US: PWN-USA gives an overview of HIV criminalisation and its impacts

HIV Criminalization: A Concept That Has to Be Talked About

The topic of HIV is an issue many people are uneducated in, especially when bringing up different complex fragments that are connected with HIV and how they influence the lives of people living with HIV. Unfortunately, most people today lack knowledge, understanding and curiosity in the basic information on HIV, thus many don’t know how understand how laws and policies impact people living with HIV. This is where the issue of HIV criminalization comes in–a topic that many, unfortunately, don’t think about these days, since many don’t know it exists or do not understand its impacts. But it has become one of the most crucial issues for HIV/AIDS activists today.

According to the Center for HIV Law and Policy, in 36 US states, people living with HIV have been arrested, accused and prosecuted against for having consensual sex, biting and spitting. In addition to this, since 2008, there have been more than 260 cases reported of HIV criminalization under states in which there are HIV specific laws and in states where there were broad terms for bodily fluids or sex work. Because of these gruesome and unjust laws, people living with HIV are a specific target, living in fear and stigmatized for their status. Also, many people are illiterate about these prejudiced laws, which break the basic principles of human rights and instead of asking questions; many ignore the issue of HIV criminalization that is present in their country. This kind of mentality has to be stop, and an open educational and informational dialogue has to begin.

Unfairness in the justice system

Monique Howell is a veteran who served in the US army. She is now a stay-at-home mom of three boys and a motivational speaker. “I have been criminalized for living with HIV for nondisclosure by having unprotected sex with another soldier. I was put on trial. The other soldier did not get the virus,” Howell explained.

Furthermore, Howell described that if convicted, she was looking at 8 to 12 years. “They moved me out of my house and into a single soldier barracks where I was monitored day in and out while on trial. They ended up dropping all my charges and released me out the military,” Howell further illustrated.

Howell knows many others fighting today against HIV criminalization and pointed out how this is a long, challenging road to bringing justice to many today who are accused of criminal acts for living normal lives with HIV. “The SERO Project has been working countless hours trying to make these laws accurate and up to date. Not only the SERO Project, but others have started campaigns and partner up, including PWN-USA with the SERO Project, to come together with ideas on how we can continue to head in the right direction with HIV criminalization,” she finally added.

Hope to Educate About HIV Criminalization

Toward the end of the conversation, Howell depicted how she still has hope of creating a society in which people will be educated about HIV and changing the laws that stigmatize and create fears for those living with HIV. “My hopes is that we are treated fairly and not treated based off society’s ignorance. We must educate one another.”

Ken Pinkela was in the US army for 29 years. He is currently working with the SERO Project as the Military Policy Director and runs communications/social media for the project. Pinkela was falsely accused and prosecuted for HIV exposure by an Army Lieutenant. “With no investigation or evidence of any kind (physical or medical), I was courtmartialed and convicted of then an aggrevated assault (which was later dropped to assault and battery via an important US Air Force HIV case).”

The US military does not have authorization nor do they have a congressinally authorized charge related to anything HIV, Pinkela revealed. Pinkela emphasized how he has received unfair and unjust treatment from the Army, in which he was stopped from being deployed and having overseas assignments. Even though there has been slow progress in the military, the changes have still been valuable; one of them is the US Air Force case, “US vs. Gutierrez,” in which the court has recognized the benefits of advanced medicine and science. However, even though this kind of recognition exists, there are issues that still negatively impact service members who are HIV positive.

“HIV positive service members are singled out and given an order that is known as the Safe Sex Order, which threatens that any sexual contact with or without a condom is subject to prosecution, even if the service member discloses their HIV status,” clarified Pinkela.

Moreover, Pinkela illustrated how service memebers living with HIV are seen as sexual deviants; thus there is a big gap between those who are HIV negative and those who are positive. In the end, Pinkela described how he hopes that the HIV Discrimination Act will be passed. Just this year in March, the bill (HR 1739) was re-introduced in the US House of Representatives.

Perspectives from advocates and activists

In the last couple of years, there has been significant progress and work into modernizing HIV specific laws. For example, in 2016, Colorado modernized their STI codes, which included the repeal of HIV specific status. Their coalition effort was spearheaded by Positive Women’s Network – USA Colorado.

In 2014, Iowa modernized their HIV specific laws. Tami Haught is one of the activists who helped change those laws, where she led community forums to educate communities, lobby legislators and organized CHAINS’s state lobby day. This kind of initiative started way back in 2004 and was active in 2009, when many activists and advocates gathered and realized they needed to bring a change.

Currently, Haught is the SERO Project’s Organizing and Training Coordination and is helping and supporting different states to modernizes their HIV specific status. Haught explained that one of the greatest issues of HIV criminalization is the lack of knowledge about this problematic issue. “People living with HIV are generally aware of these laws. The general public is very unaware about basic HIV facts. People are still unaware of how HIV is transmitted so a lot of misinformation is still available to people.”

Haught described that with HIV criminalization can come another horrific factor that deeply impacts a person’s life: sex offender registration. One of the worst case scenarios of an HIV criminalization case came from Iowa. “One-time sexual encounter, protection was used, person living with HIV was medically adherent ad virally suppressed, so there was no exposure to HIV–zero risk of harm. However, Iowa’s law was a disclosure law, the person living with HIV was unable to prove disclosure, so he was charged, convicted, and sentenced to 25 years of jail and lifetime sex offender status. This was consensual sex between two adults,” explained Haught.

However, the judge reconsidered his case and he was released from prison. Once the law was modernized in 2014, people accused of HIV criminalization were removed from the sex offender registry list.

Everyone matters to us

Haught explained how today, the SERO Project is doing everything they can to help not only modernize the laws, but to help people impacted by HIV criminalization laws. They have their own Survivor’s Network which offers different programs to support those who need the most. “Cindy Stine communicates with people and runs the Christmas Card project to send greeting to people currently incarcerated to let them know they matter and are not forgotten, offering hope and hopefully comfort to a group of people other would ignore or throw away. Everyone matters to us,” said Haught.

Kamaria Laffrey is currently fighting against HIV criminalization as the Florida Community Organizer for The SERO Project. Laffrey mentioned how more and more people today are aware of the problematic issue of HIV criminalization, since there are many networks collaborating together in the fight against HIV criminalization. “The SERO Project, PWN, The Center for HIV Law & Policy, HIV Justice Worldwide and many others are instrumental in building skills for advocates to go into their communities and educate other people living with HIV, public health experts, legislators, law enforcement entities, and even trauma center response facilities,” explained Laffrey.

However, Laffrey also revealed the situation in Florida when it comes to HIV criminalization. “The laws in Florida were passed in 1986. Between the years of 1988-2016, Florida has convicted 99 people under HIV criminalization laws. These laws differ by region, demonstrating differences in behavior, prosecutor attitudes or local political culture. Of those 99 cases, 53 of them were women. As of 2014, women accounted for 28% of all people living with HIV; however made up 54% of those convicted under the laws,” explained Laffrey.

A future to collaborate with different activists

Laffrey’s future plan is to help out people that are victims of HIV criminalization; she will organize and collaborate with different networks working to eradicate HIV criminalization laws. “I personally plan to continue to conduct the workshop Be the Change You Seek: Engaging in a Resistant Community to challenge people to understand that the vagueness of our laws is intentional, and that we don’t have to accept them just because they are on the books when they are used to wrongfully prosecute a group of people,” explained Laffrey.

In the same way, one of her greatest hopes for other activists and advocates is to fight for education, so that people will become more aware and conscious about the unfairness of HIV criminalization laws and the way they impact people’s lives. That way, people will be able to fight together to change these outdated, discriminatory laws.

US: Advocates launch Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

Yesterday saw the launch of a Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, to provide guidance for efforts to reform or “modernize” HIV-specific laws across the United States.

The concern, as highlighted by Charles King, President and Chief Executive Officer, Housing Works, Inc, is that if HIV criminalisation reform focuses soley on changing laws so that those who are virally suppressed are not considered ‘a risk’ that this approach will not address the unjust disproportional impact of the US criminal legal system on people of colour, LGBTI people, sex workers, and the financially disadvantaged.

“Housing Works is a leading proponent of #UequalsU, and we believe public education about this scientific advance will lower stigma and thereby create a positive environment for HIV decriminalization. At the same time, it would be a travesty for #UEqualsU to be used to create a criminal class of people who are not durably virally suppressed. HIV criminalization in any form sets back efforts to end the AIDS epidemic, and is based on prejudice and not science.”

The creators and original endorsers of the Statement are: The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National LGBTQ Task Force, PFLAG, Treatment Action Group, U=U, and Women with a Vision.

In the preamble, they note that:

discussions among people working on the ground on HIV criminal law reform have reflected a mix of views and some uncertainty about the best way to use these remarkable scientific advances in their advocacy. Some have proposed that advances reflected in the U=U campaign (“Undetectable = Untransmittable”) should be added as a defense in modernized HIV criminal laws. Others worry that putting this kind of language into an actual law will exclude or further disadvantage those who experience severe disparities in access to quality treatment—individuals who do not reach or maintain viral suppression may still face prosecution.

Beginning in March 2017, a small group of organizations and advocates began discussions of how to draft a statement that could clearly and accessibly capture concerns about the use of “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U) in the criminal law reform context.

Over the next several months, the statement was shared with a diverse range of organizations and advocates at both the state and national level. In June 2017—after multiple revisions, reviews, and discussions—the current statement was finalized.

To read and sign on to the Consensus Statement visit: www.hivtaspcrimlaw.org which provides links to a variety of resources that can help support the use of the statement, as well as an FAQ that further explores the issues, such as the many tensions facing advocates working to improve the legal environment for people living with HIV

For example, question 7 asks “isn’t some progress better than no progress at all?

This is a hotly debated issue, and people frequently disagree about it. For example, many people supported a federal law ending discrimination against lesbian and gay people that didn’t include transgender people because they felt it was easier to pass that way, and because some progress was better than none. Unfortunately, it usually takes a long time to change a law to cover the people left behind the first time. And some people think that progress that leaves some people out can be taken as putting a “seal of approval” on treating some people less fairly.

With public health messaging, it is always possible to try new and better campaigns. But when it comes to criminal law reform, change can be slow, and once a law is revised, lawmakers are very unlikely to consider further reforms in the near future. Criminal law reform advocacy focused on U=U might lead to a law that only helps some people—those with access to health care and ART—but provides no real help to those without it. Worst of all, legislators may be happy to claim a victory and not revisit the issue for years, decades, or ever again.

The issue of how best to utilise science in advocacy to combat HIV criminalisation is not unique to the United States, however. Last month, two staff members from the Canadian HIV/AIDS Legal Network published a blog post discussing how the ‘Undetectable = Untransmittable’ campaign might best be understood to impact HIV criminalisation advocacy.

Like the US Statement, they also urged caution in relying solely on science to help resolve the issue.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Canada: The recent conviction of a woman living with HIV exemplifies the injustices of the current use of sexual assault laws against people living with HIV

When will justice department announce new approach to prosecuting cases of HIV non-disclosure?

Critics say that recent conviction of Indigenous woman is further proof that the use of sexual assault laws in cases of HIV non-disclosure continue to criminalize marginalized people and women of colour.

BY ALEX MCCLELLAND

An Indigenous woman with HIV has had her appeal on an aggravated sexual assault conviction dismissed by the Manitoba Court of Appeal. The decision handed down on June 29 comes as a blow to the growing movement of lawyers and human rights advocates pushing to change laws that they say criminalize people with HIV, in particular vulnerable women.

Activists have been calling for a moratorium on all new prosecutions of HIV-non-disclosure cases.

The woman convicted in the most recent case is pregnant. She will serve nine months in a Manitoba prison. (NOW Magazine has decided not to publish her name out of respect for her privacy.)

She was convicted in 2014 for failing to disclose her HIV status to a friend she had unprotected sex with three times. They had both been drinking on each occasion. The friend later tested positive for HIV, but it’s not clear if he contracted the condition from the woman. It was never proven in court.

Testimony at her trial also revealed the woman’s own history of intergenerational sexual violence and her belief she had contracted HIV through coerced sex. But the appeal court decision did not take any of that into consideration as mitigating factors.

“Everyone is very shocked and saddened,” says Laverne Gervais, Project Coordinator of Sisters of Fire at Ka Ni Kanichihk, a support group for Indigenous women living with HIV attended regularly by the woman. “She did everything that the law wants people to do, she attended programming, bettering herself, and was working on starting a new family with her committed boyfriend.”

The conviction is considered by critics to exemplify the injustices of the current use of sexual assault laws against people living with HIV, including the stigma still attached to the condition even though it is now considered a chronic and manageable condition that can be rendered undetectable after treatment.

The trial and appeal had been widely publicized in sensational articles. The woman’s high school graduation photo was leaked to the media shortly after her arrest.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, says the fact she is HIV-positive completely changed how she was viewed by the court. “The judge presumptively saw her as a sexual assailant.”

The judge who presided over her original trial, Justice Colleen Suche, noted in her decision that the woman’s behaviour was not predatory “or part of a pattern of dangerous behaviour. Rather, her silence [in not disclosing her HIV status] was the result of fear” – namely, as a result of her own history of sexual abuse.

However, Suche instructed the jury to disregard testimony related to her intoxication.

Says Elliott: “Had she been HIV-negative, her intoxication would have been relevant in her ability to consent or not to the sex. But it was not understood as relevant in her ability to disclose her HIV status. The distinction is biased. This is clearly not a sexual assault, and the application of that law in this case does a disservice to those laws.”

It was alleged by the Crown that the accused may have transmitted HIV to her friend, but Suche indicated in her decision that “the question was not relevant” and, therefore, not before the jury. There was also no HIV phylogenetic analysis done, a test to determine if the same strain of HIV was transmitted from one person to another. The woman reportedly gave him a condom during one of the sexual encounters but he didn’t use it.

Due to the conviction on aggravated sexual assault, she is now a registered sex offender. She was allowed to volunteer at her daughter’s daycare program, but will now be barred from doing similar volunteer work because of her conviction.

She faces a challenging time in jail. People incarcerated for sexual assault because of HIV non-disclosure face stigma, discrimination and violence behind bars. They are often housed in protective custody as a result, which can mean being held in administrative segregation 24/7.

On World AIDS Day December 1, 2016, the Federal Minister of Justice Jody Wilson-Raybould promised “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Wilson-Raybould also acknowledged in her statement that the Canadian criminal justice system “must adapt to better reflect the current scientific evidence on the realities of this disease.”

But the hoped-for immediate moratorium on new HIV non-disclosure cases that activists have been lobbying for is not happening. And a new approach to prosecuting such cases is now not expected until the fall.

Until then, the law will continue to be applied in ways, critics say, that create more vulnerability and insecurity for already marginalized people in society, especially women of colour.

“We can’t be living in fear of the criminal law any longer,” says Jeff Potts, of the Canadian Positive People Network, a national organization representing people living with HIV. “HIV is not a crime.”

Brazil: UN Working Group on HIV/AIDS states its opposition to Brazilian bill aiming to criminalise HIV transmission

The United Nations Expanded Thematic Group on HIV / AIDS (WG / UNAIDS) met on Monday (3) to discuss the current outlook for the AIDS epidemic in Brazil and to articulate opposition to Bill 198/2015, which would make it a heinous crime to deliberately transmit the virus. This was the first meeting of the group chaired by the United Nations Population Fund (UNFPA) .For the UNFPA representative in Brazil, Jaime Nadal, the bill goes against the ideals and proposals of the United Nations regarding the HIV / AIDS epidemic. Criminalizing HIV transmission, in addition to reinforcing the stigmatization of people living with the virus, may discourage people from undergoing testing and treatment, since they would be under threat of becoming criminals, he said.The bill ignores the scientific advances in HIV / AIDS, which prove that antiretroviral treatments reduce the chances of transmitting the virus in sexual intercourse by up to 96%. “Many countries around the world are reforming their laws criminalising HIV transmission,” said Nadal, adding that the bill goes against the global trend.

UNAIDS Director in Brazil, Georgiana Braga-Orillard, reinforced the speech of the UNFPA representative. According to her, the bill further vulnerabilises populations with a positive serological status, since “it considers the more than 800 thousand people living with HIV in Brazil as potential criminals.”

According to her, the goal of the UN System in Brazil is for all people to be tested for the virus and, if necessary, treated – the opposite of what would happen if the bill was approved.

In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favors the selective application of the law; it disregards the scientific evidence on HIV; it compromises privacy and confidentiality, and it will make Brazil lose its leading role in the response to HIV / AIDS.

Brazilian legislation

Law 12.984 defines as a crime the discrimination of people living with HIV / AIDS in Brazil. Institutions and persons who deny education, health or employment to HIV-positive persons, as well as those who promote their segregation or disclose their serostatus in order to offend them, are punishable.

For the director of the Department of Surveillance, Prevention and Control of STIs, HIV / AIDS and Viral Hepatitis, Adele Benzaken, it is important to discuss not only discrimination but about mortality caused by late diagnosis, irregularities and treatment abandonment.

Caio Oliveira, of the United Nations Children’s Fund (UNICEF), stressed that article 130 of the Brazilian Penal Code already criminalizes the exposure of people to serious illnesses. In this way, it would not be necessary for the bill to make the transmission of the virus a heinous crime. “We need to make sure that the people who need them do not have any problems,” he said.

State and civil society

In addition to representatives of the UN System, leaders of social movements, non-governmental organizations and representatives of the public power participated in the meeting.

“Another major problem … is the confidentiality of medical records. Why? Because you will only be able to get this information if in any way these medical records come to the public domain, come to the justice system, “warned federal prosecutor for Citizen Rights, Deborah Duprat. The prosecutor also stressed that this issue may reach mainly socially stigmatized groups, which hide the infection to their families and society to avoid discrimination.

Pétala Brandão, from Conectas Human Rights, said that the bill is a result of human rights setbacks in Brazil. “It is a manifestation of a punitive ideology, of criminal recrudescence, which creates stigma and vulnerability,” he said.

She stressed that the participation of the United Nations is fundamental to guarantee the rights of all people, but that there must be, in essence, an articulation with civil society and social movements.

Erika Kokay (PT-DF) endorsed the argument of the Conectas specialist. “This culture of fear turns into hate and creates intolerance. The project creates invisible social differences, “said the deputy.

UNFPA chairs working group

With a strong focus on the sexual and reproductive rights agenda, UNFPA is one of 11 UN agencies to be part of the HIV / AIDS working group. The agency has assumed the presidency of the group for the 2017-2018 biennium.

UNFPA works to promote universal quality health services, including the prevention and treatment of reproductive tract infections and sexually transmitted infections, including HIV / AIDS.

Created in 1997 through a multisectoral approach, the working group seeks to support the response to the HIV / AIDS epidemic in the country. This mobilization places HIV among the priority themes of joint action of the UN System for several years.

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Grupo de trabalho critica projeto de lei que criminaliza transmissão do HIV

O Grupo Temático Ampliado das Nações Unidas sobre HIV/AIDS (GT/UNAIDS) reuniu-se na segunda-feira (3) para discutir o atual panorama da epidemia de AIDS no Brasil e articular a oposição ao Projeto de Lei 198/2015, que torna crime hediondo a transmissão deliberada do vírus. Este foi o primeiro encontro do grupo presidido pelo Fundo de População das Nações Unidas (UNFPA).

Para o representante do UNFPA no Brasil, Jaime Nadal, o projeto de lei vai contra os ideais e propostas das Nações Unidas referentes à epidemia de HIV/AIDS. A criminalização da transmissão do HIV, além de reforçar a estigmatização das pessoas que vivem com o vírus, pode desencorajar as pessoas a realizarem a testagem e o tratamento, uma vez que estariam sob a ameaça de se tornarem criminosas, afirmou.

O projeto de lei desconsidera os avanços científicos em HIV/AIDS, que comprovam que tratamentos antirretrovirais reduzem em até 96% as chances de transmissão do vírus em relações sexuais. “Muitos países, em todo o mundo, estão reformando suas leis que criminalizam a transmissão do HIV”, lembrou Nadal, completando que o projeto vai na contramão da tendência mundial.

A diretora do UNAIDS no Brasil, Georgiana Braga-Orillard, reforçou a fala do representante do UNFPA. Segundo ela, o projeto de lei vulnerabiliza ainda mais as populações com estado sorológico positivo, já que “considera as mais de 800 mil pessoas vivendo com HIV no Brasil como criminosos em potencial”.

Segundo ela, a meta do Sistema ONU no Brasil é que todas as pessoas realizem o teste para o vírus e, se necessário, façam o tratamento — o oposto do que aconteceria se o projeto de lei for aprovado.

Em nota técnica, o UNAIDS salientou seis argumentos contrários ao projeto de lei: ele penaliza os mais vulneráveis; promove medo e discriminação; favorece a aplicação seletiva da lei; desconsidera as evidências científicas sobre HIV; põe em risco a privacidade e a confidencialidade; e faz com que o Brasil perca o protagonismo na resposta ao HIV/AIDS.

A legislação brasileira

A Lei 12.984 define como crime a discriminação contra pessoas que vivem com HIV/AIDS no Brasil. São passíveis de punição instituições e pessoas que negarem educação, saúde ou emprego às pessoas soropositivas, bem como as que promoverem sua segregação ou divulgarem seu estado sorológico com o intuito de ofendê-las.

Para a diretora do departamento de Vigilância, Prevenção e Controle das ISTs, HIV/Aids e Hepatites Virais, Adele Benzaken, é importante discutir não somente sobre discriminação, mas sobre a mortalidade causada pelo diagnóstico tardio, irregularidades e abandono do tratamento.

Caio Oliveira, do Fundo das Nações Unidas para a Infância (UNICEF), destacou que o artigo 130 do Código Penal brasileiro já tipifica como crime a exposição de pessoas a moléstias graves. Dessa maneira, não seria necessário que o projeto de lei tornasse a transmissão do vírus um crime hediondo. “Precisamos assegurar que as pessoas que precisam não tenham mais problemas”, finalizou.

Estado e sociedade civil

Além de representantes do Sistema ONU, participaram do encontro lideranças de movimentos sociais, organizações não governamentais e representantes do poder público.

“Outro grande problema (…) é a confidencialidade dos registros médicos. Como é que fica? Porque você só vai poder ter essa informação se de alguma maneira esses registros médicos vierem a público, vierem para o sistema de Justiça”, alertou a procuradora federal dos Direitos do Cidadão, Deborah Duprat. A procuradora ressaltou também que esse ponto pode atingir principalmente grupos socialmente estigmatizados, que escondem a infecção de suas famílias e da sociedade para evitar discriminação.

Pétala Brandão, da Conectas Direitos Humanos, afirmou que o projeto de lei é resultado dos retrocessos dos direitos humanos no Brasil. “Ele é uma manifestação de uma ideologia punitivista, de recrudescimento penal, que cria estigma e vulnerabilização”, declarou.

Ela ressaltou que a participação das Nações Unidas é fundamental para a garantia dos direitos de todas as pessoas, mas que deve haver, imprescindivelmente, articulação com a sociedade civil e movimentos sociais.

Para a deputada Erika Kokay (PT-DF) endossou o argumento da especialista da Conectas. “Esta cultura do medo se transforma em ódio e cria intolerâncias. O projeto invisibiliza as diversidades sociais”, disse a deputada.

UNFPA preside grupo de trabalho

Com forte atuação pela agenda de direitos sexuais e reprodutivos, o UNFPA é uma das 11 agências das Nações Unidas a fazer parte do grupo de trabalho sobre HIV/AIDS. A agência assumiu, este ano, a presidência do grupo para o biênio 2017-2018.

O UNFPA atua para a promoção do serviço de saúde de qualidade universal, incluindo a prevenção e tratamento das infecções do aparelho reprodutor e das infecções de transmissão sexual, incluindo o HIV/AIDS.

Criado em 1997 por meio de uma abordagem multissetorial, o grupo de trabalho busca apoiar a resposta à epidemia de HIV/AIDS no país. Essa mobilização coloca o HIV entre os temas prioritários de atuação conjunta do Sistema ONU há vários anos.

Canada: Positive Light magazine reflects on Rethinking Justice: the 7th Symposium on HIV Law & Human Rights

“I would not have consented to sex had I known of their HIV” status. This statement is problematic and here’s why.

On June 15, 2017 the Canadian HIV/AIDS Legal Network held a symposium in Toronto, Ontario, Rethinking Justice: the 7^th Symposium on HIV Law and Human Rights. The symposium focused on unjust HIV criminal legislation in Canada.

Canada unfortunately has one of the worst records in the world for the overly broad use of criminal laws to address HIV nondisclosure. Panels of experts and those with lived experience of HIV criminalization presented their research and experiences. The legal experts discussed the history of the nondisclosure law and how the notion of “fraud” relates to criminal laws for nondisclosure.

In Canada when a person does not disclose their HIV status to sex partners it is considered an act of fraud where consensual sex did not take place. Because the sex is not consensual, as the complainant maintains they, “would not have consented to sex had they known of their partner’s HIV status” charges of aggravated sexual assault are applied. Aggravated sexual assault comes with a prison sentence which can range from ten years to a life time imprisonment where it is deemed the person posed a significant risk of serious bodily harm, which posed a realistic possibility of transmission of HIV.

Presented here are a couple of highlights of Supreme Court of Canada rulings, which the reader can explore further. The Supreme Court of Canada rulings laid out the terms and conditions for which “fraud” could be used to prosecute people living with HIV for non-disclosure of their status. The focus of this article is on the notion of fraud from the perspective of people living with HIV including the detrimental effects legislative and popular belief pose.

In 1998 the R v. Cuerrier, (1998) 2 SCR 371 ruled in a nondisclosure of HIV case that

“HIV/STI non-disclosure amounts to fraud vitiating consent, thus transforming consensual sex into a sexual assault when,

there is a “significant risk of serious bodily harm”

AND

the complainant would not have consented to sex had they known accused person’s status
exposing a person to the risk of HIV “endangers life” and therefore is considered aggravated (sexual) assault

In 2012 the R v Mabior, (2012) SCC 47 and R v D.C. (2012) SCC 48 ruled specifically in the case of HIV: there needs to be a “significant risk of serious bodily harm”, which poses a “realistic possibility” of transmission of HIV.

Section 265 (3) (c) of the Criminal Code of Canada states: fraud vitiates consent to contact. For the purposes of this section, no consent to physical contact is obtained where the complainant submits or does not resist by reason of fraud.

You can read more about these Supreme Court of Canada rulings, a complex phenomenon where the highest court in the country has intervened with no clear resolution to date as Canada remains a world leader in prosecutions for non-disclosure of HIV status. There are approximately 187 non-disclosure prosecutions in Canada to date.

In the meanwhile here’s the latest on nondisclosure and the notion of fraud and “reasonable risk” of transmitting the HIV virus, as experienced on interpersonal levels by people living with HIV.

That a person can choose to not have sexual contact with someone living with HIV and then have the option to pursue criminal charges of aggravated sexual assault on the basis of fraud and “risk of transmission” if they realize after the fact they did not practice universal caution in the first place, is problematic on many levels.

Here’s why: it fuels stigma and discrimination against people living with HIV. It deters people from getting tested for HIV and knowing their status and seeking treatment. It fuels criminalization of HIV non-disclosure. (Criminalization has not proven to be effective in lowering rates of HIV transmission.) It reinforces an imbalance of power for individuals in taking responsibility for their own sexual well-being.

” It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status.”

Charging people with fraud in HIV non-disclosure cases exacerbates lack of education in regards to modern scientific information in the world of HIV. It does not take into consideration the fact that having an undetectable viral load makes it impossible to transmit the virus (Undetectable=Untransmittable or U=U). As well there is no acknowledgement of pre-exposure prophylaxis (PrEP) as a prevention measure).

Criminal charges remain value laden and racist as they tend to target marginalized groups of minorities, rather than being driven by scientific evidence and facts.

The general public behaves negatively towards disclosure, discouraging people from being open about their status and in some instances making it impossible. The general public has the strong arm of the law on their side and they can always prosecute someone for nondisclosure, using fraud as a basis, without giving any thought to how they might manage disclosure differently.

People living with HIV want to disclose, as every person who struggles with disclosure will attest. It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status. This includes severe stigma, using disclosed information in damning ways to harm persons living with HIV as well as potentially many forms of violence (especially toward women who are in positions of power imbalances in relationships), blackmail, constant rejection and the more subtle kinds of rejection which are often the most hurtful.

People living with HIV want to pursue some sort of normalcy in fulfilling their basic human need and basic human right to intimacy and relationships with others. After a while, as a means of self-preservation, disclosing becomes not so easy for all the reasons described.

How can the general public insist upon disclosure when they set the tone and grounds for unsuccessful disclosure?

It’s fucked. People living with HIV are fucked.

The power imbalance is blatantly tipped in favour of the HIV-negative.

But if people are going to continue with irrational expectations, whereby the HIV-positive are obliged to disclose their status or risk prosecution, yet are bashed, stigmatized and often threatened with different types of violence when they do meet their obligation to disclose, then what are people living with HIV supposed to do?

This situation sets the stage for non-disclosure and everything that entails.

The irony is not lost as the HIV-positive continue to disclose and make every effort to convey modern facts about HIV in the hope that it will make disclosure easier. To date, it has not been effective. As a matter of fact, the stigma around HIV disclosure is worse than ever.

This irrational pattern of thinking leaves people living with HIV in a position where it is often near impossible to get the facts out about modern science which dispel myths and stigma that are rooted in fear and ignorance. People living with HIV face deprivation of intimacy and relationships that are key components to a healthy lifestyle, and part of basic human needs like hunger and thirst.

If people go for prolonged periods without their basic human needs met I would hazard a guess they are not in the greatest state of mind or body while struggling with the stress and constant reminder that life is not as it should be. They might be thinking about what it would be like to experience intimacy, free of the complications, just this once. “Oh to escape from this imposed burden and to feel normal again, just for a while.” This is a key factor in disclosure complexity.

Here are a few options available to people living with HIV under these circumstances. None of them are ideal:

Never be intimate again. Live in isolation and fear of prosecution as well as discrimination from the general public.
Continue to disclose and suffer the backlash with the end result being more stigma and bashing, no intimacy, with continued responsibility and onus being on people living with HIV to disclose. Live with fear of prosecution even if disclosure occurred.
Remain hopeful and continue to educate and advocate for change in public perception and legislation, which recognizes scientific modernization proving that the HIV-positive are not a risk. Recognizing how intimacy is a basic human need and right.
Continue to advocate for changes in HIV criminal laws that are to date not effective, while trying to maintain hope for a more favourable and balanced situation than the disclosure dilemma we now see.

It’s time to rethink the statement, “I would not have consented to sex had I known of their HIV status.” A person living with HIV, who is on medication and has an undetectable viral load cannot transmit the HIV virus sexually. Why would you not have sex with a person who is living with HIV?

It’s time to learn and absorb this vital information which changes the notion of what “reasonable risk” means and which offers a new, fear-free perspective to people living with HIV.

Modern scientific developments have been a secret well guarded by gatekeepers, as this information is largely left out of the criminalization discussion. This scientific information is not new or cutting edge, yet is not discussed with the general public or taken account of in legislation.

Prosecutions, discrimination and ostracism remain the favoured options in managing HIV disclosure here in Canada.

The general public, supported by legislation and policy, has created this situation; how can they begin to fix it? What about some suggestions for the general public and law makers? People living with HIV already know what their responsibilities are.

Education leads to change in thinking, change in decision making, and a change in the statement, “I would not have consented to sex had I known of their HIV status.” Change in legislation and change in public perception would ultimately lead to a decline in transmission rates, improved quality of life for people living with HIV and the removal of the stress and threat of criminalization.

If people living with HIV are received with positive and supportive responses, disclosure of HIV will be far less complex and hopefully one day it will be a nonissue.

But back to the fraud charges, and some questions to ponder in this complex state of affairs: How can people living with HIV be criminally charged with fraud, under the circumstances described here? Can those who make disclosure difficult be prosecuted for fraud? Does choosing not to know the facts while promoting ignorance and in turn harm to people living with HIV constitute fraud? If disclosure were more of a shared responsibility, would there be such harsh legislation in place?

And how can responsible decisions be made and opinions formed which ignore scientific facts?

South Korea: Women living with HIV reluctant to report sexual assault, because of prejudices against people with HIV in the legal system and HIV criminalisation law

Discrimination against people with HIV rampant: UN study

Korean people with HIV still face rampant discrimination, over 30 years since the first case was discovered here, a study released Thursday by UNAIDS has found.

According to initial findings from the People Living With HIV Stigma Index in South Korea, 37 percent of respondents reported suicidal thoughts, and a similar proportion had cut themselves off from family and friends.

In addition, 71 percent of people with HIV said they had been insulted or threatened because of their status.

Although almost all respondents said they were receiving anti-retroviral treatment for HIV, 70 percent said they had still avoided going to a clinic when it was needed.

The economic difficulties faced by respondents were also serious. Although most were college educated and around two-thirds were aged between 30 and 50, only 37 percent were employed full-time.

Less than 1 in 10 full-time workers had told their employees they had HIV and more than half of respondents said they had quit school or work because of their HIV status.

A separate report released by the National Human Rights Commission on Wednesday found 91 percent of people with HIV said they faced discrimination at work and 83 percent were discriminated against at school.

Asked about sources of negative attitudes, the UNAIDS report found media to be no better than general internet comments, with both cited by three-quarters as a source of negative views toward people with HIV. Religious groups were cited by 64 percent.

Citing a lack of funding and government support, the authors of the report conceded the limitations of the survey due to small sample size, noting particularly that women were not properly represented. Just one woman with HIV was surveyed, partly because only 7.6 percent of people with HIV are women and there is a lack of networks for them.

Kwon Mi-ran, a consultant for Korean Network for People living with HIV/AIDS (KNP+), which conducted the research with UNAIDS’ support, said more research was required into women with HIV, who faced some specific issues.

“Women with HIV face serious stigma and the government’s policies have nothing that addresses women with HIV specifically,” she said. “There are no communities for women to share their experiences and support each other and they are isolated.”

Kwon said it was more difficult for women to report sexual assault, partly because of the attitudes of people in the legal system toward people with HIV and partly because of a law that criminalizes acts that can spread the virus.

Another growing form of discrimination against people with HIV was that nursing homes were refusing to accept them as an increasing number reached old age.

“Antiretroviral treatment is widely available in South Korea, and so most people living with HIV can keep their health. But when they need long-term care because of old age or other HIV-related diseases, there is no place they can go,” said Seo Bo-kyung of KNP+.

Only 27 percent said they were confident their medical records would be kept private and 17 percent said doctors had disclosed their HIV status to other people without permission.

Despite UNAIDS and World Health Organization recommendations to avoid testing without informed consent, the majority of respondents found they had HIV after being tested without their knowledge.

The NHRC report also found discrimination in health care, with 26 percent saying treatment had been refused, and a similar number saying their status was indicated on their bedside charts.

“Health care settings should be stigma-free environments to ensure people living with HIV not only stay healthy, but their loved ones and community are also protected from HIV,” Steve Kraus, director of the UNAIDS Regional Support Team for Asia and the Pacific, said in a news release accompanying the report. “It is imperative that we have protective laws and empowered communities.”

The report recommends consideration of HIV as a disability to bring it under existing discrimination protections, and for a comprehensive discrimination law. It also calls for NGOs to work with the government.

The respondents’ most favored policy is public education on HIV, but Seo Bo-kyung of KNP+ stressed that the quality of that education was important.

“In many cases, HIV education is conveyed as a means to deliver homophobic messages and tends to describe people living with HIV as pathogens, and not as humans,” he said. “That is the reason that we emphasize a human rights-centered approach.”

By Paul Kerry (paulkerry@heraldcorp.com)

UK: Yusef Azad of the National AIDS Trust calls for an end to HIV being used in court to emphasise the seriousness of a crime when it has no relevance to it

20th June 2017

Last month newspapers reported the trial and conviction of a man who had gone berserk in a Manchester hotel, during which he both caused criminal damage and bit a police officer who had been called to the scene to restrain him. Deplorable of course, though sadly not that uncommon an event. But there was a twist to this story, fastened on in newspaper headlines:

“‘Vile coward’ salesman with HIV deliberately BIT family man copper in shock hotel assault”

The man has HIV and his name and identity were disclosed in the media. His HIV positive status is now permanently in the public domain for anyone who ever feels like googling him. His HIV positive status was brought up in court by the prosecuting lawyer, ‘[The police officer] had a bite mark on his arm, which didn’t pierce the skin … As it was found that the defendant is HIV positive then more tests had to be taken by the police officer’.

A bite which does not pierce the skin caries absolutely zero risk of HIV – why does the CPS allow a prosecutor to claim that tests were necessary? This is simply untrue and misleads the court. But the alleged need for such tests and the implicit risk of HIV transmission is used to emphasise the trauma of the victim and the seriousness of the offence – it is meant to have an impact on the severity of sentence. A man’s HIV status has been revealed publicly and permanently, and quite possibly had an impact on his sentence, even though his HIV had absolutely no relevance to the crime for which he was convicted. This is not just prosecution, it is persecution on the basis of HIV status by police and prosecutors.

And unfortunately it is not a one-off but something NAT witnesses repeatedly as we monitor press reports on HIV in the UK. With some regularity we come across news articles of cases where people have their HIV status raised publicly in court even though it has no bearing on the offence. They are usually assaults of varying degrees of seriousness and the HIV status of the accused is claimed as a reason for the victim to have an HIV test, or take PEP, with great stress on the anxiety and trauma of worrying about possible HIV transmission. Needless to say in no instance, following such assaults, has the victim actually acquired HIV as a result.

That is not surprising given, for a start, that well over 90% of people diagnosed with HIV are on effective treatment and incapable of transmitting HIV to others. But the courts seem to take no account of treatment as prevention. Nor do they seem to understand how HIV is and is not transmitted. HIV is raised in cases of spitting, biting and scratching where HIV could not have been passed on. As in this recent Manchester case, the HIV status of defendants are put in the public domain and their sentences often affected without justification.

Should we feel sorry for convicted criminals? Some might say they had it coming and they deserve justice. Absolutely, justice is essential. But this isn’t it. Everyone has the right to be treated equally before the law but at the moment people with HIV are being treated worse than those who are HIV negative and guilty of the same offences.

What about the victims? There is now an expectation that the impact on the victim of a crime is taken into account by the court. That is understandable and right – but what happens when the fear of HIV is wholly without foundation and a result simply of stigma or ignorance. What happens when a victim insists on an HIV test or PEP despite clear clinical advice that it is unnecessary and they are not at risk of HIV? Taking account of fear and anxiety in such circumstances is for the courts simply to endorse and propagate HIV misinformation and prejudice. The harm of these cases goes beyond that to the defendant. Everyone with HIV is harmed by newspaper accounts of trials which faithfully report the inaccurate fears of HIV transmission raised in court and which increase HIV stigma as a result.

Nor does this do any favours to the victims who are just reinforced in their trauma and misunderstanding of how HIV is passed on.

These cases remind me of the old ‘Gay Panic’ defence where people charged with attacking gay men would claim their actions were an instinctive immediate response to a gay man coming on to them. A completely natural, if regrettable, reaction from a red-blooded male. Happily, the CPS would now give short shrift to such a defence if raised in court. But instead they irresponsibly play with an equally discreditable HIV-version in prosecuting crimes. We might call it the ‘HIV panic’ attack, where, despite all the evidence and science showing that HIV has no relevance to the crime, they nevertheless encourage the ‘HIV panic’ of the victim to be raised in court as part of their case for the culpability of the accused.

This has to stop. The police, CPS and the courts are failing in their Public Sector Equality Duty and are guilty of discrimination. We call on the CPS to meet us and discuss how this injustice can be brought to an end as soon as possible.

Published by the National AIDS Trust on June 20, 2017

Canada: Rob Olver from Positive Lite magazine gives an overview of the Rethinking Justice Symposium

Rethinking Justice with Renewed Hope

So there I was, getting up at three in the morning once again in order to get to Toronto in time for an event. The event in this case was “Rethinking Justice 2017 Symposium on HIV Law and Human Rights” and I’d been looking forward to it especially since I knew a representative of the federal government would be there and I was very keen to hear what that representative might have to say to us. Two buses and a train later, I was in Toronto, waiting for the symposium to begin.

First off, Trevor Stratton of the Canadian Aboriginal AIDS Network (CAAN) welcomed us to the land and the conference. He went on to say that indigenous people understand about criminalization and to emphasize that indigenous women in particular are also disproportionately criminalized.

Next we heard Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, who also welcomed us, gave an overview of the day to come and posed the symposium’s overarching question: “Should we look at changing provisions in the criminal code that are used to criminalize people?”

After that the symposium proper got underway. The first segment was entitled “The State of HIV Criminalization” and it began with an audio presentation from Alex McClelland of Concordia University in partnership with the Canadian HIV/AIDS Legal Network. Alex does qualitative research, focusing on peoples’ lives in order to arrive at an empirical basis to assess the damage of injustice and violence at the hands of government employees. The audio portion of his segment consisted of various people talking about their experience of being criminalized and a lot of it was pretty hard to hear:

“I thought I was innocent until proven guilty.” “I was naked, along in a room with male guards watching me.” That sort of thing.

Unfortunately Alex was not able to attend in person but did address us by video after the audio presentation and then there was a live panel of persons living with HIV, during which Chad Clarke spoke in some detail about his own horrific experience, including beatings and deprivation of his HIV medication at the hands of the Canadian justice system employees.

And that set us up to hear our policy-makers’ response to HIV criminalization. The speaker was Marco Mendocino, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and as I sat here listening, I began to feel unexpectedly, if cautiously, optimistic.

He began by reaffirming the government’s commitment to HIV criminalization reform, saying there is “No doubt that we have a long way to go.” He went on to say that “HIV is not a crime. It should not be criminalized,” and delivered the news that Prime Minister Justin Trudeau has “introduced legislation to quash and erase previous unjust convictions.”

“HIV non-disclosure is a public health issue,” he said, and also, “Mabior made clear that future scientific development must be taken into account.” He went on to say that the use of the aggravated sexual assault provision “deserves further consideration… we want to get this right and are committed to taking the time and resources to do so.” It was remarkable to hear such positivity about HIV decriminalization from a government representative and it drew a big hand of applause.

Next came a panel discussion on “Criminalization in Canada and Internationally”, which I didn’t get to attend as peers on the panel didn’t want any media presence during the discussion.

The subject of the second panel was “The Science and its Interaction with the Law,” and that panel featured Megan Longley, a criminal defense lawyer who was the counsel in R v JTC (NSSC, 2013) as well as Art Poon, an Assistant Professor at Western University.

Megan’s talk was on the role of scientific evidence in avoiding wrongful convictions. As she told us, she’s a lawyer who also likes science and who had come to feel that the current state of HIV criminalization made little rational sense. She impressed on us the importance of science in proving these cases and delivered a short “Prosecution 101” as it applies to aggravated sexual assault. One of the more startling points made was that sexual assault cases are in fact very difficult to convict. Only about 3% of them do. Until, that is, you factor in HIV. In HIV-related sexual assault cases the rate is over seventy percent. And once we start to factor in such things as race or background of the defendant, a very disturbing picture emerges.

Art Poon spoke on “Phylogenetic Forensic Science and Implications for HIV Criminalization”, which turned out to be about the limitations of said evidence in such cases. “Phyloclusters offer great potential for misuse… there is little talk about the implications of these methods.” Although two individuals may carry HIV strains that are closely related, these will not necessarily be unique to the two parties and could extend to other persons within the same transmission network. More on this in my interview with Edwin J. Bernard, here.

After lunch we reconvened for an update on the campaign for prosecutorial guidelines by Glenn Betteridge, who is a staff lawyer with HIV & AIDS Legal Clinic Ontario (HALCO). Glenn spoke on how in Canada the provinces are responsible for the administration of justice. The Attorney General can suggest or set guidelines for prosecution lawyers but cannot dictate. Cops lay charges. Crown attorneys filter and stream them and they go forward if they’re deemed to have a chance of success and/or there’s sufficient community interest.

B. C. has a guideline for prosecuting these cases, as do England, Wales and, since 2014, Scotland. But we heard that here in Canada the Attorney General had previously ignored the science as well as community advocacy and had secretly devised a playbook. Since then, Ontario has been making favorable statements regarding HIV criminalization, but seem to have adopted a “wait and see” stance.

As to where the resistance to reform is coming from, Glenn told us that Ministers have been passive, disinterested because they see the issue as a loser politically. Also, Attorneys General are not used to being challenged or to being responsive to outside concerns. He went on to call the situation “a study in bureaucratic intransigence.”

We then heard presentations by Notisha Massaquoi, who is the Executive Director of Women’s Health in Women’s Hands and who spoke on “Critical Feminist Approaches to HIV Criminalization and the Law of Sexual Assault” and then Richard Elliott laid out the pros and cons of “Criminal Code Amendments as a Strategy to Limit Unjust HIV Criminalization.”

Ryan Peck, co-chair of the Ontario Working Group on Criminal Law and HIV Exposure spoke to us then on “Forging a community consensus: identifying elements of a consensus statement,” and the Canadian Community Consensus Statement on Ending Unjust Prosecutions for HIV Non-disclosure, following which we split up into groups for an exercise in forging consensus on these questions:

1 – Do you think it is ever appropriate to prosecute non-disclosure of HIV-positive status as a crime? Why or why not? What kind of situations might be legitimately prosecuted? What kind of situations should clearly be excluded from prosecution?

2 – Do you think it’s ever appropriate to prosecute non-disclosure of HIV-positive status as “sexual assault?” Why of why not?

3 – What do you think about changing the criminal code to exclude prosecutions for sexual assault and instead having a specific offence about non-disclosure?

What this exercise showed me is that even within our community it’s not easy to get consensus on these issues. And while the majority clearly favoured prosecutorial guidelines, it wasn’t unanimous. One lady stated that such guidelines would be of no use to her because as a Black woman she will always be a target for criminalization in our society.

Directly following the exercise there was discussion, facilitated by Tim McCaskell, a founding member of AIDS Action Now! and Valerie Pierre-Pierre, Director of the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO)

Attending the Rethinking Justice Symposium presented a truly fascinating overview of the current state of play on the issue of HIV criminalization and I heard several people observe that here in Canada we seem to be on the cusp of some really favorable developments after moving so long in the other direction. Cautious optimism, as I said.

Here’s hoping that wave of optimism turns out to be justified and that we can ride it into a better future.

Canada: Positive Lite interviews Edwin J. Bernard, Global coordinator of the HIV Justice Network

Rob Olver interviews Edwin J. Bernard, Global coordinator of the HIV Justice Network, at “Rethinking Justice 2017 Symposium on HIV, Law and Human Rights”

One of the things that made the “Rethinking Justice: 2017 Symposium on HIV, Law and Human Rights” a “must-attend” for me was the presence of Edwin J. Bernard, Global Co-ordinator of the HIV Justice Network and foremost expert on HIV criminalization worldwide. PositiveLite.com had interviewed Edwin before and published him as well, but that was all the way back in 2012 and 2016 so I attended the symposium hoping for the chance of an interview.

I wasn’t disappointed. Edwin proved very gracious and willing to talk and towards the end of that very long day we sat down to get his take on how the HIV criminalization situation has evolved since we last spoke and where he thinks it might go, in Canada and globally.

******

So Edwin, thanks for taking the time to chat with us. I think the last time we interviewed was all the way back in 2012.

Right, I think it was. I think that when we talked in 2012 Canada was in a pretty bad place… or maybe it wasn’t, maybe it was before, I think it was before the Supreme Court handed down the Mabior decision and we’d been a little bit hopeful that perhaps they would look at the science… that they would have made a different decision than they actually did.

Yes, we were all expecting them to say that if a condom was used OR there was an undetectable viral load… and instead they said AND.

Yes, that was the very least they could have done.

And how do you see the progress that’s been made here in Canada since 2012? We’re looking at a different government now…

I don’t know if you know Elisabeth Kübler-Ross’s theory of the stages of grief. I came back after the Mabior decision in, I think, 2013 and there was, you know, anger and denial and depression … all of those things going on and I don’t think there ever was an acceptance that this was gong to be the legal standard for Canada.

But it’s taken a few years for there to be a resurgence of … figuring out how best to deal with it.

Today we’ve heard about all the different ways that Canada is at the forefront: the use of the sexual assault law and the disproportionate impact on racialized populations and on women and the fact that per capita it’s the highest number of prosecutions in the world and that the legal test is so unscientific that it’s non-disclosure and the risk of harm and not harm.

There’s a list of things that are so problematic. So of course a change in government has obviously helped tremendously. I’m very happy to hear that when Edwin Cameron, of the Constitutional Court of South Africa, when he spoke at the International AIDS conference in Durban, at our bidding highlighted the problem of Canada in particular in front of the Health Minister, who then called the Justice Minister and that led to the announcements today. And to me that’s amazing, that the federal government, that there’s a recognition that HIV is not a crime, it’s a public health issue. And to actually get to hear a government representative say that is a hell of a long way from where we were when I was here five years ago.

And the Legal Network and HALCO and COCQ SIDA and the community media, both PositiveLite and Xtra as well also did some amazing work. And the prosecutorial guidelines work, even though that didn’t lead to anything at the time.

One of the things I love about coming to Canada and particularly to Toronto is that this is where I get my inspiration, that there are so many brilliant advocates and activists with a wealth of knowledge and experience and despite Canada’s terrible reputation in terms of HIV criminalization or maybe because of it, the resilience of advocates and activists and the brilliance of mind. When I think about the work around guidance for nurses and health care workers .. that was world-leading.

There’s been so much amazing, world-leading work that’s been done here. The “Think Twice” campaigns that came from the grass roots, from AIDS Action Now … all of those things, to me, are so inspirational, that sometimes, even in the darkest times, it can actually inspire brilliance and so yeah – five years… but what a difference! It feels like we’re actually on the cusp of something brand new.

We certainly aren’t where we’d like to be but it seems like it’s all going somewhere now, after all those years of Tory rule.

Yeah and the other thing that I think is really special is the Canadian Coalition to Reform HIV Criminalization and Chad (Clarke) in particular. Chad reminded me that he had emailed me soon after he got out of prison. He said I was the first person he got in touch with, I guess because I was still blogging in those days and that I had put him touch with the Canadian HIV/AIDS Legal Network and those people and had led him on this path. And it’s so amazing to see now, how empowered he is, his courage and his strength and his leadership… it’s all so inspiring.

Yes it is. I know so many positive people who say that their lives are better now because of the way their situation brought them into focus and into this community. I feel that way myself.

I work on this issue all over the world and I think what’s interesting, what is special about HIV criminalization in Canada and how draconian the law is, is that once things are absolutely perfect in other ways, I mean there are still obviously issues, particularly around certain populations, undocumented migrants for instance, but in general things are pretty okay for people living with HIV, in terms of the medical side.

So it basically means that this is the thing, this is the thing you have to fight, have to work on. It’s the thing that’s most impacting your quality of life, your ability to feel… internalized stigma as well as discrimination and criminalization. So I completely get why this has been big in Canada.

I actually have to worry much more about my fellow human beings than about anything HIV is ever likely to do to me. So for me, the worst thing about living with HIV is other people… it’s not the virus. The virus is under control and I feel fine.

That’s like what Jean Paul Sartre’s play, Huis-clos (No Exit) said… “Hell is other people.” HIV stigma is other people. Yes.

You’re very active globally. How do you see Canada comparing with other countries at this point?

In my talk I was trying to situate where Canada sits globally and of course I did the… it’s very easy to do all the shaming and I’ve already listed all the different ways that Canada is a world leader in being problematic about criminalization. But I think that the announcements from the federal governmant, from Justice Canada, it actually sits very well in terms of where other countries with problematic provisions are rethinking criminaliation so … a number of states in the US have either modernized or are on their way toward modernizing their statutes. At the federal level there has been an attempt to pass a law for like the last six or seven years. It doesn’t ever get enough co-sponsors to be heard but there is a movement there in the US, even in the face of Trump and Trumpism.

Russia, in February of this year, their deputy minister for Social Affairs announced that they will be revising or removing their HIV-specific criminal law. And you know, the US and Russia have the highest numbers of criminal prosecutions in the world and then Canada’s third in terms of numbers.

But Canada is much higher per capita because you’ve got far fewer people with HIV than Russia or the US. So there’s a movement. Obviously there’s a grassroots movement and there’s a movement of civil society to push towards better laws or no laws at all around HIV. And Canada now is lookig like it could be part of the solution and not the problem that it’s been for so long. And it would be amazing if Canada could end up being a world leader in doing HIV justice rather than HIV criminalization.

U=U (undetectable = untransmittable) and the movement around it has been a game changer. There are other arguments for decriminalization or criminalization reform depending on how people want to come at it, but here in this country it’s certainly given advocates a greater palette to work from in their advocacy.

I helped Bruce (Richman)with putting the campaign together so in terms of the history, I wrote the English language news story about the Swiss Statement and covered it when I was a journalist and I’ve been pushing for many years to ensure that the criminal law is consistent with good science, not only around risk but also around the improved life expectancy, so the reduced harm of HIV and also the science of proof.

And I’ve done lots of work in that area. That’s what brought me to this work in the first place, was actually as a community-based journalist working on science. I wanted to bring the rationality to what felt like the irrationality of criminalization. So what Bruce and his colleagues have done with U=U is they’ve created a grassroots movement that’s popular.

And it’s taken far too long, you know – the Swiss Statement was in 2008. So Pietro Vernazza and I wrote a piece two years ago, looking at – I think it was called, “The Swiss Statement Seven Years Later”or eight years later… whenever it was. And he wrote about all of the studies, 052 and Partner had vindicated the Swiss statement of 2008. And I wrote about how it had impacted criminalization as well as stigma, both internalized and externalized stigma. And Bruce was inspired by that article to do the U=U campaign. So I have a huge amount of respect.

I think one of the problems has been, not the campaign itself, but the way that some groups and organizations and people living with HIV, rightly frustrated that many people do not have equitable lifetime access to treatment and are concerned about the medicalization of HIV above everything else.

And they sometimes want to kill the messenger. But the science is clear. If you’re on treatment, and it doesn’t even have to be undetectable because of course that’s a moving target. What is undetectable in one province is actually not in another, we’re discovering that. Alex McClellland’s talked about that.

So somebody who’s on treatment and adheres to it, whether or not they have access to viral load testing and whether or not that viral test shows undetectable or low levels, that person is extremely unlikely to pass on HIV to anyone and that’s fantastic and it’s something that we should celebrate.

It’s also a great advocacy tool to allow them to make sure that treatment and viral load testing are available to everyone who needs it, but that people shouldn’t be coerced into either knowing their status or taking treatment or to be afraid and to only take treatment because of criminalization.

But those are some of the more nuanced conversations that are going on about it, so in Canada of course it makes complete sense that the U=U message is welcomed and heard loud and clear because of the way that criminalization is framed around realistic possibility of transmission and the fact that the Supreme Court ignored the science in 2012.

So it makes complete sense to be focused on that. But there are a number of reasons why HIV criminalization shouldn’t be as problematic as it is in Canada and they’ve got nothing to do with science, but everything to do with human rights and equity.

The social determinants of health. HIV has been society’s way of condemning the sexually and behaviorally nonconformist. Any difference could be seized on and used against them.

In some ways HIV criminalization absolutely feeds into that and in some ways even the charges are often a surrogate marker of something else and it’s easier, it’s very easy to convict somebody for HIV non-disclosure.

It’s much harder to convict them of actual sexual assault or of domestic violence or of… it’s often due to a breakdown in a relationship and it’s just easier because there’s very little evidence that’s required to find someone guilty.

And the data that was shared this morning about how only three out of a thousand sexual assaults that are ever prosecuted result in a conviction, compared to probably 60 or 70 percent or probably even higher than that of all non-disclosure prosecutions being convicted.

And that’s also part of the problem, that HIV is not only a surrogate marker of being marginalized or stigmatized, but that criminalization is doing the same thing..

If I could ask you to just blue-sky for a moment, what do you think HIV criminalization is going to look like five years from now?

In Canada or globally?

Either one.

Well, it’s interesting that you ask about the five years because it’s five years since the Mabior decision, it’s five years since everyone was just devastated and it felt like it was pretty near the end of the world and you know, so much can happen in five years. We’ve got better science, science is behind us … the political will is behind us… even the fact that the Legal Network is part of our gobal movement, the HIV Justice Worldwide Coalition. It’s a global movement and they’ve played an incredibly important role.

So I would imagine as long as you continue to have the current political climate and there’s this coalition work, that in fiive years’ time I could well imagine that aggravated sexual assault will not be the law, will not be the charge. I can imagine that HIV non-disclosure, in and of itself may not end up being a thing that is prosecutable.

I would hope that there would be elements of mental, of mens rea, you know, that state of mind will be taken into consideration. The way it’s framed right now, you can’t even take state of mind into consideration. Whether that will be, as the global guidance recommends, malicious intent, or whether it will be more like a standard of recklessness, which is sort of a default standard and which is very much the same standard as in England and Wales.

And I would hope that it would be… whilst I really would hope, the ideal would be for there to be no criminal justice system interference in what is primarily a public health issue, I would imagine that the best-case scenario, as we’ve seen for example in the Netherlands.

I can imagine Canada being like the Netherlands. The Netherlands was the first country to do this, in 2005, through a number of Supreme Court rulings. Very different to your Supreme Court. It ended up in the situation they have now, where intentional exposure or transmission are the only things that can be prosecuted and there has only ever been one case since 2005. And I think that is probably the best case and I can imagine that happening.

Now, how it happens… there’s a lot to sort out. But if Canada could get from Mabior to here in five years then why not get to the point where only the very, very rare and difficult cases ever reach criminal court and that all the other cases are dealt with either by public health or through restorative justice or through community support. In five years, I think that’s quite, quite doable.

Sexual assault cases are difficult to even get to court, let alone prove and convict. If we contrast that with the startling success rate of HIV-related sexual assault cases and then factor n the racial stats for example, it paints a very strange picture.

Yes and I think that will be the sticking point in negotiations with the government and parliamentarians. When they discuss it, well that’s such a high legal standard, when I’ve talked with prosecutors, they’re like, “It is really hard to prove intent,” for example.

One would need to send a text afterward, saying, “Ha ha, welcome to the world of HIV.” Which has happened and if somebody was to produce an electronic paper trail to show state of mind, well, that would be used but that’s why potentially I think it’s possible that recklessness might be the compromise. We can prosecute reckless transmission or reckless exposure. And to be reckless, it’s slightly easier to prove but there’s a number of legal tests of recklessness, which means that you need to know your status, you need to know that HIV is transmitted by the way you’’ve behaved, you will have done nothing to prevent that. You will have no excuse as to why you didn’t disclose or use a condom.

So all of that. There’d be a whole load of those things to prove and then recklessness might be shown. But even then, they still need to prove transmission and that’s also very difficult. And I don’t know if you heard Art’s presentation on Phylogenetics but that’s also, there are huge limitations around that.

It’s not impossible; we’ve had reckless transmission in England and Wales. We’ve had 20 convictions in 15 years so it’s not like you can’t have them. It just means that there are a lot fewer of them.

I hadn’t been aware of that phylogenetic evidence is often misinterpreted.

That was actually how I got into doing this work. I was working for the U. K. equivalent of CATIE and we had our first prosecution in 2003.

And I was shocked and I didn’t know what to do about it, but I was writing about science. And the police actually contacted us and said, “We’ve got another case. Can you help us figure out how to prove that one person infected another?” And then I started looking at Phylogenetics.

And I realized that this was really complicated and that a tool which was really primarily used for public health was being misapplied in the criminal context as forensic evidence. I worked with a number of experts to produce a paper that Art referred to, in 2007, that for better or worse keeps being referred to as the paper that highlights the limitations of Phylogenetics in trying to prove that one person infected another.

And what is great about Phylogenetics and I think it should be used more often in criminal cases where transmission is alleged, because it can actually exonerate people. It can show that the viruses are not similar at all.

But when it shows that they are simlar, all it can say is that these viruses are similar and that’s consistent with the prosecutor’s arguments, but we need more evidence. You can’t just say, just because the Phylogenetic trees match, that cannot show direct transmission. There could always be other viruses in between, which means other people in between.

The complainant could have infected the defendant. Just because you’re diagnosed first doesn’t actually mean you were infected first. So all the other evidence needs to be brought in and so Phylogenetics alone cannot ever prove causation.

Can you direct me to that paper?

Sure, I’m the first author. It’s called “HIV Forensics”, so if you just search for E. J. Bernard HIV Forensics you’ll find it. And we did a second paper called “HIV Forensics 2”. That was produced by NAT, the National AIDS Trust. I was an author of that but we weren’t named for some reason. And that is also about this Recent Infection Testing Algorithm (RITA), which Public Health often does now, just to see if someone has been recently infected, compared to chronically infected.

And we did that to highlight that we were very concerned that these tests were being given back to newly diagnosed people to be told whether they had acquired HIV recently or not. We were concerned that someone who had been told that they had recently acquired HIV might thik that they could identify who had infected them, based on whether they had sex with them. And so we again highlighted that this is a public health tool that only suggests recency and it certainly can’t pinpoint timing.

That’s the thing about science. It can move forward and help us as it has with U=U, but it can move forward and create a number of problems if it’s misapplied and misunderstood.. So that’s the new frontier.

Particularly in Canada, if you’re going to change the law so that it’s about transmission and not about non-disclosure or exposure, then there’s a whole load of other science that needs to be understood and appreciated.

Oh, just to let you know, Richard, Notisha and I were on The Agenda. We taped The Agenda, which is on TVO and it’s going to be on on Monday. And even if you don’t catch it on TV I believe it’s also going to be on You Tube. And we had half an hour. I thought it was going to be a hard-hitting news show. We all did pre-interviews and in the end it was just half an hour of us telling Canada how problematic criminalization is. And we weren’t challenged. It was all like, “Yeah, you’re right.”

And they even read a statement from Justice Canada that basically said the same thing, you know, “We’re really concerned about the application of criminal law to HIV.”

So that’s why I feel that we’re at a turning point. Five years ago, if I was interviewed by mainstream media in Canada I would get such aggressive questions. Very moralistic. And that doesn’t happen any more. And that says to me that there is a change.

I mean, yes, I see on Twitter with the hashtag #HIVcrim and I remember looking it up and I see there’s someone who wants to impeach Justin Trudeau or something and he’s trolling us, but other than that, I think there’s a tide turning here.

Yeah, my experience of Canada is mostly… Canada as a country of compassion and it always felt so jarrring. I mean, it’s not over yet, there are still many issues around the treatment of indigenous people and sex workers and people who use drugs. But things seem to be improving in lots of areas so it’s part of the idea of the new Canada as a kinder, gentler country that people always thought it was, but that it just stopped being for a long time.

Let’s hope it’s going back there.

US: The Body reviews the latest development in HIV criminalisation in the United States

What’s New in HIV Criminalization in the United States: The Good, the Bad and the Ugly

By Victoria Law

From TheBody.com

June 15, 2017

Table of Contents

California Senate Passes Bill Modernizing HIV Criminalization Laws

HIV activists in California rejoiced when SB 239 passed the Senate on May 31.

The bill amends the state’s existing criminalization laws to incorporate current understanding of HIV and treatment. It reduces HIV transmission from a felony to a misdemeanor, meaning that people convicted face no more than six months in jail rather than years in prison. The bill also eliminates several HIV-specific criminal laws that carry severe penalties, even for activities that do not risk exposure to HIV.

“There’s no evidence that criminalization inhibits HIV transmission,” stated Naina Khanna, the executive director of Positive Women’s Network-USA. Instead, the threat of arrest and prosecution inhibits testing, disclosure and accessing care and treatment. Criminalization can be, and often is, used “as tools of coercion and control, particularly for women,” said Khanna. “The threat of criminalization and prosecution can be enough to keep women in violent or abusive relationships.” That fear is not unfounded: While women make up only 13% of Californians with HIV, they make up 43% of those criminalized under the state’s HIV laws.

Furthermore, criminalization disproportionately targets people of color. Though blacks and Latinx people make up only 51% of Californians living with HIV, they are 67% of those prosecuted based on their HIV status. “These laws target the most vulnerable communities, pushing them back into the shadows,” said Khanna.

SB239 now moves on to the Assembly.

Missouri Supreme Court Upholds Michael Johnson’s Right to a New Trial

On April 4, the Missouri Supreme Court voted to uphold a lower court’s decision that Michael Johnson, a college wrestler sentenced to 30 years in prison, is entitled to a new trial.

In July 2015, Johnson was convicted on four counts of HIV exposure and one count of HIV transmission. HIV transmission is a Class A felony in Missouri. Johnson, a young black college student, was tried in a nearly all-white town. His race and sexuality were front and center throughout the entire court process. During jury selection, prosecutors asked prospective jurors whether they believed that being gay was a choice. During trial, graphic descriptions and images of Johnson’s penis were admitted as evidence. Most of Johnson’s partners were white.

Both in Missouri and across the country, advocates rallied to his defense, pointing to Johnson’s sentence as a collision of racism, homophobia and HIV criminalization. In December 2016, an appeals court ordered that Johnson receive a new trial. At issue was the fact that prosecutors withheld more than 24 hours of recordings of Johnson’s phone conversations from jail until the first day of trial. By then, it was too late for Johnson’s legal team to mount an appropriate defense. Calling the state’s violation “knowing and intentional,” the judge wrote that the prosecution’s actions were “part of a trial-by-ambush strategy that this Court does not condone.” The decision was upheld by the state’s Supreme Court.

Johnson, now age 25, has already spent four years behind bars. Two of those years were because Johnson and his family were unable to afford the $100,000 cash-only bail that would have enabled him to stay out of jail — and participate in his defense — while awaiting trial. He remains behind bars while he awaits his new day in court.

Florida Says “Sex” Can Be Non-Vaginal — When Prosecuting HIV Exposure

Under Florida law, it is a crime not to inform a sexual partner about HIV status before engaging in sexual intercourse. Until recently, another Florida law defined sex to be between a man and a woman. This is what 65-year-old Gary DeBaun used to overturn his conviction of unlawful sexual transmission of a disease after he created a false report for a partner stating that he was HIV-negative. Since DeBaun’s partner was another man, he and his lawyer argued that the criminalization statute did not apply to him. A lower court agreed and dismissed the case.

While the HIV criminalization law still stands, the law narrowly defining sexual intercourse does not. The Florida Supreme Court ruled that, for purposes of HIV criminalization, sexual intercourse also encompasses anal and oral sex. The prosecutor announced that charges would be brought against DeBaun.

SB 628, a bill that would update existing HIV criminalization laws to acknowledge treatment and prevention efforts, died in the Senate’s Health Policy committee in early May.

Pennsylvania Bills Would Slash Medical Confidentiality of Incarcerated People With HIV

In Pennsylvania, Representative Dom Costa has introduced HB305 and HB306, which expand the current laws criminalizing people living with HIV or suspected of having HIV in the state’s prison system.

HB305 circumvents medical confidentiality if a prison staff member has direct contact with the blood or bodily fluids of an incarcerated person. The bill allows the staff member to learn the incarcerated person’s HIV, hepatitis B and hepatitis C status. If the incarcerated person’s status is unknown, the staff member can request that the person’s blood be tested. If the incarcerated person does not agree to be tested, the prison is allowed to test the person’s available blood if a physician agrees that the staff member had significant exposure to the blood, that tests are needed to treat the staff member and the staff member requests that the blood be tested.

HB 305 defines prison staff members to include health care staff, correctional officers (or guards) and volunteers.

HB 306 amends the state’s Confidentiality of HIV-Related Information Act for people in prison. If passed, the state Department of Corrections must disclose an incarcerated person’s HIV, hepatitis B and hepatitis C status to all corrections officers required to interact with the person. While the bill prohibits corrections officers from disclosing this information to others, incarcerated people across the country have noted that staff members often gossip about medical and other confidential information they overhear or learn, often within earshot of others.

Both HB 305 and HB 306 have been in the state’s House Committee on Judiciary since February 3.

Ohio Supreme Court Hears Challenge to State’s HIV Criminalization Statute

In May, the Ohio Supreme Court heard arguments in State of Ohio v. Orlando Batista, challenging the legality of the state’s HIV criminalization statute. Under the state’s 2000 HIV law, which classifies non-disclosure as felonious assault, Batista was convicted of not disclosing his HIV status to his girlfriend before they had sex. She later tested HIV-positive. Batista was arrested and, after pleading no contest and admitting to transmitting HIV to at least two other women, was sentenced to eight years in prison.

Batista appealed, arguing that requiring a person to disclose his or her status to potential sexual partners is a violation of free speech and that, because HIV is the only disease that is criminalized, the law is also a violation of equal protection. He lost his appeal, but the Ohio Supreme Court agreed to review the issue.

Ohio had 356 HIV-related prosecutions and 59 convictions between 2003 and 2013, giving it the fourth highest HIV-related conviction rate in the U.S. As of 2015, more than 22,300 people in Ohio were living with HIV]].

HIV Is Not a Crime 2018 Conference Planning Has Begun

HIV advocates will be heading to Indiana next summer to share strategies, insights and best practices on repealing and modernizing HIV criminalization laws. The third HIV Is Not a Crime National Training Academy will be held at Indiana University-Purdue University (IUPUI) from June 3-6, 2018.

The conference will offer skills-building training, with an emphasis on grassroots organizing, advocacy, coalition-building and campaign planning.

“The HIV Modernization Movement (HMM) is excited to welcome HIV Is Not a Crime III to the IUPUI campus! Science has made extraordinary advances since the HIV epidemic began in the 1980s, but one area that hasn’t kept up is the body of laws that criminalize HIV. Lacking in scientific merit, these harmful laws stigmatize people living with HIV and are counterproductive to HIV treatment and prevention efforts. Organized activities like this one, that bring together people living with HIV and their allies to collectively strategize on reforming these draconian laws, are critical to ending the HIV epidemic,” said Carrie Foote, Ph.D., HMM Chair and an associate professor at the university, in a press release.

“We hope that hosting the Training Academy in Indiana will highlight the archaic HIV-specific laws and empower advocates and allies to modernize Indiana’s statues,” added Tami Haight, conference coordinator with the Sero Project.

Interested in helping to organize the conference? Sign up here to participate in one of the conference’s planning work groups.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women.