Canada: Criminalisation of HIV non-disclosure to be addressed if government is reelected

Liberals hope to deal with HIV non-disclosure issue if re-elected: Lametti

TORONTO — The Liberals hope to address the if re-elected in the fall, the federal justice minister said Friday as advocacy groups pushed the government to make changes to the law.

HIV non-disclosure has led to assault or sexual assault charges because it’s been found to invalidate a partner’s consent — the rationale being that if someone knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.

Advocates say the justice system lags behind the science on the issue, with a growing body of evidence saying there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.

A parliamentary committee has been examining the issue for months and is expected to release a report with recommendations next week. Justice Minister David Lametti said the Liberals want to address the matter but won’t have time to act before the October election.

“Our legislative runway is over,” Lametti said after speaking at a symposium on HIV criminalization in Toronto. “The house will rise at some point, perhaps as early as next week … I hope that our government will be re-elected so we’ll be able to hit the ground running.”

Lametti said the Liberals, if returned to power, could explore options that include drafting a criminal law provision that targets intentional transmission of HIV.

“We need to look at the criminal law … and look at what’s within our jurisdiction … and trying to achieve that balance, as a number of people in the room have stated, in trying to draft a criminal law provision which targets only intent and not criminalize everything else,” he said.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, said he’s concerned that the timing of the committee’s report — so close to the federal election — could mean its recommendations get lost.

“It’s unfortunate that it’s taken this long, several-year process since the last election, to get to the point of actually having a committee report with some recommendations that could then inform possible legislation,” he said. “The issue, however, isn’t going to go away for people living with HIV … we will continue to press for Criminal Code reform.”

In 2017, then-federal justice minister Jody Wilson-Raybould said she would examine how the criminal justice system dealt with people who do not disclose their HIV status to sexual partners.

Late last year, the government instructed federal prosecutors in the North that they should no longer prosecute anyone for not disclosing their HIV status to a sex partner where there is no risk of transmitting the virus. The rules apply only in the territories where federal prosecutors have jurisdiction.

Elliott said he’s hopeful that the Justice and Human Rights committee’s report will include a recommendation to establish a consistent policy for prosecutors at the provincial level.

Agencies advocating for de-criminalization of HIV non-disclosure agree that the law needs to change and it is a public health issue, not something that should be dealt with as sexual assault, he said.

“There is just a vast overreach in the Criminal Code as it’s been interpreted and applied,” he said. “Parliament needs to fix that and that will remain the case after the coming election.”

UNAIDS welcomes the decision of the Constitutional Court of Colombia to remove HIV criminalisation article

GENEVA, 13 June 2019—UNAIDS welcomes the decision of the Constitutional Court of Colombia to remove the section of the criminal code that criminalizes HIV and Hepatitis B transmission. Overly broad criminalization of HIV transmission is ineffective, discriminatory and does not support efforts to prevent new HIV infections.

“Public health goals cannot be pursued by denying people their individual rights. The decision by the Constitutional Court of Colombia is a concrete step to ensure the law works for the HIV response, and not against it,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS will continue to advocate for a protective legal environment and the removal of punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV.”

The Constitutional Court of Colombia established that the law violated the principles of equality and non-discrimination, as it singled out people living with HIV, stigmatising them and limiting their rights. The Court established that the law created a differential treatment that is not reasonable —and therefore constituted discrimination. The Court further established that such law violated the sexual rights of people living with HIV and it was ineffective to meet any public health objectives.

Overly broad and inappropriate application of criminal law against people living with HIV remains a serious concern across the globe. Nine jurisdictions in South and Central America and at least 77 others worldwide still criminalize HIV non-disclosure, exposure and transmission.

UNAIDS filed an intervention before the Constitutional Court of Colombia indicating that no data support the broad application of criminal law to HIV transmission to prevent HIV transmission. Rather, such application risks undermining public health goals and human rights protections. UNAIDS strongly commends the decision taken by the Constitutional Court to restore the dignity and rights of people living with HIV in Colombia.

In 2018, UNAIDS, the International Association of Providers of AIDS Care and the International AIDS Society convened an expert group of scientists who developed an Expert Consensus Statement on the Science of HIV in the Context of Criminal Law. The statement calls on the criminal justice system to ensure science informs the application of the law in criminal cases related to HIV.

UNAIDS 

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram andYouTube.  

Colombia: Constitutional Court overturns HIV criminalisation law

Court strikes down article criminalising the spread of HIV
Google translation, for article in Spanish, scroll down.
 
Among the reasons for the decision, the high court stated that the rule “stigmatized” a population.
Three reasons led the Constitutional Court on Wednesday to overturn Article 411 of Law 599 of 2000, which penalized the spread of the Acquired Immunodeficiency Virus, HIV, and of Hepatitis B.
 
A first reason was that this rule was not a necessary and proportional measure. Second, it stigmatized a population. And the third is that there is another rule in the Penal Code that already typifies the spread of epidemics.
 
The Court’s decision accepted several of the plaintiff’s arguments. According to the plaintiff, the rule violated the rights to equality and restricted the free development of personality, in particular sexual freedom. 
 
The norm established that there would be a prison term of 6 to 12 years for those who, knowing they are HIV positive or sick with hepatitis B, “carry out practices by means of which they can contaminate another person, or donate blood, semen, organs or, in general, anatomical components”.
 
According to the lawsuit, this penalized the fact that a person living with these diseases had sex, and made it a crime regardless of whether that person took the preventive measures that make the transmission of diseases unlikely, such as antiretroviral treatments and others.
 
The plaintiff argued that, although the purpose of this measure was to protect public health, this did not justify prohibiting a population group from freely expressing its sexuality, and stressed that there would be no effect when there were consensual relationships in which measures were taken to prevent contagion.
 
Regarding the violation of equality, the lawsuit held that the article only referred to and penalized people with HIV or hepatitis B, and not others with potentially contagious and delicate diseases.
 
Other views
As part of the debate on this law, the Court received 15 statements from different organizations, ministries, universities, and even from the Constitutional Court of South Africa – against it – to take into consideration. And there were almost as many arguments in favour as against. 
 
The Colombian League for the Fight against AIDS supported the lawsuit because it considered that the law did violate rights, added that laws that penalize exposure to HIV leave the entire burden of prevention on people living with it and said that the real challenges were more education and better access to medical testing and counseling services.
 
The statement sent by the Ministry of Justice gave reason to the plaintiff that the rule was discriminatory because it was addressed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B. It also argued that there was no justification for the rule being for people with these two diseases and not for others who are aware of having different risks of infectious-contagious diseases. 
 
However, faced with the restriction of sexual freedom, the Ministry of Justice considered: the rule “does not violate the right to the free development of the personality, but is limited to establishing the penal consequences that its abusive and harmful exercise entails with respect to the rights of others and the community”. 
 
The Ministry of Health indicated, on the contrary, that the article did not violate either the right to equality or the free development of the personality and asked to leave it as it was.
 
The Attorney General’s Office agreed with the plaintiff that the rule punished the fact of having sex even when there was no transmission of the disease, which, says the Public Prosecutor’s Office, is not true. For the Attorney General’s Office, the rule was clear that in order for the crime to be configured there must be an intention to cause harm by engaging in practices that could end in contagion. The Public Prosecutor’s Office asked the Court to declare itself inhibited.

Corte tumba artículo que penalizaba la propagación del VIH

Entre las razones, el alto tribunal dijo que la norma “estigmatizaba” a una población.

Tres razones llevaron este miércoles a la Corte Constitucional a tumbar el artículo 411 de la ley 599 del 2000 que penalizaba la propagación del Virus de Inmunodeficiencia Adquirida, VIH, origen al sida, y la Hepatitis B.

Una primera razón es que esta norma no era una medida necesaria y proporcional. La segunda, estigmatizaba a una población. Y la tercera es que hay otra norma en el  Código Penal que tipifica ya la propagación de epidemias.

La decisión de la Corte acoge varios argumentos del demandante. Según este, la norma vulneraba los derechos a la igualdad y restringía el libre desarrollo de la personalidad, en particular, la libertad sexual. 

La norma establecía que habría prisión de 6 a 12 años para quien, sabiéndose portador del VIH o enfermo de hepatitis B, “realice prácticas mediante las cuales puedan contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.

De acuerdo con la demanda, esto penalizaba el hecho de que una persona que viviera con estas enfermedades tuviera sexo, y lo convertía en delito sin importar si se esa persona tomaba las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.

El demandante sostenía que, aunque el fin de esta medida era proteger la salud pública, esto no justificaba prohibirle a un grupo poblacional expresar libremente su sexualidad, y resaltaba que no habría afectación cuando se tuvieran relaciones consensuadas en las que se tomaran medidas para prevenir contagios.

Sobre la vulneración a la igualdad, la demanda sostenía que el artículo solo se refería y penalizaba a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.

 

Otras voces

Como parte del debate sobre esta norma, la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica- en contra-, para alimentar sus consideraciones. Y hubo casi tantos argumentos a favor como en contra. 

La Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que con la norma sí se vulneraban los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.

El concepto enviado por el Ministerio de Justicia le dio la razón al demandante en que la norma es discriminatoria pues estaba dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B. También argumentó que no se advertía justificación para que la norma fuera para personas con esas dos enfermedades y no para otras que conscientes de tener enfermedades infectocontagiosas riesgosas distintas. 

Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró: la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”. 

El Ministerio de Salud indicó, al contrario, que la norma demandada no vulneraba ni el derecho a la igualdad ni el libre desarrollo de la personalidad y pidió dejarla como estaba.

La Procuraduría coincidió con el demandante en que la norma castigaba el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma era clara en que para que se configurara el delito debía existir una intención de causar daño realizando prácticas que podían terminar en contagio. El Ministerio Público pidió a la Corte declararse inhibida.

New report analyses the successes and challenges of the growing global movement against HIV criminalisation

A new report published today (May 29th 2019) by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE provides clear evidence that the growing, global movement against HIV criminalisation has resulted in more advocacy successes than ever before. However, the number of unjust HIV criminalisation cases and HIV-related criminal laws across the world continue to increase, requiring more attention, co-ordinated advocacy, and funding.

Advancing HIV Justice 3: Growing the global movement against HIV criminalisation provides a progress report of achievements and challenges in global advocacy against HIV criminalisation from 1st October 2015 to 31st December 2018.

Although the full report is currently only available in English, a four-page executive summary is available now in English, French, Russian and Spanish.  The full report will be translated into these languages and made available later this summer.

The problem

HIV criminalisation describes the unjust application of criminal and similar laws to people living with HIV based on HIV-positive status, either via HIV-specific criminal statutes or general criminal or similar laws. It is a pervasive illustration of how state-sponsored stigma and discrimination works against a marginalised group of people with immutable characteristics. As well as being a human rights issue of global concern, HIV criminalisation is a barrier to universal access to HIV prevention, testing, treatment and care.

Across the globe, laws used for HIV criminalisation are often written or applied based on myths and misconceptions about HIV and its modes of transmission, with a significant proportion of prosecutions for acts that constitute no or very little risk of HIV transmission, including: vaginal and anal sex when condoms had been used or the person with HIV had a low viral load; oral sex; and single acts of breastfeeding, biting, scratching or spitting.

Our global audit of HIV-related laws found that a total of 75 countries (103 jurisdictions) have laws that are HIV-specific or specify HIV as a disease covered by the law. As of 31st December 2018, 72 countries had reported cases: 29 countries had ever applied HIV-specific laws, 37 countries had ever applied general criminal or similar laws, and six countries had ever applied both types of laws.

Cases infographic During our audit period, there were at least 913 arrests, prosecutions, appeals and/or acquittals in 49 countries, 14 of which appear to have applied the criminal law for the first time. The highest number of cases were in Russia, Belarus and the United States. When cases were calculated according to the estimated number of diagnosed people living with HIV, the top three HIV criminalisation hotspots were Belarus, Czech Republic and New Zealand.

Screenshot 2019-05-29 at 10.27.51The pushback

Promising and exciting developments in case law, law reform and policy took place in many jurisdictions: two HIV criminalisation laws were repealed; two HIV criminalisation laws were found to be unconstitutional; seven laws were modernised; and at least four proposed laws were withdrawn. In addition, six countries saw precedent-setting cases limiting the overly broad application of the law through the use of up-to-date science.

Screenshot 2019-05-29 at 10.29.06The solution

Progress against HIV criminalisation is the result of sustained advocacy using a wide range of strategies. These include:

  • Building the evidence base Research-based evidence has proven vital to advocacy against HIV criminalisation. In particular, social science research has been used to challenge damaging myths and to identify who is being prosecuted, in order to help build local and regional advocacy movements.
  • Ensuring the voices of survivors are heard HIV criminalisation advocacy means ensuring that HIV criminalisation survivors are welcomed and supported as advocates and decision-makers at all stages of the movement to end HIV criminalisation.
  • Training to build capacity Successful strategies have focused on grassroots activists, recognising that training events must be community owned and provide opportunities for diverse community members to come together, hold discussions, set agendas, and build more inclusive coalitions and communities of action.
  • Using PLHIV-led research to build community engagement capacity Research led by people living with HIV (PLHIV) provides a mechanism to engage communities to develop in-depth understanding of issues and build relationships, mobilise and organise.

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  • Using science for justice HIV criminalisation is often based on outdated and/or inaccurate information exaggerating potential harms of HIV infection. In addition, HIV-related prosecutions frequently involve cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven beyond a reasonable doubt.
  • Engaging decision-makers through formal processes Activists have worked to bring about legal and policy changes not only by lobbying local decision-makers, but also by engaging in other formal processes including using international mechanisms to bring HIV criminalisation issues to the attention of state or national decision-makers.
  • Acting locally and growing capacity through networks Many community organisations working to limit HIV criminalisation are actively supporting grassroots community advocates’ participation at the decision-making table.
  • Getting the word out and engaging with media Activists have employed diverse strategies to extend the reach of advocacy against HIV criminalisation including pushing the issue onto conference agendas, presenting messaging through video, working through digital media forums, using public exhibitions to push campaign messaging, and holding public demonstrations. Sensationalist headlines and misreporting of HIV-related prosecutions remain a major issue, perpetuating HIV stigma while misrepresenting the facts. Activists are endeavouring to interrupt this pattern of salacious reporting, working to improve media by pushing alternative, factual narratives and asking journalists to accurately report HIV-related cases with care.

Acknowlegements

Advancing HIV Justice 3 was written on behalf of HIV JUSTICE WORLDWIDE by the HIV Justice Network’s Senior Policy Analyst, Sally Cameron, with the exception of the Global overview, which was written by HIV Justice Network’s Global Co-ordinator, Edwin J Bernard, who also edited the report.

We would especially like to acknowledge the courage and commitment of the growing number of advocates around the world who are challenging laws, policies and practices that inappropriately regulate and punish people living with HIV. Without them, this report would not have been possible.

rcnf 346x228We gratefully acknowledge the financial contribution of the Robert Carr Fund to this report.

A note about the limitations of the data

The data and case analyses in this report cover a 39-month period, 1 October 2015 to 31 December 2018. This begins where the second Advancing HIV Justice report – which covered a 30-month period, 1 April 2013 to 30 September 2015 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

Similarly, despite the growing movement of advocates and organisations working on HIV criminalisation, it is not possible to document every piece of advocacy, some of which takes place behind the scenes and is therefore not publicly communicated.

Despite our growing global reach we may still not be connected with everyone who is working to end HIV criminalisation, and if we have missed you or your work, we apologise and hope that you will join the movement (visit: www.hivjusticeworldwide.org/en/join-the-movement) so we can be in touch and you can share information about your successes and challenges.

Consequently, this report can only represent the tip of the iceberg: each piece of information a brief synopsis of the countless hours and many processes that individuals, organisations, networks, and agencies have dedicated to advocacy for HIV justice.

Suggested citation: Sally Cameron and Edwin J Bernard. Advancing HIV Justice 3: Growing the global movement against HIV criminalisation. HIV Justice Network, Amsterdam, May 2019.

Canada: B.C.’s improved HIV prosecution guidelines remain out of step with scientific evidence and international guidance

Richard Elliott: B.C.’s improved HIV prosecution guidelines don’t go far enough

Opinion: B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Last month, the B.C. Prosecution Service changed its approach to HIV criminalization.

A new policy provides direction to prosecutors in cases where someone is accused of not telling their sexual partner they are HIV-positive.

While the Prosecution Service has taken an important step toward limiting misuse of criminal charges in these cases, overall this new policy remains out of step with scientific evidence and extensive international guidance. The result is that people living with HIV in B.C. continue to live under the shadow of unjust prosecution.

No other medical condition has been criminalized as HIV continues to be. Just imagine being told you are HIV-positive. The news is overwhelming at first, but you take on board the medical advice given to you and you learn that thanks to modern medicine you can live a fulfilling, healthy and long life.

You go on to meet someone and have consensual sex. You use a condom, which is the safer sex practice recommended as a cornerstone of HIV prevention since the virus was identified decades ago.

But, because you didn’t tell your sexual partner you have HIV, you can be charged with aggravated sexual assault. Even though HIV cannot pass through an intact condom, you could spend years in jail and be designated a “sex offender” for the rest of your life.

The Prosecution Service has refused to clearly rule out prosecuting people who use condoms. Instead, its new policy only says that using a condom is a factor that “may” weigh against prosecuting someone.

This flies in the face of evidence-based recommendations given by advocacy and human rights groups around the world. These include the international expert consensus statement published last year by leading HIV experts — including three leading Canadian scientists (two of them from B.C.) — concerned that criminal prosecutions in cases of alleged HIV non-disclosure are often based on a poor appreciation of the science.

People living with HIV and advocates across Canada had hoped B.C. would prove itself to be a leader and go even further toward justice than the federal government has done.

In December, Canada’s attorney general issued a directive to limit HIV non-disclosure prosecutions. But it only applies in the territories, where federal prosecutors handle criminal prosecutions. It was disheartening to learn that B.C.’s new policy does not reflect the longstanding scientific knowledge we have about condoms and their effectiveness.

B.C.’s policy shows minor progress in limiting the overly broad use of the criminal law against people living with HIV. It is a positive step, for instance, that it now states there will be no prosecution in cases where the person living with HIV has a “suppressed viral load” for at least four months — this means they have had treatment to suppress the virus in their body to ensure there’s no risk of transmission.

The new policy also says there should be no prosecution for having just oral sex, although with the caveat there must be “no other risk factors present.”

These positive updates reflect current scientific understanding, so it’s perplexing the Prosecution Service maintains an antiquated stance on condom use and persists in potentially prosecuting people who practice safer sex.

B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network

 

US: Nevada advisory task force to review antiquated laws on HIV exposure and issue recommendations

Panel to take on reforming Nevada’s antiquated HIV criminalization laws

During the height of the HIV/AIDS epidemic in the late 1980s, more than 67 laws were enacted across the country to criminalize and prosecute people living with HIV.

“The majority of these laws were passed before antiretroviral therapies, which can reduce the HIV transmission risk to zero, were developed,” said Democratic state Sen. David Parks. “In case you’re not aware, it is possible to be HIV positive and have no detectable presence of the virus.”

Senate Bill 284 mandates an examination of Nevada’s HIV laws. It passed both the Senate and Assembly and is headed to Gov. Steve Sisolak’s desk. The legislation creates the Advisory Task Force on HIV Exposure Modernization to review laws and punishments, and make recommendations ahead of the 2021 Legislative session.

With more understanding around HIV, states like California are taking steps to amend antiquated statutes. Parks said he has been trying to move legislation to tackle HIV criminalization in Nevada for three sessions without any progress.

Calls for states to consider HIV decriminalization come as science and medical advancements develop.

Organizations such as the Centers for Disease Control and Prevention note that those on medications who achieve an undetectable viral load — when the copies of HIV per milliliter of blood are so low, it can’t be detected on a test — have no risk of transmitting the virus. A recent study by The Lancet medical journal further confirmed that the risk of passing on the virus is eliminated when people living with HIV are on effective drug treatments.

Yet, many laws still don’t reflect the medical advancements.

In a statement of support for the legislation, Nevada Attorneys for Criminal Justice add that current laws are discriminatory and counterproductive.

“NACJ would particularly like to highlight one such law, NRS 212.189, which imposes a life sentence on a person with HIV in lawful custody who exposes another person to their bodily fluids,” the group wrote.  “This is dramatically overbroad – a person with HIV who spits on a police officer as they are being arrested faces a life sentence, because HIV is sometimes present in saliva even though there is no actual risk of transmission.”

SB284 passed the Senate unanimously April 16 and the Assembly 37-3 on Thursday — Republican Assemblymen Chris Edwards, John Ellison and Jim Wheeler were opposed.

 

Colombia: Constitutional court to examine whether the law criminalising HIV transmission is discriminatory

Source: El Tiempo, April 27, 2019 – Google translation, for article in Spanish, please scroll down.

Is Penalising HIV infection discriminating?

Should a person who transmit HIV or hepatitis B go to jail for 6 years? That is the debate that the Constitutional Court will have to settle in the coming days, by resolving a lawsuit against the law that criminalizes the transmission of these diseases.

The plaintiff considers that Article 370 of the Criminal Code violates the rights to equality and restricts the free development of personality, in particular, sexual freedom. This law establishes that there will be imprisonment of 6 to 12 years for those who, knowing that they have HIV or hepatitis B, “perform practices through which they may contaminate another person, or donate blood, semen, organs or, in general, anatomical components”

According to the lawsuit, this penalizes the fact that a person living with these diseases has sex, and makes it a crime regardless of whether preventive measures, such as antiretroviral treatments and others, are taken that make the transmission of diseases unlikely.

Thus, the plaintiff says that although the purpose of this mechanism is to protect public health, this does not justify prohibiting a population group from freely expressing their sexuality, and adds that there would be no harm when there are consensual relationships in which measures are taken to prevent infections.

On the violation of equality, the plaintiff says that the article only refers and penalizes people with HIV or hepatitis B, and not others with potentially contagious and sensitive diseases.

The debate is broad, in total the Court received 15 statements of opinion from different organizations, ministries, universities, and even the Constitutional Court of South Africa, to feed its considerations. And there are almost as many arguments in favour as there are against.

For example, the Colombian Anti-AIDS League supported the demand because it considered that rights were violated, adding that laws that criminalize exposure to HIV leave the burden of prevention to the people who live with it and said that the real challenges are more education and better access to medical testing services and counselling

The statement sent by Edwin Cameron, magistrate of the Constitutional Court of South Africa and who lives with HIV since 1985, points out the harm of criminalizing people living with HIV, as it increases the stigma and makes it harder for them to dare to seek medical help and prevention information

He also said that to resort to norms that criminalize HIV, the UN recommends to governments that they address only those who intentionally spread the virus and concluded that if the goal is to safeguard public health, it is more effective to have better prevention and care programmes.

The statement sent by the Ministry of Justice gives the plaintiff reason that the rule is discriminatory because it is directed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B and adds that there is no justification for the rule to be for people with these two diseases and not for others who are aware of having different infectious-contagious diseases

However, with regard to the restriction on sexual freedom, the Justice Department considered that the rule “does not violate the right to the free development of personality, but is limited to establishing the criminal consequences resulting from its abusive and harmful exercise against the rights of other people and the community “ For all this, it asks the Court to study the lawsuit and decide.

The Ministry of Health indicated, on the contrary, that the rule does not violate either the right to equality or the free development of the personality, but rather that the demand is based on an inference from the plaintiff that this restricts sexual freedom, and therefore asks to leave the rule as it is.

The Attorney General agrees that the plaintiff interpretation is that the law punishes the fact of having sex even when there is no transmission of the disease, which, says the Public Ministry, is not true. For the Attorney General’s Office, the rule is clear that in order for the offense to be established there must be an intention to cause harm by carrying out practices that could end in transmission. Because of this, the reasons for the claim are not valid and the Court is being asked not to study it and declare itself inhibited

In any case, the decision will be made by the Court, the lawsuit was handed over to Judge Cristina Pardo, who has already made a presentation that will be debated in the next few days by the Court’s full chamber.

¿Penalizar el contagio de VIH es discriminar?

Demanda dice que tipificar la propagación del virus discrimina a personas con VIH o hepatitis B.

Por: María Isabel Ortiz Fonnegra

27 de abril 2019 , 08:00 p.m.

¿Debe ir a la cárcel por 6 años una persona que contagie a otra de VIH o hepatitis B? Ese es el debate que deberá zanjar la Corte Constitucional en los próximos días, al resolver una demanda contra la ley que penaliza la propagación de estas enfermedades.

El demandante considera que el artículo 370 del Código Penal vulnera los derechos a la igualdad y restringe el libre desarrollo de la personalidad, en particular, la libertad sexual. Esta ley establece que habrá prisión de 6 a 12 años para quien, sabiendo que tiene VIH o hepatitis B, “realice prácticas mediante las cuales pueda contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.

De acuerdo con la demanda, esto penaliza el hecho de que una persona que viva con estas enfermedades tenga sexo, y lo convierte en delito sin importar si se toman las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.

Así, el demandante dice que aunque el fin de esta media es proteger la salud pública, esto no justifica prohibirle a un grupo poblacional expresar libremente su sexualidad, y agrega que no habría afectación cuando se tienen relaciones consensuadas en las que se toman medidas para prevenir contagios.

Sobre la vulneración a la igualdad, dice que el artículo solo se refiere y penaliza a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.

El debate es amplio, en total la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica, para alimentar sus consideraciones. Y hay casi tantos argumentos a favor como los hay en contra. 

Por ejemplo, la Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que sí se vulneran los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.

El concepto enviado por Edwin Cameron, magistrado de la Corte Constitucional de Sudáfrica y quien vive con VIH desde 1985, señala los perjuicios de criminalizar a las personas que viven con esa enfermedad, pues incrementa el estigma y hace más difícil que se atrevan a buscar ayuda médica e información sobre prevención. 

También dijo que de recurrir a normas que criminalicen el VIH, la ONU recomienda a los gobiernos que estas se dirijan solo a quienes intencionalmente propagan el virus y concluyó que si el objetivo es salvaguardar la salud pública, es más efectivo tener mejores programas de prevención y atención.

El concepto enviado por el Ministerio de Justicia le da la razón al demandante en que la norma es discriminatoria pues está dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B y agrega que no se advierte justificación para que la norma sea para personas con esas dos enfermedades y no para otras que son conscientes de tener enfermedades infectocontagiosas riesgosas distintas. 

Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró que la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”. Por todo esto, le pide a la Corte que estudie la demanda y decida.

El Ministerio de Salud indicó, al contrario, que la norma demandada no vulnera ni el derecho a la igualdad ni el libre desarrollo de la personalidad, sino que la demanda se basa en una inferencia del accionante de que esto restringe la libertad sexual, por lo que pidió dejar la norma tal y como está.

La Procuraduría coincide en que el demandante interpreta que la norma castiga el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma es clara en que para que se configure el delito debe existir una intención de causar daño realizando prácticas que podrían terminar en contagio. Por esto, las razones para la demanda se caen y le pidió a la Corte no estudiarla y declararse inhibida.

En todo caso, la decisión será de la Corte, la demanda le correspondió por reparto a la magistrada Cristina Pardo, quien ya hizo una ponencia que será debatida en los próximos días por la sala plena de la Corte.

Canada: Advocates recommend amending the criminal code to limit the overcriminalisation of non-disclosure and the inconsistency of provincial prosecutorial policies

Criminal Code changes needed to curb HIV non-disclosure prosecutions, experts say

The chair of the federal government’s justice committee is hoping input from various stakeholders will lead to Criminal Code changes limiting prosecutions of HIV non-disclosure across Canada.

On April 9, the House of Commons Standing Committee on Justice and Human Rights began inviting medical professionals, advocates and those living with the immunodeficiency virus to submit briefs on how to deal with the overcriminalization of non-disclosure and a “patchwork” of prosecutorial policy among the provinces.

The committee’s study comes almost five months after Canada’s Department of Justice directed its Crowns to limit their prosecutions of HIV non-disclosure in light of evolving science around risk of transmission.

But the Dec. 1 directive applies only to Crowns in Canada’s territories. Provincial prosecutors, on the other hand, follow their own set of prosecutorial policies.

Soon after this, Ontario directed its Crowns to limit non-disclosure prosecutions. And on April 16, British Columbia brought forth a revamped policy.

Most other provinces lack directives.

Defence lawyers and advocates have long been said that criminal law dealing with non-disclosure has lagged scientific findings that the risk of transmission can be quite low, depending on individual circumstances and sexual practices.

The committee will be hearing from stakeholders on the adequacy of the federal directive, how the justice system can work with the health sector to better understand the science of transmission and how to attain a uniform policy across the land.

As of April 17, the committee had heard from the Ontario AIDS Network and the Canadian HIV/AIDS Legal Network, as well as other organizations and several experts.

All submissions are due April 30 and a report will go before Parliament sometime in May, according to the committee’s chairman, Liberal MP Anthony Housefather.

“We’re looking at how do you create a system that can apply across the country, and, for me, that would only be through adjustments to the Criminal Code itself,” Housefather told The Lawyer’s Daily.“Now, we could come out with recommendations, theoretically, to the minister of justice to meet with his provincial and territorial counterparts to try to agree on a directive that would be applied in every province and territory. But, from what I understand right now, the best approach would be amendments to the Criminal Code.”

Housefather spoke of different policies currently in existence.

“Right now, we only have a federal directive that applies to very few Canadians,” said Housefather. “We have an Ontario directive that is slightly different from the federal directive. There is a directive in B.C. that was quietly put forward. And then most [other] provinces have no such directive. So, people are being prosecuted differently depending on the province or territory that they live in right now.”

Canadian HIV/AIDS Legal Network executive director Richard Elliott said the consultations will drive home the need for consistency.

“It should make clear that, in so far as it goes, the [federal] directive … issued in December, is OK,” said Elliott. “In our view — and [in] the view of other advocates with whom we work across the country on this — it doesn’t go far enough, but it is a step forward. What I think it should also make clear is even if the directive at the federal level went as far as it should go, and even if every provincial [attorney general] were to adopt an equally satisfactory directive applicable in their jurisdiction … we would still need an additional part of the solution here, which … is to amend the Criminal Code.”

Elliott noted differences in the federal, Ontario and B.C. directives and said uniform, coast-to-coast policy would “sweep away a patchwork of different policies in different jurisdictions.”

None of the policies is quite where it should be when it comes to limiting criminalization, said Elliott, who, like many, is calling for sexual assault and aggravated sexual assault charges to be taken off the table as charges for HIV non-disclosure.

Criminal charges, he said, should be limited to intentional transmission.

Criminal lawyer Cynthia Fromstein has been approached by people “frightened [and] concerned about their legal jeopardy and wanting to know what is and is not lawful behaviour.”

“These are people who have no intention of harming others by their actions,” said Fromstein, a sole practitioner in Toronto. “That is one reason it is truly necessary for there to be consistency across the country in policy and application of the criminal law.”

Like Elliott, Fromstein hopes the consultations will kick-start change.

“Amending the Criminal Code is going to be complex,” she said. “I think there is wide support for taking any kind of prosecution of non-disclosure out of the sex assault provisions. I think there is broad agreement [this] needs to be done. But then there are real questions: Should there be a specific law for HIV transmissions? Should there be a specific law for ‘causing a person to be infected with a serious illness,’ which is not necessarily [classified as] HIV? There are a lot of questions that have to be fine-tuned.”

 

 

US: Bipartisan list of lawmakers sponsor bill to modernise HIV laws in Georgia

Georgia lawmaker wants to decriminalize HIV

A Republican lawmaker introduced a bill that would modernize Georgia’s HIV laws, which activists say are outdated and stigmatize people living with HIV.

Under House Bill 719, a person charged with exposing someone to HIV — whether through sex or sharing needles — would have to show an “intent to transmit” the virus in order to be prosecuted, according to the bill. Current Georgia law makes it a crime for people living with HIV to have sex without disclosing their status. 

The bill would also downgrade the punishment for people found guilty of the offense to a misdemeanor punishable by up to a year in prison. It’s currently a felony punishable by up to 10 years in prison.

“[The bill] moves these archaic laws created out of the HIV panic of the 1980s and brings them up-to-date with our current understanding of HIV,” Eric Paulk, HIV policy field organizer for Georgia Equality, told Project Q Atlanta. “Additionally, this bill will aid in reducing stigma and discrimination against people living with HIV, which it is not just fair, but good for public health.”

“Lastly, reforming these laws is an important step to health and HIV prevention justice, especially for black gay, bisexual, and transgender Georgians, who are disproportionately impacted by HIV and prosecutions under these laws,” he added.

HB 719 would also make employees of syringe services programs immune from being charged with possession, distribution or exchange of needles or syringes as part of the program. The measure would also remove a provision in state law that makes it a crime for people living with HIV to spit on people.

Rep. Deborah Silcox (photo), a Republican from Sandy Springs who sponsored the measure, introduced HB 719 on April 2, the final day of this year’s legislative session. It will come back up for consideration during the 2020 session.

HB 719 has a bipartisan list of co-sponsors. The Republicans include Reps. Sharon Cooper of Marietta and Mark Newton of Augusta. The Democrats who signed on to the measure are Reps. Michele Henson of Stone Mountain and Karla Drenner of Avondale Estates. Drenner is one of the five openly LGBTQ members of the legislature.

Cooper sponsored a measure that created a study committee to examine the state’s HIV criminalization laws in 2017. 

The committee published its findings in December 2017, and some of those recommendations became part of HB 719. The committee found that “criminal exposure laws had no effect on detectable HIV prevention” and that these laws should be eliminated unless there was a clear intent to transmit the virus, according to the report.

Cooper, Silcox and Rep. Houston Gaines are the group of Republicans who introduced a package of HIV legislation during the 2019 session.

Cooper’s bill to create a pilot program to provide PrEP to people at high risk of contracting HIV passed both chambers and awaits Gov. Brian Kemp’s signature. Gaines’ bill to create a needle exchange program to help reduce HIV rates passed both chambers, and Kemp signed it into law on April 2. Silcox’s bill to make it easier for HIV-positive Medicaid recipients to receive the most effective medications passed unanimously in the House but got held up in the Senate over cost issues. It will return in 2020.

Georgia is one of three-dozen states that criminalize a lack of HIV disclosure. HIV criminalization laws are one of the reasons Georgia ended up in the lowest-rated category on the Human Rights Campaign’s annual State Equality Index.

US: HIV criminalisation laws that require people convicted to be on the sex offender registry are ineffective and stigmatising

THE PUSH TO END ‘PUNISHMENT FEVER’ AGAINST PEOPLE WITH HIV

Advocates say laws that land people with HIV on the sex offender registry are outdated and dangerous.

Every five years, Mark Hunter has to pay around $300 to have his picture displayed in the newspaper and notices mailed to his neighbors, informing them that he is a sex offender. While on parole, he said, he pays about $60 a month in fees and has to attend a sex offender treatment class. His crime? In 2008, he was convicted of failing to tell two ex-girlfriends that he was HIV-positive.

Though neither partner contracted HIV, Hunter was still convicted under Arkansas’s HIV exposure law, which requires those who know they are HIV-positive to disclose their status to sexual partners. Sentenced to a dozen years in prison, he was released in 2011 after serving almost three.

But now, he must register as a sex offender, incurring the same obstacles, humiliation, and costs many others on registries face.

In Louisiana, where he now lives, Hunter’s driver’s license has “sex offender” written in capital letters under his photo, per the state’s registry requirements.

“When I saw it on my license, that was one of the most hardest things ever,” said Hunter, now 44. “Those two words on my license are still a hindrance to the life I want to live.”

Lousiana, Arkansas, Ohio, South Dakota, Tennessee, and Washington State require, or authorize courts to require, those convicted under HIV criminalization laws to be on the sex offender registry, according to the Center for HIV Law and Policy. Advocates, who condemn the statutes as ineffective, stigmatizing, and unscientific, are working to modernize the laws in the courts and state legislatures.

But even some of the fixes fall short, they say, including an amendment to Louisiana’s law that was enacted last year that removed biting and spitting as specifically identified means of transmission. Disclosure of HIV status is still required.

“We do not need to be punishing people through the criminal law,” said Robert Suttle, assistant director of the Sero Project, which advocates HIV criminalization law reforms. “This is a public health issue.”

 

Hunter, a hemophiliac, was diagnosed with HIV in 1981, at age 7. He said he and his family largely kept his status a secret.

“People were treated harshly who had this disease,” said Hunter. “They were treated like outcasts.”

But though the public’s perception of HIV has evolved, being on a sex offender registry carries a similar stigma. After he was released from prison in 2011, Hunter settled in Louisiana. He has found it difficult to find work, he said. Louisiana’s sex offender registry law requires him to register any address where he stays longer than seven days.

In the 1980s and 1990s, a flurry of HIV criminalization laws were enacted, many of which remain on the books. Today, 26 states have HIV-specific laws that criminalize exposure, according to the Centers for Disease Control and Prevention.

HIV became “swept up” in the era’s “punishment fever,” explained Trevor Hoppe, author of “Punishing Disease: HIV and the Criminalization of Sickness.”

“Legislators around the country were already in the mode of punishment,” said Hoppe. “It was kind of a general approach they were taking to many social problems.”

Because there is no national database that tracks prosecutions, it is difficult to know how many people have been charged, convicted, or placed on the registry as a result of HIV criminalization laws, according to Catherine Hanssens, executive director of the Center for HIV Law and Policy. A comprehensive study of Florida’s criminalization laws found that more than 600 people had been arrested for an HIV-related offense between 1986 and 2017.

Scientists, psychologists, healthcare providers, and HIV-positive advocates have condemned the laws over the decades since they were enacted, noting that there has been no association found between criminalization statutes and lower transmission rates.

“People with HIV are not out there passing HIV along in some intentional way,” said Dorian-gray Alexander, a member of the Louisiana Coalition on Criminalization and Health who is living with HIV. More than a third of the time, the transmission of HIV is between people who don’t know their status.

HIV criminalization statutes rarely take into account advances in treatment, condom use, or actual risk of transmission, according to advocates. For instance, in Arkansas, where Hunter was convicted, it is a felony to sexually penetrate another person without first disclosing one’s HIV-positive status. However, penetration is broadly defined as an “intrusion, however slight, of any part of a person’s body or of any object into a genital or anal opening of another person’s body.”

Cheryl Maples, an Arkansas attorney, plans to file a petition in federal court in the coming weeks that challenges the law’s constitutionality, she told The Appeal. Maples, whose uncle died of AIDS-related complications, has defended several people charged with HIV exposure. The state attorney general’s office did not respond to a request for comment.

“It is basically a crime that is against the LGBT community and other communities that are in disfavor,” said Maples. “People that are being charged with this are not predators.”

 

In Tennessee, sexual contact is not even required under the state’s aggravated prostitution statute. A person is in violation of the law if he or she knows they are HIV-positive and works “in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity.” Those convicted are placed on the sex offender registry and face up to 15 years in prison.

People convicted of aggravated prostitution can petition to be removed from the registry if they were victims of sexual violence, domestic abuse, or human trafficking. Last year, then-Governor Bill Haslam signed into law a bill that allows those convicted as juveniles with aggravated prostitution to have their records expunged if they were victims of human trafficking.

But regardless of why or when someone engages in sex work, sex workers living with HIV need “services, not handcuffs,” said Alex Andrews, co-founder of Sex Workers Outreach Project (SWOP) Behind Bars.

“When you put someone on a registry for having HIV, that’s public information,” said Andrews. “Put sex work on top of that and you have a really bad situation for survival.”

The state’s aggravated prostitution statute and HIV exposure law are both felonies that require sex offender registration. That’s different from the way Tennessee law governs the disclosure of other infectious diseases. It is a misdemeanor to engage in “intimate contact” without disclosing a diagnosis of Hepatitis B or C, but failure to disclose those diseases does not require sex offender registration.

 

As attempts are made to reform HIV criminalization laws, advocates worry about changes that tie criminalization solely to a person’s risk of transmission. Doing so, they warn, could marginalize those without access to treatment and those with detectable viral loads. (Those with undetectable viral loads, like Hunter, have “effectively no risk” of transmitting the virus, according to the CDC.)

Repealing HIV-specific laws is often insufficient, they add, because people can still be exposed to harsh punishments. People in states without such laws have been charged with attempted murder or assault with a deadly weapon for a range of incidents including spitting. (HIV cannot be transmitted through saliva.)

Modernizing statutes should focus on a person’s intent, and conduct likely to cause harm, not a failure to disclose, said Hanssens, the HIV law and policy center executive director. Any reform must also cease placing people on the registry, a practice she called “irrational and unconscionable.”

“You cannot treat consensual sexual contact as a criminal wrong simply because that particular person happens to have one or another disease,” said Hanssens. “It’s a pointless and dangerous and stigmatizing response to what is a public health issue.”

Hunter has joined HIV-positive advocates from across the country in speaking out about the harms of criminalization and the sex offender registry in particular. He also works to reduce the persistent stigma and fear surrounding HIV by helping young people tell their families they are HIV-positive.

“They need to understand that it’s not a death sentence,” said Hunter. “I’m married. My wife is not HIV-positive, and we are trying to have a child.”

He has started a nonprofit organization dedicated to HIV and AIDS education in his brother’s name, the Dr. Michael A. Hunter Foundation. His brother, like Hunter, was a hemophiliac who contracted HIV from a blood transfusion. He died from AIDS-related complications in 1994.

“I’m Mark, and I happen to be HIV-positive,” said Hunter. “I had to embrace that, and once I embraced it, I let go of a lot of the pain.”