[Press release] Activists call on leaders to protect human rights and stop imposing criminal sanctions against people living with HIV and TB

INTERNATIONAL HUMAN RIGHTS DAY 2016, 10 DECEMBER 2016:

Windhoek, Namibia, 09 December 2016: On the eve of International Human Rights Day 2016, the AIDS and Rights Alliance for Southern Africa (ARASA), a partnership of 106 organisations working in 18 countries in southern and east Africa, calls on governments to curb the increasing trend of enacting and enforcing incoherent, ineffective laws that undermine human rights, including the right to health, and threaten to derail the progress made to end the twin epidemics of HIV and TB.

ARASA warns that the commitments made towards eliminating HIV and TB – including the 2016 Political Declaration on HIV and AIDS, the Sustainable Development Goals and the End TB strategy – stand on shaky foundations, unless they are supported by a human rights-based approach, including strong political will and coherence between law and science.

Although there has been some improvement in ensuring access to treatment and care for people living with HIV and TB, there is a still a long way to go in terms of aligning HIV, TB and human rights.

“We cannot talk about the 90-90-90 targets without addressing the endemic human rights barriers, underpinned by the criminalisation of key population groups, including sex workers, people who use drugs, lesbian, gay, bisexual, transgender and intersex (LGBTI) people, people living with disabilities, and women. In addition, the current proliferation of HIV-specific criminal laws, which unjustly target people living with a treatable disease, are eroding the gains made in the HIV and TB responses,” said Michaela Clayton, Director of the ARASA.

The Advancing HIV Justice 2 report, published in June 2016 by the HIV Justice Worldwide partnership, of which ARASA is a member, highlights that, since 2000, 30 sub-Saharan African countries have now enacted overly broad laws related to the criminalisation of HIV transmission, exposure and non-disclosure.The Report also notes that the rise of reported prosecutions in Africa (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on this continent, is especially alarming.

“It’s ironic that HIV criminalisation began in sub-Saharan Africa just as the commitment to HIV treatment scale-up was envisioned at the Durban 2000 AIDS Conference,” says the report’s author, Edwin J Bernard, Global Co-ordinator of the HIV Justice Network. “These laws were not based on evidence but political expediency – the vision of ‘ending AIDS’ is totally incompatible with criminalising people living with HIV.”

 

“In the course of the Southern Africal Litigation Centre’s work, we continue to observe significant stigma and discrimination against people living with HIV and key populations, including through inappropriate applications of criminal laws, and unhealthy, inhumane conditions of detention in southern Africa. An effective HIV and TB-response demands that governments urgently reform legal environments that enable these abuses, and advance meaningful access to justice and accountability for victims of rights violations,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre (SALC).

 

Advocates around the world are working tirelessly to ensure that the criminal law’s approach to people living with HIV is consistent with up-to-date science, as well as key legal and human rights principles. But, unless investments are matched with clear programmatic articulation of human rights based approaches – essential for people living with HIV and TB and members of key and other vulnerable populations groups who currently have little or no access HIV and TB prevention, treatment, care, and support services – then the current rhetoric about the end of HIV and reduction of TB prevalence rates, will remain purely academic.

“Disclosure of HIV happens with support, with counselling and with an enablement. This is not the reality in the places where an average person seeks health services. HIV criminalisation goes against HIV prevention”, said Dora Kiconco Musinguzi, The Executive Director of the Uganda Network on Law, Ethics and HIV/AIDS (UGANET),

who have been petitioning against the Ugandan government for the amendment of the potentially harmful provisions of the HIV/AIDS control and Prevention Act 2015 which includes allowing for the disclosure of a person’s HIV-positive status, either forcefully, at the discretion of a health worker or at a’ concerned person’s’ request.

The evidence is in and the future is looking bleak: ARASA’s 2016 HIV, TB and Human Rights in Southern and East Africa (SEA) Report, which conducts scans of the legal and regulatory framework for responding to HIV, TB and sexual reproductive health (SRH) in SEA to determine whether laws, regulations and policies protect and promote the rights of all people, including key populations, continues to show that while these laws are meant to protect and promote the rights of all people, they are instead used against the most vulnerable people in our societies, not only moving them away from essential health services, but criminalising their rights to health and life.

This, while shocking figures released by the World Health Organisation in October 2016, show an estimated 10.4 million new TB cases and 1.8 million TB deaths in 2015, are a case in point. This is a 20% revision upwards from last year’s figures, showing that the TB epidemic is a bigger problem than we thought. There is no TB elimination scenario that is realistic without improved prevention.

Our conventional approaches to dealing with TB need to be revisited. As eloquently stated by Honourable Michael Kirby, a Member of the United Nations Secretary-General’s High–Level Panel on Access to Essential Medicines, in his Ten commandments for TB, TB requires rights-based approaches, and a revisiting of the ineffective hostile, punitive approaches, involuntary treatment and incarceration that have been levelled against people living with TB.

ARASA recommends that civil society and governments should work together to:

1.     Advocate to expand access to legal services for people with HIV and key populations and provide information about available legal services.

2.     Remove all overly broad and HIV-specific laws that criminalise HIV transmission, exposure and non-disclosure and criminalisation laws related to sex work, people who use drugs and gender identity for LGBTI.

3.     Expand HIV programming that is acceptable and accessible for LGBTI people, through LGBTI-friendly services.

4.     Advocate for legislation that explicitly criminalises marital rape and set a minimum age for marriage and access to Post Exposure Prophylaxis for Gender-Based Violence (GBV) survivors.

5.     Repeal laws that undermine or prohibit distribution of condoms and lubricants in prisons, including laws that criminalise sex between men in prisons

US: Four out of five LGBT people live in states with HIV criminalization laws.

A majority of LGBT Americans—about 81 percent—live in states with HIV criminalization laws, according to a new report from the Movement Advancement Project (MAP), a group that provides research and data related to LGBT equality.

Titled LGBT Policy Spotlight: HIV Criminalization Laws, the free report explores why these laws are problematic and how they harm public health and the justice system, according to MAP press release.

“Over the past 35 years, 38 states have passed laws that have not kept up with modern medical research and facts about the risks, likelihood, and modes of transmission of HIV,” states the press release. “These HIV criminalization laws therefore often criminalize a range of behaviors that are now known to carry no or a negligible risk of transmission. Most of these laws also not only criminalize the intentional transmission of HIV, but also criminalize behaviors that unintentionally or accidentally exposed others to the virus. Together, these laws perpetuate dangerous stigmas and misinformation about the disease and people living with HIV, create a strong disincentive for individuals to find out their HIV status, and disproportionately target—and add to higher rates of incarceration for—LGBT people.”

While offering a national look at HIV criminalization, the report also looks at the degree of punishment for these laws—for example, whether a violation is considered a felony and whether offenses will result in registration as a sex offender. The report also examines how HIV laws disproportionately affect the LGBT population and people of color.

Published in Poz on Dec 7, 2016

Canada: HIV and Human Rights Organisations welcome Canadian Minister of Justice statement recognising the unjust Criminalisation of people with HIV

HIV AND HUMAN RIGHTS ORGANIZATIONS WELCOME FEDERAL GOVERNMENT’S INTEREST IN ENDING UNJUST HIV CRIMINALIZATION

By AIDSLAW | Published: DECEMBER 1, 2016

TORONTO, December 1, 2016 — The Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario (HALCO) welcome today’s statement by Canadian Minister of Justice Jody Wilson-Raybould recognizing the ongoing problem of overly-broad, unjust criminalization of people living with HIV. Today, fittingly for World AIDS Day, the federal government has signaled its intent to address a critical issue that has long been of concern to people living with HIV and human rights advocates across Canada, and that has also attracted international criticism. Minister of Health Dr. Jane Philpott has also met with us on this very issue, and has noted that HIV criminalization in Canada is both a problem and a priority for the government to address.

Press release can be downloaded here

Matthew Weait, from the University of Portsmouth, writes on how stigma and the law affect the lives of people with HIV

HIV Stigma and the Criminal Law

December 1st marks World AIDS Day, an opportunity for people worldwide to unite in the fight against HIV, show their support for people living with HIV and to commemorate people who have died. Matthew Weait, from the University of Portsmouth, writes here on how stigma and the law affect the lives of people with HIV.

Today, December 1st, is World AIDS Day.  According to the latest available data from UNAIDS, 1.1 million people died from AIDS-related causes in 2015, there are just over 2 million new HIV infections globally every year, and just under 40 million people are living with the virus.  These are depressing figures, particularly in light of the advances in our understanding of HIV, its prevention and treatment, the laudable rise in the number of people accessing antiretroviral therapy (ART) (up from 7.5 million to 18 million in the past five years), and the massive impact of ART on reducing the likelihood of onward transmission.

Despite the fact that the life expectancy of people on ART has improved significantly, especially for those who receive a timely diagnosis, and that there exist effective ways of avoiding infection, the stigma associated with HIV remains.  The impact of this stigma, and the associated discrimination which people living with HIV (PLHIV) and those in key populations are subjected to, is substantial and undermines the work being done to promote access to health and other services critical to curtailing the epidemic.

Stigma is not only correlated with adverse health outcomes for PLHIV (including depression and lower adherence to medication), but also with non-disclosure of status and with less safe sexual practices.  It is for these reasons that combating stigma, and the factors which contribute to it, has long been identified as a public health priority.

Among the most pernicious contributors to HIV stigma is the widespread and inappropriate use of criminal laws against PLHIV and those at heightened risk of infection.  For example, PLHIV or those suspected of being HIV-positive have been and are at risk of being investigated, prosecuted and imprisoned for exposure offences – where no transmission takes place – even where there is negligible risk (as when a PLHIV is on effective treatment and has an undetectable viral load), where there is no risk (e.g. through biting or spitting), and even where a partner has consented to the risk involved.

In some countries, such as Canada, the very fact of non-disclosure of status can, irrespective of risk, turn otherwise consensual sex into sexual assault.  And where transmission does in fact occur (which is more likely when someone does not know their status and is not on treatment than when they do know and are), PLHIV are at risk of extended custodial punishment, even if it is not their intention to cause harm.

These laws serve no public health purpose and, because it is typically only those that have a positive diagnosis who may be found criminally liable, do nothing to incentivise the testing which is a pre-requisite of treatment and care.

It is not only those already living with HIV who suffer from the enforcement of punitive laws.  The social opprobrium associated with and / or criminalization of transgender people, homosexuality, sex work, and injecting drug use in many countries of the world (including nations with high HIV prevalence) reinforces stigma, makes it harder to support those at heightened risk of acquiring the virus, and in fact makes infection more likely.

If the possession of condoms is treated as evidence of sex work, sex workers may not carry them; and if the possession of syringes is treated as evidence of drug use, the chance that these will be shared increases, as does the risk of transmitting blood-borne viruses (including HIV and hepatitis C).  Put simply, the policing of these communities, and the absence of harm reduction opportunities in the carceral settings they may find themselves in as a result of that policing, exacerbate risks which are already greater than for the general population.

The adverse impact of using criminal law in the fight against HIV, and on those directly and indirectly affected by it, has been extensively researched and documented.  The consensus among expert bodies such as UNAIDS and the Global Commission on HIV and the Law is that countries should review their punitive laws and significantly restrict their use, and there have been a number of progressive and welcome developments both in law reform and in policing, many of these led by coalitions of activists and clinicians.  At the same time, and despite the evidence of the harm that they cause, and the stigma which it feeds and sustains, countries continue to pass and enforce these laws.

Irrespective of any moral or ethical questions there may be about HIV transmission, exposure, or non-disclosure, it is incontrovertible that the criminal law makes the elimination of HIV harder.  If we are going to end the epidemic, this needs to be recognised and acted on as a priority. If not, more people will become infected, more people will get sick, more people will have a lower quality of life – even when virally suppressed – and more people will die.

Published in BioMed Central on Dec 1, 2016

US: New Report from the William Institute finds HIV criminalisation laws in California do not reflect medical science

LOS ANGELES —  In California, outdated HIV criminalization laws do not reflect the highly effective medical advances for reducing the risk of HIV transmission and extending the quantity and quality of life for people living with HIV.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status.  California has four HIV-specific criminal laws.

In HIV Criminalization in California: Evaluation of Transmission Risk, researchers Amira Hasenbush and Dr. Brian Zanoni suggest that these HIV criminal laws in California are not in line with medical science and technology related to HIV and may, in fact, work against best public health practices.

“Nine out of ten convictions under an HIV-specific criminal law or sentence enhancement have no proof of exposure to HIV, let alone transmission,” said Amira Hasenbush.  “No HIV criminal laws in California require transmission for a conviction.”Key findings include:

  • From 1988 until June 2014, 379 incidents resulted in convictions for an HIV-specific felony or sentence enhancement.
    • Of those, 100 percent required no actual transmission of HIV.
    • 98 percent did not require intent to transmit HIV.
    • 93 percent involved no specific allegation of conduct that is likely to have transmitted the virus:
      • Ninety percent of convictions were in solicitation incidents in which it is unknown whether any contact beyond a conversation or an exchange of money was initiated, thus possibly not having any exposure to HIV.
      • Three percent of incidents involved oral sex, a sex act whose transmission risk is estimated as “low” by the CDC.
      • Only seven percent of incidents involved vaginal or anal sex by definition of the crime.

HIV criminal laws have been disproportionately applied to sex workers. This has a disproportionate impact on women and people of color. Since solicitation by definition includes survival and subsistence sex work, these laws are also likely to disproportionately impact LGBT youth and transgender women of color.

Laws that criminalize conduct of a person who knows that they are HIV-positive may disincentivize testing and work against best public health practices.

The Williams Institute, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

Full report can be read here

 

Canada: Canadian Report highlights a "clear pattern of racism" in media reporting of HIV-related offences

Media accused of racism in reporting HIV-related crime

Black males with HIV account for 20 per cent of the 181 people charged for no disclosing HIV status to sexual partners, but 62 per cent of newspaper articles focused on their cases.

Canadian mainstream media disproportionally focus on black immigrant men criminally charged for not disclosing HIV status to their sexual partners when the majority of offenders are white, says a new study.

To mark World AIDS Day on Wednesday, a team of Canadian researchers released the pioneering study last week identifying “a clear pattern of racism” toward black men in the reporting of HIV non-disclosure in Canadian newspapers.

“The most striking revelation of this report was the grand scale of stereotyping and stigmatizing by Canadian media outlets in their sensationalistic coverage of HIV non-disclosure cases,” said Eric Mykhalovskiy, a York University sociology professor, who leads the team.

“It’s upsetting to read myths masquerading as news and repeating the theme of how black men living with HIV are hypersexual dangerous ‘others.’ This approach not only demeans journalism, but it inflames racism and HIV stigmatization, undermining educational and treatment efforts.”

Based on the database of Factiva, an English-language Canadian newspaper articles from 1989 to 2015, researchers from York, University of Toronto and Lakehead University identified 1,680 reports of HIV non-disclosure cases. Of those reports 68 per cent, or 1,141 of the articles, focused on racialized defendants.

According to court records of HIV-related criminal cases in Canada, African, Caribbean and black men living with HIV, the virus that causes AIDS, account for 20 per cent or 36 of the 181 people charged for these offenses. However, 62 per cent or 1,049 of the 1,680 media reports focused on these 20 per cent of the cases.

Immigrants and refugees receive particularly higher amount of coverage. While only 32 of the 181 accused are known to be migrants to Canada, yet stories about their offences represented 62 per cent (1,046 of 1,680) of the media coverage.

“The report documents the media’s stigmatizing and unjust racial profiling of black heterosexual immigrant men in HIV non-disclosure cases that perpetuates systematic discrimination,” said Christian Hui, an HIV activist and co-founder of the Canadian Positive People Network.

“We know next to nothing about them other than their name, age, residence, occupation, the charges they face,” said the report. “What is distinct about the coverage of African, Caribbean and black male defendants is how (they) are linked with racializing forms of representation in ways that amplify connections between HIV, criminality, race and ‘foreignness.’”

Mykhalovskiy said the research team recognized that accused criminals often refuse to speak with the media at their counsel’s advice, but it does not change the fact black immigrant offenders are disproportionally represented in the coverage.

The study urges the Canadian media to treat HIV non-disclosure as a health issue and not simply a crime story; to stop using mug shots that further stigmatizing and discriminate people with HIV as criminals; and to reach out to AIDS service organizations when interviewing sources for these stories.

Published in The Star, on Dec 1, 2016

Canada: New report explores mainstream Canadian newspaper coverage of HIV non-disclosure criminal cases, highlighting stigmatizing representations of African, Caribbean and Black men living with HIV

Abstract:

This report explores mainstream Canadian newspaper coverage of HIV non-disclosure criminal cases in Canada. It pays particular attention to how defendants’ race and immigration status figure into the newspaper representations of such cases. We empirically enquire into claims that African, Caribbean and Black (ACB) people living with HIV are negatively portrayed and overrepresented in Canadian newspaper stories about HIV non-disclosure cases. Our analysis is based on what, to our knowledge, is the largest data set of news coverage of the issue: a corpus of 1680 English-language Canadian newspaper articles about HIV non-disclosure criminal cases in Canada written between 1 January 1989 and 31 December 2015. Our quantitative and qualitative findings show that Canadian mainstream newspapers are a source of profoundly stigmatizing representations of ACB men living with HIV. For example, Black immigrant men living with HIV are dramatically overemphasized in Canadian mainstream newspaper stories about such cases. While these men account for only 15% of defendants charged they are the focus of 61% of newspaper coverage. Mainstream newspapers rely on forms of language that transfer a long history of exaggerated connections between criminality, race, sex, and otherness to the site of HIV. The result is that ACB men living with HIV are repeatedly represented as dangerous, hypersexual, foreigners who pose a threat to the health and safety of individuals (White women) and, more broadly, the imagined Canadian nation.
The report is available to download here

 

HIV criminalisation advocacy must extend beyond HIV specific statutes

By Kate D’Adamo

From TheBody.com

September 29, 2016

The fight to combat HIV criminalization is not new. After years of activism, gains are finally being made to repeal statutes that turn a person’s knowledge of their HIV status into a crime.

Just this year, Colorado’s HIV modernization bill comprehensively repealed almost all of the HIV-specific statutes in the state. This is an evidence-based success: Criminalizing people’s HIV status does not inhibit HIV transmission, but instead turns their knowledge and treatment of that status into evidence of a crime. This weaponizes their knowledge and their enrollment in the very care public health officials recommend, forcing people to weigh testing and treatment against fear of arrest.

With the growing success in fighting HIV criminalization, it is now time for advocates to take the conversation beyond the repeal of HIV-specific statutes and to confront the larger context of how criminalization encourages HIV transmission.

The growing data on where and when laws criminalizing a person’s status are implemented show that the people in the crosshairs of these laws are often those already criminalized through their engagement in sex work. The ostensible targets of HIV criminalization laws may be people who are not otherwise criminalized, but the data clearly show who faces most of their impact. The more common way that people who are HIV positive are criminalized for their status is not through general HIV criminalization statutes, but through laws that upgrade a misdemeanor prostitution charge to a felony if a sex worker is HIV positive.

The Williams Institute looked at who is charged and convicted of HIV-specific statutes in California found that “[t]he vast majority (95%) of all HIV-specific criminal incidents impacted people engaged in sex work or individuals suspected of engaging in sex work.” Research out of Nashville, Tennessee, corroborated this picture, with charges disproportionately targeting people arrested for prostitution, who then faced a felony upgrade and (until last year) were required to register as sex offenders for being HIV positive. However, these laws are not the only way criminalization increases sex workers’ vulnerability to HIV transmission, and advocacy must expand its vision to include the fuller context.

At the Sex Workers Project, we work with individuals who trade sex across the spectrum of choice, circumstance and coercion. For sex workers, the relationship between criminalization and health is complex and deeply interwoven.

When we look at the role of HIV transmission in the lives of our clients and community, it is not simply HIV-specific statutes, but the tactics of policing and the instability created through criminalization that increase people’s vulnerability. If the long-term goal is to end the spread of HIV, advocacy should target criminalization more holistically and see HIV modernization, or the on-going state-by-state push to repeal these statutes, as just one of the initial steps needed to explore the nexus between public health and criminalization.

When we expand our scope beyond these specific statutes to look at how policing and criminalization encourage HIV transmission, a more complex and multi-layered picture emerges. For instance, the relationship between evidence of a crime and transmission of HIV does not end with simply knowing one’s status. Law enforcement’s use of condoms as evidence of prostitution has a chilling effect. In research on the impact of policing that uses safer-sex supplies as evidence of a crime, many sex workers reported that they were afraid to carry condoms or take condoms from outreach workers, regardless of whether they were engaging in prostitution at that time. Most impacted by these policing practices were transgender women of color, a population acknowledged to be already at higher risk for HIV transmission. Transgender women are commonly profiled as being engaged in sex work, and therefore, were most at risk for being arrested for the mere possession of condoms. This means that policing practices are actively putting the community with the highest vulnerability to HIV at even higher risk of transmission.

Further, policing procedures that inundate areas “known for prostitution” with law enforcement push sex workers into isolated locations to avoid arrest. This means isolation from peers who can provide harm reduction and safety, and from outreach workers who may offer resources — in addition to making sex workers vulnerable to physical and sexual assault, as physical isolation carries its own risk of HIV transmission.

The fight for HIV modernization bills across the country is already having a demonstrable success. The recent Colorado HIV modernization bill shows what a comprehensive policy can look like. Many other state-based efforts have made sure their work encompasses those most impacted by HIV-specific statutes and fought to include in their advocacy sex workers and organizations serving people who trade sex.

But these policy changes should not be where the momentum ends. HIV criminalization is only one part of the larger on-going dialogue on the nexus between criminalization and public health that deeply impacts the lives of marginalized communities. When more people understand how criminalization affects individual and public health, we can expand the impact of our work to address these larger issues and shift our goals to not just avoiding the criminalization of HIV, but also stemming its spread.

Kate D’Adamo is the national policy advocate at the Sex Workers Project at the Urban Justice Center, focusing on laws, policies and advocacy that target folks who trade sex, including the criminalization of sex work, anti-trafficking policies and HIV-specific laws. Previously, Kate was a community organizer and advocate for people in the sex trade with the Sex Workers Outreach Project-NYC and Sex Workers Action New York. She holds a BA in political Science from California Polytechnic State University and an MA in international affairs from the New School University.

Originally published in The Body on 29/09/2016