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

By Arasa Network

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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).

 

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Passage of the HIV/AIDS Anti-Discrimination Law: Matters Arising

By Jerome, Uneje Mary

Since the advent of HIV and AIDS in Nigeria in the early 90s, it is estimated that over 3 million people are either suffering from the scourge or lost their lives . 2.5 million Children have been made orphans amidst other damning statistics. People Living Positively (PLP) often suffer untold hardships, discrimination and even stigma. This discrimination takes place mostly at work places, places of worships, neighbourhoods and other social units. The media is awash with stories of employment termination, marriage refusal at worship places, forced tests been conducted on suspected persons amongst other forms of discrimination.  “HIV/AIDS related stigmatization and discrimination remain a big challenge threatening the fight against the epidemic and the achievement of Millennium Development Goals in Nigeria.

Experts and pundits alike in the HIV/AIDS sector have always claimed that the most effective and efficient measure that will address and put paid to the issue of discrimination and stigmatization of PLP in Nigeria is the passage of the HIV/AIDS Anti-Discrimination Law. This however had been a running battle between Civil Society, PLPs versus Government Officials responsible for the passage of the law. This culminated in a Civil Society/PLP protest at the national assembly in Abuja 2013.

The signing of the HIV/AIDS Anti-Discrimination Law by the present administration of President GoodLuck Jonathan is relevant, important and most of all commendable. This newly signed Law is committed to stopping all forms of stigma and discrimination against People Living Positively. The law also makes provision for the prevention of discrimination and also access to healthcare services. It also seeks to protect the rights and dignity of People Living with HIV and AIDS. The importance of this law cannot be overemphasized enough.

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As a Pro-Human Rights Organization, we at Lawyers Alert have always been involved in the clamour for the passage of the law both at the state and the federal level. This is to enhance the protection of the rights and privileges of vulnerable persons based on their health status. We therefore, wholeheartedly support and commend the signing of the HIV/AIDS Anti-Discrimination Law.

As commendable as this has been, a lot still needs to be done. Experience has shown that laws in Nigeria are always passed but hardly implemented neither are there adequate measures put in place for their implementation. This sad situation negates the essence of such laws. We therefore, hope that this law will not suffer the same fate given the stiff challenges faced during the struggle for its passage. In the light of the above, we therefore emphasis on the need for proper implementation of the law across the country.

There is also need for the passage of the law across all the federating state assemblies. This is necessary as some states fail to replicate or domesticate laws that have been passed at the federal level for reasons best known to them. An example of such is the public procurement act of 2007 of which only a handful states have so far domesticated.

Most of all, there is a strong need for the law and its provisions to be made available in a simple and easy to comprehend language to the people. The passage of a law is one thing and its understanding by the people is another. Both are two sides of a coin. Where a law is neither understood nor made available by and to the people, such law is bound to fail on arrival. Therefore there will be a strong need for government to make the law available to the people in a language and manner that will be most understood by them.

The media, civil society and other relevant stakeholders are hereby enjoined to contribute immensely to the widespread and assimilation of this law to the people especially at the grassroots where there is ignorance and widespread of HIV/AIDS.

In conclusion, the signing of this law is a huge contribution towards the reduction and consequent elimination of all forms of discrimination against people living with HIV/AIDS in Nigeria. We therefore, commend the government for such a noble and courageous act. We also hope that our recommendations will be adequately implemented so as to ensure that the spirit and the letter of the anti-discrimination HIV/AIDS law as signed will lead to the elimination of all forms of discrimination against people living positively.

Jerome, Uneje Mary  is  the  Program Officer, Lawyers Allert

 
 

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UNDP Administrator Helen Clark Statement on International Day Against Homophobia and Transphobia

May 17 2014

The International Day Against Homophobia and Transphobia provides an opportunity to reaffirm that the rights of LGBT people are a matter of concern to all of us working on human development.

In the last year, harmful anti-LGBT laws have been passed under the guise of protecting children and families. Punitive laws such as these have the potential to stir up homophobia and transphobia, and can have very toxic effects on people’s lives – shattering self-esteem, increasing marginalisation, and creating hurdles to accessing health and other services. Such laws scapegoat LGBT people and distract from the real social and development challenges which countries face. Anti-LGBT laws are based on the incorrect assumption that homosexuality poses a danger to a country’s social fabric. The evidence does not demonstrate this – where nations have decriminalised same sex sexual conduct, no threat to the institution of marriage nor to the well-being of children has been witnessed. Instead, decriminalisation has been a key step in providing an opportunity for historically oppressed LGBT people to flourish and fully participate as respected members of society.

There is some good news: in the past few weeks the Supreme Court of India upheld the fundamental rights of transgender people, noting that “respect for human rights is the root of human development and realization of full potential of each individual, which in turn leads to the augmentation of human resources with progress of the nation. Empowerment of the people through human development is the aim of human rights.

UNDP is committed to such a vision of inclusive human development and continues in its efforts to advance the human rights of LGBT people globally. In Latin America and the Caribbean, UNDP supported REDLACTRANS, a network of transgender groups, to advocate with the Organisation of American States in support of an historic human rights resolution for the region which explicitly includes LGBT rights. In sub-Saharan Africa, UNDP, in partnership with the governments of Sweden and Norway, is supporting countries to implement the recommendations of the Global Commission on HIV and the Law in relation to LGBT rights and HIV. In Asia, UNDP in partnership with the United States government and within the “Being LGBT in Asia” initiative, is supporting LGBT communities to engage with their governments and other stakeholders to demand their rights; helping to ensure that the respect of human rights for LGBT individuals is part of the broader human rights and governance response.

As development practitioners and advocates for human rights, on this day let us reinvigorate our efforts to support countries to achieve a vision of human development which is truly inclusive and where everyone is able to live their lives free from fear, discrimination, violence, homophobia, or transphobia.

 

 
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Posted by on May 15, 2014 in Human Rights

 

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Indian Supreme Court Recognises Right to Self-Identify as Third Gender

On 15 April 2014, in a judgment which has been widely praised by equal rights activists around the world, the Supreme Court of India held that recognising only two gender identities (male and female) violated constitutional rights. In National Legal Services Authority v Union of India and others, the Court found that the right to self-identify one’s gender, including as “third gender”, was an important part of the constitutional right to live with dignity. Further, the state was required to take affirmative action measures in order to achieve equality for transgender people. The decision – its tone and approach in stark contrast to the Court’s recent regressive decision in Suresh Kumar Koushal and another v NAZ Foundation and others – should offer inspiration to courts in the many countries which continue to recognise only a gender binary. The case was brought on behalf of a number of groups who do not identify clearly as male or female when a biologically determined binary approach to gender is applied. These groups include Hijras, Kothis, Aravanis and other transgender people (“the represented groups”). The Court was asked to consider whether the recognition of only the binary genders of male and female under Indian law and the lack of legal measures to cater for the needs of the represented groups contradicted a number of constitutional rights including the rights to a dignified life, equality before the law, non-discrimination and freedom of expression. In arguing that these rights were being violated, the petitioners noted that the gender a person is assigned at birth determines his or her rights in relation to marriage, adoption, inheritance, succession, taxation and welfare and that the absence of legislation protecting transgender people means they face discrimination in various areas of life. In a judgment which drew heavily from international human rights principles and standards, the Court found violations of a number of fundamental rights under the Indian Constitution. Specifically, the Court stated that:

  • The right to choose one’s gender identity is integral to the right to a life with dignity and therefore falls within the scope of the right to life under the Indian Constitution (Article 21).
  • The right to equality before the law under Article 14 of the Indian Constitution applies to all persons, including transgender persons, who are thereby entitled to equal protection of the law in all spheres including employment, health care, education and civil rights.
  • The prohibition of sex discrimination under Articles 15 and 16 of the Constitution is a prohibition against all forms of gender bias and gender based discrimination including discrimination against transgender people.
  • The state is obliged to take affirmative action to advance “socially and educationally backward classes” and this includes transgender people, who have faced centuries of injustice (Article 15(4)).
  • Expressing one’s identity through words, dress, action or behaviour is included in the right to freedom of expression (Article 19). The values of privacy, self-identity, autonomy and personal integrity are also fundamental rights under Article 19 and these rights belong to transgender people as well as others.

On this basis the Court rejected the biologically determined binary of male or female gender. It declared that India’s centre and state governments should grant legal recognition of a transgender person’s identity as male, female or third gender in accordance with that person’s self-identification. It also declared that centre and state governments should take positive measures to fully realise the rights of transgender people including by: ensuring that transgender people benefit from reservations for educational institutions and public appointments; making available focused medical care and social welfare schemes; and conducting public awareness raising campaigns to reduce society’s ostracisation of the represented groups.

ERT strongly welcomes the judgment of the Court as an important step in the advancement of the equal rights of transgender and intersex persons. ERT urges the Indian central and state governments to act swiftly to implement the decision. Furthermore, ERT is hopeful that other states may draw inspiration from the judgment and act to ensure that the right of every person to legal recognition of their self-identified gender is respected.

 

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