Uganda: Constitutional court dismisses argument that STI law contravenes provisions of the Constitution

Court dismisses petition challenging venereal disease law

The Constitutional Court has dismissed a petition in which health rights activists were challenging the legality of the Venereal Diseases Act, reasoning that the law has since been repealed. The Venereal Diseases Act was enacted in 1977 and provided for the examination and treatment of persons infected with venereal diseases and for other matters connected therewith or incidental thereto.

Venereal diseases are those typically contracted by sexual intercourse with a person already infected, such as chlamydia, genital herpes, gonorrhea, HIV, HPV, and syphilis, among others. In a unanimous judgment, a five-member panel of justices held that it is futile to engage in a discourse regarding the constitutionality of the provisions of the Venereal Diseases Act after the repeal of the Act hence there is no live controversy before the court.

“In essence, while at the time the petition was filed it raised a question for the interpretation of the Constitution, by the time we heard the matter and delivered the judgment, the Act had been repealed. This means that the matters in controversy are moot,” held the judges who included Fredrick Egonda -Ntende, Catherine Bamugemereire, Irene Mulyagonja, Monica Mugenyi, and Christopher Gashirabake.

The court explained that having had a careful look at the Public Health Act of Uganda, it was found that at the time the petition was filed, the Venereal Disease Act was still good law but on March 24, 2023, the amendment to the Public Health Act 2O23 came into force and the disputed law was repealed.

Health rights body, Center for Health, Human Rights and Development (CEHURD) had sued the Attorney General (AG) challenging the provisions of the Venereal Disease Act Cap 284 for contravening provisions of the 1995 Constitution.

Through its lawyers, CEHURD had argued that the Uganda Law Reform Commission was duty-bound and therefore, ought to have studied, reviewed, and made recommendations for the systematic improvement, modernization, and reform of the Venereal Diseases Act as mandated under section 10 of the Uganda Law Reform Commission Act Cap 26.

It was further argued that as a result of the actions and, or inaction on the part of the ULRC, the law was inconsistent with and in contravention of Article 248 of the Constitution.

The petitioner had argued that Section 2 of the Venereal Diseases Act is inconsistent with and in contravention of Articles 8A (1), 21(1) (a), 45 and Objectives XIV (b) and XX of the National Objectives and Directive Principles of State Policy of the Constitution.

They had also alleged that sections 3(1), (2), (3) and (4) of the Venereal Diseases Act are inconsistent with and in contravention of Articles 8A (1), 21(2), 24, 27(1), 27(2), 28(1), 42, 43(a), 44(c), 45 and objectives XIV (b) and XX of the National Objectives and Directive Principles of State Policy of the Constitution.

Court documents show that section 5 of the Act is inconsistent with and in contravention of Articles 8A(1), 21(2), 23(1), (2), 24, 27(2), 43(2)(C), 44(a), 45 and Objectives XIV (b) and XX of the National Objectives and Directive Principles of State Policy of the Constitution.
But the AG had argued that section 2 of the Venereal Diseases Act which provides for the examination of persons infected or suspected to be infected with venereal diseases is consistent with Article 8A of the Constitution which provides that Uganda shall be governed based on principles of national interest and common good enshrined in the National Objectives and Directive Principles of State Policy.

US: Republican lawmaker introduces two bills in Ohio to change HIV Criminalisation laws

Advocates for Ohioans living with HIV find hope in two bills from a Republican sponsor

The Statehouse News Bureau | By Karen Kasler

A Republican state lawmaker has introduced a pair of bills to change the laws related to HIV and AIDS. They would repeal existing state laws that criminalize not disclosing one’s HIV status, including the law that makes it a crime for a person with HIV to donate blood.

Advocates say Ohio has HIV status disclosure and exposure laws that don’t relate to how the virus is transmitted, so they unfairly target HIV-positive people but don’t increase testing or safe sex. An HIV-positive person who doesn’t disclose their status before sexual conduct can face a felonious assault charge, a second-degree felony. State law also says an HIV-positive person who exposes a corrections or law enforcement officer to bodily fluids such as spit can be charged with a third-degree felony, though saliva is not a known transmitter of the virus.

House Bill 513 would repeal criminal statutes related to disclosure of HIV status. House Bill 498 would decriminalize donating blood by people with HIV, though they would still be ineligible to do so. (Donated blood is always screened for HIV, hepatitis B and hepatitis C, along with other viruses and bacteria.)

Some treatments are making HIV undetectable and untransmittable. But people living with HIV say existing laws make them feel compelled to preemptively disclose their status.

“When you tell someone you have just tested positive for HIV and the conversation ends there and that person begins planning a funeral because of beliefs that have been passed on from the ’80s,” said Francesca Schumann of Columbus, who has been living with HIV for 25 years. “We need to show you can have a productive life with without interfering…because these laws prevent people from having healthy, quality, stable, loving relationships.”

Randle Moore of Dayton is a member of the Ohio Health Modernization Movement, which is advocating to change HIV-related laws.

“As a person living with HIV for the past 17 years, I have experienced many different stigmas as it relates to the Ohio law and the current laws that are in place, which has helped aid in my sometimes not wanting to share my status with individuals for fear of the repercussions that currently are on the books,” said Moore.

Rep. Sara Carruthers (R-Hamilton), who leaves office in December after losing her primary, is the sole sponsor of both bills. Thirteen states have changed their HIV laws, including Michigan, Iowa, Georgia and Virginia.

China: People living with HIV in Chongqing to be held criminally liable in cases of alleged HIV transmission

Southwest China’s Chongqing steps up efforts to crackdown on intentional spreading of HIV/AIDS

Southwest China’s Chongqing Municipality will accelerate the revision of the city’s regulations on the prevention and control of sexually transmitted diseases and HIV/AIDS in addressing incidents of intentional spreading of the disease occurring from times in recent years, which has made the situation of the disease prevention and control grim.

Chongqing Municipal Health Commission recently replied to a proposal put forward by a local people’s congress deputy on the prevention and control of intentional spreading of HIV/AIDS.

According to the commission, the revised regulations put forward new requirements for HIV/AIDS prevention and control.

Statistics from the Chinese Center for Disease Control and Prevention show that China has 1.22 million people living with HIV/AIDS as of the end of 2022, reporting 418,000 deaths linked to the disease, with infection and mortality rates both at relatively low levels on the globe.

In China, AIDS transmission through blood transfusions has been basically blocked, and transmission through intravenous drug use and mother-to-child transmission have been effectively curbed, according to the National Health Commission (NHC).

The NHC has made arrangements for combating transmission through sexual contact, the main mode of transmission currently in China, vowing to step up cracking down on violations and crimes related to HIV/AIDS transmission, among other prevention and treatment measures.

Meanwhile, sporadic cases of intentional spreading of HIV/AIDS have been reported from across the country from time to time in recent years. In 2022, a court in Changsha, Central China’s Hunan Province announced a ruling on a case in which a woman surnamed Yin engaged in prostitution without taking any protective measures for all that she had known herself infected with HIV/AIDS. Her behavior was identified as spreading sexually transmitted diseases, and she was sentenced to one year and four months in prison and was fined 5,000 yuan ($690).

The Chongqing Municipal Government convened in December 2023 a meeting with multiple departments, proposing to expedite the revision of the “Chongqing Municipality Regulations on the Prevention and Control of Sexually Transmitted Diseases and HIV/AIDS.”

The local legislature has listed the revision of the regulation in its health legislation plan during the 14th Five-Year Plan (2021-25).

The municipal health commission has conducted in-depth analyses of the HIV/AIDS prevention and control in Chongqing through questionnaire surveys and expert discussions. They formulated targeted recommendations from five aspects ranging from legislative framework, government department responsibilities, publicity and education, patient rights and obligations to the prevention and control system, compiling the background materials for the revision of the regulation.

Besides, the commission studied and drew lessons from the local regulations on HIV/AIDS prevention and control issued by other provinces including Yunnan, Sichuan, Jiangsu and Zhejiang. They also combined the exchanges between Sichuan and Chongqing on HIV/AIDS prevention and control work, and reviewed cases of combating intentional transmission of HIV/AIDS by infected individuals in cities such as Chengdu and Guang’an in Sichuan.

Next step, the municipal health commission will collaborate with relevant departments to conduct research and strengthen the demonstration during the legislation, expecting to enhance the standardization and legal management level of HIV/AIDS prevention and control.

The commission revealed that since efforts of HIV/AIDS testing for individuals involved in prostitution and drug-related activities vary across districts and counties, they will collaborate with the public security departments, strengthen HIV/AIDS testing for such personnel, and crack down on those suspected of intentionally spreading HIV/AIDS in accordance with the laws.

A campaign on prevention and control of HIV/AIDS launched in Chongqing between 2023 and 2025 has made it clear that the public security, judicial, and health departments should strengthen cooperation in the HIV/AIDS testing on all the individuals involved in prostitution and drug-related activities captured by the public security department at designated medical institutions. In 2023, a total of 4,341 suspects were tested, an increase of 37.2 percent on that of the 2022.

Chongqing has strengthened the HIV/AIDS testing at local medical institutions, with 12.75 million people tested in 2023 in accordance with provider-initiated HIV testing and counseling, a year-on-year increase of 93.6 percent from that of 2022. The city’s HIV/AIDS testing coverage rate for the entire local population was 39.7 percent, far exceeding its annual target.

Taking initiative to provide HIV/AIDS testing services by medical institutions at all levels is the main channel for identifying HIV/AIDS-infected individuals in the city, according to the municipal health commission.

In Chongqing, patients of or individuals infected with sexually transmitted diseases and HIV/AIDS patients who engage in prostitution, solicitation of prostitutes, or drug taking activities, leading to the spreading of sexually transmitted diseases or HIV/AIDS, shall be investigated and dealt with by public security organs in accordance with the law. They will be held accountable for criminal responsibility if their behaviors constitute crimes.

US: Oklahoma looking at additional criminalisation of sexually transmitted infections

Oklahoma lawmakers want to criminalize spread of genital herpes, chlamydia, HPV and other STDs

Critics say bill will deter people from getting the necessary testing and treatment, which will increase the spread of sexually transmitted infections.

Oklahoma lawmakers are seeking to criminalize the spread of several more sexually transmitted diseases, a move critics say could turn nearly every resident into a felon.

House Bill 3098 adds chlamydia, Hepatitis B, genital herpes, trichomoniasis, and human papillomavirus (HPV) infections to the list of sexually transmitted diseases (STDs) that are illegal to knowingly or recklessly spread.

Anyone who does so would be guilty of a felony and could face between two and five years in prison. Previously only smallpox, syphilis and gonorrhea were on the list.

Rep. Toni Hasenbeck, R-Elgin, the bill’s House author, said she’s been studying domestic abuse. She said she heard from women who said men had knowingly infected them with several of the diseases.

Some of the STDs cause infertility, liver damage and miscarriage, Hasenbeck said.

“This particular piece of legislation is about putting a man in jail who chooses to knowingly and willfully infect a woman with a sexually transmitted disease,” Hasenbeck said.

She said the measure is not designed to impede any health or outreach efforts designed to stem the spread of STIs. Health experts said Oklahoma ranks No. 11 for rates of chlamydia and in the top five for gonorrhea and syphilis transmission.

“I’m not judge, jury and executioner,” Hasenbeck said recently as Democratic lawmakers peppered her with questions about the proposed criminalization expansion. “I’m a lawmaker, and we had a hole in our statute that I am trying to repair to protect Oklahomans.”

She said her measure could encourage people to get testing and treatment, or to practice abstinence if they’re “that worried about going to jail.”

But Jeff Burdge fears the bill would do the opposite.

The bill will deter people from getting the necessary testing and treatment, which is going to increase the spread of sexually transmitted infections (STIs) because of fears that positive tests could open someone up to prosecution, said Burdge, a spokesman for H.O.P.E. Testing, a Tulsa-based nonprofit that provides education and low-cost testing for infectious sexual diseases.

He said 87% of Oklahomans will contract HPV in their lifetime, he said. No test exists to diagnose it in men, he said.

“That’s a bill that would potentially turn nearly every Oklahoman into a felon,” he said.

He said the bill doesn’t define “reckless,” opening the door to unnecessary prosecutions.

“Many Oklahomans aren’t even aware of what STIs are or how to best prevent them and what resources are available out there,” he said. “It’s not a good bill. Not well written. It’s not going to be good for the state.”

But he said the measure is part of a broader national trend attacking sexual health.

The Centers for Disease Control and Prevention reported that 34 states had criminalized HIV or STD exposure in 2023. Laws targeting HIV transmission are often outdated and increase stigma and may discourage testing, the agency reported.

Rep. Mauree Turner, D-Oklahoma City, questioned why lawmakers are looking at additional criminalization instead of increasing access to health care or funding science-based research.

“You think the solution to that is criminalization, is putting people in prison, not making sure that we destigmatize health care so folks get access to it,” Turner said.

The measure cleared the House and is awaiting a vote by the full Senate.

Criminalizing people did not work to stop HIV transmission, and it will not decrease STIs.

Opinion piece from Taryn Norman and Nathan Cisneros – The Oklahoman – 21 April 2024

In 2022, over 30,000 Oklahomans — young and old, in cities and rural communities — received a sexually transmitted infection (STI) diagnosis. Most STIs are common and easily treatable. Yet, Oklahoma is just one vote away from criminalizing the transmission of the most common STIs, including chlamydia, human papillomavirus (HPV) and herpes. People found guilty face two to five years in prison.

Criminalizing people did not work to stop HIV transmission, and it will not work if we expand it to STIs. As experts in public health and HIV, we call on Oklahoma lawmakers to learn from the data and the history of criminalizing STIs. House Bill 3098 will likely increase transmissions and decrease testing — exactly the opposite of the bill’s intent.

Every year, Health Outreach Prevention Education (HOPE) in Tulsa provides critical sexually transmitted infections testing and treatment for thousands of Oklahomans. The need is great because STIs are very common. For example, an estimated 85% of people will contract HPV in their lifetime. But we do not have a reliable test for HPV in cisgender men, which means the new law could only criminalize women — the group at highest risk for HPV-related cancers. (Fortunately, we have a vaccine for all youth that can provide good protection against the most common forms of HPV.)

We know where the criminalization of STIs leads. HIV criminal laws have increased fear and stigma and can decrease testing and treatment. This fear is often summarized as “Take the test, risk arrest.” But it gets worse. A felony conviction means a person can be barred from holding public office. They can be denied jobs or housing and lose access to social services. And Black people are disproportionately likely to be criminalized because of their HIV status.

Learning from past legislation

Oklahoma’s HIV criminal law has not prevented one of the highest rates of new rural HIV diagnoses in the country. Rates of late testing for HIV in Oklahomans are also high. Fortunately, today, HIV is now a manageable, treatable chronic disease, but only if people can access testing and treatment.

For these reasons, the Centers for Disease Control and Prevention, American Medical Association, National Alliance of State and Territorial AIDS Directors (NASTAD), National Association of County & City Health Officials (NACCHO), U.S. Conference of Mayors, the U.S. Department of Justice, and many other organizations have all called for states to repeal or reform their HIV-related criminal laws.

Criminalizing STIs is also expensive. Oklahoma already has one of the nation’s highest incarceration rates, and the state spends $28,500 annually for every person incarcerated. Compare that to the cost of under $200 to treat many of the STIs HB 3098 seeks to criminalize. Those resources would be better spent on health care, including STI prevention, testing and treatment.

The Legislature’s goal should be creating healthier communities by removing barriers to prevention, testing and treatment for Oklahomans. Health care, not punishment, is the answer to treating and reducing the spread of STIs. Smart policies and investments in community health can help ensure we all have the health care we need, no matter who we are or where we live.

Taryn Norman is the executive director of Health Outreach Prevention Education Inc. (HOPE) in Tulsa. Nathan Cisneros is the HIV criminalization project director at the Williams Institute at UCLA School of Law.

Zimbabwe: Bill includes HIV in expanded list of STIs with criminal penalties for “deliberate” transmission

Government criminalises deliberate HIV, STIs transmission

THE Government has listed HIV/AIDS as one of the sexually-transmitted infections (STIs), whose deliberate transmission to another partner will now be punishable under law.

The Criminal Laws Amendment (Protection of Children and Young Persons) currently before Parliament has a clause that includes HIV/AIDS as one of the STIs, whose wilful transmission can be charged as a criminal offence.

Other STIs that are punishable include syphilis, gonorrhoea and herpes, among others.

Another objective of the Criminal Laws (Protection of Children and Young Persons) Amendment Bill is to raise the age of sexual consent from 16 to 18.

Clause Eight of the Bill stipulates that a law that decriminalises deliberate HIV/AIDS transmission still stood after the Marriages Act repealed Section 79 of the Criminal Law (Codification and Reform) Act that sought to impose heavy and long-term jail sentence on those convicted of wilful transmission of HIV/AIDS.

“Deliberately infecting persons with sexually-transmitted diseases was originally dealt with in two sections of the Criminal Law Code. Section 78 makes it a crime for anyone to deliberately infect another person with a sexually-transmitted disease other than HIV; section 79 made the same provision for those who infected others with HIV, but provided for a much heavier sentence to be imposed. Section 79 was repealed by the Marriages Act in 2022, which means that it is no longer a crime to infect other persons with HIV (because section 78 specifically excludes HIV),” reads Clause Eight of the Bill.

“This section will amend section 78 of the Code to include HIV among the sexually transmitted diseases covered by the section.”

In 2022, the Government decriminalised wilful transmission of HIV to a partner through the Marriages Act when it repealed a legal provision that made it an offence, as the Second Republic sought to move with international trends.

The repealed section provided for 20 years in prison for anyone convicted of deliberate transmission of HIV/AIDS, whilst Section 78 of the Criminal Code, which now includes HIV/AIDS as an STI, provides for a fine equal to Level 14 or five years in prison or both.

Section 78 of the Criminal Code (Codification and Reform Act reads as follows: “(2) Any person who (a) knowing that he or she is suffering from a sexually-transmitted disease; or (b) realising that there is a real risk or possibility that he or she is suffering from a sexually-transmitted disease; intentionally infects any other person with the disease, or does anything or causes or permits anything to be done with the intention or realising that there is a real risk or possibility of infecting any other person with the disease, shall be guilty of deliberately infecting that other person with a sexually-transmitted disease and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding five years or both.”

Recently, President Mnangagwa invoked his powers under the Presidential Powers (Temporary Measures) Act to gazette Statutory Instrument 2 of 2024, in compliance with a Constitutional Court ruling that had declared a section of the law that sets sexual consent age at 16 as unconstitutional.

The Statutory Instrument invoked by the President raised the age of consent to sexual relations to 18, consistent with the Constitution which sets the minimum marriage age at 18 and defines all young people as below the age of 18, while the original law defined them as below the age of 16, so protection was withdrawn from 17 and 18-year-olds.

The Presidential Powers have a lifespan of just six months during which Parliament has to pass a substantive law if the desire is to make the measure permanent.

Brazil: Proposed bill seeks to increase penalties in cases of HIV transmission

Congressman from Mato Grosso do Sul wants to increase the penalty for those who intentionally transmit HIV

Translated via – Scroll down for article in Portuguese

The Bill seeks to increase the penalty by up to two-thirds in cases involving marital relations
A bill presented by Mato Grosso do Sul Congressman Geraldo Resende (PSDB) is currently before the Chamber of Deputies in Brasilia, increasing the prison sentence for people who intentionally transmit HIV in marital relations.
The congressman’s proposal increases the penalty from one to two thirds if the exposure to contamination is carried out by the victim’s spouse or partner. Resende points out in the proposal that the intentional transmission of AIDS, as a result of the current stage of development of science, should be legally classified as the transmission of an incurable disease and the conduct should be classified as bodily injury of a serious nature with a penalty of two to eight years.
“We believe that free and knowing transmission by a spouse or partner, through unprotected sex, by someone who is aware of their infection with the disease and the notorious risk of transmitting it to their partner, should be punished more rigorously,” he said.
Bill 652/2024 is still being analysed by the Chamber of Deputies.

Deputado de Mato Grosso do Sul, quer aumentar pena para quem transmite HIV intencionalmente

Projeto de lei quer aumentar a pena em até dois terços em casos ocorridos em relações conjugais
Tramita na Câmara dos Deputados, em Brasília, um projeto de lei apresentado pelo deputado por MS, Geraldo Resende (PSDB), que aumenta a pena de prisão para pessoas que transmitam intencionalmente o HIV (sigla em inglês para Vírus da Imunodeficiência Humana) em relações conjugais.
A proposta do congressista aumenta de um a dois terços a pena se a exposição à contaminação for praticada por cônjuge ou companheiro da vítima. Resende pontua na proposta que a transmissão intencional da AIDS, em decorrência do atual estágio de desenvolvimento da ciência, seja enquadrada juridicamente como transmissão de enfermidade incurável e seja a conduta capitulada como lesão corporal de natureza grave com pena de dois a oito anos.
“Consideramos que a transmissão livre e consciente levada a efeito por cônjuge ou companheiro, por meio da prática de relações sexuais desprotegidas, por aquele que tem prévia ciência de sua infecção pela enfermidade e do notório risco em transmiti-la à parceira ou ao parceiro, deve ser punida de forma mais rigorosa”, disse.
O projeto de lei 652/2024 segue em análise na Câmara dos Deputados.

US: New report published on the enforcement of HIV criminalisation in Ohio

‘Antiquated’ and unscientific laws enforced against Ohioans living with HIV: Report

Across the country, a growing coalition of advocates is pushing to repeal or update state laws that criminalize people living with HIV or AIDS.

In Ohio, six laws on the books either criminalize certain acts – including sex – for people living with HIV or substantially increase sentences for them compared to people who do not have the virus.

Most of the laws were passed decades ago, fueled by fear, absent scientific understanding about how HIV is transmitted and before advancements in HIV-related treatment were widely introduced. Laws still remain in place in 34 states.

There are no national reporting requirements that track arrests or prosecutions under the laws. Until now, it was unclear how frequently Ohio prosecutors have charged people under the laws, which also apply to people living with hepatitis or tuberculosis.

A report released today by Equality Ohio and the Ohio Health Modernization Movement (OHMM), two groups pushing for legal reform, reveals that more than half of the prosecutions over a six-year period were for acts – such as spitting or throwing bodily fluids – that were unlikely to transmit HIV. It also found a disproportionate number of people charged were Black compared to Ohio’s overall population of Black residents.

“Ohio is unique in that these antiquated laws are actually being utilized and enforced against everyday Ohioans who are living with HIV,” Kate Mozynski, an attorney with Equality Ohio and one of the co-authors of the report told the Buckeye Flame.

In 2022, about 25,000 people in Ohio had an HIV diagnosis. The rate of Black residents diagnosed with HIV was more than six times the rate of white residents.

The groups spent three years gathering information from prosecutors and courts in all 88 Ohio counties and identified 214 cases charged under the six laws. Often, the records lacked or had conflicting information on race or ethnicity, and the gender captured in law enforcement records didn’t always reflect a person’s gender identity.

That prevents researchers from fully understanding the impact that these laws are having on some of the most vulnerable populations in Ohio, including LQBTQ+ people, people experiencing incarceration and people of color, according to the report. The federal Centers for Disease Control and Prevention has warned that laws criminalizing HIV exposure are outdated and may discourage testing, increase stigma and exacerbate disparities in Black and Latino communities.

Cuyahoga County had the highest number of charges

 The report found that:

  • Prosecutions are concentrated in Ohio’s more populous counties, including Cuyahoga, Hamilton, Franklin and Lucas counties.
  • Cuyahoga County charged four times the number of people under the six laws than Franklin County, which has a higher population and more people living with HIV and AIDS. Cuyahoga County accounted for 26% of the cases identified.
  • The largest share of prosecutions involved Black men, based on recorded race and gender included in records.

A separate Marshall Project review of prosecutions under the six laws in Cuyahoga County from 2016 through 2022 examined 36 charges involving 35 defendants. That doesn’t didn’t include charges for solicitation, prostitution or loitering, which are generally misdemeanor crimes.

The cases involved 18 law enforcement agencies, including three hospital police departments and public transit police.

The Cuyahoga County Prosecutor’s office, which decides whether to prosecute felony cases under Ohio’s laws, said these charges are determined on a “case-by-case basis” after considering input from victims, according to Lexi Bauer, communications manager. Bauer noted that the majority of the “harassment by bodily fluid” charges in recent years were related to hepatitis and not HIV.

Ohio penalties among the harshest

Ohio’s laws remain among the harshest when it comes to HIV criminalization, not just based on the conduct that is criminalized but also the penalties, said Jada Hicks, staff attorney for The Center for HIV Law and Policy.

In Ohio, people living with HIV (or viral hepatitis or tuberculosis) can be charged whether or not they:

  • Engaged in sex practices or other acts that could transmit the virus.
  • Transmitted HIV.
  • Used protection, such as condoms and/or dental dams.
  • Had an undetectable level of virus in their blood and were unable to transmit HIV.

Most of the charges examined in the report fall under two Ohio laws.

One law makes it a crime for a person living with HIV (or hepatitis or tuberculosis) to “harass” someone with their bodily fluids. That would include spitting or throwing urine, feces or blood at another person.

Under the other law, a person can be charged with felonious assault if they have sex with another person without telling them that they are living with HIV.

The penalties for failing to disclose HIV status in Ohio are stiff regardless of whether the virus was actually transmitted or whether it was even possible for a person to transmit the virus. Possible sentences for individuals living with HIV can be anywhere from two to 29 times longer than those for Ohioans who are HIV-negative.

Ohio is also one of six states that require individuals convicted under one of these statutes to register as a sex offender.

“Ohio’s HIV laws don’t require actual transmission or even the intent to transmit,” said Nathan Cisneros, a researcher with the Williams Institute, which does legal and public policy research on sexual orientation and gender identity. “Conduct that couldn’t transmit HIV – like spitting and biting, loitering while having a conversation about sex work – can land you in prison.”

The Williams Institute also published a report today that looked at arrests under Ohio’s six laws over two decades and felony prosecutions in Cuyahoga County from 2009 to 2022. Researchers identified at least 530 separate allegations under the six laws since 2000. Having consensual sex without disclosing an HIV-positive status made up nearly half of the total cases. Incidents related to sex work and bodily fluid exposure each accounted for nearly one-fifth of the total.

Changing legal landscape

Thirteen states have either repealed or modernized their HIV laws, according to the Center for HIV Law and Policy, including Illinois in 2021 and New Jersey in 2022.

Ohio advocates have been at the forefront of efforts to challenge the laws as discriminatory. In 2022, the Center for HIV Law and Policy filed a complaint with the Department of Justice on behalf of people living with HIV in Ohio and Tennessee.

In December, the DOJ notified Tennessee it was violating the Americans with Disabilities Act (ADA) by enforcing the state law that increases penalties for people convicted of prostitution if they also have HIV. On Feb. 15, the Justice Department filed charges against the state in federal court..

Combing state records for HIV-related charges

OHMM researchers gathered information from county-level online court records and local county clerk and prosecutors’ offices in Ohio’s 88 counties for a six-year period ending in 2020. The project identified 214 cases prosecuted under the six laws.

Behind each one of the cases, there is a “real, everyday Ohioan who happens to have a medical condition,” Mozynski said.

Where in Ohio are people being charged?

The highest concentration of charges are in the state’s larger metropolitan areas.

  • 26% in Cuyahoga County (Cleveland)
  • 12% in Hamilton County (Cincinnati)
  • 7% in Lucas County (Toledo)
  • 7% in Franklin County (Columbus)
  • Montgomery (Dayton) and Warren (Lebanon) counties, about 5% each.

What charges are most common?

More than half of the cases identified were for the charge of “harassment with a bodily substance,” which carries with it a penalty of up to 5 years in prison and a $10,000 fine. Cases with this charge are often related to acts against law enforcement or corrections officers or healthcare workers.

Charges don’t distinguish between bodily fluids that can transmit HIV, such as blood, and those that do not, such as saliva, urine or feces. People can also be charged if they are living with hepatitis, regardless of whether it is transmitted.

Prosecutors also don’t have to prove whether a person is capable of transmitting the virus or determine whether it is scientifically impossible to transmit the virusdue to prescription-drug treatments that have reduced the presence of the virus in a person’s blood – called a viral load – to undetectable levels.

A third of the cases were for “felonious assault,” which carries the most severe penalty of any HIV-related charge – up to eight years of incarceration and a $15,000 fine. Each sexual act can be charged separately. It also doesn’t require that the virus be transmitted.

OHMM found no cases where people were charged with “selling or donating contaminated blood.” The Williams Institute found six arrests over a 20 year period related to blood donation.

Read the OHMM (“Enforcement of HIV Criminalization in Ohio: Analysis of Court Cases from 2014 to 2020”) report here.

Read the Williams report (“Enforcement of HIV Criminalization in Ohio HIV-related criminal incidents from 2000 to 2022”) here.

US: Report by the Williams Institute examines the enforcement of HIV criminalisation laws in Mississippi

HIV criminal laws lopsided impact on Black men in Mississippi

A new report by the Williams Institute at UCLA School of Law finds that at least 43 people in Mississippi were arrested for HIV-related crimes between 2004 and 2021. Half of all arrests in the state happened between 2017 and 2021.

The HIV epidemic and Mississippi’s HIV-related criminal laws disproportionately impact men, and Black men in particular. Men make up 49% of Mississippi’s population, 71% of people living with HIV (PLWH), and 72% of HIV-related arrests. Black men comprise 18% of the state’s population and 50% of PLWH. However, they make up 47% of HIV-related arrests.

Researchers analyzed data obtained from the Mississippi Department of Public Safety. Findings show that the enforcement of HIV criminal laws is concentrated around the state’s capital and most populous city, Jackson, and near the Gulf Coast. Almost 20% of arrests occurred in three counties: Harrison (15%), Hinds (13%), and Lamar (11%).

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based on a person’s HIV-positive status. Nearly two-thirds of U.S. states and territories currently have laws that criminalize people living with HIV.

Mississippi has two HIV criminal laws. The knowing exposure law makes it a felony to knowingly expose another person to HIV, hepatitis B, or hepatitis C and is punishable by up to 10 years in prison and/or a $10,000 fine. Mississippi’s endangerment by bodily substance law makes it a misdemeanor to attempt to expose or expose anyone at a correctional facility to bodily fluids. However, if someone knows their HIV or hepatitis status, the crime is upgraded to a felony punishable by 3 to 10 years in prison and/or a $10,000 fine.

“Mississippi’s criminal laws do not require the actual transmission of HIV, the intent to transmit, or even conduct that can lead to the transmission of HIV,” said lead study author Nathan Cisneros, HIV Criminalization Project Director at the Williams Institute. “We now have medical treatments that wholly eliminate the risk of transmitting HIV through sex, yet these advances are not reflected in Mississippi’s laws.”

Mississippi’s 2021 Ending the HIV Epidemic Plan called for reform of the state’s HIV criminal laws to align with modern HIV medicine.

“HIV criminal laws perpetuate stigma and can discourage testing and treatment,” said co-author Brad Sears, Founding Executive Director at the Williams Institute. “That’s why many national and state organizations, including the American Medical Association, have called for a repeal of these laws.”

This report is part of a series of reports examining the ongoing impact of state HIV criminalization laws on people living with HIV.

Read the report

Slovakia: Ministry of Health asked to reconsider mandatory HIV reporting in medical facilities

HIV reporting obligations in Slovakia: patient advocacy for change in criminal code

In Slovakia, HIV-positive patients are obliged to report their diagnosis in medical facilities. This arises from the Criminal Code, otherwise you could face penalties for spreading a dangerous disease. Patients and some experts draw attention to the advanced treatment methods, which mean that this obligation should no longer be necessary. The Ministry of Health is currently not planning to change the current regulations, but is open to a discussion about it.

Jan Koller is one of the patients with this diagnosis. His life has been changed by HIV, not because of the treatment, but because of people’s prejudices: “There is a significant stigma associated with this disease. I was faced with rejection from doctors myself. We don’t pose a risk to anyone.”

This is also why Jan Koller founded a non-profit organization to help others with this disease. Some healthcare providers may have reservations or uncertainties about treating people with HIV. While Danica Staneková from the National Reference Center for HIV and AIDS Prevention understands the concerns of health workers, she reminds that patients could also go to an outpatient clinic or hospital without knowing that they are HIV-positive. Therefore, every patient should be treated as potentially infected and infectious. According to Staneková, it would at least be appropriate not to consider HIV as a special diagnosis, as is the case in the Criminal Code. The spread of HIV and other dangerous infections is listed there. However, HIV can now be treated in the same way as hepatitis B, for example, although this disease does not represent a special diagnosis in the criminal code.

HIV patients are demanding that they no longer have to legally report their diagnosis under threat of criminal prosecution. As long as the disease is treated with modern means, it poses no danger to other people, says infectiologist Peter Sabaka: “Some countries have already initiated such changes in jurisprudence. Thanks to treatment, such patients have no detectable viral load. You can therefore actually be viewed as not infected in terms of the risk of infection and therefore the need to report. I can’t give a clear answer at the moment as to whether this should also be the case in Slovakia.”

There are approximately 1,600 people living with HIV in Slovakia. In 2023, 140 new cases were added.

Ecuador: New Bill proposes 1-3 years in prison for transmission of an infectious disease

Assembly members propose jailing anyone who spreads infections such as HIV/AIDS with intent

Translated from Spanish via Scroll down for original article in Spanish.

Assembly members propose jailing anyone who spreads infections such as HIV/AIDS with intent: can the transmitter be identified with certainty?

The COIP reform is rejected by civil society organisations because it criminalises those living with sexually transmitted diseases.
The report for the second debate on the draft Organic Law Reforming the Comprehensive Organic Penal Code (COIP) includes a reform that punishes with 1-3 years in prison anyone who intentionally spreads an infectious disease, such as that caused by the human immunodeficiency virus (HIV) or syphilis, in a sexual relationship; that is, when the transmitter has prior knowledge of his or her state of health.

The proposal criminalises anyone who “has sexual intercourse with another person without informing that person of his or her infected status”. Infectious diseases also include hepatitis B, gonorrhoea, among others.
This change is maintained in the report for the second debate in the plenary approved by ten of the Assembly members who are part of the Justice Commission.

The bill brings together 38 previously presented reform proposals. Hence, it is a wide range that covers this issue that involves public health and others, such as drug trafficking crimes, usury, extortion, cattle rustling and more possibilities at the time of investigating certain crimes.

A UNAIDS technical note issued on 15 February 2024 states that “there is no evidence that criminalisation of HIV transmission has public health benefits” and that “the proposed bill may undermine effective responses to HIV in Ecuador”.
Furthermore, the statement adds, “criminalisation of HIV exposure or transmission may lead to a miscarriage of justice”.
The application of laws criminalising HIV exposure or transmission can lead to “serious miscarriages of justice and other related problems,” the agency notes, including the following:

– Selective application of the law.
– Difficulty with evidence and testimony.
– Breach of confidentiality and privacy.
– Uninformed assessment of the risk and harm of HIV infection.

“It is feared that prosecution for HIV exposure or transmission may deter people living with HIV or those at higher risk of HIV infection from seeking HIV prevention, treatment, care and support services,” the report notes, precisely “for fear of prosecution”.

But is this reform enforceable and can it effectively determine who transmitted the virus?

Infectiologist Washington Aleman says the issue of criminalisation of sexual transmission of HIV/AIDS is not new. “It’s something old: it arose 40 years ago, when the pandemic was first diagnosed. Now we know the diseases much better, and these kinds of repressive methods are not conducive to fighting this pandemic. Repressing, imprisoning or persecuting is not the way to fight an infectious disease. Education is the way.

It is impossible, the specialist adds, to determine exactly who is infecting whom, especially in developing countries such as Ecuador.
“If tomorrow you have sexual activity with ten people without any precautions and four of them have HIV, how are you going to know who infected you? And the second thing is a question of which word carries more weight, because it would be a confrontation between two people who would accuse each other. So these are confusing scenarios.

The use of condoms, even more so in a casual relationship, is the action that should be applied to prevent venereal diseases as part of a personal decision.

“Do you think a person who has sporadic and transient relationships is going to tell their HIV status even if they are? It’s not going to happen. So you have to be practical and maintain proper self-care,” adds Alemán.
The latter goes hand in hand with the undetectable status of people living with HIV, a status that is achieved with access to retroviral treatment. In this situation, the virus is not transmitted, he adds.

Infectious disease specialist Milton Chang points out that the application would be a play on words between the accuser and the accused. On the medical side, in developed countries it is possible to analyse all the characteristics of the virus and see if they correspond, but it is complex and in Ecuador there is no technology.

“To test for resistance to the antiretrovirals (HIV treatment) we use in Ecuador, we have to send the samples to Colombia, because it is not possible here in the country, sequencing a virus to say that it is exactly the same as the one someone else has is more complex, but it is possible,” says Chang.

There is a window period to know if the virus was contracted from the time of exposure, which ranges from four to ten days, he adds. “Current tests have shortened this period, which used to be one month, with the fourth-generation elisa tests.
The problem would be determining how long each person has had HIV in their system if both people are just finding out, as this is highly variable depending on the immune system. “It would be difficult to determine who infected whom.

Specialist Chang believes that morally, people living with HIV should inform their sexual partners of their HIV status.
Alarming rise in reported HIV cases in Ecuador, where there are 45,078 people with the disease: Fear of discrimination limits access to medical services
Transmission through sharps accidents is low-risk, says Alemán, because it is not direct from blood to someone’s vein. “In these pricks with an infected needle we have to evaluate and, according to that, give preventive treatment; but the risk is below 0.01%, it is not a frequent practice of HIV transmission”.

The HIV virus lives inside the cell, it is thermolabile (easily altered by the action of heat); that is, when it leaves the body to the environment it dissects easily, explains Alemán.The risk is higher with blood transfusions and sharing syringes for injecting drugs.

Reform is difficult to implement
From a legal point of view, says criminal lawyer Julio César Cueva, the reform would be difficult to implement. “The problem, more than anything else, is strictly evidentiary. It would be a ‘You told me’ and ‘You didn’t tell me’. You are going to be intimate with someone and, just in case: ‘Sign here that you told me’. It’s difficult.
There are people who don’t know they have the disease and find out when the partner they were with later discovers it after a test. “The accused will say they didn’t know they had it,” he adds.

Cueva says that the reform responds to the fact that there are people who do know their HIV status and have unprotected sex with other people on purpose. Even if its application is not effective, he says, it is better to have such a measure in the COIP: “It is better to have it and not need it than to need it and not have it. It’s better to have it and not need it than to need it and not have it. You don’t know what kind of new infections will come out in the future.

The Ecuadorian Federation of LGBT+ Organisations (lesbian, gay, bisexual, transgender and the rest of gender diversity) rejects the specific proposal to criminalise the sexual transmission of infections. “The article in question seeks to criminalise the transmission of HIV/AIDS, which represents a serious threat to the human rights of people living with the disease,” it said in a statement.

Diane Rodriguez, National Director of the LGBT+ Federation, points out that the approach is contrary to paragraph 2 of Article 11 of the Constitution, which “recognises equality between all persons, without anyone being discriminated against for any distinction, personal or collective, such as living with HIV”.

“The criminalisation of HIV/AIDS transmission has been widely criticised by international organisations, such as the World Health Organisation (WHO) and UNAIDS (Joint United Nations Programme on HIV/AIDS),” the activist adds.
The criminalisation of HIV/AIDS and the way it is being treated publicly will only increase stigma and discrimination towards people living with HIV/AIDS, says Rodriguez: “There is no scientific evidence that criminalisation of HIV/AIDS is effective in preventing transmission of the virus.

The UN/AIDS report highlights possible consequences, such as putting women at greater risk of criminal prosecution because they are the first to know their HIV status due to the routine offer of HIV testing in antenatal care settings. “Therefore, women who first become aware of their HIV status may be blamed for ‘introducing HIV into the relationship’ and face prosecution for HIV transmission or exposure.”

Asambleístas proponen encarcelar a quien propague infecciones como VIH/sida con intención: ¿se puede identificar con certeza al que transmite?

La reforma al COIP es rechazada por las organizaciones de la sociedad civil debido a que criminaliza a los que viven con enfermedades de transmisión sexual.

El informe para segundo debate del proyecto de Ley Orgánica Reformatoria al Código Orgánico Integral Penal (COIP) incluye una reforma que sanciona con 1-3 años de cárcel a quien propague una enfermedad infectocontagiosa, como la que causa el virus de inmunodeficiencia humana (VIH) o la sífilis, en una relación sexual de manera intencionada; es decir, cuando quien transmite conoce previamente su estado de salud.

En la propuesta se criminaliza a quien “mantenga relaciones sexuales con otra persona sin informarle de la condición de infectado”. Entre las enfermedades infecciosas está también la hepatitis B, gonorrea, entre otras.

Este cambio se mantiene en el informe para segundo debate en el pleno aprobado por diez de los asambleístas que son parte de la Comisión de Justicia.

El proyecto aglutina a 38 planteamientos de reforma presentados previamente. De ahí que es un abanico amplio que abarca este tema que involucra a la salud pública y otros, como los delitos del narcotráfico, usura, extorsión, abigeato y más posibilidades en el momento de investigar ciertos delitos.

Una nota técnica de ONUSIDA emitida el 15 de febrero de 2024 indica que “no hay evidencia de que la criminalización de la transmisión del VIH tenga beneficios para la salud pública” y que “el proyecto de ley propuesto puede socavar las respuestas efectivas al VIH en Ecuador”.

Además, agrega el comunicado, “la penalización de la exposición o transmisión del VIH puede conducir a un error judicial”.

La aplicación de leyes que penalizan la exposición o transmisión del VIH puede provocar “graves errores judiciales y otros problemas relacionados”, señala el organismo, como los siguientes:

  1. Aplicación selectiva de la ley.
  2. Dificultad con las pruebas y los testimonios.
  3. Violación de la confidencialidad y la privacidad.
  4. Evaluación desinformada del riesgo y daño de la infección por el VIH.

“Se teme que el enjuiciamiento por exposición o transmisión del VIH pueda disuadir a las personas que viven con el VIH o a las que corren mayor riesgo de contraer la infección por el VIH de buscar servicios de prevención, tratamiento, atención y apoyo relacionados con el VIH”, señala el informe, justamente “por temor a ser procesados”.

¿Pero es aplicable esta reforma y se puede determinar con efectividad quién transmitió el virus?

El infectólogo Washington Alemán afirma que el tema de la criminalización de la transmisión sexual del VIH/sida no es nuevo. “Es algo viejo: surgió hace 40 años, cuando recién la pandemia fue diagnosticada. Ahora conocemos mucho mejor las enfermedades, y este tipo de métodos represivos no favorecen la lucha contra esta pandemia. Reprimir, encarcelar o perseguir no es el camino para luchar contra una enfermedad infecciosa. El camino es la educación”.

Es imposible, agrega el especialista, lograr determinar con exactitud quién contagia a determinada persona, sobre todo en los países en vías de desarrollo, como Ecuador.

“Si mañana se tiene actividad sexual con diez personas sin medidas de cuidado y, de esas, cuatro tenían VIH, ¿cómo vas a saber quién te infectó? Y lo segundo es una cuestión de qué palabra pesa más, porque sería un careo entre dos personas que se acusarían entre sí. Entonces, son escenarios que generan confusión”.

El uso del preservativo, más aún en una relación ocasional, es la acción que debe aplicarse para prevenir las enfermedades venéreas como parte de una decisión personal.

“¿Crees que una persona que mantiene relaciones esporádicas y transitorias va a decir su estado serológico aunque lo sea? No sucederá. Entonces, hay que ser prácticos y mantener el cuidado personal adecuado”, agrega Alemán.

Esto último va de la mano de la condición de indetectable de los portadores del VIH, estado que se consigue con el acceso al tratamiento retroviral. En esa situación no se transmite el virus, añade el médico.

También hay otros métodos de prevención, como la profilaxis preexposición (PrEP) y profilaxis posexposición (PEP).

El infectólogo Milton Chang indica que en la aplicación se daría un juego de palabras entre el que acusa y el acusado. En la parte médica, en los países desarrollados se pueden analizar todas las características del virus y ver si corresponden, pero es algo complejo y en Ecuador no hay la tecnología.

“Si para probar resistencia a los antirretrovirales (tratamiento para el VIH) que usamos en Ecuador tenemos que enviar las muestras a Colombia, porque acá en el país no es posible, secuenciar un virus para decir que es exactamente el mismo que tiene otra persona es más complejo, pero sí se puede”, dice Chang.

Hay un periodo de ventana para conocer si se contrajo el virus desde que se dio la exposición, que va de cuatro a diez días, agrega. “Las pruebas actuales han achicado este periodo, que antes era de un mes, con las pruebas elisa de cuarta generación”.

El problema estaría en determinar qué tiempo ha tenido cada persona el VIH en su organismo en el caso de que las dos personas recién se estén enterando, ya que eso es muy variable según el sistema inmunológico. “Sería complicado determinar quién contagió a quién”.

El historial médico finalmente puede determinar desde cuando una persona conoce que tiene el virus.

Y si el posible acusador, pues, comprueba que no lo tenía con alguna prueba previa a la exposición.

El especialista Chang cree que moralmente las personas que viven con VIH deben informar a sus parejas sexuales su estado serológico.

La transmisión a través de accidentes cortopunzantes es de bajo riesgo, dice Alemán, porque no es directo de la sangre a la vena de alguien. “En estos pinchazos con una aguja infectada hay que evaluar y, de acuerdo a eso, dar un tratamiento preventivo; pero el riesgo está por debajo del 0,01 %, no es una práctica frecuente de transmisión de VIH”.

El virus del VIH vive dentro de la célula, es termolábil (que se altera fácilmente por la acción del calor); es decir, al salir del cuerpo al medioambiente se diseca fácilmente, explica Alemán.

El riesgo sí es mayor en las transfusiones de sangre y al compartir jeringas para la inyección de drogas.

La reforma es difícil de aplicar

Desde el punto de vista jurídico, dice el penalista Julio César Cueva, la reforma sería difícil de aplicar. “El problema más que nada es estrictamente probatorio. Sería un ‘Me dijiste’ y ‘No me dijiste’. Se va a tener intimidad con alguien y, por si acaso: ‘Firma aquí que me dijiste’. Es difícil”.

Hay personas que no saben que tienen la enfermedad y se enteran cuando la pareja con la que estuvieron después lo descubre tras una prueba. “El acusado dirá que no sabía que lo tenía”, añade.

Cueva asegura que la reforma responde a que sí hay personas que conocen su estado serológico y mantienen relaciones con otras personas sin protección a propósito. Más allá de que su aplicación no sea efectiva, precisa, es mejor tener en el COIP una medida de este tipo: “Es mejor tenerla y no necesitarla que necesitarla y no tenerla. No se sabe qué tipo de infecciones nuevas saldrán a futuro”.

La Federación Ecuatoriana de Organizaciones LGBT+ (lesbianas, gais, bisexuales, trans y el resto de la diversidad sexo-genérica) rechaza la propuesta específica de penalizar la transmisión sexual de infecciones. “El artículo en mención busca criminalizar la transmisión del VIH/sida, lo que representa una grave amenaza para los derechos humanos de las personas que viven con esta enfermedad”, señala en un comunicado.

Diane Rodríguez, directora nacional de la Federación LGBT+, indica que el planteamiento es contrario al numeral 2 del art. 11 de la Constitución, que “reconoce la igualdad entre todas las personas, sin que nadie pueda ser discriminado por cualquier distinción, personal o colectiva, como por ejemplo vivir con VIH”.

“La tipificación de la transmisión del VIH/sida como delito ha sido ampliamente criticada por organismos internacionales, como la Organización Mundial de la Salud (OMS) y ONUSIDA (Programa Conjunto de las Naciones Unidas sobre el VIH/Sida)”, añade la activista.

La criminalización del VIH/sida y la forma como está siendo tratada públicamente solo aumentará el estigma y la discriminación hacia las personas que viven con VIH/sida, señala Rodríguez: “No existe evidencia científica que demuestre que la criminalización del VIH/sida sea efectiva para prevenir la transmisión del virus”.

El informe de ONU/sida enfoca posibles consecuencias, como poner en mayor riesgo de enjuiciamiento penal a las mujeres porque son las primeras en conocer su estado serológico debido a la oferta rutinaria de pruebas del VIH en los entornos de atención prenatal. “Por lo tanto, las mujeres que se dan cuenta por primera vez de su estado serológico pueden ser culpadas de ‘introducir el VIH en la relación’ y enfrentarse a un proceso judicial por transmisión o exposición al VIH”.