The fight for justice in HIV must join the fight to decriminalise abortion to ease the burdens on the sexual and reproductive lives of women and girls

Criminalizing the right to health: The shared struggle of the HIV and safe abortion movements

Edwin Cameron, Anand Grover

This month, India’s Supreme Court struck down Section 377 – a colonial-era law that banned same-sex activity and led to the systemic discrimination and persecution of LGBTQ Indians. This was a huge victory for India and – as two lawyers who have spent decades fighting for the rights of LGBTQ individuals – a very personal one.

Yet, while we celebrate this incredible achievement, we must remember that criminalization remains a potent threat for the health and lives of many people around the world. And those that often bear the largest burden are people living with HIV and AIDS and women and girls seeking abortion services.

While accessing legal and safe abortion services may seem very different from preventing or treating HIV, profound linkages bind the two struggles. Both HIV and AIDS and unsafe abortion endanger life and health, with a disproportionate impact on people living in developing countries. Both impose vast burdens on the sexual and reproductive lives of women and girls and imperil their equal citizenship. And both have the harsh, often cruel and blunt methods of criminal law imposed upon them.

Around the world, governments have used such criminal laws to police sexuality and reproduction, including for same-sex activity, HIV non-disclosure and exposure, and abortion services. These laws are often cloaked in the guise of keeping people safe or evoke morality as a justification.

But, as lawyers and advocates, we know that punitive provisions are not only ineffective, but have damaging and deadly consequences. They cause acute pain, suffering and even death. The fight to lift legal barriers to care is core to the fight for just healthcare for all.

We have both been part of the struggle for justice and rationality in the HIV epidemic and, more recently, in advocating safe abortion care. We know from personal experience how criminal laws, prosecutions and punishments grossly hamper human rights, particularly the right to health. Unjust laws also propagate stigma and discrimination, which, in turn, further impedes access to healthcare services, blocks dissemination of accurate and pertinent health information, and makes it difficult, if not impossible, to seek medical services, facilities and medicines. This severely impairs the dignity of women and girls.

We also recognize what science and the right to health has long told us: criminalization of health services almost invariably hits marginalized, vulnerable communities hardest and has a disastrous impact on health outcomes worldwide.

All of us, men and women, should have the freedom to decide if and when to reproduce and the right to access safe, effective, affordable and appropriate health care services, facilities and commodities. But, speaking as two males, we recognize the lamentable and grievous fact that this right is of particular urgency and concern to women and girls. And that its denial is harshest – indeed, too often fatal – for women and girls.

Every single year, more than 22,800 women and girls die due to complications from unsafe abortion – a stark reminder of the life and death consequences of criminalizing health care. In 68 countries, people living with HIV face laws that criminalize non-disclosure, exposure or transmission, which not only have a negative impact on prevention, but can discourage HIV testing and disclosure. The dream of “an AIDS-free world” will remain a dream if people are afraid to get tested or speak about their status for fear of arrest.

HIV is the leading cause of death among women of reproductive age in developing regions. The second biggest killer is maternal death, of which unsafe abortion accounts for a disquieting share. It is vital that women and girls remain at the center of these battles and their voices and experiences lead these movements. But we all lose if men shy away from the vital importance, to all, of life-saving care for women and girls.

We know that progress is possible. Beyond the recent victory to overturn Section 377, we’ve also seen the repeal of HIV criminalization laws in countries as diverse as Ghana, Tajikistan and Switzerland. Earlier this year, the Irish people overwhelmingly voted to overturn a constitutional ban on abortion.

As we learned in our decades of HIV/AIDS activism, the more people who fight for a just cause, the more change we can achieve. The fight for justice and plain sense in HIV must join the fight to decriminalize abortion. HIV and safe abortion activists around the world have already begun to make the connections – in thought and action – to come together and raise their voices against unjust laws, coercion and stigma, and demand accountability from governments.

Unison in understanding the issues and in tackling them brings fresh power to the fight for reproductive justice. Too many lives depend on it for any of us to be indifferent.

Justice Edwin Cameron is a judge on the Constitutional Court in South Africa and author of the prize-winning memoir “Witness to AIDS”, about his own experience of living with HIV.

Anand Grover is a designated Senior Advocate practicing in the Supreme Court of India, and the Director of the HIV/AIDS Unit of Lawyer’s Collective. He represented Naz Foundation, one of the petitioners in the Section 377 case.

 Published on Reuters on October 10, 2018
 
 
 
 

Zimbabwe: Punitive laws reverse the gains made in the fight against HIV in Zimbabwe and should be reconsidered

Outdated, punitive laws are encouraging HIV stigma in Zimbabwe

In 2001 Zimbabwe introduced the Sexual Offences Act, which criminalised wilful transmission of HIV. Three years later the law was updated to include those who suspected they could be HIV positive but didn’t inform their sexual partners.

The law allowed people to be criminally charged for deliberately infecting other people with HIV. It came about as a result of activism by women’s rights groups; they sought to empower women who were being recklessly exposed to HIV by rapists and, in some cases, by their partners.

At the time, very few advances had been made in the fight against HIV and AIDS; the epidemic was classed as an international security threat.

But that was 20 years ago. A great deal has changed since then. Most importantly, HIV has become a chronic and manageable condition rather than an automatic death sentence. This is not to say it doesn’t remain a very real public health issue: it’s estimated that about 1.55 million Zimbabweans in a country of 14.2 million people are living with HIV.

And yet Zimbabwe’s punitive law around the transmission of HIV remains on the statute books – and it’s enforced. Today, HIV transmission cases continue to be heard before Zimbabwe’s criminal courts. This is despite the fact that punitive HIV laws are widely acknowledged as undermining a country’s public health policies and strategies.

Laws like this exist in many places, including a number of US states, Russia, the UK and more than 30 sub-Saharan countries.

As I’ve shown in my own research, such laws fuel stigma and discrimnation. They also dissuade HIV testing and adherence to treatment. Unless the legal provision in question is revised, it could reverse the gains made in the fight against HIV and AIDS in Zimbabwe by making it seem as though people living with the disease are criminals.

 

Proving guilt

In 2016, two women were charged under the law and found guilty of deliberately transmitting HIV. In 2016, two people approached the country’s Constitutional Court to have their sentences overturned and the legal provision declared unconstitutional.

They argued that the wording of that part of the law was too ambiguous and uncertain. This, they said, meant it failed to provide protection to citizens as guaranteed by the Constitution. The ambiguity centred on the “real risk” test, which places an expectation on the accused to recognise the risk or possibility that they are HIV positive and so can transmit the virus to another person.

The applicants argued that this wording was so unreasonably broad that it created a danger of false incrimination. The court disagreed; the applicants lost their legal challenge and their convictions for deliberately infecting partners with HIV were upheld.

One of the problems with the law’s wording is that it’s extremely difficult to prove the causal link between the actions of the accused and the consequences faced by the victim.

And, since the law is worded in such a broad fashion, it leaves room for people to be falsely incriminated when relationships breakdown. This was the case with Samukelisiwe Mlilo – one of the applicants in the 2016 Constitutional Court case – whose husband accused her of infecting him with HIV after she reported him to the police for domestic abuse.

Mlilo was charged under a provision in the criminal code for deliberately transmitting HIV and convicted despite her argument that the state could not prove that she had actually infected him.

Next steps

Zimbabwe needs to reconsider this legislation. If it decides that criminalisation is a necessary tool, the wording of the law must be made more explicit and less open to individual interpretation. Only clear cases of criminality – where there is evidence of foresight, negligence and actual intent – should be tried.

It must also seek to complement public health policies rather than undermining them. The thrust of the law must be to protect all citizens alike rather than encouraging the marginalisation and exclusion of people living with HIV.

Published in The Zimbabwe Mail on August 20, 2018

 

Russia: Russian Human Rights Council favors criminal punishment over education for HIV denialism, thought to be affecting minors' HIV care

Russian Human Rights Council proposes criminal penalty for HIV denialism

MOSCOW, August 7 (RAPSI) – Russia’s Presidential Council for Human Rights has recommended the government to consider imposition of criminal punishment for propaganda of HIV denialism, a statement released on the advisory body’s website reads.

According to the Human Rights Council, HIV denialism is one of the main problems hindering enhancement of the disease control efficiency and primarily affecting minors.

Other problems in this field include defects in HIV laboratory tests conducted in unspecialized organizations, faults in statistical recording and absence of regulation of a work permit procedure for health care workers in the event of HI virus detection, the statement reads.

Human rights advocates recommended the Health Ministry to adopt corresponding legislation for the solution of these issues.

Published in RAPSI on August 

Canada: Speech from Canadian Minister of Health at AIDS2018 welcomes the Expert Consensus Statement on the Science of HIV in the Context of the Criminal Law

Remarks for Ginette Petitpas Taylor, Minister of Health – AIDS 2018 Conference Symposia“Anti-fragile: Strengthening the HIV Response through Addressing Stigma, Prejudice and Discrimination

Speech

Amsterdam, Netherlands

July 26, 2018

Introduction

Good morning.

Hello everyone. I hope everyone is doing well this morning.

I would like to thank the International AIDS Society for inviting me. It is my honour to represent Canada among such a distinguished group.

We have a lot to talk about, and we also have a lot to learn.

Central to this are the perspectives and lived experience of people living with and affected by HIV and AIDS.

To those of you who have chosen to share your stories today — thank you.

You exemplify what it means to be “anti-fragile”.

You turned your challenges into strength.

I am inspired by your determination, courage and resilience.

Over the past 30 years, we have come a long way.

Thanks to the dedication and passion of people like you, we have made once unthinkable progress toward a world without AIDS.

I am proud to say that Canada has been at the forefront of this response, through the work of our civil society as well as such extraordinary champions as Stephen Lewis, Dr. Julio Montaner and, of course, Dr. Mark Wainberg. Sadly, Dr. Wainberg is no longer with us and we keenly feel his loss at this conference.

I also want to acknowledge the invaluable global contribution of people living with HIV.

Together, we have achieved a great deal. But we still have more to do.

Many people still don’t know their status, face barriers to treatment, and lack the support they need to live healthy, active lives.

Despite our efforts, something is getting in the way.

I have spoken with many people living with HIV in my time as Canada’s Minister of Health, including during my time here this week.

And while I have heard of the many struggles faced, one thing I’ve heard repeated is that stigma is holding us back.

Stigma is a significant barrier

Stigma has many faces.

We all know about HIV-related stigma, but it is compounded by other forms of stigma.

Racism. Homophobia. Transphobia.

Stigma about mental illness.

Internalized stigma.

Discrimination against people who inject drugs and those who engage in sex work.

These are just a few of the many different faces of stigma and discrimination, which have devastating effects.

Stigma can isolate people from their intimate partners, families and communities.

Stigma can keep people from getting health care.

Stigma masks HIV …and helps fuel the AIDS epidemic worldwide.

We need to stop stigma in all its forms to ensure that all people living with HIV know their status and get the treatment they need.

A rights-based approach

So, what’s the solution? A key part of the answer lies at the intersection of human rights and public health.

Treatment alone is not enough. Fighting stigma requires an integrated approach — one that puts human rights first.

In Canada, protecting and promoting human rights is part of the social fabric of our country — and it’s essential to the way we govern.

As such, human rights guide our response to HIV in Canada and abroad.

We are working to rebuild trust with marginalized communities.

While this is an ongoing process, we’ve already taken significant steps.

One key priority is renewing our “Nation-to-Nation” relationship with Canada’s Indigenous peoples — a process based on a ‎recognition of rights, cooperation and partnership.

Another priority is LGBTQ2 rights. In November 2017, our Prime Minister formally apologized to the LGBTQ2 community for a history of federal legislation, policies and practices that were oppressive and discriminatory.

Last summer, we passed a law that prohibits discrimination against transgender Canadians and protects them against hate crimes.

We have also made significant changes to Canada’s drug policy to recognize the needs of people who use drugs.

In 2016, we restored harm reduction to the core of public health approach to the opioid crisis.

We also introduced the Good Samaritan Drug Overdose Act to provide some legal protection for individuals who seek emergency help during an overdose.

We hope this Act will help reduce fear of police attending overdose events and encourage people to help save a life.

Recently, we led the charge at the United Nations Commission on Narcotic Drugs to address stigma towards people who use drugs.

Along with nineteen of our allies, we passed a resolution that stresses the importance of fighting stigma and ensuring that no one is denied health care because of it.

Finally, we have taken steps to prevent the criminalization of HIV non-disclosure.

We know that – U=U. Undetectable = Untransmittable. This means that there is effectively no risk of sexual transmission of HIV when an individual is being treated and maintains a suppressed viral load.

Having considered the evidence, the Government of Canada has determined that the criminal law should not apply to individuals engaging in sexual activity without disclosing their HIV status, if they maintain a suppressed viral load.

My colleague, the Minister of Justice, is working with her provincial counterparts towards addressing the criminalization of HIV.

Because we know that HIV criminalization is a manifestation, and driver, of stigma.

As such, the Government of Canada welcomes the work undertaken by experts to develop the Expert Consensus Statement on the Science of HIV in the Context of the Criminal Law which was released yesterday, and supports its conclusions that more caution be exercise when considering criminal prosecution.

The U=U message needs to be heard and has to be shared.

We have a responsibility to do reduce stigma in all its forms.

I challenge my fellow ministers of health to share this message in their respective countries.

STBBI Framework

Canada’s response to HIV takes an integrated approach involving sexually transmitted and blood borne infections, which share common risk factors and transmission routes.

Just last month, Canada launched a new Pan-Canadian Framework for Action on Sexually Transmitted and Blood-Borne Infections.

This Framework will help guide our collective efforts, including our annual investment of more than $87.5 million to reduce these infections.

Meeting our targets

At the heart of this framework are the globally recognized 90-90-90 targets.

I was happy to report on Canada’s progress just last week. Good news – Canada has achieved one of our global targets and are making progress toward the other two.

Based on 2016 data, it was estimated that just over 63,000 people are living with HIV in Canada.

Of these cases, we estimate that 86% have been diagnosed, 81% are being treated and, of these, 91% are achieving viral suppression.

I’m proud of our progress — but I know that we still have work to do to achieve our goals.

We need to get to 90 across the board, and our government supports a number of initiatives to help us get there.

For example, the Know Your Status initiative in Saskatchewan has been successful in promoting HIV testing in Indigenous communities using culturally appropriate models and is showing it is possible to decrease new diagnoses in these communities.

Other important initiatives are supported by our National Microbiology Laboratories, which work with Indigenous partners to make culturally appropriate HIV testing accessible in Canada’s rural and remote communities — which if you know anything about our country’s geography, is no small challenge.

We are also supporting efforts to address stigma and discrimination in the health sector through the development of resources and training for front-line health providers to help them provide safe — non-stigmatizing —services for people living with or at risk for HIV.

International contribution

As we take action at home, we are also looking beyond our borders and supporting the global response to HIV and AIDS.

We have and will continue to support the Global Fund to fight AIDS, Tuberculosis and Malaria.

We have pledged $804 million over three years, which will help ensure people with HIV and AIDS have access to the treatment they need, no matter where they live.

I am proud that our Government supports these and other initiatives— but I also recognize these alone are not enough.

We need to keep sharing knowledge and, most importantly, we need to engage in a meaningful dialogue with people living with HIV and AIDS.

Nothing about us without us

That’s why we support organizations like the Canadian Positive People Network, a group that represents people living with HIV in Canada.

Partnerships like this help facilitate dialogue between policy makers, health care providers and people living with HIV.

As we move forward, we also have to ensure that our work is guided by the voices of youth leaders. I had the great pleasure yesterday of meeting with a group of brilliant, inspired youth from around the world.

Young people: You are the global champions in the fight against stigma, not just for the future, but for today. We need your passion, your engagement and your inspiration… to get to 90 90 90, and then to end this epidemic, for good.

Moving ahead together

We have an opportunity to elevate that conversation — to explore challenges and share solutions.

Everyone has a role to play.

Together, we can build more inclusive societies by ending stigma, prejudice and discrimination.

I wish you fruitful discussions today.

Thank you very much and enjoy the rest of the conference! 

From: Public Health Agency of Canada

Bringing Science to Justice: End HIV Criminalisation Now

News Release

Networks of people living with HIV and human rights and legal organisations worldwide welcome the Expert Consensus Statement on the Science of HIV in the Context of Criminal Law

Amsterdam, July 25, 2018 — Today, 20 of the world’s leading HIV scientists released a ground-breaking Expert Consensus Statement providing their conclusive opinion on the low-to-no possibility of a person living with HIV transmitting the virus in various situations, including the per-act transmission likelihood, or lack thereof, for different sexual acts. This Statement was further endorsed by the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and 70 additional experts from 46 countries around the world.

The Expert Consensus Statement was written to both assist scientific experts considering individual criminal cases, and also to urge governments and criminal justice system actors to ensure that any application of the criminal law in cases related to HIV is informed by scientific evidence rather than stigma and fear. The Statement was published in the peer-reviewed Journal of the International AIDS Society (JIAS) and launched at a critical moment during the 22nd International AIDS Conference, now underway.

“As long-time activists who have been clamouring for a common, expert understanding of the current science around HIV, we are delighted with the content and widespread support for this Statement,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network, secretariat to the HIV JUSTICE WORLDWIDE campaign. “Eminent, award-winning scientists from all regions of the world have come together to provide a clarion call for HIV justice, providing us with an important new advocacy tool for an HIV criminalisation-free world.”

The Statement provides the first globally-relevant expert opinion regarding individual HIV transmission dynamics (i.e., the ‘possibility’ of transmission), long-term impact of chronic HIV infection (i.e., the ‘harm’ of HIV), and the application of phylogenetic analysis (i.e., whether or not this can be used as definitive ‘proof’ of who infected whom). Based on a detailed analysis of scientific and medical research, it describes the possibility of HIV transmission related to a specific act during sexual activity, biting or spitting as ranging from low to no possibility. It also clearly states that HIV is a chronic, manageable health condition in the context of access to treatment, and that while phylogenetic results can exonerate a defendant when the results exclude them as the source of a complainant’s HIV infection, they cannot conclusively prove that one person infected another.

“Around the world, we are seeing prosecutions against people living with HIV who had no intent to cause harm. Many did not transmit HIV and indeed posed no actual risk of transmission,” said Cécile Kazatchkine, Senior Policy Analyst with the Canadian HIV/AIDS Legal Network, a member and key partner organisation of the HIV JUSTICE WORLDWIDE campaign. “These prosecutions are unjust, and today’s Expert Consensus Statement confirms that the law is going much too far.”

Countless people living with HIV around the world are currently languishing in prisons having been found guilty of HIV-related ‘crimes’ that, according the Expert Consensus Statement, do not align with current science. One of those is Sero Project Board Member, Kerry Thomas from Idaho, who says: “I practiced all the things I knew to be essential to protect my sexual partner: working closely with my doctor, having an undetectable viral load, and using condoms.  But in terms of the law, all that mattered was whether or not I disclosed. I am now serving a 30-year sentence.”

FINAL_KERRY_NOT-A-CRIME-POSTERWhile today’s Statement is extremely important, it is also crucial to recognise that we cannot end HIV criminalisation through science alone. Due to the numerous human rights and public health concerns associated with HIV criminalisation, UNAIDS, the Global Commission on HIV and the Law, the UN Committee on the Elimination of Discrimination against Women, and the UN Special Rapporteur on the Right to Health, among others, have all urged governments worldwide to limit the use of the criminal law to cases of intentional HIV transmission. (These are extremely rare cases wherein a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit the virus.)

We must also never lose sight of the intersectional ways that — due to factors such as race, gender, economic or legal residency status, among others — access to HIV treatment and/or viral load testing, and ability to negotiate condom use are more limited for some people than others. These are also the same people who are less likely to encounter fair treatment in court, within the medical system, or in the media.

“Instead of protecting women, HIV criminalisation places women living with HIV at increased risk of violence, abuse and prosecution,” says Michaela Clayton, Executive Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The scientific community has spoken, and now the criminal justice system, law and policymakers must also consider the impact of prosecutions on the human rights of people living with HIV, including women living with HIV, to prevent miscarriages of justice and positively impact the HIV response.”

HIV criminalisation is a pervasive illustration of systemic discrimination against people living with HIV who continue to be stigmatised and discriminated against on the basis of their status. We applaud this Statement and hope it will help end HIV criminalisation by challenging all-too-common mis-conceptions about the consequences of living with the virus, and how it is and is not transmitted. It is indeed time to bring science to HIV justice.

To read the full Expert Consensus Statement, which is also available in French, Spanish and Russian in the Supplementary Materials, please visit the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161

VIsit the HIV JUSTICE WORLDWIDE website to read a short summary of the Expert Consensus statement here: http://www.hivjusticeworldwide.org/en/expert-statement/

To understand more about the context of the Expert Consensus Statement go to: http://www.hivjusticeworldwide.org/en/expert-statement-faq/

HIV JUSTICE WORLDWIDE is a growing, global movement to shape the discourse on HIV criminalisation as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration. It is run by a Steering Committee of ten partners – AIDS Action Europe, AIDS-Free World, AIDS and Rights Alliance for Southern Africa (ARASA), Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV (GNP+), HIV Justice Network, International Community of Women Living with HIV (ICW), Southern Africa Litigation Centre (SALC), Sero Project, and Positive Women’s Network – USA (PWN-USA) – and currently comprises more than 80 member organisations internationally.

Media session at Beyond Blame preconference outlines stigmatising and harmful media reporting

By Mathew Rodriguez

AMSTERDAM, Netherlands — As a news consumer, how can you tell if a story you’re reading about HIV criminalization is actually fair, or has the interests of people living with HIV in mind? Despite a noticeable shift in better coverage for HIV criminalization cases, activists at the Beyond Blame pre-conference to the International AIDS Conference in Amsterdam reported that too many journalists rely on harmful frameworks when reporting stories about potential HIV exposures and people with HIV whose bodies are criminalized.

Here are a few ways to see whether or not you’re being told a story that is doing way more harm than good for people living with HIV, as outlined by Janet Butler-McPhee, director of communications and advocacy at the Canadian HIV/AIDS Legal Network and Nic Holas, co-founder of Australia’s HIV movement The Institute of Many.

The HIV Monster

Though Butler-McPhee said this narrative is slightly fading, too many journalists still rely on this frame as a way to garner clicks. This narrative paints people with HIV as purposefully hiding their status in order to be deceptive to an HIV-negative person or people. This framework also implies that people with HIV have some innate intent to transmit the virus and that HIV-positive people are all terrifying potential perpetrators of criminal activity.

Aside from othering people with HIV, this narrative also turns HIV-negative people into innocent victims with zero agency in their own lives. These narratives often omit pertinent details about the relationship between the accused and accuser. It turns a complex relationship into victims and villains.

It’s racist AF

HIV criminalization and obvious racism go hand in hand. This is very similar to the HIV monster narrative but also relies on racist tropes to tell its story. For instance, in many countries like Canada and the United States, black men are often painted as vectors of disease who are preying on innocent white women or white gay men. This narrative happens with other marginalized groups, as well.

The story claims HIV criminalization will protect you!

Some stories share the names and information about an HIV-positive person’s HIV criminalization case as a form of “public good” — saying that the public deserves to know someone’s private health information. Butler-McPhee stressed that this is unfortunately rooted in the idea that people with HIV do not have basic rights to privacy and that outing them will do more public good than personal bad — which is wrong . Coverage that relies on outing people with HIV is often inherently racist as well. Their names are published to protect white women.

Stories like this once again put all the onus of public health on HIV-positive people. It also sets HIV apart from every other STI or blood-borne infection, reinforcing the stigmatizing idea that it is somehow scarier or deadlier. Coverage like this also retraumatizes the accused.

Additionally, Holas stressed, local police officers often rely on media to get an accused’s name in headlines and stories to get other potential sex partners to come forward to build a case around them. In cases like this, the media may be unknowingly doing the police force’s work to help criminalize a person with HIV.

The story reports that HIV is easy to transmit and a death sentence.

Any coverage of HIV in 2018 that treats HIV as an automatic death sentence is unscientific and wrong. While it’s true that many people in the global South and even certain regions in the United States might see worse outcomes due to an HIV diagnosis than others, putting the onus on the virus instead of racist socio-economic conditions puts people with HIV at risk. When discussing HIV criminalization, stories too often rely on people’s fear of the virus rather than reality to prove their point.

“It’s easy to disclose your HIV status, so just do it!”

If there’s one thing that HIV criminalization stories prove, it’s that living with HIV in 2018 is a serious risk for personal safety. However, many stories still push the idea that disclosure is the end-all-be-all of living with HIV and that it is the “morally correct” thing to do, even when the story itself is showing the many negative consequences that can come along with HIV disclosure.

These stories also don’t take into the account the pervasive violence and stigma that people living with HIV face daily. As Holas said, these stories revolve around the idea that “if you haven’t done anything wrong, you’ve got nothing to worry about.”  

For those in the media interested in improving their coverage or for advocates looking to make sure their messaging on HIV criminalization is media-ready, the HIV Justice Network does have a guide on HIV criminalization and the media.

 

Published in INTO on July 23, 2018

Beyond Blame symposium highlights intersectionality of issues related to HIV criminalisation at AIDS 2018

Strategies to oppose the unscientific criminalisation of HIV transmission received a high profile at events in advance of the 22nd International AIDS Conference (AIDS 2018) in Amsterdam this week.

These included the launch by the Global Commission on HIV and the Law of a Supplement to its 2012 Report, Risks, Rights & Health, and the HIV Justice Worldwide symposium, Beyond Blame: Challenging HIV Criminalisation.

Read more at aidsmap.com

Ireland: Following first HIV-related conviction for "intentionally or recklessly causing serious harm" in Ireland, Dr Juliana Adelman reflects on the fear of contagion

 Fear of contagion clouds our thinking about the transmission of HIV

How can we treat people fairly while reducing risk to others of contracting the disease?

There is no legal obligation on a person with HIV to disclose their status, nor is there a law that provides a specific penalty for knowingly transmitting the disease. For the second time this year, this legal situation is being tested in the courts. The defendant is accused of “recklessly or intentionally causing serious harm” by transmitting HIV to two separate sexual partners.

This raises serious questions about our understanding both of HIV the disease and of personal responsibility with regard to health. Is the contraction of HIV, now a treatable long-term condition, “serious harm”? Who is at fault for contracting a disease? What does fault mean? These are very difficult questions and have vexed societies for as long as contagious diseases have circulated them. Sexually transmitted diseases bring another layer of complexity as they also involve attitudes towards sexual activity.

An interesting thing happens in my history of medicine class when we talk about sexually transmitted diseases. The students veer between contradictory positions. On the one hand, they have no sympathy for the system of Magdalene laundries and lock hospitals that incarcerated women with suspected syphilis, often against their will.

Contrasting sympathies

The students say such a system was sexist and motivated by a tendency to blame victims of disease. When we talk about HIV, however, they advocate a different position. This year, one student suggested to the class that people who are HIV-positive should be placed on something akin to a sex offender register. Everyone should know about their status and have the opportunity to avoid them. A kind of walking, permanent, lock hospital.

When I try to point out that their sympathy with syphilitic women in the past seems in stark contrast to their fear of people with HIV in the present, they are confused. How did the person get HIV they ask? Because, they say, there are ways to get the disease that are your fault and ways that are not.

In the 17th century, when syphilis was still a new and poorly understood disease, some doctors blamed women for creating the disease in their own wombs. Kevin Sienna has unearthed a wide range of sources pointing the finger of blame at women, especially women who were too overtly sexual. The “pocky steams” of the prostitute or the unfaithful wife passed the disease to unsuspecting men; no one asked how the women got it in the first place.

Patients isolated

In the 19th century, the Contagious Diseases Acts (1864 to 1869) attempted to stamp out syphilis by arresting and inspecting women suspected of prostitution. Women need not be caught in the act of soliciting sex, but only rumoured or accused. If the medical examination found symptoms of disease, the woman was confined to a lock hospital for treatment. Protests against the Act for how it treated women were immediate and loud and eventually it was repealed.

Yet societies continued to treat sexually transmitted diseases differently than other contagious diseases. Robert Koch identified the bacteria that causes tuberculosis in 1882. Transmission of the disease could be prevented by specific behaviours, including the isolation of contagious patients. Yet some public health advocates resisted efforts to make the disease “notifiable” to authorities for fear that social stigma would prevent victims from seeking treatment. While TB did carry a stigma and patients often spent months and years isolated in sanitoria, its victims elicited more sympathy than fear.

A fear of moral contagion clouds our thinking about the transmission of HIV today. Because the disease is most commonly passed through intravenous drug use and sexual intercourse, we consider it shameful and its victims at least partly responsible for their plight. But we do not distribute that blame equally: heroin addicts, African immigrants, the sexually promiscuous, prostitutes, and gay men have often carried a disproportionate amount of blame. No wonder that most people with HIV would rather keep their diagnosis a secret.

Someone diagnosed with HIV at age 20 is, with treatment, expected to live to 73. That means that there are many people living in our communities, partaking of all aspects of human life, who are HIV positive. How can we treat them fairly while also reducing the risk that others will contract the disease?

Dr Juliana Adelman lectures in history at Dublin City University

 

 

US: North Carolina's HIV criminalisation reform protects people who are undetectable but leaves others vulnerable

In North Carolina, an HIV Criminalization Reform Bill Passed, but People Who Aren’t ‘Undetectable’ Remain at Risk

Until recently, North Carolina was one of two-dozen states that directly criminalize HIV exposure, but in a historic move this year, the state updated its HIV control measures to conform with the modern understanding of transmission risk.

North Carolina’s unique journey to HIV criminalization reform might serve as a roadmap for other advocates hoping to modernize their own state’s laws. But it hasn’t been without controversy, with some advocates taking issue with North Carolina’s new carve-out for HIV-positive people who have achieved viral suppression.

Thanks to antiretroviral treatment, people who take a pill every day are no longer capable of transmitting the virus to others, a scientific framework called “undetectable equals untransmittable” or “U=U.” North Carolina’s new rule protects that population completely, but it leaves others vulnerable to legal ramifications.

That’s a problem, some argue, because it might deepen racial disparities that already exist in prison sentences and in viral suppression. According to the Prison Policy Initiative, black North Carolinians make up only 22% of the state’s population yet account for 55% of all people in state prisons and local jails; whites comprise 65% of the state’s population but only 36% of those in state prisons or jails. When it comes to viral suppression, in North Carolina, 62% of all people with HIV are virally suppressed. But 66% of whites living with HIV in the state are undetectable, compared with 61% of blacks and 51% of Latinx people.

“These concerns are valid and need to be addressed,” says Christina Adeleke, communications and development coordinator with North Carolina AIDS Action Network (NCAAN). But addressing these “bigger system issues … is a conversation that’s way bigger than HIV criminalization.”

Adeleke and her colleagues at NCAAN were instrumental in bringing about North Carolina’s reform and presented their process for advocating for reform at the 2018 HIV Is Not a Crime Training Academy in Indianapolis. If it were up to NCAAN’s executive director Lee Storrow, he would repeal HIV criminalization laws outright. But Storrow and Adeleke both emphasize that they are working in a Southern state, where it’s tough to move the needle on HIV criminalization reform.

“We wanted to advance it as far forward as we had the capacity to, without going so far that we wouldn’t achieve anything,” explains Storrow.

“We had to be very mindful to be in lockstep with the state,” Adeleke adds. “Where we landed was as far as we could go at this point.”

According to Storrow, North Carolina now has the most progressive HIV criminal law in the South. He argues that decriminalizing behaviors for people who have achieved viral suppression is an important first step. Additionally, North Carolina’s reform contained other important changes, eliminating stigmatizing words, such as “infected” and “retarded,” and conforming with new federal rules around HIV-positive organ donation.

Now, NCAAN is hoping that North Carolina’s modernized rules will encourage people who are living in the shadows to seek treatment, knowing that they’ll be protected from prosecution if they’re able to take their medications every day.

NCAAN’S Journey

Dozens of HIV criminalization laws were passed in the 1990s and 2000s when fear of the epidemic was at an all-time high. But, today, some lawmakers are rethinking these decades-old rules in the wake of mounting evidence that they’re based on outdated science. California recently modernized its law to reduce HIV transmission from a felony to a misdemeanor — a reform advocates consider a best-case scenario. Meanwhile, other states have moved in a different direction, broadening their HIV criminalization laws to include hepatitis C and other sexually transmitted infections.

But, unlike other states, North Carolina’s HIV criminalization rules are not baked into the legal code. Instead, the rules exist as part of the state’s public health control measures, under the purview of the Commission for Public Health.

In 2017, those control measures were up for review, and NCAAN saw an opportunity to finally modernize the state’s criminalization rules. Initially, state officials only wanted to reform the control measures to include the federal HIV Organ Policy Equity Act (HOPE Act), which legalizes organ donation between HIV-positive people, said Storrow.

However, NCAAN advocated for broader reforms, arguing that the state should decriminalize condomless sex between HIV-positive couples and mixed-status couples who use pre-exposure prophylaxis (PrEP).

Moreover, NCAAN fought to eliminate non-disclosure prosecutions for HIV-positive people who are virally suppressed, based on the contemporary understanding that effective treatment prevents people with HIV from passing the virus to others.

It took months of meetings and many strained conversations to convince some state officials that HIV criminalization rules should be modernized. In part, that’s because many people still believe that HIV is a highly contagious death sentence.

People assume that if you are living with HIV, you are in a constant state of being able to transmit HIV to other people,” says Adeleke. “In reality, if you are on medication and in treatment and virally suppressed, it is physically not possible to do that. You can live a normal life.”

Eventually, a compromise took shape, and the new, modernized rule took effect in January 2018. Storrow says the changes made are meaningful to many North Carolinians, especially couples who are on treatment and no longer need to fear prosecution. But he also called the changes “incomplete,” asserting that there’s a long way to go in the effort to completely decriminalize HIV in his state.

Adeleke hopes North Carolina’s journey can be a model for other Southern states that must balance the desire for radical reform against the backdrop of conservative-leaning leadership.

Adeleke recommends that other advocates working in the South familiarize themselves with specific legislation and public health laws in their own states.

“See who specifically is in charge of making certain decisions; you may find you have allies waiting in certain parts of government who can help you move this along,” she adds.

In North Carolina, the majority of people on the HIV reform task force were people living with HIV, Adeleke says.

“The process was inspiring because it showed how a community can take ownership of a particular topic that’s really affected them,” she says. “To be able to achieve the result we did was exciting.

Sony Salzman is a freelance journalist reporting on health care and medicine, who has won awards in both narrative writing and radio journalism. Follow Salzman on Twitter: @sonysalz.

Published in the Body on June 25, 2018

 

Canada: The treatment of people living with HIV at the hands of Canada Supreme Court perpetuates stigma and fear

Our Highest Court’s Position On HIV Disclosure Is Steeped In Stigma

It perpetuates fear through a set of decisions that force those living with HIV to disclose their status, even if the risk of transmission is non-existent.

Canada’s reputation as a caring and progressive society has been tarnished by how the nation’s highest court has stigmatized people living with HIV. And, as recent court battles show, the supreme court rulings aren’t just charged and stigmatizing, they are also on shaky legal ground.

During an impassioned lecture at the University of Calgary recently, celebrated human rights advocate and HIV activist Justice Edwin Cameron, of South Africa’s highest court, described the treatment of those living with HIV at the hands of the Supreme Court of Canada (SCC) as a “uniquely Canadian monstrosity.

“Worldwide, despite antiretroviral treatment, about one million people die of AIDS annually. Many of them, roughly but accurately expressed, are dying of stigma,” said Cameron, who was diagnosed with HIV in 1986. His struggle with the virus, and his advocacy work, formed part of his best-selling memoir, Witness To AIDS.

Stigma, he argued, is “a social brand of judgment, an imprint of contempt and ostracism” that perpetuates silence and shame, and even fear of diagnosis, meaning too many people are not accessing the treatment that can restore their health.

The Supreme Court of Canada, charged Cameron, has served to perpetuate that fear with a set of decisions that imposed a legal duty on those living with HIV to disclose their status to partners even if they are receiving antiretroviral treatment, which reduces the virus to virtually undetectable levels.

“Canada has a dubious distinction. After the United States and Russia and eastern European countries,” said Cameron. “It has prosecuted more cases, it has put more people in prison for simple non-disclosure of HIV infection, than any other country. It lags behind only a handful of jurisdictions in absolute numbers of convictions.”

And all the prosecution, which results from non-disclosure being treated in Canada as a criminal offence, is doing more harm than good, according to the Community, AIDS, Treatment, Information Exchange (CATIE), a Canadian group that promotes good practices for treatment and prevention programs for those living with HIV and hepatitis C.

CATIE points out there is zero evidence to show criminal penalties deter participation in behaviours that present risk of transmission. But prosecution is effective in deterring people from getting tested, while giving the public a false sense of security that criminal prosecutions will somehow protect them, Cameron pointed out. CATIE has recorded at least 184 instances of criminal charges in Canadian cases of non-disclosure.

“How can it be that Canada places so injurious a brand mark of stigma on people living with HIV, more so than many other western countries,” stated Cameron.

At the heart of it lie two supreme court decisions — (R v.) Currier and (R v.) Mabior.

‘Rape with no rapist’

Henry Currier of B.C. was charged with aggravated assault for not disclosing his HIV to two women with whom he had consensual, unprotected sex. Neither of his partners contracted the virus but the Supreme Court ruled his failure to disclose his condition constituted fraud, thus negating consent.

“The result was rape with no rapist, but instead only a sexual partner with a medical condition that was neither communicated, nor transmitted to the other partner,” said Cameron. The decision, “punished those with HIV solely for having HIV and for not disclosing it.”

“In doing so (R. v.) Currier created a new monster legal category of aggravated assault with no assault, except emotional exposure to an infectious disease, and no aggravation, except judicial enforcement of societal condemnation of the accused person’s conduct… in not disclosing his infection.”

“This criminal category, the most expansive, judicially created doctrine targeting HIV on the planet, is a uniquely Canadian monstrosity.

The issue of HIV non-disclosure returned to the Supreme Court in 2012 with R. v. Mabior.

Clato Mabior stood trial on 10 counts of aggravated assault involving nine women and was sentenced in 2008 to 14 years for not disclosing his status. Mabior was receiving antiretroviral treatment at the time and none of his partners contracted HIV.

Cameron said the court failed to take into account established medical evidence of the efficacy of antiretroviral treatment and HIV transmission. Furthermore, other people living with more communicable and deadly diseases are not bound to disclose.

“From a moral point of view, Mr. Mabior, like Mr. Currier, are unappealing. But it is not the court’s task to yield to moralism or to invent overbroad criminal doctrines to enforce it.”

Published in the HuffPost on June 14, 2018