US: Two congresswomen, co-chairs of the HIV caucus in Congress, teamed up to introduce a bill aiming to modernise HIV laws

Ileana Ros-Lehtinen Wants to Change HIV/AIDS Laws

By KEVIN DERBY

March 29, 2017 – 9:45am

A South Florida Republican congresswoman is urging the federal government, the states and local governments to “modernize laws and policies to eliminate discrimination against those living with HIV/AIDS.”

U.S. Rep. Ileana Ros-Lehtinen, R-Fla., and U.S. Rep. Barbara Lee, D-Calif., are the co-chairs of the HIV Caucus in Congress. This week, Ros-Lehtinen and Lee teamed up to bring out the “Repeal HIV Discrimination Act.”

“This bill expresses the sense of Congress that federal and state laws, policies, and regulations should not place a unique or additional burden on individuals solely as a result of their HIV status, and offers a step-by-step plan to work with states to modernize their laws,” Ros-Lehtinen’s office announced.

Ros-Lehtinen made the case for why the bill was needed.

“The fear and stigma surrounding HIV have led to a number of criminal statutes and penalties that do not improve public health,” Ros-Lehtinen said. “Since the establishment of laws which unfairly penalize individuals living with HIV, we have made great medical advances that prove that antiretroviral therapy can reduce HIV transmission risk. My colleague, Barbara, and I are introducing the REPEAL HIV Discrimination Act in order to help eliminate needless and harmful statues and regulations which only shame individuals without providing meaningful benefits for HIV prevention and care.”

“HIV criminalization laws are based on bias, not science. Instead of making our communities healthier, these laws breed fear, discrimination, distrust, and hatred. Our laws should not perpetuate prejudice against anyone, particularly against those living with diseases like HIV. By passing this legislation, Congress would send a signal that discrimination and stigma have no place in our laws,” said Lee. “I am grateful for the continued partnership of my friend and colleague, Congresswoman Ros-Lehtinen, in the fight to ensure that all are able to live with dignity and respect, and to one day achieve an AIDS-free generation.”

The two congresswomen pointed to more than 33 states and two territories which, they insist, “have criminal statutes based on outdated information regarding HIV/AIDS.”

The caucus has more than 70 members in both the House and the Senate including Florida Democrats U.S. Rep. Kathy Castor, Ted Deutch, Alcee Hastings, Debbie Wasserman Schult and Frederica Wilson.

US: California bill to modernise HIV criminalisation statutes a step closer to becoming law

Bill to Modernize Discriminatory HIV Criminalization Laws Passes First Major Hurdle

San Francisco – A bill that would modernize California’s laws that criminalize and stigmatize people living with HIV today cleared its first major legislative hurdle. The Senate Public Safety Committee approved Senate Bill (SB) 239 by a vote of 5-2. The bill is authored by Sen. Scott Wiener (D-San Francisco) and Asm. Todd Gloria (D-San Diego) and cosponsored by the ACLU of California, APLA Health, Black AIDS Institute, Equality California, Lambda Legal and Positive Women’s Network – USA. The organizations are part of Californians for HIV Criminalization Reform (CHCR), a broad coalition of people living with HIV, HIV and health service providers, civil rights organizations and public health professionals dedicated to ending the criminalization of HIV in California. SB 239 is also co-authored by Senators Toni Atkins (D-San Diego), Nancy Skinner (D-Berkley) and Holly Mitchell (D-Los Angeles) and Assemblymembers David Chiu (D-San Francisco) and Susan Eggman (D-Stockton.)

‘HIV is a public health issue, not a criminal justice issue. These laws, which stigmatize people living with HIV and discourage people from getting tested and into treatment, need to go. It’s time for California to lead, and to send a clear signal that we are taking a science-based approach and not a fear-based approach in how we treat HIV,’ said Senator Scott Wiener. ‘I want to thank Equality California and the entire coalition supporting this incredibly important bill for their partnership.’

SB 239 would update California criminal law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It also brings California statutes up to date with the current understanding of HIV prevention, treatment and transmission. Specifically, it eliminates several HIV-specific criminal laws that impose harsh and draconian penalties, including for activities that do not risk exposure or transmission of HIV.

‘With today’s approval by the Senate Public Safety Committee, we become one step closer to making state law less stigmatized and more equitable,’ said Assemblymember Todd Gloria. ‘Make no mistake, SB 239’s purpose is to encourage more Californians to get tested for HIV. Anything that impedes that – like the shame and fear codified in our current statute – must be changed. I am grateful to the members of the Senate Public Safety Committee, Equality California, and all of the supporters of this bill who helped make today’s success possible.’

Legislators passed a number of laws three decades ago at the height of the HIV epidemic that criminalized behaviors of people living with HIV or added HIV-related penalties to existing crimes. These laws were based on fear and on the limited medical understanding of the time. When most of these laws were passed, there were no effective treatments for HIV and discrimination against people living with HIV was rampant. Current treatments for HIV-positive people leave them virtually incapable of transmitting the virus and preventative treatments such as PrEP (pre-exposure prophylaxis) for HIV-negative people reduce risk of contraction by up to 99 percent.

‘Our understanding of HIV and its transmission has improved by quantum leaps since these laws were enacted,’ said Rick Zbur, executive director of Equality California. ‘California’s HIV criminal laws do not further public health but, instead stigmatize people living with HIV and, discourage testing and necessary medical care. It’s time to bring California’s HIV laws into the 21 century.’

SB 239 now moves on to the Senate Appropriations Committee.

In addition to the organizations sponsoring the bill, it is currently supported by CHCR members which include the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund (MALDEF), the Free Speech Coalition, Sex Workers Outreach Project (SWOP) and Erotic Service Providers Legal, Education, and Research Project (ESPLERP).

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Equality California is the nation’s largest statewide lesbian, gay, bisexual and transgender civil rights organization dedicated to creating a fair and just society. Our mission is to achieve and maintain full and lasting equality, acceptance, and social justice for all people in our diverse LGBT communities, inside and outside of California. Our mission includes advancing the health and well-being of LGBT Californians through direct healthcare service advocacy and education. Through electoral, advocacy, education and mobilization programs, we strive to create a broad and diverse alliance of LGBT people, educators, government officials, communities of color and faith, labor, business, and social justice communities to achieve our goals. www.eqca.org

US: Bill before California Senate bill would modernise HIV criminalisation laws in line with the latest science

A bill before the California Senate would change laws that make it a felony to expose someone to HIV, recognizing advances in the science of HIV treatment and prevention. The proposed legislation received strong support at a recent hearing at the state Capitol.

Proponents say Senate Bill 239 would modernize existing laws in accordance with the latest research, promote public health, and reduce discrimination and stigma against people living with HIV.

“These felony laws were passed during the dark days of the epidemic, when people were talking about quarantining those living with HIV,” bill co-author Senator Scott Wiener (D-San Francisco) told the Bay Area Reporter. “The laws single out people with HIV for uniquely harsh criminal treatment for the simple act of having sex – even if there’s no risk of transmission. HIV is a health issue, not a criminal issue, and it’s time to repeal these discriminatory laws.”

Existing laws make it a felony punishable by up to eight years in prison for a person with HIV to expose another person through unprotected sex if the HIV-positive person knows they are infected, does not disclose their status, and acts with the intent to infect the other person – regardless of whether infection actually occurred. It is also a felony under certain circumstances for an HIV-positive individual to donate blood, organs, or semen to an HIV-negative person. Current laws treat HIV transmission more harshly than other serious communicable diseases.

A study from the UCLA School of Law found that around 800 people in California came in contact with the criminal justice system due to their HIV status between 1988 and 2014, in most cases related to sex work. Black and Latino people and women were disproportionately affected.

“Since [these laws] were originally written the realities of what it means to have HIV, as well as the possibility of transmitting it, have changed completely, with new medications when taken regularly normalizing life expectancy and eliminating the possibility of transmission,” Dr. Edward Machtinger, director of the UCSF Women’s HIV Program, said at the March 8 hearing. “This new reality requires a reassessment of the public health implications of HIV-related legislation.”

Bill would amend state codes

As the B.A.R. previously reported, Wiener and Assemblyman Todd Gloria (D-San Diego), both gay men, introduced SB 239 at a February 6 news conference at Strut, the San Francisco AIDS Foundation’s health and wellness center for gay, bi, and trans men.

The March 8 briefing, hosted by the Legislative LGBT Caucus, featured testimony from people living with HIV as well as LGBT, public health, and civil rights advocates.

“It’s time to really change from a fear-based approach to a science-based approach,” Gloria said at the hearing. “A couple of states have beaten us to taking this action, but I think if California can do it, certainly the rest of the country can take this step as well.”

Assemblyman David Chiu (D-San Francisco) and lesbian Assemblywoman Susan Talamantes Eggman (D-Stockton) co-authored the legislation. Co-sponsors include the American Civil Liberties Union of California, Black AIDS Institute, Equality California, Lambda Legal Defense and Education Fund, and Positive Women’s Network-USA, all of which are part of the Californians for HIV Criminalization Reform Coalition.

SB 239 would amend sections of the state Health and Safety Code and Penal Code to make transmission of a communicable disease – not singling out HIV – a misdemeanor if a person knows they are infected, acts with the intent to transmit, engages in conduct that poses a substantial risk of transmission, and the other person does in fact become infected.

If passed, the proposal would overturn previous convictions under the old law, as well as expunge related criminal records and allow a person serving time to have their sentence dismissed. It would also repeal laws that require people convicted of prostitution to be tested for HIV and increase penalties if they test positive. A penalty enhancement for HIV-positive people convicted of sexual assault would not be changed.

Wiener’s communications director, Jeff Cretan, told the B.A.R. that the bill is scheduled for a hearing before the Public Safety Committee March 28, after which it would go before the Appropriations Committee and then to the full Senate for a vote.

Advocates support reform

Reform proponents say SB 239 would bring laws in line with current science, which shows that HIV-positive people who are on antiretroviral treatment with an undetectable viral load can live long and healthy lives and do not transmit the virus to others. In addition, the advent of PrEP, which reduces the risk of HIV infection by more than 90 percent if taken consistently, has changed the meaning of “unprotected” sex.

“We know that people with undetectable levels of virus are very, very unlikely to transmit [HIV],” San Francisco Supervisor Jeff Sheehy, a gay man and the first out HIV-positive person to sit on the board, told the B.A.R. “Many people at risk for contracting the virus are using PrEP to prevent getting infected. These laws, which should never have been passed in the first place, fail to acknowledge these new realities.”

Proponents contend that HIV criminalization laws do not promote public health, but rather discourage people from getting tested, seeking treatment, and disclosing their status to sex partners.

“HIV criminalization laws not only perpetuate discrimination against people living with HIV, they paradoxically discourage people from getting tested, since the laws create greater liability for those who know their status,” Eric Paul Leue, executive director of the Free Speech Coalition, a trade group for the adult entertainment industry that is a member of the CHCR coalition, told the B.A.R.

Existing laws can also discourage vulnerable people with HIV from reporting sexual abuse and violence, according to Naina Khanna, executive director of Positive Women’s Network-USA.

“A myth has been perpetuated that women are somehow protected by these laws, [but] they don’t protect us in any way,” Khanna said at the hearing. “These laws deter people from disclosing their status, they deter access to testing, they may deter people from seeking treatment, and consequently they actually increase risk for everybody. Policing and criminalization targets people of color, targets those who are unstably housed, folks who are homeless and on the streets, and people who are trans and gender non-conforming.”

SB 239 is part of a national and global movement to reform laws that target people living with HIV.

“SB 239 will go a long way toward eliminating a bias in the law and bringing California to the forefront in the effort to combat HIV-related stigma, discrimination, and criminalization,” Sero Project executive director Sean Strub told the B.A.R. “We can prosecute HIV or we can prevent it, but we can’t do both.”

Published in the Bay Area Reporter on March 23rd, 2017

US: Florida State Senate Committee Supports Public Health Measure To Modernize HIV Laws (Press Release)

Press release from the Sero Project

Tallahassee March 22, 2017

The Florida HIV Justice Coalition today applauded members of the Florida State Senate’s Criminal Justice Committee for voting unanimously yesterday in favor of Senate Bill 628.

SB 628 will modernize Florida statutes regarding sexually transmissible infections (STIs) to reflect advances in scientific knowledge and medical treatment, particularly as they concern prevention and treatment of HIV.

The Florida HIV Justice Coalition, comprised of physicians, healthcare workers, legal, public health and policy professionals, people living with HIV and other allies, has led a statewide effort to raise awareness and mobilize support for reform.

Senator Rene Garcia (R-Hialeah), the SB 628’s chief sponsor, said, “Florida doesn’t want to be first in new HIV cases; we want to be first in the effort to end the HIV epidemic. With the support of public health leaders, prosecutors, major HIV service providers in Florida, like the AIDS Healthcare Foundation, the Sero Project (a national network of people living with HIV) and others, we are going to get there. Today’s unanimous vote by the Senate Criminal Justice Committee is an important step.”

Leaders in providing services for people with HIV in Florida, as well as nationally, agree that early testing and ongoing adherence to treatment can stop the spread of HIV.

“Virtually all HIV transmission in Florida is from people who have HIV but do not know it, because they have not been tested, or are not on treatment,” said David Poole, Director of Legislative Affairs at AIDS Healthcare Foundation, Florida’s leading HIV service provider. “Getting tested, treated and virally suppressed prevents HIV transmission. That’s why updating these statutes is a vital HIV prevention strategy for Florida.”

“Public health policies and criminal statutes should be aligned to incentivize HIV testing and treatment. Any criminal act concerning transmission of sexually transmitted infections should be based on an intent to harm, a significant risk of harm and actual infliction of harm,” said Mrs. Kamaria Laffrey, a Winter Haven resident who has led the Florida HIV Justice Coalition and is a woman living with HIV. “We will continue to work with Senator Garcia and other legislators to improve SB 628 as it continues through the legislative process.”

“We commend and thank Senator Garcia for his leadership. We look forward to working with the legislature and our allies to improve public health and ensure equality and justice for all Floridians,” said Tami Haught, a woman living with HIV who coordinates state organizing for the Sero Project, a national organization working to modernize HIV-specific criminal statutes in 32 states.

The bill next moves to the Senate Health Policy Committee. Similar legislation, HB 605, has been filed in the House and will be heard first by that chamber’s Criminal Justice Committee.

Further information:

Kamaria Laffrey, Coordinator, Florida HIV Justice Coalition Kamaria.laffrey(at)seroproject.com

David Poole, Director of Legislative Affairs, AIDS Healthcare Foundation david.poole(at)aidshealth.org

[Update]Mexico: Legislation to criminalise HIV transmission withdrawn in San Luis Potosi State Congress

A House Representative withdraws opinion/ruling that would criminalize HIV transmission in San Luis Potosi

The opinion/ruling with draft decree that was intended to add the crime of risk of contagion to the penal criminal code of the State of San Luis Potosi was withdraw The document established penalties and sanctions to whom or who put someone else at risk of contagion of  “a venereal disease or other serious infective period”.

A Member of San Luis Potosí friends fight against AIDS  /, Andrés Costilla Castro denounced than this initiative was an attempt against the dignity  of PLHIV and promoted stigma towards PLHIV in San Luis Potosí and  because of that, they demanded for such decree to be eliminated.

The document was presented by Esther Angelica Martinez Cardenas of the PRI and approved by justice committees; Health and Social Welfare.

Costilla Castro reiterated that this initiative would put people with HIV under a status of potential criminals, and that it opposed their dignity as persons, attempting to take away human rights and stigmatising them because of a health condition.

The opinion/ruling read as follows:

The offence of contagion is committed if a person puts someone in danger of contagion, knowing they are suffering from a venereal disease or other serious illness during an infectious period, putting in danger of contagion the health of another person, by sexual intercourse, or other transmissible method; shall be sentenced from one month to three years in prison, and up to forty days of the value of the unit of measurement and valid update. If the condition or disease was incurable, a sentence of six months to five years in prison shall be imposed. In  the case of spouses, boyfriends or concubines, only the case could proceed following a complaint by the offended party.

The opinion/ruling was removed during the session on Thursday to be analyzed again by the committees involved in the issue.

Diputada retira dictamen para penalizar el contagio de VIH en SLP

Fue retirado el dictamen con proyecto de decreto que planteaba  la adición del delito de Peligro de Contagio al Código Penal del Estado de San Luis Potosí. El documento establecía penas y sanciones a quien o quienes pongan a otra persona en riesgo del contagio de “una enfermedad venérea u otra grave en período infectante”.

Por su parte el integrante de la organización Amigos Potosinos en Lucha Contra el Sida, Andrés Costilla Castro denunció que esta iniciativa  atenta contra la dignidad y promueve el estigma hacia las personas con VIH en San Luis Potosí por lo que solicitaron fuera bajado este dictamen.

El documento, fue presentado por la priista Esther Angélica Martínez Cárdenas y aprobado por las Comisiones de Justicia; y Salud y Asistencia Social.

Costilla Castro reiteró que esta iniciativa colocaría a las personas con VIH bajo un estatus de posibles criminales, contraviniendo a su dignidad como personas, a tentando a sus derechos humanos y estigmatizándolos por su condición de salud,

El dictamen marcaba lo siguiente:

Comete el delito de peligro de contagio quien, a sabiendas de que padece una enfermedad venérea u otra grave en período infectante, ponga en peligro de contagio la salud de otra persona, por relaciones sexuales, u otro medio transmisible; será sancionado de un mes a tres años de prisión, y hasta cuarenta días del valor de la unidad de medida y actualización vigente

Si la enfermedad padecida fuera incurable se impondrá la pena de seis meses a cinco años de prisión. Cuando se trate de cónyuges, concubinarios o concubinas, sólo podrá procederse por querella de parte ofendida

El dictamen fue retirado durante la sesión de este jueves para ser analizado nuevamente por las comisiones involucradas en el tema.

Published in La Orquesta on March 17, 2017

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First article published on March 16, 2017 (English google translation, scroll down for Spanish article)

Congress a step away from criminalising HIV transmission…Again

The Secretary of health, international treaties and activists are against the proposal.

By María José Puente

This Thursday, in a plenary session, the State Congress will vote on a draft decree that adds the crime of Danger of Contagion to the Penal Code of the State of San Luis Potosí. If approved, the new legislation establishes penalties and sanctions to those who put someone else at risk of contagion of “a venereal or other serious illness when being infectious.”

The document, already approved by the Justice Commissions; and Health and Social Services , was presented to the Congress by Esther Angélica Martínez Cárdenas, from the PRI group. There, the deputy says that it is necessary for the Potosino penal code to adopt the federal standard, where the crime is mentioned and allows for a penalty of up to 5 years in prison, equal to the one raised in the State decision.

The text reads:

“The offense of contagion is committed by a person who, knowing that he suffers from a venereal or other serious illness in an infectious period, endangers the health of another person by sexual intercourse or other transmissible means; Will be sanctioned from one month to three years in prison, and up to forty days of the value of the current unit of measurement and update.

If the illness suffered is incurable, a sentence of six months to five years’ imprisonment shall be imposed. In the case of spouses, or concubines, the case may only proceed following a complaint by the offended party “.

For the organizations that defend the rights of the LGBT population and the Ministry of Health at the national and even state level, this homologation is not only anachronistic, but it  also puts at risk the population suffering from ilnesses such as those mentioned there and particularly those who have been or may be diagnosed with HIV or AIDS.

REPEATED ERROR

In October of 2016, Juan Manuel Carreras, governor of San Luis; In conjunction with the Women’s Institute, attempted a similar legislative move, presenting a package of initiatives aimed at preventing violence against women.

The argument, said in an interview Jeús Paul Ibarra Collazo , head of Red Diversificadores Sociale was directed in such a way because the rate of contagion of women by way of their spouses could increase because part of the male population, openly heterosexual, actually had sexual relations with other homosexual men, contracted the disease and then, continued at the same time with their female partner, which resulted in her being infected as well.

Ibarra Collazo recognizes that the male homosexual population leads the statistics of HIV or AIDS, because by keeping alive what he calls internalized homophobia, the spread of the disease through sexual contact between men increases the number of cases.

Regardless of this, the Ministry of Health sent a press release specifically addressed to Juan Manuel Carreras, who asked him to take a second look at the initiative because, according to international treaties to which Mexico is a signatory, the measure that the governor and the IMES intended to boost is useless.

” The National Center for Prevention and Control of HIV / AIDS of the Ministry of Health calls for an analysis of this proposal in the framework of international and national recommendations in this area, since criminalization or criminalization of people with HIV is not a public policy that helps to reduce and control the epidemic, quite the contrary, it has been shown that the establishment of restrictions, indications or penalties for people with HIV does not prevent them from spreading the virus and there is little evidence that Criminal sanctions will ‘rehabilitate’ a person so as to avoid future risk behavior of HIV transmission, “the statement said.

After reception of the document and after a dialogue between the state agencies, Red Diversificadores Sociales and the pressure of the group Amigos Potosinos in Fight against Aids, the initiative seemed to have been withdrawn; However, this March 16, again and after already having been approved by the aforementioned committees, the article will be voted on by the 27 deputies that make up the Congress, without it being clear whether Congresswoman Esther Angélica Martínez Cárdenas is aware or not of the previous initiative.

STIGMA, DISCRIMINATION AND LACK OF PREVENTION POLICY

  Although the Ministry of Health points out that “imposing penalties can only be justified in case of conduct that is legally condemnable, so that criminal law based on this objective can only legitimately be applied to a subset of cases of HIV transmission” it also highlights that “this does not have anything to do with the primary goal of preventing HIV transmission. “

This can also be seen as presented by APELCS : “It is very difficult to determine causality, deceit, intentionality and various factors involved in the transmission of HIV”, and also, as stated by Paul Ibarra, and reaffirmed by the Ministry of Health, establishing punitive measures for the contagion of HIV or any other disease could inhibit the will of the key subjects to undergo the screening tests that finally have proven to be a palliative way to avoid transmission.

That is, when there is a penalty for contagion, it automatically pose a warning sign on the carriers, whether men, women, children or girls, which can facilitate discrimination and stigma on a disease that, with the advance of science and effective public policies of prevention, has ceased to be a death sentence for a large part of the population.

APELCS , on the other hand, exhorts “the members of the Health Commissions; Justice and social services; In particular to Congresswoman Esther Angélica Martínez Cárdenas to reconsider the criminalization of HIV and to lower this initiative, as they would put people with HIV under the status of potential criminals, in contravention to their dignity as persons, undermining their human rights and stigmatizing them for their Health condition “.

Paul Ibarra , on the other hand, points out what seems to be obvious and that is that there is a dislocation between the powers of the state, since the return of this attempt to change the Criminal Code, denotes that the deputy who is promoting it did not take into account the antecedent in October, nor was aware of the pronouncement against by the Ministry of Health, RDS and APELCS scarcely 5 months ago.

Published in La Orquesta on March 16, 2017

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Congreso, a un paso de penalizar el contagio de VIH… Otra vez

Secretaría de Salud, tratados internacionales y activistas están en contra de la propuesta.

Por María José Puente

Este jueves, en el Pleno del Congreso del Estado será votado un dictamen con proyecto de decreto que plantea la adición del delito de Peligro de Contagio al Código Penal del Estado de San Luis Potosí. De aprobarse, la nueva normativa establece penas y sanciones a quien o quienes pongan a otra persona en riesgo del contagio de “una enfermedad venérea u otra grave en período infectante”.

El documento, ya aprobado por las Comisiones de Justicia; y Salud y Asistencia Social, fue presentado en el Congreso por Esther Angélica Martínez Cárdenas, de la bancada priista. Ahí, la diputada expone que es necesario que el código penal potosino tome de molde la norma federal, donde el delito mencionado sí se contempla y establece una pena que puede llegar a los 5 años de prisión, igual que lo plantea el dictamen estatal.

Textualmente, en el dictamen se lee:

“Comete el delito de peligro de contagio quien, a sabiendas de que padece una enfermedad venérea u otra grave en período infectante, ponga en peligro de contagio la salud de otra persona, por relaciones sexuales, u otro medio transmisible; será sancionado de un mes a tres años de prisión, y hasta cuarenta días del valor de la unidad de medida y actualización vigente.

Si la enfermedad padecida fuera incurable se impondrá la pena de seis meses a cinco años de prisión. Cuando se trate de cónyuges, concubinarios o concubinas, sólo podrá procederse por querella de parte ofendida”.

Para las organizaciones de defensa de los derechos de la población LGBT y la propia Secretaría de Salud a nivel nacional y hasta estatal, dicha homologación es no solo anacrónica, sino que pone en riesgo a la población portadora de enfermedades como las que ahí se señalan y particularmente a quienes han sido diagnosticados o podrían serlo con VIH o Sida.

ERROR REPETIDO

En octubre de 2016, Juan Manuel Carreras, gobernador de San Luis; en conjunto con el Instituto de las Mujeres intentó una movida legislativa similar, presentando un paquete de iniciativas que tenían como objetivo prevenir la violencia contra las mujeres.

El argumento, dice en entrevista Jeús Paul Ibarra Collazo, titular de Red Diversificadores Sociales; se dirigía en el sentido de que el índice de contagio de mujeres por la vía de sus cónyuges podría ir en aumento porque parte de la población masculina, abiertamente heterosexual, en realidad mantiene relaciones sexuales con otros hombres homosexuales, contrae la enfermedad y luego, al continuar con su pareja mujer, ella también resultaba contagiada.

Ibarra Collazo reconoce que la población homosexual masculina lidera la estadística de contagio de VIH o Sida, pues al mantenerse vivo lo que él llama homofobia interiorizada, el contagio y diseminación de la enfermedad por contacto sexual entre hombres incrementa el número de casos.

Independientemente de ello, la Secretaría de Salud envió un comunicado de prensa específicamente dirigido a Juan Manuel Carreras, a quien le pidió echar un segundo vistazo sobre la iniciativa pues, según tratados internacionales a los que México está suscrito, la medida que el gobernador y el IMES pretendían impulsar es inservible.

“El Centro Nacional para la Prevención y Control del VIH/Sida de la Secretaría de Salud hace un llamado para que se analice esta propuesta en el marco de las recomendaciones internacionales y nacionales en la materia, ya que la penalización o criminalización de las personas con VIH no es una política pública que ayude a la disminución y el control de la epidemia, muy por el contrario está demostrado que el establecimiento de restricciones, señalamientos o penas a personas con VIH no impide que propague el virus y existe poca evidencia de que las sanciones penales ‘rehabilitarán’ a una persona de modo que evite un comportamiento futuro de riesgo de transmisión del VIH” sentencia el comunicado.

Recibido el documento y tras un diálogo entre las dependencias estatales, Red Diversificadores Sociales y la presión del grupo Amigos Potosinos en Lucha contra el Sida, la iniciativa parece haber sido retirada; sin embargo, este 16 de marzo, nuevamente y ya aprobado incluso por las comisiones mencionadas, el dictamen será votado por los 27 diputados que integran el Congreso, sin que quede claro si la diputada Esther Angélica Martínez Cárdenas tiene conocimiento de la iniciativa anterior.

ESTIGMA, DISCRIMINACIÓN Y ESCASA POLÍTICA DE PREVENCIÓN

 Aunque la Secretaría de Salud apunta que “imponer penas solo puede justificarse en conductas que sean jurídicamente condenables, de modo que el derecho penal basado en este objetivo solo puede aplicarse legítimamente a un subconjunto de casos de transmisión del VIH” también remata que “esto no tiene nada que ver con el objetivo principal de prevenir la transmisión del VIH”.

Eso puede también verse como lo plantea APELCS: “Es muy difícil determinar la causalidad, el dolo, la intencionalidad ya que intervienen diversos factores en la trasmisión del VIH” además, como también secunda Paul Ibarra y reafirma la Secretaría de Salud, establecer medidas punitivas por el contagio de VIH o cualquier otra enfermedad podría inhibir la voluntad de los sujetos clave para someterse a las pruebas que finalmente sí han demostrado ser un paliativo para evitar el contagio.

Es decir, que al existir una pena por el contagio, automáticamente se establece una señal de alerta sobre los sujetos portadores, sean hombres, mujeres, niños o niñas, lo que puede favorecer la discriminación y el estigma sobre una enfermedad que, con el avance de la ciencia y las políticas públicas efectivas de prevención, ha dejado de ser, para una buena parte de la población, una sentencia de muerte.

APELCS, por su parte, exhorta “a las y los integrantes de las Comisiones de Salud; Justicia y asistencia social; en particular a la Diputada Esther Angélica Martínez Cárdenas a reconsiderar la penalización del VIH y a bajar esta iniciativa, pues colocarían a las personas con VIH bajo un estatus de posibles criminales, contraviniendo a su dignidad como personas, atentando a sus derechos humanos y estigmatizándoles por su condición de salud”.

Paúl Ibarra, por otro lado, señala lo que a ojos vistas parece saltar y es que existe una desarticulación entre los poderes del estado, pues el regreso de este intento de modificación al Código Penal, denota que la diputada que la promueve no tomó en cuenta el antecedente de octubre, ni tuvo conocimiento del pronunciamiento en contra hecho por la Secretaría de Salud, RDS y APELCS hace escasos 5 meses.

Published in La Orquesta on March 17, 2017

US: Full text of Florida Supreme Court ruling on "sexual intercourse" and its HIV disclosure law

Conclusion

The term “sexual intercourse” in section 384.24(2) encompasses conduct beyond heterosexual penile-vaginal intercourse.We therefore approve the Third District’s decision in
Debaun and disapprove the Second District’s decision in L.A.P. to the extent that it conflicts with this opinion.

US: California LGBT Caucus holds briefing on the proposed repeal of HIV criminalisation laws

On Thursday, the LGBT Caucus held a briefing on the decriminalizing HIV and SB 239 introduced by State Senator Scott Wiener (D-San Francisco).

The controversial bill, Senate Bill 239, introduced in early February, would repeal laws passed more than three-decades ago that Wiener and supporters say are discriminatory and not based in science. The proposed bill would treat HIV like other communicable diseases under California Law.

According to the proposed bill, it would make it a misdemeanor instead of a felony to intentionally expose someone to HIV.

Here is a look at the Legislative Digest regarding the bill:

LEGISLATIVE COUNSEL’S DIGEST

 

SB 239, as introduced, Wiener. Infectious and communicable diseases: HIV and AIDS:criminal penalties.
(1) Existing law makes it a felony punishable by imprisonment for 3, 5, or 8 years in the state prison to expose another person to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV. Existing law makes it a felony punishable by imprisonment for 2, 4, or 6 years for any person to donate blood, body organs or other tissue, or, under specified circumstances, semen or breast milk, if the person knows that he or she has acquired immunodeficiency syndrome (AIDS), or that he or she has tested reactive to HIV. Existing law provides that a person who is afflicted with a contagious, infectious, or communicable disease who willfully exposes himself or herself to another person, or any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor.
This bill would repeal those provisions. The bill would instead make the intentional transmission of an infectious or communicable disease, as defined, a misdemeanor, if certain circumstances apply, including that the defendant knows he or she is afflicted with the disease, that the defendant acts with the specific intent to transmit the disease to another person, that the defendant engages in conduct that poses a substantial risk of transmission, as defined, and that the defendant transmits the disease to the other person. The bill would impose various requirements upon the court in order to prevent the public disclosure of the identifying characteristics, as defined, of the complainant and the defendant. By creating a new crime, the bill would impose a state-mandated local program.
(2) Under existing law, if a defendant has been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed, the previous conviction and positive blood test results are to be charged in any subsequent accusatory pleading charging a violation of prostitution. Existing law makes defendant guilty of a felony if the previous conviction and informed test results are found to be true by the trier of fact or are admitted by the defendant.
This bill would delete that provision. The bill would also vacate any conviction, dismiss any charge, and legally deem that an arrest under the deleted provision never occurred. The bill would require any court or agency having custody or control of records pertaining to the arrest, charge, or conviction of a person for a violation of the deleted provision to destroy, as specified, those records by June 30, 2018. By imposing this duty on local agencies, the bill would impose a state-mandated local program. The bill would also authorize a person serving a sentence as a result of a violation of the deleted provision to petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case. The bill would require a court to vacate the conviction and resentence the person to any remaining counts while giving credit for any time already served.
(3) Existing law requires the court to order a defendant convicted for a violation of soliciting or engaging in prostitution for the first time to complete instruction in the causes and consequences of acquired immunodeficiency syndrome (AIDS) and to submit to testing for AIDS. Existing law requires such a defendant, as a condition of either probation or participating in a drug diversion program, to participate in an AIDS education program, as specified.
This bill would repeal those provisions.
(4) The bill would also make other conforming changes.
(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Here is a copy of the Press Release introducing the Bill on Feb 6

Senator Wiener and Assemblymember Gloria Announce Bill to Modernize Discriminatory HIV Criminalization Laws
Equality California, Positive Women’s Network – USA, ACLU and others join in support of bill to reform outdated laws enacted during a time of fear and ignorance to make them more consistent with laws involving other serious communicable diseases
February 6, 2017

 

Today, Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego) introduced a bill to modernize laws that criminalize and stigmatize people living with HIV. Assemblymember David Chiu (D-San Francisco) is also a co-author of the bill. Senate Bill 239 would amend California’s HIV criminalization laws, enacted in the 1980s and ‘90s at a time of fear and ignorance about HIV and its transmission, to make them consistent with laws involving other serious communicable diseases.

The bill is cosponsored by the ACLU of California, APLA Health, Black AIDS Institute, Equality California, Lambda Legal and Positive Women’s Network – USA. The organizations are part of Californians for HIV Criminalization Reform (CHCR), a broad coalition of people living with HIV, HIV and health service providers, civil rights organizations and public health professionals dedicated to ending the criminalization of HIV in California. San Francisco Supervisor Jeff Sheehy also attended the announcement.

“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” said Senator Wiener. “They need to be repealed. During the 1980s — the same period when some proposed quarantining people with HIV — California passed these discriminatory criminal laws and singled out people with HIV for harsher punishment than people with other communicable diseases. It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV. It’s time to repeal these laws, use science-based approaches to reduce HIV transmission (instead of fear-based approaches), and stop discriminating against our HIV-positive neighbors.”

SB 239 updates California criminal law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It also brings California statutes up to date with the current understanding of HIV prevention, treatment and transmission. Specifically, it eliminates several HIV-specific criminal laws that impose harsh and draconian penalties, including for activities that do not risk exposure or transmission of HIV. It would make HIV subject to the laws that apply to other serious communicable diseases, thereby removing discrimination and stigma for people living with HIV, and maintaining public health.

“It’s time for California to reevaluate the way it thinks about HIV and to reduce the stigma associated with the disease,” said Assemblymember Gloria. “Current state law related to those living with HIV is unfair because it is based on the fear and ignorance of a bygone era. With this legislation, California takes an important step to update our laws to reflect the medical advances which no longer make a positive diagnosis equal to a death sentence.”

“As a former prosecutor, I know firsthand the need to get outdated and unscientific laws based on homophobia and fear off the books,” said Assemblymember Chiu. “These laws criminalize and stigmatize people with HIV, and they must be updated.”

Legislators passed a number of laws three decades ago, at the height of the HIV epidemic, that criminalized behaviors of people living with HIV or added HIV-related penalties to existing crimes. These laws were based on fear and on the limited medical understanding of the time.  When most of these laws were passed, there were no effective treatments for HIV and discrimination against people living with HIV was rampant.

In the decades since, societal and medical understanding of HIV has greatly improved. Effective treatments dramatically lengthen and improve the quality of life for people living with HIV—treatments that also nearly eliminate the possibility of transmission. In addition, similar treatments are available to HIV-negative people to nearly eliminate risk of infection. Laws criminalizing people with HIV do nothing to further public health and, in fact, stigmatize them, discouraging testing or obtaining necessary medical care.  The laws also reduce the likelihood of disclosure of a positive HIV status to sexual partners.

“These laws are disproportionately used against women and people of color, and fuel stigma, violence and discrimination,” said Naina Khanna, executive director of the Positive Women’s Network – USA.  “Despite their claims to protect vulnerable communities, these laws actually cause further harm, both to people living with HIV and the broader public.”

HIV criminalization disproportionately affects women and people of color. Forty-three percent of those criminalized under California’s HIV-specific criminal laws are women, despite comprising only 13 percent of people living with HIV in the state. Blacks and Latinos make up two-thirds of people who came into contact with the criminal justice system based on their HIV status, despite comprising only about half of people living with HIV/AIDS in California.

“These laws impose felony penalties and harsh prison sentences on people who have engaged in activities that do not risk transmission and do not endanger public health in any way,” said Rick Zbur, executive director of Equality California. “Modernizing them would reduce discrimination and stigma for people living with HIV. Ending stigma is at the core of ending HIV. Treatment of HIV has entered the 21st century – it’s time for California’s laws to reflect that, as well.”

“Living with HIV should not be a crime in California,” said Supervisor Jeff Sheehy, who is the first HIV positive member of the San Francisco Board of Supervisors and a leader in San Francisco’s Getting to Zero coalition to end all new HIV infections. “That’s why I support Senator Wiener’s legislation.”

In addition to the organizations sponsoring the bill, it is currently supported by CHCR members which include the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund (MALDEF), the Free Speech Coalition, Sex Workers Outreach Project (SWOP) and Erotic Service Providers Legal, Education, and Research Project (ESPLERP).

Published on East County Today on March 10th, 2017

Sweden: Government tasks Public Health Agency with HIV review to include "what need is there to provide specific information to the courts and other law enforcement authorities about the state of knowledge on the infectivity of HIV infection in a well-functioning treatment."

Knowledge State of the risk of infection by HIV should be followed up

 (Google translated English, Swedish original from Govemernment website below)
 

The Public Health Agency is commissioned to monitor how their knowledge base Infectivity in treated HIV infection have been applied. The Authority shall review the importance of documentation has been for health care initiatives related to disease transmission of HIV infection.

Monitoring should especially see how the surface influenced the conduct as a doctor under the Infectious Diseases Act announces to a patient, as well as the team’s importance in assessing the risks of transmitting HIV infection to a so-called in vitro fertilization (IVF).

– Knowledge of HIV has made great strides since the first cases were discovered. Today there are both more knowledge about the risks of infection and significantly better treatment to get. Therefore, we need to ensure that the knowledge is effectively applied so that people with HIV should be able to get as good treatment and good a life as possible, says health minister Gabriel Wikström.

The Public Health Agency shall also review what need is there to provide specific information to the courts and other law enforcement authorities about the state of knowledge on the infectivity of HIV infection in a well-functioning treatment.

In those parts of the mission involving the Public Health Agency IVF should consult with the National Board of Health and the Public Health Agency will also seek to involve other relevant stakeholders in the HIV field for the assignment.

The final report is due by 30 March 2018

 

Kunskapsläget om smittorisker vid HIV ska följas upp

 Folkhälsomyndigheten får i uppdrag att följa upp hur deras kunskapsunderlag Smittsamhet vid behandlad hivinfektion har tillämpats. Myndigheten ska se över vilken betydelse underlaget har fått för hälso- och sjukvårdens insatser som rör smittoöverföring av hivinfektion.

Uppföljningen ska särskilt se över hur underlaget påverkat vilka förhållningsregler som en behandlande läkare med stöd av smittskyddslagen meddelar till en patient, samt underlagets betydelse för att bedöma riskerna för att överföra en hivinfektion vid en så kallad in vitro fertilisering (IVF).

– Kunskapen kring HIV har tagit stora steg framåt sedan de första fallen upptäcktes. I dag finns både mer kunskap om smittoriskerna och betydligt bättre behandling att få. Därför behöver vi säkerställa att den kunskap som finns verkligen tillämpas så att personer med HIV ska kunna få så bra behandling och goda liv som möjligt, säger folkhälsominister Gabriel Wikström.

Folkhälsomyndigheten ska också se över vilket behov det finns att ta fram särskild information till domstolar och andra rättsvårdande myndigheter om kunskapsläget kring smittsamhet av hivinfektion vid en välfungerande behandling.

I de delar av uppdraget som berör IVF ska Folkhälsomyndigheten samråda med Socialstyrelsen och Folkhälsomyndigheten ska också sträva efter att involvera andra relevanta aktörer inom hivområdet för uppdraget.

Uppdraget ska slutredovisas senast den 30 mars 2018.

Canada: Advocacy groups hope law criminalising HIV non-disclosure will change soon

Advocates hope for change in HIV non-disclosure law after Ottawa meeting with provinces

Law criminalizing HIV non-disclosure needs to catch up with science, advocates say.

Advocacy groups are hoping the law criminalizing HIV non-disclosure in Canada will change after a meeting between Ottawa and the provinces in the spring.

Under Canadian law, people with HIV are required to disclose their health status to their partner before engaging in sexual activity. Those who don’t can be charged with aggravated sexual assault, whether or not HIV is actually transmitted, and face a maximum sentence of life in prison as well as permanent status as a registered sex offender.

Criminalizing non-disclosure only compounds the marginalization and fear in the lives of people living with HIV, advocacy groups say.

“This is a really important issue. The federal government has made a commitment to review the way our justice system handles HIV-related cases. And that’s something that we fully support and welcome,” Emilie Smith, a spokesperson with the Ministry of the Attorney General, told the Star in an email.

“Ontario is currently working with the federal government on this review — so that work has already started.”

The Supreme Court of Canada has ruled that a person with HIV can only keep their condition from a partner if they have a low viral load — the number of HIV virus particles in a millilitre of blood — and use a condom.

Advocates argue the law does not take into account science that says that as long as a person has an undetectable viral load, risk of transmission is practically zero, even if the person did not use a condom.

The Canadian medical community has also weighed in. In 2014, more than 70 national AIDS doctors and HIV researchers released a statement expressing concern for the Supreme Court’s approach to nondisclosure as “a poor appreciation of the science related to HIV contribut(ing) to an overly broad use of the criminal law.”

Internationally, the United Nations Programme on HIV/AIDS (UNAIDS) and the Global Commission on HIV and the Law both urged governments to limit the use of criminal law to cases of intentional transmission of the virus.

For advocates calling on lawmakers to catch up with science and reconsider its laws on HIV criminalization, the meeting between the federal government and the provinces cannot come soon enough.

In a 2013 report on the criminalization of non-disclosure and recommendations for police, the HIV & AIDS Legal Clinic Ontario underlined the “significant scientific consensus on certain key issues” as it relates to the virus.

“For over a decade, HIV has been medically understood as a chronic, manageable infection,” it reads, noting a low or undetectable viral load — usually the result of effective antiretroviral drug treatment — reduces the risks of HIV transmission through sex “to a point where the risk of transmission is negligible.”

The prosecutions are unfortunately having an impact on the most vulnerable people living with HIV, said Ryan Peck, the legal clinic’s executive director.

“There’s also the issue that the current approach to criminal law is impacting people’s decisions to test for HIV in the first place — the current use providing a disincentive to get tested.

“There is a deep fear that what people say to their health-care providers and public health authorities will end up in a court case against them.”

Last month, a protest was held outside the ministry’s office to protest the “overly broad and unjust” charges relative to HIV disclosure.

Ontario leads in the number of people charged with HIV status non-disclosure and 180 people have been charged across the country, Jonathan Valelly of Queers Crash the Beat said at the protest.

The protesters were calling for a moratorium on all HIV non-disclosure cases currently before the courts.

“This issue is just not that cut-and-dry. These cases are highly complex, and no two cases are exactly alike,” said Smith, the attorney-general spokesperson.

“What needs to happen and what is happening, is a conversation that looks at the law, how it is being applied as well as our understanding of HIV. We agree that a review is needed and the federal government has committed to look at the current law critically to see if there are changes to the Criminal Code that need to be made.”

Published in the Star on March 5, 2017

US: Modernising California HIV-criminalisation laws is crucial to reduce the fear and discrimination that lead to more HIV infections

BY EDWARD MACHTINGER

Pebbles had a life filled with trauma – she had spent most of her youth in foster care and in the juvenile justice system. When she was 17, her mother died. Despite her other problems, it was her HIV diagnosis that caused her the most shame and isolation.

She was so stigmatized by having HIV, so ashamed, so fearful of rejection by family and friends, that she did not tell anyone that she had acquired the disease. This made it almost impossible for her to come to the clinic, to take her HIV medications, and to care for herself. As a result, despite our best efforts, she couldn’t take her HIV medications regularly and died of a completely preventable brain infection. She was 22 and left behind a 1-year-old daughter.

The overwhelming stigma her story illustrates is one of the greatest challenges I’ve encountered in my 20 years as a physician treating women and girls living with HIV. I see this every day in my clinic: Many of my patients do not feel safe revealing their status to anyone for fear of rejection or violence. To make matters worse, California still has a number of laws on the books that, instead of promoting public health, criminalize people living with HIV and add substantially to the stigma surrounding it.

These laws impose draconian penalties on people living with HIV even for activities that carry no risk of transmission. By treating HIV differently than other serious communicable diseases, these laws increase the sense of shame and isolation attached to HIV.

This legislation has never been shown to help prevent HIV transmission. Rather, it makes it less likely that people living with HIV will get tested and seek treatment that makes them incapable of transmitting the virus. These laws actually increase the risk of HIV transmission in our communities.

Since these laws were enacted in the 1980s and ’90s, we have developed potent HIV medications that, when taken regularly, suppress the virus so effectively that HIV-positive people can live long, healthy lives and be completely noncontagious to others – something confirmed by two international studies. We have also learned that HIV-related stigma is, itself, a serious public health issue.

A bill recently introduced in the California Senate would modernize the state’s laws targeting people living with HIV with criminal penalties and bring them in line with how we treat other serious communicable diseases. Senate Bill 239, authored by Sen. Scott Wiener, D-San Francisco, eliminates this form of HIV exceptionalism by incorporating the current scientific understanding of HIV, addressing HIV in the same manner as other serious communicable diseases, and eliminating extra punishment for people living with HIV who engage in consensual sexual activity.

There are many reasons for HIV-related stigma, but state laws that criminalize HIV are among the worst offenders. These laws, as they are currently written, are not only outdated and ineffective, but they are actually dangerous because they create a climate of fear and discrimination that lead to more HIV infections.

SB 239 is not a partisan or political issue, nor is it a matter of conflict in medical science. This is a basic issue of public health. The proposal to revise and modernize these laws is crucial to achieve our shared goals of reducing new HIV infections and helping those living with the virus to be safe, healthy and empowered.

Dr. Edward Machtinger is a professor of medicine and director of the Women’s HIV Program at UC San Francisco. He can be contacted at Edward.Machtinger@ucsf.edu.

Published in The Sacramento Bee on February 28, 2917