We Love Positive Women!

This is a love letter from the HIV Justice Network to the more than 18,000,000 women living with HIV in the world today.

The HIV Justice Network exists to end the inappropriate use of the criminal law to regulate and punish people living with HIV.

On this Valentine’s Day, we are thinking of the thousands of positive women in all of our diversity, inclusive of transgender women, who are currently incarcerated in jails, prisons, and detention centres.

We send love and support to all of the women living with HIV who have survived incarceration around the world.

We highlight the reality that many positive women who are incarcerated around the world are criminalised because of punitive and discriminatory laws on sex work, drug use, LGBT relationships, domestic violence, and HIV status. These laws serve no public health benefit yet lock people away from their homes, families, and communities.

Women living with HIV are actively fighting for justice and against discriminatory legal systems. Positive women have often led the way in the struggle against HIV criminalisation.

We ask everyone to take a quiet moment to send respect and appreciation to these accomplished and dedicated women.

We are you and you are us.

The HIV Justice Network is proud to support the Love Positive Women campaign developed and led by International Community of Women Living with HIV (ICW), one of seven founding partners of HIV JUSTICE WORLDWIDE.

October 23, 2017

Hon. George Mcheche Masaju

Attorney General of the United Republic of Tanzania

Email: g.masaju@bunge.go.tz; ag@agctz.go.tz

Hon. Bahame T.M. Nyanduga

Chairperson, Commission for Human Rights and Good Governance

United Republic of Tanzania

Email: bahame.nyanduga@chragg.go.tz

Hon. Adv. Pansy Tlakula

Chairperson, African Commission on Human and Peoples’ Rights

Email: pansy.tlakula@gmail.com

Hon. Soyata Maiga

Vice- Chairperson, African Commission on Human and Peoples’ Rights

Email: cabinetsoya@afribone.net.ml; soyatam@yahoo.fr

Hon. Solomon Ayele Dersso

Commissioner, African Commission on Human and Peoples’ Rights

Email: Solomon.dersson@gmail.com

Hon. Dr. Asha-Rose Migiro

High Commissioner of the United Republic of Tanzania to the United Kingdom & Republic of Ireland

Email: Ubalozi@tzhc.uk

Hon. Irene F. Mkwawa Kasyanju.

Ambassador Extraordinary and Plenipotentiary & Permanent Representative to the OPCW

Email: contact@tanzaniaembassy.nl

Your Honourable Excellencies,

I am the Global Co-ordinator of the HIV Justice Network based in the UK and the Netherlands and working globally to end the inappropriate use of the criminal law in the HIV response. I am writing regarding the arrests recently carried out by the Tanzanian Police of thirteen individuals, including three lawyers and their clients.

On Tuesday, 17 October 2017, a legal consultation convened by the Initiative for Strategic Litigation in Africa (ISLA) and the Community Health Services and Advocacy (CHESA) was raided by the Tanzanian Police. The consultation was convened in order to get more instructions and evidence on a case that the two organizations planned to file before a court concerning a challenge to the government’s decision to limit the provision of certain HIV-related health services that it had previously provided.

Thirteen people, including two South African citizens, one Ugandan citizen, were detained including ISLA’s Executive Director, Sibongile Ndashe, and CHESA’s Director, John Kashiha. On Wednesday, the Regional Commissioner of police issued a press statement referring to the “arrests” and stated that twelve people who were promoting homosexuality had been arrested. On Friday 20 October 2017, bail previously issued was revoked for everyone for no apparent reason. They were advised that a fresh investigation process was starting and everyone was taken to custody.

The mischaracterization of a legal consultation where lawyers and their clients were discussing a very specific case to be referred to the court as “promotion of homosexuality” is unfortunate and worrying. The police had a copy of the concept note and the agenda of the consultation. Even more alarming is that three lawyers who were part of the group, including Sibongile Ndashe, were arrested together with their clients.

The Tanzanian Constitution enshrines the right to seek legal redress when fundamental rights have been violated (Art 30(3)). The African Charter on Human and Peoples’ rights, which Tanzania is a signatory to, also recognizes an individual’s right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws and customs in force (Art 7(a)). Tanzania is a signatory to a number of international human rights treaties that recognizes these and other related rights.

The arrest of the thirteen people mentioned above is an attempt to intimidate citizens from approaching judicial institutions when their rights have been violated. Furthermore, the arrest of lawyers while they are advising their clients on the steps to be taken to seek legal redress is clearly aimed at creating an environment where lawyers are afraid to provide legal representation and to ultimately create an environment where it is unthinkable to hold the state accountable for human rights violations.

We at the HIV Justice Network are strongly convinced that there is no legal basis for these proceedings, as demonstrated by the press statement released by the Regional Commissioner of police, and that the arrests are arbitrary and politically motivated.

Therefore, we call upon Tanzanian authorities to immediately release the thirteen individuals who are currently arbitrarily detained; to allow citizens to access legal representation without intimidation; to discontinue the ongoing persecution of human rights defenders, lawyers and their clients and refrain from such future actions; and to allow the foreign nationals, whose passports have been seized, to leave the country.

Your sincerely,

Edwin J Bernard

Global Co-ordinator,

HIV Justice Network

Download letter in pdf here: Letter demanding release of ISLA & CHESA consultation participants

Today, at a side meeting convened the United Nations Development Programme (UNDP) during the High-Level Political Forum, HIV Justice Network’s Global Co-ordinator, Edwin J Bernard, delivered the following remarks.

Despite the incredible advances in the science of HIV treatment and prevention, and despite the roadmap created by the prescient and powerful recommendations of the Global Commission on HIV and the Law, too many people who could benefit from these scientific advances are being left behind.

As someone who acquired HIV in 1983 and survived to benefit from treatment, it pains me greatly to know that people are still suffering – dying – unnecessarily due to legal and policy barriers.

There’s no greater manifestation of the stigma of HIV, or of being associated with HIV, than the multitude of bad laws and policies on the books in almost every country in the world that punish people for not conforming to societal or cultural or the dominant religious norms: people living with HIV and other key populations most impacted by HIV.

These laws send people underground, away from services that could offer them dignity, save their lives, and improve the public health – and purse.  HIV prevention and treatment are cost-saving in the long-term: healthy, productive and happy lives make communities, societies and countries rich.

But when healthcare workers are – or are perceived to be – de facto agents of the state, they are unable to deliver healthcare to those that really need it.  That is what bad laws do.

Removing these legal barriers is the most cost-effective intervention any state can do – to ensure they leave no-one behind.  No law reform is too difficult to tackle, no supportive law is too politically sensitive when the lives of people – and the health, dignity and wealth of a nation – are at stake.

In my own work, to see an end to unjust laws and prosecutions aimed at people living with HIV based solely on our HIV-positive status, it is frustrating and heart-breaking to see my brothers and sisters still being prosecuted and convicted under stigmatising, unscientific, overly-broad and counterproductive HIV-related laws that run contrary to the recommendation of the Global Commission and of UNAIDS, and ignore the latest scientific and medical evidence as well as best public health practice.

In the five years since the Global Commission’s report was published, a number of countries and jurisdictions have been moving in the right direction to remove unjust laws and, in some cases, replace them with enabling laws that offer support, not punishment; dignity not despair; a long and healthy life, not an early death.

These changes have required sustained efforts from civil society, including by networks of people living with HIV or other key populations, who have reached out to the judiciary, or parliamentarians, or police, and worked with them to help them understand how and why a punitive approach towards people with HIV, or those communities disproportionately impacted by HIV, does more harm than good.

In my experience, very little gets done without civil society participation.   Whilst we might be perceived as ‘thorns in your side’  or worse by some governments, like Jiminy Cricket we are your conscience, and we will persist despite the shrinking spaces for us due to the changing donor landscape / or underfunding / or laws that prevent us from receiving funds or doing our work.

Because we know we are on the right side of history.

So how do we move forward?

Once enlightened – once you have read and understood that the recommendation of the Global Commission on HIV and the Law – it is clear what needs to be done: remove the laws that create the barriers.

So I am heartened when partnerships form between civil society, scientists, human rights defenders and those in parliament or government. And thank you to UNDP and to UNAIDS for your leadership on this issue. Long may it continue!  And thank you to all of you working in the UN system for your support; please remember it is your role to be a broker – to facilitate partnerships between civil society and government. Please keep doing this crucial work.

Member states: please listen to the communities most impacted by HIV.  We know how to reach those who are left behind.  But we can’t do it when bad laws stand in our way, and we can’t help you change those laws without funding and spaces to meet and work.

Finally, my own organisation the HIV Justice Network – and the HIV JUSTICE WORLDWIDE movement to end unjust HIV criminalisation – has only really flourished since we received funding last year from the Robert Carr civil society Network Fund, a unique multilateral funding mechanism that allows global and regional networks of people living with, and most impacted by HIV, to do the work that no-one else wants to – or indeed, can do.  Please ask your government to support and replenish the fund.

Let’s hear it for Positive Women!

This is a love letter from the HIV Justice Network to the more than 18,000,000 women living with HIV in the world today.

The HIV Justice Network exists to end the inappropriate use of the criminal law to regulate and punish people living with HIV. On this Valentine’s Day, we are thinking of the thousands of positive women in all of our diversity, inclusive of transgender women, who are currently incarcerated in jails, prisons, and detention centres.

We send love and support to all of the women living with HIV who have survived incarceration around the world. We highlight the reality that many positive women who are incarcerated around the world are criminalised because of punitive and discriminatory laws on sex work, drug use, LGBT relationships, domestic violence, and HIV status. These laws serve no public health benefit yet lock people away from their homes, families, and communities.

Women living with HIV are actively fighting for justice and against discriminatory legal systems. Positive women have often led the way in the struggle against HIV criminalisation. Among the many courageous and compassionate leaders in our movement:

We recognize Lillian Mworeko of Uganda and the International Community of Women (ICW), East Africa, for their unflagging media and legal advocacy to overturn discriminatory HIV laws in the Constitutional Court and to ensure that women living with HIV in Uganda can receive a fair trial.

We recognize Martha Tholonah and the women of ICW Zimbabwe for their advocacy in challenging the overly broad and discriminatory Zimbabwean criminal code on HIV exposure.

We recognize Clara Banya and the women of ICW Malawi for their loud insistence that breastfeeding while HIV positive is not a crime and we celebrate with them the positive court ruling in January 2017.

We recognize the courageous positive women of IWC Namibia who stood strong for the autonomy and sexual and reproductive health rights of women living with HIV and fought against sterilisation. We celebrate with them the positive court ruling won in 2014.

We recognize Marama Pala of INA Maori HIV/AIDS Foundation for her advocacy in New Zealand and globally to demonstrate that women’s legal empowerment develops through women’s solidarity and action rather than through a forced status as a victim by the courts.

We recognize Jessica Whitbread of ICW Global for her outspoken advocacy on behalf of positive women’s sexuality and against criminal justice proceedings in matters of intimate relationships.

In the U.S., we recognize Naina Khanna and the women of the US Positive Women’s Network for their participation in the legal challenge to HIV criminalisation in the State of California; Barb Cardell and Kari Hartel and the Colorado Mod Squad for their success in reforming Colorado HIV laws to better protect sex workers and transgender people living with HIV; and Tami Haught and Community HIV/Hepatitis Advocates of Iowa Network for their success in reforming Iowa HIV laws.

We ask everyone to take a quiet moment to send respect and appreciation to these accomplished and dedicated women.

We are you and you are us.

Note: If you know a woman openly living with HIV to add to this honour roll, please let us know.

The HIV Justice Network is proud to support the the Love Positive Women campaign developed and led by International Community of Women Living with HIV (ICW), one of seven founding partners of HIV JUSTICE WORLDWIDE.

Criminal Charges for HIV Non-disclosure, Exposure and Transmission: Legal Violence and the Lives of People Living with HIV

The following is an edited version of remarks presented by Alexander McClelland as part of ‘The Movement to End HIV Criminalization’ panel, held on September 15 2016 at Concordia University, Montreal, Canada.

Introduction

My work examines the relationship between the law, life and disease. I look at what takes place at the intersection of legal and medical knowledge, including what kinds of processes are deployed and enacted onto people as a result of that intersection. In relation to studying law and society, I examine law from a perspective that there is no absolute legal truth, but rather, that laws and who is understood as ‘criminal’ are developed over history and change based on social norms and contexts.

My research is examining the lived experiences of people who have been criminally charged in Canada in relation to HIV non-disclosure, exposure and transmission. As we know, Canada is a country recognized with having high rates of criminalization towards people living with HIV. Canada is one of the leading countries in the world to prosecute people with HIV who have not told a sex partner they are HIV-positive if that sex poses a ‘realistic possibility of transmission’, this is defined by the Supreme Court of Canada as sex without a condom and a low viral load combined. Under this application of the law people have been imprisoned when they were uninfectious due to HIV medications and when there was no transmission of HIV.  It is estimated that there are approximately 180 cases that have taken place since 1989, when the first criminal charges were laid. And the trend indicates that the number of new cases is on the rise.

These approximately 180 cases have been applied asymmetrically and do not follow the epidemiological trends of the HIV epidemic, which if the law was objective, might be the case. Rather, through enumerating the cases with demographic data, social researchers have been able to reveal the biased racialized and gendered dimensions of this criminalization phenomenon. As a majority of those charged and prosecuted have been black men who have had sex with women.

Using a feminist form of sociological ethnographic inquiry[i], my approach has been to examine the impact of these laws on the people who they have targeted, from their own perspective. This kind of research aims to ensure that people do not become just objects to be studied, but are rather understood as people who are active agents. The premise of my work is to centrally place the experiences of people with HIV who have experienced criminalization first-hand so that efforts to address injustice and over-criminalization are directly informed by people’s lived realities.

I am a qualitative researcher and my work consists of archival research and a series of qualitative interviews. So far I have spoken with 14 people from across Canada.  Through these interviews I aim to understand how being criminalized has materially shaped people’s lives. My research is still ongoing so what I am presenting is preliminary and still in process.

Every person I have spoken with who was charged criminally (12 of the 14) was charged with aggravated sexual assault, often more than once, along with a diverse range of other charges. Aggravated sexual assault is one of the harshest and most serious charges in the criminal code reserved for violent rapes involving a weapon, which can receive a sentence of life in prison. In the cases I looked at, the aggravating factor is understood by the courts to be HIV.

Living in a negative relation to the law

The people I have worked with live their lives in a negative relation to the law[ii] due to being labelled a ‘criminal’ and a ‘risk to public safety’ through being charged and/or prosecuted in relation to HIV non-disclosure, exposure or transmission. Living in a negative relation to the law means that one is rendered less of a person with codified rights, less of a person who is in need of protection from the law, and is rather regarded more as object of risk that legally constituted persons are to be protected from– protected from through forms of control, coercion and incapacitation. Being placed in a negative relation to the law is something that is enacted onto people of colour, people in poverty, people deemed deviant. This is a practice of extending the power of colonization, white supremacy, misogyny and homophobia, among others forms of marginalization and oppression.

People living with HIV today in Canada often live in a negative relation to the law just due to the fact that they are HIV-positive. We can very easily be placed in a tenuous relationship with our legally regarded personhood.

At its most severe, living with HIV in a negative relation to the law means your body can be disappeared by the state with impunity. Here I am thinking of the lives of H. Matthews and I. Williams.[iii]

Matthews, at 26 years old, a black man and newcomer to Canada, was convicted of 2 counts of aggravated sexual assault, one count of assault, and two other minor charges for not telling 4 women his HIV status before having sex with them. None of the women contracted HIV. He was sentenced to 40 months in prison. When he entered prison his CD4 count was 560. But while in prison he reported a series of health issues to the staff and in less than a year his CD4 count was 160 and he had lost 36 pounds. Despite seeing a number of medical experts, at no time over the course of his engagement with the criminal justice system was he put on any anti-HIV treatments despite being incarcerated because he potentially exposed others to HIV.

Matthews died of AIDS on 12th of August 2007 in Central North Correctional Centre in Penetanguishene Ontario at 27 years old in a country in an era and country where, due to supposed access to life-saving medications, dying of AIDS has been increasingly rendered a rare occurrence, but where incarceration for HIV non-disclosure has been on the rise. There was an inquest into Matthews’ death, but in inquests into prison deaths in Canada, no one can be found culpable, and no one was held accountable for his death. The only reason information was released about his cause of death was because corrections staff were subpoenaed to testify at the inquest. Otherwise the ministry of corrections did not release any information about his death despite repeated requests from Matthews’s family and community organizations. A series of nine recommendations were made from the inquest to prevent future deaths, none of which have been implemented by the ministry of corrections. In the coroners report it indicated that he died of ‘natural causes’.

Another life that was disappeared was that of I. Williams, at 49 years old, who was first person sentenced after the Mabior Supreme Court decision in 2012. This was the second conviction for the father, who was sentenced to 4 years 9 months, which he served in Warkworth Institution in Ontario. As a Trinidad-born permanent resident, he would be deported after completion of his sentence. He pled guilty to charges of aggravated sexual assault. HIV was not transmitted to any of the women involved in the case.  At the trial Williams stated he had been diagnosed with HIV in 1996, and had since been lonely and was been shunned by family and strangers alike soon as they learn of his status, as reported by the Toronto Star, he stated: ‘I feel very sorry for them people that I put that fear in them because I’m afraid, I’m afraid to be rejected, It is inhumane,’ he wept. ‘It’s very cruel,’ he said to the judge. He also told that court that convicting him and deporting him to Trinidad would be akin to a death sentence, because there he would not receive the health care he needs.

On October 1st 2013 Williams was reported as dead while in custody. Informal reports from people close to Williams indicated that he had been trying to get medical care for an injury for over six days before he was found dead due an untreated abscess on his leg.  No details were released from Corrections, and there was no inquest into his death.

Amplification of penality: The compounding violence of HIV & criminal charges

Very plainly, living in a negative relation to the law in Canada when having HIV results in an amplification of penality. In Canada, the intersection of HIV and law in relation to non-disclosure, transmission and exposure makes possible a range of legal and bureaucratic punishments, including the most severe and harsh available, along with a range of interpersonal, casual forms of stigma, discrimination, punishment and violence. Understanding the different ways that violence manifests can help us understand the best course of action to call for accountability.

All of these types of punishment result in violence, violence that can be called legal violence.[iv] Legal violence being the forms of violence that are made possible once someone has engaged with the law. Examining the phenomena of HIV criminalization with the concept of legal violence can help us to understand the relationship between law and violence and how people become targets of violence because they are targets of the law.

The amplification of penality that manifests in these cases means that mechanisms usually reserved as exceptions can easily become the rule. Exceptions such as the police releasing a photo to the public before prosecution for reasons of ‘public safety’, denying people bail even if they have never been charged before and present themselves with their family as not being a flight risk, denying people a pre-trail assessment, being tried as an adult and being placed in an adult jail when under-age, placing people in solitary confinement for long periods of time for reasons of security, or labelling people with dangerous offender status (meaning someone can be confined indefinitely after a sentence is served). These exceptions can come to be the norm in cases of HIV non-disclosure, exposure and transmission.

Guilty before proven innocent

The amplification of penality begins as soon as the charges are applied and does relate to a guilty verdict: People who are accused can be treated as guilty before proven innocent, and not the other way around.

For example, after being charged with one count of aggravated sexual assault, one indigenous man I spoke with was fired from his job due to being charged with rape and by having his HIV-positive status widely disclosed without his consent by people close to the woman who accused him.  The man told to me that he had been in a relationship with the woman and had previously disclosed to her, when he broke up with her she went to the police. The aggravated sexual assault charge and loss of his job caused the man to have a mental breakdown. He then lost his housing and ended up living out of a McDonald’s bathroom. All of his friends turned against him, and he removed himself from social media due to the intense levels of daily harassment he faced online. The mark of just the accusation caused his entire reality to be drastically altered for the worse. He is still awaiting trial.

A white woman whom I spoke with attended a hotel party and blacked out at the party, where she was then gang-raped. She told me she did not have the capacity to disclose her HIV-positive status, as she was extremely intoxicated at the time of the assault against her. The next day she went to the police, who took a statement from her. The following day she was charged with multiple accounts of aggravated sexual assault. Her photograph, HIV-positive status and biometric details were widely distributed by the police, at which time multiple media articles were written about her. Because she had a history as a sex worker the articles painted her as a predator with HIV who was trying to spread HIV to others. Her privacy breached, her social life ruined. HIV was not transmitted to any of the men involved. She was prosecuted and ultimately served over 5 years in a corrections institution.

A black man I spoke with, after being called by the police about his charge of aggravated sexual assault, went to the police station to turn himself in. At the police station he was questioned without a lawyer present, and then was taken into a separate room and severely beaten by police. He was knocked unconscious and unaware of what had happened to him. Afterwards the police put him back in the questioning room and told him that nothing had happened and that he was fine. He is certain he was beaten due to having HIV and being charged with a rape charge. The accuser did not acquire HIV and the man mentioned that she tried to come back to him after initially calling the police. In his case, he ultimately appealed to the superior court in the province and his charges were stayed – meaning he was not found guilty. This was only after serving approx. four years in a combination of house arrest and prison.

The violence of incarceration

The amplification of penality continues and becomes more formalized once someone is prosecuted. All people who are incarcerated in Canada are vulnerable to violence, but when HIV is introduced the vulnerabilities can be compounded.

A white man I spoke with who was prosecuted told me his ex-boyfriend called the police after the man disclosed to him. The man says he hadn’t disclosed his status previously, as he said he didn’t have the skills to do so. He also understood from his doctor that he was uninfectious as he had been on HIV medications.  There was no allegation of HIV transmission. He had no previous criminal record and had never been in prison. One his first day inside prison, he was placed in general population, and was not given choice for protective custody.[v] During his first few days inside in general population, the man was surrounded on the range while using the phone to talk to his lawyer. The inmates who surrounded him asked the man what his charge was, saying he was lying and they knew he was a rapist with HIV. He was publicly beaten very severely by the inmates, all this in front of guard staff who didn’t intervene for a long period of time. Once the staff intervened, the man was then asked if they wanted to go into protective custody. He is certain that the staff leaked his charges and HIV-positive status to the men on his range, knowing he would then face physical violence. Eventually the man was placed in administrative segregation ‘for his own protection’. In administrative segregation he was stripped nude, only had a concrete floor, no bed, or blankets, and was given a just one sheet of paper and a pencil to occupy his 23.5 hours a day on lockdown. He served out the end of his sentence in those conditions. He is now suing corrections for his treatment by the guards.

An indigenous woman I spoke with was also placed into administrative segregation. She was sentenced to 2-years on charges of aggravated sexual assault. When incarcerated she was asked if she wanted to be by herself or in general population. She asked to be by herself – the conditions of which we not explained to her beforehand. This meant administrative segregation, which also included requirements for suicide watch. Under those conditions the woman was striped naked, placed in a cell with only a concert floor, a video camera watching her, and a window that a male guard would watch her through at all hours. She did not have access to her anti-anxiety or HIV medications.[vi] Eventually her lawyer got her released from these conditions and she is currently appealing her conviction.

A Métis man who I spoke with, who was serving a 5.5-year sentence in protective custody, while inside got very serious bacterial infection is his genital area. The infection persisted for over a month during which time he made repeated requests to see a doctor, which were delayed or denied. At one point a guard whom had previously let the man know that he was aware of his HIV-positive status, took the man’s written request to access the doctor and ripped it up on front of the man and threw it in the trash. It was not until the situation nearly threatened the man’s life that he was taken to the doctor for the emergency – this was months after the initial request by the man. This story becomes even more disturbing when we remember the deaths of Williams and Matthews.

The mark of criminality in daily life: Stigma & ongoing surveillance

The impact of penality extends well beyond prosecution, if there is a prosecution. A white man who I spoke with was under house arrest for over 3-years. His charges were ultimately stayed, as his case only involved a ‘blowjob’ and the Crown prosecutor was likely to lose at trial. No HIV transmission was alleged in the case. Under house arrest, he was to live in the houses of different sureties. He was reliant on the surety, couldn’t work, or go to school, and was severely isolated.  Once the charges were stayed, he went to find his own housing. His case had been in the media, and despite the charge being stayed, his and his name when searched in Google revealed details about his HIV-positive status and the aggravated sexual assault charges. When applying for one apartment, he got a call back, and the landlord asked him to come back to visit the place, a good sign he thought. When he showed up the landlord opened the door and yelled at the man ‘I don’t rent to rapists’ and then pushed the man down the flight of stairs to the home. The man has also been denied jobs for the same reason.

In regards to extending penality beyond a prosecution, seven of the people I have spoken with are now registered sex offenders. The registry is a mechanism for continued police surveillance after prison release. A number of these people prior to incarceration used to work in professions that require background checks, which would now turn up badly due to the criminal record and Sex Offender Registry listing. One woman I spoke with used to do childcare for her job, and as a result of being on the registry she cannot get the job she used to have. This is also the case with others, which means they live of social assistance support even though they want to work. The result of their prosecution continues to extend into their daily lives today through threatening their economic security.

As a result of their experiences, every person I have interviewed has noted that they have either tried to commit suicide, or has had periods of regular suicidal ideation. Today, a majority of the people I spoke with live with post-traumatic stress disorder, which has a wide range of impacts on their daily lives. All of them also now have a complex and strained relationship with society. Many are very angry at society, a society, which took their personhood away and has treated them as less than human.

Bearing witness to call for action

All of this violence enacted towards them because of a supposed ‘crime’ that is entirely non-violent, and in which the notion of harm is an ideological one rooted in HIV-related stigma and AIDS-phobia. A crime where proving the intent to harm is extremely difficult, but due to fear and out-dated notions of AIDS as infectious and deadly, proving intent has been replaced by the fact that someone just has HIV. In many cases those who were charged and/or prosecuted explained to me that they understood that they took steps to protect their partners, such as using condoms, or regular taking medications so that they would be rendered uninfectious. What does it say about our society that the criminal justice system we have employs its most punitive functions towards people who have done no violence except perhaps that they have not told someone else that they have a medically controllable chronic disease?

Revealing these forms of legal violence is part of a deliberate political project – forms of violence that are simultaneously institutional and interpersonal, and both physical and psychological. These forms of violence are often obscured through bureaucracy, and forms of marginalization because the people onto whom these forms of violence are enacted have been deemed unworthy of living as legally safeguarded persons. These forms of violence are rooted in stigma and a fear of the ‘other’. These forms of violence are an extension of white supremacy, homophobia, colonization and misogyny. Many of the people I have spoken with live in poverty and are racialized. Women I have spoken with have been assaulted, but they are the ones who are criminally charged. Through revealing these forms of legal violence I hope we will be better positioned to deem thus situation unacceptable. To bear witness so we can call for action. Our work on this issue should be an act of refusal, a refusal to accept this current situation and a refusal to let these lives be rendered disposable by institutions of the state.

People living with HIV are a people who are over-policed but are under-protected. We live under heightened state and community surveillance due to criminalization.  But we are provided limited protections when we call for help. We are deemed unworthy of care and support, unless that support is instrumental in helping us not transmit HIV to others. Despite all of this, all of the people I have spoken with for my project are passionate, kind, funny, charming and dynamic people. People with a visions for the future, and who wanted to share their stories for this project as an act of healing, as a way to seek justice, and as a way to turn what happened to them into a positive force for change.

Alexander McClelland is a researcher who is currently working on a doctorate at the Centre for Interdisciplinary Studies on Culture and Society, Concordia University. His work is supported through the Canadian Institutes of Health Research and Concordia University.

Endnotes

[i] See: Smith, Dorothy. E. (2005). Institutional Ethnography: A Sociology for People. Toronto: AltaMira Press.

[ii] Existing in a negative relation to the law means people who are institutionally marked as criminals, who are then rendered civilly and socially dead under legal regimes, people who through being labelled a criminal are deemed worthy of being dehumanized through forms of state institutional punishment. I draw on this notion he living in a negative relation to the law as elaborated through the work of Colin developed in the work of Colin Dayan (see: Dayan, Colin. 2011. The Law is a White Dog: How Legal Rituals Make and Unmake Persons. Princeton University Press: Princeton).

[iii] I have provided some privacy through not indicating full names.

[iv] Legal violence helps us examine Including how law makes possible forms of violence through forms of legal interpretation, incarceration, and sentencing, which are acts of violence through taking one’s legal personhood away. The violent actions made possible by the law are also often themselves deemed illegal. But because legal violence is often targeted towards people whose legal personhood has been deconstituted, the illegality of these forms of violence can go unrecognized or unquestioned.  This concept has been elaborated in the work of Robert Cover (see: Cover, Robert. 1986. Violence and the Word. The Yale Law Journal, 95, 1601-1629.)

[v] It is required that someone be given the choice to go into protective custody, especially if the person has a charge such as aggravated sexual assault, know as a “dirty charge” inside prison, where you would go into protective custody to avoid violence from other inmates.

[vi] It should also be noted that all of the people who I spoke with that were incarcerated had numerous difficulties in accessing their HIV medications – despite being incarcerated for having HIV, in a country where being detectable can result in a crime, people with HIV who are incarcerated have a very hard time accessing their HIV medications due to a range of bureaucratic, logistical and punitive barriers

Earlier this week, I attended a meeting in Almaty, Kazakhstan, convened by UNAIDS and UN Women entitled ‘Leave No One Behind: Bringing needs and priorities of women living with HIV into policies and actions’.

Here, NGOs, community members, governments and human rights defenders from Central Asia came together to share best practices by and for women living with HIV and to cherish the leading role of women’s organisations and their contribution.

The meeting also sought to acknowledge achievements of the UNAIDS Unified Budget, Results and Accountability Framework (UBRAF) that contributes to improving the lives of women living with HIV.  This was an important venue to discuss how global goals – e.g. Political Declaration on HIV and AIDS, new UNAIDS Strategy 2016-2021, and Key AIDS-Related SDGs For 2030 – are linked to local goals.

Among the meeting priorities were the focus on the leadership of women living with HIV presenting the outcomes of their UBRAF-funded projects, sharing their success stories.

In addition, networks of women living with HIV in Kazakhstan and Tajikistan presented summary results of the assessment of sustainability and fundraising competency and of the PLHIV Stigma Index, demonstrating the need for spaces for leadership and empowerment of networks, and showing where opportunities of reducing discrimination have taken place, through blogging, international campaigns, clips and photo projects.

I delivered a presentation on behalf of the HIV Justice Network (HJN) on HIV criminalisation, and what women’s networks can do to challenge it, seeking to share the monitoring outcomes documented by us in the countries of Eastern Europe and Central Asia (EECA).

Since 2007, we have documented over 25 criminal cases against women living with HIV for HIV alleged exposure and/or transmission, mainly in Russia, Belarus, Ukraine and Kazakhstan. We also know about HIV-related criminalisation of marginalised groups of women in Kyrgyzstan, Moldova and Tajikistan during this period.

The actual number of prosecutions is certainly much higher.

Constituting over 50% of people living with HIV, women are seen as both victims and perpetrators in regards to HIV criminalisation, and have been impacted by criminalisation in many ways – including in their sexual relationships, violating their reproductive rights, and in the case of sex workers, being doubly criminalised for working and living with HIV.

Linking gender inequality and HIV stigma makes it obvious that women rarely have economic independence and power to make decisions about their bodies, including whether or not (male) condoms are used, and the lived experience of fear of prosecution prevents women from getting tested, knowing their status, and getting HIV treatment, because many laws are applied precisely against those who know about their diagnosis.

And there is evidence that intimate partner violence often occurs when a woman discloses her HIV status.

One of our main concerns is that the names of women arrested and prosecuted are disclosed in the media. Another is that women are usually prosecuted by their intimate male partners.

HJN has documented cases where women were prosecuted not only for alleged transmission (when the alleged transmission may have occurred from the complainant to the accused), but also for potential or perceived HIV exposure (when there may have been no exposure risk).

We need to pay special attention to prosecutions of pregnant women or for allowing vertical transmission.

We believe all of the above cases are actually the results of structural or cultural violence – these prosecutions both unjustly scapegoat individual women and justify direct violence against women living with HIV.

Alina Yaroslavska of Positive Women in Ukraine commented:

“Before HIV criminalization was not on the agenda, especially we didn’t focus on why it’s important for women, how it affects women’s lives and the epidemics as a whole. In fact, we need to gather these pieces of the puzzle. This piece is very important: on one hand, we can help people in a concrete way, on the other hand, we can take effective measure to eliminate this phenomenon. We now are forming our operational plan for the next year, and I think we will include HIV criminalization as an issue. We will meet the network of people living with HIV to join the Ukraine’s initiative to remove the corresponding criminal article. Secondly, we can include in the plan measures to support women to talk about this issue and motivate more women to join the movement for HIV Justice Worldwide.

Calling on women’s networks to work with the media, at the meeting we highlighted some media contexts, which regrettably affect the overall image of women living with HIV.  Poorly written reports of such cases – without context or balance –  contribute to stigma, discrimination and violence.

None of the women prosecuted had an opportunity to speak for herself, publicly. What is leading to broader devastating consequences to the women and their families is that at least half of women were subjected to public ‘slut shaming’. All of them are described in an active voice as criminals and ‘sources of infection’ in the eyes of the public health perspective is discussed, which is devastating for the future of these women.

As well as introducing HIV criminalisation as an issue at the meeting, we also helped to bring a better understanding of the roots of stigma and discrimination of women living with HIV, highlighting the experiences of women’s network overseas.

On one hand, our region has badly written laws and unjust prosecutions. On the other, we don’t yet know enough about to bring about meaninful change.

By introducing HIV Justice Worldwide, and the ultimate change that we want to see as removal of discriminatory laws and practices, we are inviting organisations, advocates and communities to join us to share their experiences and learn more about successes and challenges.

The meeting was a valuable a space for dialogue, skills exchange, strategising, and networking in order to improve situation for women living with HIV in the region. Using this opportunity to talk about HIV criminalisation placed the issue within the broader context of gender, human rights, HIV, and sexual and reproductive health and rights of women.

We also discussed how we can provide rapid response and support to women criminalised under HIV-specific laws and beyond.

To think together with partners how we can focus energy and resources on creating an environment where people living with HIV can disclose their HIV status without fear of rejection, violence or discrimination is a great move towards HIV justice in the region.

With women’s networks and stakeholders, we further discussed actions required to promote implementation on HIV/AIDS and gender equality in the Sustainable Development Goals (SDGs), notably SDG 5 – gender equality – and SDG 10 – reduced inqualities.

The need to revise and remove laws that criminalise HIV non-disclosure, exposure and transmission was highlighted as especially important for women living with HIV, along with introducing by law comprehensive sexual and reproductive rights and education.

The intersection of women’s rights and HIV remains an important entry point for a dialogue with governments and health authorities in Central Asia. This event had an ambitious long standing goal to address all forms of violence and harmful practices perpetrated on the basis of gender as well as prioritisation of empowerment of women and girls in developing, planning, implementing and evaluating national HIV strategic plans and policy frameworks, and, hopefully, stopping HIV criminalisation is amongst them.

Evgenia Maron is the HIV Justice Network’s EECA consultant.

Remarks written for the Haverford College Research Ethics Symposium, 21 October 2016, by Laurel Sprague, Research Fellow in HIV, Gender, and Justice, HIV Justice Network.

Every theory has a human price: Ethical research is collaborative research

[Introduction]

Every theory has a human price.

Of all of the philosophical statements that I read and teach about what obligations – to accuracy or truth, to one another – might structure the inquiries of those who seek after knowledge, this statement, heard more than a decade ago from spoken word poet Alix Olson on an outdoor festival stage, has become my mental organizing principle.

Every theory has a human price.

What does this mean for ethics in research? Scientific inquiry is never neutral in its origination, its execution, or its interpretation. No research is done, not ever, in the absence of underlying theories about what questions matter, how these questions should be studied, who is a reliable witness to their own experience, what kinds of people and training are needed to interpret research results, and whether any obligations exist to use and share the outcomes. This reality is the reason that ethical research on social questions is research done in collaboration with those most affected by the questions and the outcomes.

My remarks today focus on three different research experiences: one that illustrates the pitfalls of the traditional “ivory tower” research process, one that demonstrates a concrete outcome difference between research done in isolation version with that done with affected communities and that informs diametrically opposed policies, and one that provides a fresh approach to academic-community research partnerships.

[Fiddling while Rome burns]

In 1994, I attended a conference in Atlanta, the National Skills Building conference, designed to boost the US HIV/AIDS response, in Atlanta. AIDS became the leading cause of death among all Americans age 25-44 that year. Three of my friends had died the previous month, in September 1994. I was 23 and they were the first friends I lost to AIDS. My own health was precarious. Diagnosed as HIV-positive in 1991, and with my immune system in free fall, I was five months from my own AIDS diagnosis. I share this information with you both to position myself in the examples I am about to share and to call on you to imagine – or to remember – the sense of urgency we felt, as people living with HIV and as people loving family members, partners, friends, and colleagues living with HIV, at that moment.

At that conference, one of the sessions I most highly anticipated was focused, at long last, on lesbians and HIV. As a lesbian living with HIV, and in contact with about a dozen other lesbians with HIV and their partners, we existed in an abyss of information: we had absolutely zero evidence-based information on whether women could acquire HIV from one another and, if so, what kinds of activities posed a risk. Safer sex information for women at the time was adapted from what was known about men’s sexual behaviours and risks. It centred around a strange fetish in public health messaging for dental dams (a fetish not shared by any lesbian I ever met).

As lesbians, whenever we had the chance to meet, we shared stories and any research we could get our hands on. The Lesbian AIDS Project at GMHC in NY provided a newsletter and resources that we scoured for information. As lesbian after lesbian shared stories about their own HIV acquisition from previous male partners, or drug use, or sexual assault, or transfusions, and as couple after couple shared their experiences of having no transmission between them, often despite years together without the knowledge that one partner was HIV-positive, we began to guess, but no one knew, the answers to fundamental questions about HIV transmission risks between women.

The conference session was packed. The U.S. Centers for Disease Control had finally invested resources in women-specific questions. Two women from the CDC presented their study and results.

What did they do?

They surveyed lesbians living with HIV to find out if they practiced safer sex with their female partners.

What did they learn?

A significant portion of lesbians said no.

What did they recommend?

They did not recommend paying attention to risks that HIV-positive women might pose to their partners; they did not recommend talking with HIV-positive lesbians about why they did not practice safer sex. Instead, they called for an HIV-prevention campaign to motivate lesbians to practice safer sex.

Now, if the goal was to convince lesbians living with HIV to practice safe sex with our female partners, what we needed was even one case that demonstrated that it mattered. One case that showed it was worth it to give up a level of intimacy in order to protect our partners’ health.

Imagine if that research had been done with lesbians living with HIV rather than on us. Imagine if the intelligence, concern for our partners, and agency of lesbians living with HIV had been taken seriously. We might have learned answers to our life and death questions.

Instead, researchers fiddled while Rome burned.

[From wrong questions to wrong answers to wrong policies]

My second example compares research questions written without involvement by those affected by the issue with research questions written collaboratively with those most affected.

Within the last decade plus a few years, legal and social science researchers have conducted research on whether the existence of a law that criminalizes people living with HIV for not disclosing their HIV status to a sex partner, potentially exposing another person to HIV, or transmitting HIV, has either negative or positive public health effects. Within this research program, a series of surveys has been conducted to identify the levels of support for such laws (laws which currently exist in 36 US states and territories).

While no positive public health outcomes have been identified and some small negative public health outcomes are suggested resulting from these laws, the survey results found generally high levels of support for these laws, including among gay men and people living with HIV. This has a policy effect: if constituents seem to support a law, politicians have no incentive to change the law, even when the law is discriminatory or unjust.

What was the survey question? “Should it be against the law for a person living with HIV to have sex without disclosing their HIV status?“

As part of a group of HIV advocates and researchers through the Sero Project in Milford, PA, almost all people living with HIV, we had a strong sense that public support for these criminal laws was more nuanced than the previous survey responses suggested. So we created new survey questions and asked them alongside the survey question used previously.

When we asked the original question, “should it be against the law for a person living with HIV to have sex without disclosing their HIV status?” our 3000 plus respondents, people living with and affected by HIV, showed support that mirrored that found previously (more than half thought non-disclosure should be criminalised).

But then we asked another question, of the same respondents, that gave more options. We asked: Should disclosure of one’s positive HIV status to a potential sex partner be … a norm that communities should uphold, an ethical obligation for PLHIV when safe to do so, important only when engaging in activities that pose a risk of HIV transmission, a matter for criminal or civil courts?

Suddenly, when provided with more nuanced options, support for criminalization dropped from more than half to just 11% of respondents. For those 11%, we went further and asked what kinds of penalties people ought to face for non-disclosure. While current prison sentences for non-disclosure often are 30 years or more, most respondents called for further education, counselling, and community service.

These differences – between the results from the survey question that excluded community participation, and indicated support for prosecution and incarceration of people living with HIV who are accused of non-disclosure, versus the results from the survey question created by people living with HIV, that indicated a need for counselling, education, and support – can have tremendously different effects on policy decisions about who gets prosecuted and incarcerated in our communities.

[Nothing about us, without us]

Finally, to end on a more positive note, I will describe a global research project with which I’ve been involved since 2008: the People Living with HIV Stigma Index. This project was developed by and for PLHIV and is led by an international partnership made up of the Global Network of People living with HIV, the International Community of Women living with HIV, and the Joint UN Programme on HIV and AIDS.

This project trains people living with HIV as interviewers who conduct interviews with other people living with HIV. The project focuses equally on obtaining rigorous data regarding HIV-related stigma and discrimination and on empowering local networks of people living with HIV to work together across their differences, to gain research, data literacy, and employment skills, to build relationships with national and local academics and health ministries, and to turn the resulting data into advocacy projects that challenge stigma and benefit the community. One theme throughout the project: the process is as important as the results.

Why was the project created? For one reason, it responds to a missing piece in the stigma research programme. Research focused on healthcare workers and what are known as “general populations,” in fact, everyone but PLHIV were asked about HIV stigma. The PLHIV Stigma Index fills this research gap and, crucially, recognizes that those experiencing stigma first hand have something valuable to share.

What has the PLHIV Stigma Index project achieved?

To give just a few examples: The PLHIV Stigma Index has been implemented in more than 70 countries worldwide, including recent US implementations in metropolitan Detroit and Baton Rouge and New Orleans, Louisiana. The rich data that networks have gathered in the experiences of living with HIV is used in UNAIDS reporting and as baseline data used in National AIDS Strategies around the world.

Here in Pennsylvania, the AIDS Law Project, under the direction of Ronda Goldfein, has used the PLHIV Stigma Index results to demonstrate harm caused by stigma. With this data in hand, the AIDS Law Project was able to win two separate discrimination issues in court.

In Malawi, five networks of people living with HIV worked together to advocate for care for people who are incarcerated, better anti-stigma policies. A notable success in Malawi was the removal of staduvadine (D4T) – a particularly toxic medication no longer prescribed in wealthier countries – from the national formulary.

In Estonia, the PLHIV network established the first-ever PLHIV run, stigma free, health clinic.

Everywhere the Stigma Index has been implement, we see empowerment and networking, challenges to internalized stigma, increased solidarity across different groups of people affected by HIV: gay men and other MSM, sex workers, people who use drugs, women and girls, heterosexuals, people of different faiths.

[Closing]

I tend to distrust dualisms, yet, even so, I stand by this next statement: if your research does not include those most affected by the questions you ask and the answers you receive, then your research excludes those to whom it matters most. This is not some kind of reasonable “exclusion criteria”. Rather, when engaging in research on question with social repercussions, exclusion is a refusal to accept the political and social repercussions of one’s research on people other than oneself, or to acknowledge the dignity, risk, and wisdom of those most engaged – often in physical, embodied ways and whose very lives may be at stake.

Every theory has a human price.

Deepest thanks to Professor Chris Roebuck, without whose vision this panel could not have come into being, and my sister panellists. It is truly an honour to share a stage with Waheedah Shabazz El and Cecilia Chung.

Remarks written for the “Movement to End HIV Criminalisation” panel at Concordia University, Montreal, 15 September 2016, by Laurel Sprague, Research Fellow in HIV, Gender, and Justice, HIV Justice Network.

Before beginning my remarks, allow me to note that there are so many nuances and variations in the specific instances that people face that these remarks can only scratch the surface. Still, I offer these remarks in the hope that my thoughts will add to, bring in new perspectives, and support the continuation of the dialogue already in place.

The public is often sold a compelling story about HIV criminalisation, one that fits into their ideas about how gender works and what it means to be a good citizen. People are told that criminalising people who are living with HIV and who fail to disclose that fact to a potential sex partner will protect women from acquiring HIV.

The subtext, of course, is that the people living with HIV and having sexual relationships are generally men, that the only considerations these men with HIV have are to maximize opportunities for sex, that women should be considered as passive prey for these men, and that putting a law into place will either convince men to disclose their HIV status to female partners or lock them up if it seems they have not done so, restricting their ability to transmit HIV to women, at least to other women, beyond those who bring charges.

Why are women living with HIV concerned about HIV criminalisation? If you are going to take away peoples’ freedom in my name, then you should expect that I would have something to say about that.

What I have to say is: not in my name. Do not incarcerate people living with HIV in my name.

Women living with HIV are also concerned about HIV criminalisation because, once these laws are passed, we are caught up in their dragnet. Frequently, we live in fear of prosecution, even when we closely follow the law. Too often, like our brothers living with HIV, we find ourselves facing prosecution. The same gendered impulse to “protect” women by passing laws, judges women harshly when we acquire HIV ourselves.

In Uganda, in 2014, police, accompanied by a mob, pursued nurse Rosemary Namubiro, a woman living with HIV, after an accusation that she stuck a child with a needle that might have pricked her own skin when the child flailed. Rather than responsible media coverage of the incident, Rosemary was characterized repeatedly before trial as a “killer nurse,” and a “witch” seeking to intentionally infect children. Her HIV status turned her, in the eyes of the media, society, and the legal system, from the epitome of good womanhood — a licensed nurse with decades of exemplary service — to the epitome of bad womanhood – dangerous, unrestrained, supernatural. Women living with HIV in Uganda and around the world stood with Rosemary to support her and because we knew in our bones that stigma against women living with HIV means each of us is only one accusation away a prison sentence.

The impact of these laws against women living with HIV are usually not so far away geographically. To give just a few examples, two women living with HIV, Cicely Bolden and Elisha Henson, were brutally murdered after disclosing their HIV status to a boyfriend or sexual partner. Each of their killers admitted to the murder. Each claimed that their HIV-status made the murders justifiable. When, in place after place, laws are passed requiring people with HIV to disclose their status no matter what, then we will see, place after place, further violence against women living with HIV.

Here in Quebec, a woman living with HIV went to police for protection for her and for her young son from her violent male partner. When the police arrested him, he claimed that she had HIV and had not disclosed her status to him. Despite all evidence to the contrary, he was released and she was sentenced to prison, only released in 2012 by the Canadian Supreme Court, not because the sentence was found to be unjust or unwarranted, simply due to a technicality.

Women living with HIV expect that the words of any abusive, but HIV-negative, partner will be believed over our words in a court of law.

Why do women living with HIV care about HIV criminalisation? Because we want the laws to stop condemning us to violence. We want you to stop locking us up.

In Canada, there is no HIV-specific law that criminalises people living with HIV for non-disclosure, alleged exposure or transmission. This is, seemingly, in line with the consensus from the Joint United Nations Programme on HIV and AIDS (UNAIDS), the Oslo Declaration, and multiple recommendations from other global organizations and researchers.

Global guidance, such as that released by the Global Commission on HIV and the Law in 2012, calls for an end to HIV-specific laws, citing extensive research showing that these laws fulfill no public health goals but do succeed in furthering discrimination against people living with HIV. Unfortunately for Canadians living with HIV, Canada serves as a prime example of what can go dreadfully awry even in the absence of HIV-specific laws.

In Canada, if I, as a woman living with HIV, engage in sexual intercourse with another person without disclosing my HIV status, I can be charged with aggravated sexual assault. This means that, for consensual sex with another adult, I can be charged as the worst form of rapist. In fact, I can be prosecuted for aggravated sexual assault whether or not my partner acquires HIV from me and no matter how low the risk of transmission.

In fact, as of 2012, only if I can prove both that my viral load is undetectable and that a condom was used, can I fight the charge of sexual assault. It is a chilling reality that condom use is impossible for a woman to guarantee without the cooperation of her partner and that, in Canada, women living with HIV are significantly less likely to receive the quality of care and support needed to bring their viral load to an undetectable level.

The legal leap from a claim of HIV non-disclosure to a prosecution for aggravated sexual assault is not obvious: the rationale behind this leap is that if a person has not disclosed her positive HIV-status to a sexual partner, then she has made it impossible for her partner to consent to possible sexual exposure to HIV. Without this consent, sex between them is labeled rape. Within Canada, the law goes one step further because failing to disclose one’s HIV status is also considered to be fraud. When fraud is added to the rape charge, then the charge is increased to aggravated sexual assault. The Canadian Supreme Court decided in R. v. Mabior (2012), that only when the person with HIV has both an undetectable viral load and uses a condom, are they protected from the charge of aggravated sexual assault.

Within Canada, there has been a robust feminist response to the way in which the law on sexual assault has been used to prosecute alleged non-disclosure of one’s HIV status. Briefly summarized, feminists attentive to the laws have argued that it is egregious to conflate HIV non-disclosure with rape, much less aggravated rape and that the law waters down the hard won gains in Canada regarding consent in sexual relationships. Further, feminists explain that the law is likely to discriminate against the most vulnerable and to be applied arbitrarily, pointing to cases across the country that make that very point.

Of course, there are many strands of feminism and not all Canadian feminists echo these concerns. In many ways, HIV criminalisation highlights a critical fault line amongst both feminists and queer theorists and activists. This fault line is the tension surrounding the appropriate use of State power for protection versus emancipation of people who are vulnerable to violence enacted against them by other members of society.

Women living with HIV across the world have responded to this theoretical debate with a strong assertion of our own: creating laws specifically to protect women does not work. Long practice in country after country demonstrates that equal protection under the law is rare, instead, those most marginalized in a society will be those most often targeted for incarceration. Women’s vulnerability to violence has not been, and will not be, reduced by further laws purporting to protect women

Let me situation myself in this conversation: I am a woman living with HIV, who acquired HIV shortly after my 20^th birthday during a relationship with a male partner in his late 30s. It is a common story globally of a young woman acquiring HIV from an older man. We would like to stop those things from happening, right?

What happens to the story if I add some context? What if I share that I was a sexual assault survivor from my high school years, which was traumatic, shameful, and normal within my circle of high school friends? What if I add that I was raised within a fundamentalist religious community, with the lower status as a girl and the judgment and scrutiny that exist in those communities? Does it matter that I felt safer and more protected by this partner than I had previously in my life?

So, just what is it that we would like to stop from happening?

Would locking him up solve the problem of gender inequality?

Let’s complicate the story further, with more truths: does it make a difference that he disclosed his status to me? Does it make a difference that he was also a survivor of sexual and physical assault?

Was he careful with me? No, he wasn’t. Should he go to jail? Not legally, he disclosed his HIV status. What about ethically: is this the answer?

The easy answer, the one that allows every one of our social inequalities to continue, is to say: lock him up.

Now, think to yourself: what if he hadn’t disclosed his status? Does that change anything? Everything? Could I have been any more or less empowered to advocate for my own sexual health? Could he have been any better or worse at advocating for his own well being? Neither of us was skilled at self care. Both of us were skilled at self injury.

Now, what if I went to the police and claimed the he had HIV and did not disclose?

In the United States, 25 years later, it’s likely he would still be in prison. In Canada, there is no reason to believe that he would not have served years in prison as well.

What if I claimed, instead of HIV non-disclosure, that he physically beat me or raped me (he did not)? He probably would not be prosecuted, or, if prosecuted and convicted, would not serve nearly the same sentence length. That should give up pause.

We know that exactly this scenario happens here, including here in Quebec, where the woman living with HIV, mentioned earlier, after being severely and repeatedly beaten by husband over period of years was jailed herself when she tried to prosecute him – because he alleged that she didn’t disclose her status. He walked free.

Why would we treat HIV non-disclosure more seriously than physical attacks? The question is puzzling: non-disclosure charges arise only in the context of non-coerced sexual activity between adults. In this situation, unlike physical assault, either partner could walk away or suggest condoms or other barriers. If a physical assault has happened, and the assailant is HIV-positive, then the laws on assault are more than adequate to handle that situation.

So are we, as it seems, trying to protect women and others from HIV but not from real violence enacted against their bodies? Why would that be?

If we analyse prosecutions for HIV non-disclosure with the understanding that the rhetoric about protecting women fails under examination, then what is left is naked stigma and the desire to regulate certain bodies deemed outside of the boundaries of respectable society: those bodies perceived as likely to have HIV. Notably, the only legal requirements are for those living with HIV. There are no legal requirements for those perceived to be HIV-negative to take safer sex precautions or even to have a conversation about sexual transmitted infections they or their partners might have acquired. What we see is an effort to control and punish the bodies perceived to be HIV-positive and an effort to ensure complete freedom from responsibility for those bodies perceived to be HIV-negative.

This is a situation of immense injustice. What the laws does is to scapegoat vulnerable people instead of addressing real and difficult social problems such as the gender inequality that persists across classes and countries, which make it difficult for women to protect their health and well-being and for people living with HIV to do the same. The meme of a heterosexual man living with HIV exposing an unsuspecting heterosexual woman to HIV disregards everything we know about this epidemic: that most people acquire HIV because they are themselves part of a vulnerable group; that reducing new infections happens most effectively when safer sex practices become normal rather than exceptional; that once people learn their positive HIV status, they seek to avoid transmitting to others; and that most new infections occur from transmissions between people who do not know their HIV status.

To return to my story, I tested positive for HIV after I became pregnant. Immediately, under the law, I became the person vulnerable to criminal penalties. Like so many of my male friends, my HIV diagnosis gave me the courage to come out. I remember waiting in fear for a partner to call the police. I remember the end of a short relationship when I was 24 or 25, she was angry that I didn’t want to continue the relationship. I had disclosed my status; we had practiced safer sex; I went with her to get tested and was sick to my stomach with fear she would somehow test positive. Although, I was certain that I was the only person she had ever practiced safe sex with; I was equally certain that her anger with me would motivate her to go to the police.

She did not test positive. She did not go to the police. If she had, what would have happened? Of course, luckily, we do not know. However, based on the data we have from the States, I expect I would have gone to prison.

The stigma that exists, indeed is flamed, against people with HIV would have intersected with the other marginal statuses most of us have, and then been combined with laws that single us out — laws which say to the police, judges, prosecutors, and world at large that we are a particular group of people with disregard for others, a danger, and must be controlled – these factors added together would have made my chance of being heard, of the truth being heard, minimal.

It is important to remember that the law has only one edge. The law is designed to protect the status quo. It is not revolutionary.

HIV criminalisation singles out people living with HIV — people who already face high levels of stigma and discrimination simply for having a medical condition that is associated with groups subjected to social prejudice — for criminal prosecutions for consensual sex among adults. Is this the liberation that we, as feminists, have been fighting for?

To end my remarks, allow me a moment to give credit to the Canadian HIV/AIDS Legal Network, the Positive Women’s Network-USA, the Sero Project, the International Community of Women Living with HIV, and the many other feminist people of all genders working on HIV, criminalisation, mass incarceration, gender-based violence, prison abolition, and human rights with whom I have been fortunate to have soul-searching discussions about the issues that I have addressed here. I also need to thank Edwin Bernard and the HIV Justice Network for all of these reasons and more, especially for taking the chance and hiring me to focus on the issues of gender, justice, and HIV that matter to me so deeply.

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Today, Sunday, October 23, 2016, Positive Women’s Network – USA observes the third National Day of Action to End Violence Against Women Living with HIV.

This is an event to create awareness about the levels of violence faced by women living with HIV, and to mobilise action to end that violence. As PWN-USA Executive Director, Naina Khanna, describes it: for women, violence is both a cause and a consequence of living with HIV.

The 2016 Day of Action takes as its focus a pernicious form of violence: the criminalisation of women living with HIV.

From the other side of Atlantic Ocean, in Eastern Europe and Central Asia, raising attention to HIV criminalisation as a form of violence against women living with HIV presents a new angle from which to examine how both of these phenomena are understood. Let us consider this intersection, where HIV-related stigma, HIV criminalisation and gender inequality place women at greater risk of violence, maltreatment and injustice.

To date, the HIV Justice Network has documented prosecutions of women under HIV-specific laws criminalising alleged HIV non-disclosure, potential or perceived exposure, and non-intentional transmission in Russia (12 cases); Belarus (5 cases); Kazakhstan (2 cases); Kyrgyzstan (1 case); Moldova (1 case); Tajikistan (1 case); and Ukraine (4 cases). The actual number of prosecutions is certainly much higher.

Let’s take a closer look at Russia’s 12 cases against women living with HIV. In Russia, alleged HIV non-disclosure, potential or perceived exposure, and non-intentional transmission are penalized by up to a maximum of eight years in jail.

Examining the media coverage, none of these women had an opportunity to speak for herself publicly, and at least half of them were subjected to public ‘slut shaming’ in the media because it was alleged they had multiple intimate partners.

The other half of the women were prosecuted by their intimate male partners. The language of the publications depicts the women as irresponsible and unaccountable subjects, highlights their neglect of barrier contraception measures and of their responsibility to disclose, and characterises the women as the ‘source of HIV transmission’. Although it seems that the media were trying to be sympathetic toward these women, the media authors fail to excite pity with stories by adding details about their poor state of health, bearing children a young age, and/or that they pleaded guilty.

Stigma and discrimination, particularly where women’s moral conduct is judged, play a major role in the severe social and physical consequences that women suspected of being HIV-positive can face, impacting media, the legal system and community.

HIV-related stigma and discrimination switches the media’s focus away from the perpetrators of sexual violence and their punishment to speculations about the culpability of a woman-survivor.

HIV-related stigma and discrimination creates HIV-specific laws based on the assumption that women living with HIV are potential perpetrators in need of state control.

HIV-related stigma and discrimination impacts how communities see women living with HIV, potentially legitimizing even murder. This is especially relevant to religious and traditional communities, where the whole family may feel shamed because of the HIV-status of a female family member, and may fuel higher levels of domestic violence, but it goes beyond this.

In Russia, with its 400,000 women who have tested HIV-positive, the fear of partner violence persists as a daily reality. NGOs assess the number of sexual assaults and gender-based violence crimes against women- as 30,000 – 50,000 per year with only 10% of them reported to the police. In the Russian People Living with HIV Stigma Index study, one-fifth of the people with HIV who faced violence said it was perpetrated by their partner.

Indeed, starting from 2007, we have documented at least eight cases of brutal killings of women who either disclosed their HIV-positive status to their partners or were alleged by the killers or police to be HIV-positive. Thus, non-disclosure might be a coping strategy that women develop to try to survive against violence at home, while simultaneously risking prosecution as criminals because of the criminalisation of HIV non-disclosure.

Similarly, in Belarus, the five women who were prosecuted under HIV criminal laws were characterised in the media as frivolous women of easy virtue, alcohol abusers, and unable to take measures to prevent HIV transmission. Given that two of them were prosecuted for potential or perceived HIV exposure, although no transmission occurred, it is important to see how the prosecution started: the women informed their lovers of their HIV status after the sexual activity. In all media reports and comments by the prosecutor’s office, the women were depicted as those actively taking steps to transmit HIV to others; all are described in an active voice as criminals. In Belarus, law enforcement registers a low number of cases of violence against women along with high rates of women dying from violence at home, women with HIV were much more likely to report being physically abused by their spouses and partners.

In Ukraine, at least four women were prosecuted both for HIV transmission to their intimate partners or to both to their partners and their children, and for HIV exposure. There has been a glimmer of hope and reason from Ukraine, however, which might represent a less punitive turn since 2011.

We recently received information about a case in which a woman, accused of alleged non-disclosure, was acquitted. The court argued that “the relations that developed between the partners in their nature was about HIV exposure. Firstly, the crime didn’t constitute the HIV exposure, but only actions that could have been considered as exposure. Second, the pre-trial investigation and the prosecutor falsely assigned responsibility for creating such a threat of exposure to the accused.”

Further, the verdict found that the guilt of the sexual partner of the HIV-positive defendant in creating the threat of HIV exposure was greater than the guilt of the defendant, given that he was 16 years older than her, had more experience, including in relationships with women and had children from different women, and was characterized as having a promiscuous sexual behaviour. Overall, in Ukraine, the courts tended to respond to HIV criminalisation cases against women by reducing the penalty from time in prison to a suspended sentence.

In Kazakhstan, a woman living with HIV from Karaganda, was taken by the police to the AIDS Center to force her to take antiretroviral medication during her pregnancy. The media response discussed only the public health perspective, making the woman appear irrational and uncaring toward her baby. The media said nothing about the reasons why the woman was avoiding treatment, failed to give her a voice, and provided no information about whether social and psychological services were offered to her prior to police involvement.

Further, as documented by us, women in Kazakhstan, Kyrgyzstan and Tajikistan who are marginalized because they do sex work, have been disproportionately targeted by police, and found themselves subjected to forced HIV testing.

The criminalisation of sex work along with public characterisations of sex workers as ‘latent reservoirs for HIV’, sets sex workers up for police harassment, arrest, and unwarranted seizures in the name of public health.

In Kazakhstan, Almaty police identified 98 sex workers as HIV-positive and conducted a search for their clients. However, it remains unknown if the search brought further charges.

In Kyrgyzstan, the practice of illegal HIV testing in association with police raids on sex workers persists. Law enforcement personnel, in order to provide for the formal requirements of the law, summon AIDS center staff members, who obtain written consent to HIV testing under conditions of arbitrary detention. There are also known cases where the police detained sex workers and illegally sent them for forced medical testing, including for STIs and HIV.

Similarly, in Tajikistan, 505 sex workers were detained and forced to undergo HIV and STI testing. Community organizations report that often the test results are disclosed in front of other detainees and police staff.

One way or another, all of these can be also framed in terms of structural or cultural violence, in which social structures are used to justify direct violence or situations that drastically increase the vulnerability of women living with HIV to violence.

In the cases that we know, HIV-related stigma and HIV criminalisation evolve to a form of cultural violence that makes the communities and media audiences feel ‘right’ about blaming the women with HIV who experience an HIV-related prosecution, making this acceptable in our societies.

There is no doubt that gender shapes HIV disclosure motivations and reactions. Disclosure is not a gender-neutral event because women face the possibility of increased violence afterwards. It is an impossible choice: choosing between the immediate need to protect themselves from partner violence, or a risk that they can go to prison for alleged HIV non-disclosure, exposure, or transmission.

No matter where it occurs, it is time to claim justice for women living with HIV.

Evgenia Maron is the HIV Justice Network’s EECA Consultant

The HIV Justice Network is a founding partner of HIV Justice Worldwide, together with the Positive Women’s Network-USA, AIDS Rights Alliance of Southern Africa (ARASA), the Sero Project, the Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV (GNP+), and the International Community of Women Living with HIV (ICW). More information about HIV Justice WorldWide is available here.

Сегодня, в воскресенье, 23 октября 2016 года, “Сеть позитивных женщин – США” объявила третий Национальный день действий для прекращения насилия против женщин, живущих с ВИЧ.

Этот день предназначен для повышения осведомленности о насилии, с которыми сталкиваются женщины, живущие с ВИЧ, а также для мобилизации и действий по прекращению насилия. Как отмечает исполнительный директор PWN-США, Наина Кханна: “Для женщин, насилие является как причиной, так и следствием жизни с ВИЧ”.

В 2016 году темой дня выбрана губительная форма насилия – криминализация женщин, живущих с ВИЧ.

По другую сторону Атлантического океана, в Восточной Европе и Центральной Азии, повышение внимания к проблеме криминализации ВИЧ как одной из форм насилия против женщин, живущих с ВИЧ, представляет собой новый взгляд на исследования, обсловленный тем, как понимаются оба эти явления. Рассмотрим это пересечение, где стигма в связи с ВИЧ, криминализация ВИЧ и гендерное неравенство помещают женщину в ситуацию наибольшего риска насилия, жестокого обращения и несправедливости.

На сегодняшний день Сеть “Правосудие и ВИЧ” задокуменитировала случаи судебного преследования женщин в рамках ВИЧ-специфических законов, вводящих уголовную ответственность за предполагаемое неразглашение ВИЧ-статуса, потенциальную или воспринимаемую постановку в опасность заражения и ненамеренную передачу в России (12 случаев); Беларуси (5 случаев); Казахстане (2 случая); Кыргызстане (1 случай); Молдове (1 случай); Таджикистане (1 случай); и в Украине (4 случая). Фактическое число судебных дел, несомненно, гораздо выше.

Давайте подробнее рассмотрим 12 российских случаев преследования женщин, живущих с ВИЧ. В России предполагаемое нераскрытие ВИЧ-статуса, потенциальная или воспринимаемая постановка в опасность заражения и ненамеренная передача ВИЧ наказываются максимальным сроком до восьми лет в тюрьме.

В результате изучения публикации в СМИ можно сделать вывод, что ни одна из этих женщин не имела возможность говорить за себя публично, и, по крайней мере, половина из них были подвергнуты публичному «слатшеймингу» в СМИ, так как утверждалось, что они имели несколько интимных партнеров.

Другая половина женщин была привлечена к ответственности своими интимными партнерами-мужчинами. Язык публикаций изображает этих женщин как безответственных и немотивированных субъектов, подчеркивает их пренебрежение барьерными мерами контрацепции и своей ответственностью за раскрытие диагноза, и характеризует этих женщин как «источник передачи ВИЧ-инфекции». Хотя кажется, что СМИ пытаются вызвать симпатию к этим женщинам, авторам не удается пробудить жалость рассказами об их плохом состоянии здоровья, рождении детей в молодом возрасте, и / или тем, что они признали свою вину.

Стигма и дискриминация, особенно если судят безнравственное поведение женщин, играют важную роль в тяжелых социальных и физических последствиях, с которыми могут столкнуться женщины, подозреваемые в том, что они ВИЧ-инфицированы, оказывают влияние на мнение СМИ, правовой системы и общества.

Стигма и дискриминации в связи с ВИЧ переключают внимание СМИ от лиц, совершивших сексуальное насилие, и их наказания к спекуляциям о виновности женщины, пережившей насилие.

Стигма и дискриминация в связи с ВИЧ создают определенные законы, основанные на предположении, что женщины, живущие с ВИЧ, являются потенциальными злоумышленниками, над которыми необходим государственный контроль.

Стигма и дискриминация в связи с ВИЧ влияют на то, как общество смотрит на женщин, живущих с ВИЧ, потенциально оправдывая даже убийство. Это особенно актуально для религиозных и традиционных общин, где вся семья может быть опозорена из-за ВИЧ-статуса члена семьи женского пола, а также может повысить уровень насилия в семье, и даже больше.

В России для 400 000 женщин, которые оказались ВИЧ-инфицированными, страх насилия со стороны партнера стал повседневной реальностью. НПО оценивают число сексуальных нападений и гендерных преступлений, связанных с насилием в отношении женщин, в 30 000 – 50 000 ежегодно, и только о 10% из них сообщают в полицию. В исследовании “Индекс стигмы” среди российских людей, живущих с ВИЧ, одна пятая часть людей, живущих с ВИЧ, которые столкнулись с насилием, отметили, что оно было совершено их партнером.

Действительно, начиная с 2007 года, мы задокументировали по меньшей мере восемь случаев жестоких убийств женщин, которые либо сообщили о своем ВИЧ-позитивном статусе своим партнерам или якобы обладали ВИЧ-положительным статусом по мнению убийц или полиции. Таким образом, нераскрытие диагноза может быть копинг-стратегией, которую женщины приобретают, чтобы попытаться выжить после домашнего насилия, одновременно рискуя подвернуться преследованию как преступники из-за криминализации нераскрытия ВИЧ-статуса.

Аналогичным образом, в Беларуси пять женщин, которые были привлечены к ответственности в соответствии с уголовным законодательством о ВИЧ, были охарактеризованы в СМИ как легкомысленные женщины легкого поведения, злоупотребляющие алкоголем, которые были не в состоянии принять меры по предотвращению передачи ВИЧ-инфекции. Учитывая, что двое из них были привлечены к ответственности за потенциальную или предполагаемую постановку в опасность заражения ВИЧ, заражения как такового не произошло, важно рассмотреть, как началось преследование: женщины проинформировали своих любовников о своем ВИЧ-статусе после сексуальной активности. Во всех сообщениях СМИ и комментариях прокуратуры женщины изображались так, как будто они активно принимают меры для передачи ВИЧ другим; все описаны как активно действующие преступники. В Беларуси, где правоохранительные органы регистрируют низкое число случаев насилия в отношении женщин, наряду с высокими показателями смертности женщин от домашнего насилия, женщины с ВИЧ были гораздо более склонны сообщать о физическом насилии со стороны своих супругов и партнеров.

В Украине по меньшей мере четыре женщины подверглись преследованию за передачу ВИЧ своим интимным партнерам или своим партнерам и детям и за постановку в опасность заражения. Можно сказать, что в Украине есть проблеск надежды и разума, однако, что проявляется в менее карательном подходе с 2011 года.

Недавно мы получили информацию о случае, в котором женщина, обвиняемая в предполагаемом нераскрытии статуса, была оправдана. Суд утверждал, что “отношения, которые сложились между партнерами по своей природе были связаны с постановкой в опасность заражения ВИЧ. Во-первых, преступление не представляет собой постановку в опасность ВИЧ, а только действия, которые могли бы рассматриваться в качестве постановки в опасность. Во-вторых, предварительное расследование и прокурор ложно возложили ответственность за создание такой угрозы на обвиняемую”.

Кроме того, в приговоре говорится, что вина полового партнера ВИЧ-положительной ответчицы в создании угрозы заражения ВИЧ была больше, чем вина обвиняемой, при условии, что мужчина был на 16 лет ее старше, у него было больше опыта, в том числе в отношениях с женщинами, он имел детей от разных женщин, и характеризовался как ведущий беспорядочную сексуальную жизнь. В целом, украинские суды, как правило, реагируют на случаи криминализации ВИЧ в отношении женщин, уменьшая подожительность наказание в местах лишения свободы и заменяя на условный приговор.

В Казахстане, женщину, живущую с ВИЧ, из Караганды, полиция силой доставила в Центр СПИДа, чтобы принимать антиретровирусные препараты во время беременности. СМИ осветили случай только с точки зрения общественного здравоохранения, что вынуждает женщину казаться иррациональной и безразличной к своему ребенку. СМИ ничего не рассказывают о причинах, почему женщина избегала лечения, не дают ей говорить за себя, не предусматривают никакой информации о том, были ли ей предложены социальные и психологические услуги до вмешательства полиции.

Кроме того, как задокументировано нами, женщины в Казахстане, Кыргызстане и Таджикистане, которые являются маргинализованными, потому что они занимаются секс-работой, несоразмерно подверглись преследованиям полиции и принудительному тестированию на ВИЧ.

Криминализация секс-работы наряду с общественной характеристикой секс- работников как «латентных резервуаров для ВИЧ», делает секс-работников беззащитными перед произволом сотрудников полиции, арестами и неоправданными задержаниями во имя общественного здоровья.

В Казахстане, полиция Алматы выявила 98 секс- работников как ВИЧ-положительных и провела поиск их клиентов. Однако, остается неизвестным, были ли выдвинуты дополнительные обвинения в результате этого поиска.

В Кыргызстане продолжается практика незаконного тестирования на ВИЧ секс-работников в связи с рейдами полиции. Сотрудники правоохранительных органов, чтобы соответствовать формальным требованиям закона, вызвали сотрудников Центра по борьбе со СПИДом, которые получили письменное согласие на тестирование на ВИЧ в условиях произвольного задержания. Также известны случаи, когда полиция задерживала секс-работников и противозаконно отправляли их на принудительное медицинское тестирования, в том числе на ИППП и ВИЧ.

Кроме того, в Таджикистане, 505 секс- работников были задержаны и вынуждены пройти тестирование на ВИЧ и ИППП. Организации сообщества знают о случаях, когда полиция задерживала секс-работников, незаконно отправляла их на принудительное медицинское обследование, включая ИППП и ВИЧ.

Так или иначе, все это также можно выразить в терминах структурного или культурного насилия, в котором социальные структуры используются, чтобы оправдывать прямое насилие или ситуации, которые кардинальным образом увеличивают уязвимость женщин, живущих с ВИЧ, перед насилием.

В случаях, которые нам известны, стигма в связи с ВИЧ и криминализация ВИЧ приобретают форму культурного насилия, которое заставляет общество и аудиторию СМИ чувствовать себя «правыми», когда обвиняемые женщины, живущие с ВИЧ, подвергаются преследованию в связи с ВИЧ, делая это приемлемым в нашем обществе.

Нет сомнений в том, что гендер определяет мотивацию для раскрытия ВИЧ-статуса и реакции на это. Раскрытие ВИЧ не является гендерно-нейтральным событием, потому что впоследствии женщины сталкиваются с возможностью возросшего насилия. Это невозможный выбор: между немедленной необходимостью защитить себя от насилия со стороны партнера или рисковать тем, что они могут попасть в тюрьму за предполагаемое нераскрытие ВИЧ, постановку в опасность заражения или передачу ВИЧ.

Неважно, где это происходит, пришло время потребовать справедливости для женщин, живущих с ВИЧ.

Евгения Марон – консультант сети “Правосудие и ВИЧ” в Восточной Европе и Центральной Азии

Сеть “Правосудие и ВИЧ” – партнер-основатель инициативы “Правосудие и ВИЧ во всем мире”, вместе с “Сетью позитивных женщин – США”, Альянсом по СПИДу и правам с Южной Африке (ARASA), и “Серо Проджект”, а также Канадской правовой сетью по ВИЧ/СПИду, Глобальной сетью людей, живущих с ВИЧ (GNP+), и Глобальной сетью женщин, живущих с ВИЧ (ICW). Больше информации об инициативе “Правосудие и ВИЧ во всем мире” доступно здесь.