Global changes at Ukraine’s political arena in spring-summer 2019 created new wave of “big expectations” of the civil society in relation to legislative changes. In the result, along with the calls for immediate punishment of all corrupt officials and restructuring of the national economy, the notion of “decriminalization” came into common use in mass media during the last half of the year.

At the moment, the most well-known are public campaigns for decriminalization of the medical cannabis and sex work.  Both topics are considered to be “hot” from the point of view of the local journalists and surely, in the coming months, we are in for serious discussion in this sphere.

Unfortunately, topic of HIV decriminalization as of today is not in the mass media focus. Draft amendments to the legislation in this sphere were sent to the state institutions for lawyers’ discussion back in the beginning of 2017, but, either because of catastrophic stigmatizing of the topic, or because of the total lack of interest on behalf of the officials to solve this problem, it is still “in cold storage”.

The reasons why the Article 130 part 1 of the Criminal Code of Ukraine is so bad, how the perceptions of the HIV transmission changed for the last 30 years, and what should be done to relieve tens of thousands of Ukrainians from stigma of “potential criminal” we discuss with the Chairman of the Board of the Eurasia Women’s Network on AIDS Svetlana Moroz.

Svetlana, I know that you have huge experience of work in protection of human rights of people living with HIV and you often represent Ukraine at the international conferences on this topic. Is it true that HIV criminalization is common for the Criminal Codes of the countries with different ideology?

According to HIV Justice Network and Global Commission on HIV Data and the Law, as of July 2018, in 68 countries criminal liability is envisaged for non-informing of HIV diagnosis, putting at risk of infecting and transmission of HIV, and HIV positive status can be viewed as circumstances aggravating liability and punishment.

Also there is information about the cases of criminal prosecution in relation HIV-positive status in 69 counties. The leaders on the number of the criminal cases related to HIV are Belarus, Canada, Russian and USA. Yes, exactly in such order.

But, on the other hand, for the period of 2012-2018 in a number of countries, for example, in Venezuela, Ghana, Greece, Honduras, Zimbabwe, Kenya, Malawi, Mongolia, Tajikistan, Sweden and two USA states, the laws, envisaging criminal liability for HIV transfer were repealed. And this is also a fact.

What damage is inflicted on people by HIV criminalization in real life?

HIV criminalization is application of the existing criminal or other legislation in relation to people living with HIV (PL HIV), setting the responsibility for putting in danger of getting infected and infecting with HIV infection.

Overuse of the laws, which criminalize HIV, is the problem of public healthcare, as it undermines based on the factual data strategies regarding HIV prevention, as well as treatment, care and support of PL HIV, and ignores scientific achievements related to the risk of HIV transmission. Criminalization strengthens the stigma related to HIV status, and identifies HIV positive people as potential criminals, which in turn, increases discrimination even more.

This way, the fear of the court prosecution can force many people, living with HIV, and in particular women and representatives of the key groups (people, using drugs, sex workers, migrants, men having sex with men and trans-people) to refrain from receiving required treatments and support, prevents from disclosing information and increases vulnerability of people, living with HIV, to violence.

Much less often it is discussed that such laws impact healthcare workers. When in USA criminal proceedings were underway for HIV positive patient, his doctor was called as a witness. She told how she happened to be in the situation when she had been forced to violate both professional ethics, confidentiality and trust of her patient. When the prosecutor congratulated her with helping in jailing of the “bastard”, the doctor felt devastated, as she could not help her patient and even did harm to him, with that having violated the main oath – “Primum non nocere”.

In Russia it is enough for a HIV positive person to just bite or scratch a policeman to get a couple of months above the main sentence. In Belarus people living with HIV, having lived for a long time in families with kids get real terms, depending on who was first put on doctor’s records.

How did the perception of HIV transmission change over last 30 years?

The science made significant progress. We live in the age of highly active antiretroviral therapy (ART), which made HIV-infection a chronical disease. Three most important researches proved that the risk of virus transmission by HIV-positive people with sufficiently suppressed ART viral load is equal to zero.

At the same time, pre-exposure prophylaxis (PrEP) in line with doctor’s prescriptions, taken by HIV-negative person, practically always protects from getting infected with HIV. These facts helped the lawyers in protection from criminal prosecution on the ground of accusation of HIV transmission and putting in danger of infecting based on erroneous perception of HIV as “deadly weapon”.

What is the main delusion of HIV criminalization?

Criminal prosecution of PL HIV transfers the responsibility for HIV exclusively on them, thus creating the atmosphere of assumed feeling of safety of other members of the society in relation to their health. People think that under penalty of criminal liability their partners will warn them that they have HIV. In reality it rarely happens, because the dynamics of intimate contact, especially of the occasional contacts, excludes such informing. In the result people do not practice safe sex, as they consider that if the partner did not inform of HIV, it means that he is healthy and may not practice safe sex. In many cases additional burden of possible criminal liability for covering the fact of HIV positive status only aggravates the problems, preventing frank discussion of HIV when establishing relations, at work and in the family. In result the society is not protected by exiting criminal legislation in relation to PL HIV from HIV infection, and sometimes it has the reverse effect.

Criminalization created the atmosphere of assumed effectiveness of work of the state: it steers away from implementation of effective programs of awareness raising and HIV prevention.

When my organization started working in the detention facilities in Donetsk oblast back in 2005, I was terrified and outraged when listening to the stories of the social workers about how HIV+ men, which never infected their wives and against which their spouses had no claims, serve their sentences. My colleague from Kharkiv was put on probation only because she was pregnant (mitigating factor), otherwise she would be put in prison because she did not inform the nurse of her HIV-status.

What is the main purpose of legal work related to the HIV decriminalization campaign?

The ultimate goal is to take away HIV infection from the criminal legislation and to use general legislation, for example, injury to health, where the intent of infecting with HIV is proved. Otherwise this is the stigma built into the legislation.

We will consider as a significant move forward the cancellation of the part 1 of the Article 130 of the Criminal Code of Ukraine (knowing endangering of the other person to being infected with the human immunodeficiency virus or any other incurable infectious disease, dangerous for human life, is punishable with the arrest for the term of up to three month or restriction of liberty for the term of up to five years, or imprisonment for the term of up to three years), which is discussed by the lawyers and activists for many years, but suggested laws were lost in bureaucratic corridors back in 2016. In our country there is a progressive law on AIDS, but Criminal Code contradicts it.

And surly, the immediate goal – in our country, where there are current laws envisaging criminal liability for HIV transmission, the courts shall, in compliance with the criminal proceeding standards, demand the proof of intention to transfer HIV. The presence of intention cannot be assumed or grounded by such circumstances as awareness and/or not informing by the convict about his/her HIV-positive status, participation in unsafe sex intercourse, giving birth to a child without undertaking measures to prevent transmission of HIV from the mother to the child, or joint use of the instruments for injecting drug use.

It should be mentioned here that people living with HIV suffer from multiple criminalization as many of them belong to marginal groups – to people using drugs and involved in sex work. They are prosecuted for storing drugs for personal use and for sex work. This is surely a separate big problem worse special attention of Ukrainian human rights defenders.

Prepared by Sergei Myasoedov (UHHRU)

UHHRU provides information and advisory support to the advocacy activities in HIV decriminalization in Ukraine in the framework of the project “Development of the legal network for protection of the people living with HIV/AIDS, representatives of key PLHIV communities and persons ill with TB” with the financial support of the Charitable organization “All-Ukrainian Network of the People Living with HIV/AIDS” in the framework of implementation of the project “Releasing the Burden of TB and HIV infection through creation of the open access to timely and quality diagnostics and treatment of the TB and its resistant forms, expanding evidence based prevention, diagnostic and treatment of HIV infection, and creation of stable and sustainable health protection systems”, which is implemented with the financial support of the Global Fund to Fight AIDS, TB and Malaria.