Canada: Ontario leads the world in the over-criminalisation of HIV non-disclosure

Ontario a ‘world leader’ in unjustly prosecuting people living with HIV, advocates say

HIV-positive individuals being ‘criminalized’ when it comes to disclosing their status to sexual partners, by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission, critics argue.

It was around Christmas in 2008 when Chad Clarke said he got a phone call from a former partner screaming at him that he had given her HIV.

The next three years would see Clarke arrested for aggravated sexual assault, denied bail twice, pleading guilty to avoid a longer sentence, sent to prison where he was placed in protective custody, and put on the national sex offender registry for life.

The charge related to a failure to disclose his HIV status, although Clarke said that at the time he did not believe he was HIV-positive. Although he had tested positive in 2004, he said he had believed a second test showed he was negative. He said he’s been on medication, with an undetectable viral load, since 2008.

“HIV is not a crime,” Clarke, 45, told the Star in a recent interview. “It’s a public health issue. Isn’t health supposed to be key?”

People living with HIV in Canada risk an aggravated sexual assault charge and prison time if they don’t disclose their status to their sexual partner, unless a condom is used and the individual has a low viral load, which refers to the amount of the HIV virus in their blood.

Advocates have long complained of HIV-positive individuals being unjustly prosecuted by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission.

It’s an issue that is now on the agenda of federal Justice Minister Jody Wilson-Raybould, who has referred to an “over-criminalization of HIV non-disclosure” and is looking at introducing changes this year. But critics say the Ontario government has so far failed to match the federal government’s efforts in what remains a complex and sensitive area of the law.

“There are some serious injustices taking place right now,” said Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario. “People living with HIV are being criminalized for engaging in behaviours that should not be criminal, and to make it worse, people living with HIV are being charged, prosecuted and convicted of aggravated sexual assault.”

It wasn’t long ago when the media proclaimed AIDS as the “gay plague” that carried a death sentence, but the stigma around HIV/AIDS has hardly disappeared, as advocates point to the continued criminal prosecution of those who don’t disclose their status to their sexual partners as one example.

At least 184 people in 200 cases have been charged in relation to HIV non-disclosure since 1989, according to a report published this year by the Canadian HIV/AIDS Legal Network. In Ontario, at least nine cases have been taken to court since 2012.

“When used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV,” according to a 2014 consensus statement published by a number of leading Canadian HIV/AIDS medical experts. As well, because of advances in medication that can keep a person’s viral load low or undetectable, advocates say that the risks of transmission are far lower than they once were, regardless of condom use.

Therefore, they say, HIV-positive people should not be required to be placed in the delicate position of disclosing their status, unless there is intention to transmit HIV as well as actual transmission of HIV.

“In the best of all worlds, that would be the right thing do,” Toronto criminal defence lawyer Cynthia Fromstein, who has represented many HIV-positive individuals, said of a person disclosing one’s status.

“However, people have faced bad reactions, people have faced violent reactions, to disclosing their HIV status. People are also just people, they face rejection, which is hard, and particularly if you know that you in fact don’t pose a risk to someone, then I think people don’t want to put themselves in that position.”

Matters are further complicated by the fact that Ontario has no official prosecutorial guidelines to help guide Crown attorneys in their approach to these cases, and to decide whether to even bring one to court.

It gets even more complicated when you consider the Supreme Court’s last pronouncement on the topic in 2012, where it was found that a person must disclose if there is a “realistic possibility of transmission,” a phrase that has left Crown attorneys and judges differing on just what that means.

The federal government has been studying the issue since last year, and it’s expected to be discussed at the upcoming federal, provincial and territorial justice ministers’ meeting in Vancouver this week.

The gathering comes almost a year after Wilson-Raybould announced last Dec. 1, World AIDS Day, that she intended to look into the criminal justice system’s handling of HIV non-disclosure cases and work on the issue with her provincial and territorial counterparts.

“HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition,” she said in a statement at the time.

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

The Criminal Code contains no laws specifically related to HIV non-disclosure, but the offence of aggravated sexual assault — reserved for the most egregious sexual assaults — is typically laid in such cases, and almost always carries prison time following conviction.

HIV/AIDS organizations do not oppose prosecutions in the rare cases where an individual had the intent to transmit the HIV virus, although whether the charge should still be aggravated sexual assault remains a matter of discussion.

While the federal government is responsible for amending the Criminal Code, it is the responsibility of provincial Crown attorneys to apply the law, and use their discretion when deciding whether to prosecute a particular offence.

In a statement sent to the Star last week, the federal department of justice said the government hopes to provide an update on its work on the issue by the end of the year. But it also reiterated that enforcement of the laws is very much a provincial matter.

“The work currently being undertaken with provincial partners will allow each jurisdiction to make informed decisions about how to address prosecutorial and charging practices within their area of responsibility,” the statement said.

Advocates have demanded that Ontario Attorney General Yasir Naqvi order a moratorium on the prosecution of non-disclosure cases — except in cases where intentional transmission of the virus is alleged — until the federal government implements its plan, which may include prosecutorial guidelines that the provinces could choose to adopt.

Their pleas have so far proven to be unsuccessful, as Crown attorneys in Ontario continue to bring non-disclosure cases — even where the virus was not transmitted — to court.

“The intolerable fact remains that Ontario continues to be a world leader in unjustly prosecuting people with HIV,” the Ontario Working Group on Criminal Law and HIV Exposure wrote in an April letter to Naqvi.

“The pattern of zealous, overly broad prosecution of people living with HIV in Ontario is the result of deliberate choices, both by individual prosecutors and (the Ministry of the Attorney General).”

Naqvi’s office said last week that he did meet with the working group last year, and that during the meeting, “the attorney general reiterated his commitment to work with the federal government as they review the way our justice system handles HIV-related cases.”

The discussion between advocacy groups and successive attorneys general in Ontario on non-disclosure prosecutions have been described as more or less one-sided, with very little progress being made on the government’s side.

Several years ago, the government did propose prosecutorial guidelines for non-disclosure cases, but the three outside experts allowed to read them — and who are also barred from discussing their contents — said they were so bad they told the ministry that no guidelines would be a better option.

“I don’t think it would be fair to say that we were consulted in the drafting of anything,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, who was one of the three experts, along with Peck and criminal defence lawyer Jonathan Shime, to see the draft.

“We had repeatedly put forward our ideas about what we thought they should be about.”

Among those suggestions: an acknowledgement that an undetectable viral load alone means there is no realistic possibility of transmission, regardless of condom use.

What prosecutors do have access to is a so-called “practical guide” prepared in 2010 by Hamilton Crown attorney Karen Shea, who successfully prosecuted Johnson Aziga for first-degree murder, an infamous 2009 case in which two of the women infected with HIV by Aziga later died from AIDS. Aziga’s trial heard that he had known since 1996 that he was HIV-positive, but did not start taking medication until 2005, two years after his arrest.

Shea’s 72-page document, which the Ministry of the Attorney General fought for years to keep secret after receiving a freedom of information request from Toronto lawyer Marcus McCann, covers everything from the elements the Crown must prove to secure a conviction, to the kind of information that should be sought on an HIV-positive individual from public health officials.

McCann expressed concern that the guide could have a chilling effect on individuals seeking help from public health authorities, as the guide encourages Crowns to seek information on accused persons from public health to use in court.

Indeed, HIV test results and other information gleaned from public health have been put on the record in court by the Crown at bail hearings and trials in non-disclosure cases.

The provincial government has previously acknowledged that while it’s not an official policy or guideline, Shea’s guide has been used to assist other Crown attorneys, although it’s unclear which parts are still consulted given that the science and case law have evolved since 2010.

“Many roads lead to Karen Shea. I don’t think she’s the only destination, but she is clearly on the turnpike as one of those stops,” said Elliott at the Canadian HIV/AIDS Legal Network.

Shea declined to comment to the Star.

Crown attorneys take into account scientific developments and new case law when considering to prosecute a case, said a spokesperson for the Ministry of the Attorney General, who confirmed that the ministry’s criminal law division has a “group of experienced prosecutors who are available to provide advice on HIV exposure cases,” but didn’t say who is part of that group.

The last time the Supreme Court ruled on HIV non-disclosure, in a 2012 case known as R v. Mabior, it found that disclosure was not necessary if the individual had a low viral load and a condom was used.

But Chief Justice Beverley McLachlin, writing for a unanimous court, also said that the double requirement “does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.”

The meaning of that statement has played out in Canadian courtrooms since 2012, including in a recent Brantford non-disclosure case, where the Crown argued that Mabior requires low viral load andcondom use to avoid disclosure obligations, but the judge found otherwise.

The case involved a man, C.B., who has a low viral load but did not disclose to two women before having condomless sex. He was subsequently charged with two counts of aggravated sexual assault. Neither complainant was infected with HIV.

The trial took place in April, four months after Wilson-Raybould announced the federal government would target the over-criminalization of HIV non-disclosure.

Testifying for the defence, Dr. Philippe El-Helou, director of the HIV Clinic at McMaster University, said that in all of his years treating HIV patients, “he has not seen a transmission occur from a carrier who has an undetectable viral load,” Ontario Court Justice Robert Gee wrote in his decision.

The judge acquitted C.B. of all charges.

“The question becomes: Is condom use the only way to raise a reasonable doubt about the risk of transmission in a person with a low viral load or, if at the time Mabior was decided in 2012 it was the only way, has the science advanced to the point where it no longer is?” Gee wrote in a ruling released last month.

“The defence takes the position that the Supreme Court’s decision was not intended to establish an absolute and fixed rule that a low viral load and condom use was the only way to raise a reasonable doubt about the possibility of transmission.”

Gee sided with the defence, accepting El-Helou’s evidence that given C.B.’s undetectable viral load, “the risk of transmission in this case was as close to zero as can be measured.”

It is exactly the kind of case that advocates have long demanded be kept out of courtrooms in the first place, and why they hope sound prosecutorial guidelines would be of great help to Crown attorneys.

Chad Clarke has become an outspoken advocate since leaving prison in 2011, marching in the streets and speaking at numerous HIV/AIDS conferences. What he would most like to see is his name taken off the sex offenders’ registry.

He said he has post-traumatic stress disorder that goes “through the roof” every year when he has to sign in with police, one of the conditions of being on the registry. He lives on a fixed income, applying for jobs is difficult, and family relationships are strained.

“If you want to keep the charges against me, I’ll live with that, but take me off that damn sex offenders’ registry, because every day that I look at myself in the mirror, I see myself as a sex offender, and that’s not cool,” he said.

“I would like to personally see that instead of sticking this person in jail, you get them a point of care, you get them on medication right away, you get them mental health care, because trust me, mental health (issues) will go with you the rest of your life if you have HIV.”

US: Radio interview with Catherine Hanssens, founder of the Center for HIV Law Policy, on the obsolescence of HIV criminalisation laws in the US

HIV Criminalization Laws Not Keeping Pace With Research, Treatment

In many states across the country, one can be charged with a felony for not disclosing their HIV status. However, recent studies show that, when individuals are properly treated, HIV transmissions from sexual encounters can range from zero to 1.56 percent. Why aren’t HIV criminalization laws in sync with the realities of HIV treatment and prevention? Catherine Hanssens, founder of the Center for HIV Law Policy, weighs in. This segment is hosted by Todd Zwillich.

Published on Sept 8, 2017 on Player FM

US: California Assembly votes to reduce the penalty for HIV-exposure from felony to misdemeanour in line with other communicable diseases

California Assembly votes to repeal HIV criminalization laws

ACRAMENTO, CALIF.

The California Assembly voted Thursday to reduce the penalty for intentionally exposing someone to HIV from a felony to a misdemeanor.

Existing laws discriminate against people with HIV, the virus that causes the immune system-weakening disease AIDS, supporters of the change said.

The bill, passed 44-13, would treat HIV like other communicable diseases under California law.

It requires final Senate approval before it can go to Gov. Jerry Brown.

Currently, if a person who knows they are infected with HIV has unprotected sex without telling their partner they have the virus, they can be convicted of a felony and face years of jail time.

Intentional transmission of any other communicable disease, even a potentially deadly one like hepatitis, is a misdemeanor.

The bill, SB239, would also repeal laws imposing harsher penalties for prostitution if the offender has HIV.

Modern medical treatment has made HIV a much less devastating disease than it was when the so-called HIV-criminalization laws were passed in the 1980s and 1990s, said Assemblyman Todd Gloria, a San Diego Democrat. The laws are relics of the decades-old AIDS scare, he said.

“In California, people living with HIV can be charged with a felony and imprisoned based almost entirely on their status,” he said. “This is because our state has outdated and discriminatory laws.”

Between 1988 and 2014, at least 800 people were arrested, charged or otherwise came into contact with the criminal justice system related to their HIV status, according to a study conducted at the University of California, Los Angeles. The study found “HIV criminalization” laws disproportionately affected women and people of color.

Republican Assemblyman Travis Allen of Huntington Beach opposes the bill and said it would endanger people.

Published on Sept 7, 2017 in McClatchy DC Bureau

US: A review of HIV criminalisation laws in the US

HIV Crime Laws: Historical Relics Or Public Safety Measures?

Thirty-three states have laws that can be used to prosecute people living with HIV. Some states are looking to either repeal those laws or reduce their severity.

By Teresa Wiltz

Robert Suttle clearly remembers telling his boyfriend that he was HIV positive the night they met. But after they split, three quarrel-filled months later, that became a point of contention: His “ex” pressed charges against him.

Suttle’s home state, Louisiana, is one of 33 states with laws that can be used to prosecute people living with HIV. And in Louisiana, intentionally exposing someone to HIV/AIDS is a felony punishable by up to 11 years in prison.

Because he wanted to put the whole ordeal behind him, Suttle accepted a plea bargain in 2009 and ended up doing 6 months in prison. He said he found out too late that pleading guilty meant registering as a sex offender wherever he goes.

Now some states are looking to either repeal such laws or reduce their severity. At issue is the balance between protecting public health and protecting the civil rights of individuals living with HIV.

The laws, which date to the 1980s and ’90s, vary greatly from state to state. Most impose criminal penalties on people who know their HIV status and potentially expose others to the virus. In some states, a conviction can mean up to 35 years in prison.

Twenty-four states require HIV-positive people to disclose their status to sexual partners, while six states require people to register as sex offenders as part of their punishment if they are convicted of an HIV-specific crime. In 22 states, felony laws, which cover assault and attempted murder for example, are used to prosecute people living with HIV who knowingly expose someone to the virus. And 25 states criminalize activities such as spitting, even though they are unlikely to transmit the virus.

Other states have statutes that tack on extra punishment based on the defendant’s HIV status. In Utah, for example, HIV-positive people convicted of prostitution, patronizing a prostitute, or solicitation are guilty of a felony, punishable by up to five years in prison, if they knew their status at the time of the crime. For an HIV-negative person, those same crimes would be a misdemeanor punishable by no more than six months in prison for a first-time offense.

Critics say the laws are relics of the past and demonize people infected with the virus. Some studies have shown that the laws don’t reduce HIV transmission and may actually drive up HIV rates, because people who feel stigmatized are less likely to get tested. A study published in June by researchers with the U.S. Centers for Disease Control and Prevention found no evidence that the laws reduce transmission of the virus.

“It’s very embarrassing and dehumanizing,” said Suttle, 38, who now lives in Harlem, New York, and works as an assistant director for the Sero Project, which advocates to end laws that criminalize people living with the virus.

In 1994, Texas became the first state to repeal its HIV criminal laws, according to the Center for HIV Law and Policy. But since then, people have been prosecuted for HIV exposure under general criminal laws such as attempted murder, which Catherine Hanssens, the center’s executive director, said illustrates why straight repeal of the laws is not enough. Texas courts have upheld that seminal fluid of a man living with HIV may constitute a deadly weapon.

In 2012, Illinois became the second state to revise its HIV crime laws, by requiring prosecutors to prove a defendant intended to transmit HIV and limiting prosecution to a more narrow definition of sexual activity. Iowa followed suit in 2014. Last year, Colorado enacted a law that repealed two HIV criminalization statutes and revised another by requiring that all sexually transmitted infections be treated equally under the law, rather than singling out HIV for prosecution.

California lawmakers are also considering a bill that would make it a misdemeanor to transmit HIV, rather than a felony. A similar HIV bill failed in Florida in May, but is expected to be re-introduced in the next session.

Also in May, the Ohio Supreme Court heard arguments in a case challenging the state’s criminal HIV law. The crux of the case: whether or not the law discriminates against people living with HIV, as well as whether requiring disclosure of one’s HIV status violates the First Amendment.

The push to reform HIV crime statutes “has become a national movement, and it’s part of the larger conversation about overcriminalizing people,” said Allison Nichol, law and policy counsel for the Sero Project.

“We need to take this out of the realm of someone committing a sex crime,” said Nichol, who used to prosecute sex crimes in Indianapolis. “These laws continue to feed a false narrative that people with HIV present a danger to public health, when in fact that is no longer true.”

But supporters of the laws argue they protect public health, and some states have moved in the opposite direction.

In May, Maryland Gov. Larry Hogan, a Republican, signed a law that, among other things, authorizes a judge to issue an emergency order to get someone tested for HIV if it’s believed that person has “caused exposure to a victim.” The law updates a previous one and is intended to treat rape victims who may have contracted HIV or hepatitis C. The same month, Tennessee enacted a law strengthening a statute requiring anyone who’s been arrested to be tested for HIV/AIDS if a law enforcement officer requests it.

“We’re talking about a criminal,” said Maggi Duncan, executive director of the Tennessee Association of Police Chiefs, who helped draft the legislation. “In the course of being arrested, they could have possibly exposed a first responder.”

The law was expanded to include all forms of hepatitis, which is on the rise in the state, Duncan said, “but HIV could easily become on the rise again with needle use, and that’s a real concern with heroin being on the upswing.”

Years of Activism

Activists have pushed for years to change the laws, with a focus on educating lawmakers and prosecutors about how HIV is transmitted. One key fact: An HIV-positive person whose viral load is undetectable has almost no chance of spreading the virus.

“More and more, there’s a realization that HIV criminalization laws have not kept up with science,” said Dan Kirk, a former prosecutor with the office of the Cook County State’s Attorney, which has jurisdiction over Chicago. Last year, then-Cook County State’s Attorney Anita Alvarez called for the law to be revised further.

Today, prosecutors in Illinois have to prove that an offender intended to transmit HIV. Defendants can assert a legal defense if a condom was used, but they cannot use being in treatment as a defense. This despite condoms being less effective — 80 percent — than anti-retroviral drug treatment — 95 percent — at reducing the risk of transmission, according to the CDC.

Under the measure pending in California, it would no longer be a felony to fail to disclose a positive HIV status. Instead it would be a misdemeanor on a par with failing to disclose any other transmitted disease. To be charged with a misdemeanor, the defendant must have known that he or she has a communicable disease and acted with the specific intent to infect another person, engaged in conduct that poses a substantial risk for transmission, and actually transmitted the disease to another person.

“We want people to get tested. We want people to get on medication. We want people to be honest about their HIV status,” said California state Sen. Scott Wiener, a Democrat who sponsored the legislation. “But you don’t accomplish those things by sending people to prison.”

Gray Area

Scattershot state reporting makes it difficult to say how many cases are prosecuted under the HIV transmission laws, according to Hanssens.

But it isn’t difficult to find individual examples. In June, for example, an HIV-positive Georgia man with mental health problems was charged with reckless conduct for allegedly spitting in the eye of a police officer.

In July, a 58-year-old South Carolina man was sentenced to 35 years in prison after he was found guilty of sexually assaulting a 5-year-old girl and potentially exposing her to HIV. Medical tests showed the child did not contract the virus. He was sentenced to 25 years for the rape and 10 years for the potential exposure.

Prosecuting — or defending — these cases can be difficult: How do you prove that someone has disclosed their HIV status? Often, as in the case of Suttle, it becomes a case of “he said, he said.”

A 2015 report by the Williams Institute at the UCLA School of Law found the overwhelming majority of people — 95 percent — charged with HIV crimes in California were sex workers. The report also found that nearly every charge resulted in a conviction; the average prison sentence was longer than two years. Two-thirds of people charged were black or Latino. White men accused of an HIV-related crime were significantly more likely to be released and not charged, the report found.

“This is really a public health issue,” said Scott Schoettes, an HIV project director at Lambda Legal who has worked on HIV legal policy for years.

“It shouldn’t be addressed by criminal law unless there’s malicious intent.”

Published in the Hufftington Post on Sept. 6, 2017

US: Ohio Supreme Court considers challenge to State HIV-specific assault law

Court weighs 1st Amendment challenge to Ohio HIV assault law

An Ohio law requiring HIV-infected individuals to tell sexual partners of their status before having sex or risk criminal charges is unconstitutionally based on outmoded stigmas against the gay community and doesn’t take into consideration current survival rates for people with HIV, say lawyers challenging the law in a case before the state Supreme Court.

Ohio’s HIV assault law also violates free speech rights because it focuses only on disclosure, not the actual transmission of the disease, say attorneys arguing against the law on behalf of an Ohio man convicted of failing to tell his girlfriend he had HIV after they started having sex.

Breaking the law is considered a felonious assault with a possible prison sentence of up to eight years.

“The targeting of HIV and no other chronic illnesses reinforces the notion that HIV is a death sentence, which does not reflect the medical reality of HIV,” Raymond Faller, a public defender representing defendant Orlando Batista, said in a court filing last year.

The law discourages people from getting tested for HIV, since individuals can’t be prosecuted if they don’t know their status, Faller said. There’s also evidence showing people take sexual risks with partners despite knowing they’re HIV positive.

Focusing on sexual transmission ignores the other ways HIV can be transmitted, including by needles, Faller said.

“It is akin to trying to end wars by banning swords,” he said.

Prosecutors argue the law upholds a compelling state interest in discouraging exposure to and spread of an incurable disease.

The law does not require abstinence, limit sexual conduct to a certain type or dictate use of safe sex measures, Paula Adams, an assistant Hamilton County prosecutor, said in a February court filing.

The law “simply ensures that sexual conduct under these circumstances is truly consensual and hopefully from there, common human decency will prevail and those consenting adults will make prevention decisions as they see fit,” she said.

The law is not a free speech violation because it covers both the failure of a partner to explain something and having sex without a partner being fully informed, Adams said.

The state Supreme Court is expected to rule by this fall.

In Missouri, a former college wrestler is using similar arguments to challenge his conviction and 30-year sentence for infecting another man with HIV and endangering four other sexual partners.

Thirty-four states including Missouri and Ohio have HIV-specific assault laws, according to the New York-based Center for HIV Law and Policy. More than 300 people have been charged under these laws since 2008, the center says.

The Centers for Disease Control and Prevention estimates 1.1 million people live with HIV in the US, with 1 in 7 of them not knowing it. The estimated number of annual HIV infections declined 18 percent from 2008 to 2014, according to the CDC.

Brazil: Activists celebrate as ‘deliberate HIV transmission’ law amendment is withdrawn

Yesterday, news broke that populist Congressman, Pompeo de Mattos, has withdrawn an amendment originally proposed in 2015 to make ‘deliberate’ HIV transmission a ‘heinous crime’.

The amendment, Bill No. 198, 2015, would have added to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – those who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

According to Brazil’s AIDS News Agency

In Brazil, intentional transmission, that is, with intent, is already considered a crime. Articles 130 and 131 of the Penal Code already provide for imprisonment for those who infect others. Anyone who exposes someone to a venereal disease through sexual intercourse can be jailed for three months to a year or receive a fine. If the person intentionally wants to transmit the disease, the penalty is imprisonment, from one to four years, and fine.

“The initiative to criminalize HIV-positive people does not contribute to the fight against prejudice and discrimination, and it also throws the responsibility of prevention on the infected person,” says a statement released on Thursday by Foaesp Of the State of São Paulo).

In this same document, the Forum thanked Mr Pompeo for his request to withdraw from the PL. “We are now waiting for the House Board to abide by the request and file the bill, and we will also be careful that no other parliamentarian has a similar initiative.”

Activists from all over Brazil have celebrated the Bill’s withdrawal. Any new proposal cannot be considered by the current parliament and now must wait until after elections, scheduled for October 2018.

Since 2015, PLHIV networks, civil society organisations, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health, and a number UN agencies – includng UNAIDS and UNFPA – had all pressured Congress to withdraw the bill.

Update (September 4th). A press release by the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health notes:

The director of the Department of STDs, AIDS and Viral Hepatitis (DIAHV), Adele Benzaken, called the federal MPs Érica Kokay (PT-DF), member of the Family Social Security Commission (CCSF) and Coordinator of the Joint Parliamentary Front to Combat STDs, HIV , and AIDS – and Laura Carneiro (PMDB-RJ) and Deputy Pompeo de Mattos to thank them for their support against the procedure of PL 198/15. ““The effort of these parliamentarians was essential to educate their colleagues in the House to reassess that Brazil is a reference in the treatment of HIV / AIDS and that this will not help the Brazilian response at all.“ The director of DIAHV also highlighted the mobilisation made by civil society and the support of the Brazilian Office of the Joint United Nations Program on HIV / AIDS (UNAIDS) that she said were key to the outcome achieved with the filing request.

On July 3rd, the United Nations Expanded Thematic Group on HIV / AIDS (WG / UNAIDS) chaired by UNFPA, met to articulate opposition to the Bill.

For the UNFPA representative in Brazil, Jaime Nadal, the bill goes against the ideals and proposals of the United Nations regarding the HIV / AIDS epidemic. Criminalizing HIV transmission, in addition to reinforcing the stigmatization of people living with the virus, may discourage people from undergoing testing and treatment, since they would be under threat of becoming criminals, he said.The bill ignores the scientific advances in HIV / AIDS, which prove that antiretroviral treatments reduce the chances of transmitting the virus in sexual intercourse by up to 96%. “Many countries around the world are reforming their laws criminalising HIV transmission,” said Nadal, adding that the bill goes against the global trend.

UNAIDS Director in Brazil, Georgiana Braga-Orillard, reinforced the speech of the UNFPA representative. According to her, the bill further vulnerabilises populations with a positive serological status, since “it considers the more than 800 thousand people living with HIV in Brazil as potential criminals.”

In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favours the selective application of the law; it disregards the scientific evidence on HIV; it compromises privacy and confidentiality, and it will make Brazil lose its leading role in the response to HIV / AIDS.

A public meeting with the Congressman, scheduled for July 4th, was cancelled at the last minute. However, the letter of withdrawal, although only publicly released yesterday, was dated May 11th.

I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which "makes a heinous crime the deliberate transmission of the AIDS virus." — Translation: I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which “makes a heinous crime the deliberate transmission of the AIDS virus.”

Nevertheless, prosecutions under general laws continue.

In July, a newspaper reported that a 43 year-old heterosexual man was charged with serious bodily injury in a Rio de Janeiro court for ‘attempting to infect two women with HIV’ by having sex without a condom.

In an interview with the Rio newspaper Extra , the man admitted that he was HIV-positive and [allegedly] transmitted HIV to the women, but denied that he had had sex without a condom with the intention of infecting his partners.

The case continues.

US: Center for HIV Law and Policy releases updated ‘HIV Criminalization Sourcebook’

Today, the Center for HIV Law and Policy (CHLP) has released a third, updated version of their ‘Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions’ series, first published in 2010.

The renamed HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice updates and expands upon the previous versions with the inclusion of new reporting and analysis of laws and regulations allowing for quarantine, isolation and civil commitment of people living with sexually transmitted infections (STIs), including HIV, in each jurisdiction.

This resource for lawyers and community advocates outlines punitive laws, policies, and cases affecting people living with HIV (PLHIV) and other communicable diseases in all fifty states, the military, federal prisons, and U.S. territories. It may be used as an aid for attorneys of people living with HIV prosecuted for “HIV exposure” or non-disclosure of HIV status, as well as for advocates who want to reform HIV-related criminal laws in their state.

The ‘HIV Criminalization Sourcebook’ catalogues and analyses state and federal HIV criminal laws in the United States, providing examples of recent prosecutions and explanations of the major cases applying these laws, along with text and analysis of state laws on other sexually transmitted diseases that involve criminal penalties or other restrictions for exposing another person to possible infection.

Specifically, it covers laws that:

1. criminalize non-disclosure of HIV status or exposure of a third party to HIV;

2. make exceptions to confidentiality and privacy rights of people living with HIV;

3. provide for sentence enhancements for people living with HIV convicted of underlying crimes such as ‘prostitution’ and ‘solicitation’; and

4. require sex offender registration for people living with HIV convicted of these ‘crimes’.

The Sourcebook is part of CHLP’s campaign to support state advocates through tools that expand legal literacy on HIV criminalization. In addition to the Sourcebook, CHLP’s website includes a separate page for each state summarizing relevant HIV and STI criminal law sections, so that users can download everything they need just for their state in addition to accessing the entire Sourcebook.

The Center for HIV Law and Policy will be co-hosting a webinar on October 11, 2017 to review ways to use the Sourcebook in HIV criminal reform efforts. The webinar also will explore some of the different strategic pathways to reform, along with benefits and drawbacks to those different options. The discussion will cover some of the key factors and questions to consider in deciding on what reform strategy makes the most sense in a given jurisdiction.

Read the full press release here

Download the HIV Criminalization Sourcebook here

Canada: Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, explores the history of HIV criminalisation in Canada and asks fellow Canadians to support their call for HIV Justice

How everyone living with HIV in Canada became a potential criminal

Add your voice to the growing call for prosecutorial guidelines today

By Richard ElliottAug 08, 2017, 8:44 PM EDT

I couldn’t believe it, and yet I shouldn’t have been surprised, given what I knew.

A friend of mine had just been informed that his HIV test was confirmed positive. And in that moment, as my friend’s life changed forever, the well-meaning doctor tried awkwardly to fill the silence — with some remarks about how my friend could be criminally charged if he didn’t disclose his status to every sexual partner.

As a lawyer well-versed in this area of law, I knew why the doctor was saying that. In a decision the year before (in September 1998), the Supreme Court of Canada had confirmed that someone with HIV could be prosecuted for aggravated assault for not disclosing to a sexual partner, at least in some circumstances.

I also knew that what the doctor was saying wasn’t entirely correct because precisely which circumstances trigger a legal duty to disclose HIV were still unclear then — and the issue remains contentious to this day, nearly 20 years later.

Legal issues aside, it’s wrong to greet newly diagnosed people with a threat that they could go to jail if they don’t disclose. But my friend’s experience is not unique. Many physicians and public health nurses are quick to inform people that they must disclose and use condoms (each and every time

regardless of what the actual risks of transmission might be in a given instance) — and that if they don’t, there’s the risk of possible criminal charges.

And, of course, each time police issue a press release with the name and photo of someone accused of not disclosing, every person living with HIV is reminded that they live under the shadow of possible prosecution — and accompanying trial in the court of public opinion — that could be just one allegation away.

How did we reach the point where every person living with HIV is considered a potential criminal?

The early years of the epidemic

To answer that question, we need to go back to the early years of the HIV epidemic, and consider the combination of factors that contributed to the criminalization of HIV in the first place and how these factors have shaped its evolution since.

We start in North America in the early– to mid–1980s with the basic ingredients: A frightening new, and apparently communicable, disease that progresses rapidly, most often to death, with no known effective treatment and a lack of information — even active misinformation in some quarters — about how it spreads. The resulting fear of contagion sparks an understandable human impulse to contain, to distance, and to avoid harm, whether real or simply perceived.

Add several layers of inequality and misguided morality, because the epidemic is particularly identified in marginalized populations already subject to social disapproval and state surveillance. Gay sex, blamed early on for the spread of AIDS, had only been decriminalized a few years earlier in Canada (and remained a crime in many US states), and of course gay people were still widely stigmatized across the continent. Sex workers remain heavily stigmatized, and criminalized, to this day.

Infections were also appearing among people who inject drugs, who already carried the deep stigma of addiction and were also facing a deliberately intensified “war on drugs,” a program of criminal prohibition and incarceration rooted in and reinforcing what was already a centuries-long history of racismagainst Black and Indigenous people in North America.

HIV therefore entered the public consciousness as a disease of perceived deviance, whether in relation to sex, drugs or both.

Now, add a handful of ostensible cases of “wilful HIV transmission” sensationalized in media reports that often reinforced the same prejudices and assumptions about sexuality, gender, race, sex work and drug use. (Consider, for example, the front page of the Halifax Chronicle Herald in late September 1988— “AIDS Fiend Strikes Again” — which kicked off its coverage of a “bisexual AIDS carrier” charged in the first Canadian criminal prosecution for HIV nondisclosure to a sexual partner.)

Finally, throw in some prosecutors and legislators acting from a variety of motives. Some are no doubt well-intentioned, acting out of a legitimate concern about trying to prevent the harm of further infection. But there are also plenty of moral entrepreneurs perfectly willing or eager to seize upon a new disease as “proof” of degeneracy, or cite a sensational media case as evidence of the need for a “tough” response to protect society.

It’s therefore no surprise that, within a few years of what was later called the human immunodeficiency virus (HIV) being identified in 1983, a new front opened up in the emerging epidemic: the resort to criminal law as a tool to respond to the perceived threat to public health.

It’s also no surprise that the same pre-existing prejudices that pushed a criminal response onto a health epidemic saw the criminal justice system quickly go overboard in applying those laws.

And that’s exactly what has played out in many countries, including Canada.

The rulings begin

Canada witnessed its first prosecution for HIV nondisclosure to a sexual partner in 1988 in the R v Wentzell case. Responding to a small but growing number of cases and with no clear legal precedent to apply, prosecutors pursued convictions using various crimes in the Criminal Code, seeing what would stick. Charges laid included “criminal negligence causing bodily harm,” being a “common nuisance” by endangering the health and safety of the public, and “administering a noxious thing” (ie. semen containing HIV). And in a handful of cases, prosecutors pursued charges for assault or sexual assault.

Many of these early prosecutions in Canada resulted in guilty pleas. The handful of cases that actually went to trial saw mixed results from different courts. But in the early 1990s, one case set the stage for the past two decades of growing HIV criminalization.

The case, R v Cuerrier, began in a BC court in 1992 and eventually reached the Supreme Court of Canada in 1998. This was the first chance for the country’s highest court to decide if not disclosing your HIV-positive status to a sexual partner might be a crime —and specifically, an assault.

The Supreme Court decided that there is no blanket duty to disclose your HIV-positive status to a sexual partner, unless you’re having sex that carries a “significant risk of serious bodily harm.” The court ruled that not revealing your HIV status in that case counts as “fraud,” which means your partner’s consent to sex isn’t legally valid, and therefore you have assaulted them. But the court failed to clearly define what counts as a “significant risk” of transmission. (It did suggest that using condoms might lower the risk enough that it wasn’t “significant,” which led to many lawyers arguing about “protected” versus “unprotected” sex in courts over the next few years.)

Guilty pleas and convictions began to accumulate more rapidly in the years following the Supreme Court decision. The charge most frequently laid has been “aggravated sexual assault,” one of the most serious offences included in the Criminal Code. (The maximum penalty upon conviction for this offence is life imprisonment, plus mandatory registration as a sex offender.)

And because the Supreme Court’s ruling required only that there be a “significant risk” of transmission — not actual transmission — a substantial majority of prosecutions and convictions in Canada to date involve allegations of exposure to HIV. In the majority of known prosecutions, HIV has not actually been transmitted.

In fact, over nearly 20 years of documented prosecutions in Canada, many prosecutions have involved zero to minimal risk of actual HIV transmission.

In 2012, a pair of appeals — one from Manitoba, the other from Quebec — brought the issue back before the Supreme Court of Canada, but the rulings were a profound disappointment. The court said there is a “significant risk of serious bodily harm” when there is a “realistic possibility” of transmitting HIV. But despite stating that it didn’t want to criminalize people in cases where there was only a small possibility of transmission, it nonetheless did so — and a number of other courts have followed suit.

The rulings have also raised more questions about what counts as a “realistic possibility” of transmission, and when a person with HIV has done enough to reduce that possibility so that they are no longer criminals if they don’t disclose their status. The Court seemed to backtrack dangerously on its earlier suggestion that using a condom might be adequate to lower the risk so that no disclosure would be required; this remains an ongoing fight in some court cases.

And to this day it remains a live issue whether someone who has a low or undetectable viral load is a criminal if they don’t disclose their status This aspect of the law continues to evolve, given the additional scientific evidence emerging about the effectiveness of anti-HIV drugs and the reality that the risk of transmission from someone living with HIV with an undetectable viral load is nearly zero. The result is that the law is still unclear, courts are still reaching contradictory conclusions — and people living with HIV are still being prosecuted for a very serious criminal offence, for not disclosing their HIV status even where there is zero risk or an exceedingly small risk of transmission.

Demanding change

But people are resisting the ongoing miscarriages of justice. Human rights groups, people living with HIV, and community organizations are going to court and speaking out in the court of public opinion. We are picketing outside courthouses, and protesting in front of the attorney general’s office in Ontario. We are taking action online to send a message to politicians, and meeting with them to lobby face-to-face.

Health care providers are outlining the many ways in which the climate of fear, misinformation and stigma created by these prosecutions makes their work of preventing HIV, and encouraging HIV testing, more difficult.

Scientists are also getting involved. Dozens of leading Canadian scientific experts on HIV have issued a consensus statement on what the science tells us about the possibility of transmission through various sexual acts. They are concerned that the criminal justice system’s approach to this issue is increasingly out of step with the available science.

Women’s rights advocates and feminist legal scholars are increasingly expressing concern about how using sexual assault to prosecute allegations of HIV nondisclosure is both being driven by HIV stigma (including against women living with HIV), and also risks damaging some important, hard-won protections in sexual assault law.

And thanks to the work of advocates such as the Canadian HIV/AIDS Legal Network, on World AIDS Day 2016, Canada’s federal justice minister made a historic statement publicly recognizing the problem of over-criminalization of HIV, and committing to look at options to address it, including in discussions with provincial governments, scientific experts and communities affected.

For years, advocates have urged provincial attorneys general to use their clear legal authority to adopt sound guidelines for prosecutors, reflecting solid science and a concern for protecting human rights, that would limit, in practice, the cases in which charges are pursued.

Guidelines could help forestall prosecutions in cases where a condom is used, for example, or where a person living with HIV has a low or undetectable viral load, or only had oral sex — because the possibility of transmission in such cases isn’t substantial enough to warrant using the harsh, blunt tool of the criminal law. (These aren’t the only circumstances where there should be no prosecutions, just some obvious examples of what guidelines could address.)

Guidelines could also require prosecutors to ensure that scientific experts are consulted about the actual possibility of transmission, and to have to justify why a prosecution should proceed if the science doesn’t establish a substantial risk.

Guidelines could address important practical issues such as releasing people on bail pending a trial, how prosecutors should avoid contributing to media sensationalism about cases, and sentencing requests by prosecutors in the event of a conviction. This sort of measure has been taken in the United Kingdom, leading to a measurable reduction in prosecutions where they were inappropriate. It should be part of the solution to the problem of overcriminalization in Canada too.

The campaign for prosecutorial guidelines has been particularly focused on Ontario, the worst offender in Canada when it comes to overly broad prosecutions. A loose coalition of HIV organizations and people living with HIV, the Ontario Working Group on Criminal Law and HIV Exposure (of which our organization is a member), has been leading that effort, including putting forward numerous recommendations for prosecutorial guidelines in 2011.

Yet those proposals have been flatly disregarded. Successive attorneys general in Ontario have so far refused to adopt any sound guidelines for prosecutors.

But community activists continue to build pressure. And while discussions continue between the federal, provincial and territorial governments about ways to limit unjust use of the criminal law, we are calling for an immediate moratorium on prosecutions for HIV nondisclosure, except in cases where it is alleged that someone intentionally infected someone with HIV.

Prosecutorial guidelines won’t be a panacea, but they could have a substantial impact in limiting unjust prosecutions. No doubt other measures will be needed as well. We may even need to get the federal government to change the Criminal Code to stop prosecutions for HIV nondisclosure as “sexual assault” and more narrowly define the circumstances in which there may be some criminal offence — a step that needs to be considered and done very carefully, with commitment from the federal justice minister and in consultation with community advocates and legal experts, in order to achieve this desired outcome.

But unless and until we get attorneys general and their prosecutors, as well as the police, to stop laying and prosecuting charges for alleged HIV nondisclosure as widely as they have been doing for the last two decades, the shadow of unjust criminalization will continue to hang over all people living with HIV in Canada.

It will also continue to undermine truly effective HIV prevention efforts, as federal Justice Minister Jody Wilson-Raybould publicly recognized last December. “The over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” she said.

So join the call from the Ontario coalition for a moratorium on prosecutions and for sound prosecutorial guidelines. Add your voice to the growing demands for HIV justice by sending a message to Ontario’s Attorney General Yasir Naqvi.

Help us stop the witch-hunt.

Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network (aidslaw.ca), which works to protect and promote the human rights of people living with HIV and of communities particularly affected by the epidemic.

US: Relying on modern medicine as the basis for reforming HIV criminalization laws overlooks these laws' underlying problems

Focusing on ‘Treatment As Prevention’ for HIV Criminal Law Reform Fails Marginalized Populations

By Victoria Law

From TheBody.com

AUGUST 3, 2017

“There is increasing agreement that risk of HIV transmission from a person living with HIV (PLHIV) who is on antiretroviral therapy (ART) and has a continuously undetectable viral load is effectively zero.”

This statement has been widely acknowledged by people living with HIV and advocates fighting HIV criminalization laws. However, in many states, the legal system has yet to catch up and continues to criminalize and imprison people for years, if not decades, under outdated laws. According to the Centers for Disease Control and Prevention (CDC), 24 states have laws requiring people living with HIV to disclose their status to sexual partners, 14 states have laws requiring them to disclose to needle-sharing partners, and 25 states have laws criminalizing “one or more behaviors that pose a low or negligible risk for HIV transmission.”

In pushing for the repeal — or at least the drastic reform — of these HIV criminalization laws, advocates have pointed to the strides made in modern medicine. The CDC has agreed with this approach, noting, “The majority of laws identified … were passed before studies showed that ART reduces HIV transmission risk[,] and most do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis (PrEP).” Therefore, the CDC has “encouraged states with HIV-specific criminal laws to use its findings to re-examine state laws, assess the laws’ alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes.”

But does reliance on modern medicine merely continue the exclusion and condemnation of those with the least access to health care? And, given the Congress’s efforts to repeal the Affordable Care Act (ACA), what might such reliance mean for those most at risk for losing access to health care?

In July, 10 organizations came out with the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The statement recognizes the strides made by modern medicine but notes that relying solely on prevention through medical treatment overlooks the two underlying problems with HIV criminalization laws: First, current laws focus on a person’s failure to disclose their HIV status rather than their intention to do harm. Second, current laws treat any risk of HIV infection as the equivalent of murder or manslaughter and impose severe sentences.

Sometimes the sentence for HIV exposure or transmission is even more severe than one for murder or manslaughter. This was the case for Michael Johnson, a black college student in Missouri who was convicted of four counts of failing to disclose his HIV status and one count of HIV transmission. Though no one was killed, he was sentenced to 30 years in prison. (In April, the state supreme court upheld Johnson’s right to a new trial, though no new trial date has yet been announced.)

In contrast, Missouri’s sentencing guidelines for voluntary manslaughter call for five to 15 years in prison, and its guidelines for second degree murder call for 10 to 30 years.

Relying medical tools as the basis for reforming HIV criminalization laws overlooks these laws’ underlying problems. If prevention through receiving medical treatment and having an undetectable viral load becomes the basis for reform, prosecutors and the legal system will then have another tool in their arsenal: a person’s inability or failure to access health care. It could also lead policymakers and prosecutors to argue that people living with HIV who are not virally suppressed pose a significant risk to their sexual partners. This ignores the CDC’s findings that, even without treatment and condom use during receptive anal sex (the sex act most likely to result in HIV transmission), the transmission rate is less than 2%, or two in 100.

Furthermore, the focus on viral load and medical treatment detracts from the fact that HIV is now a chronic, manageable disease, similar to type 2 diabetes. “To treat it otherwise by making its transmission a felony with a long sentence reinforces what likely is the most serious source of HIV stigma, discrimination, and violence against PLHIV,” declares the Consensus Statement.

Finally, focusing solely on medical advances continues to ignore the ways in which criminalization targets people who are most marginalized, specifically people of color who lack the resources to access continued treatment. “You cannot talk about one form of criminalization without talking about the others,” Deon Haywood, director of Women With a Vision, told TheBody.com in January 2016. “You can’t talk about HIV criminalization without talking about race, without talking about access and without talking about privilege.”

In Louisiana, where Women With a Vision organizes with low-income African-American women, many of whom are living with HIV, a focus on medical advances doesn’t address the ways in which HIV criminalization has been used a prosecutorial tool. Nia Weeks, Women With a Vision’s policy director, pointed out to TheBody.com that the New Orleans district attorney threatens to upcharge (or increase the criminal charges) or to use the state’s habitual offender laws to coerce people to plead guilty. Weeks, who previously worked as a public defender, described one client who was charged with domestic abuse and battery, including the accusation of a bite. The prosecutor’s office threatened to add the charge of intentional exposure to HIV if Weeks’ client did not plead guilty to the domestic abuse and battery charge. It did not matter that the man that she allegedly bit, her soon-to-be ex-husband, was also HIV positive. What mattered was that, under Louisiana law, if she were convicted of intentional exposure, she would face not only a 10-year prison sentence but also placement for life on the state’s sex offender registry. HIV criminalization is “part of a whole system of forcing pleas to not harm yourself more,” stated Weeks.

Furthermore, a focus on treatment and undetectable viral loads fails to address people’s precarious access to health care, access that may be further undercut as the GOP pushes to repeal or undermine the ACA.

Even with the ACA, Weeks noted, “people can very easily find themselves off the health care system in the blink of an eye.” All it takes is a missed bus or a family emergency that results in a missed Medicaid appointment, she explained. That missed appointment leads to the loss of Medicaid, leading to the loss of access to medications. In other words, health care access is already precarious. Cutting the ACA means that even fewer people will have access to the health care and medications that could make their viral loads undetectable.

“The ultimate goal is decriminalization, period,” declared Weeks. “There’s all the pieces that are helpful and steps forward, but it won’t be done until HIV is decriminalized.”

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at Victorialaw.net.

Published in the Body on August 3, 2017

China: Supreme Court publishes new measures to severely punish wilful transmission of HIV through prostitution, even when a condom was used

New Supreme Court Standards Address Prostitution, HIV

Judicial authorities hope new measure will better protect China’s women, children, and marginalized communities.

China’s highest court and public prosecutor have outlined a series of standards to mete out punishment for crimes relating to prostitution and the transmission of HIV.

The joint legal interpretation, released Sunday and effective since Tuesday, aims to strengthen the protection of children, women, and other vulnerable groups. It stipulates that forcing girls under age 14 into prostitution is categorized as a “serious violation” under the crime of coercing others into prostitution, and is punishable by a minimum of 10 years to life in prison.

The stipulation emphasizes that individuals do not need to have coerced more than one child into prostitution or committed the crime multiple times to be charged with a “serious violation.” Recruiting more than 10 people into prostitution, or more than five people from vulnerable groups — including minors, pregnant women, and the mentally disabled — also constitutes a “serious violation.”

Another significant point highlighted in the new interpretation is that people with HIV who knowingly transmit the virus to others through prostitution — as either buyers or sellers of sex — will face severe punishment for intentionally causing injury, even in cases where barrier contraception, such as a condom or diaphragm, was used. Punishments for those who transmit HIV through sexual conduct other than prostitution, however, will be considered on the basis of whether individuals are deemed to have intentionally neglected to take precautionary measures.

“The primary consideration is that those with HIV should be able to lead a normal life, that they should not encounter discrimination in making friends, and that their dignity should be respected,” an official at the Supreme People’s Court told ChinaCourt.org, a state-run website for judicial affairs.

“AIDS patients face discrimination in society generally,” Lü Xiaoquan, a women’s legal aid lawyer at Qianqian Law Firm in Beijing, told Sixth Tone. “The disease causes them to suffer not only physical harm, but also mental harm.” Lü added that in his view, the new guidelines are clearly intended to protect potential victims rather than further stigmatize carriers.

The interpretation also mentions that using social networks to sell sex is punishable by law, and that those who lure people into prostitution, provide premises for the sale and purchase of sex, or solicit sex themselves can be convicted of the crime even if they have not profited from it.

The previous interpretation on prohibiting prostitution was published by the same judicial authorities in 1992. Lü believes the fact that the former interpretation lagged behind the practical need to fight crime today is what led to this new interpretation, based on the ninth amendment to the country’s penal code, passed in 2015.

“The interpretation provides clear and unified standards for fighting crime, and this has the potential to eradicate random enforcement and unfair penalties,” Lü said. “However, good legislation is not enough — fair judgment and strict enforcement of the law are also needed.”

Published on July 26, 2017 in Sixth Tone