RSS

Tag Archives: Discrimination on Grounds of HIV

HIV Criminalization Cases Recorded in 72 Countries, Including 49 in the Last Four Years.

By Arasa Network

hiv-aids pic

HIV criminalization continues: a global review has found that HIV-related arrests, investigations, prosecutions and convictions have ever occurred in at least 72 countries, with recent cases occurring in 49 countries, including 14 in which the law appeared to be applied for the first time.

The HIV Justice Network’s review concerns cases in which either the criminal or similar law is applied to people living with HIV based on HIV-positive status, either via HIV-specific criminal statutes (29 countries), general criminal or similar laws (37 countries), or both (6 countries). Such laws typically criminalize non-disclosure of HIV status to a sexual partner, potential or perceived exposure to HIV, or transmission of HIV.

HIV criminalization “is a pervasive illustration of how state-sponsored stigma and discrimination works against a marginalized group of people with immutable characteristics,” says HIV Justice Network. “As well as being a human rights issue of global concern, HIV criminalization is a barrier to universal access to HIV prevention, testing, treatment and care.”

Between October 2015 and December 2018, at least 913 people living with HIV were arrested, prosecuted, convicted or acquitted in 49 countries. The largest numbers of cases were reported in the Russian Federation (at least 314 cases), Belarus (249), United States (158), Ukraine (29), Canada (27), Zimbabwe (16), Czech Republic (15), United Kingdom (13), France (12) and Taiwan (11).

To estimate where the criminal law appears to be disproportionately applied, the researchers analyzed the number of known recent cases according to the estimated number of diagnosed people living with HIV in a country. They identified 15 criminalization hotspots: countries in which the number of cases was equal to or greater than 0.5 in 10,000 per capita of diagnosed individuals.

  • Belarus (139 in 10,000)
  • Czech Republic (55 in 10,000)
  • New Zealand (10 in 10,000)
  • Canada (4 in 10,000)
  • Sweden (4 in 10,000)
  • Russian Federation (3 in 10,000)
  • Taiwan (3 in 10,000)
  • Ukraine (2 in 10,000)
  • Australia (2 in 10,000)
  • Switzerland (2 in 10,000)
  • England and Wales (1 in 10,000)
  • Kazakhstan (1 in 10,000)
  • United States (1 in 10,000)
  • France (0.8 in 10,000)
  • Italy (0.5 in 10,000)

Their analysis suggests that recent HIV criminalization cases do not reflect the demographics of local epidemics, with the likelihood of prosecution exacerbated by discrimination against marginalized populations on the basis of drug use, ethnicity, gender, gender identity, immigration status, sex work and/or sexuality. Cases in the United States also appear to disproportionately impact people already in the purview of the criminal justice system, such as prisoners, and people living in poverty, including homeless people, with a high number of cases related to ‘HIV exposure’ via biting or spitting during arrest or whilst incarcerated.

Recent reports of increased numbers of cases in sub-Saharan Africa and in Eastern Europe and Central Asia illustrate what advocates have long-feared: that women are more likely to be prosecuted (and less likely to have adequate legal representation), since they are often the first in a relationship to know their status as a result of routine HIV testing during pregnancy, and are less likely to be able to safely disclose their HIV-positive status to their partner due to gendered power inequalities. Women with HIV also face the possibility of being prosecuted for passing HIV on to their child during pregnancy, birth or breastfeeding.

In addition, migrants from high HIV prevalence regions (such as sub-Saharan Africa and eastern Europe) appear to be disproportionately prosecuted in Canada, northern and western Europe and Australasia, and usually have limited access to adequate legal representation. Non-citizens are also likely to be deported to their country of origin after serving their sentence even if they have family ties in their adopted country.

HIV-specific laws continue to exist in at least 75 countries, including many countries in sub-Saharan Africa (29 countries) and eastern Europe and Central Asia (18).

Advocacy Success

Nonetheless, during the period covered by the report, promising developments in case law, law reform and policy have occurred, most often as a direct result of advocacy from individuals and organizations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV.

HIV-specific laws have been repealed in Victoria, Australia and in the Democratic Republic of Congo. The latter decision followed eight years of effective civil society lobbying and nurturing of supportive parliamentarians.

There have been promising developments in case law, law reform and policy, most often as a direct result of advocacy.

Laws have been modernized in seven jurisdictions. For example, Belarus’ law previously made exposure of HIV a crime, regardless of disclosure of HIV status, condom use or whether the sexual partner wanted the prosecution to take place. As a result of advocacy by the community organization People PLUS, the government announced in December 2018 that a person with HIV will no longer be held criminally liable for HIV exposure or transmission if they disclose their HIV-positive status and their partner consents.

The US state of Colorado used to hand out longer sentences to individuals convicted of sex work, solicitation of a sex work or rape, if that person had been diagnosed with HIV at the time of the offence. Following several years of researching, consulting, organising, lobbying and negotiating by a coalition of campaigners, these laws were changed in 2016. The sex work provisions were removed, while the tougher sentences for HIV-positive individuals convicted of rape were somewhat lessened.

Other jurisdictions modernizing their laws in recent years are Switzerland, Norway, California, Michigan and North Carolina.

Several proposed laws have been withdrawn. In Malawi, a proposed law was initially welcomed by feminists, but perceptions of the law’s impact changed after consultations between legal activists and grassroots networks of women living with HIV, examining the legislation in detail. As it became clear to local women how the vague provisions on ‘willful transmission’ could play out in their lives, they decided to take up advocacy against it and the parliament withdrew that part of the law.

International activists facilitated the development of Mexican network of 44 civil society organizations (La Red Mexicana), which has had several successes, including the withdrawal of proposed laws in three Mexican states and the country’s supreme court declaring a law in Veracruz to be unconstitutional. A proposed law has also been withdrawn in Brazil and a Kenyan statute ruled to be unconstitutional.

In addition, precedent-setting cases in Finland, Germany, Greece, Italy, Sweden and Morocco have the potential to limit the overly broad application of the law through the recognition of up-to-date HIV-related science on the real risks of transmission.

Reference

Cameron S & Bernard EJ. Advancing HIV Justice 3: Growing the global movement against HIV criminalisation. HIV Justice Network, Amsterdam, May 2019. (Report).

 

Tags: , , , , , , ,

Mr. X Terminated On Grounds Of His Hiv Status Gets The Fruit Of His Victory

mrx

Dear Colleagues and folks,

Recall the National Industrial Court of Nigeria’s Judgement prohibiting employers from coercing existing or prospective employees to undergo HIV testing and that dismissing employees on the basis of their perceived or actual HIV-status is unlawful and discriminatory. Recall also the court awarded monetary damages to the total sum of 4,200,000NGN (11,500USD). This followed a suit by Mr. X. who was dismissed on account of his HIV status. Lawyers Alert filed and prosecuted the matter on his behalf. The judgement can be found here.

Lawyers Alert alongside Mr. X met severally with the employers and their lawyers towards negotiating an agreed judgement sum so as to bar an appeal alongside the expected time the appeal would have been disposed of. An appeal can take several years.

Lawyers Alert is happy to announce that last week, we received an inflow for the judgement sum negotiated at 3,000,000NGN (8,400USD) on behalf of Mr. X. Mr. X. was in our office on Saturday 30th March 2019 to receive from Lawyers Alert a cheque in the total sum of 3,000,000NGN representing the entire judgement sum as paid.

Lawyers Alert acknowledges with deep appreciation Southern Africa Litigation Centre (SALC), and everyone that contributed in one way or another towards justice for Mr. X. and the judgement which prohibits employers from coercing existing or prospective employees to undergo HIV testing and that dismissing employees on the basis of their perceived or actual HIV-status is unlawful and discriminatory.

We acknowledge Southern Africa Litigation Centre (SALC), Enda Sante, Joint United Nations Programme on HIV/AIDS (UNAIDS) Nigeria, AIDS Health Foundation (AHF), National Agency for the Control of AIDS, United Nations Development Programme, International Labour Organization (ILO), Coalition of Lawyers for Human Rights (COLaHR), Network of Persons Living With HIV/AIDS in Nigeria (NEPWHAN), Nigeria Network of Religious Leaders Living with or Personally Affected by HIV/AIDS (NINERELA+), Association of Positive youth living with HIV/AIDS in Nigeria (APYIN), Society of Women and Children Living With HIV/AIDS in Nigeria (SOWCHAN), Association of Women Living With HIV/AIDS (ASWHAN) in Nigeria and other Human Rights Activists.

A picture of Mr. X. collecting his cheque can be found here and a video of his experience can be found here.

Thank you.

 

Tags: , , , , , , , , ,

Suit to challenge termination of employment on account on HIV status: Activists and PLHIV identify with Lawyers Alert

The suit challenging the termination of Mr X by his employers on account of his HIV status came up a fortnight ago  at the National Industrial Court in Abuja, and Activists including PLHIV were at hand to identify with the cause.  Persons from NEPWAN, APYIN, SOWCHAN, AHF, NINERELLA+, Heartland Alliance and ASHWAN flooded the court in show of solidarity. This followed advocacy efforts by Lawyers Alert in partnership with Enda Sante. The case of Mr. X, is lodged at the National Industrial Court Abuja by Lawyers Alert in partnership with Southern Africa Litigation Centre (SALC).

“PLHIV have the Right to Employment” adorned T-Shirts was everywhere at the Court premises. Mr X lawyers, Bamidele Jacobs and Sunday Adaji  of Lawyers Alert, were ready and prepared to proceed with the matter which was slated for hearing. The Defendants however sought adjournment to adequately prepare owing to late service of vital documents. The judge granted their request for time to prepare their response and fixed the case to 31st of October 2017 as the next hearing date.

 

Bamidele Jacobs Esq, speaking to Activists after the case.

Sighting the number of people in the court room with their T-shirts on, the Judge opined that probably at the next adjournment, hearing maybe in Chambers and advised supporters in solidarity to be within the court premises and not in the courtroom.

After the hearing, Activists converged in Lawyers Alert office, where Yemi Agoro gave a welcome speech and deliver the greetings  while  Bar. Bamidele gave the history of the case,  and update of what actually transpired in the court room.

Amber Erinmwinhe of NINERELLA+ spoke on behalf of the organizations and Activists present to appreciate the effort of Lawyers Alert in getting justice for the PLHIV community in the country and pledge  continuous support anytime the need arise.

 

 

Tags: , ,

 
%d bloggers like this: