US: Florida HIV Criminal laws undermine public health goals and must be modernised

HIV in Florida is on the rise. Here’s how we can change that.

The state has mishandled the epidemic in the past, but lawmakers can get it right now

By Jennie Smith-Camejo, Kamaria Laffrey, Christine Hanavan and Alejandro Acosta

Published Sep. 19

Last week, Floridians learned that as governor, Rick Scott rejected $70 million in federal funding to fight the state’s HIV epidemic between 2013-2017. During those years, New York invested heavily in testing, treatment, and services for people living with HIV—and reduced its rate of new diagnoses by 30 percent. Of the 10 states with the most annual HIV diagnoses, only Florida saw an increase—a whopping 11 percent. 23,413 Floridians have had their lives altered as a result.

Florida’s new governor, Ron DeSantis, just announced that his administration will lead a “robust program” to reduce HIV and AIDS in the state. HIV advocates will work with him to fulfill this promise.

Yet ending the epidemic in Florida requires more than promises. Access to care and services for people living with HIV is key. Modern antiretroviral treatments reduce the amount of the virus in the body so low tests can’t detect it. After six months, the person cannot transmit HIV to their sexual partners as long as they stay undetectable. The CDC confirmed that maintaining an undetectable viral load is 100% effective at preventing HIV transmission, even without condoms. Ensuring every person with HIV is diagnosed and is linked to care and support to stay in care (stable housing, mental healthcare, transportation for medical appointments, etc.) keeps the person with HIV healthy and prevents transmission.

Further, Florida legislators must align our laws with modern science. Currently, outdated laws criminalize people with HIV for consensual sex. People can be convicted of a felony even when no transmission occurred or was possible. One accusation can ruin a life.

These laws are different from other criminal laws. The burden of proof lies on the person living with HIV to prove they told their partner. But intimate conversations rarely take place in writing. And no intent to “harm”–or actual harm–is required for conviction. Disputes about facts routinely work in favor of the accuser, ruining lives. Headlines about such cases further stigmatize HIV, driving people living with HIV back underground, afraid to disclose or sometimes even to get medication because of the legal and social consequences of criminalization and stigma.

These laws undermine the public health goals of testing and treatment. The National HIV/AIDS Strategy recommended that state governments review their criminal laws for this very reason. And a 2017 study authored by CDC staff found that laws criminalizing HIV have “no detectable prevention effect.”

Florida government can right this wrong by funding care and services and by modernizing the state’s criminalization laws. The Florida HIV Justice Coalition, a group of people living with HIV and organizations working with communities affected by HIV, formed to help legislators align our laws with science and public health.

Together, we can make Florida a state where no one is afraid to seek HIV testing or care.

Jennie Smith-Camejo, of Miami, is communications director for Positive Women’s Network, USA. Kamaria Laffrey, of Winter Haven, is the Southern engagement community coordinator for the Sero Project. Christine Hanavan, MSW, of Orlando, is a community organizer for Sex Workers Outreach Project Behind Bars. Alejandro Acosta, of Fort Lauderdale, is the HIV advocacy manager for Equality Florida.

Uganda: HIV law deters communities from seeking HIV services and should be reformed

Kaleba scolds Parliament: The AIDS law is poisonous

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

HEALTH HIV/AIDS

The founder of The Aids Support Organization (TASO), Noerine Kaleeba, has castigated members of parliament, saying they approved the AIDS law which is awash with numerous contentious clauses.

In 2014, Parliament endorsed the HIV and AIDS Prevention law, which came into effect the same year on July 31, when President Yoweri Museveni assented to it. The law seeks to provide for a legal framework geared towards the prevention and control of HIV.

Kaleeba said the contentious clauses (41 and 43) of the law provide for prosecution on grounds of attempted and intentional transmission of HIV, respectively. Among the provisions of the piece of legislation is criminal penalty for risk and intentional transmission of the virus.

The law requires mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus. Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

Speaking during the 29th Centre General Meeting (CGM) of TASO Mulago last week, Kaleeba regretted that these provisions in the law do not only stigmatise and discriminate against people living with HIV but also deter communities from seeking HIV services such as HIV Testing and subsequently HIV treatment.

TASO founder Noeline Kaleebu together with another founder Peter Ssebanja take to the flow during the 29 AGM for TASO Mulago

She said that the clauses have fueled domestic violence in homes since the couples each blame one another for intentionally transmitting the virus. She said it is naïve to think that the person who tests first is the one who infects the other, it could be the other way round.

“Honestly, how can it be proven that indeed the HIV of the accuser was got from the accused? There is fear that public knowledge of one’s HIV positive status would be used against them due to personal differences,” she says.

She argued that this will ultimately discourage people from testing to know their status fearing that if found positive, their status could be used against them in courts of law at any point in time. It should thus be noted that one who does not know their status cannot be held liable under this law.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as criminals or potential criminals,” She says. Adding, “People will inadvertently live with the virus without accessing treatment and by the time they get to know their status it will be too late.”

Kaleeba says that both members of the previous parliament and the President (who signed the law) acted out of ignorance, and therefore made a mistake. She prays that the 10th parliament doesn’t have to keep the error, and this is urgent.

She also hailed the appointment of Winnie Byanyima as the new executive director of UNAIDS, saying it has come at the right time as we are closing the chapter of HIV/AIDS. She said Byanyima is an exceptionally good manager, and her appointment will elevate our country.

“She will definitely give a mirage to Uganda even for those who didn’t know Uganda, will come to know the country, whether they like it or not. The world will say the new UNAIDS ED comes from Uganda, and that way our reputation will be elevated. People living with HIV, therefore, need to double their efforts especially on issues of taking their medication,” she said.

“Strict adherence to treatment is where the war is. When you religiously adhere to your medication, your viral load becomes undetectable, meaning you will not transmit to others. Let us be exemplary and merit Bwanyima’s confidence.”

Responding to Kaleeba’s concerns, the guest of honour, Florence Nambozo, who is also woman MP for Sironko and chairperson HIV/AIDS committee, assured over 800 people who turned up for the CGM that she will talk to her fellow members of parliament to make sure that the law is amended.

She said Uganda is making good progress in the HIV fight and urged people living with HIV to stick to treatment since the ARVs are available and free in all government health facilities.

The Centre Program Manager TASO Mulago, Godfry Mafabi revealed that by end of July TASO Mulago had recorded a cumulative total of 7754 compared to last years’ 1145 in care against a target of 8371 to be achieved by September 2019.

Mafabi said that since the last AGM 918 clients were initiated on ART, of these 23 were children and 139 adolescents, and 756 were adults compared to 663 who were started on ART between 17 August- July 18. The suppression rate is currently at 97% surpassing the new national target of 95% target.

However, the institution is still faced with challenges of funding since the time the donors pulled out. The number of staff was also reduced at the facility to 27 from 75, which is a big setback. We are using expert clients to handle new clients, he said.

Canada: Further reform is needed to redress the harms HIV criminalization brings to the lives of women living with HIV

Recommendations on changes to HIV criminalization don’t go far enough

Earlier this summer, the House of Commons Standing Committee on Justice and Human Rights released a report on Canada’s approach to criminalizing those who don’t disclose that they’re living with HIV to sexual partners.

If the Standing Committee’s recommendations are adopted, they could diminish the harms experienced by women living with HIV under Canada’s current approach to criminalization.

But further consideration and consultation are required in order to fully address the harms that the law introduces to the lives of women living with HIV.

The Supreme Court of Canada articulated the current legal approach in 2012. In so doing, the court interpreted consent and fraud provisions of Canada’s sexual assault laws and ruled that people diagnosed with HIV must disclose their status to sexual partners before engaging in sexual acts that pose a “realistic possibility of transmission.”

The court also stated that there is no legal obligation to disclose prior to sex if a condom is used and the person living with HIV has a consistently low measure of HIV in their blood. This legal understanding of a “realistic possibility” contradicts current scientific knowledge that just one of these conditions is sufficient to eliminate transmission risk.

Scientific evidence endorsed by the federal government demonstrates that an undetectable viral load eliminates the risk of sexual transmission of HIV, regardless of condom use. Similarly, there is a negligible risk of transmission when condoms are used properly, no matter an individual’s viral load.

Today, in addition to being inconsistent with current scientific evidence, HIV nondisclosure prosecutions are widely seen as unjust as they can result in harsh sentences for actions that result in little or no harm.

Canadian prosecutors and courts apply the criminal offences of sexual assault and aggravated sexual assault to prosecute cases of HIV nondisclosure. The latter — one of the most serious offences in Canada’s Criminal Code — carries the possibility of a lifetime sentence and mandatory registration as a sexual offender.

Experts discuss the misuse of sexual assault law in prosecuting cases of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Women living with HIV & the law

“The law is a bigger risk to us than HIV.” Sophie

The criminalization of HIV nondisclosure was purportedly intended to protect women while reducing HIV transmission risk by promoting disclosure and safer sex practices. Instead, research indicates that punitive approaches have the opposite effects, many of them significantly harmful.

As health scientists at Simon Fraser University, we work alongside experts on two studies: the Canadian HIV and Women’s Sexual and Reproductive Health Study (CHIWOS), with researchers also from the University of Toronto, McGill University, University of Manitoba, University of Saskatchewan and McMaster University; and the Women, ART and the Criminalization of HIV (WATCH) study with health partners based at McMaster University.

Findings from these studies indicate that criminalization reinforces socially dominant power dynamics, stigma, marginalization and fear experienced by women living with HIV. Specifically, the current legal requirements ignore the dangers women face in both negotiating the use of condoms and status disclosure due to power inequities, particularly in dependent, violent and non-consensual relationships.

À lire aussi : Why a fulfilling sexual life with HIV matters

“I was raped by three [people …] And if I had told [them] I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” Julie

Women living with HIV who don’t disclose their status when they are sexually assaulted may themselves be convicted of a sexual offence.

Not only does criminalization contradict scientific evidence around HIV transmission risk, it compromises women’s health-care engagement and deters HIV testing since those who do not know their status cannot be prosecuted. Yet access to HIV testing, treatment and support services is scientifically proven to decrease transmission risk.

Furthermore, women who aren’t prosecuted are still harmed by the law. For example, women who have experienced emotional and physical violence by abusive partners may face the threat of partners falsely reporting that the woman didn’t disclose her HIV status.

Living under the fear of being charged has significant consequences for women’s emotional, mental and physical well-being. This is particularly important given the high rates of physical and sexual violence experienced by women living with HIV in Canada.

“It seems like an impossible situation to prove your innocence.” Miranda

These findings were shared with the Standing Committee through expert testimony by members of CHIWOS and WATCH. Such contributions are integral in moving toward an approach to criminalization that considers the realities of people living with HIV.

Women living with HIV and others share their experiences and knowledge of the criminalization of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Recommendations could go further

The Standing Committee’s report makes recommendations in a positive direction, but the recommendations need to go further to reduce harms to women living with HIV.

Firstly, the committee recommends creating a new offence in the Criminal Code for nondisclosure of an infectious disease where transmission happens. This recommendation says prosecutions should never be pursued in cases where: an individual has an undetectable viral load; condoms were used; the sexual partner of a person living with HIV is taking pre-exposure prophylactics; or the sexual act carries a negligible risk of transmission (oral sex, for example).

This suggested requirement of a new offense where actual transmission occurs would minimize, though not fully eliminate, opportunities for the law to be used as a tool of violence against women.

Though the creation of a new offence would address the current problematic use of sexual assault laws, failing to consider the intent of not disclosing is significant. In 2008, the United Nations urged states to limit prosecution of HIV nondisclosure to extremely rare cases of actual and intentional transmission.

Heed women’s experiences

Without including the element of intent, the committee has not fully addressed the vulnerability of women who may unintentionally transmit HIV during their own sexual assault or an unprotected sexual encounter. Given the widespread violence experienced by women living with HIV in Canada, this is a substantial deficiency in the recommendations.

And, given the report’s recognition that criminalization has not achieved its public-health goal of reducing HIV transmission, transmission of any infectious disease should be addressed by public-health mechanisms rather than the law.

Secondly, the report recommends ensuring that the same conditions are applied cross-country to consider whether prosecutions should proceed in cases where people haven’t disclosed that they are living with HIV. This recommendation would address the disparities in prosecutions of HIV nondisclosure and reduce various harms to people living with HIV.

Finally, the report recommends a review of all past convictions for HIV nondisclosure and increased access to anonymous testing. These measures are significant in beginning to redress the harms introduced by the current legal approach.

But to fully do that, Canada must heed all the experiences of women living with HIV.

US: Charges of HIV exposure for spitting, despite absence of risks, prove that Georgia needs to modernise its HIV laws

HIV-positive man’s arrest for spitting called ‘plain and simple discrimination’

A 31-year-old man in Rome, Ga., was charged with exposing police officers to HIV after allegedly spitting on them, which HIV activists said highlights why the state needs to fix its HIV laws.

Authorities said JS was swearing at people and making obscene gestures near the intersection of Maple Road and Park Road on Aug. 25, according to the Marietta Daily Journal. S allegedly spat on officers after being apprehended by the Floyd County Police Department.

S was charged with criminal trespass, two misdemeanor counts of disorderly conduct, three misdemeanor counts of willful obstruction of police officers and three felony counts of assault on police officers by someone with HIV, according to the Floyd County Sheriff’s Office. He is being held without bond in the Floyd County Jail.

HIV cannot be transmitted by spitting, according to the Centers for Disease Control & Prevention. S’s arrest highlights why Georgia needs to modernize its HIV laws, according to Nina Martinez of the Georgia HIV Justice Coalition.

“In 2019, it’s not breaking news that saliva does not transmit HIV,” she told Project Q Atlanta. “And yet, the punishment for a person living with HIV who spits on a police officer is potentially 20 times greater than that for someone not living with HIV who commits the same offense. This is state-sanctioned discrimination, plain and simple.”

Malcolm Reid, another member of the Georgia HIV Justice Coalition, agreed with Martinez.

“Although we don’t know much about this specific case, we do know that there is no chance of HIV transmission through spit,” he said. “This proves once again that the laws in Georgia need to catch up to science. HIV is not a crime.”

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure. Activists and lawmakers have tried for years to modernize state law by decriminalizing HIV.

A Republican lawmaker introduced an HIV decriminalization bill on the final day of this year’s legislative session. It will be back in the 2020 session in January.

An Athens man was arrested in July after allegedly having sex with a woman without informing her he had HIV. He was charged with reckless conduct by a person with HIV. He remains in Athens-Clarke County Jail nearly two months later on a $3,000 bond, according to the Clarke County Sheriff’s Office.

A gay Atlanta man was arrested for HIV exposure in South Carolina in 2015. He claimed he disclosed his status before having sex with the alleged victim. The charges were later dropped.

Uganda: Recent case of woman, unjustly jailed for allegedly injecting a baby with HIV, highlights the need to act against HIV criminalisation

Woman Who was Wrongfully Jailed for Premeditated HIV Infection Speaks Out

“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

By Kampala Post Reporter

On the evening of August 29, 2019, Sylvia Komuhangi walked out of the Gulu High Court premises accompanied by a female prisons security official. She had a smile plastered on her face. It was not a beaming smile. It was a restrained smile, the kind of smile that projects more relief than joy.

The 32-year-old secondary school teacher, who was wrongfully sentenced to two years in jail for injecting a baby with HIV-infected blood, walked a 50-meter stretch to the parking lot area where her lawyer, Immaculate Owomugisha waited. Komuhangi and Owomugisha shook hands, hugged and clasped their hands around each other’s waist for a while. The journalists present at court took pictures of the two, and then Owomugisha stepped back to let Komuhangi share her thoughts with the media.

With half a dozen video cameras and audio recorders in position, Komuhangi responded to the first question asking how it felt to regain her freedom after eight months in Kitgum Central prison, 805 kilometers away from her home in Rukungiri.

“I feel so happy,” she said. “It was so difficult.”

A Friendly Visit Gone Wrong

On December 27, 2018, Komuhangi was arrested and charged at Kitgum Magistrate’s Court with the offence of committing a “negligent act likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda.”

During her trial, at the Magistrate’s Court, the prosecution stated that at about 9 P.M. on December 26, 2018, Komuhangi carried the alleged victim away from her babysitter to the bedroom and then returned later, with the baby crying.

The prosecution continued that when the mother, Eunice Lakot, examined her baby, she found swellings in both armpits. She took the baby to Kitgum hospital for diagnosis, where doctors reportedly confirmed that the swellings were caused by injections. Consequently, a medical professional tested Komuhangi for HIV, and she was found positive. Next, the child was given Post-exposure Prophylaxis (PEP), an antiretroviral medication that prevents infection to anyone exposed to HIV during the first ninety-six hours. Subsequently, Komuhangi was arrested.

After regaining her freedom, Komuhangi narrated that she had traveled to Uganda’s northern region from the Kampala for a tour in late December 2018, and spent several nights at a friend’s house in Kitgum Town. After a visit to the Kidepo Valley National Park, she returned to Kitgum Town to find her friend’s home surrounded by local authorities. “We were arrested there and then,” she narrates.

The conviction was handed out by the Chief Magistrate of Kitgum, Hussein Nasur Ntalo, on Thursday, July 4th. On Komuhangi’s release, Lakot, the mother of the baby, shared that the most recent results showed that her baby is HIV negative. Lakot, nevertheless, said she was not happy with the High Court’s ruling, but the baby’s maternal grandmother, Rose Oryem, said they would not challenge the court’s decision.

Komuhangi’s story was covered by leading media houses in the country, including the Daily Monitor, the country’s leading independent media house. It caused a public uproar in a country whose laws make it a crime to “willfully and intentionally” transmit HIV and also give the legal right to medical staff to disclose a patient’s HIV status to others without his or her consent.

In fact, Komuhangi is not the first convict as a result of those laws. In 2014, a 64-year-old nurse in Kampala, Rosemary Namubiru, was accused of injecting a toddler with her HIV-positive blood in the process of administering treatment. Namubiru was put on trial amid pressure from several local and international organisations, including the Global Commission on HIV and the Law, who castigated the quality of the media reporting in the immediate aftermath of her arrest.

“The media engaged in unabashed and unverified sensationalism. Rosemary was branded a ‘killer,’ guilty of maliciously and intentionally attempting to transmit her own HIV infection to a child,” said the Commission’s statement.

“Subsequent to those allegations, the baseless rumour-mongering escalated: various news reports branded Rosemary a fiendish serial offender; a nurse who was mentally ill; a nurse without credentials…. Sadly, we’re convinced that the charge was originally laid because of the media frenzy,” added the statement.

Taking Action Against HIV Criminalization

When Komuhangi’s case hit the media headlines, it took a similar tone to that of Namubiru. As a result, it caught the eye of the Uganda Network on Ethics, Law and HIV/AIDS (UGANET), a non-governmental organisation whose goal is to advocate for the development and strengthening of an appropriate policy, legal human rights and ethical response to HIV/AIDS in Uganda.

Owomugisha, who is the UGANET head of advocacy and strategic litigation, says cases that involve HIV are not subjected to sufficient rigor, with sentiments often carrying the day at the expense of proper investigation, prosecution, and objectivity in court.

“Most convictions are based on unfair, inaccurate and overblown facts,” she says. “The media usually joins to hype up stories [and] this sensationalism crowds out good judgment, resulting in a miscarriage of justice.” Speaking particularly about Komuhangi’s case, Owomugisha said the media continued a pattern of HIV criminalization by condemning the suspect even before the initial trial.

“Several media houses were set on the loose name-calling such as “murderer and killer.” The media buzz was everywhere, including on the radio airwaves for days. This undressed Komuhangi of all dignity,” she said.

UGANET decided to offer legal representation to Komuhangi, resulting in a swift appeal against her conviction. Within two months from the first time the appeal was first lodged before the Gulu High Court, she had regained her freedom. Justice Stephen Mubiru, who handled the appeal, quashed the conviction, saying that forensic tests showed that DNA traces found on the cloth that Komuhangi used to wrap the baby belonged to her but did not contain any blood.

“I could not find any connection between her piece of cloth and the blood said to have been injected into the baby because the swelling found on the baby could have been a mere rash,” he added, according to a detailed report in the Daily Monitor newspaper.

Another of Komuhangi’s lawyers, Louis Odong, said the ruling sent a message to people who criminalize HIV victims not to engage in the practice while Owomugisha added that the court’s decisions had restored “dignity to Sylvia Komuhangi and many like her.”

“We commend the court decision for setting an example that if courts scratched below the surface news, they would realize HIV positive status alone does not equate to malicious intent,” she said.

The Executive Director of UGANET, Dora Kiconco Musinguzi, whose organisation works with 32 other HIV law and human rights groups, said the criminalization of people living with HIV, not only undermines the HIV response by compromising public health and human rights but that there is also no evidence of benefit from those laws.

“As a community of HIV actors, we remind the nation that we cannot end AIDS, or reach epidemic control with HIV criminalization coupled with heightened HIV discrimination. Human rights and dignity need to be accorded to all. We need to stop stigma and end HIV criminalization,” she stated.

Kiconco said that in light of court’s decision, the community of people living with HIV and organisations that UGANET works with recommend that the Constitutional Court should fast track the hearing of Petition No. 24 of 2016, through which their issues were presented to the country’s second-highest judicial organ for interpretation.

“More lives continue to be adversely affected by the HIV criminal law. Justice delayed is justice denied,” she added. Kiconco also called on Parliament to re-visit the HIV criminal laws with a view to law reform as “some of the laws are unfair, vague and will encourage trumped-up charges often.”

She said the law had been diverted from its original intent to create an environment where HIV is criminalized and where complications arise for persons living with HIV. The final appeal from Kiconco was directed to actors at all levels of the justice sector to increase rigor while handling HIV-related cases and to the media fraternity to exercise restraint while reporting on matters regarding the HIV criminal law.

“Our Constitution espouses a key principle – innocent until proven guilty. Abusing victims with names such as ‘monster and murderer’ is wrong. This jeopardizes their chance for a fair hearing,” she emphasized.

US: “People living with HIV are being prosecuted because the law is not keeping pace with science”

Living With H.I.V. Isn’t a Crime. Why Is the United States Treating It Like One?

States’ nondisclosure statutes, used to persecute marginalized populations, discourage testing and treatment.

By Chris Beyrer and Robert Suttle

Dr. Beyrer is an infectious disease epidemiologist. Mr. Suttle was convicted under Louisiana’s H.I.V. criminalization statute.

Michael Johnson, a former college athlete convicted in 2015 of not disclosing his H.I.V.-positive status to sexual partners, was released on parole from a Missouri prison last month. Mr. Johnson, who is gay and black, had maintained his innocence, and there was no proof that he had transmitted the virus. And yet that didn’t seem to matter in the court of public opinion, or in the court of law.

On Dec. 20, 2016, a Missouri appeals court ruled that Mr. Johnson’s trial had been “fundamentall y unfair.” H.I.V. nondisclosure is inherently difficult to prove yet seemingly easy to condemn, as shown time and again by judges and juries worldwide. Nowhere is this truer than in the United States, where people with H.I.V. are still being prosecuted under outdated or misapplied laws.

During the early years of the AIDS epidemic, an H.I.V. infection was tantamount to a death sentence. Through major advances in antiretroviral therapies, H.I.V. is now a manageable, chronic condition. A person whose infection is newly diagnosed can expect to live a near-normal life span, and most seropositive people will never progress to further AIDS-defining complications.

Today we also know much more about how difficult H.I.V. is to spread. When used correctly, condoms are highly effective means of prevention. Research has also shown that when people are treated with antiretroviral drugs so that their viral load cannot be detected by standard blood tests, the virus cannot be transmitted to sexual partners. This true of both heterosexual and male same-sex couples. Simply put, scientific evidence on actual harm and transmission does not support the singling out of people living with H.I.V. through the heavy hand of criminal law.

Mr. Johnson’s trial was rightly deemed unjust due to prosecutorial misconduct. But injustice remains deeply entrenched within the society that created the laws that criminalized his actions in the first place. At least 29 states, mostly in the Midwest and Deep South, have laws that make H.I.V. nondisclosure, exposure or transmission a crime.

These laws constitute one more layer of marginalization for those whom the criminal justice system already disproportionately prosecutes, convicts and harshly sentences: black people, trans women, migrants, people who sell sex, people who inject drugs and L.G.B.T.Q. youths. Such laws have not been shown to reduce H.I.V. transmission, but they do discourage those at risk from getting tested, which undermines public health rather than protects it.

The United States has the unfortunate distinction of being among the countries most aggressively prosecuting people living with H.I.V., after Russia and Belarus, according to a recent report by H.I.V. Justice Worldwide. In these places, people living with the virus could be just one disgruntled partner away from finding themselves in a courtroom.

In the United States there are thousands of cases where H.I.V.-specific charges were filed, or people faced heightened charges or punishments simply because they had the virus. We don’t know how many others have been threatened or blackmailed with criminal prosecution — the law becomes a weapon in abusive relationships — but those numbers are surely considerable. In almost all cases, this all-too-real risk is greater than any (highly unlikely) risk of actual H.I.V. transmission.

Prompted by concerns that the law was being applied contrary to scientific evidence, last summer a group of 20 H.I.V. scientists from around the world issued an expert consensus statement intended to assist experts involved in cases of alleged H.I.V. exposure, transmission or nondisclosure. They urged governments and people working in the justice system to ensure that the significant advances in H.I.V. science are taken into account in H.I.V.-related legal cases.

As the global scientific community continues to learn more about the disease and its transmission risks, lawmakers and criminal justice systems must similarly evolve their thinking to align with evidence, not fear. Scientists and clinical providers have obligations here, too. They should use their knowledge to support law reform efforts and provide expert testimony, using the consensus statement to educate and advocate change. No one should be forced to endure what Michael Johnson, and so many others living with H.I.V., have had to suffer.

Chris Beyrer is a professor in public health and human rights at the Johns Hopkins Bloomberg School of Public Health.

Robert Suttle is the assistant director of the Sero Project, which works to end unfair H.I.V.-related prosecutions.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.

US: Laws should not penalise marginalised populations that might lack access to drugs, instead HIV exposure should be decriminalised altogether unless there was clear intent to infect someone

Sex with HIV still a crime? Updated laws divide advocates

ATLANTA (AP) — As Sanjay Johnson describes it, his sexual encounter with James Booth on Oct. 2, 2015, was a one-night stand. But it would bind the men inextricably two years later, when Booth walked into an Arkansas police station and accused Johnson of exposing him to HIV.

Little Rock prosecutors pursued a criminal charge against Johnson even though a doctor said he couldn’t have transmitted HIV to Booth because he was on medication that suppressed his virus.

“It really tested me just to keep going,” Johnson said about his criminal case, which ended this year. “Last year, I thought of suicide.”

Booth said he deserved to know about Johnson’s HIV status regardless of any medical treatment.

“I could have protected myself,” he said.

Roughly 20 states have laws like the one in Arkansas that make it a crime for people with HIV to have sex without first informing their partner of their infection, regardless of whether they used a condom or were on medication that made transmission of the disease effectively impossible.

Health experts and advocates for HIV patients say that rather than deterring behavior that could transmit the virus, such laws perpetuate stigma about the disease that can prevent people from getting diagnosed or treated.

North Carolina and Michigan recently updated their HIV policies to exempt HIV patients from prosecution if they’re on medication that has suppressed their virus. A Louisiana law that took effect in August 2018 allows defendants to challenge a charge of exposing someone to HIV by presenting evidence that a doctor advised them they weren’t infectious.

Many advocates say the new policies create an underclass of people who lack access to drugs and are therefore still vulnerable to prosecution. They say states should instead decriminalize HIV exposure altogether unless the person intends to infect someone.

“We shouldn’t be creating laws that create additional strata and divisiveness among already marginalized populations,” said Eric Paulk, deputy director of Georgia Equality.

The fight comes as the Trump administration aims to eradicate HIV — the virus that causes AIDS — by 2030.

The laws’ defenders point to statistics showing tens of thousands of new HIV diagnoses each year and say that although the disease may not be a death sentence anymore, it still requires a lifetime of expensive medical treatment.

The Arkansas attorney general’s office filed a brief last year in Johnson’s case rejecting the argument that criminalizing HIV exposure no longer served any purpose.

“HIV remains a serious threat to public health,” it wrote.

In Booth and Johnson’s case, they met through a gay dating app.

According to Booth, Johnson denied he was HIV positive before they had unprotected sex. Johnson, 26, said he didn’t remember discussing his HIV status.

A plea deal that prosecutors offered Johnson shows officials were mindful of advances in the science around HIV, said John Johnson, chief deputy prosecutor in Pulaski County. The deal allowed the accused man to avoid prison time and have his record expunged.

But prosecutors also wanted to promote the importance of disclosing HIV to potential sexual partners, he said.

“The flip side of this coin is that there is a victim to this crime,” the prosecutor said.

People with HIV who are on antiretroviral drugs that keep their viral load below a specific threshold have “effectively no risk” of transmitting HIV, according to the federal Centers for Disease Control and Prevention. But as of 2016, only a little more than half of the estimated 1.1 million people living with HIV in the U.S. were virally suppressed, the CDC says.

Sarah Lewis Peel, spokeswoman for North Carolina’s Department of Health and Human Services, said in an email that her state’s new policy ensures HIV prevention and control strategies are “firmly rooted in science.” Responding to criticism that the change leaves some people behind, she listed multiple programs that cover HIV medication.

Critics say states should decriminalize HIV exposure altogether unless there’s intent to infect someone. That would reflect the reality that HIV is manageable and not easy to contract, dozens of advocacy groups said in a July 2017 consensus statement.

Georgia may be headed in that direction. Pending legislation would require intent to transmit HIV for a prosecution.

It’s not clear how many people have faced prosecution under HIV laws around the country, but data from two states analyzed by a think tank at the University of California, Los Angeles, School of Law indicate they aren’t isolated occurrences. Florida and Georgia authorities made nearly 1,500 arrests on suspicion of HIV-related crimes from the 1980s through 2017, hundreds of which resulted in convictions, according to the Williams Institute.

Booth said he tested positive for HIV after his encounter with Johnson. Johnson’s doctor, Nathaniel Smith, told The Associated Press that Booth couldn’t have contracted HIV from Johnson because a lab test around the time of their encounter showed Johnson’s viral load was too low. Smith, who testified in Johnson’s case, also directs the Arkansas Department of Health.

Johnson pleaded no contest in February to aggravated assault as part of his deal with prosecutors and was sentenced to five years’ probation. He would have faced up to 30 years behind bars and the possibility of having to register as a sex offender had a jury convicted him of the HIV-exposure charge.

He has a new job helping people manage their diets but said his arrest and prosecution left a scar.

“It did make me more closed off,” he said.

Booth said he has sympathy for what Johnson went through but stands by his decision to tell police.

“It was something that needed to be done,” he said.

Mexico: Mexican Network of Organisations against HIV criminalisation calls on Veracruz State Congress to stop proposed criminalisation legislation

NGOs call local deputy to stop proposal that criminalizes people with HIV

Google translation, scroll down for Spanish article

On April 30, 2018, the Supreme Court of Justice of the Nation ruled in favour of the Unconstitutionality Action 139/2015 promoted by the National Human Rights Commission

The Mexican Network of Organizations Against HIV Criminalization, called upon the deputy chairwoman of the Administration and Budget Commission of the Veracruz State Congress, Jessica Ramírez Cisneros, to stop the legislative process of her proposal to reform articles 157 and 158 of the Criminal Code of the State , where it is intended to impose from six months to five years in prison and a fine of up to 50 Units of Measurement and Update (UMA) who, fraudulently, endangers of “contagion” of a serious illness to another person

In this, it is considered among these serious and communicable diseases to “syphilis, gonorrhea, hepatitis B and C, herpes, HIV, tuberculosis” , which contradicts the historical ruling of the SCJN that invalidates the modification of the annulment of article 158.

Through a letter addressed to the legislator to channel their efforts for human rights and encourage the repeal of article 158 of the Criminal Code for the Free and Sovereign State of Veracruz of Ignacio de la Llave.

Remember that on April 30, 2018, the Supreme Court of Justice of the Nation ruled in favor of the Unconstitutionality Action 139/2015 promoted by the National Human Rights Commission , at the request of the Multisectoral Group on HIV / AIDS and STIs of the State of Veracruz, against the amendment to article 158 of the Criminal Code for the Free and Sovereign State of Veracruz of Ignacio de la Llave, in whose content the penalty for the offense of alleged “contagion” (transmission should be said) was added to who has sexually transmitted infections, specifying HIV.

ONGs llaman a diputada local parar propuesta que criminaliza a personas con VIH

El 30 de abril de 2018, la Suprema Corte de Justicia de la Nación falló a favor de la Acción de Inconstitucionalidad 139/2015 promovida por la Comisión Nacional de los Derechos Humanos

La Red Mexicana de Organizaciones contra la Criminalización del VIH, hizo un exhorto a la diputada presidenta de la Comisión de Administración y Presupuesto del Congreso del Estado de Veracruz, Jessica Ramírez Cisneros, detener el proceso legislativo de su propuesta para reformar los artículos 157 y 158 del Código Penal del Estado, en donde se pretende imponer de seis meses a cinco años de prisión y multa de hasta 50 Unidades de Medida y Actualización (UMA) a quien, dolosamente, ponga en peligro de “contagio” de una enfermedad grave a otra persona.

En esta, se considera entre dichas enfermedades graves y transmisibles a la “sífilis, gonorrea, hepatitis B y C, herpes, VIH, tuberculosis”, misma que contradice el fallo histórico de la SCJN que invalida la modificación del anula el artículo 158.

A través de una carta dirigida a la legisladora canalizar sus esfuerzos en pro de los derechos humanos y fomente la derogación del artículo 158 del Código Penal para el Estado Libre y Soberano de Veracruz de Ignacio de la Llave.

Recuerdan que el 30 de abril de 2018, la Suprema Corte de Justicia de la Nación, falló a favor de la Acción de Inconstitucionalidad 139/2015 promovida por la Comisión Nacional de los Derechos Humanos, a solicitud del Grupo Multisectorial en VIH/sida e ITS del Estado de Veracruz, en contra de la reforma al artículo 158 del Código Penal para el Estado Libre y Soberano de Veracruz de Ignacio de la Llave, en cuyo contenido se agregó la sanción por delito de presunto “contagio” (debería decirse transmisión) a quien presente infecciones de transmisión sexual, especificando VIH.

[Update]Zimbabwe: Bill to repeal legal provision that criminalises “wilful” transmission of HIV now set to be tabled before Parliament for debate

Source: Chronicle, July 22,2019

Government moves to decriminalise HIV transmission

Zvamaida Murwira, Harare Bureau

GOVERNMENT has moved to decriminalise wilful transmission of HIV to a partner after it gazetted the Marriages Bill that seeks to repeal a legal provision that makes it an offence.

The Marriages Bill, which was gazetted last Friday, decriminalises the transmission of HIV and Aids to another partner, as Government seeks to keep abreast with international standards.

The Bill is now set to be tabled before Parliament for debate.

Section 53 of the Marriages Bill repealed Section 79 of the Criminal Law (Codification and Reform) Act which makes it an offence to transmit HIV to a partner.

Section 79 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) titled “Deliberate transmission of HIV” states that, “(1) any person who

(a) Knowing that he or she is infected with HIV; or

(b) realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.”

Early this year, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi told Parliament that the global thinking was that the law stigmatised people living with HIV and Aids.

He said initially when the law was enacted, the thinking was that it would help to fight the spread of the disease by criminalising those that transmit it to partners willingly.

Accused persons that have been charged under the law were alleged to have unprotected sex with their spouses knowing that they were infected with HIV.

Proponents who argued for the abolishment of the law argued that at present medical evidence did not determine which of the adult partners was infected first if one was not a virgin at the point of the alleged transmission.

In the past, those charged under the law have challenged the constitutionality of Section 79 of the Criminal law, arguing that their right under section 23 of the Constitution not to be discriminated against on any basis including HIV and Aids status was being violated.

They also argued that their right to protection of the law under section 18 was being violated because the offence in question was so wide, broad and vague.

The challenge to the constitutionality of this offence was focused on the species of this offence requiring only that when the accused had sex with another person, the accused realised the real risk or possibility that he or she was infected with HIV and that there was a real risk that the other person will be infected.

Counsel for the applicants argued that this formulation of the offence violated the constitutional right to protection of law as it was conjectural and vague.

They contended that innocent persons were in danger of being convicted under this provision.

It was argued that there were other ways of HIV and Aids transmission like victims of syringes known to have been contaminated with HIV.

Those who called for the repeal of the law also cited Justice Edwin Cameron, an HIV-positive Justice of the Supreme Court of Appeal in South Africa who said:

“The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.”

In the past, UNAIDS organisation has urged “governments to limit criminalisation to cases of intentional transmission.”

Source: Bulawayo 24 news, May 11, 2019

HIV/Aids transmission law repeal approved by Cabinet

The Marriages Amendment Bill which will repeal a legal provision that criminalises “wilful” transmission of HIV to a partner has been approved by Cabinet.

Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said a Clause in the Criminal Law (Codification and Reform) Act that criminalises transmission of HIV by one partner to another would be repealed.

Minister Ziyambi said this yesterday in Harare while responding to questions from journalists during a post Cabinet briefing which was chaired by Environment, Tourism and Hospitality Industry Minister, Prisca Mupfumira.

He said the Marriages Amendment Bill which was approved by Cabinet would also repeal that Clause of the Criminal Law (Codification and Reform) Act.

“Yes, indeed Cabinet approved that we repeal the Criminal Law (Codification and Reform) Act where it speaks about these criminalisation so we will repeal the Criminal Code in this regard,” said Minister Ziyambi.

The Marriages Amendment Bill will soon be gazetted before it is tabled before Parliament for debate.

The decision to decriminalise transmission of HIV dovetails with what Minister Ziyambi told Parliament earlier this year.

In March, Minister Ziyambi made an assurance to repeal the Clause during a question and answer session after Zengeza West legislator Mr Job Sikhala (MDC-Alliance) had asked if Government was considering amending the law which criminalise transmission of HIV.

“When this legislation came into effect, the thinking then was that we need to control the spread of HIV by criminalising those who transmit it to partners knowingly. But the global thinking now is that that law stigmatises people living with HIV and studies have shown that it does not produce the results that were intended. What the Ministry is going to do is to repeal that section of the law and ensure that we keep up with modern trends in the world,” said Minister Ziyambi in the National Assembly.

He said the fastest way of doing it was to incorporate the provision in the Marriages Amendment Bill.

Earlier on Minister Mupfumira said Cabinet approved the Coroner’s Office Bill.

She said the Bill sought to help safeguard human lives through facilitating specialising investigation of preventable deaths and identification of deceased persons.

“The country has previously relied on expatriates for the specialised investigations required to conclude such cases, which arrangement has now become unsustainable. In more precise terms, the Bill will establish an efficient coroner system to look into the cause of death in the following circumstances among deaths that occur without a medical doctor’s attention, surgical operation table deaths and deaths while in jail, police custody or other central authority control,” said Minister Mupfumira.

US: Rep. Tracy McCreery plans to file new bill again next year to change Missouri’s HIV criminalisation statute

Next Steps: ‘Decriminalizing’ HIV in Missouri

As elected officials vacate Jefferson City and return to their families and jobs, The Missouri Times is bringing you updates on big initiatives that didn’t quite make it through before May 17. The “Next Steps” series will showcase progress made on certain legislative issues and a look ahead to what could come.

Missouri’s statute regarding people living with HIV do not reflect “current reality,” according to lawmakers and advocates working to “decriminalize” the disease.

Missouri statute mandates an individual who is knowingly infected with HIV not act in a “reckless” way that could expose another person to the disease without his or her knowledge or consent. Violating the statute could result in a Class A or B felony, depending on if another individual contracted HIV.

The way the statute is written deters people from finding out his or her status and seeking appropriate treatment, advocates say. The statute also suggests an HIV diagnosis is equivalent to a death sentence — but with modern science and medicine, that’s not necessarily the case.

“We need to make sure our laws reflect our current reality,” Rep. Tracy McCreery, a Democrat from the St. Louis area, told The MIssouri Times. “Now, people who are living with HIV live very full, healthy lives. We feel like the statutes need to be updated to be medically accurate so prosecutors have tools to use at their disposal that reflect the current reality of that disease.”

Both McCreery and GOP Rep. Holly Rehder filed bills in the 2019 legislative session that would have changed the state’s statute regarding people with HIV to base prosecution more on an “intent” basis. Although their bills had minor differences, McCreery said the fact both women filed and supported the legislation is indicative that the need for change is bipartisan.

What happened to legislative efforts this year?

Rehder’s HB 167 made it to the House floor where it was debated before it eventually stalled. The bill sought to tweak the criminal statute for someone who exposed another individual to HIV. It would have also ensured protections for someone who took “practical means” to prevent the transmission of the disease such as through compliance with medical treatment or the use of a condom, for some examples.

“Right now, Missouri laws are medically inaccurate and stand as a disincentive to know your status if you have HIV, even though with proper treatment, a person’s life expectancy is almost equal to someone without the virus,” Rehder previously told The Missouri Times.

McCreery’s HB 166 made it through the House Health and Mental Health Policy Committee but did not progress further.

Both bills would apply the law to all serious infectious or communicable diseases instead of just HIV.

Stil, McCreery said the legislative efforts saw success — particularly from an educational standpoint as lawmakers were especially engaged in debate on the House floor before the session ended — and has set them up in a better position for the upcoming session.

“Although we ran out of time with this session with the bill … I think we’re in a much better place starting out in January because now that we’ve had a debate on this bill on the floor, I feel like a lot more colleagues are more supportive of the legislation now and had an ‘aha’ moment on the floor when they realized current statutes were written so long ago and are not based on accurate science,” McCreery said. “I feel like that was a victory.”

“Ultimately we’re both trying to get at the same things: We both think HIV should be decriminalized because if we do that, Missourians would be encouraged to know their status, and then they wouldn’t be facing the possibility of criminal charges by knowing their status,” she added.

So what’s next?

The momentum is there; they just need to capitalize on it, McCreery said of herself and Rehder for the upcoming session. She said she plans to file a similar bill again next year and doesn’t doubt Rehder will too. (Rehder did not respond to a request for comment for this story.)

“We feel we have done a great job of not only getting the conversation started, but we now believe we truly have started to break down the stigma surrounding HIV,” McCreery said.

Ahead of next session, members of the nonprofit Empower Missouri plan to grow the Missouri HIV Justice Coalition as well as meet with prosecuting attorneys and lawmakers — particularly those who sit on committees that might hear the legislation. The organization is also seeking a Senate sponsor for the legislation in the coming session.

“What we have does not work, and it’s important that we change it,” Jeanette Mott Oxford, executive director of Empower Missouri, told The Missouri Times.

Oxford maintained there is still a stigma surrounding HIV that has fueled laws like the one currently on the books in Missouri.

“There are certain things where the public perception works against good public policy, and this is one of those areas where our current law actually rewards ignorance,” Oxford said. “We want to create a world in which everybody is anxious to know their status, will go be tested, and trust that the public health officials won’t go help prosecute them.”

‘Show-Me’ statistics

More than 12,000 people in Missouri are living with HIV, according to data from AIDSVu, a product of Emory University’s Rollins School of Public Health. Caldwell, Jackson, and Mississippi Counties reported the most number of cases per 100,000 people in 2016.

It affects mostly men and minorities in Missouri: More than 46 percent of people living with HIV in Missouri in 2016 are Hispanic or Latinx, nearly 44 percent are black, and more than 5 percent are white. Additionally, more than 82 percent of people living with HIV in Missouri are men.

The Centers for Disease Control and Prevention (CDC) designated Missouri as one of seven states with a “substantial rural burden” for people living with HIV. Within the state, the nation’s health protection agency flagged more than a dozen counties considered vulnerable or at-risk for outbreaks: Bates, Cedar, Crawford, Hickory, Iron, Madison, Ozark, Reynolds, Ripley, St. Francois, Washington, Wayne, and Wright.

Kaitlyn Schallhorn

Kaitlyn Schallhorn is a reporter with The Missouri Times. She joined the newspaper in March 2019 after working as a reporter for Fox News in New York City. Throughout her career, Kaitlyn has covered political campaigns across the U.S. and humanitarian aid efforts in Africa. She is a native of Missouri who studied journalism at Winthrop University in South Carolina. Contact Kaitlyn at kaitlyn@themissouritimes.com.