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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).

 

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BENUE STATE HIV NON DISCRIMINATION LAW; PREGNANT WOMEN, CHILDREN AND THE UNBORN CHILD, HEALTH CARE AND EDUCATION.

By James Apeh

In Nigeria more than 5 million women give birth yearly. One out of every twenty is HIV positive. The chance of an infected woman giving the infection to her child is about 30%. In Nigeria about 60,000 children are born HIV positive every year. Most will not survive beyond their 5th birthday. Coupled with this is the high rate of ignorance about mother-to-child transmission of HIV and its prevention in the country. The Benue state government recently passed the people living with HIV AIDs (Anti Stigmatization and Discrimination) law 2014. The law provides for the protection of the rights of people living with HIV AIDs. How has the law made provisions for the protection of women children and the unborn child? Specifically what obligation has the law created on the government in the provision of healthcare and education to this vulnerable group i.e. women and children and the unborn child in the society.

Section 9 of the law provides:

 The following persons shall be subjected to routine HIV/AIDs testing for purposes of prevention of HIV/AIDs transmission

(a) Pregnant women

The implication of this section is that an obligation has been created on the government of Benue state to provide HIV testing service for pregnant women in the state.

Section (10) provides:

A health unit providing common health care services, ante-natal care family planning service or special or general treatment, shall offer HIV/AIDs testing services to persons

The implication of this section is that every government health unit offering common health care service, antenatal care services, family planning services or special or general treatment should be able to also offer HIV/AIDs testing services, thus the government is obligated to provide necessary facilities or equipments to these health units to offer HIV/AIDs testing services.

Section 11(i) provides:

A pregnant woman who is tested and found to be HIV/AIDs positive under section 4 shall be entitled to appropriate treatment, care and support and routine medication to prevent HIV to the child.

By this provision, a HIV positive pregnant woman is entitled to free treatment and medication to prevent the transmission of HIV to the unborn child. Also the child in this case is entitled to be protected form being infected from HIV AIDs where possible.

Section 11(ii) provides:

A child who is of an HIV positive mother shall be given immediate appropriate treatment care, support and routine medication.

The implication of this provision is that it is the right of a child of a HIV positive mother to be given appropriate treatment and support. The government is by this obligated to provide necessary health care to a child of a HIV positive mother.

Section 12(i) provides:

A child who is born of a mother who is HIV positive shall be tested for HIV as soon as it is medically practicable.

The implication here is that the government is obligated to provide HIV testing service to a child born of a HIV mother.

Section 12(ii) provides:

A child who tests positive to HIV under subsection (i) of this section shall be given HIV/AIDs treatment, care and support

This provision creates an obligation on the government to provide health care services to a child found to test positive to HIV.

Section 35(i) provides that

Government shall provide the necessary support systems and structures for people living with HIV/AIDs to seek redress

This provision obligates the Benue state government to provide among other facilities legal representation for PLWHA to seek redress for violation of their rights created by this law.

Section 35(ii) (e) provides

 The government shall devise measures to

(e) Develop and promote awareness, rights and duties imposed on persons under this law.

The government by this provision is obligated to educate the populace including pregnant women on their rights under this law.

Section 34 provides

Any person who has been stigmatized and discriminated against may sue for damages and other civil claims or remedy in the court of competent jurisdiction or high court of the state

The law by the above provision confers on the state high court with the jurisdiction to try cases where the rights of pregnant women and children have been violated.

In conclusion the law has addressed some important issues in its effort to protect the mother and child from HIV transmission. It has provided a legal frame work for the compulsory testing of pregnant women, provided a legal framework for the use of  HIV Counseling and Testing (HCT) services especially within maternal health care units, provided a legal framework for HIV positive women to be properly counseled, Provided a legal framework for the testing of children of HIV positive mother and the care of such children. The law has also provided a framework for the education of mothers and the general population about prevention of mother to child transmission of HIV and  it has provided a legal framework for the provision of legal and healthcare services for PLWHIV including HIV positive mothers.

 James Tor Apeh is a Legal Officer with Lawyers Alert

 
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Posted by on February 18, 2015 in HIV/AIDS & HUMAN RIGHTS

 

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HIV and AIDS, Ethics, Human Rights and the Law

Lawyers’ Alert work in HIV and AIDS is restricted to principally two thematic areas, Human Rights Education and Rights Enforcement through litigation/Advocacy. Secondly massive education and capacity building on Preventing Mother To Child Transmission, PMTC.  We believe successfully preventing and eliminating Mother to Child Transmission will be a key step in wiping out new infections and ultimately end AIDS.

Our involvement began in 2003, when Lawyers Alert organised a workshop in Benue State on HIV and AIDS in relation to Human Rights. The theme of the workshop was “HIV and AIDS, Ethics, Human Rights and the Law”. The workshop was for Persons living with HIV and AIDS, NGO’s and Policy makers with the support of the British Council. The workshop sought to explore positive living against the backdrop of the law and human rights in Nigeria, using Benue State as a case study.

 

Following the workshop it was established by participants that there indeed exist a lot of human rights violations by the state and non state actors in principally the rights to health, education and employment with regard to especially women and children.

 

Following this cardinal finding by participants, in 2004, Lawyers Alert carried out a situation analysis on HIV and the Law in Benue wherein we published  booklet titled “HIV and AIDS: A Legal Framework” where we explored the relationship between Human Rights and the treatment of persons living with AIDS.   This book is the product of engagement with the community of persons living positively and legal institutions. It became crystal clear that while Government has beautiful and well laid out plans in States Strategies, political will often do not match the strategy papers.

Owing to frustrations of non implementation of strategy documents, Lawyers Alert alongside the Community of person+ explored the idea of creation of obligations on the state and private hospitals, schools and industries with regard to women and children so this can be enforced.  Only a law can achieve this, and this has been the struggle since 2005, to have a Non Discrimination Law passed by the State that will regulate and create obligations on routine testing of pregnant mothers, early infant diagnosis, adequate Medicare for mothers and children living with AIDS, access to education and non discrimination at workplaces, etc.

Legislation in these areas will go a long way in preventing mother to Child transmission, eliminate discrimination, enhance access to education, and guarantee employment for women.

Lawyers Alert has continuously partnered the then State Action Committee on AIDS on issues bothering on human rights and the law regarding HIV and AIDS. We specifically drafted the Bill transforming the State Committee to an Agency so as to make it more effective. The Bill has since been passed into law. Over the years we have effectively participated in the drafting of State strategic Plans for the Agency inclusive of other activities.

Lawyers Alert has represented over 100 person+ in efforts at enforcing or protecting their rights to accommodations, uninformed testing, workplace discriminations etc. We have carried out over 12 workshops, in building capacity and creating awareness on rights of person+ in Benue, Nassarawa and Plateau States.

Regarding PMTC, we are involved in mass community education in changing values especially with regard to Gender. Gender empowerment and elimination of stigma is key to effective PMTC. When the rights of women are respected by elimination of violence, disinheritance, access to education created and jobs provided, with fewer stigmas and discrimination, PMTC will succeed.

We have carried out efforts in these regard through awareness creation/capacity building and community theatre in especially between 2008 to date.

All Lawyers Alert programs have the above main streamed into it.

Lawyers Alert is presently in the process of developing tools to measure the impact of our work in Benue, Nassarawa and Plateau States in the sphere of HIV and AIDs/ Human Rights.

 

 
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Posted by on August 28, 2012 in HIV/AIDS & HUMAN RIGHTS

 

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