Canada: Canadian Coalition to Reform HIV Criminalization hopeful after meeting with federal justice officials but some provinces remain reluctant

Momentum building for HIV law reform

Coalition emerges from meeting with senior federal justice officials last week feeling hopeful, but provinces remain reluctant to commit to moratorium on new charges involving non-disclosure of HIV status

BY ROB EASTON

Chad Clarke says his nightmare and rebirth – he uses the two interchangeably to describe his experience with HIV laws and the justice system – made him stronger.

It started on February 12, 2009, when he turned himself in on an aggravated sexual assault charge brought by his former common-law partner. A judge found Clarke failed to disclose his HIV status, but Clarke says he didn’t know he was HIV+ at the time.

He didn’t see the light until he walked out of prison more than two years later in June 2011, but his resurrection as an HIV activist could not have happened without the experience of prison, which led to his resolve to fight so no one would have go through what he did.

Clarke found himself face to face with high-level officials in the federal justice ministry last week, telling his story and reading the testimonials of others who say they have been unfairly treated by the Canadian justice system because of their HIV status. Clarke is part of the Canadian Coalition to Reform HIV Criminalization, a group of researchers, lawyers, service providers and people living with HIV who’ve come together to capitalize on recent momentum around getting HIV-related laws changed.

Finally, Minister of Justice Jody Wilson-Raybould seems to be listening to the latest science about HIV transmission: it’s a manageable condition for the vast majority of people living with HIV who take antiretroviral medicines. According to the latest research, a person living with HIV with a suppressed viral load for at least six months cannot pass on the virus.

It’s a major reason why advocates are calling for an overhaul of the law. On World AIDS Day (December 1, 2016), the justice minister released a statement acknowledging 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.”

Clarke feels vindicated after years of feeling alone. Over the phone from his home in Dresden, Ontario, following the meeting, he says, “I’m here to open people’s eyes and let them know what happens to people when they’re criminally charged.”

Behind bars, he told justice ministry officials, people living with HIV are branded dangerous to guards and other inmates. Once he was removed from his prison laundry job after a guard was concerned that he would “give AIDS” to other inmates by handling their clothes. “I just looked at the guard,” Clarke says.

HIV cannot be transmitted through clothes, saliva, touch or a toilet seat. HIV transmission requires an exchange of blood, semen, pre-seminal, rectal or vaginal fluids, or breast milk. It is most commonly transmitted through unprotected sex or sharing of injection drug equipment.

Though the federal government has begun to engage communities on how it might change prosecutorial guidelines to reflect up-to-date science and human rights principles around HIV, some provinces – particularly Ontario, where the bulk of prosecutions occur – continue to ignore further attempts at dialogue.

Police and Crown attorneys here have aggressively pursued aggravated sexual assault charges against people even when they don’t transmit the virus, says Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario (HALCO). The group has been calling for a moratorium on prosecutions in the province except in cases of intentional transmission.

“This is a very reasonable approach, and a number of communities are speaking up about the current over-broad use of the criminal law,” Peck says, citing a recent consensus statement from 70 leading HIV researchers and academics.

Emilie Smith, a spokesperson for Ontario’s Ministry of the Attorney General, responding via email to NOW’s request for comment, says that the Ontario government “is committed to working with the federal government to examine the law on this important issue.”

But she says that Crown prosecutors will continue to take direction on current HIV non-disclosure cases from the 2012 Supreme Court of Canada ruling on R. v. Mabior. Critics say the ruling outlines too low a threshold for conviction. The ministry, she says, has no further comment on the request for a moratorium until the federal government and provinces can agree on prosecutorial guidelines on the issue.

Clarke continues to push forward, telling his story and calling for greater justice for those still caught up in the system.

“There are other people out there who are experiencing this right now,” says Clarke. “It choked me up at one point when I was reading one of the testimonies, because this is not right. It’s not right.

“I can live with my HIV. It’s the PTSD that I don’t like,” says Clarke, who recently went on medication “to be able to sleep through the night, not have nightmares about people dying or stabbing one another in jail.”

Clarke, who used to be an X-ray technician, must also live the rest of his life as a registered sex offender, which affects his ability to find work. “I can’t even volunteer at an old folks home. They’re going to do a vulnerable sector screening check, and my name is going to come up on the registry.”

Published in Now on February 19th, 2017

US: Naomi Wilding, Elizabeth Taylor's granddaughter, on why the proposed bill to reform HIV criminalisation laws in California is such an important step in the fight against HIV

It is widely unknown amongst the general population in the U.S. that we currently have antiquated and discriminatory laws that criminalize people living with HIV.

Two thirds of U.S. states, territories, and possessions have HIV-specific criminal statutes used to prosecute people with HIV. Most Americans would be shocked to learn that the only country that has prosecuted more people based on HIV status than the U.S. is Russia.

Repealing these laws would have been a priority for my grandmother, and I feel it is more important than ever to shine a light on these issues, especially given the new political climate we’ve entered.

Published in the Hill on February 16, 2017

Legislation criminalizing HIV began in the early 1980s when contracting the disease was thought of as “a death sentence.”

Three decades later, this is no longer the case. Current HIV medication, when taken regularly, reduces viral load (the amount of HIV in your blood) making it almost impossible to transmit the virus.

We also now have medications that can prevent HIV transmission — a daily pill called PrEP that some people have compared to the birth control pill, but for HIV prevention. Yet, the laws have not caught up with medical advances.

Most of the laws are about disclosure and make it illegal for a person with HIV to engage in sexual contact without first disclosing their status. It doesn’t matter if the person has an undetectable viral load and/ or uses a condom and no HIV transmission occurred. In some places spitting or exposure to saliva can be prosecuted as a felony, even though we’ve long known that HIV can’t be transmitted through saliva.

My advocacy work with The Elizabeth Taylor AIDS Foundation and our grantee partner, SERO Project (a network of people with HIV and allies fighting for freedom from stigma and injustice), has introduced me to some heartbreaking stories of people whose lives are ruined by these unjust laws: Kerry Thomas, a grandfather in Idaho, is serving 30 years in prison for consensual sex where both parties agreed that he always insisted on using condoms.

His medical records show he had an undetectable viral load and the virus was not passed, yet Kerry was convicted anyway. And Willie Campbell, who is serving 35 years in a prison in Texas for spitting, after the court classified the homeless man’s saliva as a “deadly weapon”.

These cases are not just happening in ‘red states.’ The state of California has arrested and charged more than 800 people under HIV criminalization statutes between 1988 and 2014.

This is a human rights issue. Lack of education and misinformation are being used as weapons of blatant discrimination. In fact, most of the laws are very vague, leaving too much to interpretation and potential discrimination.

According to the CDC, as of 2015, 92 percent of new infections occur from people who do not know their status or are not on treatment. If laws criminalizing HIV and stigma were gone, people would feel more at ease to disclose their status, whether at work, or in an intimate or sexual relationship, ultimately resulting in more people getting tested, knowing their status and directly reducing the spread of new HIV infections.

Laws that criminalize HIV increase stigma and discrimination. They hinge on the disclosure requirement, which frequently comes down to “he said-she said”, with the HIV-positive person more often than not perceived as a villain, and facing an assumption of guilt when in a courtroom.

Using updated scientific facts to educate the public can work. In Colorado, the state legislature recently voted to pass Senate Bill 146, repealing two HIV criminalization statutes and reforming others. “Most people really knew very little about this topic. Yet when presented with evidence, they quickly agreed these laws are anachronistic and are no longer based on current science and medicine,” Colorado Senator Pat Steadman said of the success local advocates had in changing the outdated legislature.

Now in California there is an opportunity to pass legislation that is inclusive, updated, and reflective of the advances we make in society.

Last week, California Senator Scott Weiner and Assembly members Todd Gloria and David Chiu introduced Senate Bill 239, a bill that will modernize laws that criminalize and stigmatize people living with HIV.

Passage of reforms like Senate Bill 239 are necessary next steps in the fight against HIV in the U.S. and around the world. We know that marginalized communities face huge disparities with HIV and AIDS rates, and specific HIV criminalization laws only exacerbate this fact.

Most people faced with HIV criminalization charges in California include people of color, cis and transgender women, and LGBTQ youth.

Thankfully we also have organizations like Equality California, the ACLU, Positive Women’s Network, and others who support medically and scientifically accurate information pertaining to HIV, and continue to work with members of the Californians for HIV Criminalization Reform (CHCR) coalition to ensure justice and empathy for people living with HIV. One thing we should all know: HIV is not a crime.

My grandmother’s work as an activist and advocate is inspiring. She had such visibility and used it so brilliantly to help raise awareness and ease the suffering of those with HIV. And while we don’t all have that same kind of visibility, if we all work to speak out about intolerance, and we do what we can to raise awareness, then we become a movement, and that’s what becomes a force for change.

Naomi Wilding is granddaughter of the legendary actress and humanitarian, Elizabeth Taylor. She is now an ambassador of The Elizabeth Taylor AIDS Foundation and has pledged to do what she can to help those living with HIV and AIDS, and in creating an AIDS-free generation.

Canada: Community organisations in Ontario call for an immediate moratorium on all prosecutions and sound prosecutorial guidelines

Stop the witch-hunt of HIV criminalization

People living with HIV are being charged with some of the most serious offences in our criminal law, even in situations where there has been no transmission of HIV, no realistic possibility of transmission, and no intent to transmit.

Witch-hunts aren’t always sudden social paroxysms. They can be pursued slowly and with a veneer of legality — a steady erosion of rights and decency tapping into, and reinforcing deep-rooted fear, stigma and prejudice. Their harm isn’t limited solely to the injustices meted out to those directly targeted; they cast a broader shadow over entire communities.

It’s what’s happening here, courtesy of the provincial Ministry of the Attorney General that has so far refused to recognize both science and human rights when it comes to prosecutions for alleged nondisclosure of HIV.

People living with HIV are being charged with some of the most serious offences in our criminal law (such as “aggravated sexual assault”), even in situations where there has been no transmission of HIV, no realistic possibility of transmission, and no intent to transmit.

Simply put, they are being criminalized for having HIV, caught up in a justice system, from policing to prosecution to prison, that too often disregards evidence and the public interest.

(After the recent incident involving a Toronto police officer talking nonsense about how “AIDS” can be transmitted, it’s clear there is much work to be done on the policing front, too. Scientific consensus is that there is zero risk of HIV transmission through spit and a vanishingly minuscule possibility of transmission through a bite. At least scientifically speaking, we’re not in 1984.)

For many years, a group of committed people living with HIV, lawyers, academics and other advocates has called on the attorney general to put an end to this overly broad use of the criminal law.

In particular, this coalition has urged the adoption of sound guidelines for prosecutors to appropriately limit the use of criminal charges. Repeatedly, it has denounced problematic prosecutions that continue in Ontario — prosecutions accompanied by media coverage that, according to a recent study, disproportionately features black and/or immigrant men and often reflects racist stereotypes. Repeatedly, the coalition has suggested remedies for this ongoing injustice, drawing on a province-wide consultation.

But successive attorneys general have been unable or unwilling to rein in overzealous prosecutors, and have failed to develop prosecutorial guidance in line with science and numerous international recommendations.

As it stands, a so-called “HIV experts group” of crown prosecutors within the ministry now runs this horrible show in Ontario, leading the charge against people living with HIV. From the outside, we don’t know the group’s composition or how they make their decisions to pursue a particular prosecution.

Community organizations have requested a meeting. So, too, have scientific experts — who have pointed out that a correctly used latex condom is 100 per cent effective in blocking passage of HIV, as well as the science now establishing that someone with an undetectable viral load (including as a result of effective treatment with anti-HIV drugs) is effectively non-infectious. Yet this group of “HIV expert” prosecutors has not responded.

However, recent reports in the Star revealed an infamous guide for prosecuting cases of HIV nondisclosure, developed by Hamilton crown attorney Karen Shea — who has played an active role in advancing such cases around the province — for use by other prosecutors. (The government was ordered to release this document after years of wrangling in court.)

A Ministry spokesperson admitted the guide takes a “prosecution at all costs” approach and “doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”

It is therefore no surprise that we continue to see the misuse of charges of aggravated sexual assault, a criminal offence usually reserved for the most violent rapes, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

Such prosecutions damage individual lives and public health. As stated last month by Canada’s federal justice minister, “… the over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Enough is enough. Attorney General Yasir Naqvi — and Premier Wynne herself, who expressed her concern to us in-person three years ago — must stop this witch-hunt. More than 500 letters of concern have, as of this week, been sent to both by outraged community members.

We need an immediate moratorium on all prosecutions (except in those very rare cases of intentional transmission), and we need sound prosecutorial guidelines that respect science and human rights.

Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network, a member of the Ontario Working Group on Criminal Law and HIV Exposure. Stephen Lewis is board chair of the Stephen Lewis Foundation and co-director of AIDS-Free World, an international advocacy organization.

Published in The Star on February 8, 2017

Philippines: Under Philippine law, non-disclosure of HIV could be ground for annulment of marriage but not criminal liability, says Legal Advocacy Center's Director

Concealing HIV-Aids ground for annulment

The concealment of Human Immunodeficiency Virus-Acquired Immune Deficiency Syndrome (HIV-Aids) status could be a ground for annulment of marriage although no criminal liability will be imposed, a lawyer said. Ateneo Public Interest and Legal Advocacy Center (Apila) director Romeo Cabarde Jr. said on Friday, February 3, during the Consultation and Harmonization Meeting with Partners at Brokenshire Hospital, Davao City, that under the Republic Act 8504 (Philippine Aids Prevention and Control Act of 1998) that no legal cases will be charged if an infected person opted to hide his or her status.

But, under Section 34 that “any person with HIV is obliged to disclose his or her HIV status and health condition to his or her spouse or sexual partner at the earliest opportune time.” He made the statement after one participant raised a question during the open forum whether not revealing intentionally to his or her spouse that he or she has HIV-Aids could have legal consequences considering the serious implication, known to have no cure yet, when transmitted through sexual intercourse. The lawyer said that according to the Family Code of the Philippines, a marriage may be annulled if the consent of either party was obtained by fraud. Under Article 46, that any of the following circumstances shall constitute fraud referred concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage. Thus, Cabarde urged health advocates during the event to be cautious and keep the confidentiality of individuals who are positive with the disease and provide the full protection of his or her human rights and civil liberties in accordance with the law. If someone disclosed their patient’s status without permission, they could face charges and penalties for breaching the medical confidentiality of the person infected with HIV-Aids. Instead of leading the person’s admission, he said that the health advocates should instead encourage those infected to divulge their status themselves. “As an advocate, that’s the best thing we can do hindi natin pangunahan na i-reveal (spearhead the revelation) without their consent because we will have a criminal liability,” Cabarde said. Cabarde added the agency will strengthen their awareness campaign and counselling once the infected person announce that he or she is ready to disclose and further assist their partners on how they would deal with the revelation.

Published in SunStar on February 4th, 2017

European AIDS Treatment Group interviews Edwin J Bernard of the HIV Justice Network about their work so far, and what lays ahead.

Canada: Eye-opening document on how Crown attorneys approach prosecuting HIV non-disclosure cases disclosed

Document on HIV non-disclosure prosecutions disclosed

Written by Alex RobinsonFriday, 13 January 2017

A newly disclosed document sheds some light on how Crown attorneys may have approached prosecuting HIV non-disclosure cases.

The Ministry of the Attorney General has released a document written by an assistant Crown attorney detailing her approach to prosecuting HIV non-disclosure cases.

The document discusses the admissibility of an accused person’s statements to public health as incriminating evidence — something human rights lawyers and HIV activists find troubling.

“The risk has always been that the use of an accused’s statements to public health would put a damper on HIV positive peoples’ willingness to be frank with public health, which puts their own health at risk and the population also at risk as well,” says Toronto lawyer Marcus McCann.

McCann says this approach could have a chilling effect on whether people with HIV will seek help from health professionals.

McCann obtained the document through a Freedom of Information request and subsequent years-long legal battle with the provincial government over whether the document should be disclosed.

Karen Shea, an assistant Crown attorney, wrote the document during the 2009 case of Johnson Aziga, an HIV-positive man who was convicted of murder for failing to disclose his status when he had unprotected sex with two women.

In the absence of an official set of prosecutorial guidelines for HIV non-disclosure cases, McCann first requested the document in the hope it could help discussions between the government and organizations that have been pushing the issue.

In November, the Divisional Court ordered MAG to release the document, and the provincial government decided not to appeal the decision.

The document includes a list of arguments against HIV non-disclosure criminalization and responses to them, which McCann says shows the government was aware of those critiques and had discarded them.

McCann says in the past there has been a view among HIV activists that they could push MAG to make meaningful change in the area if they could educate the ministry on current science.

“One of the things this document shows is that MAG knew full well what the concerns were with their approach and they were proceeding full steam ahead,” McCann says.

“It really is a document to my mind that is focused on prosecution at all costs and doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”

Clare Graham, a spokeswoman for Attorney General Yasir Naqvi, says the document is not an official set of prosecutorial guidelines.

“The document is the work product of an individual Assistant Crown Attorney based on her knowledge and experience prosecuting HIV exposure and transmission cases,” she said in an email.

“The Assistant Crown Attorney prepared this document not only for her own use but also to assist her colleagues in a difficult and complex area of the law; however, this document is not a Ministry issued policy or guideline.”

In the legal proceedings concerning the document’s disclosure, MAG conceded that multiple versions of the document existed and that it had been shared on an intranet accessible to all Crown attorneys.

The document was disclosed as the Ontario Working Group on Criminal Law and HIV Exposure called for a moratorium on prosecutions in HIV non-disclosure cases, unless they involve allegations of intentional transmission, while discussions take place to develop an official set of guidelines.

The working group and its member organizations have been working for years towards the development of a set of prosecutorial guidelines.

The working group has obtained a commitment in the past from the provincial government, only to never see any guidelines materialize, Peck says.

“Unfortunately the dialogue over the past seven or more years, from our perspective, has not been meaningful,” says Ryan Peck, the executive director of the HIV & AIDS Legal Clinic Ontario, who sits on the working group.

But Peck says the working group is hopeful that it will be able to engage in meaningful dialogue with Naqvi, who has been attorney general since June.

Peck says the guidelines will need to be developed to bring the prosecutions of these cases in line with up to date science and human rights principles.

The group most recently met with Naqvi at a roundtable discussion on the topic on Dec. 5.

The federal government issued its own statement on World AIDS Day in early December acknowledging the effects of the over-criminalization of HIV non-disclosure. The statement, attributed to Justice Minister Jody Wilson-Raybould, committed to examining “the criminal justice system’s response to non-disclosure of HIV status,” saying this could include a “review of existing charging and prosecution practices, as well as the possible development of prosecutorial guidelines.”

Graham says MAG is committed to working with the federal government to “examine the law in this important area.”

McCann says he hopes the disclosure of the document will mean that both CLHE and MAG are starting future discussions on and equal footing.

“My hope is that Yasir Naqvi, the attorney general, and the ministry of the attorney general approach the next phase of this process with honesty and integrity and that they come open to making some changes,” he says.

“I feel like this document is part of a story and the last chapter is yet to be written.”

Canada: Toronto’s ‘Now’ weekly newspaper prominently features HIV criminalisation impact, advocacy and advocates

This week, Toronto’s weekly newspaper, ‘Now’, features four articles on HIV criminalisation and its impact in Canada.

The lead article, ‘HIV is not a crime’ is written from the point of view of an HIV-negative person who discovers a sexual partner had not disclosed to him. It concludes:

After my experience with non-disclosure, I felt some resentment. But while researching this article, I reached out to the person who didn’t disclose to me. We talked about the assumptions we’d both made about each other. It felt good to talk and air our grievances.

I realized I’d learned something I’d never heard from doctors during any of my dozens of trips to the STI clinic, something I’d never heard from my family, my school, in the media or from the government – that you don’t need to be afraid of people living with HIV.

A second article, Laws criminalizing HIV are putting vulnerable women at greater risk, highlights the impact HIV criminalisation is having on women in Canada, notably that it is preventing sexual assault survivors living with HIV from coming forward due to a fear they will be prosecuted for HIV non-disclosure (which, ironically, is treated as a more serious sexual assault than rape).

Moreover, treating HIV-positive women as sex offenders is subverting sexual assault laws designed to protect sexual autonomy and gender equality. Front-line workers and lawyers say they’re hearing from HIV-positive women who are afraid to report rape and domestic abuse for fear of being charged with aggravated sexual assault themselves.

“People come to me all the time who don’t know what to do,” says Cynthia Fromstein, a Toronto-based criminal lawyer who’s worked on 25 to 30 non-disclosure cases. “Canada, unfortunately, is virulent in its zeal to prosecute aggravated sexual assault related to HIV non-disclosure.”

It also features a strong editorial, ‘HIV disclosure double jeopardy’ by the Canadian HIV/AIDS Legal Network’s Cecile Kazatchkine and HALCO’s Executive Director, Ryan Peck, which notes:

In a statement that mostly flew under the radar, Minister of Justice Jody Wilson-Raybould declared, on World AIDS Day (December 1), her government’s intention “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 stated that “the [Canadian] criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”

This long-overdue statement was the first from the government of Canada on this issue since 1998, the year the Supreme Court of Canada released its decision on R v. Cuerrier, the first case to reach the high court on the subject.

Finally, the magazine features a number of promiment HIV activists from Canada, including Alex McClelland, who is studying the impact of HIV criminalisation on people accused and/or convicted in Canada.

He contributed his first piece to HJN last month.

Canada: Preliminary discussions said to be underway to review current practices in HIV non-disclosure cases

Advocates eager for feds to review ‘over-criminalizing’ of HIV non-disclosure

Joanna Smith, The Canadian Press

Published Wednesday, December 28, 2016 11:50AM EST

OTTAWA — Marjorie Schenkels had unprotected sex three times with a friend, while they both had been drinking, as she was going through a difficult and volatile time in her life.

The Manitoba woman was also living with HIV — a diagnosis she had told only her mother about — and feared she would lose her friends if they, including the man she was having sex with, found out.

She also did not tell the man she had sex with those three times, and he also later tested positive for HIV, although the question of where he contracted it is a matter of contention.

A jury convicted Schenkels of aggravated sexual assault in December 2014.

She did not lie, or manipulate or exploit, the sentencing judge from the Court of Queen’s Bench of Manitoba wrote in the Mar. 1 decision that includes the details of her story.

“Rather, her silence was the result of fear and inability to accept the gravity of her situation,” the judge wrote as she sentenced Schenkels, who is now also a registered sex offender, to two years in prison less a day.

Schenkels is appealing her conviction, with arguments being heard Jan. 10.

There is no particular provision in the Criminal Code regarding the disclosure of HIV status, but there are certain circumstances in which failing to do so is a crime.

That can include having consensual sex — something the Liberal government is now open to changing.

“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,” Justice Minister Jody Wilson-Raybould said in a statement published online Dec. 1, which was World AIDS Day.

“Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease,” she wrote.

The statement said Wilson-Raybould would be taking a closer look at how the criminal justice system deals with non-disclosure of HIV status, which could include reviewing current practices on laying charges and going ahead with prosecutions, as well as developing prosecutorial guidelines.

The justice department did not make anyone available for an interview, but spokesman Ian McLeod said in an email that preliminary discussions are underway.

The Supreme Court of Canada has ruled that the consent someone gives to engaging in sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status.

The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

The high court clarified in 2012 that this would not apply if someone is using a condom and also has a “low viral load,” but advocates argue the law has fallen far behind the science and creates more problems than it attempts to solve.

The fact that HIV non-disclosure falls under aggravated sexual assault or other offences makes statistics harder to come by than they are for other crimes, but the Canadian HIV/AIDS Legal Network has counted at least 180 people charged for offences related to HIV non-disclosure in Canada since 1989.

This relatively high number of prosecutions — and the fact that the issue is criminalized at all — has brought Canada under scrutiny on the world stage.

In July, Justice Edwin Cameron of the Constitutional Court of South Africa shamed Canada — alongside Zimbabwe — for its approach to the issue in his keynote address at the International AIDS Conference in Durban.

“I ask all Canadians to share the blame — not just us in Africa,” he said to resounding applause.

Canadian Health Minister Jane Philpott was in the room.

The changes the Liberal government ends up proposing will likely face some opposition over the ethical challenges surrounding the issues of disclosure in intimate relationships.

“I recognize that it’s difficult, but I think it’s important to draw some lines into when the criminal law is actually warranted and not warranted,” said Cecile Kazatchkine, a senior policy analyst with the Canadian HIV/AIDS Legal Network.

The United Nations Programme on HIV/AIDS (UNAIDS) has recommended prosecuting only those people who knowingly and intentionally transmit the virus to their partners, rather than simply not disclosing it, which some advocates say is not always possible, such as in abusive relationships.

Cynthia Fromstein, a Toronto-based defence lawyer who has represented clients facing HIV disclosure-related charges, said there is still “enormous” ignorance and fear surrounding HIV, which is only made worse by the current laws.

“The only time you see HIV, practically, is when someone’s picture is on the paper, being charged . . . with aggravated sexual assault,” said Fromstein.

Published in CTV News on Dec 28, 2016

US: Georgia activists want state lawmakers to revisit HIV criminalisation laws

Activists: Change Georgia laws that unfairly punish HIV-positive people

‘I am not a walking infection. I am a human. Don’t lock me up for who I am’.

SEAN KEENAN

Georgians living with HIV can be locked away for up to a decade for neglecting to inform sexual partners of their status, even if they’ve been told by a doctor that their viral loads are too low to transmit the virus.

Under Georgia law, HIV-positive people are required to tell partners of their status prior to sex. If they don’t, they could be charged and convicted for “reckless conduct” — a felony — even if they don’t transmit the virus. People who divulge such personal info to others can face harsh discrimination, and even violence, for saying they have HIV. In other cases, their privacy could be compromised.

According to the Center for HIV and Law Policy, more than 30 states have laws about prior notification and spitting or biting, even though medical experts say such behavior does little, if anything, to contribute to the transmission of HIV. And Georgia activists who are trying to end HIV stigma want state lawmakers to revisit laws here.

The topic was raised on Nov. 30, the evening before World AIDS Day, at an event organized by advocacy group Georgia Equality. During a panel discussion at the event, four HIV-positive people talked about the stigma that comes with living with the condition.

Nina Martinez, a public health analyst and Georgia Equality activist, said she hasn’t had a relationship in 11 years. That’s because Martinez is worried she could be beaten or criminally charged for merely engaging in romantic endeavors with someone who is not aware of her condition. Martinez told the few dozen people in attendance that, after being sexually assaulted, she kept quiet in fear of “going to prison for my own rape.”

Panel speakers said they’re working with local politicians to create legislation that could reduce the stigma surrounding HIV. Many people don’t know that HIV-positive people taking proper medication can have normal sex lives with virtually no risk of passing the virus to others, said panel moderator Dazon Dixon Diallo, founder and president of SisterLove, an advocacy group focused on African-American women with HIV/AIDS.

Dixon Diallo said appropriate use of pre-exposure prophylaxis, or PrEP, and antiretroviral therapy can now virtually quash the chances of transmission during intercourse or other exchanges of bodily fluids, citing a two-year study of more than 1,000 couples that knew of their partner’s status.

“Treatment is prevention,” said Dr. Richard Rothenberg, associate dean of faculty development and research at Georgia State University’s school of public health. “Getting people on adequate treatment (defined as no detectable viral load) clearly diminishes transmission considerably.”

Georgia has one of the highest diagnosis rates of HIV in the nation. According to a recent study by the Big Cities Health Coalition, metro Atlanta had the country’s second-highest rate of HIV diagnoses, second to Washington, D.C. Nearly half of metro Atlanta cases are in Fulton County.

“So how well has our criminalization law done to drive down [HIV] cases?,” asked Mel Medalle, a SisterLove policy and advocacy advisor. “I don’t think very well.”

To people who aren’t knowledgeable of advancements in HIV treatment and prevention, Dixon Diallo said, “it might seem like these laws are helping people … But there is no sense of agency or responsibility to someone who is not HIV positive.” For example, Martinez said she could be taken to court for not informing a partner of her status prior to having sex, even if she contracts an STD her partner might be carrying in the process. “Complying with the law assumes that disclosure is safe,” she said. “But there’s nothing to stop that guy on a Friday night from giving me syphilis.”

One audience member asked whether a pre-sex, contractual understanding could thwart cases in which people raise issues with the terms of their sexual exploits after the fact. Medalle said having such a document in theory but “in the real world, the stigma would outweigh that every single time.”

Charles Stephens, director of The Counter Narrative Project, an advocacy group supporting gay black men, said HIV criminalization is also used as a means of endorsing homophobic and xenophobic policy. Stephens has followed the case of Michael Johnson, a gay black college wrestler who last summer was jailed after being convicted of transmitting HIV to one man and risking the infection of four others. Johnson was sentenced by a Missouri court to more than 30 years in prison. A Missouri appeals court yesterday ordered he receive a new trial.

“A lot of national organizations are only interested in people with perfect narratives,” Stephens said. “No one was talking about this…If Michael had blonde hair and blue eyes, the cavalry would have come a lot sooner.”

Marxavian Jones, an activist with NAESM, a group that provides education and services for people affected by HIV/AIDS, reminded the crowd that the virus does not discriminate.

“When talking about HIV, it’s not just numbers, these are lives,” Jones said. “People who are married catch HIV. People who have one partner catch HIV. People who have sex for the first time catch HIV. Everyone’s story is different, and it’s unfair to put rules and labels on how people have to share their private and personal information.”

The panelists said they’re working to draft a legislative proposal — they said it’s too early to share specifics — for the upcoming General Assembly to address Georgia’s laws and “decriminalize HIV,” once and for all.

“The H in HIV stands for humans, and we seem to be missing that humanistic approach,” Jones said. “I am not a walking infection. I am a human. Don’t lock me up for who I am.”

Published in Creative Loafing on Dec 21, 2016

US: Mark S. King explores why the breakthrough message equating "HIV undetectable to untransmittable" matters

Five Reasons ‘HIV Undetectable’ Must Equal ‘Untransmittable’

By Mark S. King

From MyFabulousDisease.com

December 15, 2016

We are not dirty, we are not a threat, and we are not disease vectors. In fact, we are the solution. People living with HIV who achieve viral suppression, who become undetectable, are the solution to the end of new HIV infections in the United States. … When we look back 20 years from now we’re going to judge ourselves in terms of how well we responded to this opportunity.

— Dr. Rich Wolitski, person living with HIV and acting director for the Office for HIV/AIDS and Infectious Disease Policy at the U.S. Department of Health and Human Services

When Dr. Wolitski delivered his speech at the closing plenary of the 2016 United States Conference on AIDS (USCA), he received a standing ovation. He was referring to this year’s newest findings of HPTN 052 and the PARTNER study, which showed that people living with HIV who are undetectable are not transmitting the virus to their negative partners.

How wonderful that something many of us have assumed for years has been proven to be true. So now we can spread the news and encourage people with HIV to seek treatment and stick with it. And hey, there’s nothing like a little intercourse a la natural with your partner to reward yourself for being undetectable, am I right?

Not so fast. There is some strong resistance to a message that equates undetectable to untransmittable, and it’s not coming from where you might think.

Here are five reasons why this breakthrough message matters.

1. The science is solid.

The PARTNER Study has recorded 58,000 acts of penetrative sex without condoms between 1,000 positive/negative couples, in which the HIV positive partner had an undetectable viral load. There were no infections between the couples. Not a single one. The same results were reported in the HPTN 052 study and the empirical evidence to date. As Dr. Wolitiski said in his USCA speech, “this is a game-changing moment in the history of the HIV epidemic.”

Resistance to the conclusion that undetectable people pose no risk of infection has been either a matter of scientific data scrutiny or a fear that people may not actually be undetectable when they think they are. Let’s break that down.

A review of the argument against saying “zero risk” is enough to make you cross-eyed. It is based on the premise that nothing, really, is without risk. Detractors of the non-infectious message will calmly explain the perils of placing any risk at zero and then hypnotize you with statistical origami. Suffice it to say that proving zero risk is statistically impossible. You risked electrocution by turning on your device to read this article.

There will always be somebody who claims a terminally unique HIV infection, even if the precise circumstances of their claim may be murky. Weird things happen. Some folks are convinced that people who drink alcohol sometimes spontaneously combust. But you don’t see warning labels about it slapped on every bottle of Wild Turkey by overzealous worrywarts.

And yes, there is the possibility that someone might develop a viral load if they are not adherent to treatment and then transmit the virus. But the message here is that people who are undetectable cannot transmit HIV. If you stay on treatment and are undetectable you will not transmit HIV. Can we please celebrate this simple fact without remote qualifiers?

It is also important to note that a Canadian consensus statement concluded that any “viral blips” or sexually transmitted infections (STIs) were “not significant” to HIV transmission when someone is undetectable.

2. Major health experts are on board (but not all community leaders).

Public health leaders, from the New York Department of Health to the National Institutes of Health (NIH), have embraced these findings and its meaning to people with HIV, while community advocates and organizations have been reluctant to get on board, citing a theoretical risk of infection. Or maybe they consider changing their fact sheets and web sites an enormous bother.

The Prevention Action Campaign and their seminal message “U=U” (undetectable equals untransmittable) was founded on the energetic efforts of a man named Bruce Richman. He entered the HIV advocacy scene a few years ago, seemingly out of nowhere, carrying aloft the banner of undetectability. Richman gathered signatures of health experts the world over for a consensus statement about the research, while cajoling every U.S. HIV organization in sight to adopt language that removes the stigma of infectiousness from people who are undetectable.

My review of the web sites and statements from major HIV organizations includes no strong language about undetectable people not transmitting HIV. Worse, some exaggerate the risk from those who are undetectable. How could such a new research breakthrough be met with such ignorance and apathy by our own leaders? I will defer shaming anyone by name while they take a little time to update their official language. (Notable exceptions to this sad rule include work going on in the United Kingdom and France that flatly states that undetectable means non-infectious.)

This skepticism from our own community reduces people with HIV, again, to a problem that must be managed. It suggests that those of us who have achieved undetectability don’t have the judgment to keep taking our medications or to see our physician regularly to be sure our treatment plan is still effective. It keeps us in the role of untrustworthy victims unable to make decisions that will keep the rest of you safe from us. What infuriating, stigmatizing nonsense.

3. This is about HIV. Only HIV.

Auxiliary issues often creep into this debate that may be well-meaning but only muddy the waters, such as the fear that promoting the message of non-infectiousness will lead to more sexually transmitted infections (STIs) because of the freedom it allows (see also: critics of PrEP, the birth control pill, and any other vehicle that might lead to unbridled sexual pleasure).

Rates of STIs — which were on the rise before the advent of PrEP or news from the PARTNER Study — are deeply concerning but ultimately tangential. We are in desperate need of comprehensive sexual health programs, to be sure, but in this instance I feel compelled to “kill the alligator closest to the boat.” This is about being HIV undetectable, not syphilis impermeable. Being undetectable will not prevent other infections or address promiscuity or remove stubborn stains.

Advocates are also sensitive to the continued compartmentalization of our community, between those who are positive or not, who is on PrEP or not, and now, between those with HIV who are able to achieve viral suppression and those who cannot, despite their best efforts. I sympathize with this new divide among HIV positive people but believe the greater good — removing shame and stigma from those who are not capable of transmitting — shouldn’t be downplayed. All HIV positive people of good will can and should celebrate this development, regardless of their own viral load.

4. This is a major victory for HIV criminalization reform.

Terribly important work is being done to repeal and reform HIV criminalization laws that prosecute people with HIV for not disclosing their status to a sexual partner. Our lead defense is often that the defendant never posed a risk to their partner in the first place, due to their use of protection or the fact the defendant was undetectable and therefore rendered harmless.

Imagine the glee with which prosecutors might punch holes in this defense, based on statistical mumbo-jumbo saying “zero risk” is impossible and using it to explain to a jury that Joe Positive did, in fact, pose a risk to his sexual partner and should be jailed for it. Put that doubt into the heads of a jury, and another person with HIV gets a 30-year sentence for daring to have sex at all.

5. This profoundly changes how people with HIV view themselves.

Internalizing the fact that I cannot transmit HIV to anyone has had an effect on me that is difficult to describe. I can only liken it to the day the Supreme Court voted for marriage equality. Intellectually, I knew I was a gay man and a worthy human being. But on the day of the court’s decision I walked through the streets of my neighborhood with my head held higher. Something had changed. I felt whole.

In my thirty-five years living with HIV, I have never felt exactly that way. I deserve to. And so do millions of other people with HIV.

Of all the arguments to adopt the message that undetectable people cannot transmit HIV, that enhanced feeling of self-worth may be the most important reason of them all.