Uganda: HIV law deters communities from seeking HIV services and should be reformed

Kaleba scolds Parliament: The AIDS law is poisonous

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

HEALTH  HIV/AIDS 

The founder of The Aids Support Organization (TASO), Noerine Kaleeba, has castigated members of parliament, saying they approved the AIDS law which is awash with numerous contentious clauses.

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

In 2014, Parliament endorsed the HIV and AIDS Prevention law, which came into effect the same year on July 31, when President Yoweri Museveni assented to it. The law seeks to provide for a legal framework geared towards the prevention and control of HIV.

Kaleeba said the contentious clauses (41 and 43) of the law provide for prosecution on grounds of attempted and intentional transmission of HIV, respectively. Among the provisions of the piece of legislation is criminal penalty for risk and intentional transmission of the virus.

The law requires mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus. Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

Speaking during the 29th Centre General Meeting (CGM) of TASO Mulago last week, Kaleeba regretted that these provisions in the law do not only stigmatise and discriminate against people living with HIV but also deter communities from seeking HIV services such as HIV Testing and subsequently HIV treatment.

TASO founder Noeline Kaleebu together with another founder Peter Ssebanja take to the flow during the 29 AGM for TASO Mulago 

She said that the clauses have fueled domestic violence in homes since the couples each blame one another for intentionally transmitting the virus. She said it is naïve to think that the person who tests first is the one who infects the other, it could be the other way round.

“Honestly, how can it be proven that indeed the HIV of the accuser was got from the accused? There is fear that public knowledge of one’s HIV positive status would be used against them due to personal differences,” she says.

She argued that this will ultimately discourage people from testing to know their status fearing that if found positive, their status could be used against them in courts of law at any point in time. It should thus be noted that one who does not know their status cannot be held liable under this law.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as criminals or potential criminals,” She says. Adding, “People will inadvertently live with the virus without accessing treatment and by the time they get to know their status it will be too late.”

Kaleeba says that both members of the previous parliament and the President (who signed the law) acted out of ignorance, and therefore made a mistake. She prays that the 10th parliament doesn’t have to keep the error, and this is urgent.

She also hailed the appointment of Winnie Byanyima as the new executive director of UNAIDS, saying it has come at the right time as we are closing the chapter of HIV/AIDS. She said Byanyima is an exceptionally good manager, and her appointment will elevate our country.

“She will definitely give a mirage to Uganda even for those who didn’t know Uganda, will come to know the country, whether they like it or not. The world will say the new UNAIDS ED comes from Uganda, and that way our reputation will be elevated. People living with HIV, therefore, need to double their efforts especially on issues of taking their medication,” she said.

“Strict adherence to treatment is where the war is. When you religiously adhere to your medication, your viral load becomes undetectable, meaning you will not transmit to others. Let us be exemplary and merit Bwanyima’s confidence.”

Responding to Kaleeba’s concerns, the guest of honour, Florence Nambozo, who is also woman MP for Sironko and chairperson HIV/AIDS committee, assured over 800 people who turned up for the CGM that she will talk to her fellow members of parliament to make sure that the law is amended.

She said Uganda is making good progress in the HIV fight and urged people living with HIV to stick to treatment since the ARVs are available and free in all government health facilities.

The Centre Program Manager TASO Mulago, Godfry Mafabi revealed that by end of July TASO Mulago had recorded a cumulative total of 7754 compared to last years’ 1145 in care against a target of 8371 to be achieved by September 2019.

Mafabi said that since the last AGM 918 clients were initiated on ART, of these 23 were children and 139 adolescents, and 756 were adults compared to 663 who were started on ART between 17 August- July 18. The suppression rate is currently at 97% surpassing the new national target of 95% target.

However, the institution is still faced with challenges of funding since the time the donors pulled out. The number of staff was also reduced at the facility to 27 from 75, which is a big setback. We are using expert clients to handle new clients, he said.

US: Charges of HIV exposure for spitting, despite absence of risks, prove that Georgia needs to modernise its HIV laws

HIV-positive man’s arrest for spitting called ‘plain and simple discrimination’

A 31-year-old man in Rome, Ga., was charged with exposing police officers to HIV after allegedly spitting on them, which HIV activists said highlights why the state needs to fix its HIV laws.

Authorities said JS was swearing at people and making obscene gestures near the intersection of Maple Road and Park Road on Aug. 25, according to the Marietta Daily Journal. S allegedly spat on officers after being apprehended by the Floyd County Police Department.

S was charged with criminal trespass, two misdemeanor counts of disorderly conduct, three misdemeanor counts of willful obstruction of police officers and three felony counts of assault on police officers by someone with HIV, according to the Floyd County Sheriff’s Office. He is being held without bond in the Floyd County Jail.

HIV cannot be transmitted by spitting, according to the Centers for Disease Control & Prevention. S’s arrest highlights why Georgia needs to modernize its HIV laws, according to Nina Martinez of the Georgia HIV Justice Coalition.

“In 2019, it’s not breaking news that saliva does not transmit HIV,” she told Project Q Atlanta. “And yet, the punishment for a person living with HIV who spits on a police officer is potentially 20 times greater than that for someone not living with HIV who commits the same offense. This is state-sanctioned discrimination, plain and simple.”

Malcolm Reid, another member of the Georgia HIV Justice Coalition, agreed with Martinez.

“Although we don’t know much about this specific case, we do know that there is no chance of HIV transmission through spit,” he said. “This proves once again that the laws in Georgia need to catch up to science. HIV is not a crime.”

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure. Activists and lawmakers have tried for years to modernize state law by decriminalizing HIV. 

A Republican lawmaker introduced an HIV decriminalization bill on the final day of this year’s legislative session. It will be back in the 2020 session in January.

An Athens man was arrested in July after allegedly having sex with a woman without informing her he had HIV. He was charged with reckless conduct by a person with HIV. He remains in Athens-Clarke County Jail nearly two months later on a $3,000 bond, according to the Clarke County Sheriff’s Office.

A gay Atlanta man was arrested for HIV exposure in South Carolina in 2015. He claimed he disclosed his status before having sex with the alleged victim. The charges were later dropped.

Uganda: Recent case of woman, unjustly jailed for allegedly injecting a baby with HIV, highlights the need to act against HIV criminalisation

Woman Who was Wrongfully Jailed for Premeditated HIV Infection Speaks Out
“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

By Kampala Post Reporter

On the evening of August 29, 2019, Sylvia Komuhangi walked out of the Gulu High Court premises accompanied by a female prisons security official. She had a smile plastered on her face. It was not a beaming smile. It was a restrained smile, the kind of smile that projects more relief than joy.

The 32-year-old secondary school teacher, who was wrongfully sentenced to two years in jail for injecting a baby with HIV-infected blood, walked a 50-meter stretch to the parking lot area where her lawyer, Immaculate Owomugisha waited. Komuhangi and Owomugisha shook hands, hugged and clasped their hands around each other’s waist for a while. The journalists present at court took pictures of the two, and then Owomugisha stepped back to let Komuhangi share her thoughts with the media.

With half a dozen video cameras and audio recorders in position, Komuhangi responded to the first question asking how it felt to regain her freedom after eight months in Kitgum Central prison, 805 kilometers away from her home in Rukungiri.

“I feel so happy,” she said. “It was so difficult.”

A Friendly Visit Gone Wrong

On December 27, 2018, Komuhangi was arrested and charged at Kitgum Magistrate’s Court with the offence of committing a “negligent act likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda.”

During her trial, at the Magistrate’s Court, the prosecution stated that at about 9 P.M. on December 26, 2018, Komuhangi carried the alleged victim away from her babysitter to the bedroom and then returned later, with the baby crying.

The prosecution continued that when the mother, Eunice Lakot, examined her baby, she found swellings in both armpits. She took the baby to Kitgum hospital for diagnosis, where doctors reportedly confirmed that the swellings were caused by injections. Consequently, a medical professional tested Komuhangi for HIV, and she was found positive. Next, the child was given Post-exposure Prophylaxis (PEP), an antiretroviral medication that prevents infection to anyone exposed to HIV during the first ninety-six hours. Subsequently, Komuhangi was arrested.

After regaining her freedom, Komuhangi narrated that she had traveled to Uganda’s northern region from the Kampala for a tour in late December 2018, and spent several nights at a friend’s house in Kitgum Town. After a visit to the Kidepo Valley National Park, she returned to Kitgum Town to find her friend’s home surrounded by local authorities. “We were arrested there and then,” she narrates.

“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

The conviction was handed out by the Chief Magistrate of Kitgum, Hussein Nasur Ntalo, on Thursday, July 4th. On Komuhangi’s release, Lakot, the mother of the baby, shared that the most recent results showed that her baby is HIV negative. Lakot, nevertheless, said she was not happy with the High Court’s ruling, but the baby’s maternal grandmother, Rose Oryem, said they would not challenge the court’s decision.

Komuhangi’s story was covered by leading media houses in the country, including the Daily Monitor, the country’s leading independent media house. It caused a public uproar in a country whose laws make it a crime to “willfully and intentionally” transmit HIV and also give the legal right to medical staff to disclose a patient’s HIV status to others without his or her consent.

In fact, Komuhangi is not the first convict as a result of those laws. In 2014, a 64-year-old nurse in Kampala, Rosemary Namubiru, was accused of injecting a toddler with her HIV-positive blood in the process of administering treatment. Namubiru was put on trial amid pressure from several local and international organisations, including the Global Commission on HIV and the Law, who castigated the quality of the media reporting in the immediate aftermath of her arrest.

“The media engaged in unabashed and unverified sensationalism. Rosemary was branded a ‘killer,’ guilty of maliciously and intentionally attempting to transmit her own HIV infection to a child,” said the Commission’s statement.

“Subsequent to those allegations, the baseless rumour-mongering escalated: various news reports branded Rosemary a fiendish serial offender; a nurse who was mentally ill; a nurse without credentials…. Sadly, we’re convinced that the charge was originally laid because of the media frenzy,” added the statement.

Taking Action Against HIV Criminalization

When Komuhangi’s case hit the media headlines, it took a similar tone to that of Namubiru. As a result, it caught the eye of the Uganda Network on Ethics, Law and HIV/AIDS (UGANET), a non-governmental organisation whose goal is to advocate for the development and strengthening of an appropriate policy, legal human rights and ethical response to HIV/AIDS in Uganda.

Owomugisha, who is the UGANET head of advocacy and strategic litigation, says cases that involve HIV are not subjected to sufficient rigor, with sentiments often carrying the day at the expense of proper investigation, prosecution, and objectivity in court.

“Most convictions are based on unfair, inaccurate and overblown facts,” she says. “The media usually joins to hype up stories [and] this sensationalism crowds out good judgment, resulting in a miscarriage of justice.” Speaking particularly about Komuhangi’s case, Owomugisha said the media continued a pattern of HIV criminalization by condemning the suspect even before the initial trial.

“Several media houses were set on the loose name-calling such as “murderer and killer.” The media buzz was everywhere, including on the radio airwaves for days. This undressed Komuhangi of all dignity,” she said.

UGANET decided to offer legal representation to Komuhangi, resulting in a swift appeal against her conviction. Within two months from the first time the appeal was first lodged before the Gulu High Court, she had regained her freedom. Justice Stephen Mubiru, who handled the appeal, quashed the conviction, saying that forensic tests showed that DNA traces found on the cloth that Komuhangi used to wrap the baby belonged to her but did not contain any blood.

“I could not find any connection between her piece of cloth and the blood said to have been injected into the baby because the swelling found on the baby could have been a mere rash,” he added, according to a detailed report in the Daily Monitor newspaper.

Another of Komuhangi’s lawyers, Louis Odong, said the ruling sent a message to people who criminalize HIV victims not to engage in the practice while Owomugisha added that the court’s decisions had restored “dignity to Sylvia Komuhangi and many like her.”

“We commend the court decision for setting an example that if courts scratched below the surface news, they would realize HIV positive status alone does not equate to malicious intent,” she said.

The Executive Director of UGANET, Dora Kiconco Musinguzi, whose organisation works with 32 other HIV law and human rights groups, said the criminalization of people living with HIV, not only undermines the HIV response by compromising public health and human rights but that there is also no evidence of benefit from those laws.

“As a community of HIV actors, we remind the nation that we cannot end AIDS, or reach epidemic control with HIV criminalization coupled with heightened HIV discrimination. Human rights and dignity need to be accorded to all. We need to stop stigma and end HIV criminalization,” she stated.

Kiconco said that in light of court’s decision, the community of people living with HIV and organisations that UGANET works with recommend that the Constitutional Court should fast track the hearing of Petition No. 24 of 2016, through which their issues were presented to the country’s second-highest judicial organ for interpretation.

“More lives continue to be adversely affected by the HIV criminal law. Justice delayed is justice denied,” she added. Kiconco also called on Parliament to re-visit the HIV criminal laws with a view to law reform as “some of the laws are unfair, vague and will encourage trumped-up charges often.”

She said the law had been diverted from its original intent to create an environment where HIV is criminalized and where complications arise for persons living with HIV. The final appeal from Kiconco was directed to actors at all levels of the justice sector to increase rigor while handling HIV-related cases and to the media fraternity to exercise restraint while reporting on matters regarding the HIV criminal law.

“Our Constitution espouses a key principle – innocent until proven guilty. Abusing victims with names such as ‘monster and murderer’ is wrong. This jeopardizes their chance for a fair hearing,” she emphasized.

US: “People living with HIV are being prosecuted because the law is not keeping pace with science”

Living With H.I.V. Isn’t a Crime. Why Is the United States Treating It Like One?

States’ nondisclosure statutes, used to persecute marginalized populations, discourage testing and treatment.

By Chris Beyrer and 

Dr. Beyrer is an infectious disease epidemiologist. Mr. Suttle was convicted under Louisiana’s H.I.V. criminalization statute.

Michael Johnson, a former college athlete convicted in 2015 of not disclosing his H.I.V.-positive status to sexual partners, was released on parole from a Missouri prison last month. Mr. Johnson, who is gay and black, had maintained his innocence, and there was no proof that he had transmitted the virus. And yet that didn’t seem to matter in the court of public opinion, or in the court of law.

On Dec. 20, 2016, a Missouri appeals court ruled that Mr. Johnson’s trial had been “fundamentally unfair.” H.I.V. nondisclosure is inherently difficult to prove yet seemingly easy to condemn, as shown time and again by judges and juries worldwide. Nowhere is this truer than in the United States, where people with H.I.V. are still being prosecuted under outdated or misapplied laws.

During the early years of the AIDS epidemic, an H.I.V. infection was tantamount to a death sentence. Through major advances in antiretroviral therapies, H.I.V. is now a manageable, chronic condition. A person whose infection is newly diagnosed can expect to live a near-normal life span, and most seropositive people will never progress to further AIDS-defining complications.

Today we also know much more about how difficult H.I.V. is to spread. When used correctly, condoms are highly effective means of prevention. Research has also shown that when people are treated with antiretroviral drugs so that their viral load cannot be detected by standard blood tests, the virus cannot be transmitted to sexual partners. This true of both heterosexual and male same-sex couples. Simply put, scientific evidence on actual harm and transmission does not support the singling out of people living with H.I.V. through the heavy hand of criminal law. 

Mr. Johnson’s trial was rightly deemed unjust due to prosecutorial misconduct. But injustice remains deeply entrenched within the society that created the laws that criminalized his actions in the first place. At least 29 states, mostly in the Midwest and Deep South, have laws that make H.I.V. nondisclosure, exposure or transmission a crime.

These laws constitute one more layer of marginalization for those whom the criminal justice system already disproportionately prosecutes, convicts and harshly sentences: black people, trans women, migrants, people who sell sex, people who inject drugs and L.G.B.T.Q. youths. Such laws have not been shown to reduce H.I.V. transmission, but they do discourage those at risk from getting tested, which undermines public health rather than protects it.

The United States has the unfortunate distinction of being among the countries most aggressively prosecuting people living with H.I.V., after Russia and Belarus, according to a recent report by H.I.V. Justice Worldwide. In these places, people living with the virus could be just one disgruntled partner away from finding themselves in a courtroom.

In the United States there are thousands of cases where H.I.V.-specific charges were filed, or people faced heightened charges or punishments simply because they had the virus. We don’t know how many others have been threatened or blackmailed with criminal prosecution — the law becomes a weapon in abusive relationships — but those numbers are surely considerable. In almost all cases, this all-too-real risk is greater than any (highly unlikely) risk of actual H.I.V. transmission.

Prompted by concerns that the law was being applied contrary to scientific evidence, last summer a group of 20 H.I.V. scientists from around the world issued an expert consensus statement intended to assist experts involved in cases of alleged H.I.V. exposure, transmission or nondisclosure. They urged governments and people working in the justice system to ensure that the significant advances in H.I.V. science are taken into account in H.I.V.-related legal cases.

As the global scientific community continues to learn more about the disease and its transmission risks, lawmakers and criminal justice systems must similarly evolve their thinking to align with evidence, not fear. Scientists and clinical providers have obligations here, too. They should use their knowledge to support law reform efforts and provide expert testimony, using the consensus statement to educate and advocate change. No one should be forced to endure what Michael Johnson, and so many others living with H.I.V., have had to suffer.

Chris Beyrer is a professor in public health and human rights at the Johns Hopkins Bloomberg School of Public Health.

Robert Suttle is the assistant director of the Sero Project, which works to end unfair H.I.V.-related prosecutions.

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Canada: Justice Committee report recommends wide-ranging reforms to HIV criminalisation, including removing HIV non-disclosure from sexual assault law

Yesterday, the House of Commons Standing Committee of Justice and Human Rights released a ground-breaking report “The Criminalization of HIV Non-Disclosure in Canada” recommending that the Government of Canada works with each of the Canadian provinces and territories to end the use of sexual assault law to prosecute allegations of HIV non-disclosure.

According to a press release issued by our HIV JUSTICE WORLDWIDE partners, the Canadian HIV/AIDS Legal Network:

People living with HIV currently face imprisonment for aggravated sexual assault and a lifetime designation as a sex offender for not disclosing their HIV status to sexual partners, even in cases where there is little or even zero risk of transmission. This means a person engaging in consensual sex that causes no harm, and poses little or no risk of harm, can be prosecuted and convicted like a violent rapist. We welcome the Committee’s recognition of this unjust reality and their call to end the use of sexual assault laws. We and our allies have spent many years advocating for this critical change.

The report also recommends that Canada limits HIV criminalisation to actual transmission only. The Legal Network notes:

But we must go further: criminal prosecution should be limited to cases of intentional transmission as recommended by the UN’s expert health and human rights bodies. Parliament should heed such guidance. Criminal charges and punishments are the most serious of society’s tools; their use should be limited and a measure of last resort.

However, one of the recommendations that the Legal Network takes issue with is the recommendation to broaden any new law to include other infectious diseases.

Infectious diseases are a public health issue and should be treated as such. We strongly disagree with the recommendation to extend the criminal law to other infectious diseases. We will not solve the inappropriate use of the criminal law against people living with HIV by punishing more people and more health conditions.

Currently, there is a patchwork of inconsistent approaches across each province and territory. Only three provinces — OntarioBritish Columbia and Alberta — have a formal policy in place or have directed Crown prosecutors to limit prosecutions of HIV non-disclosure, and they all fall short of putting an end to unjust prosecutions.

A December 2018 federal directive to limit HIV criminalisation, which solely applies to Canada’s territories, is already having some impact — in January 2019 it led to Crown prosecutors in the Northwest Territories dropping a wrongful sexual assault charge against a man living with HIV in Yellowstone. “We followed the directive and chose not to prosecute,” said Crown attorney Alex Godfrey.

Other positive recommendations in the report include:

  • An immediate review of the cases of all individuals who have been convicted for not disclosing their HIV status and who would not have been prosecuted under the new standards set out in the recommendations of the Committee.
  • These standards must reflect “the most recent medical science regarding HIV and its modes of transmission and the criminal law should only apply when there is actual transmission having regard to the realistic possibility of transmission. At this point of time, HIV non-disclosure should never be prosecuted if (1) the infected individual has an undetectable viral load (less than 200 copies per millilitre of blood); (2) condoms are used; (3) the infected individual’s partner is on PrEP or (4) the type of sexual act (such as oral sex) is one where there is a negligible risk of transmission.”
  • And, until a new law is drafted and enacted (which is only likely to happen if the current Liberal Government is re-elected in October), there should be implementation of a common prosecutorial directive across Canada to end criminal prosecutions of HIV non-disclosure, except in cases where there is actual transmission.

The report also recommends that any new legislation should be drafted in consultation with “all relevant stakeholders including the HIV/AIDS community”, which the Legal Network also welcomed.

The report is the result of a study of the ‘Criminalization of Non-Disclosure of HIV Status that ran between April and June 2019. Many Canadian experts testified as key witnesses to help MPs gain insight into why Canada’s current approach is wrong. HIV JUSTICE WORLDWIDE also submitted a brief to the committee, providing international context to Canada’s extremely severe approach to HIV non-disclosure.

The Legal Network concludes:

The next step is actual law reform. The report makes clear that change to the criminal law is needed. Any new legal regime must avoid the harms and stigma that have tainted the law these past 25 years.

Colombia: Constitutional court overthrows HIV criminalisation article

Court buries article criminalizing the spread of HIV
Google translation, for article in Spanish, scroll down.
 
Among the reasons for the decision, the high court stated that the rule “stigmatized” a population.
Three reasons led the Constitutional Court on Wednesday to overturn Article 411 of Law 599 of 2000, which penalized the spread of the Acquired Immunodeficiency Virus, HIV, and of Hepatitis B.
 
A first reason was that this rule was not a necessary and proportional measure. Second, it stigmatized a population. And the third is that there is another rule in the Penal Code that already typifies the spread of epidemics.
 
The Court’s decision accepted several of the plaintiff’s arguments. According to the plaintiff, the rule violated the rights to equality and restricted the free development of personality, in particular sexual freedom. 
 
The norm established that there would be a prison term of 6 to 12 years for those who, knowing they are HIV positive or sick with hepatitis B, “carry out practices by means of which they can contaminate another person, or donate blood, semen, organs or, in general, anatomical components”.
 
According to the lawsuit, this penalized the fact that a person living with these diseases had sex, and made it a crime regardless of whether that person took the preventive measures that make the transmission of diseases unlikely, such as antiretroviral treatments and others.
 
The plaintiff argued that, although the purpose of this measure was to protect public health, this did not justify prohibiting a population group from freely expressing its sexuality, and stressed that there would be no effect when there were consensual relationships in which measures were taken to prevent contagion.
 
Regarding the violation of equality, the lawsuit held that the article only referred to and penalized people with HIV or hepatitis B, and not others with potentially contagious and delicate diseases.
 
Other views
As part of the debate on this law, the Court received 15 statements from different organizations, ministries, universities, and even from the Constitutional Court of South Africa – against it – to take into consideration. And there were almost as many arguments in favour as against. 
 
The Colombian League for the Fight against AIDS supported the lawsuit because it considered that the law did violate rights, added that laws that penalize exposure to HIV leave the entire burden of prevention on people living with it and said that the real challenges were more education and better access to medical testing and counseling services.
 
The statement sent by the Ministry of Justice gave reason to the plaintiff that the rule was discriminatory because it was addressed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B. It also argued that there was no justification for the rule being for people with these two diseases and not for others who are aware of having different risks of infectious-contagious diseases. 
 
However, faced with the restriction of sexual freedom, the Ministry of Justice considered: the rule “does not violate the right to the free development of the personality, but is limited to establishing the penal consequences that its abusive and harmful exercise entails with respect to the rights of others and the community”. 
 
The Ministry of Health indicated, on the contrary, that the article did not violate either the right to equality or the free development of the personality and asked to leave it as it was.
 
The Attorney General’s Office agreed with the plaintiff that the rule punished the fact of having sex even when there was no transmission of the disease, which, says the Public Prosecutor’s Office, is not true. For the Attorney General’s Office, the rule was clear that in order for the crime to be configured there must be an intention to cause harm by engaging in practices that could end in contagion. The Public Prosecutor’s Office asked the Court to declare itself inhibited.

Corte tumba artículo que penalizaba la propagación del VIH

Entre las razones, el alto tribunal dijo que la norma “estigmatizaba” a una población.

Tres razones llevaron este miércoles a la Corte Constitucional a tumbar el artículo 411 de la ley 599 del 2000 que penalizaba la propagación del Virus de Inmunodeficiencia Adquirida, VIH, origen al sida, y la Hepatitis B.

Una primera razón es que esta norma no era una medida necesaria y proporcional. La segunda, estigmatizaba a una población. Y la tercera es que hay otra norma en el  Código Penal que tipifica ya la propagación de epidemias.

La decisión de la Corte acoge varios argumentos del demandante. Según este, la norma vulneraba los derechos a la igualdad y restringía el libre desarrollo de la personalidad, en particular, la libertad sexual. 

La norma establecía que habría prisión de 6 a 12 años para quien, sabiéndose portador del VIH o enfermo de hepatitis B, “realice prácticas mediante las cuales puedan contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.

De acuerdo con la demanda, esto penalizaba el hecho de que una persona que viviera con estas enfermedades tuviera sexo, y lo convertía en delito sin importar si se esa persona tomaba las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.

El demandante sostenía que, aunque el fin de esta medida era proteger la salud pública, esto no justificaba prohibirle a un grupo poblacional expresar libremente su sexualidad, y resaltaba que no habría afectación cuando se tuvieran relaciones consensuadas en las que se tomaran medidas para prevenir contagios.

Sobre la vulneración a la igualdad, la demanda sostenía que el artículo solo se refería y penalizaba a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.

 

Otras voces

Como parte del debate sobre esta norma, la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica- en contra-, para alimentar sus consideraciones. Y hubo casi tantos argumentos a favor como en contra. 

La Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que con la norma sí se vulneraban los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.

El concepto enviado por el Ministerio de Justicia le dio la razón al demandante en que la norma es discriminatoria pues estaba dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B. También argumentó que no se advertía justificación para que la norma fuera para personas con esas dos enfermedades y no para otras que conscientes de tener enfermedades infectocontagiosas riesgosas distintas. 

Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró: la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”. 

El Ministerio de Salud indicó, al contrario, que la norma demandada no vulneraba ni el derecho a la igualdad ni el libre desarrollo de la personalidad y pidió dejarla como estaba.

La Procuraduría coincidió con el demandante en que la norma castigaba el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma era clara en que para que se configurara el delito debía existir una intención de causar daño realizando prácticas que podían terminar en contagio. El Ministerio Público pidió a la Corte declararse inhibida.

US: HIV criminalisation laws that require people convicted to be on the sex offender registry are ineffective and stigmatising

THE PUSH TO END ‘PUNISHMENT FEVER’ AGAINST PEOPLE WITH HIV

Advocates say laws that land people with HIV on the sex offender registry are outdated and dangerous.

Every five years, Mark Hunter has to pay around $300 to have his picture displayed in the newspaper and notices mailed to his neighbors, informing them that he is a sex offender. While on parole, he said, he pays about $60 a month in fees and has to attend a sex offender treatment class. His crime? In 2008, he was convicted of failing to tell two ex-girlfriends that he was HIV-positive.

Though neither partner contracted HIV, Hunter was still convicted under Arkansas’s HIV exposure law, which requires those who know they are HIV-positive to disclose their status to sexual partners. Sentenced to a dozen years in prison, he was released in 2011 after serving almost three.

But now, he must register as a sex offender, incurring the same obstacles, humiliation, and costs many others on registries face.

In Louisiana, where he now lives, Hunter’s driver’s license has “sex offender” written in capital letters under his photo, per the state’s registry requirements.

“When I saw it on my license, that was one of the most hardest things ever,” said Hunter, now 44. “Those two words on my license are still a hindrance to the life I want to live.”

Lousiana, Arkansas, Ohio, South Dakota, Tennessee, and Washington State require, or authorize courts to require, those convicted under HIV criminalization laws to be on the sex offender registry, according to the Center for HIV Law and Policy. Advocates, who condemn the statutes as ineffective, stigmatizing, and unscientific, are working to modernize the laws in the courts and state legislatures.

But even some of the fixes fall short, they say, including an amendment to Louisiana’s law that was enacted last year that removed biting and spitting as specifically identified means of transmission. Disclosure of HIV status is still required.

“We do not need to be punishing people through the criminal law,” said Robert Suttle, assistant director of the Sero Project, which advocates HIV criminalization law reforms. “This is a public health issue.”

 

Hunter, a hemophiliac, was diagnosed with HIV in 1981, at age 7. He said he and his family largely kept his status a secret.

“People were treated harshly who had this disease,” said Hunter. “They were treated like outcasts.”

But though the public’s perception of HIV has evolved, being on a sex offender registry carries a similar stigma. After he was released from prison in 2011, Hunter settled in Louisiana. He has found it difficult to find work, he said. Louisiana’s sex offender registry law requires him to register any address where he stays longer than seven days.

In the 1980s and 1990s, a flurry of HIV criminalization laws were enacted, many of which remain on the books. Today, 26 states have HIV-specific laws that criminalize exposure, according to the Centers for Disease Control and Prevention.

HIV became “swept up” in the era’s “punishment fever,” explained Trevor Hoppe, author of “Punishing Disease: HIV and the Criminalization of Sickness.”

“Legislators around the country were already in the mode of punishment,” said Hoppe. “It was kind of a general approach they were taking to many social problems.”

Because there is no national database that tracks prosecutions, it is difficult to know how many people have been charged, convicted, or placed on the registry as a result of HIV criminalization laws, according to Catherine Hanssens, executive director of the Center for HIV Law and Policy. A comprehensive study of Florida’s criminalization laws found that more than 600 people had been arrested for an HIV-related offense between 1986 and 2017.

Scientistspsychologistshealthcare providers, and HIV-positive advocates have condemned the laws over the decades since they were enacted, noting that there has been no association found between criminalization statutes and lower transmission rates.

“People with HIV are not out there passing HIV along in some intentional way,” said Dorian-gray Alexander, a member of the Louisiana Coalition on Criminalization and Health who is living with HIV. More than a third of the time, the transmission of HIV is between people who don’t know their status.

HIV criminalization statutes rarely take into account advances in treatment, condom use, or actual risk of transmission, according to advocates. For instance, in Arkansas, where Hunter was convicted, it is a felony to sexually penetrate another person without first disclosing one’s HIV-positive status. However, penetration is broadly defined as an “intrusion, however slight, of any part of a person’s body or of any object into a genital or anal opening of another person’s body.”

Cheryl Maples, an Arkansas attorney, plans to file a petition in federal court in the coming weeks that challenges the law’s constitutionality, she told The Appeal. Maples, whose uncle died of AIDS-related complications, has defended several people charged with HIV exposure. The state attorney general’s office did not respond to a request for comment.

“It is basically a crime that is against the LGBT community and other communities that are in disfavor,” said Maples. “People that are being charged with this are not predators.”

 

In Tennessee, sexual contact is not even required under the state’s aggravated prostitution statute. A person is in violation of the law if he or she knows they are HIV-positive and works “in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity.” Those convicted are placed on the sex offender registry and face up to 15 years in prison.

People convicted of aggravated prostitution can petition to be removed from the registry if they were victims of sexual violence, domestic abuse, or human trafficking. Last year, then-Governor Bill Haslam signed into law a bill that allows those convicted as juveniles with aggravated prostitution to have their records expunged if they were victims of human trafficking.

But regardless of why or when someone engages in sex work, sex workers living with HIV need “services, not handcuffs,” said Alex Andrews, co-founder of Sex Workers Outreach Project (SWOP) Behind Bars.

“When you put someone on a registry for having HIV, that’s public information,” said Andrews. “Put sex work on top of that and you have a really bad situation for survival.”

The state’s aggravated prostitution statute and HIV exposure law are both felonies that require sex offender registration. That’s different from the way Tennessee law governs the disclosure of other infectious diseases. It is a misdemeanor to engage in “intimate contact” without disclosing a diagnosis of Hepatitis B or C, but failure to disclose those diseases does not require sex offender registration.

 

As attempts are made to reform HIV criminalization laws, advocates worry about changes that tie criminalization solely to a person’s risk of transmission. Doing so, they warn, could marginalize those without access to treatment and those with detectable viral loads. (Those with undetectable viral loads, like Hunter, have “effectively no risk” of transmitting the virus, according to the CDC.)

Repealing HIV-specific laws is often insufficient, they add, because people can still be exposed to harsh punishments. People in states without such laws have been charged with attempted murder or assault with a deadly weapon for a range of incidents including spitting. (HIV cannot be transmitted through saliva.)

Modernizing statutes should focus on a person’s intent, and conduct likely to cause harm, not a failure to disclose, said Hanssens, the HIV law and policy center executive director. Any reform must also cease placing people on the registry, a practice she called irrational and unconscionable.”

“You cannot treat consensual sexual contact as a criminal wrong simply because that particular person happens to have one or another disease,” said Hanssens. “It’s a pointless and dangerous and stigmatizing response to what is a public health issue.”

Hunter has joined HIV-positive advocates from across the country in speaking out about the harms of criminalization and the sex offender registry in particular. He also works to reduce the persistent stigma and fear surrounding HIV by helping young people tell their families they are HIV-positive.

“They need to understand that it’s not a death sentence,” said Hunter. “I’m married. My wife is not HIV-positive, and we are trying to have a child.”

He has started a nonprofit organization dedicated to HIV and AIDS education in his brother’s name, the Dr. Michael A. Hunter Foundation. His brother, like Hunter, was a hemophiliac who contracted HIV from a blood transfusion. He died from AIDS-related complications in 1994.

“I’m Mark, and I happen to be HIV-positive,” said Hunter. “I had to embrace that, and once I embraced it, I let go of a lot of the pain.”

Nigeria: Akwa Ibom State intends to put in place HIV criminalisation law

Source: The Sun Nigeria on March 18, 2019

HIV status: Akwa Ibom plan law against spread

Akwa Ibom State government has expressed an intent to enact a law that would enable it prosecute persons found to wilfully infect or transmit HIV virus to another person.

This comes in the wake President Muhammadu Buhari unveiling the Nigeria AIDS Indicator Survey and Impact Survey (NAIIS) last week, which revealed that the state is top on the HIV prevalence scale with 5.5% against the national prevalence of 1.4% for the age group of 15 to 64 years.

The state Commissioner for Health, Dr Dominic Ukpong, while speaking with the press on Monday in Uyo in reaction to the NAIIS result, said other long term measures to be adopted to bring the prevalence down in the state would be to lead advocacy to the legislative arm of government to put in place laws to protect PLHIV and to curb transmission of new infections by expeditiously deliberating and passing the bill on Anti-stigma and Discrimination against PLHIV/AIDS.

 “We will lead advocacy to local government councils in the state to lend regular and dedicated support for HIV intervention and other health programmes in their respective local government areas,”Ukpong said as one of the long term measures.

But for the time being, he said the state government would increase access to testing services by providing enough rapid-test kits so that all primary and secondary health facilities in the state would be able to provide free HIV testing services to the citizens.

The state government, Ukpong said, would also increase “access to treatment by creating new comprehensive treatment centres in one senatorial district to be fully supported by the state government; this will complement other comprehensive treatment centres supported by international partners.

The commissioner attributed the high prevalence of HIV in the state to many factors.

“The location of the state with a long coast line of 129 km stretching from Ikot Abasi to Oron, an airport, good road network, peaceful environment, friendly disposition of our people, good cuisines and fast-developing economy have made our state the destination of choice for both national and international visitors. All these are not without attendant public health consequences, like transmission of communicable diseases which HIV/AIDS cannot be excluded,” he said.

He also said the seemingly scaling down of HIV/AIDS campaign in the state was due to limited healthcare resources shared to other equally compelling demands like Ebola and Lassa fever, which were no issues some years ago.

“The current HIV/AIDS situation in the state calls for a more robust multi-sectoral response towards curbing the epidemic in the state.  Consequently, the state government will step up collaboration through the Akwa Ibom State Agency for the Control of AIDS (AKSACA) and Akwa Ibom State HIV/AIDS and STI Control Programme (SASCP) with implementing partners. Faith based organisations, PLHIV/AIDS, and other stakeholders towards proffering immediate and long-term interventions for the state.

“We all know HIV is transmitted mainly by unprotected sexual contact with infected persons hence, Akwa Ibomites should imbibe the simple ABCs of HIV prevention – Abstinence, being faithful to one’s partner, correct and consistence condom use and refraining from the use of illicit drugs which could be injectable or otherwise.

“I therefore urge Akwa Ibomites to stand up and fight to stop the transmission of HIV virus; we have a part to play no matter how little,” Ukpong said.

Belarus: Experience of serodiscordant couple in Belarus demonstrates how punitive legislation can harm HIV prevention efforts

Published in echo.msk.ru on March 1, 2019 – Google translation, for from Russian article please scroll down. 

A prison awaits us: what are discordant couples in Belarus afraid of?

Ilya and Eugene – a gay couple from Belarus. They have been together for several years and call themselves an “interesting couple,” because they live in a discordant relationship. Recently, during sex, they broke a condom. They decided to start post-exposure prophylaxis (PEP). It would seem that everything was simple: within 72 hours after the risk of infection, you need to start taking pills. Moreover, the steps are known: go to the doctor, explain the situation, get the pills, drink a month’s course – and you can forget about the problem. But due to the peculiarities of local legislation, it is much more difficult to get help than it seems at first glance. AIDS.CENTER figured out what Belarusian discordant couples face and what are the ways out of the current situation in the republic.

“As soon as our condom broke, we consulted with friends and went to Minsk [to the infectious diseases hospital] on Kropotkin Street for a PCP,” recalls Ilya. The doctor listened to him and with a “very dissatisfied face” asked to disclose the name of the partner. Motivated by the fact that a young person must be registered, and in such cases, the medical officer “must report to the law enforcement authorities.”

The man asked if such a law had not been repealed, but they explained to him that it remains in force and that the partner would incur criminal liability. Of course, the man refused to tell him about Evgeny, but the doctor insisted: “How do I know? Maybe you are slandering someone? Suddenly you will now go to sell the medicines that I will give you? ” The pill was not given.

Indeed, in the Criminal Code of Belarus there is Art. 157 (Human immunodeficiency virus infection), according to which, if a person deliberately put another in danger of becoming infected with HIV, he can receive up to a prison term. It is noteworthy that the article provided for criminal liability, even if the injured party had no complaints against the defendant. And infectious disease doctors can initiate proceedings. Moreover, Belarus together with Russia are leaders  in the criminal prosecution of people with HIV. For example, in 2017, 130 criminal cases were initiated under Art. 157 of the Criminal Code of the Republic of Belarus.

However, in the near future, legislation in the Republic may be relaxed, for example, on December 19, 2018, an amendment was made to decriminalize transmission of the disease. According to this, people with a diagnosis will no longer be prosecuted “for putting the threat of HIV transmission and HIV infection” on their partners if they have notified them in advance about their diagnosis. Now the bill has been submitted to the Council of the Republic and the president for approval.

“There are still a dozen of prohibitions  for people with HIV-positive status in the legislation of Belarus ,” says Irina Statkevich, chairman of the local HIV-service organization “Positive Movement”. – In 2018, they made positive changes to the standard “Children living with HIV are prohibited from playing sports.” It is noteworthy that the children themselves living with HIV initiated the changes in the norm, namely, they went to the meeting at the Ministry of Health. ”

In addition, before people with HIV were forbidden to adopt children, now this article has been revised, but still there are some nuances in the application.

Who is responsible for health?

Ilya is convinced that he must bear responsibility for his own health. Once he himself worked as an HIV counselor and conducted rapid testing, so he knew that there was very little time for PEP after unprotected intercourse, only three days.

“In my opinion, the doctor was very unprofessional,” he complains. “The reason for concern was that at that time my young man and I didn’t know exactly his viral load.”

“In Belarus, as in many other countries, there is no document that would clearly define the indications for postexposure prophylaxis, and this is due to objective difficulties,” says infectious disease doctor Nikolai Golobrudko.

According to him, the PCP is provided in cases of occupational risks, for example, if a nurse injected with a syringe, which took blood from an HIV-positive patient. Or in some domestic situations (for example, the child found a syringe in the sandbox and injected with them) or at certain sexual contacts (for example, after rape).

Statkevich agrees with the lack of regulations for issuing such tablets. “Therefore, the requirement to name your partner in this regard is unlikely to exist,” she said, assuming that the doctor could ask the partner’s data for risk assessment. “The doctor could look at the viral load information in the partner’s registration card and thus understand how much the situation is really emergency.”

Ultimately, Ilya received postexposure prophylaxis, but not from doctors who were supposed to provide it, friends from Russia helped and promptly transferred it.

Soon he will go for tests, and if he is around, he wants to go to an appointment with the very same doctor: “Since it was she who jeopardized my health and my life. Requirements of this kind from a doctor, in my opinion, violate the law on medical confidentiality; disclosing a person’s HIV status can be a criminal offense. After all, there are people who will use this information far from for good purposes. ”

How to change the situation?

The case of Ilya is a good demonstration of how HIV prevention is related to legislative norms, in particular, with 157 articles, Statkevich believes. “Recently this topic has been actively discussed, there are real cases of imprisonment. And many people seek to keep secrets at all costs so as not to harm the HIV-positive partner, ”she adds.

A public organization advocates a reduction in the criminalization of HIV infection by offering several points. First, reclassify cases under article 157 from public to private accusation. Thus, they will be initiated not by representatives of the Ministry of Internal Affairs or the Prosecutor’s Office, but at the initiative of a person who has suffered from a crime. In addition, the case may be closed in case of reconciliation of the parties.

Secondly, the possibility of blackmail by an HIV-negative partner should be excluded. To do this, community activists offer either to issue an “informed consent to have sex with an HIV-positive partner,” suppose a infectious diseases doctor; or, which seems more realistic, to supplement the criminalizing article with the phrase “in the event of failure to take measures to prevent infection (refusal to take antiretroviral therapy or use a condom)”.

Thirdly, to define the terms of the Criminal Code article itself more clearly, for example, what is the “knowledge” and so on. Since the vagueness of the wording allows them to be interpreted unnecessarily broadly.

“Medical prophylaxis after cases of unprotected sex is sometimes needed, but it should not become a substitute for concern about the safety of one’s sexual behavior, the use of condoms,” says Goloborudko.

The doctor adds that there is another effective way of prevention for people with increased risk of infection, for example, for men who have sex with men, and for sex workers – pre-contact prophylaxis (PrEP or PrEP).

However, there is a problem with access to these pills, and both DCT and PEP. Antiretroviral drugs in Belarus are procured centrally for the state budget, and pharmacies simply do not arrive, that is, it is impossible to buy them yourself, at least legally. This means that due to stigma, fear to open up even to doctors and unwillingness to donate partners, the number of people with HIV may increase. The principle is simple: do not drink therapy – either you are infected yourself, or you transmit the virus to another. It remains to hope that a program on pre-and post-exposure prophylaxis may appear in Belarus (at least now such conversations are under way), which could be given out not only in state hospitals, but also in public organizations.


 

Нас ждет тюрьма: чего боятся дискордантные пары в Беларуси

Илья и Евгений — пара геев из Беларуси. Они уже несколько лет вместе и называют себя «интересной парочкой», поскольку живут в дискордантных отношениях. Недавно во время секса у них порвался презерватив. Они приняли решение начать постконтактную профилактику (ПКП). Казалось бы, все просто: в течение 72 часов после риска инфицирования нужно начать принимать таблетки. Тем более что шаги известны: прийти к врачу, объяснить ситуацию, получить таблетки, пропить месячный курс — и о проблеме можно забыть. Но из-за особенностей местного законодательства получить помощь гораздо сложнее, чем кажется на первый взгляд. СПИД.ЦЕНТР разбирался, с чем сталкиваются белорусские дискордантные пары и какие есть выходы из сложившейся в республике ситуации.

Не сдал — не получил

«Как только у нас порвался презерватив, мы посоветовались с друзьями и поехали в Минск [в инфекционную больницу] на улицу Кропоткина за ПКП», — вспоминает Илья. Врач его выслушал и с «очень недовольным лицом» попросил раскрыть имя партнера. Мотивировав тем, что молодого человека необходимо поставить на учет и в подобных случаях медицинский работник «должен докладывать правоохранительным органам».

Мужчина уточнил, не отменен ли еще такой закон, но ему пояснили, что он действует и партнер понесет уголовную ответственность. Само собой, мужчина отказался сдавать Евгения, но врач настаивала: «Откуда мне знать? Может быть, вы клевещете на кого-нибудь? Вдруг вы сейчас пойдете продавать лекарства, которые я вам выдам?». Таблетки так и не дали.

Действительно, в Уголовном кодексе Беларуси есть ст. 157 (Заражение вирусом иммунодефицита человека), согласно которой, если человек заведомо поставил другого в опасность инфицирования ВИЧ, он может получить вплоть до тюремного срока. Примечательно, что статья предусматривала уголовную ответственность, даже если пострадавшая сторона не имела никаких претензий к ответчику. А инициировать возбуждение дела могут врачи-инфекционисты. Причем Беларусь вместе с Россией — лидеры по уголовному преследованию людей с ВИЧ. Например, в 2017 году было возбуждено 130 уголовных дел по ст. 157 УК Республики Беларусь.

Однако в ближайшее время законодательство в республике может быть смягчено, так, 19 декабря 2018 года внесена поправка о декриминализации передачи болезни. Согласно ей, люди с диагнозом больше не будут подвергаться уголовному преследованию «за постановку в угрозу передачи ВИЧ и заражение ВИЧ» своих партнеров, если они заранее уведомили их о своем диагнозе. Сейчас законопроект направлен для одобрения в Совет Республики и президенту.

«В законодательстве Беларуси все еще существует дюжина запретов для людей с ВИЧ-положительным статусом, — рассказывает председатель местной ВИЧ-сервисной организации «Позитивное движение» Ирина Статкевич. — В 2018 году внесли положительные изменения в норму «Детям, живущим с ВИЧ, запрещено заниматься спортом». Примечательно, что сами дети, живущие с ВИЧ, выступили инициаторами изменения нормы, а именно — ходили на встречу в Минздрав».

Кроме того, раньше людям с ВИЧ было запрещено усыновлять детей, сейчас эту статью пересмотрели, но все равно остались некоторые нюансы в применении.

Кто отвечает за здоровье?

Илья убежден, что ответственность за свое здоровье должен нести сам. Когда-то он сам работал консультантом по вопросам ВИЧ и проводил экспресс-тестирование, поэтому знал, что после незащищенного полового акта времени для ПКП очень мало, всего лишь трое суток.

«На мой взгляд, врач поступила очень непрофессионально, — сетует он. — Повод для беспокойства был — на тот момент мой молодой человек и я точно не знали его вирусную нагрузку».

«В Беларуси, как и во многих других странах, нет документа, который бы четко определял показания к проведению постконтактной профилактики, и это связано с объективными трудностями», — констатирует врач-инфекционист Николай Голоборудько.

По его словам, ПКП предоставляют в случаях профессиональных рисков, например, если медсестра укололась шприцем, которым забирала кровь у ВИЧ-положительного пациента. Или в некоторых бытовых ситуациях (например, ребенок нашел в песочнице шприц и укололся им) или при определенных половых контактах (например, после изнасилования).

Статкевич соглашается с отсутствием регламента выдачи таких таблеток. «Поэтому требование назвать своего партнера в данной связи вряд ли существует, — уточняет она, предполагая, что врач могла спрашивать данные партнера для оценки рисков. — Доктор мог посмотреть информацию о вирусной нагрузке в учетной карточке партнера и таким образом понять, насколько ситуация действительно экстренная».

В конечном счете постконтактную профилактику Илья все же получил, но не от врачей, которые должны ее предоставить, — помогли знакомые из России, оперативно передали ее.

Скоро он пойдет сдавать анализы, и если «плюсанет», то хочет попасть на прием к тому же самому врачу: «Так как это она поставила под угрозу мое здоровье и мою жизнь. Требования такого рода от врача, по моему мнению, нарушают закон о врачебной тайне, раскрытие ВИЧ-статуса человека может быть уголовно наказуемым. Ведь есть люди, которые данную информацию будут использовать далеко не для благих целей».

Как изменить ситуацию?

Случай Ильи — хорошая демонстрация того, как связана профилактика ВИЧ с законодательными нормами, в частности со 157 статьей, считает Статкевич. «В последнее время эта тема активно обсуждается, есть реальные случаи лишения свободы. А многие люди стремятся сохранить тайну любой ценой, чтобы не нанести вред ВИЧ-положительному партнеру», — добавляет она.

Общественная организация ратует за снижение криминализации инфицирования ВИЧ, предлагая несколько пунктов. Во-первых, переквалифицировать дела по статье 157 с публичного обвинения в частное. Таким образом, они будут возбуждаться не представителями МВД или прокуратуры, а по инициативе человека, пострадавшего от преступления. К тому же дела могут быть закрыты в случае примирения сторон.

Во-вторых, следует исключить возможность шантажа со стороны ВИЧ-отрицательного партнера. Для этого общественники предлагают либо оформлять «информированное согласие на вступление в половые контакты с ВИЧ-позитивным партнером», предположим, у врача-инфекциониста; или же, что кажется более реальным, дополнить криминализирующую статью фразой «в случае непринятия мер по профилактике заражения (отказ от приема антиретровирусной терапии либо от использования презерватива)».

В-третьих, более четко определить сами термины статьи УК, например, в чем заключается «заведомость» и так далее. Поскольку размытость формулировок позволяет трактовать их неоправданно широко.

«Медикаментозная профилактика после случаев незащищенного полового контакта иногда нужна, но она не должна становиться заменой заботы о безопасности своего полового поведения, использования презервативов», — говорит Голоборудько.

Врач добавляет, что есть другой эффективный способ профилактики для людей с повышенными рисками инфицирования, например, для мужчин, практикующих секс с мужчинами, и для секс-работниц — доконтактная профилактика (ДКП или PrEP).

Однако есть проблема с доступом к таким таблеткам, причем как ДКП, так и ПКП. Антиретровирусные препараты в Беларуси закупаются централизованно за госбюджет, а в аптеки просто не поступают, то есть купить их самостоятельно, по крайней мере легально, никак нельзя. А значит из-за стигмы, страха раскрыться даже врачам и нежелания сдавать партнеров количество людей с ВИЧ может увеличиваться. Принцип прост: не пьешь терапию — либо инфицируешься сам, либо передаешь вирус другому. Остается надеяться, что в Беларуси может появиться программа по до— и постконтактной профилактике (по крайней мере сейчас такие разговоры ведутся), которую могли бы выдавать не только в государственных больницах, но и в общественных организациях.

US: Five laws categorised as “bad” laws by the Human Rights Campaign in Missouri , including HIV/AIDS criminalisation laws

Missouri ranked in lowest category for LGBTQ protections, nondiscrimination

The Human Rights Campaign recently released their fifth annual State Equality Index — a state-by-state report detailing statewide laws and policies that affect LGBTQ people, assessing how well states are doing to protect LGBTQ individuals from discrimination.

This year, Missouri received the lowest rating, “High Priority to Achieve Basic Equality.” This rating is given to states that focus on raising suport for basic LGBTQ equality laws, such as non-discrimination laws, and for states focusing on municipal protections for LGBTQ people including opposing negative legislation.

Twenty-eight states earned this rating. Seventeen states earned the highest rating, “Working Toward Innovative Equality,” while the remaining five earned “Solidifying Equality” or “Building Equality.”

Karis Agnew, field director for PROMO, Missouri’s statewide LGBTQ advocacy organization, explained that they expected this rating for Missouri.

“It does not surprise me because there are basic protections that LGBTQ people lack in Missouri and those include protection of employment, housing and public accommodations,” Agnew said.

Missouri has a total of six laws that benefit LGBTQ people — hate crime laws, a college and universities non-discrimination law, a sexual orientation non-discrimination policy for state employees, an anti-bullying law specifically for cyberbullying, transgender inclusion in sports, and name and gender updates on identification documents for drivers licenses.

Missouri has five laws that the HRC categorizes as “bad” laws including HIV/AIDS criminalization laws, a state Religious Freedom Restoration Act, and transgender exclusions in state Medicaid coverage.

Missouri lacks all parenting laws such as parental presumption for same-sex couples, second parent adoption, and foster care non-discrimination. Missouri also lacks basic non-discrimination laws for employment, housing, public accommodation, education, adoption, foster care, insurance, credit, and jury selection.

The absence of youth laws in Missouri include anti-bullying laws, protection from conversion therapy, and laws to address LGBTQ youth homelessness. In the health and safety category, Missouri lacks laws including LGBTQ nondiscrimantion protections in Affordable Care Act exchanges, transgender healthcare coverage, and name and gender updates on identification documents for birth certificates.

Alex Padilla, co-president of Spectrum, an LGBTQ group at Missouri State Univerity, explained his fear regarding how few laws Missouri has protecting LGBTQ individuals like himself.

“Whenever I first came out, I was working at a fast food job and I was worried that I could be fired for who I was,” Padilla said.

He explained that he did a quick search online and found that there were no laws protecting him from being harassed or fired because of who he was.

Agnew, who prefers using gender-neutral pronouns, explained that although this rating is low, organizations like PROMO are working hard behind the scenes to make sure Missouri’s laws are progressing.

“When it comes to passing laws that are pro-equality, the thing that we really need the most to be able to do that is make sure that we don’t have bills that are anti-LGBTQ,” Agnew said.

Agnew explained that in 2018 five anti-LGBTQ laws were filed but PROMO worked to ensure zero made it to the governor’s desk to be signed.

“When those are filed, that is our priority, so it is really hard for us to file proactive legislation and pass proactive legislation when we have legislation that is harmful to LGBTQ people that we work so hard to prevent from passing,” Agnew said.

Agnew said a big reason why Missouri is far behind other states in passing pro-LGBTQ legislation is that Missouri legislators are not aware of what it is like to live as an LGBTQ individual.

“I think a lot of our legislators in Missouri honestly don’t know what it’s like to be LGBTQ — the majority of our legislators are not LGBTQ themselves,” Agnew said. “And because of that, I think a lot of them have a lot to learn from their constituents that are.”

Agnew said this year is the 21st year that PROMO has worked to file the Missouri Nondiscrimination Act, which would add protections for sexual orientation and gender identity in places of employment, housing and public accommodations.

“When their constituents aren’t bringing it up they assume it’s not important and not needed,” Agnew said. “The number one thing people can do is engage their elected officials and talk to them about why something like the Missouri Nondiscrimination Act is so important to them.”

Padilla explained how important it is for students to get involved.

“Help us lobby for equality, Padilla said. “Advocating for these things and showing that you are an ally is really helpful to all of Missouri and all of Missouri’s LGBTQ people.”

PROMO is hosting an “Equality Day,” a day of lobbying where people in the community come up to Jefferson City and talk to legislators about the Missouri Nondiscrimination Act on April 10.