2022 年回顧:HIV 司法的轉折點?
資料來源:2022 年 12 月 16 日/HIV 司法網絡/財團法人台灣紅絲帶基金會編譯
HIV Justice Network Impact 執法 法律和政策 科學
回顧 2022 年發生的一切,我們謹慎樂觀地認為 2022 年將被視為全球結束愛滋病定罪運動的轉折點。 在 2021 年的勢頭的基礎上,我們慶祝過去一年中許多國家和司法管轄區在判例法、法律改革和政策方面取得了可喜的發展。儘管還有很多工作要做,但很明顯正在取得進展——這主要歸功於 愛滋病病毒感染者的領導。
延續兩年前開始的趨勢,總體而言,與愛滋病相關的起訴數量似乎有所下降。 今年,我們確定了 16 個國家和美國七個州的 49 起新的 HIV 定罪案件的媒體報導。 相比之下,去年 20 個國家有 54 個新病例(仍低於前幾年報告的數量)。 今年,俄羅斯的病例報告數量最多,其次是美國(佛羅里達州有多起病例)和法國。
有可能我們看到的媒體報導較少,因為實際上案件較少,但我們必須始終將這些已知案件視為對愛滋病毒感染者可能更廣泛、記錄不詳的刑法使用的說明。 媒體、公共衛生當局和執法部門可能仍因俄羅斯入侵烏克蘭和 COVID-19 的影響引發的全球金融危機而分心——這種流行病繼續對愛滋病毒感染者造成不成比例的影響。
在前幾年接近榜首之後,白俄羅斯已經從「最多案例」名單中剔除。 去年,白俄羅斯調查委員會報告了 34 起新的與愛滋病相關的刑事案件。 今年很可能有一些(未報告的)案件,但也很明顯,自 2020 年以來案件數量一直在放緩,這可能是由於與政府正在進行的討論以限制刑法的使用。
加拿大曾經是愛滋病定罪的全球領導者,但今年沒有新案例報告。 事實上,來自加拿大的唯一案例報告是關於安大略省上訴法院在承認沒有現實的傳播可能性後推翻了一項定罪,因為被指控的婦女的病毒載量無法檢測到,而另一名安大略省上訴法院基於 關於被告人的精英控制者身份。 這些積極的裁決是在多年的持續倡導之後做出的,這也導致聯邦政府就刑法改革展開了公眾諮詢。 加拿大愛滋病毒定罪改革聯盟歡迎這次磋商,認為這是法律改革具體行動的第一步。
今年早些時候,台灣最高法院還承認了治療的預防益處,維持一名病毒載量檢測不到的男子被判無罪,該男子被控涉嫌所謂的愛滋病毒暴露。 但在亞洲其他地方,新加坡繼續根據嚴厲的法律不公正地起訴感染愛滋病毒的男同性戀者,儘管最近因廢除殖民時代將男性之間的性行為定為犯罪的法律而受到讚譽。 新加坡在起訴男同性戀者在獻血前未披露可能感染艾愛滋病毒的風險方面也處於世界領先地位。 這就是我們在 9 月發布 Bad Blood 報告的原因,該報告得出結論認為,將 HIV 感染者獻血定為犯罪是一種不相稱的措施——這是與 HIV 相關的恥辱和恐同症的結果,並沒有得到科學的支持。
在美國,由於人權和公共衛生組織支持的愛滋病毒感染者網絡的持續倡導,我們繼續看到制定針對愛滋病毒的刑法的州數量有所減少。 2022 年,喬治亞州對其法律進行了現代化改造,新澤西州成為美國第三個完全廢除其針對 HIV 的刑法的州。 拜登總統在他的世界愛滋病日宣言中再次強調了將愛滋病毒定為刑事犯罪,稱道「過時的法律沒有科學依據,它們會阻礙檢測並進一步邊緣化愛滋病毒陽性者」。10 月,總統愛滋病毒/愛滋病諮詢委員會一致通過了一項關於HIV 分子監測的歷史性決議,這對於保護 HIV 感染者的人權和尊嚴至關重要。 但是,儘管民間社會強烈反對,但有問題的新法律仍在繼續頒布。 11 月,賓夕法尼亞州州長湯姆·沃爾夫 (Tom Wolf) 將一項過於寬泛、不科學的法規簽署為法律,該法規將在某人「本應知道」自己患有這種疾病時傳播包括 HIV 在內的傳染病定為重罪。
來自非洲大陸的消息也喜憂參半。 3 月,辛巴威成為第二個廢除其針對愛滋病毒的法律的非洲國家(剛果民主共和國於 2018 年廢除了其法律)。 這一勝利證明了一項多年、多方利益相關者運動的有效性,該運動始於民間社會倡導者提高社區和議員的敏感度,特別是議會衛生和兒童保健委員會主席 Ruth Labode 博士。 她於 2018 年開始推動修改法律,此前她一直支持她認為保護女性選民的條款。 10 月,中非共和國還頒布了一項新的愛滋病毒法,主要側重於為愛滋病毒感染者提供社會保護,但沒有任何刑事定罪條款。
同樣在 10 月,賴索托高等法院在對《性犯罪法》的部分條款提出憲法挑戰後做出了肯定的判決,這些條款對被判犯有性犯罪行為的愛滋病毒感染者判處強制性死刑。在 HIV JUSTICE WORLDWIDE 聯盟成員和其他人的介入下,法院裁定 HIV 感染者與所有其他人享有同樣的生命權——並減刑。
然而,非洲大陸其他地方的消息並不那麼樂觀。 經過六年的等待,對烏干達《愛滋病毒/愛滋病預防和控制法》中一些問題最嚴重、將其定罪的部分提出的憲法挑戰在 11 月被徹底駁回。 我們正焦急地等待鄰國肯亞對類似案件的裁決。 它是五年前提交的,後來被推遲了好幾次。 今年,我們還失去了烏干達護士和 HIV 定罪倖存者 Rosemary Namubiru,她是今年國際愛滋病大會上伊麗莎白泰勒遺產獎的追授獲得者。
2022 in review: A turning point for HIV justice?
16 December 2022/HIV Justice Network
HIV Justice Network Impact Law enforcement Laws and policies Science
Looking back on all that happened in 2022, we are cautiously optimistic that 2022 will be seen as a turning point in the global movement to end HIV criminalisation. We celebrated promising developments in case law, law reform and policy in many countries and jurisdictions over the past year, building on the momentum of 2021. Although there is much more work yet to do, it’s clear that progress is being made — thanks primarily to the leadership of people living with HIV.
Continuing a trend that began two years ago, overall there seems to have been a decline in the number of HIV-related prosecutions. This year we identified media reports of 49 new HIV criminalisation cases in 16 countries plus seven US states. This compares to 54 new cases in 20 countries last year (which was still fewer than reported in previous years). This year, the highest number of case reports came from Russia, followed by the United States (with multiple cases in the state of Florida), and France.
It is possible that we are seeing fewer media reports because there are actually fewer cases, but we must always consider these known cases to be illustrative of what is likely a more widespread, poorly documented use of criminal law against people living with HIV. The media, public health authorities and law enforcement may still be distracted by the global financial crisis precipitated by Russia’s invasion of Ukraine and the impact of COVID-19 — a pandemic that continues to disproportionately impact people living with HIV.
After being near the top in previous years, Belarus has been bumped off the ‘most cases’ list. Last year, the Belarus Investigative Committee reported 34 new HIV-related criminal cases. It’s highly likely that this year there were some (unreported) cases, but it’s also clear that the number of cases has been slowing down since 2020, possibly due to ongoing discussions with the government to limit the use of the criminal law.
Canada used to be a global leader in HIV criminalisation, but no new cases were reported this year. In fact, the only case reports from Canada were about the overturning of a conviction by the Ontario Court of Appeal after it accepted there was no realistic possibility of transmission as the accused woman had an undetectable viral load, and another Ontario Court of Appeal acquittal based on the accused man’s elite controller status. These positive rulings follow many years of sustained advocacy, which has also led to the federal government opening a public consultation on reforming the criminal law. The Canadian Coalition to Reform HIV Criminalization has welcomed this consultation as a first step to concrete action on law reform.
Earlier this year, Taiwan’s Supreme Court also recognised the prevention benefit of treatment by upholding the acquittal of a man with an undetectable viral load who was accused of alleged HIV exposure. But elsewhere in Asia, Singapore continues to unjustly prosecute gay men living with HIV under draconian laws, despite being celebrated for recently repealing their colonial-era law that criminalised sex between men. Singapore is also the world leader in prosecuting gay men for not disclosing a possible HIV risk before donating blood. That’s why we issued our Bad Blood report in September, which concludes that the criminalisation of blood donations by people with HIV is a disproportionate measure — the result of both HIV-related stigma and homophobia, and not supported by science.
In the United States, we continued to see a reduction in the number of states with HIV-specific criminal laws thanks to the ongoing advocacy by networks of people living with HIV supported by human rights and public health organisations. In 2022, Georgia modernised its law and New Jersey became the third US state to fully repeal its HIV-specific criminal law. President Biden again highlighted HIV criminalisation in his World AIDS Day proclamation stating that “outdated laws have no basis in science, and they serve to discourage testing and further marginalize HIV-positive people.” In October, the Presidential Advisory Council on HIV/AIDS unanimously passed an historic resolution on molecular HIV surveillance that will be critical to protecting the human rights and dignity of people living with HIV. But problematic new laws continue to be enacted despite strong opposition from civil society. In November, Pennsylvania’s Governor, Tom Wolf, signed into law an overly broad, unscientific statute that makes it a felony to pass on a communicable disease, including HIV, when someone “should have known” they had the disease.
There was also mixed news from the African continent. In March, Zimbabwe became the second African country to repeal its HIV-specific law (the Democratic Republic of Congo repealed its law in 2018). This victory is testament to the effectiveness of a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honourable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care. She began pushing for a change in the law in 2018, having previously been in favour of the provision which she thought protected her female constituents. And in October, the Central African Republic also enacted a new HIV law that focused primarily on social protections for people living with HIV, without any criminalising provisions.
Also in October, the Lesotho High Court issued a positive judgment following a constitutional challenge to sections of the Sexual Offences Act that impose a mandatory death sentence on persons convicted of sexual offences if they were living with HIV. Following interventions from members of the HIV JUSTICE WORLDWIDE coalition and others, the Court ruled that people living with HIV have the same right to life as all others — and commuted the sentence.
The news elsewhere on the continent, however, wasn’t so positive. After six years of waiting, a constitutional challenge to some of the most problematic, criminalising sections of Uganda’s HIV/AIDS Prevention and Control Act was dismissed outright in November. We are anxiously awaiting the ruling in a similar challenge in neighbouring Kenya. It was filed five years ago and has since been postponed several times. This year, we also lost Ugandan nurse and HIV criminalisation survivor, Rosemary Namubiru, who was a posthumous recipient of the Elizabeth Taylor Legacy Award at this year’s International AIDS Conference.
Women — who were accused in around 25% of all newly reported cases this year — also face criminal prosecution in relation to breastfeeding or comfort nursing, mostly across the African continent. In addition, women living with HIV continue to be threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries. That’s why this year we created the short film, Mwayi’s Story, to highlight the injustice and facilitate discussion about HIV and breastfeeding. We also worked with our HIV JUSTICE WORLDWIDE coalition partners to publish a paper in the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases to highlight these problematic and unjust approaches to women with HIV who breastfeed or comfort nurse.
This year, we learned from the Eurasian Women’s Network on AIDS, working with the Global Network of People Living with HIV, about how women living with HIV are both disproportionately impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region and also leaders in research, advocacy and activism against it. Their report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. Case studies include a woman in Russia who was prosecuted for breastfeeding her baby and several women in Russia who were blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.
The disproportionate impact of HIV criminalisation on women was also the focus of a World AIDS Day statement by the Organization of American States (OAS) calling on Member States to end HIV criminalisation. Earlier in the year, Argentina had enacted a new, comprehensive and non-punitive HIV, STI and TB law.
Nevertheless, there is still so much more to do to reach the global target of fewer than 10% of countries with punitive laws and policies that negatively impact the HIV response. To keep up the momentum, we continued to produce reports and analysis — including our flagship Advancing HIV Justice 4: Understanding Commonalities, Seizing Opportunities — as well as contributed to peer-reviewed journal articles, such as So many harms, so little benefit in the Lancet HIV and Punishing vulnerability through HIV criminalization in the American Journal of Public Health. We’re also doing our best to ensure we change the media narrative on HIV criminalisation, including by contributing to The Guardian’s World AIDS Day podcast on HIV criminalisation.
Our greatest achievement this year was the creation of the HIV Justice Academy. We are very proud of this online platform for e-learning and training which we believe will be a catalyst in building the wider movement to end punitive laws and policies that impact people living with HIV in all their diversity. Already available in English and French, we’ll be launching in Spanish and Russian early next year.
Did we turn the corner in 2022? Only time will tell, but if there is one thing we know for sure it is that changing hearts and minds with respect to HIV criminalisation is a long road with many ups and downs along the way. We know that important progress was made in 2022 and that we begin 2023 with fresh analysis, new tools and a renewed spirit of solidarity.