Prospects of legal regulation of HIV status and sex work in Ukraine with Oksana Kashyntseva. Part One

At what stage of discussion in the Parliament of Ukraine today are the draft laws on decriminalization of HIV status and sex work? Will comprehensive digitalisation help us today? When will we see a new progressive Criminal Code of Ukraine, and why the European track of Ukraine is so important?

To your attention is part one of the interview with Oksana Kashyntseva, lawyer, PhD in Law, coordinator of the legal team of the “Fight for Health” Platform.

Since 2014, CO “Legalife-Ukraine” has been actively engaged in advocating for changes in Ukrainian legislation on decriminalization of sex work and protection of the rights of vulnerable groups. Since 2022, with the support of CO "100% Life”, legal experts of the “Fight for Health” Platform have also been involved in this work.

"Legalife-Ukraine ("L-U"): Oksana, we welcome you to our portal "Legalife-Ukraine" and propose to continue our discussion on the prospects of amendments to the Legislation of Ukraine, which was launched back in December 2023 at the Forum of Sex Workers of Ukraine. Let’s start with this one - at what stage is the new version of the Law on HIV now?

Oksana Kashyntseva (O.K.): The Law on HIV (the Law of Ukraine "On Countering the Spread of Diseases Caused by Human Immunodeficiency Virus (HIV) and Legal and Social Protection of People Living with HIV") was voted by the Verkhovna Rada back in January 2023. So the Law has been adopted, and now we are talking about the development of by-laws, and all the communities united by the "100% Life" organization are actively involved in the process.

From the novelties, from what is extremely important for us in this Law and what we advocated for, there is the elimination of stigmatizing terminology, such as "a person who is infected with HIV", as it was in the previous version. This has been changed to "a person living with HIV" which is in line with UNAIDS and WHO (World Health Organization) recommendations and documents.

HIV-positive status of a person is a way of life, not a sentence in the literal sense of the criminal interpretation of such status.

Another very important novelty is that one should form one’s own interest to treatment, i.e. to take antiretroviral therapy (ART) regularly. This novelty, which at the level of law enshrines such a standard, which is in all documents of the World Health Organisation (WHO) in the guideline: "undetectable - untransmittable" - means that a person who is HIV-positive and regularly takes ART, reduces the viral load in the blood to those indicators (the relevant indicators are posted on the website of the Centre for Public Health of the Ministry of Health of Ukraine), which make him/her safe in the context of the possibility of HIV infection and transmission. A person in the state of viral suppression in accordance with the WHO guideline, even having unprotected sex (which, of course, no one calls for) is safe for hisher sexual partner. We will come back to the legal meaning of this status in the context of HIV decriminalization later.

And there is another very sensitive point in this Law, it is cautiously traced in the guideline, but it is very important for us - it is the possibility of breastfeeding a child at birth by a woman who is HIV-positive and has viral suppression. Yes, it’s often a very important for a woman. Well, here we are getting to our next question.

“L-U”: Yes, to the decriminalization of HIV status.

O.K.: Yes, to the decriminalization of HIV. Unfortunately, criminal legislation still retains Soviet vestiges: the criminalization of the disease. Article 130 of the Criminal Code of Ukraine provides that a person living with HIV, without intent, unconsciously, without committing any active actions, “creates a danger of infection” to another person. For example, heshe does not warn hisher sexual partner about hisher HIV-positive status, and at the same time there is always a complex evidence base: whether or not shehe uses mechanical contraception (use of condoms). Under what circumstances does such contact occur, in what form should a person living with HIV (and should shehe?) inform their partner. Are we going to respect confidentiality and secrecy of diagnosis in accordance with the European Convention on Human Rights? If a person with HIV is taking ART and knows that heshe is in a state of viral suppression, should heshe inform hisher partners, those with whom heshe plans to have a “romantic relationship”... and, forgive me the cynicism, on the first or second date heshe should do this?

Parts 1-2 of Article 130 of the Criminal Code of Ukraine, due to its legal uncertainty and lack of evidence, are often used by law enforcement agencies as blackmail of people with HIV. Knowing about a person’s HIV-positive status, police open pre-trial proceedings for the very fact (by the way, not proven) of sexual relations of such a person. We analyzed pre-trial and judicial practice, and we can note that virtually all of these cases do not «survive» to court verdicts, remaining a mechanism for trolling of the people with HIV.

By the way, we additionally proposed to include the military as a key group; their contact with blood is high and difficult to predict. Here sensitive issues of blood transfusion arise in conditions where it is not possible to verify an individual’s HIV status even with rapid tests.

The presence of criminal responsibility for the fact that a person unintentionally could infect another person only by the fact of being a carrier of the HIV pathogen - this does not withstand any criticism. There is no such norm in the criminal legislation of any progressive country, in particular in the countries of the European Union.

Yes, we realize that there is such a phenomenon as “AIDS terrorism”, or “HIV terrorism”, when a person, knowing about hisher HIV-positive status, and, moreover, not wanting to undergo treatment, deliberately contaminates (infects) another person with the immunodeficiency virus. This so-called HIV terrorism or AIDS terrorism should be qualified by criminal law as a criminal act. Any other intentional infection with an infectious disease is also a criminal act. As a rule, we say that these are diseases that are transmitted sexually, but not only. For example, along with HIV, the current Criminal Code also provides for liability for infection with a sexually transmitted disease, which, according to the latest data, can be successfully treated and, accordingly, cannot be classified as serious bodily harm.

Obviously, intentionally infecting another person should be a criminal offense, but it should be part of another crime, grievous bodily harm. And, by the way, here it has no legal significance how exactly the person was infected: due to sexual intercourse, by insufficiently disinfected medical instruments, whether it was violent acts of a physical nature with or without penetration, or of a psychological nature. If such actions lead to serious physical consequences for a person, this must be qualified under the article of intentional grievous bodily harm in accordance with Article 121 of the Criminal Code of Ukraine.

Oksana Kashyntseva, lawyer, PhD in Law, coordinator of the legal team of the “Fight for Health” Platform

Today, there are several bills in Verkhovna Rada of Ukraine, that provide for full or partial decriminalization of HIV. One directly responds to the request of people with HIV. If we move chronologically, it is draft law 5488 "On Amendments to the Code of Ukraine on Administrative Offences and the Criminal Code of Ukraine on Combating Discrimination"; draft law 6365 On Amendments to Article 130 of the Criminal Code of Ukraine on Reducing Stigma and Discrimination against People Living with HIV. This draft law abolishes part 1 of this article - Conscious putting another person in danger of infection with human immunodeficiency virus or other incurable infectious disease dangerous for human life. But, at the same time in this draft law shamefully remains the very article 130 of the Criminal Code, which provides for the punishability of a carrier of HIV. It is about nothing.

There is a new draft law registered by the People’s Deputy Oleksandra Ustinova, which removes this worthless practice of prosecution for the disease, and proposes to abolish Article 130, and to transfer the composition of intentional acts, introducing a note to Article 121 of the Criminal Code of Ukraine on grievous bodily harm. In addition, on the initiative of the "100% Life" Network and CO “Legalife-Ukraine”, Ustinova’s bill went much further. Since actual Criminal Code provided for another shameful norm - it is deliberate infection with sexually transmitted diseases. Which is also an absolutely disgraceful phenomenon for a state governed by the rule of law. Consequently, it is natural that your community, "100% Life" and we all unite our efforts, advocating for complete abolition of criminal liability for unintentional infection with any disease. Instead, there should be a shift of "intentional acts" to "grievous bodily harm."

“L-U”: What is happening with these bills today?

O.K.: There are also discussions in the profile committee with the participation of leading experts in criminal law. Professor Natalia Gutorova, an academician of the National Academy of Legal Sciences, is a supporter of the cancellation of the infamous Article 130 of the Criminal Code.

Relevant legal conclusions in support of the abolition of Article 130 of the Criminal Code with the transfer of intentional HIV infection are also provided by the Stashis Institute for the Study of Crime (ACADEMICIAL STASHIS SCIENTIFIC RESERCH INSTITUTE FOR THE STUDY OF CRIME PROBLEMS). Infectious disease doctors, WHO experts and representatives of the Ministry of Health of Ukraine also took part in this discussion.

We have every reason to believe that the shameful Article 130 will be repealed.

We must pay tribute to the MPs who are listening and ready to hear the position of "100% Life" and the communities. However, the MPs are asking for additional arguments, quite rightly from the Ministry of Health (MOH). And here now the ball is on the side of the Ministry of Health of Ukraine, as to what diseases, as of today, they can qualify as serious bodily injury. It is very difficult with this qualification, because WHO does not have the appropriate qualification. The Ministry of Health prepares a list of such diseases according to the knowledge of the latest medicine, not based on the old Soviet medical data. Chief State Sanitary Doctor, Mr. Kuzin, should develop such a list with his office and provide it. For six months we have been waiting for this list from the Ministry of Health, although we were promised to get it within a month. Considering the European integration track of Ukraine today, and how we should look in the eyes of European society, and we should look decent, and not punish people for diseases, it is obvious that such a delay from the Ministry of Health is incomprehensible to us.

 I think that both CO "100% Life" and your community will continue to actively advocate and demand, exactly demand from the Ministry of Health appropriate explanations, submission of a list of recommendations for the Law Enforcement Committee of the Verkhovna Rada, so that we could correctly qualify in the future the actions that will have HIV-terrorism in their composition.

This article will be removed from the Criminal Code – that’s for sure. It is also worth noting, that we have a working group working on the development of a new Criminal Code, with new approaches: human centric, where we move away from the principle of punishment and move to the principle of protecting the interests of society, prevention, probation.

"L-U": Who advocates this new Criminal Code of Ukraine?

O.K.: A relevant working group has been created under the head of the Verkhovna Rada of Ukraine, and the academic community and human rights organizations advocate for it. There is a very powerful human-centric human rights lobby. This is part of the scientific and human rights community that focuses on the decisions of the European Court of Human Rights (ECHR) and on the criminal legislation of European countries. But, taking into account the procedure for the adoption of any code, especially the criminal code, until it is voted, while the transitional provisions are in effect, it can take up to 6 years. That is, you and I will have to live according to the old criminal legislation for another 6-8 years. And by no means neither your community, nor other communities whose interests are represented by CO "100% Life" are going to put up with such a rudimentary Soviet phenomenon that our northern neighbor has, which accordingly characterizes it, and which is absolutely inadmissible to be preserved in criminal legislation of Ukraine.

The second part of the interview with Oksana Kashyntseva can be found at the link here

Interview: CO “Legalife-Ukraine” team