Kenya: Petitioners intend to appeal High Court decision to dismiss challenge to the criminalisation of HIV transmission

KELIN disappointed by High Court judgment in HIV criminalisation case

The Kenya Legal and Ethical Issues Network on HIV & AIDS (“KELIN”) is disappointed with the Nairobi High Court’s decision dismissing Petition 447 of 2018.

The Petition was filed in December 2018. It asked that the Court declare section 26 of the Sexual Offences Act 3 of 2006 to be unconstitutional, void and invalid, and therefore struck from the law. This law criminalises deliberate transmission and or exposure of life-threatening sexually transmitted diseases, including HIV.

On 20 December 2022, Justice Ong’udi in the Nairobi High Court dismissed the Petition, upholding the law’s constitutionality.

We are disappointed with both the outcome and the Court’s process,” said Mr Allan Maleche, the Executive Director of KELIN. “The judgment failed to consider the undisputed expert evidence. That evidence showed how this law, and its application, are not only contrary to international scientific consensus on the nature and risk of HIV transmission, but that it is also harmful to proven strategies to prevent and treat HIV effectively”, he said.

Ms Nerima Were, KELIN’s Head of Programmes, said that in addition, KELIN regretted that the Court elected not to have an oral hearing and instead decided the case on the papers only. It also declined to consider the amici curiae’s submissions, despite that they had previously been admitted as friends of the Court on 27 January 2020. Ms Were said that “For such an important case, where understanding HIV science was critical to ensuring justice, the Court would have benefitted from hearing the Petitioners and counsel, and from considering the international expertise of the friends of the court, UNAIDS and HIV Justice Worldwide.”

Mr Maleche said that while the judgment somewhat narrows the interpretation of the offence, for as long as it remains on the books, it will continue to obstruct an effective HIV response. The Petitioners intend to appeal the judgment.

Who were the parties?

The petitioners were KELIN, people living with HIV and an HIV-negative spouse.

  • The first petitioner was a man living with HIV who had been charged with a crime under section 26 of the Sexual Offences Act for allegedly biting a police officer’s thumb during his arrest.
  • The second petitioner was a woman living with HIV who was on HIV treatment and had an undetectable viral load. She was charged under section 26 of the Sexual Offences Act after being falsely accused of breastfeeding another person’s child.
  • The third petitioner was a woman living with HIV. After she disclosed her HIV-positive status to her spouse, he violently assaulted her and threatened to report her to the police under section 26 of the Sexual Offences Act.
  • The fourth petitioner was a woman living with HIV who was married to the fifth petitioner, who is HIV-negative. The sixth petitioner was similarly a woman living with HIV who was married to an HIV-negative spouse. These petitioners were concerned that the HIV-positive spouses risked prosecution under section 26 of the Sexual Offences Act, even though they were all aware of each other’s HIV-statuses, and that the HIV-positive spouses were on treatment and taking precautions to prevent transmission.

The respondents were the Attorney General, the Director of Public Prosecution (“DPP”).

The National AIDS Control Council (“NACC”) joined as an interested party.

There were two friends of the court (or amici curiae): the Joint United National Programme on HIV and AIDS (“UNAIDS”) and HIV Justice Worldwide (“HJWW”) (“the friends of the Court”).

What were the parties’ arguments?

The Petitioners argued that section 26 of the Sexual Offences Act infringes the principle of legality because it is vague and arbitrarily enforced. They demonstrated that – by virtue of the law’s vague language – it is being applied in circumstances where there is scientifically a minimal or no risk of HIV transmission, and in circumstances where there is no established intent to transmit HIV.

The Petitioners demonstrated that section 26 of the Sexual Offences Act had been used to harass and extort people living with HIV, to test them without informed consent, as a tool of gender-based violence against women living with HIV, to publicise people’s confidential health information unjustifiably, and to advance HIV stigma and misinformation.

The Petitioners argued that the law therefore infringes constitutionally protected rights unjustifiably, including article 28 (the right to inherent dignity), article 29(f) (the right to freedom and security of the person), article 27 (the right to freedom from discrimination), article 49(1)(d) (the rights of arrested persons), article 50(1) (the right to a fair trial), article 31 (the right to privacy), and article 45 (the right to family).

The Petitioners provided undisputed expert evidence to show that the law did not prevent HIV transmission.

The Attorney General, with the support of the DPP, opposed the Petition. He argued that section 26 of the Sexual Offences Act was not unconstitutional and was clear and unambiguous.

The NACC also opposed the Petition. It argued that the law properly aimed to punish people who deliberately infect other people and did not infringe any constitutional rights.

HJWW and UNAIDS were admitted as friends of the Court on 27 January 2020. HJWW provided an international context to HIV criminalisation generally and to section 26 of the Sexual Offences Act specifically. UNAIDS sought to provide the court with information on international standards, policies and recommendations regarding the use of criminal law against HIV non-disclosure, exposure and transmission. The Court declined to consider the submissions of the friends of the court.

What was the court’s decision?

The High Court dismissed the Petition.

It considered that it was beyond its mandate to consider the undisputed evidence that the law undermined public health interventions and efforts to prevent HIV transmission.

The Court did not consider that section 26 of the Sexual Offences Act was unconstitutional. It held that, properly interpreted, an offence is only committed if a person has actual knowledge of their HIV status, and intentionally, knowingly and wilfully does infects a person with HIV or other sexually transmitted disease. It therefore did not consider the provision vague or ambiguous.

It held further that the Petitioners had not shown that section 26 of the Act violated their constitutional rights.

The Court nonetheless acknowledged that the Petitioners had “clearly showcased” that the law had been used to “harass and charge them wrongfully” as people living with HIV. It held that the Petitioners were at liberty to seek redress for any non-compliance by the authorities with the law.

It held that a person’s HIV-positive status should never be announced in open Court or published in order to protect the dignity of the person concerned.

What is the effect of the High Court’s decision?

The Court’s decision means that, unless the judgment is successfully overturned on appeal, section 26 of the Sexual Offences Act remains valid law in Kenya.

The Court has confirmed, however, that the offence should be restrictively applied only where three elements are proved beyond a reasonable doubt:

  • First, the perpetrator must act intentionally and with a specific intention to infect another person;
  • Second, the perpetrator must have actual knowledge of their HIV status; and
  • Third, the prosecution must prove that the perpetrator actually infected the other person with HIV.

The Petitioners have a right appeal the judgment to the Court of Appeal.

Kenya: High Court dismisses petition challenging the constitutionality of HIV criminalisation

Disappointment as High Court Dismisses Case Challenging Criminalisation of HIV transmission

Nairobi, 20th December 2022. The High Court has dealt a blow to the fight against the HIV response, by dismissing a petition that challenged the criminalisation of all forms of deliberate transmission of HIV. Hon. Lady Justice Hedwig Ong’udi dismissed the petition on the grounds, the petitioners had not met the threshold to have the section declared unconstitutional. Further she noted that Section 26 of the Sexual Offences Act(SOA), does not refer to all people living with HIV, but rather those who deliberately and knowingly transmit HIV.

Had the court upheld the petition Kenya who have been removed from the list of the 30 sub-Saharan nations  and the 92 countries globally, who have enacted and enforced laws that criminalise HIV exposure and infection.

The petition filed by KELIN, and 6 other petitioners, who included people living with HIV, challenged the constitutionality of Section 26 of the SOA. This law criminalizes the deliberate transmission of HIV and other sexually transmitted diseases. The Petitioners had based their petition on the factual and lived experiences of each of the first six petitioners, all of whom have been adversely affected by the discriminatory application of this section yet had not been engaged in any sexual offences.

The Attorney General together with the National AIDS Control Council had opposed the petition arguing the section was constitutional as it was necessary to curb deliberate transmission due to the continued presence of HIV in Africa. It further argued that the rights of persons living or affected by HIV are not absolute, and that these must be weighed and interpreted with limitations provided under the Constitution.

As at the time of publishing this news alert, the court judgment had yet to be released to the parties. We look forward to receiving the court decision to better understand the court’s reasoning as well as determine a way forward.   A further statement will be issued in due course.

Links to pleadings

Petition

Submissions

Supplementary submissions

AG submissions

Mexico: LGBTQ+ community calling for the repeal of HIV criminalisation statute in Quintana Roo Public Health Law

LGBTQ+ community calls for changes to Quintana Roo Health Law

Translated via Deepl.com. Please scroll down for original article in Spanish.

The LGBTQ+ community is calling for the repeal of the criminalisation of HIV transmission in the Quintana Roo Health Law.

The LGBTQ+ community, in a working meeting with local Congresswoman Estefanía Mercado Asencio, requested the repeal of Article 113 of the Quintana Roo Health Law, which criminalises the transmission of sexually transmitted diseases, specifically HIV.

The repeal of this article, found in Title Eight, Chapter II, Communicable Diseases, has been requested for several Legislatures, but has been ignored, said Omar Ortiz, the President of the Civil Association “Información y Educación Sexual”.

At the meeting, which was attended by people representing sexually diverse populations, people involved in the HIV response and mothers of various sexually diverse populations, a request was made to encourage municipalities to have a Sexual Diversity Unit, as in Solidaridad, which is the only municipality with such a unit, and for the State Government to have a Secretariat for Sexual Diversity.

“We were attending to the pending legislative agenda, with respect to what is already advanced and what is pending in the matter, at the local level; we talked about article 113 of the Health Law, which criminalises the issue of HIV, as well as the fact that Solidaridad is the only municipality that has a Unit for the Attention to Sexual Diversity, and she, as a deputy, has the possibility of presenting an initiative so that all municipalities have this position,” he pointed out.

“The article criminalises the fact of transmission, when it is an issue that cannot be scientifically proven; I cannot prove that you have transmitted HIV to me because there is no scientific or laboratory mechanism that allows us to know that it was you and not another partner or my sexual contacts, nor at what moment it happened. There is no way to apply that article, it is basically up to interpretation and that cannot be in the law.

Another issue they asked the Congresswoman to address is the creation of the Unit for Comprehensive Care of Sexually Diverse Populations and Children and Adolescents who require specialised endocrinology care, which responds to the needs of social minorities, such as the transgender population, in order to carry out their transition process under medical supervision, without endangering their lives and health.


Exige comunidad LGBTQ+ cambios a Ley de Salud de Quintana Roo

La comunidad LGBTQ+ pide derogar la criminalización del hecho de la transmisión del VIH en la Ley de Salud de Quintana Roo.

La comunidad LGBTQ+, en reunión de trabajo con la Diputada local, Estefanía Mercado Asencio, solicitó derogar el artículo 113 de la Ley de Salud de Quintana Roo ya que, criminaliza el hecho de la transmisión de enfermedades venéreas, en específico del VIH.

El citado artículo, ubicado en el Título Octavo, Capítulo II, Enfermedades Transmisibles, se ha pedido su derogación desde hace varias Legislaturas, pero ha sido ignorado, apuntó el Presidente de la Asociación Civil “Información y Educación Sexual”, Omar Ortiz.

En el encuentro donde participaron personas de la diversidad sexual, de respuesta del VIH y madres de poblaciones de la diversidad, se solicitó la promoción de una iniciativa para que los Ayuntamientos tengan una Unidad de la Diversidad Sexual, como en Solidaridad, que es el único con esta instancia, y que el Gobierno del Estado tenga una Secretaría de la Diversidad Sexual.

“Estuvimos atendiendo la agenda Legislativa pendiente, respecto a lo ya avanzado y lo pendiente que tenemos en la materia, en el terreno local; hablamos del artículo 113 de la Ley de Salud, que criminaliza el tema del VIH, así como que Solidaridad es el único Ayuntamiento que tiene una Unidad para la Atención a la Diversidad Sexual, y ella, como diputada, tiene la posibilidad de presentar una iniciativa para que todos los municipios cuenten con esta figura”, señaló.

“El artículo criminaliza el hecho de la transmisión, cuando es un tema que científicamente no se puede probar; yo no puedo probar que tú me hayas transmitido el VIH porque no existe un mecanismo científico, de laboratorio, que permita saber que fuiste tú y no otra pareja o mis contactos sexuales, ni en qué momento se dio. No hay manera de aplicar ese artículo, está básicamente a interpretación y eso no puede ser en la ley”.

Otro tema que pidieron a la Congresista es la creación de la Unidad de Atención Integral a Poblaciones de la Diversidad Sexual y Niños, Niñas y Adolescentes que requieran atención especializada en endocrinología, que responda a la necesidad de las minorías sociales, como la población trans, a fin de realizar su proceso de transición bajo vigilancia médica, sin poner en peligro su vida y salud.

US: Pennsylvania’s governor signs bill subjecting people with a communicable disease to harsher penalties

Pennsylvania’s Governor Wolf has signed bill HB 103. HB 103 creates two new, unnecessary, and broadly applicable felony offenses and subjects people with a communicable disease, such as HIV, to harsher penalties under law. As passed, HB 103 would create two new felonies:

  1. A new third-degree felony offense for something as small as “expelling” saliva on a police officer, punishable by up to seven years in prison and up to $15,000 in fines; and
  2. A new second-degree felony offense if the person knew or “should have known” they had a reportable, communicable disease if their actions could have transmitted a communicable disease—punishable by up to TEN YEARS in prison and up to $25,000 in fines.

From LGBTQ Nation – By Daniel Villarreal

Democratic governor signs law punishing HIV transmission with up to 10 years in prison

As of 2022, 35 states have outdated and discriminatory laws that criminalize HIV exposure (and predominantly punish Black people).

Pennsylvania’s Gov. Tom Wolf (D) just signed a new law that makes it a felony to pass on a communicable disease when they “should have known” that they had it, the HIV Justice Network reported.Opponents of the law worry it will be used to punish people with HIV or other STDs who unknowingly transmit it to sexual partners. Such HIV criminalization laws have disproportionately been used to target Black men and other men of color.

The law, known as HB 103, punishes people with up to 7 years in prison and $15,000 in fines for “expelling” saliva, blood, or another bodily fluid onto a police officer.

While the offense, a third-degree felony, has to be “intentional,” one could see an arrestee being charged with it if they accidentally spit onto an officer while talking or bleed onto an officer during a violent arrest.

The law also charges people with a second-degree felony if they knew or “should have known” that they had a communicable disease after transmitting it to someone else. The offense is punishable by up to 10 years in prison and $25,000 in fines.

This not only would apply to anyone who transmits HIV; it could also apply to people who unintentionally transmit hepatitis, influenza, chickenpox, and COVID-19.

The bill has been opposed by the Elizabeth Taylor AIDS Foundation, the Anti-defamation League of Pennsylvania, the American Civil Liberties Union of Pennsylvania, the Pennsylvania HIV Justice Alliance, the Positive Women’s Network-USA, the Sero Project, the AIDS Law Project of Pennsylvania, Advocates for Youth, and many other groups.

“As a person living with HIV who was born and raised in Pennsylvania, the passing of HB 103 serves as a reminder that as we get closer to ending the HIV epidemic, we have a long way to go to end HIV stigma and the criminalization of people living with HIV,” said Louie Ortiz-Fonseca, Director of LGBTQ Health & Rights with Advocates for Youth.Medical professionals have said that HIV criminalization laws do nothing to stop the spread of the virus and may even encourage people not to get tested for fear that the knowledge could subject them to criminal penalties.

A 2018 Williams Institute study on HIV criminalization in Georgia found that “Black men and Black women were more likely to be arrested for HIV-related offenses than their white counterparts.” While 26 percent of HIV-related arrests were of white males, 46 percent of HIV-related arrests were of Black males.

Additionally, 11 percent of those arrested were white females, while 16 percent were Black females.As of 2022, 35 states have laws that criminalize HIV exposure, according to the Centers for Disease Control and Prevention (CDC).

Many of the laws were passed at a time when little was known about HIV and millions were dying from the virus.“Many of these state laws criminalize actions that cannot transmit HIV – such as biting or spitting – and apply regardless of actual transmission, or intent,” the CDC wrote.

“After more than 40 years of HIV research and significant biomedical advancements to treat and prevent HIV transmission, many state laws are now outdated and do not reflect our current understanding of HIV.”

Uganda: Mandatory testing of people under arrest is contrary to the provisions of the Patients Charter and the Constitution of Uganda

Activists warn on mandatory HIV testing of suspects

Health rights activists and lawyers have warned of evasion of privacy and confidentiality for arrested suspects once they are subjected to mandatory testing for HIV/Aids, Tuberculosis (TB) and malaria.
On Tuesday, the office of the Director of Public Prosecutions (DPP) launched a programme that will see all arrested suspects, who will be detained in the pilot 16 police stations around the Kampala Metropolitan Area, subjected to mandatory screening for HIV/Aids, TB and malaria.

This, according to the office of the DPP, is aimed ensuring the right to health for employees of the criminal justice system, victims of crime and suspects.
But the president of the Uganda Law Society, Mr Bernard Oundo, yesterday warned that despite government having the mandate to protect its citizens against certain killer diseases, it has to do so with an enabling piece of legislation.

Ms Esther Dhafa, the programme officer for strategic litigation at Center for Health, Human Rights and Development, warned that the move is contrary to the provisions of the Patients Charter and the Constitution.
“Every patient has a right to be given adequate and accurate information about diagnostic procedures to be conducted on them, and the proposed treatment to enable them make an informed decision,” Ms Dhafa cautioned.
Ms Dhafa added that even after the mandatory tests are conducted, the safety and confidentiality of the information regarding one’s status is not guaranteed and could end up in wrong hands.

Likewise, another health rights activists, Mr Gracias Atwiine Germany, said the programme is a setback in in the fight against HIV/Aids.
“Forced disclosure and testing of people living with different health conditions will escalate stigma and discrimination,” Mr Atwiine said.
However, last evening, Ms Jacquelyn Okui, the spokesperson of the office of the DPP, said the only mandatory tests should be for TB and malaria and not HIV/Aids.
“The tests for HIV shall not be mandatory. However, suspects of crime will be encouraged to undergo testing for both their benefit and the benefit of others in the criminal justice system,” she said.

US: Indiana bipartisan legislative panel unanimously recommends scrapping most of the state’s HIV criminalisation laws

Indiana Panel Recommends Repealing HIV Penalties

INDIANAPOLIS (WISH) — Members of a bipartisan legislative panel on Tuesday said Indiana’s HIV laws are unnecessarily discriminatory and don’t accomplish anything.

The general assembly convenes interim study committees every year to look into policy matters between legislative sessions. A panel tasked with reviewing the state’s criminal code voted unanimously on Tuesday to recommend lawmakers scrap most of the state’s penalties concerning people who live with HIV.

“Our understanding of HIV has changed a lot since the 1980s when this was enacted, and a lot of the testimony proved out that a lot of our current laws surrounding the criminal penalties for HIV are no longer valid,” committee chair Rep. Wendy McNamara, R-Evansville, said.

Current state law makes it a felony for someone living with HIV to donate blood or semen. There also are laws requiring people with HIV to disclose their status to sexual or needle-sharing partners and imposing harsher penalties for battery involving body fluids if the accused attacker is HIV-positive. McNamara said testimony over the past few weeks revealed prosecutors rarely use such laws and there is no risk of transmission when someone is taking their required viral suppression medications. Rep. Matt Pierce, D-Bloomington, said Indiana law does not penalize people with other serious diseases in the same way.

“Now we have a situation where we have drugs that treat the disease. There’s actually drugs that prevent it from spreading and it’s no longer a death sentence,” he said. “So, it makes sense to change those laws.”

Lawmakers filed legislation this year to repeal several penalties, including those dealing with blood donations. The legislation passed out of a House committee, but never got a floor vote. McNamara said her panel’s endorsement could give similar legislation a boost next year. She said lawmakers would leave some penalties in place for cases where someone tried to deliberately infect another person with HIV.

Any changes to the criminal code still have to go through the legislative process. Lawmakers won’t begin debating bills until the next legislative session begins in January.

USA: New report from Williams Institute shows HIV-related arrests in Louisiana are disproportionately based on race

Black men account for 91% of HIV-related arrests in Louisiana

A new data interactive looks at the impact of HIV criminal laws on people living with HIV in nine states, including Louisiana

Since 2011, as many as 176 people have had contact with Louisiana’s criminal legal system because of allegations of HIV crimes, according to a new report by the Williams Institute at UCLA School of Law. HIV-related crimes are disproportionately enforced based on race and sex. In Louisiana, Black men represent 15% of the state population and 44% of people living with HIV, but 91% of those arrested for an HIV crime.

Using data obtained from the Louisiana Incident-Based Reporting System and from the state’s most populous parishes, researchers found that enforcement of HIV crimes is concentrated in East Baton Rouge Parish, Orleans Parish, and Calcasieu Parish. Furthermore, the number of HIV incidents—or interactions with law enforcement involving allegations of HIV crimes—is not declining over time.

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

A new data interactive looks at the impact of HIV criminal laws on people living with HIV in nine states, including Louisiana.

Louisiana has one criminal law related to HIV, which makes it a felony for a person who knows of their HIV-positive status to intentionally expose another person to HIV through sexual contact or other means without consent. The maximum sentence for an intentional exposure conviction is 10 years, and people convicted of an HIV crime are required to register on the state’s sex offender registry for at least 15 years.

Louisiana’s HIV criminal law does not require actual transmission, intent to transmit, or even the possibility of transmission to sustain a conviction. Between 2011 and 2022, incarceration for HIV crimes cost Louisiana at least $6.5 million.

“The cost of Louisiana’s HIV criminal law is likely much higher. Even with only partial access to the state’s criminal enforcement data, the trends were dramatic,” said lead author Nathan Cisneros, HIV Criminalization Analyst at the Williams Institute. “Louisiana’s HIV criminal law may undermine the state’s public health efforts by deterring the communities most impacted by HIV, including people of color and sex workers, from seeking testing and treatment.”

KEY FINDINGS

  • Most HIV criminal incidents (80%) in Louisiana involved only allegations of an HIV-related crime; no other crimes were alleged in the incidents.
  • Black people—and especially Black men—were the majority of people identified as suspects and arrested for HIV-related crimes in Louisiana.
    • Across the state, 63% of suspects were Black and 45% were Black men. For incidents that resulted in arrest, all of those arrested were Black and 91% were Black men.
    • In New Orleans, close to 80% of all suspects were identified as Black and 58% were Black men.
  • Black people and women were overrepresented among victims of HIV-related incidents.
    • Across the state, Black women and white women each represented 28% of all victims.
    • In New Orleans, Black men were 58% of all victims.
  • Since 1998, there have been at least 47 separate HIV-related convictions resulting in sex offender registration, involving 43 people.
  • Most people (63%) on the sex offender registry because of an HIV-related conviction are on the registry only because of the HIV-related conviction.
  • Three-quarters of people on the sex offender registry for an HIV-related conviction were Black.
  • Guilty outcomes resulted in an average sentence of 4.3 years.
  • Incarcerating people for HIV-related charges has cost Louisiana at least $6.5 million.

This report is part of a series of reports examining the ongoing impact of state HIV criminalization laws on people living with HIV. Take a look at our new data interactive summarizing the findings of our research.

Read the report

Uzbekistan: Draft law on compulsory HIV testing introduces notion of “dangerous group” and “potential HIV carriers”

Uzbekistan will forcibly test sex workers and MSM for HIV

Translated via Deepl.com. For article in Russian, please scroll down.

A draft law on compulsory HIV testing of sex workers, men who have sex with men and drug users is under discussion in Uzbekistan. They would reportedly be detected during “special preventive operations”. The author of the project is the country’s Interior Ministry, Gazeta.uz reported.

It is planned that the procedure will take effect on 1 January 2023, and the discussion will last until 10 September 2022.

The document introduced the notion of a “dangerous group” – “potential HIV carriers”, i.e., those who need to be tested. This includes sex workers, drug users, men who have sex with men and those who are only suspected. That is, everyone who has been in contact with a “dangerous group” as well as people who are “suspected of having such an affair” will be screened.

They will be identified through a process of special investigative measures, the mechanism of which is not specified. There is a suggestion that the decision on the medical examination will be made by internal affairs officers.

As a reminder, Uzbekistan and Turkmenistan are the last countries in Central Asia to criminalise same-sex contacts.

Earlier, we wrote that Singapore (Southeast Asia) had repealed the law criminalising consensual sex between men, which had been in force since 1938.


В Узбекистане будут принудительно тестировать на ВИЧ секс-работниц и МСМ

В Узбекистане обсуждается проект о принудительном тестировании на ВИЧ секс-работниц, мужчин, практикующих секс с мужчинами, и наркопотребителей. Сообщается, что выявлять их будут во время «специальных оперативно-профилактических мероприятий». Автором проекта является Министерство внутренних дел страны, сообщает «Газета.uz».

Планируется, что данный порядок вступит в силу с 1 января 2023 года, а обсуждение продлится до 10 сентября 2022 года.

В документе появилось понятие «опасная группа» — это «потенциальные носители ВИЧ», то есть те, кому нужно провести тестирование. Сюда входят работники секс-бизнеса, наркопотребители, мужчины, практикующие секс с мужчинами, а также те, кто только подозревается. То есть обследование будут проводить всем, кто контактировал с «опасной группой», а также людям, которые «подозревается в подобных связях».

Вычислять их будут в процессе специальных розыскных мероприятий, механизм которых не прописан. Есть предположение, что решение о медицинском обследовании будут принимать сотрудники отдела внутренних дел.

Напомним, что Узбекистан и Туркменистан являются последними странами в Центральной Азии, где существует уголовная ответственность за однополые контакты.

Ранее мы писали о том, что в Сингапуре (Юго-Восточная Азия) отменили закон, криминализирующий сексуальные отношения между мужчинами по обоюдному согласию, который действовал с 1938 года.

 

Why people living with HIV should not be criminalised for donating blood

Preventing the transmission of blood-borne infection by imposing limitations on the donation of blood is an important and legitimate public health objective.

Since the beginning of the HIV epidemic, certain groups – including, but not limited to, gay men and other men who have sex with men – have been subjected to restrictions on their ability to give blood.

Sustained advocacy by gay rights organisations in many high-income countries has focused on the discriminatory nature of these so-called ‘gay blood bans’, highlighting significant advances in blood screening capabilities. This has led to a general softening of restrictions on blood donations for gay men in many of these countries – allowing donations with ‘deferral periods’, or allowing donations based on individual risk assessments.

However, this advocacy has generally not translated into the removal of HIV-specific criminal laws for donating blood, nor has there been a call for a moratorium on singling out people living with HIV for donating blood using non-HIV-specific general criminal laws – even though many of the same public health and human rights arguments apply to both the so-called ‘gay blood bans’ and to HIV criminalisation more generally.

That is why today, the HIV Justice Network has published Bad Blood: Criminalisation of Blood Donations by People Living with HIV. The report was written by Elliot Hatt and edited by Edwin J Bernard, based on research undertaken by Sylvie Beaumont, with additional input provided by Sarai Chisala-Tempelhoff and Paul Kidd (HIV Justice Network’s Supervisory Board); Sean Strub (Sero Project) and Robert James (University of Sussex).

We found that 37 jurisdictions in 22 countries maintain laws that criminalise people with HIV for donating blood. Notably, 15 jurisdictions in the United States (US) have laws which specifically criminalise blood donations by people living with HIV, while four US states – California, Illinois, Iowa, and Virginia – have repealed laws which previously criminalised this conduct.

Although prosecutions are relatively rare, we are aware of at least 20 cases relating to blood donation since 1987. Half of these cases have been reported in Singapore, including two as recently as 2021.

We argue that the criminalisation of blood donations by people with HIV is a disproportionate measure – even if the aim of protecting public health through the prevention of transfusion-transmitted infection is legitimate – and is the result of both HIV-related stigma and homophobia. It is not supported by science.

There is no good reason for any country or jurisdiction to have HIV-specific criminal laws – whether they focus on blood donation or on sexual exposure or transmission. HIV-specific criminal laws are discriminatory and stigmatising, especially since people with other serious blood borne infections – including hepatitis B and C and syphilis – are not singled out with specific laws, nor for prosecution under general criminal laws.

Blood donation criminal laws focused on HIV should be repealed, prosecutions based on general laws should end, and instead science-informed measures – such as individual donor risk assessments and universal blood screening – should be relied on to protect the public against transfusion-transmitted infection.

Read the report at: https://www.hivjustice.net/publication/badblood