By Kamau Muthoni Kenya: The High Court has declared unconstitutional a section of the HIV and Aids Prevention and Control Act that sought to criminalise reckless spreading of the disease. A three-judge bench comprising justices Mumbi Ngugi, Isaac Lenaola and George Odunga ruled Section 24, introduced by the State and criminalising the reckless spreading of HIV, was unclear and had no limits on which group of people was targeted.
US: Texas Senator Joan Huffman introduces four new HIV-related laws, including vague and overly broad HIV-specific criminal statute, SB 779
Three bills in the Texas statehouse would use HIV status as a weapon, one would lessen stigma.
Januari Leo, who works with Legacy Community Health Service, is the state’s go-to girl when it comes to following bills in the Texas Legislature related to HIV/AIDS. So when she calls a bill harmful, she’s likely not exaggerating.
Leo this week identified four bills introduced during this legislative session that would directly impact those living with HIV. Sen. Joan Huffman, R-Houston, filed SB 779, which would use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.
SB 1705, also filed by Huffman and its companion HB 2395 by Rep. Rick Miller, R-Sugar Land, would allow a court to test a juvenile for HIV following a crime.
Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem.”
Texas is among five states that have no law criminalizing HIV, but there have been cases prosecuted in Texas based on exposure or transmission.
Currently 37 states have some form of criminal law related to exposure and/or transmission of HIV on the books, according to the LGBT Movement Advancement Project.
According to the Center for HIV Law and Policy, both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. They are joined by numerous medical organizations.
According to the Centers for Disease Control, states enacted HIV-specific criminal exposure laws during the early uncertain days of the AIDS crisis.
That legislation criminalized HIV-positive people who know their status and intentionally expose it to others.
In order to qualify for funding under the passage of the Ryan White Comprehensive Act in 1990, states were required verify that their HIV criminalization laws were sufficient enough to prosecute criminals.
Sen. Rodney Ellis, D-Houston, has introduced legislation making HIV tests a routine part of medical testing, but giving individuals the
choice to opt out.
“There’s already legislation making it a crime to intentionally spread HIV,” Leo said of the Ryan White Act requirements. “But these aren’t those bills. These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”
Though the bills’ language narrowly identifies cases when the law could be applied, you can’t forget the bigger picture.
“We’re trying to get to zero cases of HIV through so many resources, including PReP, preventive testing and education,” Leo said. But the bills’ authors may not realize there is also an unintentional outcome: stigmatization, which could cause less testing and awareness of one’s HIV status.
Enter SB 194 by Sen. Rodney Ellis, D-Houston, which makes HIV testing a routine part of medical tests while letting the patient opt out.
“It creates a standard. Currently you have to ask for a test. Making people aware and voluntary eliminates stigma,” Leo said of Ellis’ bill. It has now been introduced for a fourth time.
Another bill that’s seen its fair share of legislative sessions is HB 65 by Rep. Ruth Jones McClendon, D-San Antonio. The bill would create a pilot needle-exchange program in a handful of Texas counties, including Dallas, to help prevent the spread of HIV, hepatitis B, hepatitis C, and other infectious and communicable diseases.
The bill, unfortunately, was used as ammunition against its Republican sponsors, including former Sen. Bob Deuell, who was ousted by candidates backed by far right groups like Texas Right to Life and Empower Texans.
Like many advocates, Leo said she is playing defense during the 84th legislative session, where killing a bad bill is better than passing any good bills at all.
……………
HIV Legislation
• SB 1705 by Sen. Joan Huffman and HB 2395 by Rep. Rick Miller would allow a court to test a juvenile for HIV following a crime if the criminal suspect is suspected to have HIV.
• SB 779 by Sen. Huffman would allow a court to use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.
• SB 194 by Sen. Rodney Ellis makes HIV testing a routine part of medical tests while letting the patient opt out.
• HB 65 by Rep. Ruth McClendon would create a pilot needle exchange program in certain Texas counties.
Honduras reforms 20 year-old omnibus HIV law eliminating mandatory testing and providing free healthcare
Finally, after months of hard work and activism, Honduras managed to approve the reform of 47 articles of the HIV Law, which helps people with HIV in the country. This reform seeks to guarantee the rights of people with HIV and/or AIDS and, thus, ensure a comprehensive response to the epidemic.
One of the most significant achievements of this reform is the 47th article, which establishes that “all people with HIV are exempted from payment of the recovery fee or any other fee for the provision of services”; an amount charged in different health centers to patients with HIV, which was causing people to abandon their treatment.
One of the most significant achievements was the modification of the article which established that people with HIV were not allowed to adopt any children or even worst were not allowed to get married. Massive HIV testing in detention centers and mandatory HIV testing for vulnerable groups were also eliminated.
This achievement marks a milestone in the respect for the rights of people with HIV, since it is the first time to reform this law, after 20 years of having been created. “It has been a struggle for many years to get the process started, and now it was approved in a short period of time, which is a great achievement. The project was introduced in May, 2014”, explained Sandra Zambrano, Executive Director of Asociación para una vida mejor para personas con y afectadas por el vih (APUVIMEH).
“The excitement is great, I’m really happy, we have won and it seems incredible that it has happened (…) This is only the beginning of many changes, and it motivates me to keep fighting. It has been difficult, we are a minority, but together we have succeeded and that means a lot”, said Luis Javier Tejada.
The reform will take effect once it is published in the official newspaper of Honduras named “Gazette”.
Undoubtedly, this success is the product of arduous teamwork that has been carried out thanks to organizations such as UNAIDS and the Pan American Health Organization, in conjunction with the Honduran civil society and other international organizations.
Gambia's National Assembly passes new HIV omnibus law that appears to be protective and supportive, but anti-gay law with life sentence for 'aggravated homosexuality' if living with HIV remains on the books
The Minister for Health and Social Welfare, Omar Sey, on Wednesday, 19th March, presented a bill entitled HIV AND AIDS PREVENTION AND CONTROL BILL, 2015 to the National Assembly during a session held in Banjul.In reading it for the second and third times, the health minister said the new Bill states that the ministers responsible for basic and secondary education, higher education and health shall ensure that students are educated on HIV and AIDS in public and private schools at basic, secondary and higher levels, including formal, non-formal and indigenous learning systems.
Mr. Sey said it shall be ensured that education and training courses cover mode of transmission, prevention and other sexually transmitted infections as well as human rights of the people living with HIV and vulnerable groups.
Further dwelling on the Bill, he said health care personnel shall ensure that education and information on HIV and AIDS form part of the health services that they render to their patients and that the ministry of health shall ensure that health care personnel are appropriately trained on information and education on HIV and AIDS.
On sensitization of HIV and AIDS in the work place, he said all employees and members of the armed forces and security services shall receive standard HIV and AIDS education which shall include themes on the causes, modes of transmission and prevention of HIV and on confidentiality at the work place and the acceptance of workers living with HIV and AIDS.
The health minister said community education on HIV and AIDS shall be launched, including the education of nationals abroad.
He said part of the Bill also requires the provision of information for tourists and passengers on transit.
In his intervention, Hon. Ousman Bah of Sabach Sanjal, who seconded the motion, commended the health ministry and said the bill is timely and relevant in the fight against HIV and AIDS. He urged his colleagues to pass the bill without hesitation.
Following some amendments, the Bill was eventually passed by the whole committee of the house.
But: http://www.theguardian.com/world/2014/nov/21/gambian-leader-approves-anti-gay-law
US: Positive Justice Project releases a set of principles to guide modernisation of state criminal laws
Today, in the wake of recent court decisions rejecting several applications of the criminal law to people with HIV, the Positive Justice Project (PJP) , a national coalition challenging HIV criminal law policies in the United States, released a set of principles to guide the modernization of state HIV criminal laws across the country.
“Ending criminal prosecutions based on HIV or other health conditions is a vitally important part of a sound, public health approach to ending the epidemic,” said Kim Miller of the HIV Medicine Association (HIVMA). “Treating a medical condition as evidence of a crime is at direct odds with public health campaigns to get as many people as possible tested and, if HIV positive, into treatment,” added Ms. Miller. “That is the best way to protect everyone, since treatment keeps people healthy while reducing already low transmission risks to near-zero.”
Currently, 32 states have criminal laws that punish people living with HIV for conduct that would be legal if they did not get tested and did not know their HIV status. Conviction under these laws can result in decades-long prison sentences despite very low transmission risks and dramatic improvements in treatment that have transformed what it means to live with HIV.
Carole Treston of the Association of Nurses in AIDS Care (ANAC) confirmed, “On treatment people living with HIV can expect to live long and healthy lives. It’s time for the law to catch up with the science on the real risks and realities of HIV in the twenty-first century.”
The Guiding Principles for Eliminating Disease-Specific Criminal Laws call for modernization of existing laws that exclude HIV and other infectious diseases from long-established interpretations of criminal felony laws requiring proof of intent to harm accompanied by conduct likely to cause death or severe injury for a conviction. At present, most states require only evidence that a person has been diagnosed with HIV and has engaged in some form of contact with a third party for a felony conviction and, in some cases, life-long sex offender registration.
In 2014, the U.S. Department of Justice issued the Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors; and in 2013 the Presidential Advisory Council on HIV/AIDS (PACHA) issued a Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments. A growing number of political, legal, public health and advocacy organizations also have called for the modernization of HIV laws.
“Both HIV and the prison system have a disproportionate reach into communities of color,” stated C. Virginia Fields, Director of the National Black Leadership Commission on AIDS. “Laws that make an HIV test the basis for a felony prosecution are a double burden for those at greatest risk of both HIV and entanglement in the criminal justice system. We need to end this yesterday, and we need to do it right. These principles are a great step in the right direction.
US: Rhode Island politician wants the state to consider new unscientific, stigmatising HIV non-disclosure law
State Lawmaker Targets People With HIV With Bill To Criminalize Exposure” by Zack Ford
Rhode Island state Rep. Robert Nardolillo (R) has introduced a new bill ( H 5245) that would criminalize exposing individuals to HIV without disclosing a positive status. Rhode Island is one of only 13 statesthat does not have such a law, but efforts are underway to roll back many of those other laws, which were passed when the virus was not as well understood as it is today.
Currently, Rhode Island does have a law that makes it a misdemeanor to expose another person to any sexually transmitted disease (STD), punishable by up to three months in jail and a fine of up to $100. Nardolillo told ThinkProgress that he doesn’t think this is appropriate for exposure HIV. “HIV is different. I put it alone,” he explained. “If this act happened, the penalty would be what?” According to his bill, it should be imprisonment up to 15 years and a fine up to $5,000.
A freshman legislator, Nardolillo openly discussed in his campaign that he was a victim of sexual assault as a minor and that he thus has “very strong views on sex offenders and the weak legislation that continually fails to protect those who are, have been, and will be victimized.” He noted that Rhode Island’s current laws offer “no penalty or enhancement” when STD transmission takes place during a sexual assault, though individuals can be punished for both. His new bill does criminalize when someone with HIV “forcibly engages in sexual intercourse,” but it also criminalizes when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”
ThinkProgress confronted Nardolillo with studies that show that criminalizing HIV actually disincentivizes individuals from getting tested for HIV because they fear prosecution if they know their status is positive. As a result, the stigma against people with HIV increases and fewer people seek care for their HIV, which could increase their potential for transmitting the virus. “Have I read the research? I did,” Nardolillo confirmed, saying that he still felt that HIV was too serious not to prosecute in a distinct way.
ThinkProgress also asked Nardolillo about recent research showing that for HIV-positive people who have sought care and reduced their viral load to undetectable levels, it’s virtually impossible for them to transmit the virus to others. Should those individuals similarly be prosecuted for not disclosing their status? “I have no comment on that,” Nardolillo responded.
It was research about the risk of transmission that actually led the Iowa Supreme Court to overturn the conviction of a man who had been charged under that state’s HIV criminalization law last year. In fact, the Court said that, regardless of viral load, protected anal sex or unprotected oral sex are now known to carry such a minimal risk of transmission that they could not hold someone accountable for “risking” exposure when engaging in those activities. Nardolillo’s bill implicates any and all vaginal, anal, or oral sex with no qualifications as to whether protection is used.
Last year, Iowa became one of the first states to rescind its HIV criminalization laws, leaving penalties only for those who insidiously intend to transmit the virus. Though other states have not yet followed Iowa’s example, there is consensus among HIV/AIDS experts and advocates that they should. Both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. These laws, they argue, are not based on the medical evidence currently available and counter-intuitively increase stigma and interfere with prevention efforts, making it harder to fight the HIV epidemic, not easier.
The House Committee on the Judiciary will consider Nardolillo’s bill Tuesday afternoon. It currently has four other co-sponsors, but its prospects for passage are unclear.
US: Court of Appeals for the Armed Forces acknowledges per-act sexual HIV exposure risk, limiting future military prosecutions for HIV non-disclosure as aggravated assault
The US Court of Appeals for the Armed Forces (CAAF) has reversed the 2011 aggravated assault conviction (upheld by the US Air Force Court of Criminal Appeals in 2013) of Airman David Gutierrez for potentially exposing a number of sex partners to HIV at ‘swinger parties’, severly limiting the use of this law for future prosecutions in the US armed forces.
Gutierrez’s court-martial on the aggravated assault charge required prosecutors to prove several elements, including that the sexual activity – the “assault” – was deemed likely to produce death or grievous bodily harm.
The five judge CAAF panel’s unanimous ruling, published on Monday (and available in full below) examined the per-act risk of oral and vaginal sex with and without a condom (although there appears to be no discussion of viral load as a key modifier of these risks).
“The question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” wrote Chief Judge James E. Baker. “The critical question . . . is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”
In overturning the conviction, the court cited testimony from the prosecution’s medical expert, Dr. Donna Sweet, that in oral sex with or without a condom, the risk of HIV transmission is “almost zero” and HIV transmission through vaginal sex with a condom is only “remotely possible.”
She estimated that an HIV-positive man engaging in condomless vaginal sex with an HIV-negative woman would result in a 1-in-500 risk of the woman acquiring HIV, but deemed this to be at the “high end” of probabilities.
CAAF concluded that the prosecution had failed to prove that any of the acts were likely to transmit HIV.
“In law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence,” Baker wrote.
Although the decision – overturning a 25-year precedent that had allowed military personnel to be convicted of aggravated assault based solely on a positive HIV antibody test – was welcomed by advocates, another part of the ruling potentially opens the door to the use of a lesser charge – assault consummated by a battery – for future allegations of HIV non-disclosure.
An article in The Tribune quotes Catherine Hanssens, executive director of the Center for HIV Law and Policy, noting that at least part of the decision was “an important sign of progress” that should be “read and taken seriously” by civilian as well as military courts. But…
In a move called “curious” by Hanssens and “astonishing” by military law blogger Zachary D. Spilman, author of Blog-CAAFlog, the court cited only a Canadian court decision for support of the potentially far-reaching conclusion that lack of knowledge equals lack of true consent.
In fact, the Court cited the notorious Supreme Court of Canada’s 1998 Cuerrier decision (which led to HIV non-disclosure in Canada problematically being framed as a serious sexual assault).
This, notes Spilman, could be extremely problematic in future military cases. His opinion analysis concludes:
I think this an incredibly odd ending to a very interesting opinion. CAAF reaches to foreign law to invalidate the consent of Appellant’s sexual partners, while simultaneously rejecting the notion that it should distort the law to “fit a round peg of conduct into a square hole of a punitive statutory provision.” Ultimately, the court seems to have merely traded one distortion of the law for another.
It remains to be seen what impact this will have on future US civilian or military cases.
In December 2013, the US Senate passed the National Defense Authorization Act (fiscal year 2014) which aimed to reform the military’s HIV-related policies, including prosecutions for HIV non-disclosure, exposure and transmission. Although work is taking place behind the scenes, it’s unclear when this will have an impact on pending or future prosecutions or policy.
In the meantime, Gutierrez is currently serving eight years in military prison. His case has been sent back to the Judge Advocate General of the Air Force for sentencing review.
The next HIV-related case likely to come before CAAF will be that of Lt Col. Ken Pinkela whose recent change.org campaign to review his unjust court-martial has over 73,000 signatures.
Since he was (falsely) accused of condomless anal intercourse when his viral load was extremely low – neither of which were discussed in this ruling – it remains unclear how this ruling will affect his case.
Read the entire CAAF decision below.
UK: Law Commission scoping consultation deadline this week; key findings and outputs from ‘Criminalizing Contagion’ seminar series may help inform the process
This week, the Law Commission – which reviews areas of the law in England and Wales that have become unduly complicated, outdated or unfair – will conclude its scoping consultation of the reform the Offences Against The Person Act, the law that is currently used to prosecute people living with HIV (and occasionally other sexually transmitted infections; one each so far for gonorrhoea, hepatitis B and genital herpes) for ‘reckless’ or ‘intentional’ transmission, as grievous bodily harm.
The deadline for responses is this Wednesday 11 February 2015.
The consultation is a scoping review – it is looking at the scope of whether a further full review of the existing law should take place, rather than examining what the law should be.
The consultation asks six key questions (out of 38) specifically relating to HIV (and STI) criminalisation:
- We consider that future reform of offences against the person should take account of the ramifications of disease transmission. Do consultees agree?
- We also consider that in such reform consideration should be given to: (1) whether disease should in principle fall within the definition of injury in any reforming statute that may be based on the draft Bill; (2) whether, if the transmission of sexual infections through consensual intercourse is to be excluded, this should be done by means of a specific exemption limited to that situation. This could be considered in a wider review; alternatively (3) whether the transmission of disease should remain within the offences as in existing law. Do consultees agree?
- If the transmission of disease is to be included in any future reform including offences causing injury, it will be necessary to choose between the following possible rules about the disclosure of the risk of infection, namely: (1) that D should be bound to disclose facts indicating a risk of infection only if the risk is significant; or (2) that D should be bound to disclose facts indicating a risk of infection in all circumstances; or that whether D was justified in exposing V to that risk without disclosing it should be a question for the jury in each particular case. Do consultees have any preference as to these possible rules?
- We consider the reform of offences against the person should consider the extent to which transmission of minor infections would be excluded from the scope of injury offences. Do consultees agree?
- Do consultees consider that future reform should pursue the possibility of including specialized offences of transmission of infection, endangerment or non-disclosure?
- Do consultees have observations on the use of ASBOs, SOPOs or other means of penalizing non-disclosure?
Responses to the scoping consultation, including those from the HIV Justice Network, will be published soon. Following the consultation, the Law Commission will decide on their recommendations for the scope of reform in this area and present them to Government in the form of a scoping report.
In the meantime, the summary of key findings and outputs from the Economic and Social Research Council’s seminar series ‘Criminalizing Contagion: legal and ethical challenges of disease transmission and the criminal law’, which took place at the Universities of Southampton and Manchester from January 2012 until September 2014, provides a comprehensive legal and academic overview regarding how the law should treat a person who transmits, or exposes others to the risk of, a serious infection such as HIV.
Written jointly by David Gurnham, Catherine Stanton and Hannah Quirk, the report provides a detailed overview of the discussions in the seminars as well as the numerous publications arising from them, and acknowledges contributions made by various groups and individuals.
Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis
Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV. Although the reports do not state under which general law he was prosecuted, it is likely to be Article 149 of the Criminal Code, grievous bodily harm.
According to a recent analysis of all previous cases that reached Provincial or Supreme Courts (1996-2012), Article 149 has used for similar cases, using the ‘state of mind’ of ‘dolus eventualis’ similar to concept of ‘recklessness.’ The nine year sentence is similar to two previous cases for alleged HIV transmission during otherwise consensual sex in Spain. (Sixteen sentences and 9 writs belonging to 19 cases were included in the analysis; 17 judged by criminal and two by civil jurisdictions – full text at the bottom of the page).
The Court’s judgment, dated December 4, 2014 but published last week, noted that that the Cantabria Provincial Court’s ruling was “sufficiently motivated” and dismissed ABM’s appeal which cited a violation of his right to the presumption of innocence and lack of credibility of his accuser, with whom he maintains a dispute over ownership of property.
The Supreme Court upheld the Provincial Court’s sentence of nine years in prison. He also has to pay his former partner compensation of 70,000 euros.
According to the judgment, cited in several Spanish language media reports (the most detailed of which was in 20 minutos), ABM was diagnosed in April 2000. In 2007 he began a romantic relationship with the complainant which lasted until 2012. It was alleged that ABM did not disclose to her that he was living with HIV despite having condomless sex. In 2011, she began to suspect that her partner may be living with HIV.
The Court found there was nothing to suggest that she was already HIV-positive when she arrived in Spain (from Peru), based on her own testimony, her medical history and her GP, although there is no mention of phylogenetic analysis being used to attempt to show a link between the viruses. The Court also noted that the woman is asymptomatic and on antiretroviral treatment.
BBC report and analysis
On Friday, BBC Mundo (the BBC’s Spanish language BBC World website) published a longer analysis of the implications of overly broad HIV criminalisation in Spanish-speaking countries. I was interviewed for the piece, and am delighted to report that the journalist, Leire Ventas, produced a very good, balanced report.
Below is an approximate English translation of the Spanish language original.

Should knowing transmission of HIV be a crime?
A jail sentence in Spain rekindles debate over whether criminal law should apply to people who transmit the human immunodeficiency virus.Spain’s Supreme Court upheld the sentence of nine years in prison for a man who hid his HIV positive status from partner, infecting her with HIV.
The Court did not admit the appeal filed by the defendant.
This appeal had alleged violation of the right to presumption of innocence and lack of credibility of the victim, who maintains a dispute over ownership of a property.
According to the facts in the case, the convicted man was diagnosed HIV-positive in April 2000 and began a relationship with the woman in 2007.
They were together until 2012.
According to the Court, during those five years the defendant hid that he was HIV-positive from his partner and had sex without protection.
In 2011, woman began to suspect that her partner may have the virus and subjected to analysis, which confirmed infection.
“Intentional transmission”
Given this statement of facts, the Court found that the defendant had deliberately concealed his condition and that was the reason it upheld the ruling.
In the same vein, intentional transmission is the only case in which the Joint United Nations Programme on HIV / AIDS, UNAIDS, considers appropriate to apply the criminal law to people who transmit HIV or expose others to the virus.
“That is, when the person knows their HIV-positive serostatus and acts with intent to transmit or indeed does transmit,” says the report Criminalization of HIV Transmission, 2008 and its revision in 2013 the agency told the BBC.
“If a person known to be HIV-positive acts with the intention of transmitting the virus and transmits it (…), the damage justifies punishment,” it adds.
“In other cases, legislators, prosecutors and judges should reject the application of criminal law”.
Other cases
According to UNAIDS, the law should not apply to cases where there is no “significant risk” of transmission or where the person did not know they were HIV-positive, did not understand how HIV is transmitted, disclosed their status to the person at risk, or did not for fear of violence.
And neither should the law be used against someone who took “reasonable steps” of protection to reduce the risk of transmission or who previously agreed with the other person “a level of mutually acceptable risk”.
Thus, the agency recommends that governments legislate specifically to prevent HIV and only apply general criminal law to cases of intentional transmission.
They should also “develop guidelines to limit the discretion of the police and prosecutors in the application” of criminal law.
And UNAIDS believes that the latter creates “a real risk” of increasing stigma and discrimination.
“It is very likely that prosecutions and convictions fall on members of marginalized groups such as sex workers, men who have sex with men and people who inject drugs,” it says.
Obligation to disclose
For that reason, the agency also recommends repealing the legal obligation to disclose one’s HIV status or that of others, in the case of health workers, that exist in some countries.
“Everyone has the right to privacy regarding their health and should not be required by law to disclose such information, especially when it may cause serious stigma and discrimination and possible violence.”
It considers inappropriate to enact laws criminalising mother-to-child transmission of the virus.
“Everyone has the right to have children, including women living with HIV,” said UNAIDS.
It adds: “When pregnant women are advised on the benefits of antiretroviral therapy, almost all access treatment”.
The position of Edwin Bernard, co-ordinator of HIV Justice Network, a network of advocates providing information and international legal policy advice on HIV criminalisation, is not far from the recommendations of the UN programme.
“The only cases where it is appropriate to apply the criminal law is when there has been intent and these are usually very rare,” he tells the BBC.
He stressed that “not disclosing you have the virus, and keeping it a secret is not the same as wanting to spread it.”
There are several reasons not to tell, according to the activist: stigma, violence, even denying the condition itself.
Awareness, not persecution
Therefore he believes that laws around HIV in countries should be aimed at raising awareness and support for the eradication of the disease, and not the prosecution.
Latin America is a region particularly aware of this, he says.
“It has a good record of understanding that with regard to HIV the law should support and not persecute”.
“There have been very few known cases of prosecution for HIV transmission in Latin America. Most have taken place in Brazil and under a general, not specific, criminal law”.
In Spain, by contrast, between 1996 and 2012, 19 legal [or civil] cases were recorded.
This is registered in the report Temporal trends, characteristics and evidence of scientific progress in legal complaints for alleged sexual HIV transmission: 1996-2012.
However, the country with the most prosecutions is the United States, where 30 states have specific legislation on HIV.
“After eight years following up the issue, I can say that judicial systems, prosecutors and judges do not understand how the science has advanced, how the life expectancy of those with the virus has increased. They should know that the risk of transmission is very low “, says Bernard.
For the activist, the ideal situation would be to only have one or two lawsuits per year related to the topic.
“The law should be used, for example, in cases of rape. But when sex is consensual and those involved are aware of the risks, responsibility should also be shared.”
Australia: Western Australia implements unscientific new law mandating HIV and hepatitis testing for spitting at, or biting, cops
Spitters and biters beware. From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.
The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.
WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.
“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.
“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.
“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”
Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.
“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.
She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.
“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.
Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.
Test will check for HIV, hepatitis B and C.