USA: Criminalisation advocates explain why using the right language is key to success

Jennie Smith-Camejo, the communications director of Positive Women’s Network – USA, stood at the podium at the second HIV Is Not a Crime conference on HIV criminalization in May. Behind her was a PowerPoint presentation with several examples of recent egregious headlines about people living with HIV.

“Woman With HIV Convicted of Biting Sister During Fight,” screamed one. “Man With HIV Assaults Hospital Employee,” read another. “Suspect Threatens to Transmit HIV to Police Officer,” announced a third.

“You don’t really hear [much] about HIV in the news anymore,” Smith-Camejo noted as she flipped through these headlines. “So, if these are what you’re seeing and hearing, what would you think?”

That is the challenge for people fighting HIV criminalization laws. How do you push past the fear and panic around HIV transmission when click-bait headlines dominate media coverage?

There’s no one opinion about what kind of messaging is most effective. For some, using language that appeals to their audience’s core values has been effective. Others reject that strategy, instead demanding more inclusive, intersectional messages that do not leave out the most vulnerable, such as sex workers and trans people.

“When you’re talking to people outside the HIV community, you have to think about what they’re thinking and hearing,” stated Jennie Smith-Camejo, the communications director of Positive Women’s Network – USA, an advocacy network of women living with HIV. “People’s views on policies and issues are more shaped by emotion than reason,” Camejo-Smith noted. But advocates have the power to appeal to these emotions. Using stories can change hearts and minds in ways that cold hard facts often do not, she said.

Jennie Smith-Camejo gives one example of messaging that appeals to a more conservative audience. When talking to people who may not care about the injustices of police profiling of trans women or HIV criminalization, she points to the way in which Cyd Nova, the harm reduction coordinator at the Saint James Infirmary, a clinic for current and former sex workers, frames the issue of policing as one that interferes with personal responsibility and protecting public health:

Trans women are disproportionately profiled and targeted by law enforcement for harassment and arrest. And because of policies like [using] condoms as evidence, trans women often face a choice between protecting themselves and their partners from HIV and risking arrest.

Effective messaging can sometimes prevent a harmful legislative amendment from even reaching the floor.LaTrischa Miles is a board member of Positive Women’s Network – USA, as well as the founder and president of Grace, a faith-based support group in in Kansas City for women affected by and living with HIV. When she learned that Missouri legislators planned to introduce a bill that would make it a crime for a person with HIV to spit at someone, she and other activists sprang into action. They contacted legislators and debunked the myths about saliva and HIV transmission. “Because they heard from us in the community, they didn’t even bring it forward for the hearing,” Miles recalled.

In Colorado, members of the Mod Squad and Senator Pat Steadman utilized language that appealed to a broader political spectrum as they pushed SB 146, a bill that repealed two criminalization statutes and reformed another. Instead of talking about criminalization as an injustice that needed to be eliminated, Steadman appealed to conservative values, such as personal responsibility. “We talked about barriers that criminalization poses to testing, treatment and public health,” Steadman stated in a celebratory address. “The biggest thing to take on is people’s fear and ignorance.”

To combat stigma and hammer home the importance of changing the law, Steadman’s talking point became: “The criminal law is a clumsy and ineffective tool for protecting public health.”

Advocates also shifted their messaging. Barb Cardell, a long-time HIV activist and member of the Colorado Mod Squad (“Mod” is short for modernization), recalled that the group had initially called themselves the HIV Decriminalization Task Force, then the STI Grassroots Modernization Alliance.

“We didn’t change anything else we were doing,” recalled John Tenorio, a rural Mod Squad member. Simply changing their name brought them more respect and support.

In Colorado, it appears that the shift worked. Steadman and the Mod Squad faced little opposition to repealing and reforming the criminalization statutes. (Instead, Steadman noted, the sticking point was the provision allowing minors to be tested and treated for HIV without parental consent.) SB 146 passed in both houses of the legislature and is now awaiting the governor’s signature.

But not everyone agrees with shifting the message to appeal to more conservative audiences. “You have to think about decriminalization — true repeal of these outrageous laws. Don’t talk to me about modernizing things to make them sound better. I am not here to wait years and years and years for this to happen,” said Maxx Boykin, an organizing co-chair of the Chicago chapter of Black Youth Project 100 (BYP100), a national organization of 18- to 35-year-old black activists, and a community organizer at AIDS Chicago. He tied HIV criminalization to the pervasive state violence against black people, particularly black youth. “You have to stop criminalizing who I am, who my friends are.”

Appeals to modernize laws will not stop the collision of criminalization faced by those marginalized by race, gender identity and poverty, he explained. “I have to talk about how [criminalization] disproportionately affects black people,” Boykin told TheBody.com. He draws parallels between HIV criminalization laws and the disparities in crack-cocaine sentencing. It’s a parallel that those already organizing against police and state violence understand all too well.

He also challenges people to think about criminalization as a whole, tying HIV criminalization to issues of racism and mass incarceration as well as explaining how people living with HIV are treated in prison and what HIV criminalization actually looks like.

Marco Castro-Bojorquez, a documentary filmmaker, community organizer and member of the steering committee for the U.S. People Living With HIV Caucus, arrived in the United States from Mexico 20 years ago. For him, an intersectional analysis needs to be present in every discussion.

“It’s difficult to talk to people about race and class,” he told The Body.com. “But you need to do it when talking about any injustice.” These conversations can be difficult, he acknowledged. “White people get offended or angry or sad,” he said. For them, he said, “it’s important to check your privilege and make sure you are not making us [people of color] responsible for your feelings. People don’t understand the amount of energy it requires for us [to explain racism and other injustices we face].”

He concentrates his energies on working with people who feel the brunt of marginalization the most — people of color, immigrants and trans people. In 2015 he helped launch Venas Abiertas: Una Red de Inmigrantes Latinxs Viviendo con el VIH/Sida (Open Veins: A Network of Latinx Immigrants Living With HIV/AIDS) for HIV-positive Latino immigrants to advocate for their needs and work with allies.

When Castro-Bojorquez talks about HIV criminalization, he’s often met with shock that such laws even exist. He recalls repeated conversations with his best friend. “He could not believe you could have sex with someone, use a condom, not transmit anything and still be thrown in jail,” he recounted. The two continued to have conversations about criminalization — and Castro-Bojorquez’s work to end it. “Now he’s super-knowledgeable about it,” he said.

Castro-Bojorquez also cautions against the tendency to characterize certain statutes as “not so bad,” explaining that “any law that criminalizes HIV is bad.”

Regardless of the words they choose, advocates say the message needs to be clear and not veer into other topics. Mark King, the blogger behind My Fabulous Disease, learned this firsthand.

In 1992, when Magic Johnson first announced that he was living with HIV, King was the newly appointed communications person for the Los Angeles Shanti Foundation, which provided emotional support for people dying from AIDS-related complications. Johnson’s announcement inevitably sparked office gossip, including speculation about which AIDS organization Johnson might endorse as well as the fact that Elizabeth Taylor had sent Johnson flowers, King recalled. That gossip was still buzzing when the phone began ringing with press requests. “I was young and stupid,” King recounted and, when he spoke with a reporter from the Los Angeles Times, he began chattering away, repeating the office gossip.

The next day, the Los Angeles Times ran King’s statements about Elizabeth Taylor and the rivalry for Johnson’s support among AIDS organizations. “I gave the reporter the story he wanted to write — about the competition among agencies — rather than the message I was supposed to deliver,” King recalled 24 years later. The lesson? “Hold on tight to your message and repeat it over and over so they can’t put in some stupid quote about Elizabeth Taylor.”

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

Originally published in The Body

Canada: Activist Christian Hui on why HIV criminalisation harms us all

US: Democratic Party pledges to "address HIV criminalization laws" in its 2016 draft party platform

Democratic Party Comes Out Strong for LGBTQ Equality in 2016 Party Platform

HRC Blog by post by Stephen Peters

Today, the Democratic Party released its draft 2016 party platform, including key provisions that focus on improving the lives of LGBTQ people and advocating for full equality.

“This is the most LGBTQ-inclusive platform of any major U.S. party,” said JoDee Winterhof, HRC’s Senior Vice President for Policy and Political Affairs. “We will continue to work with the Democratic Party to ensure the most robust platform for LGBTQ Americans. From protecting LGBTQ young people to ending the epidemic of violence against transgender people to passing an explicit and comprehensive federal non-discrimination law to bringing about an AIDS-free generation, the platform addresses many of the major challenges facing our community today.”

Here are some of the highlights:

LGBT Rights

Democrats applaud last year’s decision by the Supreme Court that recognized LGBT people— like every other American—have the right to marry the person they love. But there is still much work to be done. LGBT kids continue to be bullied at school, a restaurant can refuse to serve a transgender person, and a same-sex couple is at risk of being evicted from their home. That is unacceptable and must change. Democrats will fight for comprehensive federal non- discrimination protections for all LGBT Americans and push back against state efforts to discriminate against LGBT individuals. We will combat LGBT youth homelessness and improve school climates, and we will protect transgender individuals from violence. We will promote LGBT human rights and ensure America’s foreign policy is inclusive of LGBT people around the world.

Civil Rights

Democrats will always fight to end discrimination on the basis of race, ethnicity, national origin, language, religion, gender, sexual orientation, gender identity, or disability. We need to promote civility and speak out against bigotry and other forms of intolerance that have entered our political discourse. It is unacceptable to target, defame, or exclude anyone because of their religion, race, ethnicity, national origin, or sexual orientation.

HIV and AIDS

Democrats believe an AIDS-free generation is within our grasp. But we know far too many Americans still suffer, which is why we will implement the National HIV and AIDS Strategy, increase research funding for the National Institutes of Health, cap pharmaceutical expenses for people living with HIV and AIDS, address HIV criminalization laws, and expand access for HIV prevention medications, particularly for the populations most at risk of infection. Abroad, we will make the President’s Emergency Plan for AIDS Relief more effective and increase global funding for HIV and AIDS prevention and treatment. Democrats will always protect those living with HIV and AIDS from stigma and discrimination.

Supporting our Troops

[…]Democrats welcome and honor all Americans who want to serve and will continue to fight for their equal rights and recognition. We are proud of the repeal of Don’t Ask, Don’t Tell and the opening of combat positions to women. Our military is strongest when people of all races, religions, sexual orientations, and gender identities are honored for their service to our country.

Racial Justice

Democrats will fight to end institutional and systemic racism in our society. We will challenge and dismantle the structures that define lasting racial, economic, political, and social inequity. Democrats will promote racial justice through fair, just, and equitable governing of all institutions serving the public and in the formation of public policy. We will push for a societal transformation to make it clear that black lives matter and there is no place for racism in our country.

Gun Violence Prevention

With 33,000 Americans dying every year, Democrats believe that we must finally take sensible action to address gun violence. While gun ownership is part of the fabric of many communities, too many families in America have suffered from gun violence. We can respect the rights of responsible gun owners while keeping our communities safe. We will expand background checks and close dangerous loopholes in our current laws, hold irresponsible dealers and manufacturers accountable, keep weapons of war—such as assault weapons—off our streets, and ensure guns do not fall into the hands of terrorists, domestic abusers, other violent criminals, and those with severe mental health issues.

Canada: In Nova Scotia, glimmers of hope for science in the prosecution of HIV non-disclosure

Analysis by our HIV JUSTICE WORLDWIDE partner, the Canadian HIV/AIDS Legal Network.

Despite very few prosecutions, Nova Scotia has become an interesting place in Canada with respect to the criminalisation of HIV non-disclosure.

In April 2016, a trial judge from Antigonish ruled that non-disclosure before vaginal sex with a condom or a low viral load (< 1,500 copies/ml) did not amount to aggravated sexual assault.

Back in November 2013, a trial judge from Halifax acquitted a young man with an undetectable viral load who had not disclosed his HIV-positive status before sex without a condom.

These decisions represent significant developments in Canada, where the Supreme Court’s 2012 decision in R. v. Mabior opened the door to prosecutions even if a condom was used or the HIV-positive partner had a low or undetectable viral load.

Thanks to Nova Scotia judges, science might finally prevail.

In the recent Antigonish case, three medical experts testified, all aligning themselves with the Canadian consensus statement on HIV and its transmission in the context of the criminal law that was developed by eminent HIV experts in response to the 2012 Supreme Court decision.

They clearly testified that condoms are highly effective to prevent transmission (“protection is almost 100% when a condom is used,” said the Crown medical expert) and that being on treatment and having a low viral load dramatically reduce the chance of transmitting the virus.

Remarkably, they were also testimonies that the risk of HIV transmission in the absence of ejaculation is at most “negligible” and that HIV transmission from pre-ejaculate, if even possible, is not proven (there was no ejaculation with the first complainant and a reasonable doubt about ejaculation with the second complainant).

Based on the medical evidence before the Court, the trial judge concluded that the legal test of a “realistic possibility of HIV transmission” established in Mabior, which triggers the legal duty to disclose, had not been met. The accused was found not guilty of aggravated sexual assault.

Disappointingly, despite the absence of a “realistic possibility of HIV transmission,” the accused was nevertheless convicted of sexual assault causing bodily harm due to the psychological harm allegedly suffered by the complainants while waiting for their test results (neither of the complainants has contracted HIV).

Despite the progress made in acknowledging scientific evidence, this ultimate decision is highly problematic and arguably legally unfounded. It remains to be seen if the decision will be appealed.

The full decision can be downloaded from the Supreme Court of Novia Scotia’s website

Advocates fighting to end HIV criminalisation reach a global TV/web audience on The Stream

Last night, HIV criminalisation advocacy reached a global audience on both TV and the internet with The Stream, on Al Jazeera English.

During the 30 minute programme, HIV criminalisation survivor, and Sero advisory board member, Ken Pinkela appeared with co-hosts Malika Bilal and Omar Baddar in the Washington DC studio to discuss his case and the role HIV stigma played in his unjust prosecution and wrongful conviction.

He was joined via Skype by ARASA’s Executive Director, Michaela Clayton, who discussed the impact of HIV criminalisation on women in southern and eastern Africa.

Anand Grover, Senior Advocate at Supreme Court of India, founder of India’s Lawyers Collective, and a former UN Special Rappporteur on the Right to Health highlighted the many human rights concerns with a punitive approach to HIV prevention.

I was also on programme, highlighting the work of the HIV Justice Network and citing data from our recent report, Advancing HIV Justice 2.

Contributions were also seen from US HIV advocates Shawn Decker and Nina Martinez, and Colorado Senator Pat Steadman who worked with the Colorado Mod Squad to recently completely overhaul HIV criminalisation in Colorado.

Watch the entire programme below or on the The Stream’s website.

Sweden: Civil societies organisations call for guidelines to prosecutors in cases of HIV-criminalisation

“Major Uncertainty about HIV in Courts – The Prosecutor must act”

Open letter to the Prosecutor General Anders Perklev:

The organizations Hiv-Sweden, RFSL and RFSU call for guidelines for prosecutors for prosecutions against people living with HIV who are at risk of transmitting the virus via sexual contacts.

Signatory organizations promote the development of HIV in Sweden, how people living with HIV perceive their situation, the way in which case law looks and the medical successes in the field. Since 2013, the knowledge base “Infectiousness in Treated HIV Infection” has been developed by the Public Health Authority and the Reference Group for AntiViral Therapy (RAV), which shows that there is a negligible risk of HIV transmission during well-treated treatment.

Since 2016, there is also a document written by medical experts in which the disability rate in HIV is reduced from 40-60% to 0-10%.

These documents should have a major impact on the prosecution of persons, for whom crimes are prosecuted, how damages for a possible transfer should be measured and how seriously the chronic disease HIV should be considered.

RFSU, RFSL and Hiv-Sweden can say that there is great uncertainty in courts and justice in general how to handle the progress made in the medical field regarding HIV. There is no precedent since the knowledge base came and, as the Prosecutor is aware, no trial was given in the Supreme Court for Case B 2152-13, the Court of Appeal over Skåne and Blekinge, in which a person living with HIV and had a so-called well-treated treatment was released from criminal liability.

Signatory organizations welcome the Court of Appeal’s judgment, which clearly takes into account medical success, contagiousness and other facts in the case. Unfortunately, the Supreme Court (in connection with the grant of a review) did not refer to the decision NJA 2004 p. 176, which means that the judgment of the Court of First Instance can not be regarded as prejudicial.

Signatory organizations find it deeply unfortunate that the Supreme Court did not test the case partly referring to precedents no longer based on current knowledge. This means that the legal situation is unchanged and unclear, which creates legal uncertainty for people living with HIV.

Regrettably, we can say that the courts have begun to take care of the medical successes that have been made since 2004, and in the days a new intelligence judgment in which a man living with HIV and standing on a well-treated treatment is released from criminal liability (see Day’s Juridics 2016- 05-31 ). We hope that Objective B 212-15 from Uppsala District Court will proceed in the judicial system and create a new practice in this area.

The judgment states that the risk of HIV transmission to unprotected intercourse is so small in case of well-being treatment that one can not reasonably expect the effect of transfer and thus does not fulfill the objective crimes for the development of danger to another.

Even though the profession assesses the risk of HIV transmission to be neglected in well-preserved HIV even in unprotected intercourse, prosecutors continue to famble as to which acts will lead to prosecutions and which crimes are prosecuted. For example, some prosecutors choose to prosecute people living with HIV, with well-treated treatment, without the intention of transmitting HIV and there was no transfer for attempted abuse, which is neither reasonable nor correct.

RFSU, RFSL and HIV-Sweden want guidelines from the RA to the prosecutor who takes into account the major medical achievements and the knowledge base available to create a fairness in how the judicial system manages this already vulnerable group of people living in our society HIV.

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“Stor osäkerhet om HIV hos domstolar och rättsväsende – riksåklagaren måste agera“

Öppet brev till riksåklagaren Anders Perklev:

Organisationerna Hiv-Sverige, RFSL och RFSU efterlyser riktlinjer för åklagare avseende åtal mot personer som lever med hiv och som riskerar att överföra viruset via sexuella kontakter.

Undertecknande organisationer följer utvecklingen noga avseende hiv i Sverige, hur personer som lever med hiv uppfattar sin situation, hur rättspraxis ser ut och de medicinska framgångar som görs på området. Sedan år 2013 finns kunskapsunderlaget “Smittsamhet vid behandlad hivinfektion” framtaget av Folkhälsomyndigheten och Referensgruppen för AntiViral terapi (RAV), i vilket det framgår att det föreligger försumbar risk för överföring av hiv vid välinställd behandling.

Sedan år 2016 finns det även ett dokument skrivet av medicinska experter i vilket invaliditetsgraden vid hiv sänks från tidigare 40-60 % ned till 0-10 %.

Dessa dokument borde få stor inverkan på när personer åtalas, för vilka brott personer åtalas, hur skadestånd vid en eventuell överföring bör mätas och hur allvarlig den kroniska sjukdomen hiv skall betraktas vara.

RFSU, RFSL och Hiv-Sverige kan konstatera att det råder stor osäkerhet i domstolar och rättsväsendet i övrigt hur de ska hantera de framsteg som görs på det medicinska området gällande hiv. Det saknas prejudikat sedan kunskapsunderlaget kom, och som riksåklagaren väl känner till gavs inte prövningstillstånd i högsta domstolen för mål B 2152-13, Hovrätten över Skåne och Blekinge, i vilket en person som lever med hiv och hade en så kallad välinställd behandling friades från straffansvar.

Undertecknande organisationer välkomnar hovrättens dom, som tydligt tar hänsyn till medicinska framgångar, smittsamhetsdokumentet och fakta i övrigt i målet. Dessvärre hänvisade Högsta domstolen (i samband med att prövningstillstånd inte gavs) till avgörandet NJA 2004 s. 176 vilket innebär att hovrättens dom inte kan anses vara prejudicerande.

Undertecknande organisationer finner det djupt olyckligt att Högsta domstolen dels inte prövade målet dels hänvisade till prejudikat som inte längre baserar sig på aktuell kunskap. Detta innebär att rättsläget är oförändrat och otydligt, vilket skapar en rättsosäkerhet för personer som lever med hiv.

Glädjande nog kan vi konstatera att domstolarna ändock har börjat ta till sig av de medicinska framgångar som gjorts sedan 2004 och i dagarna kom en ny underrättsdom i vilken en man som lever med hiv och står på välinställd behandling frias från straffansvar (se Dagens Juridik 2016-05-31) . Vi hoppas att mål B 212-15 från Uppsala tingsrätt skall gå vidare inom rättsväsendet och skapa en ny praxis på området.

I domen konstateras att risken för överföring av hiv vid oskyddade samlag är så pass liten vid välinställd behandling att man inte rimligen kan förvänta sig effekten att överföring sker, och att det därmed inte uppfyller de objektiva brottsförutsättningarna för framkallande av fara för annan.

Trots att professionen bedömer risken för överföring av hiv vara försumbar vid välinställd hiv även vid oskyddade samlag fortsätter åklagare att famla när det gäller vilka gärningar som skall leda till åtal och vilka brott som åtalas för. Vissa åklagare väljer till exempel att åtala personer som lever med hiv, med välinställd behandling, utan uppsåt att överföra hiv och där ingen överföring skett för försök till misshandel vilket varken är rimligt eller korrekt.

RFSU, RFSL och Hiv-Sverige önskar riktlinjer från RÅ till landets åklagare som tar hänsyn till de stora medicinska framgångar som gjorts och det kunskapsunderlag som finns, för att skapa en rimlighet i hur rättsväsendet hanterar denna redan utsatta grupp personer i vårt samhälle som lever med hiv.

More Advocacy Needed to Stop HIV Criminalisation

People living with HIV face increased criminalisation and prosecution based on their HIV status, finds a new report by the HIV Justice Network and the Global Network of People Living with HIV (GNP+).

HIV criminalisation is the application of the criminal law to people living with HIV based solely on their HIV status. This happens through HIV-specific criminal statutes, or by applying general criminal laws that allow for prosecution of unintentional HIV transmission, potential or perceived exposure to HIV without transmission, and/or non-disclosure of known HIV-positive status.

The use of criminal laws against people with HIV impacts entire communities. It perpetuates stigma, discrimination and feelings of fear, shame and anger towards people living with HIV.

“These laws and prosecutions do not only impact the people investigated, prosecuted, or incarcerated. These laws undermine core sexual rights and public health principles. Their existence and application exacerbate racial and gender inequalities and jeopardize critical HIV prevention and service delivery efforts” says Julian Hows of GNP+.

The report, Advancing HIV Justice 2: building momentum in global advocacy against HIV finds a total of 72 countries have adopted laws that specifically allow for HIV criminalisation. In these countries laws are either HIV-specific, or name HIV as one (or more) of the diseases covered by the law. Prosecutions for HIV non-disclosure, potential or perceived exposure and/or unintentional transmission have now been reported in 61 countries.

Of particular concern is the fact that 30 sub-Saharan African countries have now enacted overly broad and/or vague HIV specific statues enabling legal repercussions against people living with HIV. The report shows the highest number of prosecutions are being reported in Russia, the United States, Belarus and Canada.

The trend is in contrast with the latest science which shows that people with HIV who adhere to HIV treatment and have an undetectable viral load are not infectious. In addition this approach of the criminal law violates key legal and human rights principles.

HIV criminalisation does not exist in vacuum. It is often linked to punitive laws and policies that impact sexual and reproductive health and rights, especially those aimed at sex workers, current and former drug users (particularly people living with hepatitis C), transgender people and/or men who have sex with men and other sexual minorities.

Click here to read the new report and visit the  HIV Justice Network for more information on how you can get involved in the movement to eliminate HIV – or modernise – HIV criminalisation laws.

Justice Edwin Cameron: ‘Why HIV criminalisation is bad policy and why I’m proud that advocacy against it is being led by people living with HIV’

[This is the foreword to Advancing HIV Justice 2: Buiding momentum in global advocacy against HIV criminalisation, which will be published by the HIV Justice Network and GNP+ tomorrow, Tuesday May 10th.]

 

Since the beginning of the HIV epidemic, 35 long years ago, policymakers and politicians have been tempted to punish those of us with, and at risk of, HIV. Sometimes propelled by public opinion, sometimes themselves noxiously propelling public opinion, they have tried to find in punitive approaches a quick solution to the problem of HIV. One way has been to use HIV criminalisation – criminal laws against people living with HIV who don’t declare they have HIV, or to make potential or perceived exposure, or transmission that occurs when it is not deliberate (without “malice aforethought”), criminal offences.

Most of these laws are appallingly broad. And many of the prosecutions under them have been wickedly unjust. Sometimes scientific evidence about how HIV is transmitted, and how low the risk of transmitting the virus is, is ignored. And critical criminal legal and human rights principles are disregarded. These are enshrined in the International Guidelines on HIV and Human Rights. They are further developed by the UNAIDS guidance note, Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations. Important considerations, as these documents show, include foreseeability, intent, causality, proportionality, defence and proof.

The last 20 years have seen a massive shift in the management of HIV which is now a medically manageable disease. I know this myself: 19 years ago, when I was dying of AIDS, my life was given back to me when I was able to start taking antiretroviral medications. But despite the progress in HIV prevention, treatment and care, HIV continues to be treated exceptionally for one over-riding reason: stigma.

The enactment and enforcement of HIV-specific criminal laws – or even the threat of their enforcement – fuels the fires of stigma. It reinforces the idea that HIV is shameful, that it is a disgraceful contamination. And by reinforcing stigma, HIV criminalisation makes it more difficult for those at risk of HIV to access testing and prevention. It also makes it more difficult for those living with the virus to talk openly about it, and to be tested, treated and supported.

For those accused, gossiped about and maligned in the media, investigated, prosecuted and convicted, these laws can have catastrophic consequences. These include enforced disclosures, miscarriages of justice, and ruined lives.

HIV criminalisation is bad, bad policy. There is simply no evidence that it works. Instead, it sends out misleading and stigmatising messages. It undermines the remarkable scientific advances and proven public health strategies that open the path to vanquishing AIDS by 2030.

In 2008, on the final day of the International AIDS Conference in Mexico City, I called for a sustained and vocal campaign against HIV criminalisation. Along with many other activists, I hoped that the conference would result in a major international pushback against misguided criminal laws and prosecutions.

The Advancing HIV Justice 2 report shows how far we have come. It documents how the movement against these laws and prosecutions – burgeoning just a decade ago – is gaining strength. It is achieving some heartening outcomes. Laws have been repealed, modernised or struck down across the globe – from Australia to the United States, Kenya to Switzerland.

For someone like me, who has been living with HIV for over 30 years, it is especially fitting to note that much of the necessary advocacy has been undertaken by civil society led by individuals and networks of people living with HIV.

Advancing HIV Justice 2 highlights many of these courageous and pragmatic ventures by civil society. Not only have they monitored the cruelty of criminal law enforcement, acting as watchdogs, they have also played a key role in securing good sense where it has prevailed in the epidemic. This publication provides hope that lawmakers intending to enact laws propelled by populism and irrational fears can be stopped. Our hope is that outdated laws and rulings can be dispensed with altogether.

Yet this report also reminds us of the complexity of our struggle. Our ultimate goal – to end HIV criminalisation using reason and science – seems clear. But the pathways to attaining that goal are not always straightforward. We must be steadfast. We must be pragmatic. Our response to those who unjustly criminalise us must be evidence-rich and policy-sound. And we can draw strength from history. Other battles appeared “unwinnable” and quixotic. Think of slavery, racism, homophobia, women’s rights. Yet in each case justice and rationality have gained the edge.

That, we hope and believe, will be so, too, with laws targeting people with HIV for prosecution.

Edwin Cameron, Constitutional Court of South Africa, May 2016.

US/Canada: Elton John AIDS Foundation on why they support civil society organisations working to end HIV criminalisation

Australia: Queensland people living with HIV organisation, QPP, issues position statement on HIV criminalisation (press release)

Queensland Positive People (QPP) is a peer-based advocacy organisation which is committed to actively promoting self-determination and empowerment for all people living with HIV (PLHIV) throughout Queensland.

Below is their press release issued on 6 April 2016 in the light of the recent High Court ruling related to intent in HIV transmission cases.

Position Statement

The criminal law is an ineffective and inappropriate tool to address HIV non-disclosure, exposure or transmission. International best practice acknowledges that public health frameworks are best placed to encourage a shared responsibility for HIV transmission, and public health interventions seek to effect change in risk-taking behaviour among those who have difficulty taking appropriate precautions to prevent the transmission of HIV.

Urgent legal review of State and National guidelines for determining if an individual poses a reckless risk of HIV transmission is required following the scientific acceptance that PLHIV on treatment with an undetectable viral load pose a negligible risk of transmitting HIV via sexual intercourse. Despite scientific consensus on this issue, Australian criminal law has failed to acknowledge the contemporary science of HIV transmission and instead relies on incorrect, out of date and stigmatising perspectives of HIV that do not acknowledge that with proper adherence to HIV medication, it is a manageable chronic illness with a full life expectancy.

To explain why Australian criminal law lags behind United Nation recommendations and criminalises HIV transmission, Cipri Martinez, President of the National Association of People with HIV Australia (NAPWHA) states “stigma, fear and discriminatory perceptions of HIV influence the decision to proceed with criminal charges– a statement clearly evidenced by a lack of criminal prosecution or media attention regarding the transmission of other notifiable conditions such as syphilis or hepatitis.” HIV is treatable, but criminal charges perpetuate the inaccurate position that HIV is still a death sentence and therefore deserving of a severe punishment.

Current Status

A decision has been handed down in the High Court regarding a Queensland criminal HIV transmission case.

Whilst inappropriate to comment on the specifics of the case, the NAPWHA and Queensland Positive People (QPP) highlight that the trying of HIV transmission through the courts is a complex and fraught issue.

The overly broad use of the criminal law has far reaching negative impacts upon the HIV response. In line with UNAIDS guidance, NAPWHA and QPP urge that any application of the criminal law in the context of HIV must not undermine public health objectives.

Cipri Martinez states that “The use of the criminal law in responding to HIV transmission has been widely regarded as a blunt and ineffective tool with adverse implications for public health. In line with the recommendations of the UN Global Commission on HIV and the Law, the criminal law should only be reserved for cases where an individual exhibits clear malicious intent to transmit HIV with the purpose of causing harm.”

“There are alternatives to the criminal justice system to address HIV transmission or allegations that a person living with HIV is placing other people at risk of HIV, such as public health legislation” Martinez said.

Public health interventions are intended to prioritise education; support behaviour change; provide management as required; and actively utilise affected communities as a far more effective alternative to punitive and stigmatising legal sanctions.

NAPWHA and QPP support HIV prevention strategies being driven by an evidence-based, best practice model of public health interventions.

Criminalising HIV transmission sends unbalanced messages about the shared responsibility for prevention, creates disincentives for people to get tested and does, in fact, discourage disclosure of HIV status. These outcomes undermine prevention efforts and actually increase the risk of further HIV transmission.

Criminalising transmission does not acknowledge the complex factors that may impact an individual’s ability to disclose status or take the necessary precautions to prevent HIV transmission.

QPP President, Mark Counter agrees with NAPWHA’s position, saying “Public health interventions acknowledge the complex factors unique to each case, such as power imbalances, impairment, discrimination or other social determinants of health that may confuse or limit an individual’s ability to prevent transmission.”

National and State HIV strategies have identified the shared goals of achieving virtual elimination of HIV transmission in Australia by 2020.

“We are all working towards the shared goal of reducing HIV transmissions. The only way we are going to achieve this goal is by continuing to implement evidence-based human rights responses to HIV. These responses include educating the public about HIV and empowering people to avoid transmission or live successfully with HIV. The broad use of the criminal law does not help us achieve these goals” Counter says.

We need to be expanding programs which have been proven to reduce HIV transmission whilst protecting the human rights of people living with HIV and those who are HIV negative. Further, we need to encourage and empower people living with an unknown status to get tested and to ensure HIV prevention services are available to all that need them.

One of the unfortunate side effects of criminal prosecutions is the misinformed and stigmatising media that can accompany the reporting of these cases.

“We call on media outlets to appropriately report on HIV transmission cases with facts and not fear. Inaccurate statements not only undermine our efforts to educate the public about HIV, but also create an environment of fear for people living with HIV or people thinking about testing. It is vital that we encourage people to test – not discourage or frighten them from testing” Counter said.

For assistance in reporting appropriately on HIV, journalists should refer to the Australian Federation of AIDS Organisations HIV Media Guide.