Sweden: Civil societies organisations call for guidelines to prosecutors in cases of HIV-criminalisation

“Major Uncertainty about HIV in Courts – The Prosecutor must act”

Open letter to the Prosecutor General Anders Perklev:

The organizations Hiv-Sweden, RFSL and RFSU call for guidelines for prosecutors for prosecutions against people living with HIV who are at risk of transmitting the virus via sexual contacts.

Signatory organizations promote the development of HIV in Sweden, how people living with HIV perceive their situation, the way in which case law looks and the medical successes in the field. Since 2013, the knowledge base “Infectiousness in Treated HIV Infection” has been developed by the Public Health Authority and the Reference Group for AntiViral Therapy (RAV), which shows that there is a negligible risk of HIV transmission during well-treated treatment.

Since 2016, there is also a document written by medical experts in which the disability rate in HIV is reduced from 40-60% to 0-10%.

These documents should have a major impact on the prosecution of persons, for whom crimes are prosecuted, how damages for a possible transfer should be measured and how seriously the chronic disease HIV should be considered.

RFSU, RFSL and Hiv-Sweden can say that there is great uncertainty in courts and justice in general how to handle the progress made in the medical field regarding HIV. There is no precedent since the knowledge base came and, as the Prosecutor is aware, no trial was given in the Supreme Court for Case B 2152-13, the Court of Appeal over Skåne and Blekinge, in which a person living with HIV and had a so-called well-treated treatment was released from criminal liability.

Signatory organizations welcome the Court of Appeal’s judgment, which clearly takes into account medical success, contagiousness and other facts in the case. Unfortunately, the Supreme Court (in connection with the grant of a review) did not refer to the decision NJA 2004 p. 176, which means that the judgment of the Court of First Instance can not be regarded as prejudicial.

Signatory organizations find it deeply unfortunate that the Supreme Court did not test the case partly referring to precedents no longer based on current knowledge. This means that the legal situation is unchanged and unclear, which creates legal uncertainty for people living with HIV.

Regrettably, we can say that the courts have begun to take care of the medical successes that have been made since 2004, and in the days a new intelligence judgment in which a man living with HIV and standing on a well-treated treatment is released from criminal liability (see Day’s Juridics 2016- 05-31 ). We hope that Objective B 212-15 from Uppsala District Court will proceed in the judicial system and create a new practice in this area.

The judgment states that the risk of HIV transmission to unprotected intercourse is so small in case of well-being treatment that one can not reasonably expect the effect of transfer and thus does not fulfill the objective crimes for the development of danger to another.

Even though the profession assesses the risk of HIV transmission to be neglected in well-preserved HIV even in unprotected intercourse, prosecutors continue to famble as to which acts will lead to prosecutions and which crimes are prosecuted. For example, some prosecutors choose to prosecute people living with HIV, with well-treated treatment, without the intention of transmitting HIV and there was no transfer for attempted abuse, which is neither reasonable nor correct.

RFSU, RFSL and HIV-Sweden want guidelines from the RA to the prosecutor who takes into account the major medical achievements and the knowledge base available to create a fairness in how the judicial system manages this already vulnerable group of people living in our society HIV.

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“Stor osäkerhet om HIV hos domstolar och rättsväsende – riksåklagaren måste agera“

Öppet brev till riksåklagaren Anders Perklev:

Organisationerna Hiv-Sverige, RFSL och RFSU efterlyser riktlinjer för åklagare avseende åtal mot personer som lever med hiv och som riskerar att överföra viruset via sexuella kontakter.

Undertecknande organisationer följer utvecklingen noga avseende hiv i Sverige, hur personer som lever med hiv uppfattar sin situation, hur rättspraxis ser ut och de medicinska framgångar som görs på området. Sedan år 2013 finns kunskapsunderlaget “Smittsamhet vid behandlad hivinfektion” framtaget av Folkhälsomyndigheten och Referensgruppen för AntiViral terapi (RAV), i vilket det framgår att det föreligger försumbar risk för överföring av hiv vid välinställd behandling.

Sedan år 2016 finns det även ett dokument skrivet av medicinska experter i vilket invaliditetsgraden vid hiv sänks från tidigare 40-60 % ned till 0-10 %.

Dessa dokument borde få stor inverkan på när personer åtalas, för vilka brott personer åtalas, hur skadestånd vid en eventuell överföring bör mätas och hur allvarlig den kroniska sjukdomen hiv skall betraktas vara.

RFSU, RFSL och Hiv-Sverige kan konstatera att det råder stor osäkerhet i domstolar och rättsväsendet i övrigt hur de ska hantera de framsteg som görs på det medicinska området gällande hiv. Det saknas prejudikat sedan kunskapsunderlaget kom, och som riksåklagaren väl känner till gavs inte prövningstillstånd i högsta domstolen för mål B 2152-13, Hovrätten över Skåne och Blekinge, i vilket en person som lever med hiv och hade en så kallad välinställd behandling friades från straffansvar.

Undertecknande organisationer välkomnar hovrättens dom, som tydligt tar hänsyn till medicinska framgångar, smittsamhetsdokumentet och fakta i övrigt i målet. Dessvärre hänvisade Högsta domstolen (i samband med att prövningstillstånd inte gavs) till avgörandet NJA 2004 s. 176 vilket innebär att hovrättens dom inte kan anses vara prejudicerande.

Undertecknande organisationer finner det djupt olyckligt att Högsta domstolen dels inte prövade målet dels hänvisade till prejudikat som inte längre baserar sig på aktuell kunskap. Detta innebär att rättsläget är oförändrat och otydligt, vilket skapar en rättsosäkerhet för personer som lever med hiv.

Glädjande nog kan vi konstatera att domstolarna ändock har börjat ta till sig av de medicinska framgångar som gjorts sedan 2004 och i dagarna kom en ny underrättsdom i vilken en man som lever med hiv och står på välinställd behandling frias från straffansvar (se Dagens Juridik 2016-05-31) . Vi hoppas att mål B 212-15 från Uppsala tingsrätt skall gå vidare inom rättsväsendet och skapa en ny praxis på området.

I domen konstateras att risken för överföring av hiv vid oskyddade samlag är så pass liten vid välinställd behandling att man inte rimligen kan förvänta sig effekten att överföring sker, och att det därmed inte uppfyller de objektiva brottsförutsättningarna för framkallande av fara för annan.

Trots att professionen bedömer risken för överföring av hiv vara försumbar vid välinställd hiv även vid oskyddade samlag fortsätter åklagare att famla när det gäller vilka gärningar som skall leda till åtal och vilka brott som åtalas för. Vissa åklagare väljer till exempel att åtala personer som lever med hiv, med välinställd behandling, utan uppsåt att överföra hiv och där ingen överföring skett för försök till misshandel vilket varken är rimligt eller korrekt.

RFSU, RFSL och Hiv-Sverige önskar riktlinjer från RÅ till landets åklagare som tar hänsyn till de stora medicinska framgångar som gjorts och det kunskapsunderlag som finns, för att skapa en rimlighet i hur rättsväsendet hanterar denna redan utsatta grupp personer i vårt samhälle som lever med hiv.

Russia: Gay propaganda law especially impacting men with HIV who are being blackmailed for not disclosing their HIV status by anti-gay gangs

Russian crime gangs find gays easy targets for blackmail

By VERONIKA SILCHENKO and IRINA TITOVA

Originally published by the Associated Press on Jun. 5 2016

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In this Wednesday, May 25, 2016 photo, Alexander Loza, a legal adviser at Positive Dialogue, an organization that provides consulting services for gays, speaks to the Associated Press in St. Petersburg, Russia. Russian crime gangs find gays easy targets for blackmail. In the past two years, an increasing number of gays has fallen victim to criminal gangs operating through gay dating sites, rights groups say. (AP Photo/Dmitri Lovetsky)

“Many gay people in Russia lead a double life, unwilling to disclose their sexual orientation to their family or at work,” Loza said. “In the case of such setup dates, they are afraid to disclose their [HIV] status, to be accused of pedophilia, and therefore they are afraid to appeal to the police.”

ST. PETERSBURG, Russia (AP) — Criminal gangs in Russia, operating through gay dating sites, have found a lucrative new blackmail target: homosexual men.

A St. Petersburg economist, one of their latest victims, said several men burst into the apartment where he was meeting his date. Claiming that his date was under age, they threatened to call the police and to release a video they had secretly filmed unless he paid up.

The gay rights group Vykhod, or Coming Out, said they registered 12 such attacks in St. Petersburg in 2015 and at least six more gay men have come to them so far this year. LGBT activists believe the real number is far higher and say the attacks have increased in the past two years.

Since homosexuality finds little acceptance in Russian society, many gays keep their sexual orientation hidden from their families, friends and co-workers. This makes them easy extortion targets for criminals.

Vykhod spokeswoman Nika Yuryeva said most of the recent attacks have followed the same pattern as the one seen by the St. Petersburg economist.

Alexander Loza, a legal adviser at Positive Dialogue, an organization that provides consulting services for gays, particularly those living with the HIV virus, has heard similar stories.

“Many gay people in Russia lead a double life, unwilling to disclose their sexual orientation to their family or at work,” Loza said. “In the case of such setup dates, they are afraid to disclose their status, to be accused of pedophilia, and therefore they are afraid to appeal to the police.”

The activists said Russian criminals have been emboldened by a 2013 law that made it a crime to expose children to gay “propaganda,” part of a Kremlin-backed effort to defend traditional family values and counter the influence of what it considers a decadent West.

Alexander Zhelezkin, who manages outreach programs at Positive Dialogue, said the law was what made him decide to become a gay activist.

“Now, my coming out is my defense,” he said.

For prominent television journalist Anton Krasovsky, however, that move ended his career in Russia. He was fired after he came out on the air in 2013 and hasn’t been able to find a job in television since.

Krasovsky said it will be a long time before gays in Russia feel protected enough to speak publicly about their sexual orientation.

“To stop being afraid, they need to begin to trust the state where they live, but they don’t trust the state where they live now,” he said.

The St. Petersburg economist, however, did go to the police. He spoke to The Associated Press on condition of anonymity out of fear that his attackers, who know where he lives, would seek retribution if they learned that he had reported them.

The economist, who gave his age as “about 30,” said he thought they were lying about his date being a minor. But he said the attackers beat and threatened him — and suggested they had friends in the police force who they said would lock him up on fabricated charges.

He said they demanded more than 100,000 rubles ($1,500). One of them took his bank card and cleaned out his account, and they released him only after he agreed to transfer the balance the next day, he said.

The crime gangs who carry out such attacks are not necessarily anti-gay, but have identified a profitable niche where they feel they can operate with impunity, Loza and Yuryeva said.

The economist agreed.

“They commit these crimes not because they are homophobes — they are simply taking advantage of the situation,” knowing that few people would go to the police after such an experience, he said. “I think they are just common criminals who chose this kind of method.”

St. Petersburg police spokesman Vyacheslav Stepchenko said he had not heard about these blackmail cases and said he wasn’t aware of any anti-gay attacks being registered in the city in recent years.

He offered to check with the specific police station that the economist reported the crime to, but the economist didn’t want to draw public attention to his case by disclosing which station it was.

Timur Bulatov, an anti-gay activist who claims to have helped get a number of teachers fired after outing them as homosexuals, said he sees no need to resort to the blackmail used by criminal gangs.

“Why attack a sick person? Such a person needs treatment,” he said. “I have a bunch of legal methods to use to influence such a person, to put pressure on him.”

Bulatov, who wears camouflage outfits and carries a handgun in a hip holster, said gays are the “enemies” of Russian society and its children, but should be opposed only through legal means.

He said the law banning gay propaganda among minors was intentionally made vague so it can be applied in a wide range of circumstances. The law, for instance, has made it easy to target gay and lesbian teachers in Russia because they work directly with children.

The federal law was modeled on a 2012 St. Petersburg law authored by Vitaly Milonov, a city lawmaker and outspoken opponent of LGBT rights.

“This law is a preventive measure. It was introduced not to punish anyone, but to prevent such public actions as gay parades, because parents in Russia don’t want their children to see these things,” Milonov told the AP.

Milonov, who has a large portrait of the Russian Orthodox Church patriarch on his office wall, said his mission was to promote “normal” families with many children.

“There is no oppression of homosexual people in Russia,” he said. “When gay organizations complain of such harassment, they do it in order to get more money from soft-hearted Europeans.”

US: Colorado legislature votes to overhaul HIV criminalisation laws and now awaits governor's signature

This month, people living with HIV in Colorado scored a major legislative victory when the state legislature voted to pass Senate Bill (SB) 146. The bill repeals two HIV criminalization statutes, reforms another and standardizes and modernizes statutory language addressing sexually transmitted infections (STIs) including HIV. SB 146. It now awaits Governor John Hickenlooper’s signature.

Unlike many other states, Colorado has no law criminalizing the non-disclosure of HIV. However, if a person living with HIV is convicted of sexual assault, he or she can be given a sentence enhancement, meaning that a prison sentence can be increased up to three times the maximum sentence. The statute does not limit application of the enhancement to cases in which the assault led to HIV transmission; the fact that the assailant has HIV is enough to trigger it.

Colorado also has two statutes criminalizing sex workers living with HIV. One requires HIV testing for persons accused of sex work. If they test positive, prosecutors are allowed to access their health records to see whether they had previously been diagnosed with HIV. The second statute allows a felony charge ofprostitution with knowledge of being infected with AIDS.

These laws were rarely applied. “Even though the law had been on the books for years, there were very few prosecutions and even fewer convictions,” said Colorado Senator Pat Steadman, who sponsored SB 146, during his keynote address at the second HIV is Not a Crime conference last week in Huntsville, Alabama. In his research, he had found only a few cases where people had been charged with sexual assault with HIV; those had ended with plea bargains, meaning that the conviction and enhanced sentence had never been imposed.

Prostitution with knowledge of being infected with AIDS was used even less frequently. Steadman found only six cases in which people had been prosecuted under that statute. Those six include multiple prosecutions of one sex worker. The last prosecution resulted in a conviction and a lengthy prison sentence. But, Steadman pointed out, sex work is an example of a consensual, commercial transaction in which both parties are aware of the risk of STIs, and it shouldn’t be subject to criminalization. “It’s not really causing harm to others,” he noted.

Steadman credits the Colorado Mod Squad (“mod” is short for “modernization”), a de-criminalization taskforce led by the Positive Women’s Network-USA Colorado, with the impetus for the bill. The Mod Squad approached Senator Steadman asked if he’d consider sponsoring a bill repealing HIV criminalization. Steadman, who had a long history of working on HIV and public health issues, agreed. But, he told TheBody.com, “They did the initial research; they got the grassroots community support and brought in the medical experts.”

In March, Steadman introduced SB 146. The bill repeals the statutes on mandated testing for those arrested for sex work and the separate felony charge for prostitution with knowledge of being infected with HIV. While SB 146 does not eliminate the sentencing enhancement for sexual assault with HIV, it amends the law so that HIV transmission is a necessary trigger. “Now, with prophylaxis, the risk of transmission is greatly reduced, and so the likelihood of the law being used in the future is very low,” Steadman told TheBody.com.

Kari Hartel and Barb Cardell are both part of the Colorado Mod Squad. They noted that the impetus for the modernization bill came at the first HIV is Not a Crime conference in Grinnell, Iowa, in 2014. Iowa had just repealed its HIV criminalization law and, Hartel recalled, conference organizers challenged the audience, “Who’s next?”

“Barb’s hand shot up,” Hartel remembered.

Cardell said that when they set out to repeal the state’s criminalization statutes, they were often told, “That’s impossible.” But they persevered — and made sure that people living with HIV were involved to whatever extent they could be. “We’d ask them to read a part of the bill,” she remembered. “Or we’d ask them to read the whole bill.” Thirty-five people living with HIV participated in shaping the bill in some way. Some of the Mod Squad’s core members, such as John Tenorio and Deric Stowell, drove for hours — sometimes in snowstorms — from rural Colorado to Boulder to work on the bill.

At times, ensuring a wide range of participation made the process take longer. For instance, Hartel works with youth, but seeking their input involved more than simply asking them to read the bill and provide feedback. “A lot of the young people want the 30-second overview and how it will affect their lives,” she told TheBody.com.

When their questions couldn’t be answered, Mod Squad members brought their concerns to other meetings with policy advocates and public health officials, then brought the answers back to youth at a follow-up meeting. But all of the Mod Squad members agreed that meaningful participation of people living with HIV was crucial to the process. “This was a movement spearheaded by people with HIV,” said Hartel.

“The criminal law is a clumsy and ineffective tool for protecting public health,” became the sound bite as Steadman began garnering support for the bill. In doing so, he realized the extent of misinformation and ignorance about HIV transmission and criminalization laws. The campaign also provided him the opportunity to educate people, including those in law enforcement, about HIV transmission and its many myths. He downloaded a flier that says, “Spit doesn’t transmit,” and he passed copies out, primarily to police officers. Many, he recalled, were surprised to learn that saliva does not transmit HIV. “They pretended they knew, but they were also taken aback. They’d ask, ‘But what about dentists?'” Shaking his head, he reflected, “There hasn’t been a real effort for society to educate itself.”

Two months after the bill was introduced, members of the Mod Squad were present when the state legislature voted on the bill. As each section was approved, Reverend Tammy Garrett-Williams remembered exclaiming, “It’s passing, it’s passing!”

“It’s not passed yet,” Hartel recalled telling her. But the legislature passed the bill and it now awaits the governor’s signature. He has until June 10th to sign it into law. Steadman is confident that he will do so.

Nine members of the Colorado Mod Squad celebrated their victory at last week’s second HIV is Not a Crime conference. Conference organisers ordered two giant cakes to applaud their success. “It takes me back to Martin Luther King’s ‘I Have a Dream,'” reflected Reverend Tammy Garrett-Williams, another Mod Squad member. “He had a dream, but I have a mission.”

Originally published in The Body

U.S.: Clinton Promises She’ll Reform HIV Criminalization Laws in her opening presentation at 2nd HIV is Not a Crime conference

Tonight, speaking via a pre-recorded video to attendees of the HIV is Not a Crime Training Academy, Hilary Clinton says if she wins the Presidential election, she will work to reform outdated, stigmatizing HIV criminalization laws. Clinton thanked attendees for their work, saying that efforts like HIV is Not a Crime “lift us all up.”

Saying we have “come a long way” since the early days of the AIDS epidemic, Clinton acknowledged, “We still have long way to go.” She spoke about how HIV disproportionately impacts “communities of color, transgender people, gay and bisexual men and young people, around the world.”

Prior to Clinton’s speech, attendees had the pleasure of hearing from Kerry Thomas, talking via phone from an Idaho correctional center, where he’s serving a 30-year sentence. Thomas said he carries a photo with him from the first HIV is Not a Crime conference, held two years ago. Positive and thankful, Thomas nevertheless affirmed that the state court has dismissed his case, but promised “we’re appealing down the road.” Thomas shared his appreciation for outside support and thanked prison officials for allowing him to participate in events like this and serve on the Sero Project Board.

Bryan Jones (who, like Thomas was featured in our special on HIV in prison) described being open about his HIV status in prison as “somewhat suicidal,” and asked if things were different for Thomas.

Thomas replied that it hadn’t always been easy, but he’d recently become more vocal about his status, because, “At some point, someone has to say ‘That’s enough!’ and take on these things.”

Naina Khanna, Positive Women’s Network’s executive director, follwed Thomas, remarking how important his involvement was because, “We should be taking leadership from the people most impacted by these laws.”

PWN sponsored a post-welcome documentary screening of Consent, in which eight women examine the problems inherent in using sexual assault law to prosecute alleged non-disclosure. Khanna’s seemed to hint at that topic when she noted,

“Some of these laws have been put on the books to protect women” She added that sometimes, “women have been complicit in criminalization,” which is one reason the Positive Women’s Network is determined to be involved in HIV-decriminalization.

Khanna then spoke passionately about America being “a country built on back of people brought here forcibly,” arguing, “Our economy is based on people being policed and criminalized,” and that people with HIV weren’t the only targets: but also trans folks, immigrants, people of color and other marginalized groups.

Following Clinton’s televised speech, a panel formed on stage consisting of people who have been prosecuted and parents of several men currently imprisoned under HIV criminalization laws.

The most compelling was a young black man from Oklahoma who told of being arrested and charged with a felony for allegedly sneezing on someone. When placed into custody, he claims the police put a bag over his head, and — allegedly because he responded, “What the fuck?” — he was charged with disorderly conduct.

Most of his charges have since been dropped, but he goes to court July 1st on the disorderly charge. Since being arrested, he said he has received death threats and has had to move several times. He told the audience that he had gone jogging for the first time in years without being worried he might be harassed.

His voice breaking, he added, “I appreciate you not looking at me like I’m dirty.”

Originally published in hivplusmag.com

HIV JUSTICE WORLDWIDE partners, SERO Project and PWN-USA, bring together advocates from U.S. & 4 countries to 2nd National HIV Is Not a Crime Training Academy at University of Alabama-Huntsville

Advocates from 34 states & 4 other countries convene at University of Alabama-Huntsville to strategize Addressing Discriminatory HIV Laws at 2nd National HIV Is Not a Crime Training Academy.

Even as a bill repealing Colorado’s HIV criminalization laws awaits the governor’s pen, much work remains to be done to bring laws up to date with current science in at least 33 states.

Eleven states have laws on the books that can send people living with HIV to prison for behaviors (such as biting and spitting) that carry virtually no risk of transmitting HIV. Forty-four states have prosecuted people living with HIV for perceived exposure or transmission; most states permit prosecution even when no transmission has occurred, and actual risk is negligible.

In Texas, a man living with HIV is currently serving a 35-year sentence for spitting. In Idaho, Kerry Thomas is serving 30 years for allegedly not disclosing his HIV status to a partner – despite the fact that he took measures to prevent transmission, including using a condom and taking medications to maintain an undetectable viral load. Kerry Thomas’ accuser never acquired HIV. Yet his appeal was recently denied, demonstrating that current science continues not to matter to the courts.

“These laws make disclosure harder. Because we so fear the punishment, we just keep things bottled up inside,” says Monique Howell-Moree, who was prosecuted under a US military non-disclosure law and would have faced 8-12 years if convicted. “I didn’t know the best way to disclose … Had I had the support and knowledge that I have now back then, I would most definitely have done things differently.”

In her HIV/AIDS platform and in a recent meeting with activists, U.S. presidential candidate Hillary Clinton called for “reform[ing] outdated and stigmatizing HIV criminalization laws.” Sen. Bernie Sanders’ campaign has said the candidate is also “absolutely opposed” to these laws, according to the Washington Blade. The confluence of outdated laws, unjust prosecutions and profound disparities is bringing advocates and activists from 34 states and 4 countries together for the second national convening dedicated exclusively to strategizing to fight back in the name of human rights and public health.

WHAT: HIV Is Not a Crime II National Training Academy

WHERE: University of Alabama, Huntsville

WHEN: May 17-20, 2016

The Training Academy is co-organized by SERO Project and Positive Women’s Network-USA, two national networks of people living with HIV. It comes on the heels of a major victory in Colorado, where through the dedicated efforts of a group known as the “CO Mod Squad” (“mod” refers to “modernization” of the law), led by Positive Women’s Network-USA (PWN-USA) Colorado, a bill was passed last week that updates laws to take account of current science and eliminates HIV criminalization language.

“With people living with HIV leading the way and our allies supporting us, we were able to do something many thought we couldn’t,” said Barb Cardell, co-chair of PWN-USA Colorado and one of the leaders of the successful efforts. “The law now focuses on proven methods of protecting public health — like education and counseling — while discarding the language of criminalization, which actually discourages testing, treatment and disclosure.”

“This law represents real progress for Coloradans, regardless of their HIV status,” she added. At the Training Academy this week, Cardell will share some highlights and lessons learned from the CO Mod Squad’s experience.

Keynote speakers at the Training Academy include Mary Fisher, who stunned the audience at the 1992 Republican National Convention with a speech about her experience as a woman living with HIV; Joel Goldman, longtime advocate and managing director of the Elizabeth Taylor AIDS Foundation; and Colorado state senator Pat Steadman, the senate sponsor of the bill just passed repealing HIV criminalization in his state. Session topics will explore best practices for changing policy, and will consider the intersections of HIV criminalization with issues ranging from institutional racism to transphobia, criminalization of sex work, mental illness and substance use, and overpolicing of marginalized communities.

“The goals of the Training Academy go beyond giving advocates the tools and know-how they need to change policy, to deepening our collective understanding of the impact of these laws and why they are enforced the way they are,” said Naina Khanna, executive director of PWN-USA. “We hope participants will leave better prepared to effect change by thinking differently, forging new partnerships and ensuring communities most heavily impacted by criminalization are in leadership in this movement.”

At SADC-PF parliamentarians meeting in South Africa, Patrick Eba of UNAIDS says HIV criminalization is a setback to regional AIDS efforts

The criminalisation of HIV simply undermines the remarkable global scientific advances and proven public health strategies that could open the path to vanquishing AIDS by 2030, Patrick Eba from the human rights and law division of UNAIDS told SADC-PF parliamentarians meeting in South Africa.

Restating a remark made by Justice Edwin Cameron of the Constitutional Court of South Africa, Eba said: “HIV criminalisation makes it more difficult for those at risk of HIV to access testing and prevention. There is simply no evidence that it works. It undermines the remarkable scientific advances and proven public health strategies that open the path to vanquishing AIDS by 2030.”

SADC-PF has undertaken, as part of its commitment to advocacy for sexual reproductive health rights, an ambitious 90-90-90 initiative in east and southern Africa, with the help of the media, to ensure that all people living with HIV should know their status by 2020; that by 2020 90 percent of all people diagonised with HIV will receive sustained antiretroviral therapy; and that by 2020 90 percent of all people living with HIV and receiving antiretroviral therapy will have viral suppression.

He implored parliamentarians from SADC-PF member states to advocate for laws that would decriminalise HIV after he noted several African countries had HIV-specific criminal laws that resulted in arrests and prosecutions of those convicted of spreading HIV intentionally.

Eba said calls for the criminalisation of intentional or wilful spreading of HIV stem from the fact there are high rates of rape and sexual violence, and most notably in post-conflict countries such as the DRC there exist promises of retribution, incapacitation, deterrence and rehabilitation.

He gave an example of one case of miscarriage of justice involving a woman in Gabon who was wrongfully arrested after a man accused her of having infected him with HIV, but after spending several months in detention she was actually found to be HIV-negative after she went for testing.

Eba appealed to SADC-PF parliamentarians to consider decriminalisation of HIV on the basis that antiretroviral treatment (ART) has a 96 percent rate in reducing the risk of HIV transmission.

“End criminalisation to end AIDS,” he implored SADC-PF parliamentarians who included Agnes Limbo of the RDP, Ida Hoffmann of Swapo and Ignatius Shixwameni of APP, all delegated by Namibia to the conference.

Eba also referred to the motion unanimously adopted in November 2015 that was moved by Duma Boko of Botswana and that was seconded by Ahmed Shaik Imam of South Africa who reaffirmed SADC member states’ obligation to respect, fulfil and promote human rights in all endevours undertaken for the prevention and treatment of HIV.

That motion had also called on SADC member states to consider rescinding and reviewing punitive laws specific to the prosecution of HIV transmission, exposure and non-disclosure. It also reiterated the role by parliamentarians to enact laws that support evidence-based HIV prevention and treatment interventions that conform with regional and international human rights frameworks.

Eba said since HIV infection is now a chronic treatable health condition, no charges of “murder” or “manslaughter” should arise and that HIV non-disclosure and exposure should not be criminalised in the absence of transmission, and that significant risk of transmission should be based on best available scientific and medical evidence.

On the other hand, he said, there is no significant risk in cases of consistent condom use practice or other forms of safer sex and effective HIV treatment.

The SADC-PF joint sessions also addressed the issues of criminalisation of termination of pregnancy. The joint sessions ended on Thursday with a raft of recommendations for the ministerial meetings.

Originally published in New Era.

Bangladesh: Communicable Disease Prevention, Control and Elimination Act, 2016 which includes jail time and a fine for not being screened and/or treated for many communicable diseases, including HIV, is approved by cabinet

The cabinet yesterday approved a proposed law aiming at preventing and controlling communicable diseases in the country.

The proposed law titled Communicable Disease Prevention, Control and Elimination Act, 2016 has a provision of jail term and fine for a person who is affected with such a disease but does not undergo medical tests for detection.

Briefing reporters after a cabinet meeting at the Secretariat, Cabinet Secretary M Shafiul Alam said the affected persons concerned would also have to be examined in related and specified institutes to detect the types of their diseases.

If a patient avoids medical tests to detect presence of diseases considered as transmittable, they would face one-year imprisonment or Tk 2 lakh fine, he added.

Alam said one of the goals of the draft law is to protect people from communicable diseases as well as taking proper measures to create mass awareness about germs related diseases like Kala-Azar, HIV, Influenza, Nipah, Ebola and Typhoid.

Under the proposed law, a patient or the affected persons would have to be screened and isolated to protect common people from being affected, he observed.

Experts have termed the proposed law a “landmark and a milestone.”

“It’s a landmark decision of the government. With enactment of the law, Bangladesh’s health sector will move one step forward,” said Prof Dr AKM Shamsuzzaman, director of Communicable Disease Control of the Directorate General of Health Services (DGHS).

He told The Daily Star that communicable diseases would be eliminated more quickly with the implementation of the law.

Communicable diseases like malaria, dengue, Filariasis, Kala-azar, all types of influenza, Nipah, HIV, viral hepatitis, among others, would be brought under the legal framework of the law, he added.

Prof Shamsuzzaman further said, “We used to face difficulties in dealing with diseases which appear suddenly on any part of the country. With the enactment of the law, the health department will be able to involve other government bodies concerned including the law-enforcement agencies for controlling such outbreaks.”

Emerging threats of diseases like Zika and communicable diseases which transmit frequently on bordering areas would be dealt under legal framework, he said, thanking the government for approving the proposed law.

The health ministry moved to enact the law in 2014 but couldn’t do so due to various bureaucratic tangles, according to insiders.

The draft law was prepared in line with and replacing the Bangladesh Malaria Eradication (Repeal) Ordinance, 1977 and the Prevention of Malaria (Special Provisions) Ordinance, they said.

As per the proposed law, the authorities concerned will create quarantine facilities for affected persons. The law also creates a scope for the government to take all kinds of assistance from other countries to prevent communicable diseases.

New report shows HIV criminalisation is a growing, global concern but advocates are fighting back

A new report released today shows that HIV criminalisation is a growing, global phenomenon. However, advocates around the world are working hard to ensure that the criminal law’s approach to people living with HIV fits with up-to-date science, as well as key legal and human rights principles.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

What do we mean by ‘HIV criminalisation’?

HIV criminalisation describes the unjust application of the criminal law to people living with HIV based solely on their HIV status – either via HIV-specific criminal statutes, or by applying general criminal laws that allow for prosecution of unintentional HIV transmission, potential or perceived exposure to HIV where HIV was not transmitted, and/or non-disclosure of known HIV-positive status.

Such unjust application of the criminal law in relation to HIV is (i) not guided by the best available scientific and medical evidence relating to HIV, (ii) fails to uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and (iii) infringes upon the human rights of those involved in criminal law cases.

What is the impact of HIV criminalisation?

Understanding the potential negative impact of HIV criminalisation on public health is critical to making informed policy decisions.

The last few years have seen increasing interest among researchers in the area of HIV criminalisation and a push into new areas of enquiry to examine the impacts of the unjust application of criminal law.

The report summarises a body of research which shows that instead of delivering a public health benefit, HIV criminalisation is a poor public health strategy, exacerbating racial and gender inequalities and negatively impacting a number of key areas including: testing; disclosure; sexual behaviour; and healthcare practice.

How many countries around the world have HIV criminalisation laws?

Since our last report, we found an increase in the number of countries that specifically allow for HIV criminalisation: these could be stand-alone HIV-specific criminal laws, part of omnibus HIV laws, or criminal and/or public health laws that specifically mention HIV.

Some of this increase is due to laws enacted since 2013 in Botswana, Cote d’lvoire, Nigeria, Uganda and Veracruz state (Mexico), and some is due to improved reporting and research methodology.

Our analysis shows that a total of 72 countries have adopted laws that specifically allow for HIV criminalisation, either because the law is HIV-specific, or because it names HIV as one (or more) of the diseases covered by the law. This total increases to 101 jurisdictions when the HIV criminalisation laws in 30 of the states that make up the United States are counted individually.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_6

How many countries have prosecuted people living with HIV?

Prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries. This total increases to 105 jurisdictions when individual US states and Australian states / territories are counted separately.

Of the 61 countries, 26 applied HIV criminalisation laws, 32 applied general criminal or public health laws, and three (Australia, Denmark and United States) applied both HIV criminalisation and general laws.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_7

Where have prosecutions recently taken place?

We found reports of at least 313 arrests, prosecutions and/or convictions in 28 countries during the report period, covering 1 April 2013 to 30 September 2015.

Of note, we are now able to include data on reported prosecutions in Belarus and Russia, which are likely to have been taking place at least since the enactment of a Belarusian public health law in 1993 and a Russian HIV criminalisation law in 1995.

The highest number of cases during this period were reported in:

• Russia (at least 115) • United States (at least 104) • Belarus (at least 20) • Canada (at least 17) • France (at least 7) • United Kingdom (at least 6) • Italy (at least 6) • Australia (at least 5) • Germany (at least 5).

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_8

HIV criminalisation in sub-Sarahan Africa of increasing concern

Where there was no HIV criminalisation at the start of the 21st century, 30 sub-Saharan African countries have now enacted overly broad and/or vague HIV-specific criminal statutes.

Most of these statutes are part of omnibus HIV-specific laws that also include protective provisions, such as those relating to non-discrimination in employment, health and housing. However, they also include a number of problematic provisions such as compulsory HIV testing and involuntary partner notification, as well as HIV criminalisation.

During the period covered by this report four countries in sub-Saharan Africa passed new HIV criminalisation laws: Botswana, Cote d’lvoire, Nigeria and Uganda.

Very few countries in Africa are now unaffected by problematic HIV criminalisation laws. The rise of reported prosecutions in Africa during this period (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_9

Where has advocacy improved legal environments?

Important and promising developments in case law, law reform and policy have taken place in many jurisdictions, most of which came about as a direct result of advocacy.

During the report period, although an additional 13 jurisdictions in nine countries proposed new HIV criminalisation laws, seven of these were not passed, primarily due to swift and effective advocacy against them at an early stage. Advocacy in another ten jurisdictions in seven countries challenged, improved or repealed HIV criminalisation laws.

The legal environment relating to HIV criminalisation has improved in a small number of countries in sub-Saharan Africa, most notably in Kenya. On 18 March 2015, Kenya’s High Court ruled that its HIV criminalisation provision – Section 24 of the HIV Prevention and Control Act 2006 – was unconstitutional because it was vague, overbroad and lacking in legal certainty, particularly in respect to the term ‘sexual contact’.

The Court also found it contravened Article 31 of the Kenyan Constitution which guarantees the right to privacy because the law created an obligation for people with HIV to disclose their status to their ‘sexual contacts’, with no corresponding obligation for recipients of such sensitive medical information to keep it confidential.

AHJ2-Where HIV criminalisation laws exist (as of April 2016)_10

Using science as an advocacy tool

Increased knowledge about reduced infectiousness due to antiretroviral therapy has led to advocacy that resulted in a number of jurisdictions revising or revisiting their criminal laws or prosecutorial policies relating to HIV criminalisation, although progress has been frustratingly slow.

Following the ‘Swiss statement’, published in January 2008, a growing number of courts, government ministries and prosecutorial authorities have accepted antiretroviral therapy’s impact on reducing the risk of both HIV exposure and transmission.

However, scientific advances alone will neither ‘end AIDS’ nor end HIV criminalisation. Although the impact of antiretroviral therapy on infectiousness is an important advocacy tool, it must be remembered that many people with HIV do not have access to treatment (or are unable to achieve an undetectable viral load when on treatment) and that everyone has a right to choose not to know their status and/or start treatment and should not be stigmatised nor considered ‘second class citizens’ should they wish to delay diagnosis or antiretroviral therapy.

More work required

Despite the many incremental successes of the past few years, much more work is required to strengthen advocacy capacity. This is why a coalition of seven organisations launched HIV Justice Worldwide in April 2016.

We also need to be aware that HIV criminalisation does not exist in vacuum, and is often linked to punitive laws and policies that impact sexual and reproductive health and rights, especially those aimed at sex workers and/or men who have sex with men and other sexual minorities.

And, bearing in mind the stigma faced by those with, for example, hepatitis C and concerns over the sexual transmission of the Ebola and Zika viruses, as we move forward to eliminate – or modernise – HIV criminalisation laws, we must ensure that our work does not inadvertently lead to the further criminalisation of other communicable and/or sexually transmitted infections.

Click on this link to read or download Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation.

A note about the limitations of the data

The data and case analyses in this report covers a 30-month period, 1 April 2013 to 30 September 2015. This begins where the original Advancing HIV Justice report – which covered the 18-month period, 1 September 2011 to 31 March 2013 – left off. Our data should be seen as an illustration of what may be a more widespread, but generally undocumented, use of the criminal law against people with HIV.

Australia: Southern Australia new legislation to soon enforce mandatory blood testing of offenders for spitting at, or biting police officers

MORE than 100 police officers are being spat at each year, exposing them to infectious diseases and raising the concerns of their union.

Police figures show 111 officers were spat at in 2013 and that total has remained steady each year since, although they refused to release new figures.

South Australian Police Association president Mark Carroll said he hoped new legislation, which is expected to soon become law, enforcing mandatory blood testing of offenders who assault police would protect his members.

“When, in the course of duty, officers are spat on, bitten or otherwise assaulted in a way involving an exchange of bodily fluids, it’s essential that these officers have access to blood samples from the assailant that can be tested,” he said.

The comments come after the sentencing of Brandon William Peter Humes who spat on an officer during an arrest him and told him ‘I don’t give a f — k … I have HIV AIDS and now you’ve got it too’.

In sentencing Humes, 27, this month District Court Judge Rauf Soulio said the officer had to restrain Humes which left him unable to immediately “decontaminate himself”.

“Your comments about HIV caused him great distress,” Judge Soulio said.

“He felt unable to hold his infant daughter, who was born prematurely, for fear of passing on a communicable disease.

“He had to deal with the fear of waiting for blood results, which were, fortunately, negative.”

Humes was sentenced to four years and six months jail with a non-parole period of two years for armed robbery and the spitting offence in June last year.

Also, Senior Sergeant Alison Coad contracted oral herpes after being spat on by a criminal.

SAPOL would not comment on the medical history of officers but said “this type of incident (spitting) is always of concern.”

“This type of behaviour is totally inappropriate and can result in offenders facing very serious charges,” a spokeswoman said.

The WA Police Union has recently requested officers be equipped with spit hoods because of a spike in incidents there.

Orginally published in The Advertiser

US: Teleconference on HIV Criminal Laws on Thursday – May 5, 2016 from 10:30 to 11:30 a.m. ET

CHLP, The American Bar Association AIDS Coordinating Committee and the National Association of Criminal Defense Lawyers present a teleconference on HIV Criminal Laws on Thursday, May 5 from 10:30 to 11:30 am ET on HIV Criminal Law for criminal defense lawyers, service providers in the legal, medical and social work communities and people living with HIV.

Sponsoring organizations: The ABA AIDS Coordinating Committee, The Center for HIV Law and Policy, and The National Association of Criminal Defense Lawyers.

Audience: Criminal defense lawyers, service providers in the legal, medical and social work communities and people living with HIV

Format: Interactive–speaker presentations followed by audience Q and A

Date and Time: May 5, 2016 from 10:30 to 11:30 a.m. ET

How to Participate: There is NO COST to participate. The morning of the event simply dial the Conference Call number 1 (877) 317-0419 and enter Access Code 2244415. To be sent the documents that will be referenced during the Teleconference please send your e-mail address toidominguez@nacdl.org or anichol@hivlawandpolicy.org

Summary: Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more. Learn from experts about these laws and how to defend against them.

Opening Remarks: Norman L. Reimer, Executive Director of the National Association of Criminal Defense Lawyers (NACDL).

Moderator: Richard A. Wilson, Chair ABA AIDS Coordinating Committee.

Presentation One: Department of Justice Civil Rights Division’s Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors by Allison Nichol, CHLP Co-Executive Director.

In May 2013 the United States Department of Justice, Civil Rights Division (CRD) issued guidance on how to reform HIV-specific criminal laws to bring them into alignment with current science, from actual routes and risks of transmission to the transformation of HIV treatment and prevention with the development of highly effective antiretroviral therapy (ART).

Presentation Two

Defending Against HIV State Law Prosecutions by Mayo Schreiber, CHLP Deputy Director.

Two recent cases in which CHLP participated, one in Missouri and one in Ohio, will be discussed, along with the HIV criminal statutes in those states. These cases and statutes are illustrative of the fundamental injustice of the statutes as drafted and the punishments provided for violating them. Defense trial and sentencing strategy will be analyzed, including identification of experts and supporting resources, and current thinking on legal challenges to these laws.

A Q&A Session Will Follow.

For more info, go to: http://www.hivlawandpolicy.org/fine-print-blog-news/when-sex-a-crime-and-spit-a-dangerous-weapon-a-teleconference-hiv-criminal-laws