Czech Republic: Health Ministry proposes law to make HIV testing mandatory for key populations

The Czech Health Ministry is pushing a proposed amendment to the law on public health which would make HIV testing compulsory for some people in high risk groups. While the ministry argues that this is to curb the spread of the disease and ensure early treatment, human rights advocates say it would mean a serious breach of human rights.

HIV testing in the Czech Republic is conducted anonymously and is free of charge. In its prevention programmes the Czech AIDS Help Society highlights the importance of getting tested in order to enable early treatment of the disease and protect others in the event of a positive outcome. Still many people who engage in what is seen as high-risk behaviour do not want to undergo testing. The Czech Health Ministry now wants to change that and force people who are considered to be at high risk to undergo testing or face a tall fine.

The proposed amendment to the law has already passed without opposition through the health committee of the Chamber of Deputies and is due to go into a third reading in the lower house. However it has stirred controversy among human rights advocates, and is strongly opposed both by the Czech AIDS Help Society and the government’s committee for the rights of sexual minorities.

Robert Hejzák, photo: Czech TelevisionRobert Hejzák, photo: Czech Television Robert Hejzák from the Czech AIDS Help Society says repression is not the way to go –even in the interest of protecting public health.

“Human rights are universal and we do not accept the argument that in the case of HIV they should be violated in the interest of public health. Moreover HIV positive people are not a direct threat to the public – this is not ebola, it is not tuberculosis or even the flu.”

The country’s chief hygiene officer Vladimír Valenta refuses to hear this argument saying that the health authorities have a duty to protect the public from an epidemic.

“We are talking about individuals who are at the centre of a high-risk environment and there is a higher probability of infection. From an epidemiological point of view HIV is no different from other diseases that put the population at risk. There is a danger off the virus spreading and this danger merits the same kind of protective measures as in other potential epidemics.”

Vladimír Valenta, photo: Filip JandourekVladimír Valenta, photo: Filip Jandourek At present the Czech Republic (with over 10 million inhabitants) has over 2,000 people registered HIV positive, and over 200 people have died of AIDS. Each year brings on average around 230 new cases. Under the present legislation testing is only compulsory for pregnant women in order to enable heightened protection of the unborn child. If the newly-proposed amendment passes through both chambers of Parliament and is signed into law by the president pretty much anyone considered high risk could be forced to undergo a test for HIV. How this would prevent them from spreading the disease further or even encourage them to act responsibly with regard to their own health is not clear and the answer to those questions may be decisive in whether lawmakers allow this particular amendment to pass through a third and final reading in the lower house.

Sudan: Draft law providing rights and protections for people living with HIV also comes with responsibilities, including criminalising 'intentional' transmission and non-disclosue to 'prospective spouses'

April 2, 2015 (KHARTOUM) – Sudan is in the process of drafting a law to protect the rights of those living with HIV/AIDS and ensure that they receive medical and psychological care. The bill, which is being drafted by legal experts, people living with HIV/AIDS, physicians and officials, will also criminalise the intentional transmission of the disease.

Sudan’s ministry of health revealed last December that there are 79,000 cases of AIDS in the country.

The draft law would state that people living with HIV/AIDS enjoy all the rights guaranteed by the constitution and international conventions ratified by Sudan.

It prohibits any form of discrimination based on HIV status that would lead to the degradation of their dignity or erosion of their rights or exploitation.

Furthermore, the draft bill gives the patients the right to housing, access to goods and services and prohibits subjecting any citizen to HIV check as a condition for employment or dismissing employees who contract the virus unless it is proven through a medical report that they are incapable of performing their job functions.

Even then, they will have the right to request being transferred to another job.

The law granted HIV/AIDS patients the right to request open-ended sick leave with full pay in case of health-related complications and to receive social security.

For children living with the virus, they would have the right of access to health care and medical counseling and cannot be dismissed or transferred from their schools.

The law also guarantees confidentiality of their information and ensures that it cannot be published in the media without the patient’s consent.

Court trials can be held in a closed setting if one of the parties involved has HIV/AIDS, the law says. It also dictates that HIV screening would be voluntary and confidential. It would also allow infected moms to retain custody of their children.

But the law also obliges patients to take the necessary steps including seeking medical help to prevent transmission of the virus to others. Failing to do so would be punishable by law.

Should an infected individual decide to marry they should notify their prospective spouse and comply with instructions that prevent transmitting the virus.

US: Advocacy underway in Alabama to fight newly proposed bill to change 'knowingly' transmitting an STI from a misdemeanor to a felony

HIV/AIDS advocacy groups are preparing for a fight against a piece of legislation that would heighten the penalty for knowingly exposing a sexually transmitted disease to another in Alabama. Research shows stigmatizing and criminalizing HIV doesn’t reduce the transmission rate, and it actually discourages people from getting tested, Kathie Hiers, executive director of AIDS Alabama, said.

Rep. Juandalynn Givan’s bill is vague and makes is possible for spreaders of any sexually transmitted disease to be charged with a felony, she said.

“The way the bill is written if anyone puts anyone at any risk for any STDs or HIV it can be a felony,” Hiers said in an interview with AL.com. “Now, you can interpret that as any woman who has HPV could be guilty.”

She said 85 percent of women have HPV, a sexually transmitted disease, and many don’t even know it.

Givan, D-Birmingham, said she stands behind her proposed legislation.

“This piece of legislation simply imposes greater penalties for those who maliciously with the intent to recklessly by some type of malice or reckless disregard for the life and the health of another human being intentionally goes out and infects another person,” she said.

Givan said the intent of the bill isn’t to keep anyone from being tested for HIV.

She said Alabama law already defines a sexually transmitted disease, but she would be open to amendments to her bill.

The lawmaker decided to propose the legislation, heightening the penalties under current law from a Class C misdemeanor to a Class C felony, after hearing about a Montgomery pastor confessing his HIV-positive status to his congregation and admitting he engaged in sex with unknowing women.

A Class C felony carries a prison sentence of one to 10 years. A Class C misdemeanor carries a maximum prison sentence of three months.

Givan thinks current law is too lenient, and people who are intentionally infected are too embarrassed and afraid to come forward to law enforcement.

Alabama is one of only 16 states in the nation where it is a misdemeanor offense to knowingly expose another person to a sexually transmitted disease, she said.

Juan McFarland, the former pastor of Shiloh Missionary Baptist Church in Montgomery, admitted during a sermon in September 2014 to being HIV-positive since 2003 and having sex with multiple women who weren’t aware of his status.

Montgomery police haven’t charged McFarland with any crime, but McFarland lost his job.

“It is pretty severe if you have been infected with HIV for a period of time and are having sexual intercourse with multiple women,” Givan said in a previous interview with AL.com. “You can only imagine that someone may have become infected.”

The Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) released statements against the criminalization of HIV.

“We oppose legal statutes that undermine public health by criminalizing transmission of HIV, viral hepatitis, tuberculosis and other infectious diseases,” the groups stated in a press release. “Studies have documented that these laws discourage individuals from being screened and treated for conditions when early diagnosis and treatment of infected individuals is one of the most effective methods to control the disease.”

Resources should be put behind evidence-based prevention methods not towards the criminalization, the groups said.

Hiers said everyone should take personal responsibility for protecting themselves against STDS, and criminalizing diseases doesn’t help.

“I think it lulls people into a false sense of security because if you make it all the responsibility of the HIV-positive person or the person who has the sexually transmitted infection then people may not practice universal precautions,” she said.

In this day and age, Hiers said everyone having sex needs to assume the other person has a sexually transmitted disease until they reach the point they are in a monogamous relationship and have been tested.

The Sero Project, a group working to end the criminalization of HIV, is expected to get involved and lead a grassroots effort against Givan’s bill if the lawmaker doesn’t table it herself.

Since research has proven that criminalizing HIV doesn’t reduce transmission, Sean Strub, the executive director of the group, said several states are considering decriminalizing it. Iowa became the first state to do so last year.

“So it is truly ironic that while much of the rest of the country is looking at changing these statutes, to slow the epidemic, a legislator in Alabama wants to make the statute more punitive, which will most likely make the epidemic in Alabama worse,” he said. “I’m sure that’s the opposite of what the legislator intends, but it is the likely outcome, which is tragic. Stopping this bill is, from Sero’s perspective, the single most compelling HIV prevention priority in Alabama right now.”

Brazil: HIV-specific criminal law introduced amid media frenzy and moral panic over ‘barebacking’ gay subculture

On April 2nd 2015, a simply worded amendment to Article 1 of Law No. 8072 of July 25, 1990 – covering ‘heinous crimes’ – will be presented to the Brazilian Parliament by the populist Congressman, Pompeo de Mattos.

The amendement, draft Bill No. 198, 2015, would add to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – individuals who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

The bill has considerable support thanks to an outbreak of moral panic that began with an article in the daily newspaper, O Estado de S. Paulo, published on February 22nd, that uncovered the gay ‘barebacking’ subculture and further suggested that some men were deliberately passing on HIV to unsuspecting partners.

Two days later, it was reported in a blog of the weekly magazine, Veja, that police were now looking into the allegations.

According to [Secretary of Justice and Defence and Citizenship, Aloysius Toledo Caesar], [Secretary of Public Security, Alexandre de Moraes] has guided teams of the Department of Civil Police Intelligence (Dipol) to act covertly to identify the groups. Chat rooms will be analyzed, websites, blogs and even clubs and sex saunas. “We agreed to encourage all actions that may prevent persons continue to criminally transmit the virus,” said Toledo. “When the transmission is done intentionally, our understanding of the law is that the legal concept is configured to be like an assassination attempt, a more serious penalty,” he added. Under Article 130 of the Penal Code, the penalty for transmitting the virus without the partner’s consent is up to 4 years in prison.

On February 27th, the Brazilian country office of UNAIDS issued a press release expressing concern about the “impact [of these media reports] on increasing stigma and prejudice related to HIV and people living with the virus.” It went to explain that condoms, treatment, PEP and PrEP are all effective HIV prevention tools, and concluded:

UNAIDS also highlights that there is no evidence that the use of criminal laws for HIV is an effective tool to prevent and response to the epidemic. On the other hand, there are strong indications that the fear of being arrested or imprisoned may discourage people to test for HIV or to stay on therapy.

The moral panic became a full blown media frenzy on March 15 (and again on March 22) when the top-rated Sunday news TV programme, Fantástico, on TV Globo, aired a sensationalised two-part investigation into the ‘barebacking’ phenomeon, repeating the same allegations. The reports (in Portuguese) can be viewed here and here.

In reaction to this, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health issued a strong statement of its own on March 21, and three Brazilian civil society organizations – ABIA (Brazilian Interdisciplinary AIDS Association), RNP+ (National Network of People Living with HIV) and GIV (Group to Encourage Life) – also issued press releases or statements noting that these reports stigmatise gay men living with HIV; that the idea of deliberately infecting someone is primarily a fantasy; and that in the extremely rare case of malcious, intentional transmisison the current general law is sufficient.

This isn’t the first time that there has been a media frenzy and moral panic around criminal HIV transmission. Two high profile cases in 2009 led to a strong statement from the Ministry of Health against the use of the criminal law unless transmisison was intentional.

According to the Global Criminalisation Scan, a number of laws can be used to prosecute alleged HIV non-disclosure, exposure or transmission, and there have been at least five prosecutions since the first recorded criminal case in 1995.

Follow the progress of bill PL 198/2015 here.

Update: On May 19th, former President Fernando Henrique Cardoso, who chaired the Global Commission on HIV and the Law, published a clear statement against the law on his Facebook page.

Screenshot 2015-06-01 12.15.07

US: Texas Senator Joan Huffman introduces four new HIV-related laws, including vague and overly broad HIV-specific criminal statute, SB 779

Three bills in the Texas statehouse would use HIV status as a weapon, one would lessen stigma.

Januari Leo, who works with Legacy Community Health Service, is the state’s go-to girl when it comes to following bills in the Texas Legislature related to HIV/AIDS. So when she calls a bill harmful, she’s likely not exaggerating.

Leo this week identified four bills introduced during this legislative session that would directly impact those living with HIV. Sen. Joan Huffman, R-Houston, filed SB 779, which would use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.

SB 1705, also filed by Huffman and its companion HB 2395 by Rep. Rick Miller, R-Sugar Land, would allow a court to test a juvenile for HIV following a crime.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem.”

Texas is among five states that have no law criminalizing HIV, but there have been cases prosecuted in Texas based on exposure or transmission.

Currently 37 states have some form of criminal law related to exposure and/or transmission of HIV on the books, according to the LGBT Movement Advancement Project.

According to the Center for HIV Law and Policy, both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. They are joined by numerous medical organizations.

According to the Centers for Disease Control, states enacted HIV-specific criminal exposure laws during the early uncertain days of the AIDS crisis.

That legislation criminalized HIV-positive people who know their status and intentionally expose it to others.

In order to qualify for funding under the passage of the Ryan White Comprehensive Act in 1990, states were required verify that their HIV criminalization laws were sufficient enough to prosecute criminals.

Sen. Rodney Ellis, D-Houston, has introduced legislation making HIV tests a routine part of medical testing, but giving individuals the

choice to opt out.

“There’s already legislation making it a crime to intentionally spread HIV,” Leo said of the Ryan White Act requirements. “But these aren’t those bills. These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Though the bills’ language narrowly identifies cases when the law could be applied, you can’t forget the bigger picture.

“We’re trying to get to zero cases of HIV through so many resources, including PReP, preventive testing and education,” Leo said. But the bills’ authors may not realize there is also an unintentional outcome: stigmatization, which could cause less testing and awareness of one’s HIV status.

Enter SB 194 by Sen. Rodney Ellis, D-Houston, which makes HIV testing a routine part of medical tests while letting the patient opt out.

“It creates a standard. Currently you have to ask for a test. Making people aware and voluntary eliminates stigma,” Leo said of Ellis’ bill. It has now been introduced for a fourth time.

Another bill that’s seen its fair share of legislative sessions is HB 65 by Rep. Ruth Jones McClendon, D-San Antonio. The bill would create a pilot needle-exchange program in a handful of Texas counties, including Dallas, to help prevent the spread of HIV, hepatitis B, hepatitis C, and other infectious and communicable diseases.

The bill, unfortunately, was used as ammunition against its Republican sponsors, including former Sen. Bob Deuell, who was ousted by candidates backed by far right groups like Texas Right to Life and Empower Texans.

Like many advocates, Leo said she is playing defense during the 84th legislative session, where killing a bad bill is better than passing any good bills at all.

……………

HIV Legislation   

• SB 1705 by Sen. Joan Huffman and HB 2395 by Rep. Rick Miller would allow a court to test a juvenile for HIV following a crime if the criminal suspect is suspected to have HIV.

• SB 779 by Sen. Huffman would allow a court to use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.

• SB 194 by Sen. Rodney Ellis makes HIV testing a routine part of medical tests while letting the patient opt out.

• HB 65 by Rep. Ruth McClendon would create a pilot needle exchange program in certain Texas counties.   

Gambia's National Assembly passes new HIV omnibus law that appears to be protective and supportive, but anti-gay law with life sentence for 'aggravated homosexuality' if living with HIV remains on the books

The Minister for Health and Social Welfare, Omar Sey, on Wednesday, 19th March, presented a bill entitled HIV AND AIDS PREVENTION AND CONTROL BILL, 2015 to the National Assembly during a session held in Banjul.In reading it for the second and third times, the health minister said the new Bill states that the ministers responsible for basic and secondary education, higher education and health shall ensure that students are educated on HIV and AIDS in public and private schools at basic, secondary and higher levels, including formal, non-formal and indigenous learning systems.

Mr. Sey said it shall be ensured that education and training courses cover mode of transmission, prevention and other sexually transmitted infections as well as human rights of the people living with HIV and vulnerable groups.

Further dwelling on the Bill, he said health care personnel shall ensure that education and information on HIV and AIDS form part of the health services that they render to their patients and that the ministry of health shall ensure that health care personnel are appropriately trained on information and education on HIV and AIDS.

On sensitization of HIV and AIDS in the work place, he said all employees and members of the armed forces and security services shall receive standard HIV and AIDS education which shall include themes on the causes, modes of transmission and prevention of HIV and on confidentiality at the work place and the acceptance of workers living with HIV and AIDS.

The health minister said community education on HIV and AIDS shall be launched, including the education of nationals abroad.

He said part of the Bill also requires the provision of information for tourists and passengers on transit.

In his intervention, Hon. Ousman Bah of Sabach Sanjal, who seconded the motion, commended the health ministry and said the bill is timely and relevant in the fight against HIV and AIDS. He urged his colleagues to pass the bill without hesitation.

Following some amendments, the Bill was eventually passed by the whole committee of the house.

But: http://www.theguardian.com/world/2014/nov/21/gambian-leader-approves-anti-gay-law

US: Rhode Island politician wants the state to consider new unscientific, stigmatising HIV non-disclosure law

State Lawmaker Targets People With HIV With Bill To Criminalize Exposure” by Zack Ford

Rhode Island state Rep. Robert Nardolillo (R) has introduced a new bill ( H 5245) that would criminalize exposing individuals to HIV without disclosing a positive status. Rhode Island is one of only 13 statesthat does not have such a law, but efforts are underway to roll back many of those other laws, which were passed when the virus was not as well understood as it is today.

Currently, Rhode Island does have a law that makes it a misdemeanor to expose another person to any sexually transmitted disease (STD), punishable by up to three months in jail and a fine of up to $100. Nardolillo told ThinkProgress that he doesn’t think this is appropriate for exposure HIV. “HIV is different. I put it alone,” he explained. “If this act happened, the penalty would be what?” According to his bill, it should be imprisonment up to 15 years and a fine up to $5,000.

A freshman legislator, Nardolillo openly discussed in his campaign that he was a victim of sexual assault as a minor and that he thus has “very strong views on sex offenders and the weak legislation that continually fails to protect those who are, have been, and will be victimized.” He noted that Rhode Island’s current laws offer “no penalty or enhancement” when STD transmission takes place during a sexual assault, though individuals can be punished for both. His new bill does criminalize when someone with HIV “forcibly engages in sexual intercourse,” but it also criminalizes when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

ThinkProgress confronted Nardolillo with studies that show that criminalizing HIV actually disincentivizes individuals from getting tested for HIV because they fear prosecution if they know their status is positive. As a result, the stigma against people with HIV increases and fewer people seek care for their HIV, which could increase their potential for transmitting the virus. “Have I read the research? I did,” Nardolillo confirmed, saying that he still felt that HIV was too serious not to prosecute in a distinct way.

ThinkProgress also asked Nardolillo about recent research showing that for HIV-positive people who have sought care and reduced their viral load to undetectable levels, it’s virtually impossible for them to transmit the virus to others. Should those individuals similarly be prosecuted for not disclosing their status? “I have no comment on that,” Nardolillo responded.

It was research about the risk of transmission that actually led the Iowa Supreme Court to overturn the conviction of a man who had been charged under that state’s HIV criminalization law last year. In fact, the Court said that, regardless of viral load, protected anal sex or unprotected oral sex are now known to carry such a minimal risk of transmission that they could not hold someone accountable for “risking” exposure when engaging in those activities. Nardolillo’s bill implicates any and all vaginal, anal, or oral sex with no qualifications as to whether protection is used.

Last year, Iowa became one of the first states to rescind its HIV criminalization laws, leaving penalties only for those who insidiously intend to transmit the virus. Though other states have not yet followed Iowa’s example, there is consensus among HIV/AIDS experts and advocates that they should. Both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. These laws, they argue, are not based on the medical evidence currently available and counter-intuitively increase stigma and interfere with prevention efforts, making it harder to fight the HIV epidemic, not easier.

The House Committee on the Judiciary will consider Nardolillo’s bill Tuesday afternoon. It currently has four other co-sponsors, but its prospects for passage are unclear.

Australia: Western Australia implements unscientific new law mandating HIV and hepatitis testing for spitting at, or biting, cops

Spitters and biters beware.  From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.

The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.

WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.

“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.

“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.

“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”

Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.

“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.

She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.

“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.

Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.

Test will check for HIV, hepatitis B and C.

Uganda: HIV Prevention and Management Act should be seen in context with Anti-Pornography Act, Anti-Homosexuality Act and Narcotics Law says OSF

On November 20, Uganda’s parliament passed the Narcotic Drugs and Psychotropic Substances (Control) Bill, also known as the Narcotics Law. A draconian piece of legislation, the law purports to deter drug abuse by imposing inhumanely long prison sentences-a conviction for simple possession can land a person in a cell for 25 years.

Nepal: Draft criminal code prohibiting infectious disease transmission singles out people with HIV and hepatitis B

Lawmakers in Nepal are considering a draft law that singles out people with HIV and hepatitis B, contrary to recommendations from UNAIDS and the Global Commission on HIV and the Law.

According to the draft text, tweeted by IRIN Humanitarian News reporter Kyle Knight, Article 103 ‘Prohibition of transmission HIV’ of Chapter 5, Offenses against Public Interest, Health, Safety, Facilities and Morals, criminalises people who are “aware of knowledge of one’s own positive HIV or Hepatitis B status”, who “purposefully or knowingly commit acts that would transmit Hepatitis B or HIV, give blood or coerce to give blood or come into sexual contact without precautionary measures in place, or cause entry of blood, semen, saliva, or other bodily fluids into the body of another.”

 

There are two levels of mens rea (state of mind) for such acts.

If it is “determined that the offender has purposefully or knowingly committed such an offense” the penalty is “up to 10 years of incarceration” and a fine up to 100,000 Rupees (approx. US$1000).

“However, if determined that the transmission occurred without intent to purposefully transmit or determined that the transmission occurred out of carelessness it shall be punishable by up to 3 years of incarceration and” a 30,000 Rupee (approx. US$300) fine.”

If the complainant has “knowingly initiated sexual contact with someone with [a] positive HIV or Hepatitis B status out of their own volition, such an act shall not be considered an offense.”

Given that article 102, ‘Prohibition of transmission infectious diseases’ already criminalises anyone who should “commit acts that could endanger the lives of others through the transmission or the potential transmission of infectious diseases” it is unclear why people with and HIV and hepatitis B are singled out, unless it is to provide a consent defence, which is not allowed in article 102.

In addition, article 102 provides for three levels of mens rea: “purposefully or knowingly” (with a penalty of up to 10 years of incarceration and a Rs. 100,000 fine); “negligently or irresponsibly” (up to 5 years of incarceration and a Rs. 50,000 fine); and “carelessly or recklessly” (up to 3 years of incarceration and a Rs. 30,000 fine).

Guidance from UNAIDS recommends that the only state of mind that may warrant criminal prosecution for alleged HIV transmission is malicious intent, and that HIV should never be singled out for special treatment. 

It is unclear how a court (or the police or prosecutors) would be able to differentiate between the various states of mind outlined in this draft law.

And whilst it could be seen as a positive step to allow for a consent defence, the law is far too vague and broad in terms of defining the acts that “would” risk HIV exposure or transmission, potentially criminalising all sex (including kissing and oral sex) by a person living with HIV unless their partner consented, even if no exposure was possible and/or no transmission is alleged to have occurred.

This would result in people living with HIV or hepatitis B being vulnerable to arrest and prosecution which would increase stigma and make it more likely that testing, treatment and beneficial disclosure would not take place.

HIV advocates in Nepal are currently responding to the draft law by sensitising parliamentarians to the notion that such laws do more harm than good to public health.

Nepal Draft HIV/Hepatitis B Criminal Law