Congo: First ever criminal prosecution nets 15 years for husband under poisoning law

The Criminal Chamber of the Court of Appeal of Pointe-Noire in Congo (also known as the Republic of Congo, or Congo-Brazzaville – not to be confused with its larger neighbour, Democratic Republic of Congo) has sentenced an HIV-positive man to 15 years in prison after finding him criminally liable for his infecting his wife.

The sentence – which also included a payment of $100 million CFA francs (approximately US$210,000) – as well as the prosecution itself has caused a great deal of controversy since sentencing was handed down on February 24th.

According to a March 2nd report by Inter Press Service Africa (in French here, and Google translated into English here) the case was controversial for several reasons.

First, the judge used his discretion to try Congo’s first ever criminal HIV transmission case by utliting the law on poisoning.

“The poisoning in our legislation is not limited. This is an administration or inoculation of substance in the body that cause damage or death,” Raymond Nzondo, lawyer for the victim told IPS.

This law was likely inherited from when Congo was part of France’s empire. However, French case law has now established that sexual fluids are not poisons, so the anti-poisoning law no longer applies.

Adding to controversy is the fact that an HIV-specific law, adopted by parliament in December 2010 but currently waiting to be enacted, now lists the circumstances in which criminal law cannot be applied to HIV transmission, with criminal liability limited to “intentional and deliberate” HIV transmission. The wording was changed following a workshop convened by civil society in 2009 in accordance with UNAIDS’ recommendations.

“This is illegal, this offense does not even exist in our legislation. I condemn this verdict,” Irenaeus Malonga, counsel for the accused, told IPS. He added that he had “already appealed to the Court of cassation [Congo’s court of appeal].”

Local organisations of people living with HIV / AIDS have also condemned the verdict. “We do not recognise this sentence as it is illegal. We will organise actions to ensure the man’s release,” warned Thierry Maba, HIV-positive, president of the Association of Young Positives Congo, a nongovernmental organisation (NGO) based in Brazzaville, the Congolese capital.

“The state was supposed to protect us, but now exposes us now by trial. And (with) 15 years imprisonment for a patient, he will die in prison,” says Simon, 35, an HIV-positive man from Pointe-Noire.

The IPS article includes scant details of the actual case, but it does quote the man’s lawyer claiming that both husband and wife had other sexual liaisions during their ten year marriage which certainly would create reasonable doubt that her husband was only the source of the woman’s infection.

“Who knows exactly who brought the disease home? Is something imagined. Before they married, both spouses had their life, the only screening test is not enough to convict someone,” railed Maba.

To Malonga, counsel for the condemned, the expert analysis can not say with certainty that contaminated the first spouse. “The doubt is there! The woman slept around, the man also has slept around, and they were married then,” he said.

Adding to the doubt that husband was the source of his wife’s infection is the fact that he had been on tretament since 2000 – this fact was used to prove that he knew his HIV-positive status, but there was no argument made by his defence about reduced infectiousness on treatment.

According Nzondo, counsel for the victim, her husband was under treatment since 2000, but had said nothing to his wife. He therefore did not use a condom during sex. The woman then began to develop the disease in 2005. “The man knew he was sick and was taking medication by hiding his wife. The fact was intentional and criminal,” said Nzondo.

US: Montana legislator’s HIV “ignorance in the first degree” exposed and denounced

Judicial ignorance is something I often highlight on my blog.

Sadly, it is most often (but not exclusively) seen in the United States – a place where a Michigan prosecutor believes that biting someone in self-defence is terrorism if the biter is HIV-positive; where a Texas defence lawyer believes people with HIV are potential “serial killers” if they don’t disclose before having unprotected sex because their HIV is a “deadly weapon”; and where a North Carolina judge believes that a man who attempts to bite a police officer on the ear is also a walking ‘deadly weapon’.

Today I’m adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.

On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.

Yesterday, the video of Rep. Taylor’s comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere – from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.

[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:

I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.

It’s all well and good to respond to individual emails, but there’s nothing yet on Rep. Taylor’s own website making her HIV u-turn clear to her constituents and rest of the America.]

The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn’t worth blogging about. After all, it’s so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?

But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker’s ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.

More of that in a moment.

Now this wasn’t the only recent case of a US politician furthering HIV-related stigma in the name of ‘justice’. Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids – notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)

In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I’m a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.

And last night, PJP put out a press release that highlights Rep. Taylor’s “ignorance in the first degree”.

When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.

Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is ‘dangerous and criminal’, takes away our human and civil rights and furthers the public’s and media’s perception that people with HIV are something to be feared or hated.

PJP’s powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.

The full text of the press release is below. It can also be downloaded as a pdf here.

Positive Justice Project

Denounces Montana Legislator’s Uninformed Comments

“…ignorance in the first degree…”

Contact:

Catherine Hanssens, 347.622.1400

chanssens (at) hivlawandpolicy.org

Sean Strub, 646-642-4915

sstrub (at) hivlawandpolicy.org

New York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.

A video of the legislator’s comments was posted earlier today by blogger Don Pogreba at the Montana-based website intelligentdiscontent.com.

According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.

The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.

The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”

Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said “My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S.”

Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:

“Ms Taylor’s statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven’t stopped.”

— Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV

“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”

— Christa Weathers, Executive Director, Missoula AIDS Council, missoulaaidscouncil.org

“HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact.”

— Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT

“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don’t understand the basic facts, how can we expect young people and those at greatest risk to understand them?”

— Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org

“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”

— Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.

****
The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.

For more information on the Center for HIV Law and Policy’s Positive Justice Project, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2

The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org

US: Positive Justice Project publishes essential new advocacy resource

The Center for HIV Law and Policy has released the first comprehensive analysis of HIV-specific criminal laws and prosecutions in the United States. The publication, Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, covers policies and cases in all fifty states, the military, federal prisons and U.S. territories.

Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions is intended as a resource for lawyers and community advocates on the laws, cases, and trends that define HIV criminalization in the United States. Thirty-four states and two U.S. territories have HIV-specific criminal statutes and thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. At least eighty such prosecutions have occurred in the last two years alone.

People are being imprisoned for decades, and in many cases have to register as sex offenders, as a consequence of exaggerated fears about HIV. Most of these cases involve consensual sex or conduct such as spitting and biting that has only a remote possibility of HIV exposure. For example, a number of states have laws that make it a felony for someone who has had a positive HIV test to spit on or touch another person with blood or saliva. Some examples of recent prosecutions discussed in CHLP’s manual include:

• A man with HIV in Texas is serving thirty-five years for spitting at a police officer;

• A man with HIV in Iowa, who had an undetectable viral load, received a twenty-five year sentence after a one-time sexual encounter during which he used a condom; his sentence was suspended, but he had to register as a sex-offender and is not allowed unsupervised contact with his nieces, nephews and other young children;

• A woman with HIV in Georgia received an eight-year sentence for failing to disclose her HIV status, despite the trial testimony of two witnesses that her sexual partner was aware of her HIV positive status;

• A man with HIV in Michigan was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after he allegedly bit his neighbor.

The catalog of state and federal laws and cases is the first volume of a multi-part manual that CHLP’s Positive Justice Project is developing for legal and community advocates. The goal of the Positive Justice Project is to bring an end to laws and policies that subject people with HIV to arrest and increased punishment on the basis of gross ignorance about the nature and transmission of HIV, without consideration of the actual risks of HIV exposure.

The manual’s completion was supported by grants for CHLP’s anti-criminalization work and Positive Justice Project from the MAC AIDS Fund and Broadway Cares/Equity Fights AIDS.

Download the manual here (2.3MB)

Nigeria: Oh the irony – “aggressive dissemination” of HIV-specific law both increases and punishes stigma

It was passed three years ago, but only now has the Lagos State AIDS Control Agency (LSACA), in collaboration with Enhancing Nigerian HIV Response (ENR) and the Lagos State Ministry of Justice begun “aggressive dissemination” of the Law for the Protection of Persons Living with HIV and Affected by AIDS in Lagos state and for other Concerned Matters.

According to the Daily Independent, the law’s prime aim is to protect the rights of people with HIV by punishing HIV-related stigma.

Any form of prejudice, negative attitudes, abuse and maltreatment directed at people living with HIV and AIDS amounts to stigma. However, not so known to many people is the fact that committing any of these acts now amount to committing serious legal sins against HIV positive persons, for which some of the punishments are almost as grave as criminal offences.

There are, indeed, some positive provisions in the law which punishes breaches in healthcare worker-patient confidentiality and employer and landlord discrimination of people with HIV. It also criminalises bogus claims of HIV ‘cures’.

To make this law work effectively, a Justice and Human Rights Watch Group is to be established. The group, which shall be under the control of the Lagos AIDS Control Agency, would be responsible, by law, for the monitoring and implementation of provisions of the law.

Ibirogba said, “Part of the policy which informed the drafting and subsequent passage of the law was the fact that Lagos state is most concerned about the plight of the affected persons, especially in terms of discrimination and stigmatization in hospitals, their neighbourhood and places of work.

Head of LSACA’s project Office, Dr. Olusegun Ogboye, said the agency would do everything possible to ensure the law is disseminated across as many Nigerians in Lagos.

ENR coordinator in Lagos, Dr. Olusegun Oyedeji, however cautions that HIV positive people should not take advantage of the law to ‘stigma people who are HIV negative or make unprincipled demands.’

“It will not make sense for any person to demand for special attention or ask for more than what he or she deserves because he or she is HIV positive,” Oyedeji said at the dissemination forum, which also had People Living With HIV/AIDS in attendance.

However, and without a hint of irony, it notes that – in my opinion – a poorly-written, vague and problematic statute in the law

makes an offence punishable with various jail terms up to 10 years imprisonment and fines for anyone who intentionally infects others with the Human Immunodeficiency Virus (HIV) that causes the Acquired Immune Deficiency Syndrome (AIDS).

Director at Citizens Rights directorate of Lagos state ministry of Justice, Mrs. Omotilewa Ibirobga, who gave insights on the law during the dissemination meeting at Cheers Hotel, Ikeja, Lagos , said “Section (18) subsection (1) is clear about this.”

The section reads; “Any person who willfully or knowingly endangers other persons by infecting them with the AIDS virus, commits an offence and shall be liable on conviction to a fine not exceeding N200,000 or imprisonment not exceeding 10 years or both fine and imprisonment.”

Across the continent in Uganda, international civil society Organisations, academics and HIV professionals met with the social service committee of the Parliament of Uganda last month to argue that similarly worded criminalisation statutes in the HIV/AIDS Prevention and Control Bill will increase HIV-related stigma.

[We] are of the view that crucial provisions of this law constitute a step back to the pre-1987 time when ignorance, fear, stigma and discrimination were the hallmarks of national engagement with the crisis. Namely mandatory testing, that is to say testing of a person for HIV without their knowledge and informed consent; mandatory disclosure, that is to say disclosure of a person’s HIV status without their knowledge and informed consent; and criminalization of intentional transmission of HIV.

South Africa: Opposition leader Helen Zille says HIV exposure is ‘attempted murder’, cites Nadja Benaissa case as example

South Africa’s leader of the Democratic Alliance opposition party, Western Cape Premier Helen Zille has said that HIV-positive people who knowingly have unprotected sex without disclosing their status, should be charged with attempted murder. She also cited the recent case of German pop star, Nadja Benaissa, as an example for South Africa to follow.

Her remarks, reported in the Cape Times, were made during an address to the South African Institute of International Affairs last week.

She said the lack of personal responsibility contributed to some of the greatest social ills in the country.

“Social pathologies are complex, but I think we must all agree that promoting a culture of personal responsibility is essential to addressing all these things. We also need to take action against people who are HIV-positive and knowingly have unprotected sex without disclosing their status. This, I believe, is an offence on a par with attempted murder. This is complex and difficult, and requires enormous courage from the wronged sexual partner to lay a charge and give evidence,” Zille said.

[…]

Zille said the recent court case against a German pop star for failing to disclose her HIV-positive status was an example to emulate. German singer Nadja Benaissa, a member of No Angels, was found guilty of causing grievous bodily harm to her ex-boyfriend by having unprotected sex with him despite knowing she had HIV. The 28-year-old was given a two-year suspended prison sentence and 300 hours’ community service. Zille said the lack of personal responsibility contributed to some of the greatest social problems facing the country, such as HIV/Aids, alcoholism, drug abuse, teenage pregnancy, foetal alcohol syndrome, and absentee fathers who did not pay maintenance.

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that “an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified.”

A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007. Rather, the legislation requires HIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.

Guyana: Lawmakers debate HIV-specific criminal law

A newly proposed law for the South American country of Guyana, entitled ‘Criminal Responsibility of HIV Infected Individuals’ was recently debated in the country’s National Assembly. (Thanks to Lucy Reynolds from the London School of Hygiene and Tropical Medicine for alerting me).

Two news reports published on July 30th – on Caribbean 360 and Stabroek News – cover the debate and outcome.

Everall Franklin, member of the Guyana Action Party-Rise Organise and Rebuild (GAP-ROAR) proposed the law, seconded by Latchmin Punalall from Alliance For Change (AFC). Both cited their belief that the law would deter HIV-related risk-taking behaviour and/or force individuals to disclose their status.

While speaking on the motion, Franklin said that the stigma and discrimination associated with the virus is being propelled by ignorance and noted that the intention of the motion was, while not to remove or dilute existing laws, to ensure that certain obligations of individuals are kept in tact while others enjoy their rights. He said that the motion should be considered from the perspective of a person being tested positive as having contracted HIV having the responsibility of informing partners of his/her status. In addition, a person being raped by someone who is infected with the virus as well as women who become pregnant year after year, and who have tested positive for the virus, should be considered, he said.

AFC MP Latchmin Punalall, who seconded the motion, said that her party stands for the sanctity of humanity and according to her the time is right to pass critical legislation to prevent the spread of HIV by “reckless” persons. Against this backdrop, she noted that when such individuals know before hand that a “stiff penalty is in place …they will think twice.”

Strong opposing arguments came from Health Minister Dr Leslie Ramsammy, supported by Volda Lawrence of the main opposition People’s National Congress Reform (PNCR).

“Stigma and discrimination have proven to be the powerful drives of the HIV epidemic. Most people living with HIV and know their status are taking measures to protect themselves and others,” [Ramsammy] said, insisting that any motion that sets criminal penalties for HIV transmission and to force public disclosure of a person’s status is counter to the objectives of public health. “The fact is that criminalisation of HIV exposure risks undermining public health and human rights and as such it is not a solution,” the Health Minister maintained.

He emphasised that in the instance where a person willfully transmits HIV with intent to cause harm, the matter calls for a comprehensive national dialogue, which can be deliberated at the level of the parliamentary special select committee.

Of particular interest was Mr Franklin’s referral to precents set in the Global North

adding that nations, including the US and Australia, have passed laws making the wilful spread of HIV a criminal offence.

Ms Lawrence countered that

criminal procedures have been implemented in countries where addressing the issue is concerned but according to her such measures have not been effective.

All Members of Parliament have agreed that the motion be taken to a special select committee to be discussed further.

US: Nushawn Williams “poster child” of newly proposed HIV-specific law faces a lifetime of civil confinement (update 2)

Update: July 20th
A New York Supreme Court judge in Buffalo has dismissed Nushawn Williams’s petition for release and ruled he could remain in jail while awaiting his October trial under New York’s Civil Confinement Law.

Update: May 11th
No big surprise, but a New York State Supreme Court judge has ruled that Nushawn Williams “poses a danger to society and as a result, must remain behind bars even though his sentence is complete.”

State Supreme Court Justice John Michalski said there is probable cause that Williams suffers from a “sexual abnormality” that would pose a danger to society.

With the ruling, Williams could now face a trial to determine his future status.

Both sides are due back in court next month as they hold arguments over a defense motion to dismiss the case.

Under a civil law, passed in 2007, the state can lock up a sex offender indefinitely if it proves the person has a mental abnormality and is likely to offend again.

Original post: April 23rd

The impact of the 1997 Nushawn Williams case continues to reverberate in New York. Following last year’s denied request for parole, there are now plans to keep him locked up forever by New York’s Attorney General Andrew M. Cuomo.

The New York Times reported on April 13th

Mr. Williams, 33, was due to be released on Tuesday after serving his maximum sentence of 12 years, but Mr. Cuomo’s office is seeking to keep him in custody under a three-year-old state law that permits the civil confinement of sex offenders. Last Friday, a state judge in Buffalo, near where Mr. Williams has been jailed, ordered that he remain in custody pending the outcome of a civil confinement proceeding.

Now, State Senator Cathy Young of Olean is not only urging Cuomo to keep Williams in civil confinement but also proposing a new HIV-specific law for New York using Williams as a “poster child”. Back in February 2009, Suffolk County District Attorney Thomas Spota teamed up with Parents for Megan’s Law to advocate for the same thing.

Here is Senator Young’s press release, featuring her proposed law in full.

Senator Cathy Young (R,I,C – Olean) today renewed her call for a law making it a crime to knowingly spread the deadly HIV/AIDS virus to other unsuspecting people. Senator Young’s announcement comes in the wake of news that Nushawn Williams, the man who caused an AIDS epidemic in Chautauqua County in the 1990s, had completed his prison sentence and could be released to the public.

Senator Young also called on New York State Attorney General Andrew Cuomo to rigorously fight to ensure that Williams remains confined in a psychiatric facility and is not let back out into the community.

“People who knowingly use HIV/AIDS as a deadly weapon by purposely exposing others to the disease should be severely punished. This proposed law would provide the appropriate penalties for those who callously put other people’s lives in jeopardy, and will help further prevent the transmission of HIV/AIDS by keeping victims and prison supervisors informed when inmates test positive for the virus.”

State Attorney General Andrew Cuomo has announced that he is seeking, under New York’s Sex Offender Management Act, to have Williams confined in a state-operated psychiatric facility.

Senator Young said, “Nushawn Williams is the poster child for why we need a civil confinement law in New York State. I urge Attorney General Cuomo to do everything in his power to ensure that Williams remains confined. This deadly predator must not be returned to society.”

Senator Young’s legislation would create the crimes of reckless endangerment of the public health in the 1st and 2nd degrees for people who test positive for HIV/AIDS and then recklessly engage in conduct which results in transmission of HIV/AIDS to another unsuspecting person or puts that person at substantial risk of contracting HIV/AIDS.

The bill would also, among other provisions, required persons charged with a sex offense or reckless endangerment of the public health to be tested for HIV/AIDS and the results to be available to the victim (s) upon request.

The announcement in the fall of 1997, that Nushawn Williams had been informed of his HIV-positive status but continued to have unprotected sex with numerous women and underage girls in Chautauqua County, shocked the state and the nation. Williams was directly responsible for infecting thirteen victims statewide with HIV, two of whom passed on the virus to their children.

Williams completed his 12-year sentence for reckless endangerment and two counts of statutory rape last Tuesday, but continues to be held at Wende Correctional Facility in Alden.

While in prison, Williams tossed his HIV-tainted urine at another inmate, said he wanted to infect more women with HIV when he is released, fought with other prisoners, engaged in gang activity, and arranged to have drugs smuggled in and used them. He did not complete any sex offender or drug treatment programs.

In a required pre-release psychiatric evaluation, Williams was found to be antisocial, psychopathic, lacking in remorse and “prone to further sexual contact with underage individuals because of deficits in his emotional capacity to understand why this is wrong.”

Specifically, Senator Young’s legislation (S. 3407) would:

– Create the crime of reckless endangerment of the public health in the 1st degree, a class B felony, for those who are aware that they have tested positive for HIV/AIDS and then recklessly engage in conduct which results in transmission of the virus to another person who is unaware of the condition. Also creates the crime or reckless endangerment of the public health in the 2nd degree, a class C felony, for those who have tested positive and then engage in conduct which creates a substantial risk of the transmission of HIV/AIDS to another unwitting person;

– Create a class E felony for providing false information or statement regarding HIV status to a health care provider;

– Require all currently incarcerated persons and persons newly entering a correctional

facility be tested for the HIV virus;

– Provide that a person charged with a sex offense under article 130 of the State Penal Law or reckless endangerment in the 1st or 2nd degrees must be tested for HIV and the results of the test made available to the victim (s) and defendant upon request;

– Provide that upon the diagnosis of an inmate with HIV/AIDS, notice of the diagnosis must be provided to corrections personnel and others involved in the supervision and care of the inmate to that they can take appropriate measure to protect themselves and other inmates from exposure.

Mexico: Laws Criminalising HIV Transmission Are Discriminatory

I’m republishing this excellent article from the Inter Press Service providing the first overview I’ve ever seen of the individual Mexican state’s laws that can be used to prosecute people with HIV for not disclosing before sex. So far there have been no prosecutions.

Mexico: Laws Criminalising HIV Transmission Are Discriminatory

Inter Press Service – June 29, 2010
Emilio Godoy

MEXICO CITY, Jun 29 (IPS) – In 30 of Mexico’s 32 states there are laws penalising transmission of HIV, the AIDS virus, which are regarded by experts as discriminatory and ineffective in curbing the epidemic.

Under the Federal Criminal Code, passing on a sexually transmitted infection (STI) or incurable disease is a crime punishable by up to five years in prison, and this is mirrored in most of the states’ legislation, where fines and community service are sometimes included as penalties.

In two states, Guerrero in the southwest and Tamaulipas in the northeast, the laws refer specifically to HIV/AIDS.

The central states of Aguascalientes and San Luis de Potosí are the only ones that do not criminalise the transmission of STIs.

In Guerrero, article 195 of the state penal code establishes prison terms of three months to five years and fines of between 20 and 100 days of the defendant’s wages for anyone who is aware they have an STI or HIV and has sexual intercourse with someone who is unaware of their condition.

In Tamaulipas, article 203 provides for sentences of six months to six years, and fines of between 10 and 50 days of the defendant’s wages, for the same offence.

“This is an alarming situation. HIV transmission should not be criminalised. It is a discriminatory practice that lends itself to continued justification of attitudes like homophobia,” José Aguilar, the national coordinator of the non-governmental Red Democracia y Sexualidad, which focuses on sex education and advocating sexual rights, told IPS.

So far, these laws have not been enforced against HIV-positive people, which is why there have been no moves to repeal them.

“This legislation was intended to curb the HIV/AIDS epidemic; but clearly, it criminalises people living with HIV. It also violates a number of human rights, for instance the rights to privacy and sexual freedom,” Mario Juárez, at the department of analysis and proposals of the state National Council to Prevent Discrimination, told IPS.

This country of 107 million people has more than 200,000 people living with HIV — the second largest infected population in Latin America after Brazil — and an HIV infection rate of 0.4 percent. In the region, over two million people are living with the virus.

Criminalisation of the transmission of HIV/AIDS is on the agenda for the 18th International AIDS Conference scheduled for Jul. 18-23 in Vienna, Austria. It was also discussed at the 11th National Congress on HIV/AIDS and other Sexually Transmitted Infections, held last November in the southern Mexican state of Chiapas.

And at the 17th International AIDS Conference held in August 2008 in Mexico City, the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP) presented a global report on the growing criminalisation of HIV transmission.

Mexico’s national report for 2008-2009 on the fulfilment of the Declaration of Commitment on HIV/AIDS, adopted by the United Nations General Assembly Special Session (UNGASS) in 2001, does not mention the effects of these laws.

“It’s important to have prevention measures and awareness-raising campaigns, and to build a culture of respect. Civil society is always fighting discriminatory measures like these, and always struggling against the current,” said Aguilar.

In 2007, UNAIDS and the UNDP supported the publication of a document, “Ten Reasons for Opposing Criminalisation of HIV Exposure or Transmission“, drawn up by a coalition of organisations working on HIV/AIDS, human rights and gender issues.

“The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts,” the document says.

The 10 reasons include the ineffectiveness of such laws and their discriminatory and stigmatising nature, as well as the view that they “endanger and further oppress women.”

In Mexico the sex ratio among people living with HIV was 6.6 men for each woman in 1995, a proportion that dropped to 5.1 in 1996 and 3.6 in 2008, before increasing to four men for every woman in 2009.

Between 1995 and 2009, there were 640 homophobia-related murders, 143 of which were committed in the Mexican capital, according to the Federal District Commission on Human Rights.

“It’s an issue that just hasn’t been raised forcefully enough, and so the state has not reacted. Civil society organisations should take up the question and air it in public,” said Juárez, in regard to the laws and their possible consequences.

But so far there have been no legislative initiatives to eliminate the laws criminalising HIV transmission in Mexico.

The Global Fund to Fight AIDS, Tuberculosis and Malaria has approved a grant of 70 million dollars for a Mexican project aimed at high risk groups such as men who have sex with men, sex workers and intravenous drug users.

The Global Fund, based in Geneva, Switzerland, is a public-private partnership of international donors, the governments of the Group of Eight most powerful countries, and non-governmental organisations, devoted to preventing and treating AIDS, tuberculosis and malaria in needy countries.

Laos: Legislators consider HIV-specific law allowing “prosecution of wrongdoers”

A brief report from the German News Agency, dpa, suggests that leglislators in Laos are considering a new HIV-specific law that will include criminal exposure or transmission provisions.

The law would also introduce the “prosecution of wrongdoers,” the report said.

Some of Laos’ neighbouring countries, including Cambodia, China, and Vietnam already have statutes that allow for such prosecution, although Myanmar and Thailand have so far resisted such laws.

“As a transit country, the trend is towards more exchanges of people and goods between neighboring countries,” Minister of Health Ponmek Dalaloy told the assembly Wednesday.”There will be more hotels and entertainment venues offering sex services and injected drugs,” Ponmek said in support of the legislation, which would promote public education about the virus. “All these factors could cause the virus to spread unless strong prevention measures are put in place,” he argued.

Uzbekistan: Negligent liability now added to HIV-specific criminal law

The Uzbek government has amended article 113 of Uzbekistan’s Criminal Code to allow for easier prosecution for medical negliglence resulting in HIV transmission, according to a report on eurasianet.org.

Article 113, passed in 1999 and enacted in 2001, criminalises both knowing HIV exposure and transmission, both of which are punishable by imprisonment from eight to ten years. According to the report it had

previously provided punishment of fines or arrest from 6 months to 3 years for “deliberately endangering another person by infecting them with a venereal disease or AIDS.” The new law specifies criminal liability of arrest for 6 months or imprisonment up to 5 years for such infection “as a result of non-fulfillment or negligence of professional duties”. This includes failing to keep instruments sterile, and failure to follow proper procedures for blood transfusions and other medical procedures.

The amendment to the law was likely inspired by the trial of 13 doctors and medical workers whose negligence allegedly resulted in 147 children in the Namangan and Namangan regions becoming HIV-positive.

Fourteen of the children later died. Prosecutors found that doctors had failed to sterilize catheters, had reused disposable syringes and needles for taking blood samples, and also had falsified sterilization records and later destroyed evidence. Twelve were sentenced to prison for 5-8 years. Nine other medical employees from district hospitals in Namagan region were investigated, but the government has not made any information available and ferghana.ru could not learn their fate. This year, another group of doctors in Andijan were also charged with infecting patients with HIV.

Uzbekistan is not known for its HIV-friendly policies. Last summer, HIV educator and advocate, Maxim Popov, was jailed for seven years allegedly for mismanagment of donor’s funds but ostensibly for “corruption of youth” for “possessing and distributing HIV/AIDS-prevention publications that were deemed offensive to Uzbek sensibilities.”

Last month, Uzbek President Karimov’s daughter, Gulnara Karimova, who is also the Uzbek ambassador to Spain, attended a fundraiser in Cannes sponsored by the Foundation for AIDS Research (amfAR).

Robert Frost, executive directof of amfAR, said he had raised Popov’s case with Karimova [and] she had promised to “look into the situation,” but nothing further has been heard from Karimova.