US: Georgia Coalition to End HIV Criminalization seeks re-evaluation of state's HIV criminal laws

Are state’s HIV laws unfair? Activists say it’s time for change

Nina Martinez moved to Georgia from Washington, D.C., in 2005. Just a few months after she settled into her new Atlanta home, she learned about Georgia’s criminal laws regarding people disclosing their HIV status to others. It personally changed things for her.

“As a person living with HIV, I didn’t even form relationships because I didn’t want someone who was just mad at me, who said, “ ‘She didn’t tell me she was HIV-positive,’ ” said Martinez. “I haven’t minded being single for the last 12 years or so, but it’s not necessarily by choice. I guess.”

The Georgia laws that Martinez is referring to are almost 30 years old. They state that people with HIV can serve jail time for not disclosing their HIV status to others in certain situations. Those situations include having sex with someone; sharing a needle; performing paid sex work; or donating blood, body fluids, body organs or body parts. People with HIV can be imprisoned for up to 10 years for any of these violations.

The sentence goes up to 20 years of prison time (and no less than five years) for a person with HIV to put their body fluids on a peace office or a correctional officer, while the officer is on duty. This includes the acts of biting, spitting or throwing bodily fluids such as blood, semen, vaginal secretions, saliva, urine and feces.

Numerous other states also have such laws, and their purpose is obvious: to prevent people from deliberately infecting others with HIV. There have been cases of people doing so.

But with improved understanding of HIV transmission, and scientific strides that have made infection less deadly, critics say the laws are largely outdated..

Martinez says the current Georgia laws are unfair because they allow prosecution of people who did not intend to transmit the disease, and even people who had taken precautions against transmission, like using condoms or taking HIV medication. And she says the disclosure laws create a “he said, she said” situation, because it’s hard to prove what people in an intimate relationship communicated to each other.

“This law does not allow me to provide a good defense for myself against cases where somebody might falsely accuse me of not disclosing,” said Martinez. “It doesn’t require that I actually harm someone for me to be prosecuted. And that’s not right.”

“I just want the ability to be able to have somebody else be legally responsible for their own health,” Martinez continued. “Like why am I legally responsible?”

A movement to change HIV laws has been under way for some time. Martinez is one of the steering members of the Georgia Coalition to End HIV Criminalization, an advocacy group.

The coalition would like to see several changes to Georgia’s current code. One of those changes would be a requirement that a person be prosecuted only if there’s proof of intent to transmit HIV.

“Another thing that we want to see is to get these laws aligned with science,” said Sequoia Ayala, a lawyer and policy fellow at Sister Love, and a member of the Georgia Coalition.

The CDC has stated that the risk of transmission of HIV from biting, spitting or throwing fluids is negligible.  Because of this, the coalition wants to see that section of the law removed. Assaults with bodily fluids would still be illegal, but the offender’s HIV status would not be relevant.

The current statute does not consider any measure a person with HIV has taken to prevent the risk of transmission. This includes the use of a condom or adherence to antiretroviral medication regime.

“We know now that if an individual has access to their medication, and they have taken the medication, and have achieved a viral load of less than 200 copies, they’re unable to transmit HIV via sex,” said Ayala. “And yet the reality is that an individual being adherent to their drugs does not relieve them of any culpability.”

After several years of discussion with the coalition, the Georgia Legislature is now considering the issue. In the spring, Rep. Sharon Cooper (R-Marietta), four other House representatives and four members of the medical community formed a study committee focused on addressing barriers to adequate health care in Georgia.

The House study committee met in mid-October to discuss HIV laws, and recently released a final report. Possible changes, in line with the coalition’s goals, and best practice recommendations released in 2014 by the U.S. Justice Department were outlined in the final report.

The changes include removing most HIV-specific criminal penalties. But penalties would remain in the following situations: If an HIV-positive person commits a sexual assault where there is a risk of transmission, or when a person is aware of being HIV-positive and intends to transmit the virus, and there is a significant risk of transmission.

The final report said that if people with HIV are taking medication, they should be able to present that as a defense in an HIV criminal case.

Though the committee recommended significant changes to the law, no immediate action was outlined. In fact, Cooper told one of the presenters at the October study committee meeting not to expect any changes in Georgia’s HIV criminal law in the next year.

“There is a time for everything,” said Cooper. “And next year’s session is probably going to be really, really short. Probably not the time to introduce any new legislation on certain things. But certainly this is information to look forward to.”

A mixed picture nationally

According to 2017 statistics from a national advocacy organization, the Center for HIV Law and Policy, 34 states have HIV-specific criminal laws. In six of those states, people who are convicted under the law are required to register as sex offenders. Over the past nine years, 303 people with HIV have either been arrested or charged under these laws.

In Georgia, at least 12 people have received lengthy prison sentences for not disclosing their HIV status. Other recent news stories of alleged reckless conduct by people with HIV may add more to that list

The coalition says these cases “required characterizing otherwise normal and legal behavior as criminal for no reason other than the defendant’s HIV status.”

Several states have been re-evaluating their HIV criminal laws. Texas repealed its statutes in 1994. Illinois revised its laws in 2012, and Iowa passed revisions in 2014.

In 2016, Colorado repealed two of its HIV criminal laws and changed language in other statutes to regard HIV like other sexually transmitted diseases. In October, California changed exposing someone to HIV from a felony to a misdemeanor, treating the virus like other STDs under the law.

Every state in the Southeast except Alabama has criminal laws related to HIV. Right now, Florida and Georgia seem to be the only two states in the region that are looking at changes. In May, the Florida Legislature considered changing HIV-related felonies to misdemeanors. It failed in the Senate, but legislators will likely re-introduce it next year.

And now Georgia has the study committee’s recommendations.

Rep. David Dreyer (D-Atlanta), who was not a member of the House study committee, is firmly for changing the HIV laws. But he thinks just as Rep. Cooper predicted, real action may take some time.

“I think these [laws] were enacted when people were afraid of HIV. When the science might not have been in on how HIV gets transmitted. And it was just a reaction out of fear, rather than science,” said Dreyer. “But these things do take a few years,” said Dreyer. “And this issue is going to be important in policy circles for years to come.”

Martinez is determined to keep fighting for reform, even if it takes years.

“Our HIV criminal laws don’t even fit the attributes of traditional criminal laws. Criminal law says you have to have intent to harm and you acted in a way that made harm likely,” said Martinez. “Our current Georgia law does not require intent to transmit or actual transmission. It literally only requires that you didn’t say something you should have said.”

Victoria Knight is a graduate student studying health and medical journalism at the University of Georgia. She also works as a health reporter for WUGA-FM, the Athens-area NPR station, and has a bachelor’s degree in microbiology from the University of Tennessee. You can follow her on Twitter at: @victoriaregisk

Published in The Pulse on Dec 16, 2017

Zimbabwe: Country's laws on deliberate transmission are too broad and should be reviewed

PREGNANT HIV-positive mothers who do not take precaution to prevent transmission of the virus to their unborn babies are liable for prosecution and face up to 20 years in prison under the country’s laws, a lawyer has noted.

Anyone living with the virus who has sexual intercourse with an HIV-negative partner using protection without disclosing their status may also be legally liable, even when transmission has not occurred, Mr Lizwe Jamela of the Zimbabwe Lawyers for Human Rights (ZLHR) said.

In an interview on the sidelines of the just-ended International Conference of Aids and STIs in Africa (Icasa) in Abidjan, Ivory Coast Mr Jamela, who heads ZLHR in Matabeleland and Midlands provinces said the country’s laws on deliberate transmission of HIV were too broad and should be reviewed.

He said the broadness of the laws made almost everyone who is sexually active liable for prosecution, and thus called for the repealing of the legislation.

Under section 79 of the Criminal Law (Codification and Reform) Act chapter 9:23 deliberate transmission of HIV is a criminal offence which attracts a sentence of not more than 20 years.

“On the face of it the law talks about deliberate transmission of HIV but when you analyse it further you observe that almost everyone can face prosecution,” he said.

Section 79 (b) states that “Any person, realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years”.

Mr Jamela said, “Anyone can fall into that category. There is just too much conjecture in that law.

“If a pregnant woman who is HIV-positive fails to undergo the Prevention of Mother to Child Transmission (PMTCT) programme she is liable for prosecution.

“Anyone who is HIV positive who has intercourse with someone who is negative and uses protection can still be prosecuted under this law because that person would have done something which involves a real risk of possibility of infecting another person with HIV.

“The fact that one used protection can only be used as mitigation but not to absolve anyone.”

He added, “So under this law, the criminal offence is not only about deliberate transmission but even exposure to risk of transmission, which in my view is very wide and broad.”

Mr Jamela said the law should either be amended to deal specifically with cases of deliberate transmission or be totally repealed.

“We don’t need a law that criminalises HIV. Instead we should be reinforcing the human rights response to HIV intervention by increasing issues of education and advocacy.

“We could limit the law to genuine cases of deliberate transmission,” he said.

Mr Jamela further argued that it was also humanly impossible to prove in a court of law who would have infected who between complainant and defendant in cases of deliberate transmission of HIV.

“Judiciary can’t deal with who infected who. There is no technology to generate evidence to prove that. So in most cases the person who would report first becomes the complainant. But what if the complainant is the one who infected defendant, how do you prove that?

“For a criminal conviction to happen someone should be guilty beyond reasonable doubt, but we have people being convicted of deliberate infection when that threshold has not been passed,” he said.

Head of the HIV and TB unit in the Ministry of Health and Child Care Dr Owen Mugurungi described the enactment of the law as “a moment of madness”.

He said the law was counterproductive in the fight against stigma around HIV.

“It was a moment of madness. This is what happens when decisions are made based on emotions.

“The law attacks the basic rights of people living with HIV. It’s counter-productive to our interventions and defeats everything we are trying to do to fight the virus.

“That law causes people to go underground, it scares away people from getting tested because it stigmatises HIV,” he said.

Dr Mugurungi added that there was engagement between the National Aids Council and legislators to look into possible ways of repealing or amending the law so that it does not criminalise HIV.

Zimbabwe Network of People Living with HIV (ZNPP+) national chairperson Sebastian Chinhaire said the law countered the country’s efforts to end Aids by 2030 and should be done away with immediately.

“We should do away with that law. We will not end Aids by 2030 if we still have that law. All the gains recorded in the fight against HIV are being reversed by this law. It should go,” he said.

Published in Bulawayo 24 on Dec 17, 2017

US: Trevor Hoppe discusses the history and future of HIV criminalisation activism

What’s the Future of HIV Criminalization Activism? An Interview With Trevor Hoppe

By Kenyon Farrow

From TheBody.com

December 12, 2017

After 30-plus years of states using laws to criminalize people living with HIV for exposure or transmission, the movement to change these laws has gained momentum. TheBody.com’s senior editor, Kenyon Farrow, sat down with Trevor Hoppe, Ph.D., an assistant professor of sociology at the University at Albany, State University of New York (SUNY), to discuss the history and present-day activism detailed in his new book, Punishing Disease: HIV and the Criminalization of Sickness (University of California Press, 2017).

Kenyon Farrow: Part of what I want to talk about is the kind of current activism movement that is beginning to emerge to take on these laws — some federal attempts and some state-level organizing. I think the dominant framework here is that the Ryan White Care Act is the reason why we have state laws criminalizing HIV, in that the first iteration of the bill told states that they had to have these laws on the books in order to get the money.

Trevor Hoppe: To certify, yeah.

KF: Right. But what you’re suggesting is, actually, these laws were already pretty well established by the time we even got to the Ryan White CARE Act for that to even have been the case.

TH: Yeah. You know, this is really a problem with the legal literature — where you can just sort of say anything and claim that it’s true. And so, we’ve had legal scholars making this argument without any evidence for decades now, where they just say, “Oh, it must have been the Ryan White Act.”

But Ryan White was in the 1990s and, by that point, almost all the states that were going to criminalize HIV had already done so. When I look at other states — such as Alaska, for example, they were debating whether to add an HIV-specific felony law. And they said, “Well, do we have to do this because of Ryan White?”

The lawmakers said: “No, no. We looked into it. All we have to do is certify that we could punish someone living with HIV under any law, whether or not it’s specific to HIV. So, no. Ryan White is not a reason to enact this law.”

So, you have lawmakers even acknowledging that Ryan White was not a factor in their decision. So, yeah. I think that’s a farce, really, that Ryan White is to blame.

KF: Got you. Yeah, so let’s talk more about the current moment. We’ve had a number of both national organizations that are taking on more of the work, either repealing or [creating] the framework of modernizing the HIV criminal codes, and then some local efforts to do so, as well. They have had a couple of recent legal successes. Well, I’ll say legal reforms — we can debate the level of whether it’s a success or a win, or some phase. So, you know, Iowa kind of being the first state, and now California and some other places are looking at reform bills.

So much of the narrative and the messaging around reforming the HIV criminal legal code is around this idea of modernization. What I hear a lot of advocates saying — and using to speak to lawmakers — is that these laws were created when we didn’t know how HIV was spread and there was a lot of panic and fear in the country. Now that we know that people who are on treatment and get to be undetectable can’t transmit the virus, then a number of other things that we understand about treatment and disease progression, and what have you — these are reasons why we need to reform the laws.

I’m curious to hear your take on the current moment. There’s more energy and focus on criminalization laws where HIV is concerned, and particularly this sort of modernization framework. How do you respond to it, based on your research?

TH: I guess what immediately comes to mind is: Who do you think is being punished under these laws? Do you think it’s really the middle class gay man living in San Francisco who’s being arrested? No. It’s the poor white woman living in the middle of Michigan: The people who are least likely to be on treatment and have access to treatment are being caught up in this wave of criminalization.

So, I am very wary of attempts to just tweak these laws — to only punish people, for example, who have detectable viral loads — because I think that’s really just kicking the can down the road. It avoids the hard question, which is: Is the criminal justice system the best tool, the right tool, the appropriate tool, to respond to these cases? Or are there public health interventions that might be better suited to respond to these individuals, who may not be disclosing their status or, you know, may be accused, at least, of doing so.

I really think that we have two possibilities emerging. We have states like California and Colorado, who have fully repealed several of their HIV-specific felony laws. Those were huge successes, I think. They were repealed, and that’s rare. Lawmakers do not like to repeal criminal statutes because they’re worried about looking soft on crime.

On the other hand, we have states like Iowa and Tennessee, in the Midwest and the South — which is really the hotbed of criminalization in the U.S. We see there that state legislatures are moving to expand their laws to include other diseases. Now, in Iowa, they also reduce the penalties in the most harmless cases to much lower levels. And that is a success. But I think the expansion to other diseases is a huge failure, in the sense that all you’re doing there is just further entrenching the idea that the criminal justice system is the right tool to handle these situations.

I think that’s wrong. I hope we don’t see more Iowas and Tennessees out there. I hope we see more Californias and Colorados.

KF: Thank you. I got into a lot of trouble for saying that a few years back.

TH: I get [it]. I understand; I know some of those activists on the ground in Iowa. I understand that they really felt like that was the best outcome that they could achieve in that political moment. So, I understand the political realities are challenging. That’s going to be true in all of the states where criminalization is most extreme. It’s really not the Californias and New Yorks of the world where we’re locking up dozens or hundreds of people living with HIV; it’s the Michigans and the Floridas and the Missouris of the country [where] we’re seeing those outcomes.

Getting a bill, a repeal bill, passed in Michigan and Florida –that’s a different beast altogether. So, I get why Iowa activists celebrated that move. I just think it’s ultimately shortsighted. But, for people like Nick Rhoades, who was convicted under Iowa statute and had that conviction tossed out after that reform, obviously, it was a huge victory.

But it’s a question to see who are going to be the future Nick Rhoades of the world under the new law. We don’t know that yet. But I would suspect there will be more cases down the road, rather than less cases, under this new law.

KF: In closing, I would just like to hear: Where do you think we should be going in terms of the legislative strategy, in terms of the legal change, and eradicating criminalization. But I’m also curious what you think [about] aspects of either public health, community-based programs for HIV or LGBT folks, or in poor communities or what have you.

One of my concerns is that, for instance, when Michael Johnson’s trial was happening, and I, with some other folks, were doing some of the advocacy to try to support his case, one of the things I became painfully aware of was [that] there was by no means a consensus among people living with HIV, among LGBT folks, among black folks that these laws are a bad idea. To me, it actually suggests that there is some other work that we have to do, in addition to the small set of people who are going to be doing the sort of legal advocacy piece.

TH: You know, I talk to a lot of people on the ground in different states. Their first reaction is always: “What can we do? How can we get involved?”

I think sometimes it’s great that there’s this excitement and energy and interest in reforming the laws. But the reality is that the first step is not to run to the Lansings or to the Raleighs of the world — not to the state capitals — [but] to start local. That will always be the first step: to see what you can really achieve at the local level.

Talk to the local health department and see where are they on this issue. Because we may think that they’re all on board. But I can just say from my experience traveling around the country, that’s not the case in a lot of places. Local health officials are really mixed as to what the appropriate response is to these cases.

We can [do] outreach to local health officials. We can also [do] outreach to prosecutors and judges, because they’re not medical experts. They have no training in HIV science. So, when someone comes before their court — a partner, for example, comes before the court — and testifies that they have to be tested for the next 10 years to know whether they were actually infected by this person, it goes unquestioned. Because [these officials] have no expertise or knowledge.

So, I think just starting a basic communication campaign, that if these individuals are going to be tasked with litigating HIV, they ought to be informed, at the very least. And I think once you’re informed, it’s hard to come to the same kinds of conclusions in these cases if you have the science at hand. There are gross exaggerations made about HIV — that it’s a death sentence, that these defendants are murderers, that you have to be tested for 10 years to know whether you were infected — and those kinds of claims have no factual basis. And so, I think we can [do] outreach to prosecutors and judges at the local level, quietly, behind the scenes, to see what we can achieve there.

I know people want to just get up and go to the state capital. I think in some cases that’s appropriate. But, before we get there, I think, start local. It’s really at the local level that these cases play out. I think we can have potentially more success in some states, very conservative states, at the very least, by starting local.

KF: OK, great. Thank you. Is there anything else that we didn’t get to talk about that you would like to mention before we go?

TH: Well, I would say — and I say this every time I get asked this question — I think, as a gay man, I know that many of us, our community, struggles with HIV. And many of us have had the experience of finding out that someone we had sex with is living with HIV. And maybe we didn’t know it. And maybe we didn’t ask, or whatever. But we have a lot of mixed emotions about those cases. It’s something that we have to deal with as gay men; that’s a reality that many of us are going to test positive at some point in our lives.

I would just say to keep an open mind, thinking about these criminal cases. Because most defendants are not that boogeyman that you have in your imagination — the man lurking in the shadows [who] is going to intentionally, maliciously infect you. That is really almost never whom the defendant resembles. It’s much more likely to be someone who used a condom, or had an undetectable viral load, or just couldn’t figure out, for a one-time sexual encounter, how to disclose their status in a very high-stigma environment.

So, yeah. That’s all I would say, is just keep an open mind. Know that the boogeyman is really not representative of most defendants in these cases.

This transcript has been lightly edited for clarity.

Kenyon Farrow is the senior editor of TheBody.com and TheBodyPRO.com.

Follow Kenyon on Twitter: @kenyonfarrow.

Canada: Lawyers are asking for current cases and past convictions of non-disclosure to be revisited in light of federal justice department report

Lawyers urge second look at HIV non-disclosure cases, convictions following report

Monday, December 11, 2017 @ 9:25 AM | By Terry Davidson

Lawyers are urging Crown attorneys to re-examine HIV non-disclosure cases past and present following a federal report calling for a curbing of criminal prosecutions in light of evolving science around risk of transmission.

Various Canadian criminal lawyers are saying current cases and past convictions of non-disclosure should be revisited by provincial prosecutors and their attorneys general against the backdrop of the new report, which lays out various scenarios which would involve a low — or even non-existent — possibility of transmission, even if a condom is not used.

The Criminal Justice System’s Response to Non-Disclosure of HIV warns of the overcriminalization of infected people who don’t disclose their condition but are on treatment, have a low viral load and pose a “negligible” risk to a non-infected sex partner.

It goes on to classify HIV as “first and foremost a public health issue.”

After the report’s release, Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins announced they would tell their Crowns to now limit non-disclosure prosecutions, particularly in cases where the infected person “is on antiretroviral therapy” and “where an individual has a supressed viral load for six months.”

Toronto criminal lawyer Michael Lacy, a partner with Brauti Thorning Zibarras and president of the Criminal Lawyers’ Association, said the report should give “guidance” to Crown prosecutors.

“From a legal perspective, the report provides guidance that should eliminate criminal prosecution in those cases,” said Lacy. “Non-disclosure alone will not vitiate consent. Non-criminal responses are being recommended for the vast majority of cases involving public health authorities. At the same time, the report recognizes that there will be some, now hopefully limited, circumstances where the blunt instrument of the criminal law will be the appropriate way to respond to deliberately high-risk behaviour.”

Current standards used to prosecute non-disclosure cases need to catch up with evolving science, the report states.

“Sexual activity, regardless of condom use, with an HIV positive person who is taking HIV treatment as prescribed and has maintained a suppressed viral load … poses a negligible risk of transmission,” it reads.

Still, it stresses “criminal law applies to HIV-positive persons where they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of transmission.”

Criminal law, it states, should not apply to non-disclosing infected people as long as they’ve maintained a suppressed viral load of under 200 copies per millilitre of blood, and that “a person living with HIV who takes their treatment as prescribed is acting responsibly.”

Also, the law should not apply to those who are not on treatment but use condoms or to those who engage only in oral sex, “because the realistic possibility of transmission test is likely not met in these circumstances.”

Instances where risk increases, it states, includes “multiple acts of sexual intercourse,” particularly when condoms are not used, and oral sex involving ejaculation with an untreated infected partner.

It also states that “persons from marginalized backgrounds,” such as gay, Indigenous and black people, are disproportionately impacted.

Released Dec. 1, the federal paper could potentially trigger a new legal chapter in this issue.

In 2012, the Supreme Court ruled in R. v. Mabior [2012] SCC 47 that an infected person was not legally required to disclose their HIV-positive status to a sex partner if the former carried a low viral load and used a condom. But the SCC also left room for tweaking should laws need to adapt with scientific findings and shifting risk factors.

This report instructs all Crown attorneys that they need to examine the science underlying their individual prosecutions and decide whether or not it is still in the public interest to prosecute the cases, and whether or not there is still a reasonable prospect of conviction,” said Toronto lawyer Daniel Brown, head of Daniel Brown Law and author of Prosecuting and Defending Sexual Assault Offence Cases: A Practitioner’s Handbook. “Because the science has evolved so quickly and so much … our perceptions of what created a realistic possibility of transmission, even five years ago, has changed to where we’re at today, and we have to re-examine all of the cases in the court system to determine whether or not they still meet that standard.”

Provincial attorneys general should turn their eyes toward past convictions, he said.

“We can see that there was a substantial amount — not just those who were convicted after a trial — but many people who pled guilty perhaps to minimize the type of punishment that could come to them had they proceeded to a trial … and it is uncertain whether or not they pled guilty in the face of evidence that would no longer withstand scrutiny,” said Brown. “Were these cases where there was a realistic possibility of transmission, or were these cases where the law hadn’t caught up with the science?”

Alberta criminal lawyer Markham Silver also talked about revisiting non-disclosure convictions, using as an example the launching of a coroner’s inquiry into years of botched examinations by disgraced child pathologist Charles Smith.

“Realistically, the attorney general or the ministry of justice of any province can engage in reviews as they see fit,” said Silver. “When they had the situation … in Ontario with Smith … the Crown reviewed a whole rack of cases that dealt with his evidence and made determinations based on new information they had obviously received. … So it’s certainly open to the Crown to do as the Crown sees fit … in any particular provinces.”

Vancouver lawyer Troy Anderson, who recently acted in a non-disclosure case, agrees.

“If you’re looking at the science that says it is essentially no risk of HIV transmission if you are being treated and acting responsibly, then yes, I agree with that absolutely,” he said. “The prosecution services vary from province to province … [but] I think it is absolutely going to follow. I think there is will be a drop in the number of people being prosecuted for this.”

Canada: Alberta courts urged to follow Ontario example and stop prosecuting people for not disclosing their HIV status

Alberta should curb prosecutions for HIV non-disclosure

The Ontario government announced Crown attorneys will no longer prosecute certain cases of HIV-positive people who don’t disclose their status to their sexual partner.

By:  Metro Published on Mon Dec 04 2017

Advocates are urging Alberta courts to stop prosecuting HIV-positive people who don’t tell their sexual partners their status, as long as they’ve been on medication for a certain length of time.

The call comes after a federal justice department report released Friday concluded that criminal law should generally not apply to people who are on HIV treatment, are not on treatment but use condoms, or engage only in oral sex.

The Ontario government also announced Friday, which was World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the HIV-positive person has had a suppressed viral load for six months.

Viral load refers to the amount of HIV virus in a person’s blood.

“It’s a huge step forward,” said Brook Biggin, founder of the Edmonton Men’s Health Collective and regional manager of the Community Based Research Centre for Gay Men’s Health.

“Our hope is that Alberta will make a sensible decision as well, and look at the evidence and follow suit.”

The announcement was made in response to the report, which was titled “Criminal Justice System’s Response to Non-Disclosure of HIV” and backed by analysis from the Public Health Agency of Canada.

The report found there is no realistic possibility of a person transmitting HIV if they have been on treatment and have an undetectable viral load.

Biggin said Canada is notorious for being “one of the worst countries” in terms of the number of recorded prosecutions for HIV non-disclosure.

The Canadian HIV Legal Network has recorded more than 200 prosecutions.

Because there is no specific law around non-disclosure in Canada, other laws are used to prosecute cases.

Offenders are often charged with aggravated sexual assault, with the idea being that a failure to disclose the condition invalidated consent, and that HIV could cause significant bodily harm.

Aside from often lengthy jail terms, those convicted have also faced mandatory designation as sex offenders.

“These are charges that ruin people’s lives,” Biggin said.

Veronica Jubinville, press secretary for Alberta Justice Minister Kathleen Ganley, said in an e-mailed statement that the ministry is taking the report into consideration.

“We are evaluating how this potential change could impact our courts and these types of cases in Alberta,” the statement reads.

Published in Metro News on Dec 04, 2017

Canada: Ontario decision to limit HIV criminalisation seen as a step forward but more still needs to be done

HIV-positive community says Ont. ruling is first step of long process

TORONTO — A move by the Ontario government to limit the prosecution of HIV-positive people who don’t disclose their status to sexual partners is being called a step in the right direction by those affected, but they say there’s much more progress to be made.

The government announced on Friday that people with low viral loads who don’t have a realistic chance of transmitting the disease can’t be charged with a crime if they don’t disclose their medical status to a sexual partner.

Previously, non-disclosure could lead to an aggravated sexual assault charge that landed convicted people on a sex offender list.

Ontario made the changes after studies showed that the risk of transmission is negligible if people are being treated for the disease or if appropriate precautions are taken.

Chad Clarke, 46, who served 39 months in prison for non-disclosure, said he cried when the announcement was made and said progress was being made to end what community advocates called the criminalization of HIV.

“I feel great because they’re listening to our voices,” said Clarke. “I look forward to see where we go … they just proved that you have them willing to sit down, and maybe Canada will sign on to this.”

However, advocates in the community say there are downsides to the ruling as well.

Jeff Potts, managing director of the support and advocacy group Canadian Positive People Network, said that decriminalizing only people with low viral loads means the community will be divided between people who are fortunate enough to get the medical treatment they need, and marginalized people who are not.

“At the end of the day, laws that criminalize people living with HIV for any reason, unless it can be proven there was intentional harm, are unjust,” said Potts, who has been HIV-positive for three decades.

“They don’t make sense, they don’t keep up with the science, it does nothing more than perpetuate stigma and further marginalize people who live with HIV.”

Potts said that some people will see this as a wrong step because of that division, but acknowledged that it’s important that the government has shown it understands there’s a conversation that needs to happen.

The government said Sunday it had no comment about any plans to further limit prosecution of HIV-positive people for non-disclosure.

Potts and Clarke spoke of the stigma that came with being HIV-positive and said that the fear of prosecution was “unbearable.”

Clarke, who was originally sentenced to four years in prison, says his daughter still won’t let him speak to his grandson, and said he still isn’t on speaking terms with his parents. He used to feel at home in Toronto’s Church and Wellesley neighbourhood, where there is a strong LGBTQ community, but has since moved to a small rural community because the area brings back too many bad memories

“Knowing that I’m on a national sex registry that puts me on the same category as people that actually harm children or dismember bodies when they do a sexual thing doesn’t make me feel to good,” said Clarke.

While Clarke is also calling for further changes to non-disclosure rules, he said the HIV community has to be mindful of how they carry on the fight and that they must focus on educating Canadians.

“We need to use our voices properly, hold them accountable, and educate,” said Clarke. “If we don’t educate and show them the love of this community, they’re not going to hold that door open for us no more.”

Malawi: Police officers urged to stop criminalising sex-workers due to their HIV status

Malawi law enforcers urged to desist from criminalizing sex-workers over HIV/AIDS status

LILONGWE-(MaraviPost)-The Malawi Police Services’ (MPS) officers have been urged to desist from criminalizing sex-workers due to their HIV and AIDS status when they come to conflict with the law.

This reduce cases of defaulting the drug prolonged-life, ARVs when are on remand cell as they become uncooperative with the law-enforcers

The call will also enhance cordial relationship men in uniform they have with sex-worker as they harbor criminals when playing their trade.

In an exclusive interview with The Maravi Post in the sidelines of World AIDSDAY that falls on December 1st yearly, Priest Mpemba, Kanengo Police Model station HIV/AIDS Coordinator, said time was ripe for officers handle sex-workers in line with human rights principles.

Mpemba who is also DNA Forensic Investigator observed that some law-enforcers criminalize sex-workers during sweeping exercises due to their serial status.

The HIV/AIDS coordinator added that the laws of land do not criminalize sex-work but the act of being conflict with the constitution including robbery and violence among others.

On legalization of sex work in the country, the DNA Forensic Investigators said the matter was a policy issue which the county’s leadership must trade carefully regarding to how the society perceives sex workers.

With extensive sensitization the station is taking on HIV/AIDS, Mpemba expects a cordial relationship between the police and the public in ending the HIV/AIDS pandemic in the country.

On skills handling suspects living with HIV and AIDS, the coordinator said that the station expects fewer lawsuits.

“This year’s World AIDS DAY commemoration must focus as well on how sex-workers are being treated in the society. They are into that trade with various reasons but their rights must be respected as human beings. This is the reason the station using its own resources has been into intensive sensitization on the virus.

“Our officers should also treat suspects especially those living with the virus with dignity as human that they continue taking medication when are on remand. This will reduce drug defaulters and ease lawsuits the station receives,” says Mpemba.

Speaking Friday on World AIDS Day, at the Blantyre Youth Centre The Minister of Health and Population, Atupele Muluzi said that right to health is a fundamental human right, everybody has the right to the enjoyment of the highest attainable standard of physical and mental health.

This year’s commemoration was under the theme ‘Right to Health: Access to Quality HIV Prevention and Treatment Services”.

Before the function, the Minister opened Umodzi Family Centre at Queen Elizabeth Central Hospital. The centre will help facilitate HIV testing and treatment, TB screaming and offer reproductive health services.

AIDS is no longer the high-profile public health menace it once was thanks to the discovery in 2011 that antiretroviral treatment can not only suppress HIV in the bloodstream and reduce the risk of spreading the virus, but also, some experts predict, eventually end the epidemic.

Published in the Maravi Post on Dec 3, 2017

Canada: HIV criminalisation is unacceptable states UNAIDS Director Michel Sidibé in Ottawa on World AIDS Day

Mylène Crête, The Canadian Press 1 December 2017

OTTAWA – The Criminalisation of people with HIV is unacceptable and must stop, UNAIDS Director Michel Sidibé said during his visit to Ottawa on Friday for World AIDS Day.

He spoke these words about an hour before Minister Jody Wilson-Raybould sends a signal to the criminal justice system to adapt to scientific advances in the treatment of the disease.

People are hiding, said Mr Sidibé. People ultimately do not go to services and when people do not go to services, they continue to infect their partners.

“A person who does not disclose his HIV status and transmits HIV to his sexual partner can be subjected to criminal charges in Canada, whether of assault or sexual assault. The consent given is no longer valid because of this omission.

Over the last 20 years, 59 people have been charged. In the majority of cases, these were charges of aggravated sexual assault. In more than 75 percent of cases, these people were found guilty even though more than half had not transmitted the disease.

These statistics come from a report released Friday by the federal Department of Justice to examine the issue. He concludes that the evidence must include antiretroviral therapy and a person’s viral load.

For example, an HIV-positive people whose viral load is almost zero – 200 copies per millilitre of blood – who does not disclose their HIV status. should not be charged because they can not transmit HIV. It is the same scenario for those who use a condom or who just have oral sex.

Charges are relevant only in specific cases, such as when a partner is lying about his condition and intentionally transmitting the virus by adopting risky behaviors. On the heels of this report, Ontario announced on Friday that its prosecutors will no longer lay charges against people who have had a suppressed a viral load for six consecutive months and who do not disclose their condition to their sexual partners.

In Quebec, there is no time limit, but a team of 17 prosecutors is already ensuring that any charges filed meet the realistic transmission test of the Supreme Court in 2012 in Mabior. Under this criterion, a low viral load and the use of a condom do not entail the obligation for the HIV-positive person to disclose his condition.

In all, 27 people with HIV in Quebec were the subject of accusations since 1989, about one case per year.

Other provinces may choose to follow suit and issue their own guidelines. Minister Wilson-Raybould made a written declaration on Friday to work with her counterparts.

At the same time, the Liberal government announced $ 36.4 million to fund prevention and research activities on the disease.

UNAIDS Director, Michel Sidibé, was in Ottawa to launch his annual report with Minister of Health Ginette Petitpas Taylor and Minister for International Development Marie-Claude Bibeau.

In his report, he pointed out that global efforts to prevent HIV transmission were failing to raise the awareness of men.

On the African continent, only one-third of men are able to say whether they are HIV-positive. This contributes to the “infernal cycle” of transmission as older men infect young women, who in turn transmit the virus to other men, said Mr Sidibé.

Prevention must now take into account this “blind spot” By promoting safer sex practices among men and the importance of being tested for the disease.

Mr. Sidibé nevertheless praised prevention efforts around the world, pointing out that, for the first time, there are more people with the virus under treatment – 21 millions – than there are people with the disease.

Overall worldwide solidarity has really produced results, he concluded, results that no one would have imagined. (…) But I would like to conclude by saying that this is not the moment of complacency. This is the moment to redouble our efforts. This is the time to continue investing in this fight because we can end AIDS.

“Otherwise the epidemic could rebound and erase all the gains made since the onset of the disease in the 1980s.

Published in L’Actualité on Dec 1, 2017

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VIH: la criminalisation est inacceptable, selon le directeur d’ONUSIDA

Mylène Crête, La Presse canadienne

OTTAWA — La criminalisation des personnes atteintes du VIH est inacceptable et doit cesser, a affirmé le directeur d’ONUSIDA, Michel Sidibé, lors de son passage à Ottawa, vendredi, à l’occasion de la Journée mondiale du sida.

Il a prononcé ces paroles environ une heure avant que la ministre Jody Wilson-Raybould envoie un signal au système de justice pénale pour qu’il s’adapte aux avancées scientifiques dans le traitement de la maladie.

«Lorsqu’on punit, les gens se cachent, a constaté M. Sidibé. Les gens, en définitive, ne vont pas vers les services et quand les personnes ne vont pas vers les services, elles continuent à infecter leurs partenaires.»

Une personne qui ne divulgue pas sa séropositivité et qui transmet le VIH à son partenaire sexuel peut faire l’objet d’accusations criminelles au Canada, soit de voies de fait ou d’agression sexuelle. Le consentement donné ne tient plus en raison de cette omission.

Au cours des 20 dernières années, 59 personnes ont ainsi été accusées. Dans la majorité des cas, il s’agissait d’accusations d’agression sexuelle grave. Dans plus de 75 pour cent des cas, ces personnes ont été reconnues coupables même si plus de la moitié n’avaient pas transmis la maladie.

Ces statistiques proviennent d’un rapport publié vendredi par le ministère fédéral de la Justice pour examiner la question. Il conclut que la preuve doit inclure la prise d’un traitement antirétroviral et la charge virale d’une personne.

Par exemple, les personnes séropositives dont la charge virale est presque nulle — 200 copies par millilitres de sang — et qui ne divulguent pas leur état ne devraient pas être accusées puisqu’elles ne peuvent pas transmettre le VIH. Même scénario pour celles qui utilisent un condom ou qui se limitent à des relations sexuelles orales.

Des accusations sont pertinentes seulement dans certains cas précis, comme lorsqu’un partenaire ment sur sa condition et transmet intentionnellement le virus en adoptant des comportements à risque.

Dans la foulée de ce rapport, l’Ontario a annoncé vendredi que ses procureurs ne déposeront plus d’accusations envers les personnes qui ont une charge virale supprimée durant six mois consécutifs et qui ne dévoilent pas leur état à leurs partenaires sexuels.

Au Québec, il n’y a pas de limite de temps, mais une équipe de 17 procureurs s’assure déjà que toute accusation déposée respecte le critère de possibilité réaliste de transmission émis par la Cour suprême en 2012 dans l’arrêt Mabior. En vertu de ce critère, une charge virale faible et l’utilisation d’un condom n’entraînent pas l’obligation pour la personne séropositive de divulguer son état.

En tout, 27 personnes porteuses du VIH au Québec ont fait l’objet d’accusations depuis 1989, soit environ un cas par année.

D’autres provinces pourraient choisir d’emboîter le pas et émettre leurs propres lignes directrices. La ministre Wilson-Raybould s’est engagée vendredi dans une déclaration écrite à travailler avec ses homologues.

Au même moment, le gouvernement libéral annonçait 36,4 millions $ pour financer des activités de prévention et de recherche sur la maladie.

La prévention touche peu les hommes

Le directeur d’ONUSIDA, Michel Sidibé, était de passage à Ottawa pour le lancement de son rapport annuel en compagnie de la ministre de la Santé, Ginette Petitpas Taylor, et de la ministre du Développement international, Marie-Claude Bibeau.

Dans ce rapport, il souligne que les efforts mondiaux pour prévenir la transmission du VIH échouent à sensibiliser les hommes.

Sur le continent africain, seulement un tiers des hommes sont capables de dire s’ils sont séropositifs. Cela contribue au «cycle infernal» de la transmission puisque des hommes plus âgés infectent de jeunes femmes, qui à leur tour transmettent le virus à d’autres hommes, a expliqué M. Sidibé.

La prévention doit maintenant tenir compte de cet «angle mort» en faisant la promotion de pratiques sexuelles sûres auprès des hommes et de l’importance d’être testé pour la maladie.

M. Sidibé a tout de même salué les efforts de prévention partout sur la planète en soulignant que, pour la première fois, davantage de personnes porteuses du virus sont sous traitement — 21 millions — qu’il y a de personnes atteintes.

«Ensemble, la solidarité globale a vraiment produit des résultats, a-t-il conclu. Des résultats que personne n’aurait imaginés. (…) Mais je voudrais conclure en disant que ce n’est pas le moment de la complaisance. C’est le moment de redoubler nos efforts. C’est le moment de continuer à investir dans cette lutte parce que nous pouvons mettre fin au sida.»

Sans quoi l’épidémie pourrait connaître un rebond et effacer tous les acquis faits depuis l’apparition de la maladie dans les années 1980.

Canada: Canadian organisations issue joint statement on the federal Justice Minister report “Criminal Justice System’s Response to Non-Disclosure of HIV.”

AN IMPORTANT, MODEST ADVANCE ON WORLD AIDS DAY Federal and Ontario governments take first steps toward limiting unjust HIV criminalization, but must work with community and experts to go further The following statement is issued jointly by the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), Canadian Positive People Network (CPPN), the Ontario Working Group on Criminal Law + HIV Exposure (CLHE), and the Canadian Coalition to Reform HIV Criminalization: December 1, 2017—

Today, after years of advocacy by community organizations, both the federal and Ontario governments have finally recognized the need to limit the “overcriminalization of HIV” in Canada. They have each taken a first step toward that end— specifically, by recognizing that a person living with HIV who has a suppressed viral load should not be criminally prosecuted, because this is at odds with the science. This morning, the federal Justice Minister released her department’s long-anticipated report, “Criminal Justice System’s Response to Non-Disclosure of HIV.”

The report contains a number of important conclusions warranting a more limited application of the criminal law than is currently the case. In particular, the report explicitly recognizes that HIV is first and foremost a public health matter, that the use of the blunt instrument of the criminal law should be a matter of last resort, that the application of the criminal law to HIV non-disclosure is likely to disproportionately affect people Indigenous, gay and Black people. The report also recognizes that it is problematic, in at least some circumstances, to use the law of sexual assault to deal with allegations of HIV non-disclosure.

Meanwhile, the Ontario Attorney-General and Minister of Health have released a joint statement confirming that “HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible,” and that in light of the overwhelming scientific consensus for cases where an individual has a suppressed viral load for six months, Ontario’s Crown Prosecutors will no longer be proceeding with criminal prosecutions in such cases.

These are welcome first steps. But what is needed is deeper, broader reform. Earlier this week, the Canadian Coalition to Reform HIV Criminalization (CCRHC) released a joint Community Consensus Statement endorsed by more than 150 organizations across the country, from the HIV sector and beyond. Developed through several months of cross-country consultation, the statement shows clear consensus against the current overly broad use of the criminal law in Canada against people living with HIV and the urgent need for action from federal, provincial and territorial governments.

The Community Consensus Statement declares that, in accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV. It also specifically identifies circumstances in which criminal prosecution for alleged HIV non-disclosure is clearly inappropriate. In particular, the Community Consensus Statement declares that HIV related criminal charges are not appropriate where a person living with HIV engaged in activities that, according to the best available scientific evidence, posed no significant risk of transmission, which activities include: § oral sex; § anal or vaginal sex with a condom; and § anal or vaginal sex without a condom while having a low viral load.

It is encouraging, therefore, that Justice Canada’s report recommends that the criminal law should not apply to people who have a suppressed viral load.

Furthermore, Justice Canada recommends that: The criminal law should generally not apply to persons living with HIV who: are on treatment; are not on treatment but use condoms; or, engage only in oral sex (unless other risk factors are present and the person living with HIV is aware of those risks), because the realistic possibility of transmission test is likely not met in these circumstances.

These conclusions need to be reflected in clear prosecutorial directives issued by federal and provincial Attorneys General. However, the announcement today by the Attorney General of Ontario – which province accounts for more than half the prosecutions to date in Canada – falls well short of this, as it only commits to refraining from prosecutions in cases where someone has a suppressed viral load.

These conclusions by Justice Canada should also be recognized by judges across Canada when they are called upon by prosecutors to apply the existing legal framework, under the law of sexual assault as it has been interpreted by the Supreme Court of Canada.

However, it remains that case that prosecuting HIV non-disclosure as sexual assault is misguided and damaging, not only to people living with HIV but also to the integrity of the law of sexual assault. We therefore welcome Justice Canada’s conclusion that, in the absence of intent to transmit HIV to a sexual partner, sexual offences are not appropriate.

As declared in the Community Consensus Statement released earlier this week, HIV non-disclosure must be removed from the reach of sexual assault law. We note that the Ontario Attorney General has explicitly echoed the call by the Canadian Coalition to Reform HIV Criminalization to examine potential Criminal Code reform.

Canada: Ontario will no longer prosecute people who don't disclose their HIV status if they have a suppressed viral load

Ontario to curb prosecution of HIV non-disclosure cases

Crown attorneys will not prosecute cases of HIV-positive people who do not disclose they have HIV if they have had a “suppressed” viral load, or amount of HIV, in their blood for six months.

The Ontario government announced Friday, World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the person who is HIV-positive has had a suppressed viral load for six months.

Viral load is the amount of the HIV virus in a person’s blood.

The announcement was a response to the federal justice department’s report titled “Criminal Justice System’s Response to Non-Disclosure of HIV,” released Friday.

The report, backed by analysis from the Public Health Agency of Canada, concludes that the criminal law should generally not apply to people who are on HIV treatment (which suppresses their viral load and makes transmission unlikely), are not on treatment, but use condoms, or engage only in oral sex.

“The realistic possibility of a transmission test is likely not met in these circumstances,” the report concludes.

The federal report recognized that HIV “is first and foremost a public health issue,” and concluded that non-disclosure prosecutions disproportionately affect people who are Indigenous, gay and Black.

While the province’s announcement to limit prosecutions was seen as modest progress, a number of organizations quickly pointed out that the government should only be prosecuting cases where there was actual, intentional transmission of HIV.

Ontario has been criticized by advocates as being a world leader in unjustly prosecuting HIV-positive people, typically charging them with aggravated sexual assault for failing to disclose their HIV status to their sexual partner.

Published in the Star on Dec 1, 2017