that laws criminalizing HIV transmission and exposure weaken the ability of governments to end the AIDS epidemic.

The Petition was mentioned virtually before Justice Hon. Justice W. Koriron 20^th July 2020 where the court also made the following directions:

That all Respondents file their responses to the Petition within 30 days from the 20^th July 2020;
The Petitioners to file their submissions within 21 days after the lapse of the 30 days or upon service of responses by Respondents;
The Respondents and Amicus curiae to file their submissions in response within 21 days after service by Petitioners;
That the matter shall be heard on 4^th January 2021 when parties shall highlight their submissions.

Petition 447 of 2019 was filed on 10 December 2018. The Petition highlights how the provision of the law is unconstitutional by virtue of being vague and incapable of enforcement and for violating the right to protection from discrimination. The court had previously admitted HIV Justice Worldwide and the Secretariat of the Joint United Nations Programme on HIV and AIDS (UNAIDS) as friends of the court. The Attorney General and the Director of Public Prosecutions are respondents in the petition.

Hearing of the Petition has been set on 4^th January 2021 once all parties comply with the directions given by the court.

To contribute to the discussions on this forum, follow KELIN on our social media platforms: Twitter: @KELINkenya using these hashtags: #PositiveJustice; Facebook: http://www.facebook.com/kelinkenya.

Petition 447 of 2018
People living with HIV challenge discriminatory laws that criminalize HIV exposure and transmission

For more information, contact:

Allan Maleche, Executive Director

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

Karen C, Kuwinda Lane, Off Langata Road

P.O. Box 112-00202 KNH

Nairobi, Kenya |

Tel +254202515790; Cell +254708389870

Email: amaleche@kelinkenya.org

Russia: Names of released prisoners suffering from certain diseases to be passed to authorities of regions where they live

FSIN ordered to report the release of dangerously ill prisoners

Source: Pravo – Translated automatically by Deepl.com. For original article in Russian, please scroll down.

The exact list of diseases to be reported will be determined by the government.
On 20 July, President Vladimir Putin signed a law obliging prison administration staff to inform about the diseases of released prisoners. The relevant information will have to be passed by the FSIN bodies to the authorities of the region where the prisoner lives.

The author of the initiative was the Cabinet of Ministers. The State Duma adopted the document in its final reading on 7 July, and the Council of Ministers approved it on 15 July. The law will come into force only in six months.

Control over the provision of medical care to prisoners who have served their sentence is necessary due to lack of understanding of the gravity of the disease, “low educational and cultural level, mental disorders and asocial behavior,” as follows from the explanatory note to the bill.

At the same time, the exact list of diseases to be informed about has yet to be determined by the government. According to the authors of the initiative, in the case of newly released prisoners, different types of hepatitis, tuberculosis and HIV pose the greatest danger. Tens of thousands of people are released each year with these diseases, the explanatory note says.

ФСИН обязали сообщать об освобождении опасно больных заключенных
Точный список заболеваний, о которых нужно будет информировать, определит правительство.
Президент Владимир Путин 20 июля подписал закон, обязывающий сотрудников администрации исправительных учреждений информировать о заболеваниях вышедших на свободу заключённых. Соответствующую информацию органы ФСИН должны будут передавать властям региона, в котором проживает отбывший наказание.

Автором инициативы выступил кабмин. Госдума приняла документ в окончательном чтении 7 июля, Совфед одобрил его 15 июля. В силу закон вступит только через полгода.

Контроль за оказанием медицинской помощи заключённым, отбывшим наказание, необходим из-за непонимания ими тяжести заболевания, «низкого образовательного и культурного уровня, психических расстройств и асоциального поведения», следует из пояснительной записки к законопроекту.

При этом точный список заболеваний, о которых нужно будет информировать, еще только предстоит определить правительству. По мнению авторов инициативы, в случае только что освободившихся заключённых наибольшую опасность представляют разные типы гепатита, туберкулёз и ВИЧ. С этими заболеваниями ежегодно выходят на свободу десятки тысяч человек, говорится в пояснительной записке.

Watch all the videos of Beyond Blame @HIV2020 – our “perfectly executed…deftly curated, deeply informative” webshow

Earlier this month, advocates from all over the world came together for two hours to discuss the successes and challenges of the global movement to end HIV criminalisation.

All of the recordings of Beyond Blame: Challenging HIV Criminalisation for HIV JUSTICE WORLDWIDE are now available on the HIV Justice Network’s YouTube Channel.

“HUGE pleasure 2B at #BeyondBlame2020 conference – deftly curated, deeply informative; speakers were great; the passion & commitment to #HIVjustice was palpable. Much progress yet a sober reminder that the work is far from over.”

Kene Esom, Policy Specialist: Human Rights, Law and Gender, United Nations Development Programme (UNDP)

The full-length director’s cut version – with enhanced audio and video – is now available in English as well as with the audio track of the recorded simultaneous translation in French, Spanish, Russian, and Portuguese.

The English version is also available as a YouTube playlist in ‘bite-size’ chunks, with each segment of the webshow available as standalone videos. This means, for example, if you just want to watch (or share) the segment on ‘women challenging HIV criminalisation in Africa‘, or on ‘bringing science to justice, and justice to science‘, it’s now possible.

“That webinar was perfectly executed. Great sound, engaging transitions (they actually played people on and off!), and multiple speakers in various collections. Having ALL OF THEM back at the end showed the breadth of this technical accomplishment and the depth of the speakers’ field of expertise. Not everyone may notice these things but boy, I sure do, and it was totally pro. I’ve seen big name conferences who couldn’t get this right… Congratulations all around, and especially to [director] Nicholas Feustel.

Mark S King, My Fabulous Disease

We have also made available for the first time the standalone recording of Edwin Cameron’s closing speech, which inspired so many. The transcript is included in full below.

“We have been being battling this fight for many years. Since the start of the HIV epidemic we as gay men, as gay women, as queers, as transgender people, as sex workers, as people using drugs, have been persecuted by the criminal law. And I’m here to say, “Enough! Enough!

We have achieved a great deal with our movement, with the HIV Justice Network. We have achieved a great deal in conscientizing law makers, law givers and the public. It is now time for us to join in unison to demand the end of these stigmatising, retrograde, unproductive, hurtful, harmful laws.

It is a long struggle we’ve engaged in. And it’s one that has hurt many of us. Some of us here today, some of us listening in, some of us who have spoken, have felt the most brutal brush of the law. They have been imprisoned, unjustly prosecuted, unjustly convicted, and unjustly sent away.

HIV is not a crime. But there is more to it. Criminalising HIV, criminalising the transmission or exposure of HIV, as many countries on my own beautiful continent Africa do, is not just stupid and retrograde. It impedes the most important message of the HIV epidemic now, which is that this epidemic is manageable. I’ve been on antiretroviral treatment now for very nearly 23 years. My viral load has been undetectable for more than 20.

We can beat this, but we have to approach this issue as public health issue. We have to approach it rationally and sensibly, and without stigma, and without targeting people, and without seeking to hurt and marginalise people.We’ve made calamitous mistakes with the misapplication of the criminal law over the last hundred years, in the so-called ‘war on drugs’. We continue to make a calamitous mistake in Africa and elsewhere by misusing the criminal law against queer people like myself. We make a huge mistake by misusing the criminal law against people with HIV.

Let us rise today and say, “Enough!”

Criminalization laws impact public health and perpetuate discrimination

HIV and LGBTQ Criminalization Laws are Both Human Rights and Public Health Issues, Experts Say

A panel at the 23rd International AIDS Conference (AIDS 2020, gone virtual this year due to COVID-19) discussed the growing right-wing populist movements around the world that threaten advances made by activists toward ending criminalization of people living with HIV and LGBTQ people.

Poland just re-elected President Andrzej Duda, whose party, PiS, declared “The LGBT and gender movement threatens our Polish identity, the nation, and the state.” PiS wants to “protect children from the LGBT ideology,” defines marriage in strictly heterosexual terms, and aims to outlaw adoptions by LGBTQ people. Around 100 localities in the country have declared themselves to be “LGBT-free zones.”

Botswana goes even further, reported Tebogo Gareitsanye of BONELA, a legal and advocacy organization in that country. Consensual sex between same-sex partners is illegal and prosecuted as “unnatural offenses” and “indecent practices.” That statute originally applied only to men who have sex with men. Sex between women was not outlawed until 1998.

Botswana law distinguishes between sexual orientation per se—which is, in fact, a protected category under employment discrimination law—and acting on one’s orientation, which is illegal. After a campaign by BONELA and others, the country’s High Court recently decriminalized private, consensual sex acts. However, Botswana’s government has appealed that decision, and a final ruling is still pending.

Beyond human rights implications, such laws also impact public health, since LGBTQ people will not seek health services for fear of being prosecuted, Gareitsanye noted. Similarly, laws that criminalize certain acts if someone is living with HIV impede public health, said Edwin J. Bernard of the HIV Justice Network. “Communicable diseases are public health issues, not criminal issues.”

HIV criminalization laws generally require the person in question to know their status. They therefore discourage people from being tested. Sean Strub of the Sero Project summed this up in a video shared by Bernard at the conference: “Take the test and risk arrest.” Another interviewee in that video, Patrick O’Byrne, Ph.D., RN-EC, of the University of Ottawa, reported that participants in their study were unable to distinguish between the public health department and the police. “That’s problematic,” O’Byrne commented.

In California, for example, people living with HIV (PLWH) can be prosecuted for four HIV-specific “offenses,” explained Ayako Miyashita Ochoa, J.D., of the University of California Los Angeles: solicitation while seropositive, exposure with intent to transmit HIV, exposure to a communicable disease, and an enhanced sentence for forced sex, if the rapist lives with HIV. Sex workers account for 95% of HIV-related prosecutions in the state, Ochoa reported.

Exposure to a communicable disease could, of course, be applied to many different viruses—including SARS-CoV-2, the virus that causes COVID-19. So far, there are no reports of people refusing to wear masks being prosecuted under that law. Nonetheless, in many countries, human rights have taken a backseat to the pandemic response, noted Thokozile Phiri Nkhoma of Facilitators of Community Transformation in Malawi. Civil society must address criminalization as well as rights and resource issues in the wake of the pandemic, Nkhoma demanded.

Beyond their effect on individual persons prosecuted under them, criminal laws perpetuate structural inequalities, discrimination, and xenophobia, argued Susana T. Fried of CREA, an international feminist organization based in India. To counter such effects, we need to strengthen solidarity between and with affected people. We also must be aware of the unintended effects some laws meant to protect vulnerable communities might have. For example, raising the age of marriage can protect young girls. However, it can also be used to outlaw consensual sex between young people, if it ties age of consent to age of marriage.

The consequences of these and other laws regulating sex and sexuality are quite intentional, concluded Marco Castro-Bojorquez of HIV Racial Justice Now: “The systems of oppression that we have created specifically to oppress certain communities were working very well in the criminalization of PLWH.”

Australia: Proposed mandatory HIV testing in New South Wales is neither necessary nor useful

HIV testing people who spit at police or health workers won’t actually protect them

People who expose a police officer or emergency worker to body fluids would be compelled to have their blood tested for HIV, hepatitis B and hepatitis C, under a proposed law in NSW.

But this law isn’t needed to protect first responders. We already have evidence-based protocols that are working well to protect them from blood-borne infections.

Rather, the proposed law is a political reaction to a problem that doesn’t need fixing. It is also not supported by scientific evidence or Australian government policy on HIV testing.

What is NSW proposing?

In November last year, the NSW government proposed legislation which gives authorities the power to test a person for HIV, hepatitis B or hepatitis C if they have deliberately exposed a front-line worker to their body fluids (saliva or blood).

Examples might be if a person bites a police officer restraining them during an arrest or protest; someone biting or scratching a youth justice or corrections officer; or a person behaving unpredictably, exposing ambulance officers to their body fluids.

The mandatory testing order would come from senior officers within the worker’s own agency. If the person does not comply, they can be forced to do so. They have 48 hours to appeal to the NSW chief health officer. Anyone who refuses a mandatory testing order will be committing an offence, with a maximum 12 months prison term or an A$11,000 fine, or both.

Is this happening elsewhere?

Five states have legislation that allows mandatory testing, according to a report by the National Association of People Living with HIV.

The proposed NSW model is closest to the one Western Australiaintroduced in 2014, where police can order testing. This resulted in 377 testing orders in the first four years.

In contrast, in Victoria the chief health officer has the power to order a test or issue a public health order to enforce it if necessary. In those same four years, not a single person was ordered to be tested.

What’s the risk of transmission anyway?

Outside of sexual transmission, HIV is transmitted through blood. Police and corrections officers are far less likely to be exposed to a blood-borne virus than hospital workers. When exposure does occur, it tends to be less serious.

There does not appear to be any recorded case of an Australian police officer being infected with HIV in the course of their duties.

Rates of HIV infection in the community are dropping anyway. Around 0.1% of the Australian population is living with HIV. The vast majority are on effective treatment which reduces transmission to zero. By 2022, Australia’s aiming for virtual elimination.

As hepatitis C and HIV are blood-borne viruses, saliva alone cannot transmit them. Sometimes, the mouth can be contaminated with blood, particularly if there has been traumatic injury. But contact between bloody saliva and intact skin does not transmit hepatitis C or HIV.

A 2018 study bringing together more than 30 years of studies in HIV transmission concluded:

There is no risk of transmitting HIV through spitting, and the risk through biting is negligible.

A similar 2018 study looked at the risk of hepatitis C transmission and concluded the risk “appears to be very low”.

Of the blood-borne viruses, hepatitis B, the most transmissible of these viruses, is completely preventable through a vaccine all front-line workers receive.

What’s happening now?

In NSW and nationally, if someone is exposed to another person’s body fluids at work, they are assessed by health care workers in their agency.

The nature of the exposure, the possibility the other person could have a blood-borne virus (or if known, whether they are infected) and the resulting risk are considered when evaluating both the injury and the need for testing. If needed, they are tested according to policies informed by scientific evidence.

But the overwhelming majority of injuries, including bites, do not carry a risk of transmision.

In the rare scenario, where the risk of HIV infection cannot be ruled out, the worker may be offered medications to prevent infection, and follow-up blood tests. These medicationsdramatically reduce risk of transmission but must be taken within 72 hours of the exposure.

Workers potentially exposed to hepatitis C can be monitored for infection, and given medications with near 100% cure rate if required.

So current measures are more than adequate to deal with all situations a police officer or other front-line worker will confront, and have been so since these issues were first addressed in the early 1990s.

Compulsory testing could cause harm

Front-line workers deserve our support and protection. But if these workers feel anxiety or distress related to their risk of contracting blood-borne viruses then their health services must more adequately reassure them.

New measures won’t help reduce their already low risk of transmission and therefore don’t provide any additional reassurance. Focussing on getting the other person tested might increase their anxiety when the risk is negligible, irrespective of the person’s status.

In the rare higher risk situations, perhaps an ambulance officer injured while at a car accident where there is massive blood loss, the risk of a blood-borne infection needs to be assessed and preventive medicine offered. Delaying this assessment while waiting for the results of compulsory testing has the real potential to harm the worker.

The proposed legislation also stigmatises people living with blood-borne viruses, incorrectly depicting them as dangerous, creating unnecessary fear, leading to discrimination.

We are working with the board of the Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine (the peak body representing HIV, viral hepatitis and sexual health workers) and oppose mandatory testing measures as neither necessary nor useful.

When considering the criminalisation of COVID-19, lessons from HIV should be retained

Marginalised communities will not get justice from criminalising Covid-19 transmission

The criminalisation of the virus would create greater barriers to accessing healthcare systems already preventing many people from getting treatment.

After it was announced that no further action would be taken by police regarding the death of Belly Mujinga, a railway worker who contracted coronavirus after reportedly being spat on, there was national outcry. Her name has been plastered on placards at Black Lives Matter protests, while the public has pointed out that a man in Scotland who spat on a police officer while “joking” about coronavirus in April has been jailed for a year. But while this outrage is valid in the face of a government who continues to show their blatant disregard for black lives, criminalisation of diseases has been proven to be an ineffective tool for justice.

Over the past few months, parallels have been drawn between the Covid-19 pandemic and the HIV epidemic. Both viruses are communicable (they can be passed between people); both have been racialised, leading to racist and xenophobic attacks and stereotyping; community mobilisation has demanded adequate government public health responses for both health emergencies; and the impact of both viruses has highlighted the need for a global health approach which transcends borders.

When the World Health Organisation (WHO) declared Covid-19 a pandemic, many HIV organisations and activists advocated that the transmission of the novel coronavirus should not be criminalised. As public fear of Covid-19 grew, HIV advocates predicted the negative impact on public health and possibility of human rights violations, similar to those seen for people living with HIV.

“Despite the evolving scientific knowledge, criminalisation laws have been written and implemented across the world faster than the development of the general understanding of the virus itself”

This strain of coronavirus is new and scientists are developing their understanding of it. In the past few weeks, there has been confusion about the probability of asymptomatic transmission (transmitting the virus when a person does not have Covid-19-like symptoms), as the WHO had previously commented that it was “very rare” and later stated that this wording had misled people. Despite the evolving scientific knowledge, criminalisation laws have been written and implemented across the world faster than the development of the general understanding of the virus itself. Globally, countries have implemented or have proposed laws against Covid-19 transmission and even exposure, without transmission, including Canada, France, India, and South Africa.

Often, the aim of criminalisation is to facilitate a tool for prevention and deterrence (to discourage people from passing on a virus) or as punishment for those who have or may have passed on a virus. HIV advocacy has illustrated over the years that the criminalisation of transmission or exposure is ineffective, and disproportionately impacts marginalised communities and negatively impacts public health.

In their Statement on Covid-19 Criminalisation, published in March, the HIV Justice Worldwide Steering Committee wrote that hastily drafted laws, as well as law enforcement, driven by fear and panic, are unlikely to be guided by the best available scientific and medical evidence – especially where such science is unclear, complex and evolving. “Given the context of a virus that can easily be transmitted by casual contact and where proof of actual exposure or transmission is not possible, we believe that the criminal justice system is unlikely to uphold principles of legal and judicial fairness, including the key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof.”

Since that statement was issued, internationally coronavirus laws have been weaponised against the most marginalised within society, as is the case with HIV criminalisation laws. The Ugandan government, for example, has used coronavirus laws to target marginalised LGBTQI+ groups, and in the UK, people of colour are fined more than the white population under coronavirus laws, in some cases leading to unlawful charges. In some cases people were even charged under the wrong law (e.g. enforcing Welsh law in England).

The director of legal services at the Crown Prosecution Service (CPS), the public agency that conducts criminal prosecutions in England and Wales, found that 24% of cases reviewed had been charged incorrectly. In May a CPS press statement cited the speed and pressure to implement the laws as the cause of the wrongful charges. Across the Global North, it has been well documented that racialised communities are disproportionately impacted by Covid-19 and the Human Rights Campaign Foundation anticipates that LGBTQI communities will be disproportionately impacted by the virus. This is due to a myriad of reasons underpinned by systemic discrimination.

“Criminalisation of transmission or exposure is ineffective, and disproportionately impacts marginalised communities and negatively impacts public health”

HIV research has shown little evidence that criminalisation laws prevent transmission, in fact, it’s evidenced that such laws are bad for public health and fuel reluctance to get tested and treated. In the UK, testing and treatment of Covid-19 is free, as is the case with many other communicable diseases to remove the barrier to testing and treatment. Free testing and treatment access, irrespective of immigration status, is important, however, a briefing paper from Medact, Migrants Organise and New Economics Foundation (NEF), has shown that migrant communities blocked from healthcare because of the hostile environment, that “the coronavirus ‘exemption’ from charging and immigration checks is not working” and people have been asked to show their passports, and that people face additional obstacles such as language barrier and digital exclusion from emergency services.

Criminalisation exacerbates public health issues: in a Channel 4 report, Migrants Organise spoke of a man who died at home for fear of being reported to immigration authorities if he accessed healthcare. The threat of immigration enforcement disproportionately impacts those in precarious work and those with precarious migration status, all of whom are more likely to come from racialised groups and in some cases groups which are hyper-surveilled and criminalised.

The role of healthcare and access to it needs to be reimagined, where people are viewed as patients not passports and healthcare professionals are not the extended arm of the Home Office. Governments must implement better employment rights, so that employers are held to account and do not put staff such as Belly Mujinga, in harmful positions. Governments must provide better statutory sick pay so those in precarious work do not have to choose between their health and putting food on the table. We need to overhaul systemically discriminatory processes that don’t look after the most vulnerable, rather than implementing laws – such as criminalisation – that will systematically punish them.