[Update]Mexico: Legislation to criminalise HIV transmission withdrawn in San Luis Potosi State Congress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

Russia: Government to examine possibility of removing HIV-specific criminal law and broadening prosecutions to all serious communicable diseases under general ‘bodily harm’ laws

The Russian government is considering removing Article 122 (Infection with Human Immuno-deficiency Virus) from the Criminal Code, according to an article published earlier this month on the RBC website.

Deputy Prime Minister Olga Golodets has instructed a number of ministries to work together to examine whether it is possible to eliminate this HIV-specific criminal law.

The Ministry of Justice, Ministry of Health, Ministry of Internal Affairs, the Federal Service, Prosecutor General’s Office, the Supreme Court and the Institute of Legislation and Comparative Law under the Government have been given a deadline of October 1, 2017.

Article 122. Infection with Human Immuno-deficiency Virus (HIV)

1. Posing a conscious threat to infect a person with HIV

Shall be punishable by restraint of liberty for a term of up to 

three years, or by compulsory labour for a term of up to one year,

or by arrest for a term of up to six months, or by deprivation of

liberty for a term of up to one year.

2. Infection of another person with HIV by a person who knew that 

he had such disease, Shall be punishable by deprivation of liberty

for a term of up to five years.

Federal Law No. 14-FZ of February 29, 2012 amended part 3 of

Article 122 of this Code

3. The act described in the second part of this Article, 

committed against two or more persons, or against an obvious juvenile,

Shall be punishable by deprivation of liberty for a term of up to

eight years with deprivation of the right to hold definite offices

and to engage in definite activities for a term of up to ten years

or without such.

4. Infection of another person with HIV through the improper

discharge by a person of his professional duties, shall be punishable

by compulsory labour for a term of up to five years accompanied by

deprivation of the right to hold specified offices or to engage in

specified activities for a term of up to three years or without

such or by deprivation of liberty for a term of up to five years

accompanied by deprivation of the right to hold specified offices

or to engage in specified activities for a term of up to three years.

Note: A person who has committed the deeds provided for by

Parts One and Two of this Article shall be released from criminal

liability if the other person subjected to the risk of being

infected, or infected, with HIV was warned in due time that

the former had such disease and agreed of his own free will to

commit the actions posing the risk of infection.

During their deliberations, the ministries will consider instead applying Articles 111, 112, 115 of the Criminal Code relating to the intentional infliction of ‘serious’, ‘average’ or ‘light’ bodily harm, respectively.

(Scroll to the bottom of the page for the full text of these Articles.)

Opportunities and threats

Without clear prosecutorial guidelines, however, it is possible that the punishment for alleged HIV transmission could be much more harsh under these general laws (from up to 5 years to up to 10 years) than under the present HIV-specific statute.

However, this may also be an opportunity to decriminalise potential or perceived HIV exposure without prior disclosure of known HIV-positive status, since no bodily harm has been inflicted.

Nevertheless, the article notes that applying general laws could also allow for prosecutions relating to other serious and dangerous communicable diseases, which has the potential to greatly expand the use of the criminal law against a number of vulnerable populations in Russia that are disproportionately impacted by, for example, hepatitis and TB.

The proposal to delete the article on HIV infection was advanced by lawyer Konstantin Dobrynin during a meeting on 3 February of the Council of the Government of guardianship in the social sphere of which he is a board member. Having such a law is parcularly discriminatory for patients with HIV, he said. “This article appeared in the legislation in 1996, since then has passed 21 years, the world has moved forward,” said Dobrynin.

Dobrynin stressed that the law usually does not consider as a defence the use of condoms and whether the patient is on treatment, noting that condom use and antiretroviral treatement creates a “negligible” probability of infection.  “We propose to recognize the article about HIV infection as invalid and to register a new article for the infection of all kinds of infectious diseases, the list of which is to be approved by the State,” summarized Dobrynin.

[However], the proposal to create a separate article for all infectious diseases was not reflected in Golodets’ order.

During the 30-month period: April 2013 to October 2015, we found that Russia had the highest number of HIV-related cirminal cases in the world during this period (at least 115), followed by the United States.

The RBC article states that there were 19 convictions under Article 122 in the first half of 2016 and 45 in 2015. This means that only some of the cases we highlight on our site are reported in the news.

Tipping point

It is widely believed that Russia currently faces a tipping point in how it tackles its growing HIV epidemic.

19400179_7The high level discussion on removing Russia’s HIV-specific criminal law is taking place at the same time as a number of other policy decisions relating to HIV, as Russia formulates its Action Plan to implement its Strategy to Combat the Spread of HIV.

A number of ministries are also considering the issue of entry, stay and residence restrictions on foreign-born residents of Russia who are living with HIV.

In 2015, the Russian Constitutional Court halted the deportation of foreigners living with HIV if they had family and/or immediate relatives living in Russia. In January 2017, the Ministry of Health proposed to further relax entry, stay and residency restrictions on foreigners with HIV but this proposal was blocked by the Ministry of the Interior and Ministry of Economic Development. 

Since then, Deputy Prime Minister Olga Golodets has instructed these ministries to work together on this issue as well as to study how to provide medical care for foreign citizens of Russia living with HIV.

Another positive sign is that the Government recently rejected a law – which was meant to be enforced on January 1st 2017 – to mandate registration of all people with diagnosed HIV into a central database, primarily due to concerns that this would drive undiagnosed individiduals underground.

Agencies and organizations spoke out against the introduction of the registry for the HIV-infected and concluded that such a measure will not contribute to “the creation of a trust, a partnership that must be established between providers and patients,” the document stated.

Also, it will cancel the rule on anonymity of HIV testing, the government stressed. This can significantly reduce the number of people willing to take such a test.

 

The full text of Articles 111, 112 and 115 in English

from http://www.legislationline.org/documents/section/criminal-codes/country/7

Article 111. Intentional Infliction of a Grave Injury

1. Intentional infliction of a grave injury, which is hazardous for

human life or which has involved the loss of sight, speech, hearing,

or any organ or the loss of the organ's functions, or which has

expressed itself in the indelible disfiguring of a human face,

and also infliction of other harm which is dangerous to human life

or which has involved an injury to a person's health, joined with

considerable permanent loss of general ability to work by not less

then one third or by the full loss of an occupational capacity for

work, which capacity was evident to the guilty person, or which has

involved the interruption of pregnancy, mental derangement, or the

victim's falling ill to drug addiction or toxicosis, -

Shall be punishable by deprivation of liberty for a term of up

to eight years.

2. The same acts committed:

a) in respect of a person or his relatives in connection with his

official activity or the discharge of his public duty;

b) with respect to a minor or another person who is, knowingly for

the guilty person, in a helpless state, as well as with special

cruelty, torture or torments for the victim; 

c) by a generally hazardous method;

d) by hire;

e) out of malicious motives;

f) by reason of political, ideological, racial, national or

religious hatred or enmity, or by reason of hatred or enmity

with respect to some social group;

g) for the purpose of using the organs or tissues of the victim,

shall be punishable by deprivation of liberty for a term of 

up to 10 years with restriction of liberty for a term up to

two years or without such.

3. Acts provided for by the first or second parts of this Article,

if they are committed:

a) by a group of persons, a group of persons by previous concert,

or an organised group; b) against two or more persons, -

c) abolished

shall be punishable by deprivation of liberty for a term of 

up to 12 years with restriction of liberty for a term up to

two years or without such.

4. Acts stipulated in the first, second, or third part of this

Article, which have involved the death of the victim by negligence,

shall be punishable by deprivation of liberty for a term of up

to 15 years with restriction of liberty for a term up to 

two years or without such.

Article 112. Intentional Infliction of Injury to Health of Average Gravity

1. Intentional infliction of injury of average gravity, 

which is not hazardous to human life and which has not involved

consequences referred to in Article 111 of this Code, 

but which has caused protracted injury to health or 

considerable stable loss of general capacity for work by not less

than one-third, shall be punishable by restriction of liberty

for a term up to three years, or by compulsory labour for a term

of up to three years, or by an arrest for a term up to six months

or by deprivation of liberty for a term of up to three years.

2. The same act committed:

a) against two or more persons;

b) against a person or his relatives in connection with his

official activity or the discharge of his public duty;

c) with respect to a minor or another person who is, knowingly

for the guilty person, in a helpless state, as well as with

special cruelty, torture or torments for the victim;

d) by a group of persons, a group of persons by previous concert,

or an organised group; e) out of malicious motives;

f) by reason of political, ideological, racial, national or

religious hatred or enmity, or by reason of hatred or enmity

with respect to some social group -

g) abolished

shall be punishable by deprivation of liberty for a term of five years.

Article 115. Intentional Infliction of Light Injury

1. Intentional infliction of light injury which has temporarily

damaged health or caused an insignificant stable loss of general

capacity for work,

Shall be punishable by a fine of up to 40 thousand roubles,

or in the amount of the wage or salary or any other income of

the convicted person for a period of up to three months,

or punishable by compulsory works for a term of up to 480 hours,

or corrective labour for a term of up to one year, 

or by arrest for a term of up to four months.

2. The same deed committed:

a) through ruffian-like motives;

b) by reason of political, ideological, racial, national or

religious hatred or enmity, or by reason of hatred or enmity

with respect to some social group -

shall be punishable by compulsory works for a term of up to

three hundred and sixty hours, or by corrective labour for a term

of up to one year, or by restriction of liberty for a term of up

to two years, or by compulsory labour for a term of up to two years.

or by an arrest for a term of up to six months, 

or by deprivation of liberty for a term of up two years.

 

[Update] US: Utah House Judiciary Committee approves bill making it a criminal offense to engage in consensual sexual activity without disclosing known HIV-positive status

Utah committee approves bill that increases penalties for failing to disclose HIV-positive status – Measure would also make it a crime to have consensual sex without disclosing infection.

Sexual offense convictions would carry an enhanced penalty if the perpetrator is HIV-positive under a bill approved Friday by the House Judiciary Committee.

Committee members voted 9-2 in favor of HB369, which calls for a one-step increase in charges for offenses perpetrated by individuals with HIV or AIDS.

The proposal also would make it a class A misdemeanor to engage in otherwise consensual sexual activity if people fail to disclose their HIV status to their sexual partners.

Rep. Justin Fawson, R-North Ogden, said his bill’s class A misdemeanor “nonconsensual sexual conduct” charge is comparable to a charge of reckless endangerment. And while treatment and medication can significantly minimize the risk of spreading infection, Fawson said, people still put their partners in danger by failing to disclose their status.

“There is no way to reduce the risk to zero,” he said. “There’s no way.”

Equality Utah Executive Director Troy Williams said there are already criminal enhancements in Utah code for “bodily harm,” which would cover the intentional or reckless spread of sexually transmitted infections (STIs).

He said the state should encourage HIV-positive individuals to get tested and receive treatment and is worried that HB369 could undermine STI prevention efforts by focusing on status rather than actions.

“We should absolutely be enhancing penalties for intent and harm, but not the health status of the perpetrator,” he said. “We would want to do everything in our power to open the doors to encourage people to be tested.”

Rep. Dixon Pitcher, R-Ogden, asked Williams whether the state’s compassion for a person who is HIV-positive should outweigh the compassion for a person who is infected without warning.

“It’s unconscionable to me that somebody would have sex with somebody without disclosing what they are carrying,” Pitcher said.

But Williams said compassion is not mutually exclusive, cautioning lawmakers against taking steps that target individuals based on their health.

“It is moving us down a path of stigmatizing and criminalizing people who live with HIV,” he said.

Will Carlson, a representative for the Statewide Association of Prosecutors, said applying the law in court could be challenging, because it requires proof beyond a reasonable doubt that perpetrators were aware of their HIV-positive status.

“Proving that a defendant knew, at the time, that a sexual act occurred, may be problematic,” he said.

The committee considered several amendments to the bill, including one that would have broadened the criminal enhancement to the transition of any sexually transmitted infection. That amendment failed, and Fawson suggested that additional changes could be made when HB369 reaches the House floor.

———————————————

Utah House Judiciary Committee discuss passing law that would classify HIV non-disclosure as rape

Bill Charging HIV/AIDS Patients with Rape if they Don’t Disclose Held

Legislation that criminalizes sexual situations involving HIV/AIDS sufferers who knowingly engage in sex without informing the other person was held Wednesday by the House Judiciary Committee.

HB 369 – Sexual Offenses and Statutory Nonconsent Amendments, sponsored by Representative Justin Fawson (Republican – North Ogden), amends statutory nonconsent to sexual activity to include sexual contact in situations where a person who is knowingly infected with HIV or AIDS and engages in sexual activity with a person who is unaware of their illness.

Will Carlson, representing the Statewide Association of Prosecutors, agrees with the legislation’s intent – however, he feels that it goes too far. “We join with the representative in searching out ways to prevent its spread. We appreciate the idea that the best and healthiest form of intimacy is a fully-informed intimacy,” said Carlson. “But with first-degree felonies, which is the heaviest hammer the criminal justice system can offer, this does not do what the sponsor is trying to do. This does not say if you have a crime and the offender is HIV-positive then that crime is enhanced. This says if you are HIV-positive and you are intimate, this is a crime unless you’ve disclosed your status.”

Troy Williams, executive director of Equality Utah, called the bill “a punitive approach” that further stigmatizes those who suffer from HIV or AIDS and could actually result in a reduction in HIV testing. “Like all people, we want to see a reduction in HIV infections. We want HIV-positive members of the LGBTQ community to be tested, know their status, and to not feel stigma in disclosing their status with intimate partners,” said Williams. “This proposed legislation could actually have the opposite effect. By increasing HIV-related stigma and potential criminal consequences for knowing and sharing one’s HIV-positive status, this bill could actually discourage HIV testing and disclosure. There’s no evidence that laws targeting people living with HIV for criminal penalties actually reduce the number of new cases of HIV or improve public health in any way.”

Like the others who testified, Ron Gordon, executive director of the Utah Commission on Criminal and Juvenile Justice, also feels that HB 369 simply goes too far. “The question of whether that should have any kind of enhancement might be one proper for discussion, but this bill goes much further than that and takes conduct that right now would not be criminal at all and would make that a first-degree felony rape,” said Gordon. “That’s the concern that my commission has, is that it goes from being lawful under current law to first-degree felony rape. That’s a very big jump in our criminal code.”

Representative Karianne Lisonbee (Republican – Clearfield) believes the legislation is fine the way it is. “I really don’t see the problem with this bill. I think informed consent means informed consent. Whether the disease is transmitted or not, the person should inform, the person should disclose. If they don’t, it should be a crime because they are potentially infecting another person with a deadly disease. I don’t have a problem with this language.”

Representative Brian Greene (Republican – Pleasant Grove) agrees that something needs to be done but questioned going as far as labeling it as rape. “The question has been raised, shouldn’t this be criminal? Shouldn’t having sexual relations with somebody, an infected person having those relations with somebody else and not disclosing that be criminal? I think we all agree that it ought to be, but the question is should it be rape?” said Greene.

Greene also believes the statute itself needs fixing. “This is a problematic statute. It’s a poorly drafted statute, and we continue to come back to it and try to add new elements rather than fixing the statute,” said Greene. “I think [HB 369] just perpetuates the problems.” In 2015, Greene came under fire when he questioned whether engaging in sex with an unconscious person is rape in every instance while discussing legislation in the same section of code. Greene later apologized for his remarks.

Representative Brian King (Democrat – Salt Lake City) moved to hold the bill, a motion which unanimously passed. Fawson told committee members he would work on the bill and bring it back in a couple of days.

Published on Utah Political Capitol on February 22, 2017

US: Rep. Sharon Cooper is sponsoring a resolution to reform Georgia's HIV Criminalisation laws

Lawmaker wants to reform Georgia’s HIV laws

By Regina Willis | Feb 21, 2017 | 11:27 AM

A Marietta Republican is sponsoring a measure to examine the state’s HIV criminalization laws, which advocates argue are outdated and stigmatize people with HIV.

Rep. Sharon Cooper (photo), who chairs the influential House Health & Human Services Committee, introduced House Resolution 240 on Feb. 14 to create a Joint Study Committee on Reforming HIV Related Criminal Laws.

“It was brought to my attention that a lot of the laws on our books are older, and that a lot of the laws on HIV were done in the eighties and we’ve certainly had a lot of change in science since that time,” Cooper said.

In Georgia, HIV criminalization laws make it a felony for an HIV-positive person to engage in sex without first disclosing their status. The laws also criminalize acts like spitting – when the behavior is directed at law enforcement officers with penalties that include up to 20 years in prison.

The current Georgia law also doesn’t take into account issues like condom usage or advising a partner to take PEP (post-exposure prophylaxis) after sexual intercourse – acts which reduce the likelihood of transmission. LGBT and HIV activists have blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

“The law in Georgia doesn’t require intent to infect, it doesn’t require likelihood of transmission because it has things like spit, urine, feces in it. It doesn’t require transmission,” Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, said during a panel discussion last year.

Lawmakers create study committees to hear expert testimony and collect information about an issue ahead of possible legislative action. Cooper’s resolution would create a 12-member committee – five members each from the House and Senate, along with a representative of the Prosecuting Attorneys’ Council and the state Department of Public Health – that would meet and issue a report of its findings by Dec. 1.

“Sometimes you have to take baby steps,” Cooper said. “Bring in the experts to give you the background and the academic backing to back up which route you decide to go.”

One option the committee could study is completely eliminating HIV criminalization laws, according to Cooper’s legislation:

“The best practice would be for states to reform these laws to eliminate HIV-specific criminal penalties except in two distinct circumstances. First, states may wish to retain criminal liability when a person who knows he or she is HIV positive commits a (non-HIV specific) sex crime when there is a risk of transmission (e.g., rape or other sexual assault). The second circumstance is when the individual knows he or she is HIV positive and the evidence clearly demonstrates that individual’s intent was to transmit the virus and that the behavior engaged in had a significant risk of transmission, whether or not transmission actually occurred.”

Another option the committee could explore is keeping current laws in place but updating them to reflect the actual routes of transmission that are possible, eliminating actions such as  biting and spitting. The Center for Disease Control & Prevention supports reforming HIV criminalization laws.

HR 240 has been assigned to the House Special Rules committee and undergoes the same route to approval as other legislation. If it gets approval from the committee, then it moves to a House vote and then to the Senate for consideration.

The resolution has a handful of influential co-sponsors, including Rep. Wendell Willard, a Republican and chair of the Judiciary Committee, Rep. Carolyn Hugley, a Democrat and Minority Whip, and Rep. Bruce Broadrick, a Republican from Dalton.

Bill would OK expedited partner treatment for STDS

Cooper is also sponsoring another sexual and reproductive health related measure. House Bill 360 allows physicians to prescribe medications for certain sexually transmitted diseases – namely chlamydia and gonorrhea – to somebody’s partner without first examining the partner. Expedited partner therapy (EPT) is recommended by the CDC to help control the spread of certain STDs.

“Normally the physicians have to see somebody before they order a medication, and sometimes it’s very hard to get the partner to come in,” Cooper said.

“[EPT] allows one part of the duo to save face, and hopefully take the medicine and then make sure they are both clear so they are not just reinfecting each other,” she added.

Some 38 states currently allow this practice. HB 360 has been assigned to Cooper’s Health & Human Services Committee. Cooper said a version of this bill introduced last year was passed in the House and was held up in the Senate.

Neither the resolution or the bill has been scheduled for a hearing.

Canada: Canadian Coalition to Reform HIV Criminalization hopeful after meeting with federal justice officials but some provinces remain reluctant

Momentum building for HIV law reform

Coalition emerges from meeting with senior federal justice officials last week feeling hopeful, but provinces remain reluctant to commit to moratorium on new charges involving non-disclosure of HIV status

BY

Chad Clarke says his nightmare and rebirth – he uses the two interchangeably to describe his experience with HIV laws and the justice system – made him stronger.

It started on February 12, 2009, when he turned himself in on an aggravated sexual assault charge brought by his former common-law partner. A judge found Clarke failed to disclose his HIV status, but Clarke says he didn’t know he was HIV+ at the time.

He didn’t see the light until he walked out of prison more than two years later in June 2011, but his resurrection as an HIV activist could not have happened without the experience of prison, which led to his resolve to fight so no one would have go through what he did.

Clarke found himself face to face with high-level officials in the federal justice ministry last week, telling his story and reading the testimonials of others who say they have been unfairly treated by the Canadian justice system because of their HIV status. Clarke is part of the Canadian Coalition to Reform HIV Criminalization, a group of researchers, lawyers, service providers and people living with HIV who’ve come together to capitalize on recent momentum around getting HIV-related laws changed.

Finally, Minister of Justice Jody Wilson-Raybould seems to be listening to the latest science about HIV transmission: it’s a manageable condition for the vast majority of people living with HIV who take antiretroviral medicines. According to the latest research, a person living with HIV with a suppressed viral load for at least six months cannot pass on the virus.

It’s a major reason why advocates are calling for an overhaul of the law. On World AIDS Day (December 1, 2016), the justice minister released a statement acknowledging that “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.”

Clarke feels vindicated after years of feeling alone. Over the phone from his home in Dresden, Ontario, following the meeting, he says, “I’m here to open people’s eyes and let them know what happens to people when they’re criminally charged.”

Behind bars, he told justice ministry officials, people living with HIV are branded dangerous to guards and other inmates. Once he was removed from his prison laundry job after a guard was concerned that he would “give AIDS” to other inmates by handling their clothes. “I just looked at the guard,” Clarke says.

HIV cannot be transmitted through clothes, saliva, touch or a toilet seat. HIV transmission requires an exchange of blood, semen, pre-seminal, rectal or vaginal fluids, or breast milk. It is most commonly transmitted through unprotected sex or sharing of injection drug equipment.

Though the federal government has begun to engage communities on how it might change prosecutorial guidelines to reflect up-to-date science and human rights principles around HIV, some provinces – particularly Ontario, where the bulk of prosecutions occur – continue to ignore further attempts at dialogue.

Police and Crown attorneys here have aggressively pursued aggravated sexual assault charges against people even when they don’t transmit the virus, says Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario (HALCO). The group has been calling for a moratorium on prosecutions in the province except in cases of intentional transmission.

“This is a very reasonable approach, and a number of communities are speaking up about the current over-broad use of the criminal law,” Peck says, citing a recent consensus statement from 70 leading HIV researchers and academics.

Emilie Smith, a spokesperson for Ontario’s Ministry of the Attorney General, responding via email to NOW’s request for comment, says that the Ontario government “is committed to working with the federal government to examine the law on this important issue.”

But she says that Crown prosecutors will continue to take direction on current HIV non-disclosure cases from the 2012 Supreme Court of Canada ruling on R. v. Mabior. Critics say the ruling outlines too low a threshold for conviction. The ministry, she says, has no further comment on the request for a moratorium until the federal government and provinces can agree on prosecutorial guidelines on the issue.

Clarke continues to push forward, telling his story and calling for greater justice for those still caught up in the system.

“There are other people out there who are experiencing this right now,” says Clarke. “It choked me up at one point when I was reading one of the testimonies, because this is not right. It’s not right.

“I can live with my HIV. It’s the PTSD that I don’t like,” says Clarke, who recently went on medication “to be able to sleep through the night, not have nightmares about people dying or stabbing one another in jail.”

Clarke, who used to be an X-ray technician, must also live the rest of his life as a registered sex offender, which affects his ability to find work. “I can’t even volunteer at an old folks home. They’re going to do a vulnerable sector screening check, and my name is going to come up on the registry.”

Published in Now on February 19th, 2017