MUMBAI: The debate on making HIV tests mandatory before marriage has been rekindled. The state women and child development department is actively considering the move. Varsha Gaikwad, minister, women and child development, told TOI that her department would be consulting various sections of the society in this regard.
Editorial by Global Commission's Cardoso and UNDP's Helen Clark
Laws should make things better. Sadly, as we stand at the precipice of finally ending Aids, an epidemic of archaic and insensitive laws is stifling our efforts and making things far worse. The Global Commission on “HIV and the Law” came together to address this hidden crisis.
How to Fight HIV Criminalization in Courts of Law and Public Opinion | AIDS Ark
As the XIX International AIDS Conference (AIDS 2012) in Washington, DC, presented hopes of achieving an AIDS-free generation, some advocates focused attention on a major obstacle to this goal: the criminalization of people living with or at high risk for HIV.
Challenges & Changes to Law: Enabling Legal Environments in the HIV Response " NGO Delegation to the UNAIDS PCB
From the Global Commission on HIV and the Law, “Risks, Rights and Health” (note: this infographic does not include criminalization of non-disclosure). Click to enlarge.
"Should HIV Be Jailed? HIV Criminal Exposure Statutes and Their Effects" by Arianne Stein
Publication Title Washington University Global Studies Law Review Recommended Citation Arianne Stein, Should HIV Be Jailed? HIV Criminal Exposure Statutes and Their Effects in the United States and South Africa, 3 Wash. U. Glob. Stud. L. Rev. 177 (2004), http://digitalcommons.law.wustl.edu/globalstudies/vol3/iss1/7
HIV Organisations Welcome New Legal Defence For Non-Disclosure Of HIV | ACON | Building Our Community's Health & Wellbeing
People with HIV in NSW who don’t disclose their HIV status to sexual partners are now able to defend themselves against penalties for breaches of public health law if they can demonstrate they took ‘reasonable precautions’ to prevent passing on the virus.
Journalist Rod McCullom interviews Rep Barbara Lee about the REPEAL HIV Discrimination Act
Pop quiz: Which nation leads the world in the prosecutions of HIV exposure and/or transmission? Perennial human rights violators such as Russia, China, or dictatorships in the Middle East or Africa? Not even close. The surprising answer: The United States. In more than 60 nations it is a crime to expose another person to or transmit HIV.
Singapore: Court of Appeal rules that sodomy law may be unconstitutional
Singapore’s #1 Socio-Political Site
Denmark: Man convicted in 2007 under now suspended law acquitted; further cases to be reviewed
A court in Denmark has acquitted a person living with HIV who had previously been found guilty under the country’s now-suspended HIV-specific criminal statute. The man’s sentence was reduced to six months, due to his conviction for other, drug-related, offences.
In its brief ruling, published below, the Eastern High Court reasoned that since there is now evidence that HIV is not a “life-threatening condition” he could no longer be guilty of exposing another to a “life-threatening illness”.
The Danish Justice Minister suspended the law in February 2011 noting that HIV can no longer be considered life threatening because, for people living with HIV in Denmark who are on treatment, HIV has become a manageable, chronic health condition.
According to sources in Denmark, it is believed that the courts are in the process of reviewing all HIV-related criminal cases from 2007 – this is the year that National Board of Health informed the Ministry of Justice that HIV was no longer a life threating illness (as defined in the law), even though it took the Ministry another four years to suspend the law.
This would make Denmark the first country in the world to fulfill the fifth recommendation relating to HIV criminalisation of the Global Commission on HIV and the Law.
2.5. The convictions of those who have been successfully prosecuted for HIV exposure, non-disclosure and transmission must be reviewed. Such convictions must be set aside or the accused immediately released from prison with pardons or similar actions to ensure that these charges do not remain on criminal or sex offender records.
Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012
Eastern High Court Prosecutor v. Jackie Madsen, 7 August 2012 (unofficial translation).
Denmark: Eastern High Court Prosecutor v. Jackie Madsen,7 August 2012
Transcript the Eastern High Court book of judgments
Verdict
Delivered on August 7th 2012 by the Eastern High Court’s 13th department
(country judges (names) with lay assessors)
…
Prosecutor v. Jackie Madsen
…
(Lawyer (Name)… )
Frederiksberg Legal verdict December 20th 2007 (…) is being appealed by the prosecution based on claim of acquittal of violation of Penal Code § 252 paragraph 2 (issue 2) and appeasement
Defendant has alleged alleviating circumstances.
High Court’s reasoning and result
Since HIV could not, at the time of the crime is crime, be considered a life-threatening illness according to the Penal Code § 252, paragraph 2, the defendant is acquitted for issue 1 in accordance with the prosecution’s claim on this matter.
As a result of this, the sentence is reduced to 6 months of imprisonment. In the decision of the sentence, the court has taken into account (put weight on) the amount of heroin and that the accused himself was a drug addict.
Moreover, the verdict is confirmed.
It is thus decided:
The District Court’s judgment in the case against Jackie Madsen is altered so that he is punished by imprisonment for 6 months.
The Treasury must pay the costs of the High Court.
(Sign.)
The accuracy of the transcript is confirmed. Eastern High Court…
US: Illinois modernises its HIV-specific criminal law
By Ramon Gardenhire (from AIDS Foundation of Chicago)
In my role as director of government relations for the AIDS Foundation of Chicago (AFC), I have to come to terms with the reality that the legislative process often means having to make ugly compromises.
This sentiment hit home this past legislative session, when the Illinois General Assembly passed a bill that would amend the state’s law that makes exposing someone to HIV a crime.
The Illinois criminal transmission of HIV law, on the books since 1989, has no basis in science, discriminates against people with HIV, and stigmatizes HIV.
AFC strongly opposes the law and fights for its repeal. However, when it became abundantly clear that SB 3673 was going to pass with overwhelming support, we made a strategic decision to work the bill’s sponsor to minimize the legislation’s harm as much as possible.
We decided to make a bad law better.
SB 3673, introduced by Sen. Dale Righter (R – Mattoon) and sponsored in the House by Rep. Jim Sacia (R – Freeport) unanimously passed both chambers in the Illinois General Assembly. It amends the current HIV criminal transmission law to allow prosecutors to access medical records to learn if someone knew their HIV status, a fact that has to be established before an individual can be prosecuted.
This bill was a response to a tragic case in Whiteside County, Ill., in 2009, involving a man who allegedly knowingly exposed several women to HIV. The state’s strong HIV confidentiality law prevented police from accessing the suspect’s medical records to determine if he knew he had HIV. After charging him with 13 counts of criminally transmitting HIV to another person, the man was only sentenced with one count. There was no way to prove that he had knowingly exposed his partners to HIV.
We fear that the amendment to the law would deter individuals from testing for HIV because they could be prosecuted for criminal HIV transmission if they learn their status. Earlier versions of the bill would have allowed access to social service agency and counseling records; AFC and allies were able to remove this provision, which would have had a chilling impact on testing and risk-reduction counseling.
AFC and our partners, ACLU of Illinois and AIDS Legal Council of Chicago, were able to negotiate significant changes to the underlying law in return for not working against the provision that allowed access to medical records. The changes we made are below. This bill:
1. Requires that prosecutors prove that an individual specifically intended to transmit HIV to another individual – This is an increased legal standard that prosecutors must meet and consider before bringing criminal charges.
2. Limits acts of transmission to only “sexual activity without the use of a condom” – Prosecutors cannot charge individuals for activities that will not transmit HIV, such as biting or spitting.
3. Defines the term “sexual activity” to include only sexual acts that include insertive vaginal or anal intercourse – This means no more criminal transmission cases for oral sex or kissing.
4. Exemption from prosecution if a condom is wore during sexual activity – No more criminal charges if a person uses a condom.
Although the amended law significantly narrows the situations that could result in prosecution for criminal transmission, these cases are likely to always involve “he said he said” or “she said” cases that happen between the sheets with no witnesses.
It will be one person’s word against the other to determine if the couple used a condom and which sex acts they engaged in. Cases will hinge on whether the infected partner disclosed his or her HIV status before having sex. Too often, former partners press charges for criminal transmission as retaliation when a relationship has soured.
The bill does include an important protection against prosecutorial abuse. Judges must approve all requests for medical records, and the judge reviews records and determines if they are before they are turned over to prosecutors. However, AFC and other advocates will remain vigilant to ensure that abuses do not occur.
The bill has been sent to Gov. Pat Quinn who will likely sign the bill into law. According to the Center for HIV Law and Policy, 32 states and two U.S. territories have HIV criminal transmission laws. The bill strikes an apprehensive compromise between HIV advocates and law enforcement. While the bill is an improvement, it still contains problematic sections. AFC will continue to monitor the law once it is enacted, and look for opportunities to repeal it altogether.