Conference Countdown: Getting Up To Speed With HIV Criminalisation

QPP’s office is buzzing with anticipation and excitement over the release of the AIDS 2014 program.  HIV Criminalisation is to be a major focus of the AIDS 2014 Conference with it featuring in a number of programs.  With only 3 weeks until the Conference, QPP brings you its 5 minute catch-up guide to the recent (and not so recent) HIV criminalisation developments from around the globe. If you attending the AIDS 2014 conference don’t forget to reserve your place at the Beyond Blame: Challenging HIV Criminalisation pre-conference which is being held on Sunday 20th July!

Ugandan nurse found guilty of exposing a child to HIV via injection

On 7 January 2014, Rosemary Namubiru of Kampala Uganda, a nurse with 35 years of experience, was attempting to give an injection to an ill 2 year old patient when she accidently pricked her own finger. She stopped what she was doing, washed and bandaged her finger, and returned to the child and was able to administer the injection. It is uncertain whether the same needle was used throughout. The mother of the child became concerned that her child had been exposed to HIV. Ms Namubiru was on treatment and a precautionary 2-month post-exposure prophylaxis regimen was initiated to the patient.

Namubiru’s case attracted a plethora of sensationalised media coverage and featured headlines such as “killer nurse”. Dorah Kiconco from the Uganda Network on Law, Ethics and HIV/AIDS commented that Namubiru should have never progressed through the court system, and her case should simply have been referred to the Ugandan Nurses and Midwives Council.

HIV advocates fear the case has set a dangerous precedent, both in terms of the criminalisation of HIV but the treatment and human rights violations of PLHIV. Many commentators believe it may have been a factor behind the passing of the HIV Prevention and Control Act.

HIV Prevention and Control Act

Uganda has also passed the deeply flawed HIV law on 13 May this year that contradicts international guidance, as well as violating human rights standards.

The bill included:

  • Mandatory testing for pregnant women and their partners
  • Allowance for medical providers to disclose a client’s HIV status to others
  • Criminalising wilful and intentional HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status

HIV advocates have labelled the law a major step backward for Uganda and a dangerous global precedent.

Legislative Reform in Iowa

Iowa became the first state in the US to repeal and replace its archaic HIV transmission law. Senate File 2297 was passed 1 May this year with bipartisan support. The bill culminated 5 years of advocacy by a cohort of individuals and organisations.

Under the new law there is a tiered penalty system, which includes taking into account whether a person took precautions, whether HIV transmission occurs and whether or not the person intended to transmit HIV. The law also adds other conditions such as hepatitis, tuberculosis and meningococcal disease. It also no longer requires those convicted of an offence to be placed on a sex offender register, as well as allowing those people convicted under the old law to be removed from the registry.

The bill has been heralded as a much-needed template for other states with HIV specific legislation.

Legislative Reform in Switzerland

The Swiss Law on Epidemics was passed following a national referendum in September 2013 but will only come into effect January 2016.

The Act changes Article 231 of the Swiss Penal Code which has been used in the past to prosecute PLHIV for transmission and exposure including cases where it was unintentional. Now, a prosecution can only take place if the motive of the individual is to infect with a dangerous disease. The process took almost six years from initial consultation on the first draft of the Bill until referendum.

Channelling Expert Evidence: Canada and Switzerland

Swiss Statement

In 2008, the first ever consensus statement that HIV-positive individuals on effective antiretroviral therapy and without presence of STI’s are sexually non-infectious was published. The statement on behalf of the Swiss Federal Commission for HIV/AIDS was authored by four of Switzerland’s foremost HIV experts. This scientific statement continues to have major implications for criminal HIV exposure laws as well as defence strategies. In 2013 we saw Switzerland reform its HIV law (see above).

Canadian Consensus Statement

On 2 May 2014, more than 70 scientific experts across Canada released a consensus statement outlining the low-to-zero possibility of a person living with HIV transmitting the virus in various situations. The statement was developed over the concern that “a poor appreciation of the scientific understanding of HIV and its transmission” is contributing to the overly broad use of criminal charges against people for alleged non-disclosure of HIV status. The consensus statement calls for restraint by Crown Prosecutors and Judges in using the criminal law in situations where the risk of transmission is negligible or even nil.

Australia: POZ action

QPP as a member of the POZ Action collective continues to work to support HIV prevention strategies being driven by an evidence-based practice model of public health interventions. Policies relating to and affecting PLHIV must be in line with international agreements and declarations which call for a human rights enabling environment.

All of us together, regardless of HIV status play a vital role in reducing stigma and taking personal responsibility as public health strategies seek to shift Australia’s response to HIV and eliminate transmission of HIV across the population.

HIV is a health issue not a legal issue. What this means is that health services are the best place to empower people to prevent HIV transmission-not the Courts.

For those of us who are unable to attend conference, keep an eye on QPP’s website, Facebook and blog for all the updates, news and information!

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