Since July 19, 2019, a new version of article 157 “Transmission of Human Immunodeficiency Virus” of the Criminal Code of Belarus has been enforced. Despite the approved amendments to this article, it still contributes to vulnerability of the key populations, in particular serodiscordant couples (where one of the partners has HIV). However, a solution has been found, thanks to which the amendment will be able to serve for the benefit of people living with HIV.
There is a number of important provisions in the new version of article 157 of the Criminal Code of Belarus.
- Knowingly exposing another person to HIV is punished with a fine or an arrest or imprisonment for up to three years.
- If an individual, who knows about being infected with HIV, transmits HIV to another person recklessly or with indirect intent, this offense is punished with imprisonment for the term from two to seven years.
- The action stipulated by the second part of this article committed against two or more persons, or a person who is known to be a minor, or with direct intent, is punished with imprisonment for the term from five to 13 years.
Besides, the amendment to this article says that the individual committing the actions stipulated in the first and second parts of the article may be relieved from the criminal liability in case if the other person, who was exposed to HIV or was infected with HIV, had been in advance warned about the fact that such individual had HIV and voluntarily agreed to perform any acts, which led to HIV exposure.
Before this amendment was enforced, the People PLUS Republican Public Association in cooperation with the Republican Center for Hygiene and Epidemiology held a round table to develop a set of measures, which would allow people to fully use the amendments in laws and protect themselves from the criminal prosecution. It resulted in the development of a road map and other documents regulating the fact of warning, which would lead to the enforcement of this amendment. Such documents include.
– New form “How to warn another person that I have HIV”
– Form to warn a contact person of a patient with HIV
– Memo on HIV prevention
“When preparing the documents, we tried to take into account any possible circumstances and potential barriers,” says Anatoliy Leshenok, Deputy Director of the People PLUS Republican Public Association. “For example, the Investigative Committee, commenting on the amendment, pointed out that it is important to understand what is the procedure to check in which state an individual gave his or her consent to have a contact with a person living with HIV, to check if he or she had enough information, etc. The Notary Chamber suggested to register informed consent as a confirmation of consent for the contact with a person living with HIV. The Republican Center for Hygiene and Epidemiology developed a new notification form to be used when registering people with HIV diagnoses for follow-up, provided explanations on the amendment to article 157 of the Criminal Code of Belarus and told that it is possible to come to them with a partner to register the fact of warning of HIV exposure. A memo on HIV notification has also been developed and will be published within our project. It will be given to the partners of HIV-positive people. The memo contains contact details of the organizations providing services to PLWH as well as legal consultations.”
Who is at risk?
In the recent 6 months, there were 55 criminal cases initiated in Belarus based on article 157 of the Criminal Code. This number is similar to the one that was registered in 2018. However, it should be noted that 28 cases out of this total number were opened based on the first part of this article, where there is no fact of HIV transmission, but only a perceived risk.
“Recently, we were defense witnesses at a court hearing, when the defendant was charged with putting five sexual partners at risk of HIV,” tells Anatoliy. “The defendant did not transmit HIV to any of those partners – he took ARVs and had an undetectable viral load. The court took into the consideration the scientific consensus statement on HIV transmission, the answer of a WHO representative and the reply from the Professor of the Infectious Disease Department of the Belarus State University on the risk of HIV transmission by a person with suppressed viral load. However, the verdict of the court was that there was still a risk of HIV transmission, so the sentence remained unchanged – 18 months at standard regime penal colony. Just imagine – 18 months of imprisonment for not transmitting HIV to anyone!”
In fact, article 157 put a question mark over the existence of serodiscordant couples, who often live together for many years and even have children. Usually, within such criminal cases charges are brought against a husband or a wife, while the “victim” clearly states in court that he or she has no complaints to the spouse and that he or she was consciously taking risk to conceive a child with a loved one.
Drawbacks of this article also relate to the fact that criminal cases are initiated with no complaints from the victim.
“When making amendments in article 157, we were suggesting more radical changes – to fully exclude responsibility for exposure to HIV from this article – but the society is so far not ready for such changes,” continued Anatoliy. “Currently, the cases initiated based on this article are reviewed, where the sentences directly state that the partner was informed about HIV and consciously agreed to the actions, which led to HIV transmission or exposure to HIV. According to the Code of Criminal Procedure, the review of such cases is initiated by penal colonies and prisons, and if a person is not imprisoned, such person should file a relevant request for review with a court.”
Approval of the amendment to article 157 of the Criminal Code “Transmission of HIV” together with the set of enforcement measures, which were implemented through the grant from the Emergency Support Fund for Key Populations in Eastern Europe and Central Asia (EECA), allowed talking about the first successes of the activists in HIV response in Belarus. Now hundreds of people can have the record of their conviction expunged, with many more who will be able to avoid criminal prosecution.