Enforcement of HIV Criminalization in Indiana: Body Fluid/Waste Enhancement Laws
Using data obtained from the Indiana Office of Court Services, online court-tracking tools, and Probable Cause Affidavits, this study from the Williams Institute examines the enforcement of Indiana’s HIV-related body fluid laws.
Breastfeeding and HIV: An example of what stigma, discrimination and lack of information can cause.
This video reflects the story of a woman from Argentina who was prosecuted for wanting to breastfeed her baby and in the success of the defense of her rights with the accompaniment of ICW Argentina so that she could comply with the reproductive right of breastfeeding.
Expert affidavit in E.L. case on the impact of laws applied to criminalise HIV transmission or exposure
Affidavit provided to the High Court from Michaela Clayton, a human rights lawyer with extensive expertise in HIV/AIDS and human rights issues, concluding that, in her expert opinion, HIV criminalisation was unlikely to prevent new infections or reduce women's vulnerability to HIV but could in fact harm women rather than assist them, and also may negatively impact both public health and human rights.
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- Traduction française automatisée
E.L. Judgement, Malawi High Court (2016)
On 19 January 2017, the Zomba High Court in Malawi delivered a landmark ruling on the application of criminal law to cases of HIV transmission and exposure through breastfeeding.
The appellant was a woman living with HIV who was convicted of negligently and recklessly doing an act which is “likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code for accidentally breastfeeding another person’s child. She was unrepresented at her trial and sentenced to nine months’ imprisonment.
Before the High Court, she appealed her conviction and sentence and challenged the constitutionality of section 192 of the Penal Code for being vague and overbroad. She raised expert evidence to show the “infinitesimally small risk” of HIV transmission by women on antiretroviral treatment through breastfeeding. The State agreed that the appellant’s conviction and sentence should be overturned and set aside.
At the hearing on 2 December 2016, the Court, per Ntaba J, granted an order that the appellant’s identity be concealed to protect her confidentiality and that of the children concerned.
On 19 January 2017, the High Court acquitted the appellant and ordered her immediate release. It held that the proceedings in the trial court were irregular and “blatantly bias” against the appellant, compromising her right to a fair trial. The Court held that the appellant did not have the requisite knowledge or belief that breastfeeding the complainant’s child was likely to spread HIV and cautioned against the misapplication of criminal law in cases of HIV transmission and exposure. The Court recommended the constitutional challenge be filed for separate determination considering the national interest in the issue.
The appellant was represented by Mr Wesley Mwafulirwa of John Tennyson Associates.
- Alternative links
- HJN feature on the impact of this case, SALC resources on this case
HIV: A Guide for Police Forces. How to address HIV in police occupational health policies and blood-borne training, UK.
Includes information about how HIV is transmitted, what to do if exposed to HIV, how to respond to someone with HIV, and information about criminal prosecution for HIV transmission. Also has an easy-to-use check-list to ensure blood borne virus training and occupational health policies are fit for purpose and up-to-date. Endorsed by the British HIV Association.
Pity Mpofu Samukelisiwe Mlilo v The State, Consitutional Court of Zimbabwe
On appeal, the Consitutional Court of Zimbabwe decided the only defence to prosecution is disclosure of known or potential HIV infection and suggested people with HIV can be discriminated against by the law if the reason is to protect public health.