Uganda: ‘Trial by media’ of nurse accused of exposing a child to HIV via injection sets a ‘dangerous precedent’

The ongoing case of Rosemary Namubiru, the Ugandan nurse accused of exposing a child to HIV during the course of administering an injection, is highlighted in a powerful press release issued yesterday by AIDS Free World.  Fortunately, Ms Namubiru is being supported by several advocacy and human rights organisations as well as by individual HIV advocates in Uganda.

The inflammatory media coverage (an example of which is this horribly invasive TV news story, above) not only increased HIV-related stigma and violated Ms Namubiru’s right to a fair trial, but is also being used to help justify the passing of the draft HIV Prevention and AIDS Control Bill 2010 which includes a number of problematic provisions including mandatory HIV tests for pregnant women and their partners, and forced disclosure of HIV status to a newly diagnosed person’s partner by a medical practitioner. In addition, the Bill contains two overly broad and problematic HIV-specific criminal statutes.

In late 2009, a group of more than 50 Ugandan and international organisations and individuals released a report criticising many of the provisions of an earlier draft. That early advocacy resulted in the removal of a criminal penalty for the transmission of HIV from mother to child through breastfeeding.

Advocacy co-ordinated by the Uganda Network on Law, Ethics and HIV/AIDS (UGANET), continues to argue that the unfavourable clauses must be completely removed and that Uganda must assent to the East African Community (EAC) HIV & AIDS Prevention and Management Act which contains provisions meant to supersede Ugandan law.

Read the entire press release below and download the PDF version here.

HIV-Positive Nurse Tried by Media

––Uganda’s first court case dealing with criminalization of HIV transmission could have far-reaching consequences––

February 11, 2014 (Kampala, Uganda)––Rosemary Namubiru, a Ugandan nurse, stands accused of exposing a child to HIV during the course of administering an injection. The incident incited a media firestorm, leading to Namubiru’s arrest and trumped-up charges of attempted murder. That these were baseless charges was confirmed at the opening of the trial today when the charge was changed to criminal negligence; charges that could still carry up to seven years in prison. As the trial begins, it is clear that the damage has already been done. Namubiru was tried and convicted in the public eye by the media, violating her rights and presumption of innocence.

The implications of this case are far-reaching: the Namubiru case appears to be the first in Uganda’s courts dealing directly with HIV exposure and transmission. Efforts to criminalize HIV transmission, and the failure of both the media and the prosecutors office to act responsibly, set a dangerous precedent and could have grave consequences for the fundamental rights of people living with HIV and AIDS in Uganda and beyond.

Case Summary

Rosemary Namubiru, 64, a nurse with 35 years of experience, was working at the Victoria Medical Centre in Kampala, Uganda. On January 7, 2014, Namubiru was attempting to give an injection to an ill 2-year-old patient. Neither she nor the mother could calm the distraught child. With the child writhing and kicking, the needle accidentally pricked Namubiru’s finger; she stopped what she was doing, washed and bandaged her pricked finger, and returned to the child. She was eventually able to administer the injection.

Uncertain about whether the same needle was used throughout, the mother became concerned about the possibility that her child had been exposed to HIV. It was confirmed that Namubiru is HIV-positive and is on anti-retroviral drugs. The child was given an HIV test; the results were negative. A precautionary 2-month post-exposure prophylaxis regimen was initiated, after which the child will be re-tested.

Rosemary Namubiru was arrested in front of a bevy of journalists. She was held by the Criminal Investigations Department for four days before her first appearance in court. She was charged with attempted murder, which carries a sentence of up to life imprisonment, and remanded to Luzira National Prison to await trial. On February 7, 2014, she was denied bail and returned to prison to await trial.  Minutes before the trail began on February 11, 2014, the prosecutor announced the charge would be changed to “negligent act likely to spread infection of disease.”  With this new charge in place, the prosecutor began to call its witnesses, and the trial is ongoing.

Trial by media

Since the moment of her arrest, Rosemary Namubiru has been found guilty in the court of public opinion. Even though research has shown that the likelihood of HIV transmission from a needle puncture is miniscule––only 0.32% of those exposed to HIV through a subcutaneous puncture became infected––Namubiru has been singled out and vilified in the press because of her HIV-positive status.

Here are just a few of the libelous accusations that appeared in the media reports in the immediate aftermath of her arrest:

* An article with the headline “Killer nurse charged with attempted murder” went on to accuse Namubiru of “maliciously infecting her patients, mainly the children with her HIV positive blood.”

* Another claimed that she “drew her own HIV-infected blood and injected it into a two-year old child.”

* Shortly after Namubiru’s arrest, one article stated that police were “investigating allegations that the woman has been engaging in the act for a pretty long time.”

* An article that appeared in The Africa Report speculated about Namubiru’s mental state, calling her “the fiendish nurse” and claiming “the baby’s incessant cries drove her mad.”

* One journalist opined that “as police struggled to find an appropriate charge to punish such an evil act, it became clearer that our laws are inadequate to cover such emerging but deadly crimes.”

* An editorial about the case declared, “The majority of our doctors and nurses may well be great professionals, but it’s also true that among them are many people who do not harbour good intentions for one reason or another. These could be inherently evil-minded, bitter or mentally unstable.”

False and sensational accounts by irresponsible media can prejudice the outcomes of trials and violate the fundamental human rights of people living with HIV and AIDS. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be presumed to be innocent until proved guilty.”

A miscarriage of justice

Even before the trial began, serious questions surfaced regarding Rosemary Namubiru’s ability to receive a fair hearing. From the spectacle of her arrest—recorded by media who were clearly alerted in advance–-to the baseless original charge of attempted murder, and the rush to trial before the defense could prepare, it is clear that this is a sensationalized case.

Throughout the process, there have been numerous violations of Rosemary Namubiru’s rights:

* According to Section 23(4)(b) of the Ugandan constitution, an accused person can only be held for up to 48 hours before a hearing. Namubiru was held for four days before her first court appearance.

* The prosecution argued against granting bail, stating that Namubiru poses a grave risk to the public, even though there is no evidence of intent to commit any crime.

* Namubiru had no lawyer present when police extracted a statement from her; she was unable to access legal counsel until she had been in detention for a week.

* The Prosecutor claimed on February 7, 2014 that the State had completed its investigation and was ready to proceed to trial. Namubiru’s lawyers had not yet seen the State’s evidence, and were informed that they would receive the file the day before the trial was slated to begin. Section 28 of Uganda’s constitution guarantees that every person charged with a criminal offence shall “be given adequate time and facilities for the preparation of his or her defence.”

What are the broader implications of this case?

HIV advocates fear that the Namubiru case could set a dangerous precedent, in terms of both the criminalization of HIV transmission and the treatment of people living with HIV and AIDS.

Many advocates worry that the case could be used to justify passing the proposed HIV Prevention and AIDS Control Bill 2010. The bill includes two overly-broad sections on the criminalization of HIV, as well as a number of other troubling provisions that would restrict the rights of persons living with HIV and AIDS. If the government moves to legislate the criminalization of HIV, specific groups—including pregnant women, who are easily identified within the chain of transmission—could be targeted for criminal charges. (For more on the proposed bill and its implications, please visit www.uganet.org).

AIDS-Free World unequivocally disagrees with the notion of having a separate criminal code for people who are HIV-positive. If a person attempts to do bodily harm to another, regardless of the means, the existing laws should apply. By creating laws that specifically criminalize HIV transmission, the courts place the emphasis on the person, rather than the crime.

The media frenzy created by this case illustrates the degree to which HIV stigma still exists. Many advocates warn that the introduction of HIV-specific laws would be a dramatic setback in efforts to eliminate discrimination, particularly in the workplace.

Expert global guidance on the criminalization of HIV transmission

In its landmark report, the Global Commission on HIV and the Law recommended that:

“To ensure an effective, sustainable response to HIV that is consistent with human rights obligations:

2.1. Countries must not enact laws that explicitly criminalise HIV…exposure. Where such laws exist, they are counterproductive and must be repealed.

2.2. Law enforcement authorities must not prosecute people in cases of HIV…exposure where no intentional or malicious HIV transmission has been proven to take place.

2.4. Countries may legitimately prosecute HIV transmission that was both actual and intentional, using general criminal law, but such prosecutions should be pursued with care and require a high standard of evidence and proof.

—–

Rosemary Namubiru is being supported by several advocacy and human rights organizations, including the International Community of Women Living with HIV, Eastern Africa (ICWEA), Uganda Network on Law, Ethics and HIV/AIDS (UGANET), The National Forum of People Living with HIV in Uganda and AIDS-Free World (NAFOPHANU), and by individual HIV advocates including Canon Gideon Byamugisha, Milly Katana, Major Rubaramira Ruranga.

 

Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried

A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response.

Aimed at parliamentarians, ‘Effective Laws to End HIV and AIDS: Next Steps for Parliaments’ (aussi disponible en français) is a practical handbook showing which types of laws are helpful and unhelpful in the HIV response, and provides examples of legislation from around the world that have been effective in limiting new HIV infections.

It also includes case studies and interviews with some of the parliamentarians involved in law reform, most notably with Swiss MP Alec Von Graffenried whose last minute amendment resulted in the new Law on Epidemics containing a clause that only criminalised intentional disease transmission.

Other case studies highlighted in the handbook include: decriminalisation of sex work in New Zealand; decriminalisation of personal drug use in Portugal; ending discrimination against people living with HIV in Mongolia: and legal recognition for transgender and intersex people in South Africa.

The Swiss Law on Epidemics was finally passed, following a national referendum, in September 2013.  However, it won’t come into effect until January 2016.

Below is the section explaining how and why the Swiss law reform process took place. It’s an excellent example of how advocates saw an opportunity to work with clinicians, scientists and key parliamentarians in order to make a difference.  It also shows that the law reform process can be a slow and complex undertaking. Patience here is definitely a virtue.

Switzerland: Decriminalisation of unintentional HIV transmission and exposure

Alec Von Graffenried, MP, Switzerland, 2013. “I am delighted my amendment was successful. We can still prosecute for malicious, intentional transmission of HIV. But I expect those cases will be very rare. What has changed is that now people living with HIV – which these days is a manageable condition – will be able to go about their private relations without the interference of the law. They can access medical services without fear. All the evidence suggests that this is a better approach for public health.”

Name of act

The Epidemics Act 2013

Summary

Repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).

Why the law is important for HIV

Criminalization of HIV transmission, exposure or non-disclosure creates a disincentive for testing and gives non-infected individuals false confidence that they will be informed of any infection. In reality, their partner may not even know his or her HIV status and everyone should be responsible for protecting their own sexual health. The latest scientific findings have shown that people on HIV treatment who have an undetectable viral load and no other sexually transmitted infections are not infectious. Such people may want to have consensual unprotected sex. Criminalizing them for doing so has no positive public health impact and is an intrusion into their private life. UNAIDS is calling for the repeal of all laws that criminalize non-intentional HIV transmission, non-disclosure or exposure.

How and why was decriminalization of HIV transmission and exposure introduced in parliament?

In 2007, the Swiss Government decided to revise the Swiss law on epidemics. This was not an HIV-specific law and the decision to review it was not HIV-related but due to concerns that Switzerland was not well-placed to deal with other global epidemics, such as severe acute respiration syndrome (SARS) and H1N1. However, HIV campaigners and persons working in public health saw an opportunity to insert a clause into the Act that would amend Switzerland’s current Penal Code, Article 231 of which has been used to prosecute people living with HIV for transmission and exposure. Since 1989, there have been 39 prosecutions and 26 convictions under Article 231 in combination with the Swiss law on “grievous bodily harm”.

In December 2007, the government began a consultation on a draft Epidemics Bill and campaigners proposed a clause in it amending Article 231 of the Penal Code. In 2010, the government introduced the draft Bill into parliament. However, HIV campaigners were not happy with the new Bill as tabled and campaigned for changes throughout its passage through parliament. Improvements to the Bill were made at the Committee stage but it was not until the final vote at the National Council in 2013 that a last-minute amendment was tabled by Green MP Alec von Graffenried, which achieved campaigners’ core aim of decriminalizing unintentional transmission or exposure.

Was cross-party support secured and, if so, how? How was a majority vote secured?

The last-minute amendment was tabled and passed with 116 votes to 40. The key arguments made in favour of the amendment centred on the unsuitability of public health law to deal with private criminal matters. This rather theoretical argument appealed to legislators, many of whom are practising lawyers or have a legal background. However, the wider case for decriminalization had been made to parliamentarians over a period of many years inside and outside parliament and was reinforced by new sci- entific announcements and court decisions. MPs across the political divide realized that HIV is no longer a death sentence, but a manageable condition and that the right treatment can reduce an individual’s infectiousness to zero. In this context, MPs were more open to the idea of legal change.

During the campaigning period of many years, different arguments were made to appeal to different MPs across the political spectrum. Those on the right often responded best to the notion of an individual’s responsibility to protect their own sexual health and those on the left responded better to public health arguments. Efforts were also made to lobby the head of health departments at the regional level, who were then able to communicate their support for the change to colleagues at the national level.

How long did it take to pass the law?

It took almost six years from the consultation on the first draft of the Bill until it was confirmed by referendum in September 2013. The law will come into effect in January 2016.

 

Read and/or download the entire publication below.

Effective Laws to End HIV and AIDS: Next Steps for Parliaments. Inter-Parliamentary Union, 2013

Global Commission on HIV and the Law Jan 2014 newsletter highlights important legal and policy developments as well as new resources

We are pleased to share this first Newsletter Issue of 2014 containing several important developments. Perhaps most significantly, there have been a number of controversial recent anti-LGBT rulings and legislation around the world. In the same week in December, both Nigeria and Uganda adopted harsh new anti-LGBT related laws, which no doubt will have repercussions on the HIV response in those countries. Also, in December in response to the Supreme Court of India’s overruling of an earlier lower court decision to strike down an anti-sodomy law, effectively recriminalizing same sex behavior, former Commissioners of the Global Commission on HIV and the Law jointly issued a statement expressing dismay at the decision of the country’s top court. On a more positive note, in October Uzbekistan lifted all restrictions on entry, stay and residence for people living with HIV – see this UNAIDS infographic on current travel restrictions for PLHIV.

Several national and local level dialogues on HIV, human rights and the law were held in recent months, including in Brazil (November), China (December), Democratic Republic of Congo (November), and Dominican Republic (June). On 28-31 October, the first Eastern and Southern Africa Regional Judicial Dialogue on HIV and the Law was held in Nairobi. Also in October, UNDP and UNAIDS organized an information session on access to affordable medicines in Nay Pyi Taw, Myanmar, attended by more than 30 parliamentarians. Visit our recently updated interactive map for more information on efforts by UN agencies, including UNDP and UNAIDS, in partnership with governments, civil society and international donors, to support countries in creating enabling legal environments for HIV responses and advance the findings and recommendations of the Global Commission on HIV and the Law.

A number of key knowledge products were published this past quarter, such as: Judging the epidemic: A judicial handbook on HIV, human rights and the law (UNAIDS, 2014); Protecting the rights of key HIV-affected women and girls in health care settings: A legal scan (UNDP, SAARCLAW, WAP+, 2013); HIV and human rights manual for the Democratic Republic of the Congo (French) (UNDP, 2013); Young people and the Law in Asia and the Pacific: A review of laws and policies affecting young people’s access to sexual and reproductive health and HIV services (UNESCO, UNFPA, UNAIDS, UNDP, Youth Lead, 2013); and Compendium of Judgments for Judicial Dialogue on HIV, Human Rights and the Law in Eastern and Southern Africa (UNDP, 2013).

Uganda: Remove mandatory testing, mandatory disclosure and criminalization clauses in draft HIV-specific law, say activists

A coalition of HIV/AIDS activists has asked parliament to amend some clauses in the HIV/AIDS Protection and Control Bill 2010 before enacted into law. The activists said the HIV Prevention and Control Bill 2010 in its current form has clauses that will deter the fight against the epidemic. The amendments they want include removing mandatory testing, mandatory disclosure and criminalization. They also want the title of the Bill changed to HIV/AIDS Prevention and Management Bill.  “Policy makers should treat this matter with urgency,” said Stella Kentutsi the Executive Director, National Forum of People Living with HIV/AIDS Networks in Uganda.

Nigeria's anti-gay law, condemned by US, Britain and Canada, will harm HIV response, says UNAIDS

Local and international groups fighting AIDS warned on Tuesday that a new Nigerian law criminalizing same-sex marriage and gay organizations will jeopardize the fight against the deadly disease. Activist Dorothy Aken’Ova said the new legislation, already dubbed the “Jail the Gays” law, will endanger and even criminalize programs fighting HIV / AIDS in the gay community. Aken’Ova is executive director of Nigeria’s International Center for Reproductive Health and Sexual Rights based in Minna, Niger state.

The UN agency to fight AIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria expressed “deep concern that access to HIV services for lesbian, gay, bisexual and transgender people will be severely affected by the new law in Nigeria, further criminalizing LGBT people, organizations and activities, as well as people who support them.”

UNAIDS said the law could harm Jonathan’s own presidential initiative to fight AIDS, started a year ago. Nigeria has the second largest HIV epidemic globally, with an estimated 3.4 million people living with HIV. The disease affects many more gay men than heterosexuals, with 2010 statistics estimating national HIV prevalence at 4 percent compared to 17 percent among gay men, according to UNAIDS.

President Goodluck Jonathan’s spokesman confirmed Monday that he had signed the Same Sex Marriage Prohibition Act on Jan. 7, providing penalties of up to 14 years in jail for gay marriage and up to 10 years’ imprisonment for membership or encouragement of gay clubs, societies and organizations. The U.S., Britain and Canada have swiftly condemned the law, with Secretary of State John Kerry saying Monday that it “dangerously restricts freedom” of expression and association of all Nigerians.

Human rights activists reported that dozens of gay men were being arrested in northern Nigeria in an apparent response to the law. The law also criminalizes people and groups who support “the registration, operation and sustenance of gay clubs, societies and organizations, processions or meetings in Nigeria.” Those convicted could be jailed for 10 years.

Even before it was the passed, the law was being used to persecute gays, Aken’Ova said. In Bauchi state, she said police entrapped four gay men and tortured them into naming others. She said the police have drawn up a list of 168 wanted gay men, of whom 38 have been arrested recently. An AIDS counsellor told the Associated Press he helped get bail for the men. He spoke on the condition of anonymity for fear he would be arrested as well.

Jonathan, Nigeria’s president, has not publicly expressed his views on homosexuality. But his spokesman, Reuben Abati, told The Associated Press on Monday night, “This is a law that is in line with the people’s cultural and religious inclination. So it is a law that is a reflection of the beliefs and orientation of Nigerian people … Nigerians are pleased with it.”

Uganda: New Anti-Homosexuality Bill a setback for Uganda’s HIV response

The draconian Anti-Homosexuality Bill passed by Uganda’s parliament on 20 December would deliver a major blow to the response to HIV/AIDS if it was enacted by President Yoweri Museveni, activists have warned.

Those found guilty of homosexual acts can be jailed for up to 14 years under the new law, a sentence that increases to life in “aggravated” cases, such as those committed by an HIV positive person, or those involving minors, the disabled and serious offenders.

Civil society activists fear that high-risk groups such as men who have sex with men (MSM) and sex workers – whose HIV prevalence is 13.7 and 33 percent respectively – will see their already limited access to prevention and treatment further eroded.

Amnesty International called the law “a grave assault on human rights [which] makes a mockery of the Ugandan constitution.

“President Museveni should avoid the trap of scapegoating a vulnerable minority in the interests of short-term political gain,” said Daniel Bekele, Africa director at Human Rights Watch.

“He should recognize that this repugnant bill is of no benefit to Ugandans – that it only serves to jeopardize basic rights – and reject it.”

The United States government has also called for the bill not to be enacted.

Switzerland: How effective HIV treatment has impacted upon the criminalisation of HIV exposure

The preventative effect on HIV transmission of being virally suppressed due to antiretroviral therapy (ART), as recognized by the Swiss Commission for HIV/AIDS in 2008, has helped to reduce the criminalization of HIV exposure in Switzerland. Since the Swiss statement’s release, there have been acquittals of two HIV exposure cases in 2009, no further prosecutions for HIV exposure and alterations to the law used in these cases, according to study results presented at EACS 2013 in Brussels, Belgium.

Although Switzerland is not the only country to criminalize HIV, the country did have one of the most severe HIV criminal legislation in Europe, together with Sweden and Austria. Swiss law had considered exposure to HIV, defined as sex without a condom between an HIV-infected individual and an HIV-uninfected individual, a criminal offense. This was the case even if the HIV-uninfected partner gave consent, there was no transmission or the HIV-infected partner did not know his or her status.

The criminal cases were based in two articles of the Swiss penal code: 122, which concerns serious bodily harm, and 231, which covers transmission of human diseases. The latter, despite supposedly being a public health measure, had only been invoked in cases of HIV exposure or transmission. From 1990 onward, this legal apparatus had resulted in more than 80 proceedings, with 48 prosecutions — over half of them due to exposure only, with no transmission having happened.

This scenario started changing in 2008, according to Deborah Glejser and Sascha Moore Boffi, from Groupe Sida Genève, a Swiss community-based HIV organization. Glejser performed a survey that reviewed criminal judgments in Swiss cantonal and federal courts, statements by stakeholders and policy makers and records of parliamentary sessions since 2009. Glejser states that the turning point for advocacy work against criminalization was the declaration issued by the Swiss Commission for HIV/AIDS (now known as the Swiss Commission for Sexual Health) in 2008.

The Swiss statement, as it became known, stated that “HIV-positive individuals on effective antiretroviral therapy who have had an undetectable viral load for at least six months and without sexually-transmitted infections are sexually non-infectious.” Due to the worldwide controversy created by the declaration, it was not immediately used in court, with Swiss prosecutors trying to have it removed from debates so as not to be used as a defense. Although there was international acknowledgement of the Swiss statement in 2009, advocacy groups did not wait for it, using policy briefs by UNAIDS to show that criminal laws against HIV transmission had no impact on the spreading of the virus or containment of the epidemic.

A breakthrough came in December 2008 in the case of an HIV-infected man who was condemned to a year and a half of prison by a Geneva court. The man knew he had an undetectable viral load and had sex with two consenting HIV-uninfected women. Although no transmission occurred, the two women sued the man, who appealed the sentence. Three months later, the court cleared him of the charges stating that he was undergoing ART at the time and had little chance to infect his partners. This was the first decision of its kind in Switzerland, but not the only one. A second acquittal happened in 2009. Since then, no further prosecutions have been carried out for HIV exposure when the HIV-infected partner was on effective ART.

For Glejser, these acquittals were a major step forward and set a legal precedent, leading to a significant decrease in the number of prosecutions after 2009. This was supported in later years by changes in legislation, such as the 2012 reformation of article 231, preventing prosecution when informed consent is given. With the new wording, the article will only be invoked for intentional or malicious transmission.

HIV exposure can still be prosecuted under article 122, but thanks to a 2013 ruling by the Swiss federal court (equivalent to the U.S. Supreme Court), HIV transmission is no longer considered serious bodily harm, falling under common assault and making it easier for defendants to use the Swiss statement for defense, as well as resulting in lesser sentences.

African HIV criminalisation achievements and challenges highlighted at ICASA 2013

The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade.

Although North America is the continent with the most known prosecutions, 26 African countries have overly broad and/ or vague HIV-specific criminal laws with a further three countries considering new HIV-specific criminal laws. This is worrying and disappointing given the growing evidence base and consensus of international agencies that such laws are counterproductive to HIV prevention efforts and generally fail to deliver ‘justice’.

Although there are few known prosecutions the majority of those prosecuted have been women – who are usually the first in a couple to know their HIV status due to routine antenatal testing and who are often erroneously accused of bringing HIV into a relationship.

In addition, South Africa recently prosecuted alleged criminal HIV transmission as attempted murder despite no evidence of intent to harm. (Read the judgement from the High Court of South Africa on alleged HIV exposure being attempted murder here.)

However, there have been some positive legal changes brought about by local advocacy supported by international civil society and UN agencies. Since 2010, at least four countries – Congo, Guinea, Senegal and Togo – have revised their existing HIV-related legislation or adopted new legislation that restrict use of criminal law to cases of intentional transmission.

And more recently advocacy in Malawi and Nigeria has resulted in the removal of overly broad HIV-specific criminal statutes from draft omnibus HIV Bills.

View the poster below or download the A4 double-sided printable version of the poster here.

Advancing HIV Justice: Achievements and challenges in global advocacy against HIV criminalisation – African…

Tanzania: Official urges government leaders to create mandatory HIV testing law

A Ward Executive Officer in Mkanyenge ward, in Kishapu District, Sima Philbert, has urged the government to come up with a law for mandatory HIV testing in order to effectively combat the pandemic.

http://www.dailynews.co.tz/index.php/local-news/25417-call-for-law-for-mandatory-hiv-testing

Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will consider reviewing application of law

Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö previously convicted of exposing four women to HIV on the grounds that since he had a stable undetectable viral load on antiretrovirall treatment with no other STIs he could not cause danger to another person.

He had previously been sentenced to a year in prison and and fined 150,000 kronor (€17,000) by the lower court, but was released last week pending the appeal after the Court consulted experts from the Swedish Institute for Communicable Disease Control (SMI).

A press release from the Swedish Courts notes the following (unofficial translation)

The Court of Appeal, for its assessment of the probability of transmission by sexual intercourse, had access to information other than that which existed at the district court. The Court of Appeal has obtained an expert opinion from the Swedish Institute for Infectious Disease Control (SMI) regarding the risk of transmission of HIV through unprotected sexual intercourse. Furthermore, Professor Jan Albert of the Karolinska Institute, was consulted as an expert.

For expert opinion and data Jan Albert has said it can be clearly concluded that the risk of transmission of HIV in vaginal intercourse without a condom is very low, provided that the HIV-infected party is on stable HIV treatment. For an HIV-positive patient to be considered to be on stable HIV treatment, as is apparent from the opinion, it requires that the patient has a consistently high adherence to their medication, that at least two consecutive viral measurements with 3-6 month intervals show that patient’s virus levels in the blood were below the lowest detectable levels in routine testing, and the patient does not carry any other sexually transmitted infection .

The Court of Appeal noted in its judgment that the investigation did not show anything other than the accused was on stable HIV treatment during the time that the charges related to, and based on what the SMI and Jan Albert have said about risk of infection, assessing the likelihood that sexual intercourse to which the charges relate means that the risk of HIV transmission was so small that no real danger could be presupposed. Since this does not meet the required elements of the crime of creating danger to another, the indictment was dismissed.

Major policy shift

The ruling reflects a major shift in policy announced last week by the National Board of Health and Welfare (Socialstyrelsen).

In a press release entitled, ‘Effective treatment reduces the risk of infection by HIV’, the agency, which is part of the Swedish Ministry of Health and Social Affairs, clarified the treating physician and the individual’s responsibility under the Communicable Diseases Act – which creates a ‘disclosure obligation’ for anyone with an infectious disease.

The criteria to not be legally bound to disclose are very similar to those set out in January 2008 by the Swiss Federal AIDS Commission’s ‘Swiss statement’. They are, as follows:

For treatment of HIV infection to be considered well-functioning, patients must be highly adherent to antiretroviral treatment. Virus levels in the blood should be tested regularly, verified by two measurements between three to six months apart and the result should be virus levels below 50 copies per milliliter.

Follow-up tests should be performed two to four times a year. No other ongoing sexually transmitted disease should be suspected, as this could increase the risk of infection. When these criteria are met, the SMI estimates that infectivity is minimized in a person infected with HIV similar to wearing a condom during sexual intercourse.

HIV infection is one of the dangerous diseases included under the Communicable Diseases Act. The law states that the attending physician has the responsibility to advise people with dangerous diseases of appropriate conduct. It also says that if the person knows, or has reason to suspect, that he or she is carrying a contagious disease that person is obliged to protect others from infection.

The attending physician, when he or she takes a position on the conduct that the individual should have, should consider that a person with HIV infection who is on well functioning treatment is not required to inform their sexual partners about their infection…

People who have HIV infection, however, must act on their own initiative if there is a significant risk, for example if he or she also gets another sexually transmitted infection. This is true no matter what advice the person has previously received by their treating physician. A significant risk includes situations when someone risks coming into contact with his or her body fluids, for example during blood tests, at the dentists, or during sex with a risk of bleeding.

Coaltion of HIV experts

The National Board of Health and Welfare was itself influenced by a coalition of HIV experts. An editorial by Johan Carlson (Director of SMI), Anders Tegnell  (State epidemiologist, SMI), Jan Albert (Professor of Communicable Diseases, Karolinska Institute and Senior Physician at Karolinska University Hospital) and

Anders Sönnerborg (Professor of Clinical Virology,Karolinska Institut and Senior Physician at Karolinska University Hospital) entitled ‘HIV is no longer a life-threatening disease’, also published last week, heralded this new (for Sweden) paradigm.

Today, 21 October, SMI publishes along with Reference Group for Antiviral Therapy (RAV) a report summarising the state of knowledge with regard to the significant reduction in infectivity in treated HIV infection.

SMI and RAV estimates that the infectivity of a patient living with HIV and who have been stabilized on treatment is very low by sexual contact and minimal if a condom is used in vaginal and anal intercourse. This applies provided that there is no other sexually transmitted infections that can affect the risk of HIV transmission. It is therefore important to always use a condom, especially to protect against other sexually transmitted infections, but also to minimize any residual infectious risk for HIV.

This knowledge provides two important conclusions. Firstly, we improve the chances of early diagnosis and initiate treatment as early as possible…

The second conclusion is that current knowledge about HIV will have to influence society’s attitudes to and treatment of people living with HIV. Knowledge about HIV, how the virus is transmitted and what it means to live with HIV, need to be improved in the whole society. Especially within the health care and disease control work, but it is equally important in other areas of society, such as education and social services, the media and the judiciary.

Minister for Social Affairs will consider reviewing application of law

Göran Hägglund, Sweden’s Minister for Social Affairs reacted to the report by telling Sweden’s public broadcaster, SVT, that he will consider reviewing the application of law as it relates to HIV non-disclosure, exposure and transmission.

“If you have an illness that has the potential to infect, it is reasonable to disclose,” he said. “I just think that one would like to know in this situation. But the application of law is another question. Where it is possible to discuss how the law looks and applied, it may be time to consider a change.”

This policy shift is a major victory for the advocates who have been working tirelessly to change Sweden’s draconian attitude towards people living with HIV, notably the partnership of RFSU (the Swedish Association for Sexuality Education), HIV-Sweden and RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) who have been lobbying and campaigning to raise awareness and advocate against Sweden’s over-punitive HIV-related policies.

Hägglund also reacted to a recently-published editorial by Marielle Nakunzi, a lawyer at RFSU, which argued that the justice system has such an outdated view of HIV that it still lives in the 1980s.

“It is a matter of making sure that we always have laws that are in tune with the state of knowledge available,” he told SVT. “Therefore, we should always consider the knowledge we have. It’s about educating the justice system.”