US: REPEAL ACT to modernise HIV criminalisation laws reintroduced with bipartisan support

Yesterday, California Congresswoman Barbara Lee (Democrat) was joined by Florida Congresswoman Ileana Ros-Lehtinen (Republican) to introduce a new version of the ‘Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act’ (the ‘REPEAL HIV Discrimination Act’, or the ‘REPEAL Act’) first introduced by Congresswoman Lee in September 2011.

The REPEAL Act was the first to take on the issue of HIV criminalisation in the United States. The first time around it achieved 41 co-sponsors, all of whom were Democrats.

It is notable this this time, the REPEAL Act (known formally as H.R. 1843) has intially been co-sponsored by a Republican, suggesting the Act may go further this time and make it out of committee and on to the floor for consideration.

A press release issued yesterday by Congresswoman Lee’s office summarises the proposed legislation (which can be read in full and downloaded below):

“These laws are based on bias, not science. We need to make sure that our federal and state laws don’t discriminate against people who are living with HIV. These laws breed fear, discrimination, distrust, and hatred, and we’ve got to modernize them. That’s exactly what this legislation would do,” said Congresswoman Barbara Lee.

Today, 32 states and 2 U.S. territories have criminal statutes based on outdated information regarding HIV/AIDS. This bipartisan legislation would allow federal and state officials and community stakeholders to work together to review the efficacy of laws that target people living with HIV/AIDS. The REPEAL HIV Discrimination Act would authorize the Attorney General, the Secretary of Health and Human Services, and the Secretary of Defense to monitor new and existing laws imposing criminal liability against people with HIV/AIDS and to establish a set of best practices for legislatures to consider when proposing such legislation.

Congresswoman Ros-Lehtinen added, “I’m pleased to co-sponsor this bipartisan bill that will help end the serious problem of discrimination in criminal and civil cases against those who are HIV positive. Singling out and discriminating against those living with HIV is not in line with our American values and we must do better. The legislation seeks to modernize our current outdated laws and bring them into the 21st century. I urge my Republican and Democrat colleagues to join Barbara and me in helping those persons living with HIV live as healthy and normal a life as possible.”

If passed, the act will be a key step towards ending unfair and unjust HIV criminalization laws in the United States by developing a set of best practices for the treatment of HIV in criminal and civil commitment cases, issuing guidance to states based on those best practices, and monitoring how states change policies consistent with that guidance.

REPEAL HIV Discrimination Act of 2013

Lambda Legal Urges Congress to Pass the REPEAL HIV Discrimination Act

Lambda Legal is voicing its support the REPEAL HIV Discrimination Act, which would encourage states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission. Scott Schoettes, Lambda Legal’s HIV Project Director, says: “The more messages we can send to states to modernize or eliminate HIV criminalization laws the better—and that is exactly what this bill does. It is high time the nation’s HIV criminalization laws reflect the current reality of living with HIV, both from medical and social perspectives. Except for perhaps the most extreme cases, the criminal law is far too blunt an instrument to address the subtle dynamics of HIV disclosure.”

Bahrain: Proposed law would require people with HIV to obtain judges' permission to marry

Bahrain citizens suffering from a hereditary or incurable disease – such as sickle cell anaemia, HIV, and hepatitis – will need to get permission from the courts to get married under a new draft bill currently being considered by the government, it has been reported. Under the current law, in place since 2004, it is compulsory for all engaged couples to get a certificate from the Health Ministry that states they have undergone premarital check-ups, where they are tested for hereditary diseases such as sickle cell anaemia and thalassaemia, and incurable diseases like HIV, and hepatitis.

While the outcome of the check-ups does not currently restrict them from going ahead with the marriage, a new bill could mean those who test positive for any of the hereditary or incurable diseases will need to get permission from the courts to pursue the marriage, according to a report by Gulf Daily News. A draft of the law is now before the National Assembly for revision. However, the Supreme Council for Islamic Affairs has already objected to the move and said it was against Sharia Law and basic human rights to stop anyone marrying someone they want to on the grounds of their health conditions. A doctor who is behind the proposal reportedly said “it was essential for judges to take the decision in such cases to prevent emotions from getting in the way.”

Nigeria: Yobe state assembly plans mandatory couples HIV testing before marriage

The Speaker of the Yobe House of Assembly, Alhaji Adamu Dala Dogo, has disclosed that the House would soon pass a law which would make it mandatory for all intending couples to undergo HIV/AIDS test before their marriages in any church or mosque in the state. He said this was to help prevent the spread of the scourge in the state, as it was on the increase.

The law, according to the speaker, is expected to be passed before the end of the year and would be useful in the efforts to ensure that the scourge of AIDS in the state is “remarkable curtailed.” “The spread of this deadly virus can only be effectively prevented from spreading among the people through ‘genuine tests’ on HIV/AIDS, particularly on all intending couples that want to get married.”

Keeping Confidence: HIV and the criminal law from service provider perspectives (HJN, 2013) (3 of 4)

The Keeping Confidence one day conference was a free event to discuss findings from a report that we produced in conjunction with Birkbeck College. For more detailed information on the project please follow this link to the project description page: sigmaresearch.org.uk/projects/policy/project55/

Overview of updated 2013 BHIVA/BASHH position paper, ‘HIV transmission, the law and the work of the clinical team’

Dr Mary Poulton, Consultant and Clinical Head, Sexual Health and HIV, Kings College Hospital

Video produced by georgetownmedia.de

Haiti: Alleged sex workers 'rounded up' by justice officials working for the Ministry of Social Affairs and tested for HIV

JACMEL, Haiti (defend.ht) – Authorities in Jacmel rounded up young girls spending time in the cafés of the city in order to test them for AIDS and according to the Commissioner of Jacmel, Antoine Jean Frero, in the first week, 9 young women regularly found at two of the city’s cafés tested positive for HIV. The idea was to encourage young girls with precarious lifestyles in Jacmel to get tested. The effort was being carried out by justice officials and the Ministry of Social Affairs. Commissioner Frero said in the first café authorities had nabbed 3 women who tested positive for AIDS and on the first cafe and 6 were found to have AIDS covered.

Grenada: Health Minister proposes new HIV-specific criminal law

People who intentionally transmit HIV/AIDS to unsuspecting partners may soon find themselves on the wrong side of the law in Grenada, according to Health Minister, Dr. Clarice Modeste-Curwen.  “There are those who are saying when they discover their positive status, I ain’t going down so alone”, she told Parliament. However, Modeste-Curwen is warning that in due course, legislation would be tabled in Parliament to force culprits to take legal responsibility for their actions. She said it is a matter of concern when one hears on the street that an infected person was planning to infect unsuspecting persons because they would have discovered that they are themselves infected by the disease.

Grenada: Health Minister claims HIV-specific criminal law needed to prevent 'deliberate' transmission

ST GEORGE’S, Grenada, Thursday April 18, 2013 – Health Minister Dr, Clarice Modeste is concerned about people who are wilfully transmitting the HIV virus to others and believes that legislation should be enacted to deal with them once there is evidence that a person is being exposed to the virus as a means of revenge.

Switzerland: Swiss Federal Supreme Court rules that criminal HIV exposure or transmission is no longer necessarily a serious assault

The Swiss Federal Supreme Court has ruled that HIV infection may no longer be automatically considered a serious assault, due to improved outcomes in life-expectancy on antiretroviral therapy.

A news article on the ruling, featuring Groupe sida Genève‘s spokesperson, Deborah Glejser, appeared (in French) in yesterday’s Le Temps.

Case 6B_337/2012 was heard on 19th March 2013 and published on Wednesday.  This note, written by Sascha Moore of Groupe sida Genève, explains the ruling in detail.

In a recent ruling, the Swiss Federal Supreme Court revisited its long standing jurisprudence on the severity of an HIV infection. Since 1999 (BGE 116 IV 125), any transmission or attempted transmission of HIV has been deemed to inflict or attempt to inflict severe harm and qualifies thus as an offence under article 122 of the Swiss Criminal Code relating to serious assault.

The appellant had appealed his conviction by the Superior Court of the Canton of Zurich under both article 122 and article 231 of the criminal code pertaining to transmission of human diseases for transmitting HIV to a sexual partner. The Superior court had imposed a 30 month partially suspended custodial sentence.

In the third part of his appeal, the appellant objected to the qualification of transmission of HIV as a serious injury on the grounds that, although still an incurable chronic medical condition, HIV infection is well managed thanks to current medical treatment. Life expectancy of individuals living with HIV is now nearly equal to those of persons not infected and as a result of this progress transmission should only qualify as common assault under article 123 of the criminal code.

The Federal Court agreed with the appellant to the extent that recent scientific progress and current treatment options lead to the conclusion that HIV infection does not necessarily constitute a serious threat to life. The Court nevertheless held that HIV infection still causes complex and life-long physiological and psychological changes which in some cases may lead to serious or even life threatening harm.

The ruling in effect overruled the Federal Court’s own jurisprudence that held that HIV infection is a serious injury that qualifies as serious assault and allows a finding of serious assault only if the facts of the case warrant. It thus imposes a duty on lower courts to determine in every case brought before them whether the transmission or attempted transmission qualifies as common assault under article 123 or rather as serious assault under article 122 of the criminal code.

Serious assault is punishable with a custodial sentence not exceeding 10 years, whereas the maximum sentence for common assault is 3 years. The courts reversal will certainly limit some sentences to the maximum of 3 years for common assault whereas the average sentence for HIV transmission or attempted transmission had previously varied from 2 to 4 years in cases where 122 and 231 were applied concurrently.

As opposed to serious assault which is prosecuted ex officio (without complaint), common assault is prosecuted ex officio only for those exceptions provided in paragraph 2 of article 123 that cover use of poison or weapons, assault on persons in the care of the accused or unable to defend themselves and finally assault on spouses, registered partners or cohabitating partners.

The Federal Court rejected the appellant’s other contentions that the lower court had arbitrarily rejected the appellant’s defence invoking the victim’s consent to unprotected sexual relations as well as that the Court had erred in determining that the appellant was indeed the person who infected the victim. The Court did not follow the appellant’s argument there was sufficient doubt as to the victim’s testimony to benefit the accused.

The case is remanded to the Superior Court for a fresh determination whether the conduct in question may be qualified as common or serious assault.

 

Kan. health agency pledges to protect AIDS/HIV patients from quarantines, clearing bill's path

TOPEKA, Kansas – A promise from Kansas’ health department Thursday to continue protecting AIDS and HIV patients from being quarantined has resolved a dispute over a legislative proposal for helping medical personnel and emergency workers who may have been exposed to infectious diseases.