HIV IS NOT A CRIME Training Academy (HINAC2)
Huntsville, Alabama

(33 min, HJN, USA, 2016)

HIV JUSTICE WORLDWIDE presents a video documentary on the second-ever ‘HIV IS NOT A CRIME’ training academy held in Huntsville, Alabama.

To support advocates on how to effectively strategise on ending HIV criminalisation, this 30-minute video distils the content of this unique, three-day training academy into four overarching themes: survivors, victories, intersectionality and community.

We hope this video can be used as a starting point to help advocates move forward in their own state or country plans to achieve HIV justice.

For more information about the training academy visit: http://www.hivisnotacrime.com/

Canada: Stigma and HIV criminalisation deter people from getting tested

Stigma remains a major problem that discourages people from getting tested

Two studies released last month show the tools exist to potentially end the more than three-decades-old scourge of HIV/AIDS, but activists and front-line public health workers in Canada say we simply aren’t using them effectively.

The first study found it’s nearly impossible for an HIV-positive person to transmit the virus if they’re undergoing effective antiretroviral therapy (ART).

The other showed the impressive ability of a drug called Truvada — if taken properly — to protect HIV-negative people who would otherwise be at high risk of contracting the virus.

“I think there’s a real frustration of those of us on the ground, those of us working in public health and epidemiology who know absolutely that the tools are out there and we’re not seeing the support,” says Joshua Edward, a program manager at Vancouver’s Health Initiative for Men(HIM).

High-profile figures in the global fight against HIV/AIDS, including Bill Gates at last month’s World AIDS Conference in Durban, South Africa, have suggested talk of “the end of AIDS” is perhaps premature given its continued spread in much of the developing world, particularly Africa.

Such talk also seems premature in Canada.

Two big problems

Edward says there are two major problems in Canada that deny the promise described in the two studies.

First, there remains a powerful stigma around HIV that discourages people from getting tested.

The second problem is Truvada, approved as a pre-exposure prophylaxis or PrEP, is very expensive, up to $1,000 a month, and isn’t widely available to those who don’t have generous private insurance plans.

The PARTNER study looked at couples where only one partner had HIV but with a viral load suppressed by medication. Out of nearly 60,000 condomless sex acts, not a single HIV transmission occurred.

But HIV infection rates in Canada remain relatively steady, with an estimated 2,500-3,500 new transmissions every year, in part because one in five HIV-positive Canadians don’t even know they have the virus, and so they aren’t receiving the treatment that will keep them healthy and prevent further spread.

Activists argue stigma is a big reason why so many Canadians don’t get tested, and it’s fuelled by the fact that our laws criminalize the non-disclosure of one’s HIV-positive status, even if no transmission occurs and despite the latest evidence that shows viral suppression makes it virtually impossible to transmit the virus.

Stigma encourages spread

Sandra Ka Hon Chu, director of research and advocacy with the Canadian HIV/AIDS Legal Network (CHALN), says criminal sanctions of HIV-positive people encourage the spread of the virus.

“People who might not know their status won’t get tested because you would have the knowledge of your HIV status, which is a requirement of a conviction,” she says. “That then deters open discussions with health-care providers and creates a lot of stigma that prevents people from getting on ART.”

HIV non-disclosure charges not science-based, doctors say

More than 180 people to date in Canada have been charged for not disclosing their HIV status, according to CHALN. In most cases, they were charged with aggravated sexual assault, which carries a maximum life sentence and a possible sex offender designation.

In 2011, for example, an HIV-positive woman north of Toronto had oral sex with a man and unprotected vaginal sex with two others. She didn’t disclose her HIV status and was charged with three counts of aggravated sexual assault.

Though she was acquitted for the oral sex based on the unlikelihood of transmission, the trial judge convicted her for one of the counts related to vaginal sex — even though she was taking her medication, had an undetectable viral load and no transmission occurred — because the victim was “exposed to a significant risk of the transmission of HIV and that risk endangered his life.”

Law is a ‘blunt instrument’

Chu says the law needs to be updated given the recent scientific evidence that shows even condomless vaginal sex with an HIV-positive-but-undetectable partner carries very low risk of transmission.

Criminal law, she says, is too much of a “blunt instrument” to regulate a moral problem with so many grey areas. She says most people fail to disclose their status because they fear rejection, physical violence, or, for example, because they fear the disclosure may be used against them later.

“A woman who might be living in an abusive relationship who is positive might decide to go to the police to charge their partner with violence and that partner might threaten to say they didn’t disclose their HIV status to them,” Chu says.

She sees many possible solutions.

The provinces enforce the Criminal Code, so they have the power to rewrite prosecutorial guidelines on what should and should not be pursued by the Crown.

The federal government could also change the Criminal Code to match international guidelines put forward by UNAIDS, the Global Commission on HIV and the Law and others. This would include limiting criminalization to cases where a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact infect the negative partner with the virus.

More education and testing

Edward says Canada also needs to invest more in HIV education and testing outside of the major cities, where the stigma is greatest and HIV rates are often higher, including in some First Nations communities.

“If you live outside of a metro area, those barriers can be significant.”

He also says Canada needs a national HIV strategy that includes investing in PrEP for HIV-negative people who are at higher risk of contracting the virus.

“We need broader access,” he says. “We need insurance companies to be more generous in their support. You have to have a really high degree of privilege to be able to access it,” he says.

“You have to know how the medical system works. Mine is covered by insurance. It took probably a good two, three weeks of back and forth with my insurance company to access it, including being able to advocate for myself, able to speak from my perspective with righteous indignation.”

Delays

Health Canada expedited the process for approving Truvada as PrEP. It signed off in February, months before many expected, and emphasized Truvada should be used along with condoms.

But Quebec is the only province to publicly fund the drug, while the rest wait for the results of the Common Drug Review (CDR), which is expected to be complete in the fall. From there, the provinces will make their own decisions on whether to cover it, which could take months.

Michael Fanous, a Toronto-based pharmacist who specializes in HIV medications, thinks there should be an expedited process to get the drug listed for provincial drug plans.

“We’ve run into this problem for 30 years in treatment as new HIV drugs take much longer to get approved in Canada and then even longer to get covered.”

Edward’s organization in Vancouver, HIM, isn’t waiting around for government action. Instead, it launched getpreped.ca to get more people educated about PrEP.

“It gets back to almost every day in this province, someone is going to receive an HIV diagnosis … and at least for some of them, PrEP could have prevented that diagnosis,” he says.

“If you want to talk criminality, that’s criminal to me.”

Canada: Advocates call for change to HIV disclosure law

Canada’s HIV disclosure law ‘unfair,’ say advocates calling for change

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair,” said an advocate from the Canadian HIV/AIDS Legal Network.

The recent arrests of two men accused of failing to disclose their HIV status to their sexual partners have led to renewed calls for changes to legislation that advocates say contributes to the fear and stigma surrounding the disease.

Canadians with HIV are legally required to disclose their status to their partner before engaging in sexual activity. Those who fail to do so can be charged with aggravated sexual assault, whether the virus is transmitted or not.

If convicted, they are automatically added to the sex-offenders registry and face a maximum sentence of life in prison.

But advocates say Canada’s HIV disclosure law has never been shown to deter unsafe sexual practices. Rather, they argue, it has made patients feel more isolated and fearful.

“People living with HIV tend to come from many marginalized groups already,” said Sandra Chu, of the Canadian HIV/AIDS Legal Network. “(The law is) adding a further layer of marginalization and fear.”

Chu said she would like Canada to adopt HIV legislation proposed by the United Nations Programme on HIV/AIDS (UNAIDS), which would prosecute only people who knowingly and intentionally transmit the HIV virus to their partner.

There is a lack of definite evidence on whether criminalization deters HIV patients from exposing others, UNAIDS said in a report released in 2012. It also said that studies from Canada and the U.S. show few people with HIV are aware of the legal requirements pertaining to their illness, and those who are probably already disclose their status to partners.

The Public Health Agency of Canada (PHAC) has said people with HIV/AIDS report increased feelings of fear and stigma as a result of high-profile non-disclosure criminal cases.

“Stigma has a negative impact on prevention efforts by contributing to secrecy and HIV non-disclosure, reinforcing HIV risk and discouraging condom use in some communities,” the agency said in a 2015 report.

A spokesman for the Department of Justice said the Canadian government is “aware of some of the criticisms of non-disclosure laws and appreciates the difficult circumstances individuals face” with regards to HIV disclosure.

In 2012, UNAIDS reported that Canada had convicted more people in connection with HIV non-disclosure, exposure and transmission than any country in the world except the United States.

The Canadian HIV/AIDS Legal Network says there have been at least 180 people charged with HIV non-disclosure-related offences in Canada — with five new cases in 2015.

Earlier this month, Toronto police charged a man with sexual assault and aggravated sexual assault for allegedly having unprotected sex with a woman multiple times over the course of 18 months without telling her he had HIV.

A few days later, Canadian Forces investigators charged a civilian cadet instructor with four counts of aggravated sexual assault for allegedly failing to disclose his HIV status before engaging in a relationship with a member of the military.

In a 1998 ruling, the Supreme Court of Canada said a legal requirement to disclose HIV will, “through deterrence … protect and serve to encourage honesty, frankness and safer sexual practices.”

The court clarified its stance in 2012, ruling that a person with HIV does not have to disclose it to a partner as long as a condom is used and the person has a “low viral load.” A viral load measures the number of copies of the HIV virus per millilitre of blood — the lower a viral load, the lower the chance of transmitting HIV.

However, a group of more than 50 Canadian doctors and researchers released a statement in 2014 saying that “a poor appreciation of the science related to HIV contributes to an overly broad use of the criminal law against” individuals living with the virus.

Using a condom during sexual intercourse is enough to render the risk of transmission negligible, the group said, regardless of viral load.

The fact that people can be charged with mere exposure when there’s “a negligible risk” of transmission is unjust, said Chu.

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair.”

Originally published in The Star

Uganda: ABC Radio interviews HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi

Listen to Natasha Mitchell compelling interview with HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi on the challenge to the problematic HIV criminalisation statutes within Uganda’s HIV/AIDS Prevention and Control Act.

This seven minute audio report from AIDS 2016 in Durban is excerpted from ABC Radio’s longer podcast, The brutal politics of a virus that won’t go away, by reporter Natasha Mitchell for Background Briefing.

Listen to and/or download the full podcast and read the transcript on ABC Radio’s website.

The transcript of Natasha’s HIV criminalisation-related report is below.

Natasha Mitchell: In Uganda, around 7% of people are infected, and while the country is recognised for taking decisive action against HIV, the government’s harsh attitude and laws is dramatically undermining that progress.

Rosemary Namubiru is a 66-year-old nurse, mother and grandmother. She found out she had the virus just three years ago, and she thinks she got it from a patient.

Rosemary hadn’t yet disclosed her status at work, but when she was wrongly accused of intentionally infecting a patient, before she knew it the full force of the law was thrown at her.

Rosemary Namubiru: I saw the police coming, and they were holding me, ‘You are under arrest for murder.’ Then they called the media, so when I was in that room they called and told me, ‘Come out.’ I came out and I found a crowd of cameramen, media people.

Natasha Mitchell: Outside the police station?

Rosemary Namubiru: Yes.

Natasha Mitchell: Rosemary was charged with attempted murder after she accidentally pricked herself with a needle while treating a child. The mother watching on was worried and reported Rosemary. While the child wasn’t infected, thankfully, all hell broke loose when Rosemary’s HIV positive status was confirmed and made public. Rosemary was arrested and paraded in front of the media, who labelled her a ‘killer’ and a ‘murderer’.

Rosemary Namubiru: They were trying to manhandle me. They were taking photographs of me. They were calling me all sorts of names, ‘Murderer, killer. Look at this woman, a killer, a murderer.’ And it went all over the country in the national newspapers, in the English newspapers. ‘That murderer, the murderer. If we see her we shall beat her, we shall kill her.’ It was the talk of town. Even my village. Initially, they labelled it as ‘murder’. Then it was reduced, ‘attempted murder’, and then it was eventually changed into ‘negligence’.

Natasha Mitchell: Rosemary was publicly shamed, and sentenced to three years in prison for negligence.

Lawyer Dora Kiconco Musinguzi is the executive director of Uganda Network on Law, Ethics and HIV/AIDS or UGANET.

Dora Kiconco Musinguzi: Rosemary’s story sent so many chills across the country amongst people living with HIV. She was the headline of the news. ‘Killer nurse’. ‘Monster nurse’. She was treated so cruelly at the police, she was beaten, her hair was pulled, right, left, and centre, and that caused a lot of fear among people living with HIV. So we see discrimination written on walls, written in political statements, discrimination is still real, so that is where we are. That’s Uganda’s story currently.

Natasha Mitchell: Rosemary Namubiru was released at the end of 2014 after her case received international attention.

In the same year, Uganda introduced the HIV Prevention and Control Act. At face value it’s about controlling HIV, promoting testing and treatment, and preventing discrimination. Uganda’s not alone here, HIV specific criminal laws are on the increase worldwide, and also exist in America and Europe.

But Dora Kiconco Musinguzi and colleagues are leading a legal challenge in the Ugandan Constitutional Court against key parts of the law, including certain provisions that demand disclosure of your HIV status, and criminalise those who transmit the virus intentionally.

Dora Kiconco Musinguzi: The question is at what point do you establish intention. In a circumstance where we have so many people that have not yet tested, how do you know that a person infected another? So anybody could blame the other for infecting them, and what should be a human condition, a disease, then becomes a criminal object and lives break, and families break, and you know how the media picks on this, and totally takes it out of context. We believe it’s going to be really dangerous.

Natasha Mitchell: At least half of the Ugandan population still don’t know their HIV status. And Dora Kinconco Musinguzi believes the HIV Prevention and Control Act will exacerbate their reluctance to get tested and treated and so cause the virus to spread.

Dora Kiconco Musinguzi: So if people fear, relate HIV testing with obligation, with imprisonment, with undue power of the law, we believe this is going to create a bigger barrier to testing, and that fails the objective of prevention and control because then we shall have more people left out of the treatment area.

Natasha Mitchell: And because pregnant women have to be tested for HIV, they’re at greater risk under this law.

Dora Kiconco Musinguzi: They are going to be found to be HIV positive fast, and if they don’t disclose then they are in the ambit of attempting to transmit, so that makes the women criminals. So there’s lots of unanswered questions. And yet on the other side science has given us hope that people who test and take their medicines very well, they become less infectious, so they don’t transmit HIV. The law neglects this science. The law does not consider what public health specialists are saying, but the Ugandan government has not put this into consideration.

Natasha Mitchell: The experience of Rosemary Namubiru is a cautionary lesson about why laws that criminalise HIV positive people can be so bad for public health.

Dora Kiconco Musinguzi: You shouldn’t be criminalised. These cases could be handled in another way. We are really asking the Constitutional Court to find out whether this is the law that will present and control HIV, and still afford dignity and non-discrimination for living with HIV.

Natasha Mitchell: Based on your experience, Rosemary, what do you feel about the criminalisation law in Uganda against people with HIV?

Rosemary Namubiru: It hurts. Ignorance kills, but it hurts when people just carry on, and people keep on saying, ‘Oh, that one, that one.’ Me, I didn’t get it sexually. It was during the course of saving lives of human beings, so it is not something to laugh about. I wouldn’t wish anybody to go through what I went through.

Natasha Mitchell: Rosemary Namubiru. She’s now retired from nursing.

USA: New report shows LGBTQ minorities face discriminatory laws and arrests

These Stats Prove LGBTQ Minorities Face ‘Unjust’ Treatment in US Criminal Justice Systems

A new report released Monday on LGBTQ people and the U.S. criminal justice system shows the community is overrepresented in jails and prisons. Additionally, LGBTQ people who are young and of color face disproportionate levels of homophobia and transphobia, and are subject to discriminatory laws and arrests that lead to their incarceration.

Analyzed data from U.S. Department of Justice, public polling and a U.S. inmate population survey shows that one in five people in juvenile justice detention facilities identifies as lesbian, gay, bisexual, transgender orquestioning. Among them, 85% are racial minorities, according to the study, released by the Center for American Progress.

The report, titled “Unjust: How the Broken Criminal Justice System Fails LGBT People of Color,” pegs the overrepresentation of LGBTQ people of color in the criminal justice system to three major factors — racism and anti-LGBTQ stigma in their communities, drug and HIV criminalization laws, and local policing priorities that result in racial profiling.

“Whether they are interacting with law enforcement, going to court, confined in prisons or jails, or preparing for reentry into society, the story is the same: LGBT people of color face an extraordinarily high risk of discriminatory treatment and abuse in our criminal justice system,” Ineke Mushovic, executive director of the Movement Advancement Project, said in a statement about the data analysis. MAP and seven other criminal justice reform and LGBTQ advocacy organizations partnered with the Center for America on the report.

The report’s focus on LGBTQ people of color was deliberate, given the most recent polling on this population and what federal data reveals. A 2012 Gallup survey of U.S. adults revealed that 33% of adults who identified as LGBTQ were people of color. People of color and women were also more likely than whites to identify as such, according to the survey results.

LGBTQ overrepresentation in the criminal justice system — they accounted for 7.9% of the U.S. jail and prison population in 2011-2012, but just 3.4% of the overall U.S population — is a reflection of laws that criminalize their identity and behaviors, stated the report.

For example, HIV criminalization laws, which penalize behaviors of LGBTQ and non-LGBTQ people living with HIV, even if their behavior carries no risk of transmitting or exposing the uninfected to the virus, were a response to the health crisis in the 1980s and 1990s. More recent laws, such as North Carolina’s 2016 bathroom bill restricting public bathroom access to the gender marked on an individual’s birth certificate, also present a threat of incarceration for those who are transgender or gender nonconforming.

USA: Clinton commits to work with advocates and HIV and AIDS organizations to reform outdated HIV criminalization laws

By Karen Ocamb

The history books will record that the 2016 presidential race produced the first woman and the first Reality TV star as nominees from the two major political parties. But while the world stares agog at the American political process following the Republican and Democratic conventions last month, a critical national issue is being depressingly overlooked—the dire impact of HIV on young gay and bisexual men of color.

In keeping with the spirit of her meeting with HIV/AIDS activists last May, Hillary Clinton’s campaign included Georgia HIV/AIDS activist Daniel Driffin on the roster of speakers at the DNC convention on Wednesday, July 27.

“Together with more than 1 million Americans, I’m living with HIV,” said Driffin, 30, the first HIV-positive speaker at the DNC since 2004. “Who is most at risk? Young, gay black men. Men like me. In fact, one in two black gay men will be diagnosed in their lifetime if the current rates continue. And if we had enough data, I’m sure black transgender women are more at risk, too.”

Stop. Think about that: “one in two black gay men will be diagnosed in their lifetime if the current rates continue.” Driffin did not speak in primetime so it is unclear how many were moved by his words.

But his was not a slap-dash rhetorical comment crafted for effect. These are statistics from the Centers for Disease Control. Last February, the CDC reported: “If current HIV diagnoses rates persist, about 1 in 2 black men who have sex with men (MSM) and 1 in 4 Latino MSM in the United States will be diagnosed with HIV during their lifetime.”

In fact, evidence presented at the 2016 International AIDS Conference in Durban, South Africa July 18-22 (during the Republican Convention) suggests that HIV is becoming a young person’s disease—worldwide.

“While all other demographics are in decline, more and more young people are being diagnosed with the disease. Globally, 11.8 million people ages 15-24 are currently living with HIV/AIDS, with this demographic also accounting for more than half of new infections. In the U.S., young Black, gay and bisexual men make up the largest population of people who are infected, and young women of color bear the largest burden of the disease among women in the U.S. Globally, adolescent and young women are fast becoming the most at risk: in Sub Saharan Africa, women ages 15 to 19 make up two thirds of the population of infected adolescents,” reports Kali Villarosa for The Black AIDS Institute.http://www.aids2016.org

Stigma is the key to the ongoing infections.

“Even among young gay and bisexual men, who initially bore the brunt of the disease and its associated deaths, discussion remains unsophisticated and un-textured. My friend Wen, an openly gay 20-year-old from Brooklyn, told me: ‘The disease is seen as a joke, but those diagnosed are shamed. There still remains a lot of stigma around the disease and people are scared to get tested,’” Villarosa wrote.

“But this stigma often perpetuates the risk of these already vulnerable communities,” she continued. “A study of over 15,000 high school boys released [at the IAC] by the Centers for Disease Control and Prevention earlier this week found that gay and bisexual teen males were no more likely than their straight peers to engage in risky sexual behavior, but still had a higher chance of contracting HIV. It was actually homophobia, bullying and violence that spread the disease—not promiscuity, alcohol and drugs and avoiding condom use.”

That CDC report also reveal what many suspected but could not verify—the invisible gay/bi drug crisis and its connection to HIV infection. “Overall, MSM – including those who inject drugs – account for 60 percent of the 1.2 million people living with HIV in the United States. In 2014, 13- to 24-year-olds accounted for more than one in five (22 percent) HIV diagnoses. Among the 13- to 24-year-olds diagnosed with HIV in 2014, 80 percent were gay and bisexual males.”

Gasps, anyone?

Having a long history of involvement with both young people and the AIDS crisis— including losing friends to AIDS such as Los Angeles-based Bob Hattoy who spoke at Bill Clinton’s nominating convention in 1992—Hillary Clinton may be starting to feel like an AIDS Movement mother herself after hearing Driffin and learning of the new International AIDS statistics.

Clinton’s Republican opponent Donald Trump, meanwhile, had an early history with AIDS, attending fundraisers thrown by his beloved socialite sister-in-law Blaine Trump, actively on the board of New York City’s “God’s Love We Deliver.” It is unknown if Donald Trump ever actually gave money or only showed up for appearances. He has not, however, offered any plans for ending the HIV/AIDS epidemic during his presidential campaign nor does he announce a position on his website.

Clinton, however, has a detailed AIDS platform on her website and added to her “comprehensive agenda” in a post-convention press release. She committed to:

• Convene an “End the Epidemic” working group to adopt aggressive and attainable timelines for ending AIDS as an epidemic in the United States and globally. Clinton’s Office of National HIV/AIDS Policy will immediately begin to engage a wide range of experts, advocates, and stakeholders to adopt timelines for ending AIDS as an epidemic in the United States and globally.

• Work to fully implement and strengthen the National HIV/AIDS Strategy to meet these timelines. Clinton’s Office of National HIV/AIDS Policy will work to fully implement the National HIV/AIDS Strategy, and strengthen it to align with the timelines developed for ending AIDS as an epidemic. Particular emphasis will be placed on expanding evidenced-based prevention, treatment, and community outreach initiatives for at-risk groups, including black men who have sex with men (MSM), transgender individuals, African American women, and injection drug users. She will also account for regional variations, like the particular needs of the southeast corridor of the United States.

• Launch a campaign to end the stigma and discrimination associated with HIV and AIDS. Nearly 40 years have passed since the HIV/AIDS crisis first began, and yet even with everything we have learned, intolerance and stigma still exist. This stigma manifests itself in our criminal laws, and also serves as a barrier to effective prevention and treatment. That’s why, as president, Clinton will launch a campaign to end stigma associated with HIV/AIDS. She will work to reform outdated HIV criminalization laws, aggressively enforce the Americans with Disabilities Act, and partner with advocacy groups and community organizations to conduct public education.

Indeed, stigma is like a boulder dropped in the middle of a lake—the ripple effects are large and possibly dangerous, especially to young black men and women “wrestling with the idea that people think you’re a threat . . . from the beginning,” says writer Kai Wright. “So that’s your starting point for many inside institutions. The harsh discipline that we’ve seen scale up in schools has been uniquely reserved for black students. We know that the harsh police policies have been uniquely reserved for black neighborhoods. So we know what it means for the system: this cultural idea that young black men, and again for women too, that they are disruptive threats, that people see you as a monster.”

Adding to the context of the real and perceived criminalization of black bodies and resulting internalized stigma that might inhibit HIV testing is the fact that two-thirds of American states and territories have laws criminalizing HIV.

“[P]eople with HIV are potentially subject to prosecution for non-disclosure, potential exposure or transmission in every jurisdiction under general criminal statutes,” including Texas and New York, that do not have HIV-specific statutes, says the Sero Project. That means that for people who are HIV positive, “a contentious relationship, a personal misunderstanding or even a minor infraction of the law can lead to a long jail sentence, public shaming and registration as a sex offender. HIV-specific criminal charges have been filed more than 1,000 times.”

A 2011 analysis by the CDC and Department of Justice researchers found that the laws vary by state, behavior and penalties. But the majority of laws were passed before antiretroviral therapy reduced HIV transmission and before studies indicated the success of pre-exposure prophylaxis (PrEP). According to an extensive, detailed 2013 ProPublica investigation, at least 35 states have laws that criminalize exposure of HIV or failure to disclose HIV status. That’s a felony crime in 29 states and 25 states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission.

“People with HIV have even done time for spitting, scratching or biting. According to the federal Centers for Disease Control and Prevention, spitting and scratching cannot transmit HIV, and transmission through biting “is very rare and involves very specific circumstances” — namely, “severe trauma with extensive tissue damage and the presence of blood.” Many law enforcement officials and legislators defend these laws, saying they deter people from spreading the virus and set a standard for disclosure and precautions in an ongoing epidemic,” ProPublica reports.

ProPublica found and scoured a record 1,352 HIV-related criminal cases from 2003 to 2013, with 541 cases resulting in conviction.

The real shocker for those unaware of HIV criminalization laws is that most laws don’t require an actual transmission of or even an exposure to HIV for someone to be arrested, charged, prosecuted, convicted and receive a harsh sentence. Additionally, it isn’t a requirement for the HIV-negative partner to even file a complaint. According to a PBS report, “there have been cases of HIV-negative partners who go to the ER for PEP, don’t file charges, and their partner is still prosecuted under HIV criminalization laws.”

The issue of HIV criminalization came to national LGBT attention inJuly 2015 after Michael Johnson, a 30-year old, Black Missouri college student and star wrestler, was sentenced to 30 ½ years for the felony of having sexual contact without documenting that he had disclosed his HIV status.

“The criminal statute that Michael Johnson was convicted of violating was originally passed in 1988, at a time when HIV was considered a ‘death sentence.’ Today, with proper treatment, HIV is a chronic, manageable disease and those with HIV can expect to live a full, healthy life. Yet violation of the Missouri law is a class A felony, with a sentencing range of 10-30 years or life imprisonment. Other class A felonies include murder or child abandonment resulting in death. Punishing Michael Johnson as if he is a murderer because state officials have failed to address a severely outdated, irrational criminal law is not only fundamentally unfair, it is barbaric,” said Mayo Schreiber, Deputy Director of The Center for HIV Law and Policy.

“HIV should be treated as a public health issue not as a criminal one. Legally requiring disclosure privileges the lives of White people not living with HIV over Black people who are living with HIV,’ wrote 89 Black gay men from The Counter Narrative Project.

A 2013 study by the National Institutes of Health in Nashville, Tennessee found that most of those convicted under prostitution and HIV criminalization laws were more likely to be black than white. “We conclude that enforcement of US HIV-specific laws is underestimated. Fifty-two arrests over 11 years were recorded in one jurisdiction. Over half of the arrests involved behaviors posing minimal or no HIV transmission risk. Despite concerns about malicious, intentional HIV transmission, no cases alleged malice or intention,” the abstract says.

New data indicate that the US is second only to Russia in HIV criminalization cases from April 2013 to Oct 2015. Additionally, a new report issued Thursday, Aug. 4, entitled Unjust: How the Broken Criminal Justice System Fails LGBT People of Color, examines “how racism and anti-LGBT discrimination combine to make LGBT people of color particularly vulnerable to entering the system and facing unfair and abusive treatment once they are in it,” according to a press release from lead authors the Movement Advancement Project (MAP) and the Center for American Progress.

“Whether they are interacting with law enforcement, going to court, confined in prisons or jails, or preparing for re-entry into society, the story is the same: LGBT people of color face an extraordinarily high risk of discriminatory treatment and abuse in our criminal justice system,” said MAP Executive Director Ineke Mushovic.

In another startling statistic, the report says that “one in five young people in U.S. juvenile justice facilities identify as LGBTQ, and 85% of these individuals are youth of color.” The report also points out being treated unjustly by law enforcement, courts, immigration authorities and other programs puts LGBT people of color at grave risk.

“Statistically, it is quite clear that the criminal justice system has prospered from the disproportionate impact it has had on black and brown people. As LGBT people of color, this impact is twofold as our multiple identities too often represent threats and garner disrespect,” said Isaiah Wilson, External Affairs Manager of the National Black Justice Coalition. “If we are not resolute to acknowledge and address this reality, we will lose a generation of unapologetic, young LGBT people of color to the flaws of our justice system.”

The Unjust report specifically identifies three factors in creating the overrepresentation of LGBT people of color in the system: “racism combined with pervasive anti-LGBT stigma and discrimination in communities, schools and families; discriminatory enforcement of drug laws and HIV criminalization laws; and policing strategies and tactics that increase the likelihood of LGBT people of color being subject to police stops, arrest and incarceration.”

The report also focuses on the issues LGBT youth of color face at home, in school, or in their communities that result in them “spending some or all of their time living on the street, putting them at increased risk of encountering law enforcement and having their lives criminalized.”

The inequities of the criminal justice system regarding race, sexuality and HIV are stark—and political.

Through his appearance at the DNC and his work for LGBT equality and HIV awareness in Georgia, Driffin works hopes to help his peers.

“We know how to prevent the virus now. We know how to diagnose the virus now. We know how to treat it. We know how to suppress it,” Driffin said to millions watching the convention. “So as an organizer, as an advocate, as a black man, as a gay man, as a man living with HIV, I ask you: Go get tested, and then go vote.”

Originally published in EQ CA

Analysis: How is Russia’s HIV-specific law being used to prosecute women living with HIV?

(For Russian version, please, scroll down)

At the beginning of 2016, a military officer from Moscow discovered that he was HIV-positive during routine testing. Later, his wife Natalia, who had tested positive for HIV several years ago, admitted that she had been afraid to disclose her HIV-positive status because she feared violent reprisals from her husband. The officer went to the police to commence criminal proceedings against Natalia, and the investigation continues. The media – as in most countries, our only source of information on cases like this – has not yet provided much more information about the case, so we do not know how long Natalia was forced to hide her HIV-positive status from her husband because of fear of violence.

This is not the only case started against a woman for alleged HIV transmission in 2016.

In January, 24-year-old Nadezhda, who lives in the Amur Oblast in the Russian Far East, was found guilty of charges of alleged HIV transmission to three men, under part 1, Art. 122, and part 3, Art. 122 of the Criminal Code (‘infecting others with HIV, knowing about the presence of this disease). She was sentenced to four years in a penal colony. Nadezhda appealed the verdict, but the panel of judges upheld both the verdict and her sentence.

More recently, in the summer of 2016, a 33-year-old woman from Bryansk, 379 kilometers southwest of Moscow, was prosecuted for allegedly infecting her male partner with HIV. The court used evidence that she was registered at an AIDS centre since 2007 against her, since she met the man in 2014. However, the court was relatively lenient, and she was given a three year suspended sentence followed by a three year probation period. In addition, consistent with best practice, her name was not disclosed in the media, in contrast to Nadezhda’s whose name was published in the news release by the Press Service of the Prosecutor’s Office.

At AIDS 2016 in Durban last month, the HIV Justice Network revealed new data showing that Russia now tops the global HIV criminalisation league table. We found reports of at least 115 arrests, prosecutions and/or convictions in Russia during the 30-month period: April 2013 to October 2015.

We have now collected eleven stories from the Russian media about women convicted under Article 122.

Since 2007, at least three of these women were sentenced to more than four years in prison for alleged HIV transmission to one or more partners. Another woman received a sentence of one year, seven months in prison, and a further two women had a suspended one-year and three-year sentence. In one case the court gave a 20 year-old woman 6-month’s probation. Verdicts for three cases are unknown.

It not just alleged HIV transmission that is being prosecuted; we also know of a 2013 case of a woman from the town of Kungur in the Perm Oblast, who was sentenced to spend one year and three months in a penal colony for potential or perceived HIV exposure: her partner was not infected.

Of particular concern is that in all of the above cases, evidence of prior knowledge of HIV-positive status came from medical records. In Russia, each newly-diagnosed person must sign an informed consent form indicating that he or she is informed of their potential criminal liability under Article 122 for HIV exposure and transmission. This informed consent is attached to their medical history, ready for an official request.

Furthermore, in cases of alleged HIV transmission, the public prosecutor did not adequately investigate the causal link between the accused and the complainant, because there is no test that can establish the timing and direction of transmission without any doubt. It is possible, for example, that some of the male complainants were infected before they had relationships with their female partners and before they themselves were diagnosed HIV-positive.

Article 122 was introduced into the Criminal Code, in particular, to protect women from HIV infection, but it is clear from our research that the law has been applied against women in Russia.

There are many reasons why women are vulnerable when HIV criminalisation intersects with gender inequality and violence. These include, but are not limited to, the following:

Women often do not make decisions about when to have sex, with whom, and whether or not to use condoms.
Women are often economically dependent on their partner, which increases the inequality in their relationships.
Unfortunately, there is evidence that intimate partner violence often occurs when a woman discloses her HIV status.
Fear of prosecution prevents women from getting tested, knowing their status, and getting HIV treatment, because many laws are applied precisely against those who know about their diagnosis.

There is a hope that shedding light on what is going on in Russia will help mobilize people around these unjust prosecutions. As new cases emerge we will continue to report on them on the HIV Justice Network website.

Evgenia Maron is the HIV Justice Network’s EECA Consultant

В начале 2016 года военный из Москвы во время регулярного обследования обнаружил, что инфицирован ВИЧ . Позднее его жена Наталья, которая получила положительный результат на ВИЧ за несколько лет до этого, пояснила, что боялась рассказать о своем ВИЧ-позитивном статусе из-за страха насилия и возмездия со стороны своего мужа. Военный обратился в полицию, чтобы возбудить дело против Натальи, расследование продолжается. СМИ – во многих странах наш единственный источник информации о таких делах, как это, – не дают много данных об этом деле, поэтому мы не знаем, сколько лет Наталья вынуждена была скрывать свой ВИЧ-позитивный статус от мужа из-за страха насилия.

Это не единственное дело против женщин за передачу ВИЧ-инфекции в 2016 году.

В январе 24-летняя Надежда, которая живет в Амурской области на Российском Дальнем Востоке, была признана виновной в передаче ВИЧ трем мужчинам по части 1 ст. 122 и части 3 ст. 122 Уголовного Кодекса (“заражение другого лица ВИЧ-инфекцией лицом, знавшим о наличии данного заболевания”). Ей было назначено наказание в виде четырех лет лишения свободы с отбыванием в исправительной колонии общего режима. Надежда обжаловала приговор, но судебная коллегия оставила его в силе.

Совсем недавно, летом 2016 года, против 33-летней женщины из Брянска, что в 379 километрах к юго-западу от Москвы, было возбуждено уголовное дело за предположительное заражение своего друга ВИЧ. Суд использовал против нее тот факт, что женщина состояла на учете в СПИД-центре с 2007 года, а этого мужчину она встретила в 2014 году. Однако, решение суда было относительно мягким, женщине назначили условное лишение свободы на три года с таким же испытательным сроком. Кроме того, как и полагается в лучших практиках, ее имя и фамилию в СМИ не указывали, в отличие от Надежды из предыдущей истории, чье имя было опубликовано в релизе пресс-службы прокуратуры.

На конференции AIDS 2016 в прошлом месяце в Дурбане, Сеть «Правосудие и ВИЧ» сообщила о новых данных, которые показывают, что Россия возглавляет топ лиги глобальной криминализации ВИЧ. Мы нашли сообщения о по меньшей мере 115 арестах, преследованиях и/или обвинениях в России в течение 30 месяцев с апреля 2013 года по октябрь 2015 года.

Мы собрали одиннадцать историй российских СМИ о женщинах, обвиняемых по статье 122.

Начиная с 2007 года, по меньшей мере трое из этих женщин были приговорены к более, чем четырем годам в тюрьме предположительно за заражение ВИЧ одного или более партнеров. Еще одна женщина получила oдин год семь месяцев тюрьмы, еще две женщины – условный срок продолжительностью один год и три года. В одном случае суд приговорил 20-летнюю женщину к 6-месячному условному сроку. Вердикты по трем случаям не известны.

Преследуется не только предположительное заражение ВИЧ; мы также знаем о деле 2013 года против женщины из города Кунгур в Пермской области, которую приговорили к одному году трем месяца в исправительной колонии за потенциальное или предположительное поставление в опасность заражения ВИЧ: ее партнер не заразился.

Особую обеспокоенность в этих рейсах вызывают доказательства, что обвиняемые знали о своем ВИЧ-позитивном статусе, были основаны на медицинских историях. В России каждый вновь диагностированный человек должен подписать информированное согласие, где указано, что он или она проинформированы о возможной уголовной ответственности по статье 122 за постановку в угрозу заражения и заражение ВИЧ. Это информированное согласие хранится вместе с медицинской историей пациента, готовое для официального запроса.

Более того, в случаях предположительной передачи ВИЧ, прокурор не исследовал адекватно причинно-следственную связь между подозреваемым и потерпевшим, потому что не существует теста, который может установить время и направление передачи без всякого сомнения. Например, возможно, что некоторые потерпевшие мужчины были заражены ВИЧ до того, как у они вступили в отношения с их партнерами-женщинами, и перед тем, как они сами получили ВИЧ-позитивный диагноз

Статья 122 была введена в Уголовный Кодекс, в частности, чтобы защитить женщин от ВИЧ-инфекции, но из нашего исследования станосится ясно, что в России этот закон применяется против женщин.

Существует много причин, почему женщины более уязвимы, когда криминализация ВИЧ пересекается с гендерным неравенством и насилием. Это касается, но не ограничивается, следующим:

Женщины часто не принимают решения о том, когда и с кем заниматься сексом, использовать презервативы или нет.
Женщины часто зависимы экономически от своего партнера, что усиливает неравенство в их отношениях.
К сожалению, есть данные, что насилие со стороны интимного партнера часто следует за тем, когда женщина раскрывает свой ВИЧ-статус.
Страх уголовного преследования мешает женщинам тестироваться, знать свой статус и получать лечение ВИЧ, потому что многие законы применяются исключительно против тех, кто знает о своем диагнозе.

Мы надеемся, что если пролить свет на то, что происходит в России, это поможет мобилизации людей против этого несправедливого преследования. Так как появляются новые кейсы, мы продолжим информировать о них на сайте Сети “Правосудие и ВИЧ”.

USA: New coalition in Indiana determined to modernised HIV criminalisation laws

HIV Modernization Movement-Indiana (HMM) operates under three guiding principles.

Many Indiana state laws regarding HIV make it a crime to have the virus—commonly referred to as HIV criminalization—and HIV Modernization Movement-Indiana (HMM), a newly formed coalition, seeks to change that. The group, which is made up of students, professors, nonprofit leaders, legal advisers and more, examines Indiana’s HIV laws, in hopes of modernizing them based on current research.

HHM states that its guiding principles for modernizing laws are:

A criminal law must be based on criminal intent to infect and conduct likely to transmit.
A criminal law must only include punitive measures that are proportionate to the harm.
A criminal law must not be specific to HIV and must exclude diseases that are airborne/casually transmitted.

HMM started after POZ founder Sean Strub, who leads the anti-criminalization advocacy group Sero Project, spoke at Indiana University-Indianapolis in December 2015. Strub and Scott Schoettes, Lambda Legal HIV project director, discussed the problems of criminal law in Indiana with a group of 40 community members. Following that, 10 individuals attended the HIV Is Not a Crime II conference in May to be trained on law reform and subsequently formed HMM. The group, which is made up of HIV-positive and HIV-negative people from diverse backgrounds, mostly from the Indianapolis area, meets once a month.

Longtime HIV/AIDS activist Carrie Foote, PhD, leads the group. An associate professor at Indiana University-Purdue University Indianapolis, she was included in the 2015 POZ 100, which celebrated long-term survivors of the virus.

“Current Indiana laws that criminalize HIV are based on outdated assumptions about HIV and single out HIV to be handled differently than other sexually transmitted infections, which also, if left untreated, can seriously harm a person,” Foote says. “Most of these laws were passed when far less was known about the actual routes and risks of HIV transmission and prior to the introduction of effective HIV treatments. The laws are also overly broad and subject to different interpretations, do not reflect best criminal law practices, have punishments completely disproportionate to any purported harm, and do not reflect the current science regarding how HIV is (and is not) transmitted.”

In an email exchange with POZ, Foote spells out specific HIV laws that HMM is targeting:

IC 16-41-7-1 (Carriers’ duty to warn persons at risk) and IC 35-45-21-3 (Failure of carriers of dangerous communicable diseases to warn persons at risk) criminalize nondisclosure of HIV status in cases where a person knows their status and engages in sexual or needle sharing activity that has been shown “epidemiologically to transmit a dangerous communicable disease, which in Indiana includes HIV and hepatitis B.”

IC 16-41-14-17 (Donation, sale, or transfer of HIV infected semen) and IC 35-45-21-1(b)-(c)(Transferring contaminated body fluids) make it a felony for HIV-positive persons to donate or sell their semen, blood or plasma.

IC 35-42-2-1(b2), (e), (g) (Battery) and IC 35-45-16-2(a)-(f) (Malicious Mischief) include sentence enhancement charges that make it a felony for HIV-positive persons to expose others to any bodily fluid, including those known not to transmit HIV, such as saliva.

HMM and Foote believe that these laws do little to prevent transmission and instead promote stigma and discrimination.

“One of the most troubling aspects of Indiana Code involves the Indiana Duty to Warn statute (IC.16-41-7), which requires a person living with HIV to disclose his or her HIV status to sex or needle-sharing partners,” Foote explains. “A person can be prosecuted for engaging in consensual sexual activities if they do not disclose, even in cases where no HIV transmission is possible. The same is true for the sentence enhancement criminal codes. Such enhancement occurs in situations where it is impossible to transmit HIV. As such, in Indiana, a person can be tried and convicted simply because of his or her HIV status, which is discriminatory and perpetuates HIV stigma.”

HMM is also working to reform public health practices, such as Indiana’s Recalcitrant Program,which accepts reports of HIV-positive persons accused of “violating the Indiana HIV disclosure law.” Coupled with counseling, the program has people sign a form saying they’ve been advised on the “Carriers’ duty to warn persons at risk” law.

“While the program may have some positive attributes, such as offering counseling services around disclosure, we have serious concerns about the program’s goal to ensure compliance with the Indiana Duty to Warn laws as a way to decrease the spread of HIV,” Foote says. “This is because the research shows that such laws do not prevent the spread of HIV, serve primarily to stigmatize PLHIV [people living with HIV] and are not best practices for public health policy.”

Indiana was brought into the spotlight a year ago when more than 100 new HIV cases in Austin, Indiana, were reported in an outbreak linked to opioid addiction. At this point, no one involved in the outbreak has been charged under any of the above statutes, yet as HIV-positive people, they now could be criminalized in the future if the laws remain as they are.

Indiana’s conservative current governor and the Republican nominee for vice president, Mike Pence, has historically stood against efforts proven to prevent HIV transmission, like needle exchange programs. Yet, Foote notes, these laws haven’t been touched in years.

“[There’s been] neutral effect on criminalization laws thus far, as our laws were mostly created in the early ’90s, and very [few people], if anyone, in Indiana has given much thought to even questioning those laws until now,” Foote continues. “That said, we do anticipate challenges to modernization and reform, given our conservative governmental leadership in Indiana but are hopeful that with education and strong advocacy efforts, modernization is inevitable to happen.”

To learn more about HMM, visit its website at hivmodernizationmovement.org, and follow them onFacebook and Pinterest.

Originally published in Poz

US: Mainstream criminal justice website uses quiz format to highlight how unjust HIV criminalisation is in the United States

Is It Time to Roll Back the Laws on Spreading HIV?

Take our quiz on which criminal penalties remain in force.

In the wake of the HIV epidemic that began in the early 1980s, lawmakers throughout the country moved to criminalize behavior that threatened to spread the virus, enacting laws that imposed sometimes heavy fines and jail terms for infected individuals who failed to tell sex partners about their illness.

Florida, Tennessee and Washington were the first states to enact HIV-related criminal laws, in 1986. A 1988 report from the Presidential Commission on the HIV Epidemic recommended that states establish such laws and many did. At present, more than 30 have HIV-related criminal laws.

But now that new therapies have greatly lowered the risks of transmission, advocates for those with HIV say these laws are too harsh and should be revised to reduce penalties, or be repealed.

While the laws were initially intended to help lower the rate of transmission and deter “risky behavior,” according to the commission report, recent studies have shown that the laws discourage testing, reduce disclosure and otherwise work against public health efforts. The Department of Justice in 2014 issued a guide for states to reform HIV-specific laws so that they are informed by current knowledge of HIV transmission, in addition to help prevent and treat HIV. While the number of new cases of HIV has remained stable (about 50,000 per year) between 2005 and 2014, gay and bisexual men as well as African-Americans continue to be most affected. The incidence of HIV among black and Latino men who have sex with men increased over the same period, the result being that the laws disproportionately affect them.

See how much you know about laws that potentially make living with HIV a crime.

Take the quiz here

AIDS 2016: Criminalisation is harmful and wrong, and is also damaging prevention strategies

Over 200 activists called for an end to HIV criminalisation throughout the world saying it unjustly harms and blames HIV positive people, damages prevention strategies and undermines national and international sexual health programs.

Earlier during the week some 200 people living with HIV, human rights activists and representatives of key populations gathered for a one-day meeting, held at Durban South Africa, challenging HIV criminalisation under the title “Beyond blame: challenging HIV criminalisation.”

The meeting, which preceded the International Aids Conference in Durban, heard individuals who have faced HIV criminalization recount the far-reaching personal, social and legal impacts of unjust prosecution on their lives and that of their families. Furthermore activists outlined how HIV criminalisation not only uses blame culture, harming not only HIV positive people, but also damaging prevention and undermining sexual health programs world-wide.

The meeting demanded that HIV scientists and clinicians become more involved in efforts to ensure that the application of the criminal law is consistent with best available evidence relating to risk, harm and proof in the context of HIV, as well as calls for members of parliament and the judiciary to end unjust HIV criminalisation.

Speaking with KaleidoScot, Edwin J Bernard, Coordinator at HIV Justice Network, who organised the meeting said: “The meeting included three HIV criminalisation survivors – including one, Kerry Thomas, who called in from behind bars in Idaho – highlighted that HIV criminalisation doesn’t just harm public health, it harms the lives of ordinary people living with HIV, who are often demonised, stigmatised and unjustly targeted by the law.

“Elizabeth Taylor’s grandchildren (and great-grandchild) Laela Wilding, Finn McMurray, Rhys Tivey, and Quinn Tivey were also there, and so incredibly moved, was also inspiring. They have pledged to make HIV criminalisation a key issue for the Elizabeth Taylor AIDS Foundation.

“Then on Tuesday morning, following Justice Edwin Cameron’s Jonathan Mann Memorial Lecture, more than 100 of us took to the stage demanding an end to HIV criminalisation. Justice Cameron welcomed us with open arms, literally! We chanted: WE HAVE A VIRUS! WE ARE NOT CRIMINALS! END CRIMINALISATION NOW!”

HIV medication, or antiretroviral (ARVs), is now highly effective to the point that people who have HIV and use ARVs properly are effectively non-infectious, a recent study found zero infection cases between mixed-HIV status couples. However, many new infection cases arise from people who are unaware of their HIV status – something that HIV criminalisation is likely to worsen, not help.

The general consensus among the scientific and medical communities – and HIV charities – is that ascribing personal blame for infection is neither reliable nor helpful, and that decisions on public health matters should be determined by cost-effectiveness and clinical need rather than moral judgements.

The UNAIDS guidance aims to “end overly broad criminalization of HIV non-disclosure, exposure and transmission on the basis that it “raises serious human rights and public health concerns”. it recommends “concentrating efforts on expanding the use of proven and successful evidence-informed and rights-based public health approaches to HIV prevention, treatment and care” and “limiting any application of criminal law to truly blameworthy cases where it is needed to achieve justice.”

The Oslo Declaration also suggests that “a better alternative [to criminalisation] is to create an environment that enables people to seek testing, support and timely treatment, and to safely disclose their HIV status.”

Activists pointed out that not only is criminalisation harmful and wrong, but it is counterproductive and even endangers prevention strategies. Martha Tholanah, a feminist activist from Zimbabwe, and director of the NGO Community and Enterprise Development against Stigma, told Kaleidoscot that she agrees “with the activists on calling for an end to criminalisation of HIV. It’s scary that the criminalisation cases are increasing. I wonder if the judicial services personnel ever look at the research and consider how the evidence produced can be considered before they tackle these cases. Criminlisation perpetuates stigma and instigates mental health problems.”

While Maurice Tomlinson, a Senior Policy Analyst at Canadian HIV/AIDS Legal Network, commented: “To paraphrase the UNAIDS report released in advance of the ongoing International AIDS Conference, continued criminalisation has stalled the global fight against HIV by driving persons away from effective prevention, treatment, care and support interventions. We can’t fight HIV with fear. We must respond with facts and human rights.”

Activists have also expressed concerns about Scots law, which they believe is doing a disservice to both people who have HIV and wider issues of public health.

Under Scots law, exposing or infecting someone with HIV are considered “culpable and reckless conduct”. These are common-law offences that carry a maximum penalty of life imprisonment, as opposed to five years in England and Wales. If the transmission of HIV is deliberate, it would be legally considered an assault. Scottish law focuses on behaviour (unlike English and Welsh law which focuses on the harm that results from such behaviour): thus exposing others to the risk of HIV transmission (‘HIV exposure’) can be prosecuted. The law however does not specifically mention HIV but has been used against HIV and hepatitis positive people.

Lisa Power, a sexual health campaigner who was the co-founder of Stonewall and who also served as the Secretary-General of the International Lesbian & Gay Association, believes that the “messy” and “damaging” stance of Scots law on the issue needs to be reconsidered, and that Scotland should learn from other jurisdictions.

She told KaleidoScot: ”I think that the South African model is sensible – it only prosecutes for intentional transmission, which includes transmission where there has been a sustained course of deceptive behaviour.

“Various charities have worked with Government lawyers in England and Wales to draft changes to the assault laws back in the 1990s which would have made things here much clearer, simpler and restricted to intentional transmission – but sadly the law change never got enacted so we still have the messy old Victorian laws – and the Scottish ones are even messier.

“But my experience is that trying to prosecute reckless transmission during casual sex has resulted in quite a lot of damage, including miscarriages of justice, because it’s so extremely complicated and people make all sorts of assumptions.

“The trouble with all the UK criminal laws is that we have no way of apportioning responsibility, it’s all victim and offender, which is not how most sex happens. Scotland is worse because you have laws on your books that let the Procurator Fiscal bring cases for exposure – and that’s a ridiculous charge now we have TasP and PreP and we know the relative (low) risks of any one sexual encounter.”

She added: “In my experience, people rush to conclusions, they expect the worst and they also rush to judgement. And as often as not they were wrong.”

A Scottish activist, who asked to remain anonymous, told KaleidoScot: “Criminalising HIV transmission merely perpetuates and even encourages stigmatisation, affects the ability of people to openly discuss their health issues, makes it less likely people will present for testing and ultimately plays into the spread of HIV.”

Robert McKay, National Director Terrence Higgins Trust Scotland, echoed many of these sentiments. He told KaleidoScot: “The current legal situation creates more confusion and potential challenges for people living in Scotland. Whilst it’s important to keep people safe, it’s also important that the law uses intent as a better measure of criminal behaviour as opposed to recklessness.”

When contacted, the charity HIV Scotland, however, only reiterated the current status of Scots legislation and underlined that there has been improvement with “stake holders such as Police Scotland” which resulted in zero prosecutions in the last few years.

A recent study found that prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries. This total increases to 105 jurisdictions when individual US states and Australian states / territories are counted separately.

Of the 61 countries, 26 applied HIV criminalisation laws, 32 applied general criminal or public health laws, and three (Australia, Denmark and United States) applied both HIV criminalisation and general laws.

There are reports of at least 313 arrests, prosecutions and/or convictions in 28 countries during the report period, covering 1 April 2013 to 30 September 2015.

The highest number of cases during this period were reported in: Russia (at least 115), United States (at least 104), Belarus (at least 20), Canada (at least 17), France (at least 7), United Kingdom (at least 6), Italy (at least 6), Australia (at least 5), Germany (at least 5).