US: PJP Update – July 2017

State Advocacy

Release of Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law was developed by ten organizations in response to concerns about the best way to use HIV treatment advances, “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U), in HIV criminal law reform advocacy.

Intended to serve as a resource supporting state advocates working on modernizing local HIV laws, The Consensus Statement on TasP flags ways to avoid inadvertently putting people of color and those without regular treatment access at increased risk of prosecution. The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, the National Association of Criminal Defense Lawyers, the National Center for Transgender Equality, the National LGBTQ Task Force, PFLAG, the Prevention Access Campaign/U=U Campaign, the Treatment Action Group and Women with a Vision are the original endorsers of the statement.

“The groundbreaking science that proves a person living with HIV on effective treatment cannot transmit HIV is changing lives, dismantling stigma, and getting us closer to ending the epidemic. Its usefulness in the context of criminal law reform has raised questions, and this statement provides much needed guidance for using the science in advocacy,” says Bruce Richman, founder of Prevention Access Campaign “Undetectable = Untransmittable”, an originating statement endorser.

The power and reach of this advocacy tool is reflected by the quickly growing list of nearly 50 organizations and individuals that have endorsed the statement since its release two weeks ago, including Equality Alabama, Georgia Equality, HIV Modernization Movement – Indiana, the San Francisco AIDS Foundation and more.

Join us by endorsing the statement and spreading the word about this movement for clear guidance on how the science of HIV treatment and prevention relates to the reform of HIV criminal laws. Visit www.hivtaspcrimlaw.org for an FAQ, resources and a list of endorsing individuals and organizations.

State Advocacy Working Group Updates

CALIFORNIA

On May 31, SB 239—proposed legislation to modernize California HIV criminal laws—passed out of the California Senate and was referred to the California Assembly. The bill successfully made it through the Public Safety and Health Committees in the California Assembly, and will likely be heard in Assembly Appropriations in August. The most current version of the bill can be found here. Members of Californians for HIV Criminalization Reform are currently organizing in-district meets with members of the Assembly to advocate for the bill’s passage. The bill is a vast improvement over current law, in particular eliminating the felony punishment of sex workers arrested for solicitation while living with HIV and retroactively vacating felony convictions of sex workers previously convicted under this section of California law.

The bill has undergone changes as it has progressed through different committees, including the addition of a “reckless exposure” provision, which makes engagement in “particularized conduct that poses a substantial risk of transmission of an infectious or communicable disease” in violation of health officer instructions a misdemeanor. The conduct must occur within 96 hours of the instruction in order to be a violation and the provision is only applicable in “circumstances that make securing a quarantine or health officer order infeasible.” Given the lack of an intent requirement and terminology that remains vague or undefined, it is hoped this “reckless exposure” provision can be further narrowed to ensure it is not applied to already-marginalized populations, such as undocumented immigrants and sex workers.

If your organization is interested in supporting modernization of California’s HIV criminal laws, we invite you to join Californians for HIV Criminalization Reform (eqca.org/chcr). Please contact brad@eqca.org or 323-848-9801 for additional information.

GEORGIA

In conjunction with National HIV Testing Day on June 27, the Georgia Coalition to End HIV Criminalization sent an open letter introducing itself to AIDS Service Organizations (ASOs) throughout the state and encouraged them to contact coalition members for HIV criminalization trainings.

Members of the coalition convened in June and July, and have been in discussion with the Williams Institute on HIV criminalization research in Georgia.

Coalition members continue to monitor developments around House Resolution 240, which formed a committee tasked with examining barriers to health care for Georgians with chronic health conditions, including HIV. The resolution requires the committee to “[a]ssess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose.”

Meetings are held the first Thursday of the month from 4:00-6:00pm (ET) 

If you are interested in joining the Georgia Coalition to End HIV Criminalization, please contact Emily Brown (emily@georgiaequality.org) and visit the coalition’s coalition’s website for additional information.

LOUISIANA

In June, the coalition finalized its official name: Louisiana Coalition on Criminalization and Health (LCCH). The group is forming working groups focused on Education, Partnerships, Administrative, Legal/Policy, etc., to engage in more structured efforts to advance the LCCH’s goals of modernization in the state. The group is also working on mounting a rapid response to a recent prosecution in New Orleans. The case involves a man who allegedly spit at police officers, which is currently punishable by up to 11 years of incarceration under Louisiana state law.

Meetings are held on the second Wednesday of the month at 11:00am (CT).

If you are interested in information about HIV criminalization or actively participating in LCCH, please contact Chip Eakins at ceakins@philadelphiacenter.org.

MISSOURI

Missouri HIV Justice Coalition held community roundtables on July 18 and 20 in St. Louis and Kansas City to identify the perspectives and priorities of those who are most severely affected by Missouri’s HIV criminal law.

On August 5 and 6, the coalition is hosting a train-the-trainer event in cooperation with the Sero Project in Springfield.

Meetings are held on the fourth Friday of the month at 1:00pm (CT) via conference call.

If you are interested in becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at ashley@empowermissouri.org, and visit the coalition’s website for additional information.

OHIO

On July 8, Ohio advocates held a community forum in Columbus, with support from the Positive Justice Project. The event included more than 50 attendees from across the state, many of whom were new to the issue of the HIV criminalization. The first half of the day provided an overview of Ohio’s HIV criminal law, as well as recent efforts relating to Batista and Ohio’s Criminal Justice Recodification Committee. The second half of the day was a participatory workshop where attendees worked together in breakout groups to map a strategy moving forward.

In June, the Ohio Criminal Justice Recodification Committee released its final recommendations to the state legislature. The recommendations can be found here. In brief, the proposal would remove HIV non-disclosure from Ohio’s felonious assault law, and create a new offense entitled “Dangerous Sexual Activity,” which would contain the following provisions: 1) intentional transmission of HIV by any means would be punished as a 2nd degree felony 2) non-disclosure of HIV status and sexual activity resulting in transmission would be punished as a 2nd degree felony and; 3) non-disclosure of HIV status and not taking “reasonable precautions” (ART or condom use) prior to sexual activity would be punished as a 1st degree misdemeanor. Refer to page 57 in the link for details. Coalition members wrote a letter to the Recodification Committee opposing a similar proposal in December 2016. That letter can be found here.

Meetings are the second Wednesday of the month at 5:00pm (ET). 

If you would like information on HIV Criminalization or are interested in becoming an advocate with the Ohio HIV Criminalization Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.

TENNESSEE

The PJP Tennessee Working Group convened in June and July and reviewed updates from recent legislative advocacy efforts. This summer advocates are fine-tuning their legislative strategy, working on a rapid response plan and opportunities for prosecutorial and public defender education.

Meetings are held on the fourth Thursday of the month at 1:00pm (CT).

If you would like information on HIV criminalization or are interested in becoming an advocate with the PJP TN Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.

TEXAS

Advocates are planning an HIV Criminalization 101 webinar in August to introduce new members to the basics of this advocacy work. The group convened in June and added many new members to their coalition.

Meetings are held on the third Thursday of the month at 6:00pm (CT).

If you are interested in information about HIV criminalization or actively participating in the Texas HIV Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.

Criminal Case Update

CHLP’s assistance in criminal cases includes counseling defendants and their families, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.

MISSOURI

In April, the Missouri Supreme Court upheld the Court of Appeals’ decision overturning Michael Johnson’s conviction and remanding his case for a new trial. The case is back in the 11th Judicial Circuit Criminal Court, St. Charles County, Missouri. The trial has not started, as the case is in a preliminary stage. The next court date is August 28, 2017.

NEW YORK

On June 19, the U.S. Supreme Court denied Nushawn Williams’ request that it review the decision to indefinitely civilly commit him to a New York State Psychiatric Center as a dangerous sex offender based on his sexual activity while living with HIV. CHLP, along with other organizations and individuals, had filed a brief in support of Williams, arguing that his case was the only one in New York in which an individual was essentially isolated or quarantined based on his HIV status, in violation of his Constitutional rights and federal disability protections. His attorneys are analyzing next steps in his case.

OHIO

On May 17, the Supreme Court of Ohio heard oral arguments in Orlando Batista’s case. Batista was indicted for felonious assault in July 2014 for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status. After the trial court rejected his motion to dismiss, Batista pleaded no contest and the court sentenced him to the maximum term of eight years. CHLP, with support from the Gibbons P.C. law firm and the Ohio Public Defender, along with seven Ohio-based and national organizations, submitted a friend-of-the-court brief in support of Batista to the Supreme Court of Ohio. The ACLU of Ohio Foundation and Center for Constitutional Rights submitted a separate friend-of-the-court brief based on First Amendment grounds. No ruling has been issued to date.

If you are aware of anyone charged in an HIV exposure or transmission case, please refer them to our website, www.hivlawandpolicy.org and/or have them or their lawyer, contact CHLP for assistance at 212-430-6733 or pjp@hivlawandpolicy.org.

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Jamaica: Ricky Pascoe, president of the Jamaican Network of Seropositives, shares his views on the Criminalisation of HIV Transmission in light of recent conversations in Jamaica

Every now and then, the conversation around the criminalisation of HIV and STI transmission is brought up. It was recently raised in a sitting of the joint select committee reviewing the Sexual Offences Act and other related acts. It was raised by representatives of the Office of the Director of Public Prosecutions (ODPP) who, while not recommending the specific criminalisation of transmission of HIV and STIs, highlighted the case of George Flowers and the complexities that arose from it.

George Flowers, a man living with HIV, knowing himself to be living with HIV, had unprotected sexual intercourse with several women who subsequently contracted the virus from him. This occurred in Canada and he subsequently came to Jamaica. An extradition request by Canadian authorities was challenged on the basis that Jamaica did not have similar laws criminalising endangering the lives of a person through transmission of sexually transmitted infections.

The Supreme Court ruled that Jamaica did have similar laws based on persuasive case law (R v Dica; R v Konzani) from Britain, which identified the reckless or intentional transmission of HIV and other STIs as amounting to assault occasioning bodily harm, which is captured in the Offences Against the Person Act. The ODPP representatives questioned whether the state of the law needed to be codified into legislation which specifically criminalised HIV transmission.

While we understand the need to prevent the transmission of HIV and the importance of holding those who, by their wilful or reckless actions, put others at risk for harm accountable, the question is whether the specific criminalisation of HIV transmission is the route to do this. Specific transmission raises several issues that I will discuss below.

Positive Status

First, as with all criminal offences, the crime of wilful or reckless transmission has a mental element. In this case, a person ought to know they have HIV and knowingly have sexual intercourse with another person whom they have not told about their positive status.

The only way to know that one has HIV is by doing an HIV test. A valid defence is that a person did not know his/her HIV status. Laws that specifically criminalise HIV transmission, therefore, can have the unintended effect of dissuading persons from getting tested and, by extension, knowing and managing their HIV status.

Second, these laws shift the burden of protecting oneself from contracting HIV to the person who is living with HIV. Consistent with the Ministry of Health, we would like to emphasise that it is the responsibility of each consenting adult to protect himself/herself from contracting HIV by engaging in safe sex consistently. Rather than emphasising that point, these laws require persons living with HIV (PLHIV) to disclose their status in the face of societal stigma and discrimination.

Jamaica’s current state of the law is consistent with international human-rights standards that balance the right to life, liberty and security of the person on one hand and the right to privacy and freedom from discrimination on the other.

Wilful and reckless transmission of HIV is covered under general criminal laws related to assault and wounding, i.e., where a person actually infects another with HIV or any other STI, knowing one was so affected and intentionally or recklessly putting the other person at risk, one is criminally liable. This focuses on the fact of transmission, and not the fact of a PLHIV having sex with another person.

Current Realities

My organisation, the Jamaican Network of Seropositives (JN+), strongly feels that any attempt to codify the principles arising out of Dica and Konzani should be cognisant of current realities around HIV transmission and prevention.

Such legal provisions should not criminalise a PLHIV who is virally suppressed for having sex with someone who is HIV negative without sharing his/her status. The legal provisions should specifically relate to wilfully or recklessly having unprotected sex with another person, which leads to transmission. Persons should not be criminalised for condoms ripping and similar occurrences. The legal provisions should not criminalise the transmission of HIV and other sexually transmitted infections.

We reiterate that conversations regarding HIV transmission should be cognisant of the experiences of people living with HIV. They should be mindful of furthering the stigma and discrimination that PLHIV face by inadvertently painting them as vectors of the disease. Rather, they should be mindful of the relevant nuances as they seek to protect and promote the rights of all.

– Ricky Pascoe is president of the Jamaican Network of Seropositives. Email feedback to columns@gleanerjm.com and jnpluscommunications

 

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

HIV Criminalization: A Concept That Has to Be Talked About

by Emili Ema Sedlar

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.

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 

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

Working group criticizes bill criminalizing HIV transmission (For article in Portuguese please scroll below)

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 7th 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:

  1. Never be intimate again. Live in isolation and fear of prosecution as well as discrimination from the general public.

  2. 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.

  3. 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.

  4. 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.