US: Please help raise $20,000 to support Michael Johnson's appeal.

Justice for Michael L. Johnson

Michael L. Johnson now sits in prison under a law that hurts many and helps no one. With your help, he could be free in a matter of months.

Everyone ought to have the right to a fair trial. A toxic mix of racial bias, homophobia and income inequality made that impossible for Michael L. Johnson. With your help, he may have another chance at justice.

In the fall of 2013, Michael Johnson was living his dream. He was a student-athlete at Lindenwood University where he was a respected collegiate wrestler. He aspired to one day compete in the Olympics. But Michael’s dreams were shattered in October 2013, when he was arrested for being a sexually active black gay man living with HIV. In May 2015, under the unfair and unjust HIV criminalization laws in the state of Missouri, Michael was found guilty and sentenced to 30 ½ years.

Remarkably, in December 2016, the Missouri Court of Appeals, Eastern District, reversed his conviction based on the prosecution’s failure to turn over important evidence in a timely fashion. But Michael is not out of the woods yet. In order for Michael to have a chance to get his life back, he needs the best legal counsel available at the new trial that will take place sometime soon. This is where your help Is needed.

Michael urgently needs an attorney that can defend him and give him a shot at true justice. In order to give Michael that chance, we need to raise $20,000 in 20 days. This money will be used to hire a private attorney that has the experience, background, and passion to help Michael fight the HIV criminalization laws in Missouri.

A new trial date has not yet been set – but time is of the essence! Michael needs experienced counsel immediately.

Any amount of money will help – if we all pull together, we can reach this goal and give Michael Johnson a new lease on life. Please share his story and help support his quest for freedom.

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We are advocates, organizers, and community members committed to working toward the freedom of Michael L. Johnson, a young black gay student, respected college athlete, and aspiring olympic wrestler before he was arrested under Missouri’s unjust HIV criminalization law.

Philippines: Under Philippine law, non-disclosure of HIV could be ground for annulment of marriage but not criminal liability, says Legal Advocacy Center's Director

Concealing HIV-Aids ground for annulment

The concealment of Human Immunodeficiency Virus-Acquired Immune Deficiency Syndrome (HIV-Aids) status could be a ground for annulment of marriage although no criminal liability will be imposed, a lawyer said. Ateneo Public Interest and Legal Advocacy Center (Apila) director Romeo Cabarde Jr. said on Friday, February 3, during the Consultation and Harmonization Meeting with Partners at Brokenshire Hospital, Davao City, that under the Republic Act 8504 (Philippine Aids Prevention and Control Act of 1998) that no legal cases will be charged if an infected person opted to hide his or her status.

But, under Section 34 that “any person with HIV is obliged to disclose his or her HIV status and health condition to his or her spouse or sexual partner at the earliest opportune time.” He made the statement after one participant raised a question during the open forum whether not revealing intentionally to his or her spouse that he or she has HIV-Aids could have legal consequences considering the serious implication, known to have no cure yet, when transmitted through sexual intercourse. The lawyer said that according to the Family Code of the Philippines, a marriage may be annulled if the consent of either party was obtained by fraud. Under Article 46, that any of the following circumstances shall constitute fraud referred concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage. Thus, Cabarde urged health advocates during the event to be cautious and keep the confidentiality of individuals who are positive with the disease and provide the full protection of his or her human rights and civil liberties in accordance with the law. If someone disclosed their patient’s status without permission, they could face charges and penalties for breaching the medical confidentiality of the person infected with HIV-Aids. Instead of leading the person’s admission, he said that the health advocates should instead encourage those infected to divulge their status themselves. “As an advocate, that’s the best thing we can do hindi natin pangunahan na i-reveal (spearhead the revelation) without their consent because we will have a criminal liability,” Cabarde said. Cabarde added the agency will strengthen their awareness campaign and counselling once the infected person announce that he or she is ready to disclose and further assist their partners on how they would deal with the revelation.

Published in SunStar on February 4th, 2017

Malawi: Zomba High Court in Malawi delivers landmark ruling on the application of criminal law to cases of HIV transmission and exposure

NEWS RELEASE: Malawi High Court affirms Human Right Approach to Criminalisation of HIV Transmission and Exposure

1 February, 2017

Zomba–On 19 January 2017, the Zomba High Court in Malawi delivered a landmark ruling on the application of criminal law to cases of HIV transmission and exposure.

The appellant is a woman living with HIV who was convicted of negligently and recklessly doing an act which is “likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code for accidentally breastfeeding another person’s child. She was unrepresented at her trial and sentenced to 9 months’ imprisonment.

Before the High Court, she appealed her conviction and sentence and challenged the constitutionality of section 192 of the Penal Code for being vague and overbroad. She raised expert evidence to show the “infinitesimally small risk” of HIV transmission by women on antiretroviral treatment through breastfeeding. The State agreed that the appellant’s conviction and sentence should be overturned and set aside.

At the hearing on 2 December 2016, the Court, per Ntaba J, granted an order that the appellant’s identity be concealed to protect her confidentiality and that of the children concerned. On 19 January 2017, the High Court acquitted the appellant and ordered her immediate release. It held that the proceedings in the trial court were irregular and “blatantly bias” against the appellant, compromising her right to a fair trial.The Court held that the appellant did not have the requisite knowledge or belief that breastfeeding the complainant’s child was likely to spread HIV and cautioned against the misapplication of criminal law in cases of HIV transmission and exposure. The Court recommended the constitutional challenge be filed for separate determination considering the national interest in the issue.

Ms Clara Banya of ICW, Malawi said, “Breastfeeding is not a crime. Breastfeeding is recommended for women living with HIV who are on antiretroviral treatment by the World Health Organisation and in terms of the Ministry of Health’s Guidelines.”

“This case highlights ongoing discrimination against people living with HIV and illustrates the struggles faced by women living with HIV. There is need for communities to understand facts about HIV transmission and exposure,” said Ms Edna Tembo, the Executive Director of the Coalition of Women Living with HIV/AIDS (COWLHA).

“This case sets important precedent regionally on the misapplication of the criminal law in cases of HIV exposure, transmission and non-disclosure. The Court cautioned against the trend of crafting specific offences to deal with HIV, and affirmed the importance of respecting the rights to privacy, dignity and due process of people living with HIV,” said Annabel Raw, Health Rights Lawyer at the Southern Africa Litigation Centre (SALC), which supported the appeal.

“We commend the acquittal of the appellant and the affirmation by the court that the application of criminal law in cases of HIV transmission and exposure should be primarily protective of people living with HIV from ‘the unjust consequences of public panic.’ Laws relating to the criminalisation of HIV transmission, exposure and/or non-disclosure in the southern and east African region are often overly broad and vague, violate criminal law principles, trump human rights and are based on myths and misconceptions about HIV and its modes of transmission, thus undermining effective public health,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA), who acted as an expert witness for the appellant.

The appellant was represented by Mr Wesley Mwafulirwa of John Tennyson Associates.

NOTE TO PRESS ON PARTIES’ ANONYMITY

The Zomba High Court has issued an order that the names and personal details of the appellant, the complainant and their respective children be anonymised and protected from public disclosure. While press may report on the case, the Court warned that any use of the names or information that may identify the appellant, complainant or children would be a violation of the Court order and subject to contempt of court proceedings.

In granting this order, the Court took judicial note of the fact that the stigma and discrimination attached to HIV continues to be a challenge for people living with and affected by HIV.

For more information:

Annabel Raw (Health Rights Lawyer, SALC): Email: AnnabelR@salc.org.za; t: +27 (0)10 596 8538

Clara Banya (ICW, Malawi): Email: clarabanya@yahoo.com; t: +265 995 885 522/+265 888 898858

For background on the case and copies of the Court order and judgment: http://www.southernafricalitigationcentre.org/malawi-challenging-the-criminalisation-of-breastfeeding-by-women-living-with-hiv/

Canada: Prosecuting HIV: Is it a crime to have sex without disclosing? Public Roundtable in Toronto – Ontario on Feb 3, 2017

Public Roundtable on February 3, 2017 – Prosecuting HIV: Is it a crime to have sex without disclosing?

Posted on January 30, 2017

Prosecuting HIV: Is it a crime to have sex without disclosing? public roundtable discussion will take place:

Friday February 3^rd, 2017, from 3:30 pm to 5:30 pm

Canadiana Gallery – Room 160, 14 Queen’s Park Crescent West, Toronto, Ontario

The Supreme Court of Canada has ruled that when HIV+ people do not disclose their status to sex partners they are committing a serious crime (often, aggravated sexual assault) if there is a realistic possibility of HIV transmission. Many HIV+ people have been prosecuted and jailed even if their sex partners did not contract HIV. Efforts are now underway to use prosecutorial guidelines and other tools to make Canada’s criminal law less punitive towards HIV+ people, and updated information on these efforts will be presented at the panel.

Roundtable Panelists will include:

Maureen Owino, Director, Committee for Accessible AIDS Treatment
Ryan Peck, Executive Director, HIV&AIDS Legal Clinic Ontario (HALCO)
Amy Swiffen, Sociology Department, Concordia University, and Visiting Professor at the Centre for Criminology & Sociolegal Studies
Chris Tatham, Sociology Department, University of Toronto

The Panel Moderator is Audrey Macklin, Director, Centre for Criminology & Sociolegal Studies.

All are welcome to attend.

The event poster is available as a pdf on our website: http://www.halco.org/wp-content/uploads/2017/01/HIV-disclosure-public-roundtable-2017Feb3.pdf.

Canada: Eye-opening document on how Crown attorneys approach prosecuting HIV non-disclosure cases disclosed

Document on HIV non-disclosure prosecutions disclosed

Written by Alex RobinsonFriday, 13 January 2017

A newly disclosed document sheds some light on how Crown attorneys may have approached prosecuting HIV non-disclosure cases.

The Ministry of the Attorney General has released a document written by an assistant Crown attorney detailing her approach to prosecuting HIV non-disclosure cases.

The document discusses the admissibility of an accused person’s statements to public health as incriminating evidence — something human rights lawyers and HIV activists find troubling.

“The risk has always been that the use of an accused’s statements to public health would put a damper on HIV positive peoples’ willingness to be frank with public health, which puts their own health at risk and the population also at risk as well,” says Toronto lawyer Marcus McCann.

McCann says this approach could have a chilling effect on whether people with HIV will seek help from health professionals.

McCann obtained the document through a Freedom of Information request and subsequent years-long legal battle with the provincial government over whether the document should be disclosed.

Karen Shea, an assistant Crown attorney, wrote the document during the 2009 case of Johnson Aziga, an HIV-positive man who was convicted of murder for failing to disclose his status when he had unprotected sex with two women.

In the absence of an official set of prosecutorial guidelines for HIV non-disclosure cases, McCann first requested the document in the hope it could help discussions between the government and organizations that have been pushing the issue.

In November, the Divisional Court ordered MAG to release the document, and the provincial government decided not to appeal the decision.

The document includes a list of arguments against HIV non-disclosure criminalization and responses to them, which McCann says shows the government was aware of those critiques and had discarded them.

McCann says in the past there has been a view among HIV activists that they could push MAG to make meaningful change in the area if they could educate the ministry on current science.

“One of the things this document shows is that MAG knew full well what the concerns were with their approach and they were proceeding full steam ahead,” McCann says.

“It really is a document to my mind that is focused on prosecution at all costs and doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”

Clare Graham, a spokeswoman for Attorney General Yasir Naqvi, says the document is not an official set of prosecutorial guidelines.

“The document is the work product of an individual Assistant Crown Attorney based on her knowledge and experience prosecuting HIV exposure and transmission cases,” she said in an email.

“The Assistant Crown Attorney prepared this document not only for her own use but also to assist her colleagues in a difficult and complex area of the law; however, this document is not a Ministry issued policy or guideline.”

In the legal proceedings concerning the document’s disclosure, MAG conceded that multiple versions of the document existed and that it had been shared on an intranet accessible to all Crown attorneys.

The document was disclosed as the Ontario Working Group on Criminal Law and HIV Exposure called for a moratorium on prosecutions in HIV non-disclosure cases, unless they involve allegations of intentional transmission, while discussions take place to develop an official set of guidelines.

The working group and its member organizations have been working for years towards the development of a set of prosecutorial guidelines.

The working group has obtained a commitment in the past from the provincial government, only to never see any guidelines materialize, Peck says.

“Unfortunately the dialogue over the past seven or more years, from our perspective, has not been meaningful,” says Ryan Peck, the executive director of the HIV & AIDS Legal Clinic Ontario, who sits on the working group.

But Peck says the working group is hopeful that it will be able to engage in meaningful dialogue with Naqvi, who has been attorney general since June.

Peck says the guidelines will need to be developed to bring the prosecutions of these cases in line with up to date science and human rights principles.

The group most recently met with Naqvi at a roundtable discussion on the topic on Dec. 5.

The federal government issued its own statement on World AIDS Day in early December acknowledging the effects of the over-criminalization of HIV non-disclosure. The statement, attributed to Justice Minister Jody Wilson-Raybould, committed to examining “the criminal justice system’s response to non-disclosure of HIV status,” saying this could include a “review of existing charging and prosecution practices, as well as the possible development of prosecutorial guidelines.”

Graham says MAG is committed to working with the federal government to “examine the law in this important area.”

McCann says he hopes the disclosure of the document will mean that both CLHE and MAG are starting future discussions on and equal footing.

“My hope is that Yasir Naqvi, the attorney general, and the ministry of the attorney general approach the next phase of this process with honesty and integrity and that they come open to making some changes,” he says.

“I feel like this document is part of a story and the last chapter is yet to be written.”

Bahrain: New law ratified by the King criminalise the deliberate transmission of HIV

The KIng ratifies the HIV Prevention Law, The rights of infected persons are guaranteed by the constitution and international convention

His Majesty King Hamad bin Isa Al Khalifa, the monarch of the country, has ratified the Law for the Prevention of Society from Acquired Immune Deficiency Syndrome (AIDS) and the protection of the rights of those living with it (meaning those with it).
The law stipulates that people living with the virus enjoy the exercise of all the rights guaranteed to them by the constitution and international agreements, with the prohibition of any refusal to fully provide these rights to them, and the law stipulates their right to receive all kinds of medical care, and regular treatment in public hospitals and specialized government centers.
The law also stipulated that it is not permissible to terminate the service of a Bahraini employee or worker because of his infection with the virus, and it is not permissible to deprive him of work as long as he is able to do it, and he is also entitled to transfer him to another job that is commensurate with his health condition.
People living with the virus (infected with it) have the right to education, and it is prohibited to expel them or transfer them from schools due to infection or subject them to any practices that restrict their right to education.
The law also provides for the provision of legal advice and judicial assistance to the injured and all members of their families in the event of their insolvency or their need to institute lawsuits to protect their rights.
Among the most important texts included in the law is the prohibition of publishing any personal data about the injured in any of the means of publication .. unless the injured agreed to that in writing .. Also, medical and health workers must maintain the confidentiality of the medical and personal information of the injured and not disclose it, and when they are tried. The session must be kept confidential, whether at the request of the court or the request of the infected person and his representative … and expressly stipulating that the virus detection tests are voluntary and confidential.
The law stipulates the punishment of one year in prison and a fine of two thousand dinars for everyone who mistakenly causes the transmission of the virus to others, and the penalty rises to 10 years imprisonment and the fine (10) thousand dinars in case of deliberately causing the transmission of the virus.

(Details)

His Majesty King Hamad bin Isa Al Khalifa, the monarch of the country, has ratified and issued Law No. (1) of 2017 regarding protecting society from acquired immune deficiency syndrome (AIDS) and protecting the rights of people living with it, and it says:
Chapter One
Definitions
Article (1) 1)
In implementing the provisions of this law, the following words and expressions shall have the meanings indicated next to each of them, unless the context of the text requires otherwise:
Minister: The minister concerned with health affairs.
Ministry: The Ministry concerned with health affairs.
Disease: Acquired Immune Deficiency Syndrome (AIDS), which is a group of symptoms and signs of disease resulting from a weak immune system in the human body.
Virus: The virus that causes AIDS.
Living with HIV: A person infected with the virus that causes acquired immunodeficiency virus (AIDS), whether or not he has symptoms.
The Committee: The National Committee to Combat Acquired Immune Deficiency Syndrome (AIDS).
The representative of the person living with the virus: the spouse and relatives up to the third degree, or the attorney of the person living with the virus, or the guardian, custodian, or guardian of the person living with the virus without qualification, or the head of the diplomatic mission of the country to which the person living with the virus belongs if he does not have relatives in the Kingdom or is unable Their attendance, depending on the circumstances.
The person suspected of being infected with the virus: the sexual partner of a person living with HIV or a participant in the injection of drug with it, or whoever was exposed to one of the methods of transmission of the infection.
Health institutions: Every governmental or private facility licensed to practice and provide health services.
Medical committees: They are the bodies authorized to determine the patient’s inability to practice his work, the formation of which is issued by a decision from the Minister.
Health professions: the professions of human medicine, dentistry and pharmacy, as well as the auxiliary medical professions indicated in the table attached to Law No. (2) of 1987 regarding non-physicians and pharmacists practicing allied medical professions.
Chapter Two
Rights of people living with the virus
Article (2)
People living with the virus enjoy the exercise of all the rights guaranteed by the constitution and international agreements ratified by the state and applicable laws, and any act or abstention that constitutes discrimination against them, or leads to degradation of their dignity or diminution of their rights or Exploiting them due to infection of all genders and ages.
Article (3)
People living with the virus have the right to receive all kinds of medical care and regular treatment in public hospitals and specialized government medical centers.
Article (4) It is
not permissible to terminate the service of the Bahraini employee or worker because of his infection with the virus, and it is not permissible to deprive him from work as long as he is able to do it, unless it is proven that he is unable to do so according to a medical report from the Ministry’s medical committees, and he has the right to request his transfer to a job Other commensurate with his health condition, and the employer has the right to transfer him to another job if his current job may cause danger to those dealing with him, according to the decision of the medical committees.
Article (5)
People living with the virus have the right to education, and it is prohibited to dismiss them or transfer them from schools because of infection or to subject them to any practices that restrict their right to education.
Article (6)
The Ministry works, in coordination with the concerned authorities, to provide the necessary legal advice and judicial assistance for people living with the virus, its family members, and those affected by it, in the event of their insolvency and their need to file a lawsuit to protect their rights regarding the disease.
Article (7) It is
prohibited to publish the personal data of the person living with the virus in any of the means of dissemination, unless the person living with the virus or its representative agrees to that in writing or in the cases approved by the legislation in force.
Article (8)
The medical and health workers must maintain the confidentiality of the medical and personal information of people living with the virus, and not disclose it except in cases required by law.
Article (9)
If the person living with the virus (or a member of his family) is a party to a lawsuit whose subject matter is related to the virus, the court may, on its own initiative or upon his request, or his representative request, to make the trial secret, without prejudice to the principle of the openness of the judgment session.
Article (10)
Subject to the mandatory examination cases mentioned in laws, regulations and executive decisions, virus detection tests are voluntary and confidential.
Article (11)
Those living with the virus have the right to custody of the child without prejudice to the provisions regulating it.
Article (12) The
Ministry must train and rehabilitate people living with the virus to enable them to educate others to prevent AIDS.
Chapter Three
Duties of the Person living with the virus
Article (13)
Those who are suspected or discovered to be infected with the virus must go to the health institution to conduct the necessary examination, receive treatment and be aware of the risks and complications of infection and the methods of transmission of the virus.
Article (14) The person
living with the virus must adhere to the instructions given to him by the health institutions that treat him, with the aim of preventing the virus from being transmitted to others.
A person living with the virus, upon learning of his infection, is prohibited from undertaking any behavior that leads to transmitting the virus to others.
Article (15)
If the governmental or private health institution detects that a person has been infected with the virus, the Ministry must inform the suspect.
Chapter Four
Protection, Awareness and Information
Article (16)
A committee called (the National Committee to Combat Acquired Immune Deficiency Syndrome “AIDS”) shall be established by a decision of the Council of Ministers, headed by the Minister, and includes in its membership representatives of the concerned government agencies and the competent authorities.
Article (17):
Health institutions must follow general safety procedures and measures in all diagnostic and therapeutic operations, and take all necessary health measures to prevent the virus from transmitting to health service recipients.
And the persons and the shops that carry out activities that may lead to the transmission of the virus, must take all necessary health measures to prevent the virus from transmitting to the recipient of the service.
Article (18): The
Ministry shall take the necessary measures to encourage individuals to voluntarily screen for the detection of the virus.
Article (19):
Health institutions must take the necessary measures to train and raise the capabilities of doctors and technicians working, apply ethics of health professions when dealing with people living with the virus, and conduct scientific studies and research in this field, all with the aim of protecting society from disease and protecting the rights of people living with the virus.
Article (20)
Health professionals have the right to obtain adequate precautions to protect them from contracting the virus because of their work, and in the event that any of them is infected with the virus because of his work, he shall have the right to appropriate compensation in accordance with the laws in force.
Article (21): The
authorities and bodies concerned with media affairs, in cooperation with the Ministry and the concerned authorities, must work to spread awareness of the dangers of disease among members of society, and make them aware of the methods of virus transmission and how to prevent it.
Chapter Five
Penalties
Article (22):
A penalty of imprisonment for a period of no less than a year and a fine of not less than two thousand dinars and not exceeding twenty thousand dinars, or one of these two penalties, shall be inflicted on whoever causes by mistake to transmit the virus to others.
Whoever intentionally causes transmission of the virus to others shall be punished by imprisonment for a period of no less than ten years and a fine of not less than ten thousand dinars and not exceeding fifty thousand dinars.
It is considered an aggravating circumstance if the crime occurred as a result of the offender’s breach of the obligations imposed on him by the assets of his job, profession, or profession, or if the act resulted in the transmission of the virus to more than one person.
Without prejudice to the criminal liability of a natural person, the legal person shall be punished by double the fine, in its minimum and maximum limits, if any of the crimes prescribed under the provisions of this law are committed by one of his employees.
Article (23):
Whoever commits an act or abstains from working in the face of a cohabitant with the virus that constitutes discrimination against him or leads to degradation of his dignity, diminution of his rights, or exploitation due to infection, shall be punished with imprisonment for a period not exceeding six months or a fine not exceeding five hundred dinars.
Article (24)
Whoever violates the provisions of Articles (7 and 8) of this Law shall be punished with imprisonment for a period of no less than six months and a fine of not less than one thousand dinars and not exceeding five thousand dinars, or one of these two penalties.
Article (25):
Any individual establishment or a private legal person who violates the provisions of Articles 4 and 5 of this law is punished by a fine of not less than five hundred dinars and not more than one thousand dinars.
Chapter Six
Final Provisions
Article (26): The
Minister shall issue the executive regulations for this law within one year from the date of its issuance.
The Minister issues decisions implementing this law.
Article (27): The
Prime Minister and the ministers – each within his jurisdiction – shall implement this law, and it shall come into force as of the day following the date of its publication in the Official Gazette.

Canada: Ontario Court of Appeal rules that HIV disclosure by police in news releases does not violate a person's constitutional rights

Court ruling sets ‘low bar’ for police to disclose HIV status

Ontario Court of Appeal finds police didn’t violate suspect’s Charter rights by disclosing health status in news release

If a person charged with a crime is found to be HIV-positive, that could be enough for police to disclose that very personal and sensitive information to the public.

That’s one takeaway from an Ontario Court of Appeal decision that advocates say is cause for concern for those living with HIV or AIDS, which continue to attract stigma and misunderstanding despite evolving science.

The province’s top court overturned a lower court decision last week, ruling that that Durham Regional Police did not breach former youth pastor Kris Gowdy’s constitutional rights following his 2012 arrest for Internet child luring when they disclosed in a news release that he was HIV-positive.

Gowdy was arrested after arriving at the home of someone who had been posing as a 15-year-old boy online, to perform oral sex, only to discover the individual was a police officer. Police searched his car and discovered documentation and medication proving he was HIV-positive. The arrest and Gowdy’s HIV status were widely reported on at the time, making international headlines.

Writing for a unanimous three-judge panel, Justice David Watt said the police force’s actions in disclosing Gowdy’s HIV status were “clearly in retrospect not advisable.”

But the judges held that the release of that information did not violate Gowdy’s right to security of the person because there had been no finding at trial that the disclosure had a psychological effect on Gowdy beyond the impact already caused by the charge he was facing.

They also concluded that provincial privacy legislation contains an exemption for municipal institutions to release personal information that they have lawfully gathered if it is for a “consistent purpose.”

In this case, Watt said that the “consistent purpose” was to further the investigation “by inviting responses from other sexual partners of Gowdy” who may be at risk of transmission.

“The police had reasonable suspicion; reasonable grounds to believe further offences had been committed was not required for the purpose of the media release,” Watt said.

The court dismissed Gowdy’s appeal of the conviction, but allowed the Crown’s appeal. The court substituted Gowdy’s two-year conditional sentence, which he served at home, with a one-year jail term, although it said he should not be re-arrested because he had already served his sentence.

As noted by the Court of Appeal, the lead investigator in the case did not seek legal advice or the permission of the police chief or his designate before issuing the news release, did not seek medical advice to find out the likelihood of transmission of the virus through a sexual activity such as fellatio, and did not seek to confirm Gowdy’s assertion that his medication had rendered his viral load so low that it made transmission unlikely.

Gowdy also never admitted in his interview with police that he had had sexual contact with individuals who were unaware of his HIV status, the court said.

“The lead investigator testified that, to his knowledge, he had never before investigated someone with HIV in his 23 years of policing,” Watt wrote. “The investigating officer acknowledged he did not consider the Charter rights of Kris Gowdy before requesting the media release.”

Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, one of the interveners in the appeal, said in an interview with the Star that police should have turned their minds to what the actual risks of transmission may have been in this case.

“I can’t think what that ‘reasonable suspicion’ is actually founded on. I don’t think the suspicion is a reasonable one, all the information the officer had was that this accused was HIV-positive,” Elliott said.

“This is a case in which merely finding out someone has HIV was seen by police as sufficient for putting out a press release, basically engaging in a fishing expedition.”

He also described the court’s interpretation of the “consistent purpose” exemption as “very, very liberal,” saying it sets an “extraordinarily low bar” that police have to clear before releasing a person’s HIV status.

The case highlights what advocates say is a lack of proper training for officers in dealing with HIV-positive individuals and the absence of clear statutes governing the disclosure of such information by police.

Durham police spokesman Dave Selby declined to comment on the court’s decision.

“In general, I can say that we regularly review our policies to ensure they are consistent with all applicable laws and judicial decisions. We will review this decision carefully, as well,” he said in an email. “We will continue to respect the fundamental privacy rights of all citizens while balancing our community safety responsibilities.”

Gowdy’s appeal lawyer, Russell Silverstein, said his client is considering whether to seek leave to appeal to the Supreme Court of Canada.

“When it comes to one’s HIV status, different considerations apply, it’s not the same as telling the world that the accused is suffering from cancer or some other disease,” he told the Star.

“You can’t say that the release of such information is per se a Charter breach, it’s going to depend on the circumstances, and the question is: what should the appropriate test be for the disclosure of that particular information?”

A former pastor with the Free Methodist Church of Canada, Gowdy posted an ad on Craigslist in 2012 looking for men interested in receiving oral sex, specifying he was looking for “under 35, jocks, college guys, skaters, young married guy.”

A detective with the OPP’s Child Sexual Exploitation Section homed in on the use of the words “young,” “skater,” and “under 35” in Gowdy’s ad, and began an online conversation with him, posing as a 15-year-old boy.

Shortly after agreeing to meet the “boy” for oral sex, Gowdy was arrested. He maintained in court that he never actually believed the person he was conversing with was 15 years old.

Gowdy, a former pastor with the Free Methodist Church of Canada, had kept his sexual orientation secret from his family and church, his 2014 trial heard. He had no prior criminal record and there were no complaints about inappropriate behaviour from the ministries where he had worked as a pastor.

“I regret incredibly my actions, they were foolish and inappropriate,” Gowdy told the Star in an interview in 2014. “It feels to me like there should be some kind of reprimand to these officers at the minimum.”

At trial, Justice Michael Block found that the release of Gowdy’s HIV status violated his constitutional rights. He circumvented the mandatory minimum sentence of one year in jail for the luring offence, and instead imposed a two-year conditional sentence, which Gowdy served at home. Gowdy’s name was to remain on the sexual offender registry for 20 years.

“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” Block said. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”

Canada: Preliminary discussions said to be underway to review current practices in HIV non-disclosure cases

Advocates eager for feds to review ‘over-criminalizing’ of HIV non-disclosure

Joanna Smith, The Canadian Press

Published Wednesday, December 28, 2016 11:50AM EST

OTTAWA — Marjorie Schenkels had unprotected sex three times with a friend, while they both had been drinking, as she was going through a difficult and volatile time in her life.

The Manitoba woman was also living with HIV — a diagnosis she had told only her mother about — and feared she would lose her friends if they, including the man she was having sex with, found out.

She also did not tell the man she had sex with those three times, and he also later tested positive for HIV, although the question of where he contracted it is a matter of contention.

A jury convicted Schenkels of aggravated sexual assault in December 2014.

She did not lie, or manipulate or exploit, the sentencing judge from the Court of Queen’s Bench of Manitoba wrote in the Mar. 1 decision that includes the details of her story.

“Rather, her silence was the result of fear and inability to accept the gravity of her situation,” the judge wrote as she sentenced Schenkels, who is now also a registered sex offender, to two years in prison less a day.

Schenkels is appealing her conviction, with arguments being heard Jan. 10.

There is no particular provision in the Criminal Code regarding the disclosure of HIV status, but there are certain circumstances in which failing to do so is a crime.

That can include having consensual sex — something the Liberal government is now open to changing.

“The over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” Justice Minister Jody Wilson-Raybould said in a statement published online Dec. 1, which was World AIDS Day.

“Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease,” she wrote.

The statement said Wilson-Raybould would be taking a closer look at how the criminal justice system deals with non-disclosure of HIV status, which could include reviewing current practices on laying charges and going ahead with prosecutions, as well as developing prosecutorial guidelines.

The justice department did not make anyone available for an interview, but spokesman Ian McLeod said in an email that preliminary discussions are underway.

The Supreme Court of Canada has ruled that the consent someone gives to engaging in sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status.

The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

The high court clarified in 2012 that this would not apply if someone is using a condom and also has a “low viral load,” but advocates argue the law has fallen far behind the science and creates more problems than it attempts to solve.

The fact that HIV non-disclosure falls under aggravated sexual assault or other offences makes statistics harder to come by than they are for other crimes, but the Canadian HIV/AIDS Legal Network has counted at least 180 people charged for offences related to HIV non-disclosure in Canada since 1989.

This relatively high number of prosecutions — and the fact that the issue is criminalized at all — has brought Canada under scrutiny on the world stage.

In July, Justice Edwin Cameron of the Constitutional Court of South Africa shamed Canada — alongside Zimbabwe — for its approach to the issue in his keynote address at the International AIDS Conference in Durban.

“I ask all Canadians to share the blame — not just us in Africa,” he said to resounding applause.

Canadian Health Minister Jane Philpott was in the room.

The changes the Liberal government ends up proposing will likely face some opposition over the ethical challenges surrounding the issues of disclosure in intimate relationships.

“I recognize that it’s difficult, but I think it’s important to draw some lines into when the criminal law is actually warranted and not warranted,” said Cecile Kazatchkine, a senior policy analyst with the Canadian HIV/AIDS Legal Network.

The United Nations Programme on HIV/AIDS (UNAIDS) has recommended prosecuting only those people who knowingly and intentionally transmit the virus to their partners, rather than simply not disclosing it, which some advocates say is not always possible, such as in abusive relationships.

Cynthia Fromstein, a Toronto-based defence lawyer who has represented clients facing HIV disclosure-related charges, said there is still “enormous” ignorance and fear surrounding HIV, which is only made worse by the current laws.

“The only time you see HIV, practically, is when someone’s picture is on the paper, being charged . . . with aggravated sexual assault,” said Fromstein.

Published in CTV News on Dec 28, 2016

Russia: Lawmakers in the Altai Krai region unanimously agree to support a law to allow for mandatory HIV testing AND treatment

English version – Translation (For Russian version, please scroll down)

The Provincial Parliament’s legislative initiative will be sent to the State Duma as a draft federal law

BARNAUL, December 15. Deputies of the Legislative Assembly of the Altai Krai took the initiative to take on the federal law on compulsory treatment of people diagnosed with HIV. They decided to send a proposal to the State Duma as a session of the regional parliament adopted it, reports the press service of the Legislative Assembly.

“The Provincial Parliament will send to the State Duma a legislative initiative of the draft federal law” On Amendments to the Federal Law “On Prevention of Spread of the disease caused by HIV.” For example, citizens suffering from social diseases, which constitute a danger to others (tuberculosis), are subject to mandatory laboratory examination and medical observation or treatment and compulsory hospitalization or isolation in the manner prescribed by the law. The initiative involves the Altai Deputies to extend these norms to HIV-infected patients”, – said the press service.

They added that all 66 deputies unanimously supported the initiative to amend the Law. “The adjustment of the law is to allow professionals, as appropriate, provide forced treatment and monitoring of HIV-infected people to avoid the spread of the virus,” – explained the Legislative Assembly.

According to the press service, the medical check-up and treatment of HIV-infected people in Russia is fulfilled at the expense of the federal subsidies and intergovernmental transfers of the RF federal budget entities to ensure the procurement of antiviral drugs. “Thus, additional funding for coverage of medical observation and treatment of patients with HIV infection is not needed” – added the Legislative Assembly of the Altai Territory.

For most of the Altai Territory, the issue of HIV is relevant: according to the Regional AIDS Centre, for the past 10 years in the region, the number of people diagnosed with HIV has doubled to more over 24 thousand people. Now in the region 217 children and more than 3 thousand adults get treatment. According to official data of Ministry of Health of the Russian Federation, totally 824 thousand HIV cases are registered in Russia. The average therapy coverage nationally is about 40%.

Краевой парламент в порядке законодательной инициативы направит в Госдуму проект соответствующего федерального закона

БАРНАУЛ, 15 декабря. /Корр. ТАСС Ксения Шубина/. Депутаты Алтайского краевого Законодательного собрания выступили с инициативой принять на федеральном уровне закон о принудительном лечении людей с диагнозом ВИЧ. Решение направить такое предложение в Госдуму было принято на сессии регионального парламента, сообщили в пресс-службе Заксобрания.

“Краевой парламент направит в Госдуму в порядке законодательной инициативы проект федерального закона “О внесении изменений в Федеральный закон “О предупреждении распространения в Российской Федерации заболевания, вызываемого ВИЧ”. К примеру, граждане, страдающие социально значимыми заболеваниями, представляющими опасность для окружающих (туберкулез), в обязательном порядке подлежат лабораторному обследованию и медицинскому наблюдению или лечению и обязательной госпитализации или изоляции в порядке, установленном законодательством РФ. Инициатива алтайских депутатов предполагает распространить эти нормы и на ВИЧ-инфицированных больных”, – сказали в пресс-службе.

Там добавили, что все 66 депутатов единогласно поддержали инициативу о внесении изменений в ФЗ. “Корректировка закона должна позволить специалистам, в случае необходимости, проводить лечение и наблюдение за ВИЧ-инфицированными в принудительном порядке, чтобы избежать распространения вируса”, – пояснили в Заксобрании.

По данным пресс-службы, диспансерное наблюдение и лечение ВИЧ-инфицированных в России осуществляется за счет федеральных субсидий и межбюджетных трансфертов федерального бюджета субъектам РФ на обеспечение закупок антивирусных препаратов. “Таким образом, дополнительного финансирования на охват диспансерным наблюдением и лечением больных ВИЧ-инфекцией не потребуется”, – добавили в Заксобрании Алтайского края.

Для самого Алтайского края тема борьбы с ВИЧ актуальна: по данным регионального Центра СПИД, за последние 10 лет в регионе количество людей с выявленным диагнозом ВИЧ увеличилось в два раза – до более чем 24 тыс. человек. Сейчас в регионе получают лечение 217 детей и более 3 тыс. взрослых. По официальным данным Минздрава РФ, всего в России зарегистрировано 824 тыс. случаев ВИЧ-инфекции. Охват терапией в среднем по стране – около 40%.

Originally published in TASS

El Salvador: New law for the prevention and control of HIV includes duty to disclose HIV-status to all sexual partners

English translation ((Para artículo en español, desplácese hacia abajo)

People who are HIV positive and who want to maintain a permanent or eventual relationship with their partner, should inform them of their status as a carrier of the virus, as established by a new law in the country.

The Legislative Assembly approved in the plenary session, Wednesday of this week, the new Law on Prevention and Control of Infection caused by the Human Immunodeficiency Virus.

The regulations were described by the Atlacatl Vivo Positivo Association as “a setback” in defending the human rights of HIV positive people. In the section that refers to the duty to communicate, article 15, third paragraph of the law states that “any person who has been notified of his / her serological condition is obliged to communicate this situation to his / her partner, whether permanent or casual,”

The director of the Atlacatl Association, Odir Miranda, said that the law is criminalizing people who HIV positive “because it is forcing us to reveal that we are HIV positive; The other is that I can accuse a person and say that she infected me and I have no way to prove whether it was her or someone else “Miranda said.

He added that another disadvantage to which the new regulations exposes them is that by forcing them to say they have the virus, they are not likely to obtain housing, life insurance and hardly likely to get jobs, he explained

That aspect of the law is very serious, says Miranda, because they can not be exposed to regulations that, instead of helping to defend the human rights of HIV-positive people, will criminalize them, he said.

The Atlacatl Association criticized the fact that the body governing the regulation is the Ministry of Health, as embodied by article 3 of the new law. Miranda questions this because, according to him, The Ministry of Health is judge and part with its functions.

He added that the state portfolio, as the lead agency, will not be impartial when imposing sanctions for complaints against discrimination in the hospitals of the public network and the Salvadoran Institute of Social Security.

“There are many complaints of discrimination that we have put against hospitals and so far nothing has been done,” Miranda said.

In practice the law is nothing new, what’s more, it would better if it was repealed because it rights woudd be better, he said.

The only thing that the Public Health Commission of the Legislative Assembly did with the new legislation, then approved by the plenary, was to empower the Ministry of Health and change the name of the National Commission against AIDS (Conasida) to the National Commission Against HIV (Conavih).

According to him, the law has wanted to sell itself as a human rights approach, but it does not have it because they have left out the Ministry of Labor and Education, who are part of the main bodies in the national response to HIV.

The National HIV Commission is made up of the Ministry of Health, the Higher Public Health Council (CSSP), the Ministry of Foreign Affairs, the Office of the Procurator for the Defense of Human Rights (PDDH), the Associations and Foundations whose objective is prevention of The Medical School, the Ministry of Social Inclusion and the National Institute of Youth.

When discussing the draft law that was approved on Wednesday, the Atlacatl Association proposed that the governing body be an institution detached from the Ministry of Health because the approach they sought was a multisectoral participation with the Attorney General’s Office, and the Supreme Court, among others.

With this framework of disadvantage, according to Miranda, they will ask the President of the Republic, Salvador Sánchez Cerén, to veto the new law because it gives a negative message to the country in response to HIV.

Miranda called the regulations a delay to what has been achieved in terms of fighting and responding to the disease. “We will target activities towards the Presidential House so that it does not sanction it,” he said. He even said that they could go to the Inter-American Court of Human Rights to denounce the law.

————————————————————————————————–

Portadores de VIH obligados a decir su condición a su pareja sexual

La Asamblea legislativa aprobó la nueva Ley de Prevención y Control de la Infección provocada por el Virus de Inmunodeficiencia. La ley aún debe ser sancionada por el presidente de la República, Salvador Sánchez Cerén.

Por Roberto Alas

Las personas que se encuentren con el Virus de Inmunodeficiencia Humana (VIH) y que quieran mantener una relación permanente o eventual con su pareja, deberá informarle su condición de portador del virus, según ha quedado establecido en una nueva ley del país.

La Asamblea Legislativa aprobó en la sesión plenaria, del miércoles de esta semana, la nueva Ley de Prevención y Control de la Infección provocada por el Virus de Inmunodeficiencia Humana.

La normativa fue calificada por la Asociación Atlacatl Vivo Positivo como “un retroceso” en la defensa de los derechos humanos de estas personas. En el apartado que se refiere al Deber de comunicar, el artículo 15 inciso tercero de la normativa establece que “toda persona que haya sido notificada de su condición serológica, está obligada a comunicarle tal situación a su pareja, ya sea permanente o eventual”, expone.

El director de la Asociación Atlacatl, Odir Miranda, aseguró que la ley está criminalizando a las personas con VIH positivo “porque nos está obligando a revelar que somos VIH positivo; lo otro es que yo puedo acusar a una persona y decir que me infectó y no tengo la manera de probar si fue ella u otra”, expuso Miranda.

Agregó que otra de las desventajas en la que los expone la nueva normativa es que al obligarlos a decir que tienen el virus, no son sujetos a obtener viviendas, un seguro de vida y difícilmente les dan empleo, explicó

Ese aspecto dentro de la ley es muy grave, dice Miranda, porque no pueden exponerse a tener una normativa que, en vez de ayudar a la defensa de los Derechos Humanos de las personas VIH positiva, va a criminalizarlos, aseguró.

La Asociación Atlacatl criticó que el ente rector de la normativa sea el Ministerio de Salud, tal como quedó plasmado en el artículo 3 de la nueva ley. Mirando cuestiona ese hecho porque, según él, el Salud es juez y parte dentro de sus funciones.

Agregó que la cartera estatal, como organismo rector, no será imparcial al momento de imponer sanciones por denuncias contra discriminación en los hospitales de la red pública y del Instituto Salvadoreño del Seguro Social.

“Existen muchas denuncias de discriminación que hemos puesto contra los hospitales y hasta ahora no se ha hecho nada”, lamentó Miranda.

Pare él, prácticamente la ley no tiene nada nuevo, es más, estaba mejor la que fue derogada porque les garantizaba mejor sus derechos, dijo.

Lo único que hizo la Comisión de Salud Pública de la Asamblea Legislativa con la nueva normativa, y aprobada por el pleno, fue darle facultades al Ministerio de Salud y cambiar el nombre de la Comisión Nacional contra el Sida (Conasida) por el de Comisión Nacional Contra el VIH (Conavih).

Según él, la ley la han querido vender con un enfoque de derechos humanos, pero no lo tiene porque han dejado afuera al Ministerio de Trabajo y al de Educación, quienes son parte de los entes principales en la respuesta nacional contra el VIH.

La Comisión Nacional contra el VIH está conformada por el Ministerio de Salud, Consejo Superior de Salud Pública (CSSP), Ministerio de Relaciones Exteriores, Procuraduría para la Defensa de los Derechos Humanos (PDDH), las Asociaciones y Fundaciones cuyo objetivo sea la prevención de la enfermedad, Colegio Médico, la Secretaría de Inclusión Social y el Instituto Nacional de la Juventud.

Cuando se discutió el anteproyecto de la ley que se aprobó el miércoles, la Asociación Atlacatl propuso que en ente rector fuese una institución desligada del Ministerio de Salud porque el enfoque que buscaban era una participación multisectorial en donde estuviese la Fiscalía General de la República, Corte Suprema de Justicia, entre otros.

Con ese marco de desventaja, según Miranda, pedirán al presidente de la República, Salvador Sánchez Cerén, que vete la nueva ley porque da un mensaje negativo del país en la respuesta al VIH.

Miranda tildó la normativa como un retraso a lo que se había logrado en cuanto a la lucha y respuesta a la enfermedad. “Vamos hacer acciones hacia Casa Presidencial para que no la sancione”, aseguró. Incluso, dijo que podrían acudir a la Corte Interamericana de Derechos Humanos para denunciar la normativa.