#HIV #Criminalization #Indispensable #Report
The goal of Advancing HIV Justice 4 is clear and very ambitious: to provide a progress report on the successes and challenges of advocacy against HIV criminalization globally.” To do this, the authors of this reference document analyzed “files related to the criminalization of HIV, whether legal, business, social sciences or political advocacy.” They went fishing for information in almost every country with experts, activists, interested people, NGOs, etc. The case analysis and the vast majority of the legal and policy analysis presented in this report covers a 36-month period, from January 1, 2019 to December 31, 2021. It took into account: press articles, judgments and requisitions, the arguments of the lawyers.
Penalization: a global phenomenon
“HIV criminalization is a global phenomenon that has a significant negative impact on public health and human rights, weakening the response to HIV and exacerbating the epidemic,” the authors note. “The impact of criminal cases goes far beyond the courtroom and is deeply damaging to those involved. Media coverage of HIV criminalization often demonizes people living with HIV and perpetuates misconceptions and ignorance about HIV and how it is transmitted.” The report states that, despite United Nations recommendations to “limit HIV criminalization to extremely rare cases of intentional HIV transmission (i.e., where malicious intent to transmit HIV and such transmission has been proven beyond reasonable doubt), few countries have repealed or modernized their laws or legal frameworks, and only a few follow the recommendations and limit the excessively broad application of criminal law”.
As you can imagine, the international legal landscape is extremely varied. However, all jurisdictions “have laws designed to counter harmful behavior, including, for example, provisions relating to criminal negligence, assault, and attempted murder.” The problem, the Report points out, is that in “some jurisdictions, prosecutors and judges have considered that these provisions can be applied against people living with HIV for not disclosing their health status to their sexual partners, potential or perceived exposure of any kind , or suspicion of transmission”. In addition, some countries have also enacted HIV-specific criminal laws. “These may be provisions of the criminal code, provisions contained in HIV-specific laws (which may otherwise provide rights, protections, and access to treatment and care for people living with HIV), or provisions that deal more severely to people living with HIV (for example, through longer sentences), in public health laws that allow criminal sanctions”, the authors recall.
However, the HIV Justice Network believes that “criminal laws that treat people living with HIV differently are always stigmatizing”. First, because “they are often vague and overly broad”, and “the way they are drafted can lower the level of evidentiary requirements, compared to the application of general laws that require proof of certain key elements (i.e. (i.e., premeditation, intent, causation, and consent)”. Clearly, progress is being made because advocacy is paying off. Thus, some “newer HIV laws are carefully drafted with specific evidentiary requirements to limit the harm caused by previous imprecise ones”, but this is not the majority of the situations.
How many cases?
HIV-related criminal proceedings have been initiated in 81 countries since the first reported prosecution in 1986. Fifty-two jurisdictions in 35 countries have applied HIV-specific criminal laws and 89 jurisdictions in 48 countries have applied non-specific general criminal laws. HIV. people living with HIV based on their HIV status,” says the Advancing Justice in HIV Report 4. A total of 82 countries (111 jurisdictions, including the states of Mexico, Nigeria and the United States) currently have HIV-specific criminal laws.
The global HIV criminalization database used for this report documents 275 individual reports of arrests, prosecutions, convictions, appeals and/or acquittals in 39 countries between January 2019 and December 2021. “However, the actual number of cases is probably much higher. For example, when we take into account the figures of the countries that report official data, that is, Belarus, Russia and Uzbekistan, our estimate amounts to almost 700 cases”, the authors explain. The report gives, among other things, the example of Belarus. And the report explains: “In 2019, Article 157 of the Criminal Code of the Republic of Belarus was amended to allow disclosure of HIV status for the first time as a defense strategy against the Republic’s draconian HIV law. from Belarus. . Before this, even if people living with HIV had obtained consent from their partners regarding possible exposure to HIV (for example, for reproductive purposes), they could still be, and were, prosecuted. Many cases were initiated by doctors. In 2017 and 2018, respectively, 130 and 133 criminal cases were initiated under article 157. After the entry into force of the amendment (July 19, 2019), the number of criminal cases decreased, but continues to increase. In 2019, 59 people were prosecuted. In 2020, 15 people were prosecuted. In 2021, 32 people were prosecuted. Women remain particularly vulnerable to prosecution, accounting for 61% (65 of 106) of all cases between 2019 and 2021.”
Who is prosecuted?
“Women, racial and ethnic minorities, immigrants, gay men and other men who have sex with men, trans people, and sex workers make up approximately 50% of those charged,” the report explains. “Racial and ethnic minority disparities are greatest in the United States, where at least 55% of arrests, prosecutions, and convictions were against black and other racially affected people.”
The Tasp ignored by the courts
It all comes down to this sentence from the report: “The number of cases in which we do not take into account the scientific advances on HIV, in particular the preventive effects of antiretroviral treatment and the fact that HIV cannot be transmitted when the viral load is low. undetectable, it is a cause for particular concern.” In general (and although there are likely to be biases related to complicated access to information in some countries), the authors believe that “arrests and prosecutions for HIV-related crimes are often based on inaccurate assumptions about HIV, and that prosecutions are not limited to cases of intentional HIV transmission (i.e., where malicious intent to transmit HIV is proven and transmission is proven beyond a reasonable doubt).” But, here again, there is also progress.”In some jurisdictions, scientific evidence of low or no risk of transmission has been accepted by the courts to acquit people living with HIV. In Germany, for example, the court took into account the undetectable viral load of the charged to acquit him of attempted grievous bodily harm.
In a case involving breastfeeding in Uganda, the court noted that “knowing someone is HIV-positive does not mean that they will, or can, transmit the virus, unless ‘any other act is committed that exposes another person to infection’.
progress despite everything
During the period covered by this report (January 1, 2019 to December 31, 2021), four HIV criminalization laws were repealed (Sweden, Zimbabwe, Illinois and New Jersey). Another law was declared unconstitutional (Colombia) and six laws (one in Armenia and five in the United States: Washington, Michigan, Missouri, Nevada, Virginia) were modernized, that is, knowledge of the most recent scientific evidence on the risks and harms HIV-related and legal and have taken into account the human rights principles that limit the application of the law. In addition, certain cases have established jurisprudence in four countries and policy recommendations or improvements have been enacted in four other countries. This is particularly the case in France with a 2019 decision recognizing the “I=I”.
What is HIV criminalization?
“HIV criminalization is the unjust application of punitive criminal laws, regulations and policies against people living with HIV, primarily on the basis of their HIV status,” the Report’s authors explain. “HIV-specific criminal laws and other types of punitive criminal laws and policies are applied against people living with HIV based on allegations of non-disclosure of their health status, potential or perceived exposure to HIV, or unintentional transmission . These laws and their enforcement broadly illustrate the ways in which state-sponsored stigma and discrimination work against marginalized groups with one immutable characteristic, in our case, HIV status. HIV criminalization is both a serious human rights issue and a barrier to universal access to HIV prevention, testing, treatment and care.” (HIV Justice Advance Report 4, page 10).
Established in 2012, HIV Justice Network (HJN) is the leading community-based non-governmental organization working globally to end HIV criminalization. The framework is intended to “echo growing concerns about increasingly punitive approaches to HIV prevention, in particular the inappropriate application of criminal law, despite the discrediting of HIV criminalization as a public health measure” . HIV Justice Network also coordinates another structure, Hiv Justice Worldwide (HJWW), a co-signatory of the Report. Hiv Justice Worldwide is a “global coalition campaigning for the abolition of criminal and similar laws, policies, and practices that regulate, control, and punish people living with HIV because of their HIV status.” It was created in 2017 by the following structures: Aids and Rights Alliance for Southern Africa (Arasa), HIV Legal Network/Réseau juridique VIH, Global Network of People Living with HIV (GNP+), HIV Justice Network (HJN), International Community of Women Living with HIV (ICW), Positive Women’s Network – USA (PWN-USA) and Sero Project (Sero).