UNAIDS “extremely concerned” by new COVID-19 laws that target people living with or vulnerable to HIV

This week, echoing the concerns of the HIV JUSTICE WORLDWIDE Steering Committee, amongst others, UNAIDS issued a strongly worded press release condemning governments for abusing the current state of emergency over the COVID-19 pandemic for overreaching their powers and enacting laws that target people who are living with, or vulnerable, to HIV.

“In times of crisis, emergency powers and agility are crucial; however, they cannot come at the cost of the rights of the most vulnerable,” said Winnie Byanyima, Executive Director of UNAIDS. “Checks and balances that are the cornerstone of the rule of law must be exercised in order to prevent misuse of such powers. If not, we may see a reversal of much of the progress made in human rights, the right to health and the AIDS response.”

Notably, UNAIDS singles out EU member states, Hungary and Poland.

In Hungary, a new bill has been introduced to remove the right of people to change their gender and name on official documents in order to ensure conformity with their gender identity, in clear breach of international human rights to legal recognition of gender identity.

In Poland, a fast-tracked amendment to the criminal law that increases the penalties for HIV exposure, non-disclosure and transmission to at least six months in prison and up to eight years in prison has been passed—a clear contravention of international human rights obligations to remove HIV-specific criminal laws.

In addition, UNAIDS condemns overly zealous policing that is especially targeting key populations already stigmatised, marginalised, and criminalised.

UNAIDS is also concerned by reports from a number of countries of police brutality in enforcing measures, using physical violence and harassment and targeting marginalized groups, including sex workers, people who use drugs and people who are homeless. The use of criminal law and violence to enforce movement restrictions is disproportionate and not evidence-informed. Such tactics have been known to be implemented in a discriminatory manner and have a disproportionate effect on the most vulnerable: people who for whatever reason cannot stay at home, do not have a home or need to work for reasons of survival.

They single out Uganda where “23 people connected with a shelter for providing services for the LGBTI community have been arrested—19 have been charged with a negligent act likely to spread infection or disease. Those 19 are being held in prison without access to a court, legal representation or medication.”

They also highlight Kenya as a model of cjvil society rapid response to human rights concerns following the release of an advisory note “calling for a focus on community engagement and what works for prevention and treatment rather than disproportionate and coercive approaches.”

The statement concludes:

While some rights may be limited during an emergency in order to protect public health and safety, such restrictions must be for a legitimate aim—in this case, to contain the COVID-19 pandemic. They must be proportionate to that aim, necessary, non-arbitrary, evidence-informed and lawful. Each order/law or action by law enforcement must also be reviewable by a court of law. Law enforcement powers must likewise be narrowly defined, proportionate and necessary.

UNAIDS urges all countries to ensure that any emergency laws and powers are limited to a reasonable period of time and renewable only through appropriate parliamentary and participatory processes. Strict limits on the use of police powers must be provided, along with independent oversight of police action and remedies through an accountability mechanism. Restrictions on rights relating to non-discrimination on the basis of HIV status, sexual and reproductive health, freedom of speech and gender identity detailed above do not assist with the COVID-19 response and are therefore not for a legitimate purpose. UNAIDS calls on countries to repeal any laws put in place that cannot be said to be for the legitimate aim of responding to or controlling the COVID-19 pandemic.

UNAIDS recently produced a new guidance document that draws on key lessons from the response to the HIV epidemic: Rights in the time of COVID-19: lessons from HIV for an effective, community-led response.   

Poland: Country’s Criminal Code amended to increase sentencing in cases of HIV exposure

New round of HIV criminalization in Poland

New round of HIV criminalization in Poland

This week, Polish President Andrzej Duda signed a law amending the country’s Criminal Code. Its content, coupled with other measures to combat COVID-19, was originally intended to create better conditions for overcoming the crisis. However, despite this, it, without any justification or prior approval, also included a number of provisions regarding the intensification of the criminalization of HIV.

According to the comments of activists familiar with the situation, the following amendments were made to the law of June 6, 1997 – the Polish Criminal Code :

“1) Article 161 is replaced by the following:

Section 161.

§ 1. Any person who knows that he is infected with HIV and exposes another person to the risk of infection shall be punished by imprisonment for a term of 6 months to 8 years.

§ 2. Any person knowing that he suffers from a venereal or [other] contagious disease, a serious chronic disease or a disease that threatens his life, and exposing the other person to the risk of infection, shall be punished by imprisonment of 3 months to 6 years.

§ 3. If the person who committed the act specified in § 2 exposes many people to the risk of infection, he shall be punished by imprisonment for a term of 1 to 10 years.

§ 4. The prosecution of a crime referred to in § 1 or § 2 takes place at the request of the victim. ”

According to experts, the changes made to the Criminal Code have significantly tightened the forms and methods of combating people living with chronic diseases, including HIV infection. Previously , according to them, the same acts were punished:

  • In paragraph 1, by imprisonment for a term of up to 3 years.
  • In subsection 2, a fine, restriction of liberty or imprisonment for a term not exceeding 1 year.
  • The provisions of § 3 have not previously been applied.

Regardless, since 2015, sentences of imprisonment (a fine or restriction of liberty) have been applied to all crimes established by this article of the Criminal Code. Thus, in the case of the offenses referred to in § 1 and § 2, the punishment, in addition to the fine and restriction of liberty, could also entail a real prison term.

It should be noted that according to experts, the criminalization of HIV throughout the world continues to be a serious barrier to the effective fight against infection. By exacerbating stigma and discrimination and counteracting the prevention, testing, treatment and care of people living with HIV, regulations that act as tools for criminalization are most often written or applied based on a false or outdated perception of the virus, and in particular about ways to transmit it.

Criminal or administrative prosecutions most often relate to activities where the risk of HIV transmission is negligible or completely absent, including: vaginal and anal sex, provided that “positive” partner uses uncontrolled contraception or undetectable viral load, oral sex, breastfeeding, bites, scratches spitting.

As of 2019, global monitoring has shown that a total of 75 countries (103 jurisdictions) have HIV-specific laws or determine HIV infection as a disease that is relevant to the law.

As of December 31, 2018, in 29 countries there were cases of applying HIV-specific laws, in 37 countries – general criminal or similar laws to HIV +, and in 6 – the use of both.

In more than three years of observation in 49 countries, at least 913 arrests, prosecutions, appeals and / or acquittals have occurred. The largest number of cases was recorded in Russia (314), Belarus (249) and the USA (158).

An analysis of the manifestations of criminalization shows that prosecution, aggravated by discrimination, most often affects precisely marginalized groups of the population, including drug users, ethnic minorities with a different gender identity or sexual orientation, uncertain immigration status, homeless people, sex -workers and others

Meanwhile, over the past few years, promising changes have taken place in the jurisdictions of many countries, especially those dealing with office work.

So, on January 1, 2019, in six countries of the world, precedent cases were established when the application of the law is limited by the data of modern science. Since 2016, 2 laws on the criminalization of HIV were repealed, 2 more were declared unconstitutional, 7 laws were changed, and at least 4 more bills were recalled.

Last month, it became known that the Legislative Assembly of Washington (USA) approved a bill that transferred to the administrative plane an offense related to the deliberate exposure of a person to the risk of sexual transmission of HIV. The previously mentioned act qualified as criminal and could entail a real criminal punishment.

Новый виток криминализации ВИЧ в Польше

На этой неделе президентом Польши Анджеем Дуда был подписан закон о внесении изменений в Уголовный кодекс страны. Его содержание вкупе с иными мерами по борьбе с COVID-19, изначально было призвано создать лучшие условия для преодоления кризисной ситуации. Однако, несмотря на это, оно без каких-либо оснований и предварительных согласований, также включило в себя ряд положений, касающихся усиления криминализации ВИЧ.

Согласно комментариям активистов, знакомых с ситуацией, в закон от 6 июня 1997 года – Уголовный кодекс Польши – были внесены следующие изменения:

«1) статья 161 заменяется следующей:

Статья 161.

§ 1. Любой человек, зная, что он инфицирован ВИЧ и подвергая другого человека риску инфицирования, подлежит наказанию в виде лишения свободы на срок от 6 месяцев до 8 лет.

§ 2. Любой человек, зная, что он страдает венерическим или [иным] контагиозным заболеванием, серьезным хроническим заболеванием или болезнью, которая угрожает его жизни, и подвергая другого человека риску инфицирования, подлежит наказанию в виде лишения свободы на срок от 3 месяцев до 6 лет.

§ 3. Если лицо, совершившее деяние, указанное в § 2, подвергает многих людей риску инфицирования, оно подлежит наказанию в виде лишения свободы на срок от 1 до 10 лет.

§ 4. Преследование за преступление, указанное в § 1 или § 2, происходит по ходатайству потерпевшего.»

Как отмечают специалисты, внесенные в УК изменения заметно ужесточили формы и методы борьбы с людьми, живущими с хроническими заболеваниями, в том числе ВИЧ-инфекцией. Ранее, по их словам, те же деяния наказывались:

  • В части § 1 – лишением свободы на срок до 3 лет.
  • В части § 2 – штрафом, ограничением свободы или лишением свободы на срок до 1 года.
  • Положения § 3 ранее не применялись.

Независимо от этого, с 2015 года наказания в виде лишения свободы (штрафа или ограничения свободы) применялись ко всем установленным данной статьей УК преступлениям. Таким образом, в случае правонарушений, указанных в § 1 и § 2, наказание, помимо штрафа и ограничения свободы, могло также повлечь за собой и реальноый тюремный срок.

Отметим, что по данным специалистов, криминализация ВИЧ во всем мире продолжает оставаться серьезным барьером для эффективной борьбы с инфекцией. Усугубляя стигму и дискриминацию и противодействуя профилактике, тестированию, лечению и уходу за людьми, живущими с ВИЧ, нормативные акты, которые действуют в качестве инструмента криминализации, чаще всего написаны или применяются на основании ложного или устаревшего представления о вирусе, и, в частности, о способах его передачи.

Уголовное или административное преследование чаще всего касается действий, где риск передачи ВИЧ незначителен или полностью отсутствует, в том числе: вагинальный и анальный секс при условии использования барьерной контрацепции или неопределяемой вирусной нагрузки у «позитивного» партнера, оральный секс, кормление грудью, укусы, царапины, плевки.

По сотоянию на 2019 год глобальный мониторинг показал, что в общей сложности 75 стран мира (103 юрисдикции) имеют ВИЧ-специфические законы или определяют ВИЧ-инфекцию релевантным для права заболеванием.

По состоянию на 31 декабря 2018 года в 29 странах имели место случаи применения ВИЧ-специфических законов, в 37 странах – общих уголовных или подобных им законов к ВИЧ+, и в 6 – использование тех и других.

За более чем три года наблюдений в 49 странах произошло не менее 913 арестов, судебных преследований, апелляций и / или оправдательных приговоров. Наибольшее количество случаев было зарегистрировано в России (314), Беларуси (249) и США (158).

Анализ вариантов проявления криминализации показывает, что судебное преследование, усугубляемое дискриминацией, чаще всего затрагивает именно маргинализированные группы населения, в том числе, лиц, употребляющих наркотики, относящихся к этническим меньшинствам, имеющих иную гендерную идентичность или сексуальную ориентацию, неопределенный иммиграционный статус, бездомных, секс-работниц и др.

Между тем в течение ряда последних лет в юрисдикциях многих стран, особенно касающихся делопроизводства, произошли многообещающие изменения.

Так, на 1 января 2019 года в шести странах мира были установлены прецедентные случаи, когда применение закона ограничивается данными современной науки. С 2016 года 2 закона о криминализации ВИЧ были отменены, еще 2 – признаны неконституционными, 7 законов – изменены, и еще минимум 4 законопроекта – отозваны.

В минувшем месяце стало известно, что законодательное собрание штата Вашингтон (США) одобрило законопроект, который перевел в административную плоскость правонарушение, связанное с умышленным подвержением лица риску половой передачи ВИЧ. Ранее указанное деяние квалифицировалось как преступное и могло повлечь за собой реальное уголовное наказание.

US: Lawmakers fail to pass HIV modernisation bill in Florida

Ending the Epidemic in Florida Must Include Ending HIV Criminalization

“Lawmakers Finally Pass HIV Modernization Bill in Florida to End HIV Epidemic by 2030.”

This should have been the headline at the end of the Florida legislative session in Tallahassee, which concluded on March 12. Instead, Florida lawmakers missed the opportunity to pass common-sense legislation for an easy bipartisan win that could benefit all Floridians. The HIV modernization bills sponsored by state Rep. Nick Duran and Sen. Jason Pizzo would have modernized Florida’s outdated HIV-specific laws written in the early ’80s, which do not reflect the scientific and social reality of HIV today. Florida is both the epicenter of the HIV epidemic in the United States and one of the states that continually sends people to prison for nondisclosure of HIV status. If we’re ever going to end the HIV epidemic in the U.S., we will have to end it in Florida. And we have to end HV criminalization in the state to achieve the goal of ending the epidemic.

The HIV prevention bills in the Florida House and Senate introduced this year were designed to align Florida’s outdated HIV laws with the current science of prevention and treatment. The new law would have required actual HIV transmission in order to convict—but it allows for exceptions “if he or she in good faith complies with a treatment regimen prescribed by his or her health care provider or with the behavioral recommendations of his or her health care provider or public health officials to limit the risk of transmission, or if he or she offers to comply with such behavioral recommendations, but such offer is rejected by the other person with whom he or she is engaging in sexual conduct.” It would also reduce harsh penalties (from a felony to a misdemeanor) for nondisclosure. Lastly, the bill would allow for organ donation between people of shared HIV status, which has been legal at the federal level since 2013.

While the bill did not advance this session, lawmakers did demonstrate resounding support for updating Florida’s law that makes it a felony for someone living with HIV to donate organs, tissue, blood, or plasma to someone else living with HIV. A provision to remove the felony and allow for such donations was added into a bill that unanimously passed the House and a bill that unanimously passed the Senate. Unfortunately, neither bill ultimately made it to the governor’s desk to be signed into law. According to a report by the Williams Institute, an average of 35 people are arrested in Florida every year for HIV-related offenses all across the state, but mainly in Central and North Florida.

The provision doesn’t just benefit people living with HIV by expanding their potential donor pool; when anyone receives an organ, everyone on the organ-donor waiting list benefits by being bumped up a spot. Last year, the national story of Nina Martinez and the first successful transplant of a kidney between two people of shared HIV status gave hope to those people who could benefit from the practice.

“Allowing patients with HIV to donate organs to people living with HIV who need them is just common sense,” said Howard Grossman, M.D., an HIV physician and researcher based in South Florida. “Organ donation already involves extensive screening, testing, and informed-consent protocols. What reason could rational people have to deny lifesaving therapy when it is readily available? Many states have already approved such procedures, with excellent results.”

But the states, including Florida, have more work to do. The Trump administration announced Ending the HIV Epidemic: A Plan for America in February, 2019. The end of HIV was mentioned again in the latest State of the Union address. The plan aims to reduce HIV transmissions by 90% by 2030. It allocates funding to the most impacted areas identified by the Centers for Disease Control and Prevention, including seven states, two cities, and 48 counties where at least 50% of people living with HIV in the U.S. currently reside, areas that have some of the highest diagnosis rates in the country. Most of those jurisdictions are in the southern states, and seven Florida counties have been identified as focus areas in the initiative (Broward, Duval, Hillsborough, Miami-Dade, Orange, Palm Beach, and Pinellas counties).

Fixing outdated criminalization laws must be part of the calculus when policymakers consider the range of social determinants of HIV. Without reforming laws that unjustly criminalize people based on their HIV status, we cannot end the epidemic. The American Medical Association has opposed HIV criminalization since 2014, when the organization published a statement calling for the modernization of laws as part of a public health response to the epidemic. Current Florida law criminalizes people living with HIV, working against public health policy by keeping people from seeking testing and treatment.

Florida saw broad, bipartisan support for HIV modernization last session, when House and Senate committees passed the HIV modernization bills, even though they ultimately did not pass the full chambers. We hope for broader HIV criminalization reform from the Florida Legislature. Last year, the Florida Infectious Disease Elimination Act (IDEA) was passed, expanding needle-exchange programs throughout the state. This law built on the success of a pilot project implemented by the University of Miami to help reduce HIV and hepatitis C transmissions, spearheaded by HIV advocate and professor Hansel Tookes, M.D., M.P.H.

The Florida HIV Justice Coalition represents just part of the worldwide HIV criminal reform movement, which has the support of major organizations and professional groups like the World Health Organization, American Medical Association, UNAIDS, and the Presidential Advisory Council on HIV/AIDS (PACHA).

There is no hyperbole in the claim that the current HIV modernization legislation will affect the lives of all Floridians. This session’s progress toward modernizing organ donation was an important step in the road to fully modernizing the HIV-specific laws of the state. Modernizing organ donation is long overdue, and its potential to save lives cannot be underestimated. The inclusion of people living with HIV as organ donors can also eliminate some of the undue stigma still prevalent in our state. That stigma underlies all of Florida’s outdated HIV laws.

The time to fully modernize Florida’s outdated HIV laws is now.

US: U.S. Representatives Barbara Lee and Jenniffer González Colón reintroduced bill to modernize discriminatory HIV/AIDS Laws

Congresswomen Lee, González Colón Reintroduce Bill to Decriminalize and Destigmatize HIV/AIDS

Washington, D.C. – Today, Congresswoman Barbara Lee and Congresswoman Jenniffer González Colón, Co-Chairs of the Congressional HIV/AIDS Caucus, reintroduced the Repeal Existing Policies that Encourage and Allow Legal (REPEAL) HIV Discrimination Act, which would modernize laws and policies to eliminate discrimination against those living with HIV/AIDS. Federal and state laws, policies, and regulations should not place a unique or additional burden on individuals solely as a result of their HIV status, and the bill offers a step-by-step plan to work with states to modernize their laws.

“HIV criminalization laws are based on bias, not science. Instead of making our communities healthier, these laws breed fear, discrimination, distrust, and hatred,” said Congresswoman Lee. “Punishments under these laws or statutes include decades-long sentences and sex offender registration, even for behaviors and situations that pose no HIV transmission risk. These dangerous and stigmatizing laws undermine public health and can contribute to worsening the HIV epidemic – and are one of the top 4 reasons why people living with HIV do not seek medical care. 

“Our laws should not perpetuate prejudice against anyone, particularly against those living with diseases like HIV. By introducing this legislation, we are sending a signal that discrimination and stigma have no place in our laws. We must all keep fighting to ensure everyone can live with dignity and respect, and to one day achieve an AIDS-free generation.” 

“An estimated 38,000 people become infected with HIV in the U.S. each year; a tragic statistic that we can help overcome through education and awareness, not through stigma and discrimination,” stated Rep. González Colón. “While modern science and medicine have advanced dramatically improved, some state legislatures are still passing laws that criminalize and penalize people infected with HIV without proof of an actual risk of transmission. That is why I’m joining Congresswoman Lee in introducing the REPEAL Act so that states reform their existing policies to eliminate the harmful consequences of dangerous and stigmatizing state laws that criminalize people living with HIV. As a country, we must come together to advance the dignity of people living with HIV.” 

Today, 34 states and 2 U.S. territories have criminal statutes based on outdated information regarding HIV/AIDS. This legislation would allow federal and state officials and community stakeholders to work together to repeal laws that target people living with HIV/AIDS. If passed, the act will be a key step toward ending unjust HIV criminalization laws in the United States. 

US: Bill to modernise Florida’s HIV criminalisation laws does not not address automatic enhancing of prostitution charges

Florida’s HIV Criminalisation laws target sex workers. A reform bill offers little relief.

67% of people arrested under state laws that criminalize HIV exposure and transmission are sex workers. But new legislation meant to modernize these laws would retain harsh penalties against them.

Florida is one of 26 states that have criminal laws that apply only to people living with HIV. In Florida, having consensual sex, donating blood or organs, or engaging in sex work without disclosing one’s status is a third-degree felony, subject to up to five years in prison and up to a $5,000 fine. The current laws—first enacted during the panic surrounding the HIV epidemic in the late 1980s and expanded in the late 1990s—do not take into account whether protection was used or whether a person’s viral load is undetectable, meaning they aren’t able to transmit the disease.

This session, a bill was introduced to the Florida legislature to modernize these laws. House Bill 427/Senate Bill 626 would have reduced the charges for engaging in consensual sex without HIV status disclosure to a first-degree misdemeanor, currently the penalty for exposure to other sexually transmitted diseases. Under the bill, which was first introduced in 2016, a person would be charged with a first-degree misdemeanor only if the prosecutor could prove they intended to transmit the virus. 

Proponents of the bill—an umbrella of LGBT rights organizations and HIV advocates called the Florida HIV Justice Coalition—say it will bring Florida in line with public health policy on the disease. But critics, among them health policy experts and sex worker rights organizations, say it doesn’t go far enough. The original legislation did not address the statutes that automatically enhance a prostitution charge, typically a second-degree misdemeanor, to a third-degree felony for sex workers living with HIV who don’t disclose their status.

Amir Sadeghi, the outreach coordinator for the Center for HIV Law and Policy, told The Appeal that this is a significant flaw because sex workers represent the majority of people arrested and convicted under current laws. Between the time the laws were passed in 1986 and 2017, 756 people have been arrested under Florida’s HIV- and STD-related criminal statutes, according to a study by the Williams Institute at the UCLA School of Law. The majority of those arrested—506 people—were charged with offenses related to sex work. Black women were almost twice as likely as white women to be convicted of an HIV-related offense. 

“We have an opportunity to fully modernize and reduce penalties and make sure people can only be prosecuted if someone can prove intent,” Sadeghi said. “Unfortunately the bill in Florida, because it stops short of doing that, it also stops short of making a meaningful improvement in the lives of people living with HIV.”

This month, the bill died in the House. A version of the bill is now under consideration in the Senate, but it does not address the criminalization of transmission. The health policy committee, the first to hear the bill this session, would not put it on the agenda unless a co-sponsor, Senator Jason Pizzo, agreed to a strike-all amendment that would make it legal for people living with HIV to donate organs to other people living with HIV who have been informed of their status, Kamaria Laffrey, an organizer with the coalition, told The Appeal. “It’s frustrating,” Laffrey said, “but our goal is always to keep the conversation going,” adding that, “In other states, it’s taken five to nine years for progress.” The coalition plans to reintroduce the full bill next year with the hope it can bypass the Health Policy committee.

Florida has the third-highest rate of HIV in the country. Although few studies have been conducted on the rate of the disease among sex workers in the state, the community is known to be more vulnerable to infection. This is due to the barriers that violence, poor working conditions, and police harassment pose to sex workers trying to obtain health services. “Sex workers want to be healthy, they want to be able to access medication, they want to be able to access healthcare services,” said Alex Andrews, the co-founder of the Sex Workers Outreach Project (SWOP) Behind Bars who is based in Florida. 

Public health advocates also say that criminalizing HIV exposure and transmission discourages people from getting tested, because you can only be charged if you know your status. This is a particular concern for sex workers, who have to balance potential violence from a client if they disclose their status with the likelihood of arrest if they don’t. “One of the phrases you hear in the community is ‘take the test and face arrest,’” said Jada Hicks, a staff attorney for the Center for HIV Law and Policy. “That highlights what the community thinks in terms of knowing your status and being criminalized for it.” 

One arrest for prostitution also puts a sex worker at risk of being charged for transmission or exposure. Under Florida law, anyone convicted of a prostitution offense is automatically tested for HIV and other STDs, and the results are shared with prosecutors. “People who are being prosecuted by this law are from marginalized communities; they don’t have the money for the defense,” Andrews said. “They have to live with the serious impact this is going to have on them.”

While the Florida legislature considers reform of its HIV laws, prosecutors in the state say they nonetheless enforce current laws. The Appeal contacted the 20 state attorneys offices in Florida. Twelve offices responded by publication time. Ten said they prosecute HIV exposure and transmission. “If it’s on the books and we can prove it beyond a reasonable doubt, we’re charging someone,” said Estella Gray, the communications officer for the state attorney’s office in the 13th Judicial Circuit (Tampa). “The idea that we’re not gonna prosecute HIV crimes—that’s unheard of in this circuit.” Howard Rosen, an assistant state attorney in the 11th Circuit (Miami), responded by email that the office would consider prosecution on a “case by case basis” that is “factually driven, also taking into account the position of any victim.” 

The law is not evenly enforced across the state. Hillsborough, Duval, and Pinellas counties account for 53 percent of arrests under current HIV law but only 16 percent of HIV cases throughout the state, according to the Williams Institute study. Miami-Dade and Broward counties represented 42 percent of HIV cases in the state but only 7 percent of HIV-related arrests.

Brad Sears, a scholar at the Williams Institute, said he’s had conversations with prosecutors who say that one of the functions of these laws is to pressure people, especially sex workers, to take a plea deal. Typically, if a sex worker who is HIV-positive is arrested for soliciation, “which usually involves creating a conversation [with police] … there’s not much else that’s needed,” Sears said. “It’s very hard to mount a defense against that.” The higher penalty associated with HIV status then “becomes a lever to get you to plead to one or more of the crimes” you’re charged with, Sears added. 

Other disparities are baked into the law as well. Sex workers who are HIV-positive can be charged with a felony simply for offering to commit a sex act without disclosing their status—meaning neither transmission nor sex occurred. But a person who procures another for prostitution—a client—must be proven to have “engaged in a sexual activity in a manner likely to transmit” HIV under Florida law, a much higher standard. 

Maintaining punitive penalties for sex workers who don’t disclose their status to sexual partners while lowering them for everyone else living with HIV, will further marginalize the community, Sadeghi said. “It will really reinforce the stigma with respect to sex workers as posing a unique danger to society … regarding sex workers as vectors for disease and not as people with dignity.”

In recent years, other states amended their HIV criminalization laws. In 2017, California reformed its laws so that penalties could only be imposed if a person acted with intent to harm another by transmitting the disease. The bill also eliminated the felony enhancement provision for sex workers living with HIV. 

In Florida, members of the HIV Justice Coalition told The Appeal it wasn’t possible to include sex workers in the bill if they wanted it passed by the conservative legislature. “We were told from various spaces that trying to add in a provision to protect sex workers was nonnegotiable, it was a nonstarter,” said Laffrey, an organizer for the coalition. “The bill absolutely would not be heard if it included them.” The bill was sponsored in the House by Nicholas Duran, a representative from Miami, and in the Senate by Pizzo, a former assistant state attorney for the Miami-Dade state attorney’s office. 

But Andrews of SWOP Behind Bars and other advocates say the bill won’t make much progress in without the sex worker community. “It’s disheartening to see people patting themselves on the back about a law that most impacts sex workers and gives them no relief,” Andrews said. 

Florida sex workers say that given the political realities of the state, the most significant progress in addressing the criminalization of HIV happens in communities, not the legislature. SWOP Behind Bars conducts free HIV and hepatitis C tests, distributes condoms, clean syrigines and pre-exposure prophylaxis to sex workers and homeless people in conjunction with local health and LGBT organizations such as the Center Orlando, Comprehensive Health Center, Miracle of Love, Ladies Intervention Project for Success, and the Orlando and Tampa Bay chapters of SWOP. Andrews estimates that they conduct three to 30 HIV tests a week. “In the year we’ve been doing it, we’ve had not one new case of HIV present itself in outreach,” she said.

“This year is basically the 1984 of the LGBT rights movement for sex workers,” Andrews added. LGBT people “were fighting just to stay alive, and that’s kind of where we are now. We need allies, we need people to support our work, and we need people to support our choice.”

[Update]Sweden: Parliament votes to abolish the obligation to disclose HIV status

Swedish Parliament Urges to Exempt HIV-Positive From Duty to Inform Partners

While hailed by the country’s leading tax-financed sexual education institution as a “big victory”, the decision sparked ire as many saw it as “legalising the spread of HIV”.

The Swedish Parliament has voted to urge the government to completely abolish the co-called “disclosure demand”, stipulating that those living with HIV must inform their partners about their disease.

According to the Swedish Parliament, the current legislation which obligates HIV-positive people to disclose their status to their sexual partner is “relatively ineffective from the medical viewpoint” and “a poor ideological marker”. Hence, it should be completely abolished.

“Society should not go in and force a duty of information. Here, the hope is that couples will solve this in a pragmatic way”, Barbro Westerholm, Liberal Party spokesman on LGBT issues, told the medical newspaper Dagens Medicin ahead of the vote.

In the same proposal, Parliament urged the government to assign an appropriate authority to propose preventive measures to promote the mental health of the LGBT community, citing studies indicating a higher incidence of mental health issues compared with the general population.

The proposal, sponsored by the Green Party, which is an important sidekick to the ruling Social Democrats, has been praised by the Swedish Association for Sexuality Education (RFSU), which for many years has fought to abolish the “disclosure demand”. The tax-financed organisation described the decision as a “big victory”. In the next step, RFSU President Hans Linde called to revise the current Infectious Diseases Act, Swedish Radio reported.

​Since 1985, HIV-positive people have a criminal obligation to inform possible sexual partners of their medical status. In 2013, however, the Public Health Authority (then the Infectious Diseases Institute) concluded that the risk of HIV transmission is minimal during intercourse with a condom, if the HIV-positive party is on well-functioning antiviral treatment.

Since then, anyone living with well-treated HIV, can be exempted from the disclosure demand after a decision by his or her physician.

According to the news outlet Fria Tider, however, Parliament has effectively “legalised the spread of HIV”, paving the way for the right to have unprotected sex without any obligations even for people who aren’t receiving treatment.

As of today, there are about 8,000 people living with HIV in Sweden, according to the Public Health Authority.

 

Published on the Swedish Parliament website on February 13, 2020 – Automatic Google translation. Scroll down for article in Swedish.

The Social Committee wants the government to review the disclosure duty of HIV positive people

The government should review whether the Communicable Diseases Act fulfills its function with regard to the duty of information for HIV-positive people. The government should also develop preventive measures to promote the mental health of LGBT people. This is the view of the Social Committee, which sends two notices to the government on this. SD has objections to one proposed announcement.

The Social Committee has considered proposals in motions from the general exercise period 2019 on public health issues. In connection with this, the Committee wants the Riksdag to send two requests, so-called announcements, to the Government:

  • The Public Health Authority has made the assessment that there is now no requirement that a person who receives good treatment for his / her HIV should inform his sexual partner about the HIV infection, because the risk of transmission of HIV during intercourse is very low. The Government should therefore ensure that an analysis is made of whether the Infection Protection Act fulfills its purpose with regard to the duty of information for HIV-positive people.
  • Studies show that the prevalence of mental illness is higher among LGBTQ people than in the general population. The Social Committee therefore wants the government to assign an appropriate authority to propose preventive measures to promote the mental health of LGBT people.

The proposals for announcements originate in motions from the Liberals. The Social Committee proposes that the Riksdag say no to other motion proposals, including with reference to the fact that work is already underway on several of the issues raised by the motions.

Swedish Democrats says no to announcement of the Communicable Diseases Act

Several parties have reservations and objections to various parts of the proposals that the Social Committee has considered. Among other things, the Swedish Democrats believe that the Riksdag should not make any announcement to the Government about a revision of the Communicable Diseases Act. According to the party, the provisions of the Protection Act on the duty of information for HIV-positive people are well-balanced as they are.

Debate and decision are expected to take place on February 19, 2020

Socialutskottet vill att regeringen ser över hivpositivas informationsplikt

Regeringen bör se över om smittskyddslagen fyller sin funktion när det gäller informationsplikten för hivpositiva. Regeringen bör även låta ta fram förebyggande åtgärder för att främja hbtq-personers psykiska hälsa. Det anser socialutskottet, som riktar två tillkännagivanden till regeringen om detta. SD har invändningar mot ena förslaget till tillkännagivande.

Socialutskottet har behandlat förslag i motioner från allmänna motionstiden 2019 om folkhälsofrågor. I samband med detta vill utskottet att riksdagen riktar två uppmaningar, så kallade tillkännagivanden, till regeringen:

  • Folkhälsomyndigheten har gjort bedömningen att det numera inte finns några krav på att en person som får bra behandling för sin hiv ska informera sina sexualpartner om hivinfektionen, detta eftersom risken för överföring av hiv vid samlag är mycket låg. Regeringen bör därför se till att det görs en analys av om smittskyddslagen fyller sitt syfte när det gäller informationsplikten för hivpositiva.
  • Undersökningar visar att förekomsten av psykisk ohälsa är högre bland hbtq-personer än hos befolkningen i allmänhet. Socialutskottet vill därför att regeringen bör ge en lämplig myndighet i uppdrag att föreslå förebyggande insatser för att främja hbtq-personers psykiska hälsa.

Förslagen till tillkännagivanden har sitt ursprung i motioner från Liberalerna. Socialutskottet föreslår att riksdagen säger nej till övriga motionsförslag, bland annat med hänvisning till att arbete redan pågår i flera av de frågor som motionerna tar upp.

SD säger nej till tillkännagivande om smittskyddslagen

Flera partier reserverar sig och har invändningar mot olika delar av de förslag som socialutskottet har behandlat. Bland annat anser Sverigedemokraterna att riksdagen inte ska rikta något tillkännagivande till regeringen om en översyn av smittskyddslagen. Enligt partiet är smittskyddslagens bestämmelser om informationsplikten för hivpositiva väl avvägda som de är.

[Update]US: Washington legislators approve bill reducing the severity of charges in cases of alleged HIV transmission

Washington Legislature Ease Penalties for HIV Exposure

OLYMPIA, Wash. — The Washington Legislature on Tuesday approved a bill that reduces the crime of intentionally exposing a sexual partner to HIV from a felony to a misdemeanor.

Supporters of the change to the rarely used law say the current penalties don’t have an effect on reducing transmissions or improving public health. Opponents argued the move diminishes the significance of the impact on a person who is unknowingly infected.

The House passed the bill on a 57-40 vote last month, and the Senate passed it on a 26-23 vote Tuesday. The measure now heads to Gov. Jay Inslee, who supports the bill and is expected to sign it.

Democratic Sen. Annette Cleveland said that the bill modernizes criminal statutes and recognizes “advancements in medical science that have rendered HIV a treatable disease.”

“I realize that this disease evokes fear and emotion even today,” she said. “I understand that the laws that are currently on the books were originally meant to protect people from HIV, yet three decades later we know that instead these laws have only increased the stigma and led to abuse.”

The legislation, which was requested by the state Department of Health, also calls for more intervention from local and state health officers, allowing them to recommend options ranging from testing to counseling. They could even mandate treatment for an individual determined to be placing others at risk.

The Senate rejected a Republican floor amendment that would have maintained the current criminal felony charge, as well as two others that would have imposed a felony charge for people on their second or third conviction.

Republican Sen. Maureen Walsh said there were several elements of the bill that she agreed with, but she couldn’t support it with the reduction of penalties for intentional transmission.

“There is nothing but malice behind a person who would go out and knowingly infect another individual with, frankly, a life sentence,” she said. “And I realize a lot of people are living longer, but they’re spending a lot of money on drugs.”

Under current law, a person can be charged with a felony for exposing or transmitting HIV to another person and could face as much as life in prison and a $50,000 fine, depending on the circumstances. Under the bill approved by the Legislature, that crime becomes a misdemeanor that could carry a penalty of 90 days in jail and a $1,000 fine if a person is infected. In cases where someone lies about their HIV status, it becomes a gross misdemeanor, with penalties of up to a year in jail and a $5,000 fine. An amendment accepted in the House maintains the felony charge for someone who intentionally transmits HIV to a child or vulnerable adult, and requires them to register as a sex offender.

Between 1986 and 2019, there have been 33 criminal cases filed under the current HIV-related statutes, according to the Department of Health. Three of those cases resulted in a felony conviction.

The Department of Health says there are an estimated 14,744 people in the state living with HIV, with about 81 percent of them virally suppressed, meaning they are unable to transmit the virus.

The Center for HIV Law & Policy says Washington is among 29 states with HIV-specific laws. Once Inslee signs the measure into law, Washington will join seven other states that have reformed or repealed one or more parts of criminal laws specific to HIV.

The proposal is not as expansive as changes made by California, which in 2017 passed a law that reduced penalties for knowingly exposing a sexual partner to HIV from a felony to a misdemeanor. The California law also reduced charges for a person with HIV who knowingly donates blood, tissue, semen or breast milk from a felony to a misdemeanor.

Other states that have introduced bills this year on reforming HIV-specific laws include Ohio, Florida and Virginia.

WA Democrats hope to reduce criminal penalties for intentionally spreading HIV

Published in My North West on 15/02/2020

It’s been a law on the books for decades – anyone busted for intentionally infecting someone with HIV faces felony first degree assault.

Under a controversial bill passed by the House this week, that crime would be lowered to a misdemeanor or gross misdemeanor, depending on the circumstances.

Republicans unanimously rejected the measure in the House, contending, among other things, that lowering the punishment puts the public at risk.

But supporters argue the state’s current law, enacted in the ’80s and only updated with a few minor changes in the ’90s, is outdated and increases stigma surrounding HIV, which in turn damages public health efforts.

The bill, HB 1551, originally sponsored by current Speaker of the House Democrat Laurie Jinkins and now sponsored by Democratic Rep. Eileen Cody, is a wide ranging bill that makes multiple changes to state law regarding mandatory testing for HIV, what the public health departments can and cannot do in investigating, and allowing minors to get treatment for HIV without parental consent, but the provision creating the bulk of the controversy is the reduction of the crime relating to intentionally infecting a person with HIV.

Supporters of the bill say the criminalization of HIV has only led to increased stigma that damages ongoing public efforts, according to the 2016 report from the End AIDS steering committee.

“Criminalizing us with a felony A for having a disease state … that’s not a banner I can get behind anymore, and frankly that doesn’t make people want to rush out and get engaged with public health,” Scott Bertani, an HIV positive man and Lifelong AIDS Alliance member, told lawmakers at a hearing on the bill last session.

“HIV is not the same disease as it was over 30 years ago,” said Lauren Fanning with the Washington HIV Justice Alliance. “The law contributes to stigma so many people with HIV feel by how others treat them like they are dirty and they have a great deal of difficulty overcoming that in their lives.”

Fanning also testified at last year’s committee hearing.

“The law creates fear of being tested, fear of accessing healthcare, and undermines the trust and prevention care and treatment systems impacting our marginalized communities the most,” Fanning added.

Nearly a year later, on the House floor this week, Democratic Rep. Nicole Macri said changing the law was long overdue and would decrease stigma while strengthening public health by finally treating HIV like the disease it is.

“A treatable, a chronic illness, and not a moral failing or criminal justice issue,” Macri said.

But Republicans argued the changed law would put the public at risk by making the crime and penalty for intentionally infecting a person with HIV the same as it is for stealing a candy bar.

Rep. Michelle Caldier said it would have other unintentional consequences by removing a tool for prosecutors who use the HIV felony crime as a method to convict rapists.

“Those rape victims deserve a voice,” Caldier said. “And what’s going to happen to all those rape victims where they were able to prosecute this? And now we’re going to reduce the sentence. We’re going to let those rapists go free. I’m not OK with that! And it breaks my heart that so many people on this floor are.”

Macri painted this bill as a compromise, telling fellow lawmakers that many of her constituents want to completely decriminalize HIV.

US: New report by the Williams Institute found one arrest for an HIV crime for every 60 people living with HIV in Missouri

Missouri’s HIV criminalization laws have impacted nearly 600 people

For Immediate Release
February 26, 2020

Media Contact
Rachel Dowd
dowd@law.ucla.edu
(310) 206-8982 (office) | (310) 855-2696 (cell)

The cost of incarceration related to these crimes, to date, is $17.7 million.

Between 1990 and 2019, at least 593 people were arrested under Missouri laws that criminalize people living with HIV and hepatitis B and C, according to a new report by the Williams Institute at UCLA School of Law. Of those, 318 people were convicted for the crimes with average sentences ranging from 2.9 to 10 years. To date, the estimated cost of incarceration related to HIV/hepatitis crimes is $17.7 million.

Using data obtained from the Missouri State Highway Patrol (MSHP) – Criminal Justice Information Services, researchers found that HIV/hepatitis criminalization laws were enforced in 70 of Missouri’s 114 counties. However, enforcement was heavily concentrated in a smaller subset of counties. In addition, the report shows that HIV/hepatitis crimes are disproportionately enforced on the basis of race and sex, with Black men being the most likely to be arrested and convicted.

HIV/hepatitis 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 positive status. More than two-thirds of U.S. states and territories have enacted HIV criminal laws. Missouri has five laws that criminalize different types of exposure, including three HIV-specific laws and two laws for exposure to HIV or hepatitis in connection with the Department of Corrections and the Department of Mental Health (DOC/DMH).

“Violations of these laws are all felonies. They do not require that the defendant actually infect anyone—or intend to infect anyone—and they include behaviors that pose no or little risk of transmission,” said lead author Brad Sears, Distinguished Scholar of Law and Policy at the Williams Institute. “These laws are disproportionately enforced against already vulnerable communities and aren’t preventing the spread of HIV and hepatitis.”

FINDINGS

HIV Crimes

  • Missouri has one arrest for an HIV crime for every 60 people living with HIV in the state.
  • HIV crimes appear to be disproportionately enforced in the Saint Louis HIV Care Region, particularly in St. Louis City and St. Louis counties. While the St. Louis HIV Care region has 48.3% of people living with HIV in Missouri, it has 61.0% of all HIV criminal incidents.
  • Black men make up 5.5% of the state’s population and 35% of people living with HIV in the state. They make up over half of those with an HIV incident (50.2%) or conviction (54.2%).

Department of Corrections/Department of Mental Health Crimes

  • Over 99% of all 398 people arrested under DOC/DMH laws, 396 people, were arrested for exposing an employee or someone else connected with the Department of Corrections to bodily fluids.
  • St. Francois, Mississippi, and Texas counties have 3.6% of Missouri’s incarcerated populations but represent 33.6% of all DOC/DMH incidents.
  • Black men make up 5.5% of the state’s population and 32% of people who are incarcerated in the state. They make up 41.7% of those with a DOC/DMH criminal incident and 45% of those who have been convicted of these crimes.

Lawmakers in Missouri filed a bill in 2020 to revise the state’s HIV criminalization laws. A hearing on the bill is expected in March.

This study was funded through a generous grant from the Elton John AIDS Foundation.

Read the report

Australia: Prisoners who assault prison officers would be mandatorily tested for infectious diseases under proposed law in Western Australia

Proposed mandatory infectious diseases testing of prisoners who assault officers
  • ​New laws to make compulsory the testing of a prisoner accused of assault for an infectious disease
  • Current laws mean an officer has to wait three months to know if they are possibly infected
  • Prisoner’s blood-virus infection status would be made available to an affected officer

Prisoners who assault prison officers would be mandatorily tested for infectious diseases under proposed new laws now before Western Australia’s Parliament.

Currently prison officers, who have been assaulted by a prisoner, have to wait three months before they themselves are tested to see if they have contracted an infectious disease such as Hepatitis C or HIV.

The new laws mean a prisoner would be tested as soon as possible and face an increased penalty of $3,000, up from $300, or an extra six months on top of their existing sentence for refusing to comply.

The tough new penalty and mandatory testing is to try to alleviate the burden on an officer who now has to wait three months before they know if they have possibly been infected.

The new laws also cover if an officer has come in contact with a prisoner’s bodily fluids.

The amendment Bill will also authorise the disclosure of the prisoner’s infection status to the affected prison officer. Where the prisoner’s infectious disease status is known, the information will be able to be shared with the affected prison officer almost immediately.

The provisions contained in the legislation mirror the protection offered to WA police officers.

Comments attributed to Corrective Services Minister Francis Logan:

“These tough new amendments fulfil a McGowan Labor Government commitment to support prison officers in the same way as police officers.

“Prison officers are required, as part of their duties, to restrain people and are therefore exposed to bodily fluids through which diseases like Hepatitis C and HIV can be transmitted.

“It can be a long and anxious wait for an officer not knowing whether the prisoner is carrying an infectious disease.

“Under these tough new laws, the burden will be lifted on a prison officer and a prisoner will be mandatorily tested and failure to comply may result in a $3,000 fine and six months on top of their existing sentence.

“Our prisoner officers work in highly challenging and complex environments and this proposed new law takes the burden off them and offers some sense of surety.”

Zimbabwe: Women parliamentarians call for the decriminalisation of wilful HIV transmission

‘Decriminalise wilful transmission of HIV’

FEMALE parliamentarians have called for the decriminalisation of wilful transmission of HIV, saying women were the most affected by the law.

The issue came out on Thursday last week in the National Assembly during debate on the Second Reading Stage of the Marriages Bill, which among several other issues seeks to now decriminalise wilful transmission of HIV.

Harare West MP Joana Mamombe (MDC Alliance) said due to their biological make-up of giving birth, women used to be the most affected by criminalisation of wilful transmission of HIV.  

She said usually, couples learn about their HIV status when a pregnant woman is tested to prevent mother-to-child transmission.

“We welcome that this Bill proposes to decriminalise wilful transmission of HIV because it affects women the most, especially the young women,” Mamombe said. 

“Decriminalising wilful transmission of HIV will reduce the number of women jailed at Chikurubi Female Prison for crimes such as that they wilfully transmitted the disease to their partners due to their biological make-up of giving birth given that the virus is discovered mostly when the pregnant women are tested,” she said.

Josephine Shava (Zanu-PF MP – proportional representation) added:  “If a woman is HIV positive and informs her husband, the husband rushes to the police and makes sure that the wife is arrested.  I think this law must protect women.  When the case is presented in court, the women cannot defend themselves as they have no legal representation.”

Proportional representation legislator Perseviarance Zhou (Zanu-PF) opened up on how criminalisation of HIV affected her brother, Kaiboni Mlambo, who ended up dying in prison.

“Yes, he was HIV positive, but he agreed with his girlfriend that they would use protection. The woman was found to be HIV positive, but this Act was used against my brother and he got arrested. Instead of dying of HIV and Aids, he died from stress in prison,” she said.

MPs said criminalising of transmission of HIV would contribute to its spread as partners would be scared to disclose their statuses to each other in fear of getting arrested.

“It was also realised that Zimbabwe criminalises sexual activity when one is HIV positive, yet our Constitution says that we should not discriminate against people with HIV and Aids,” Zhou said.