AFAO Policy Analyst Michael Frommer highlights the many types of anti-HIV criminalisation advocacy undertaken by the Canadian HIV/AIDS Legal Network

The 8th IAS Conference on HIV Pathogenesis, Treatment and Prevention (IAS 2015) is on in Vancouver, Canada, this week. AFAO Policy Analyst Michael Frommer reports back on the pre-conference community forum. 

Key human rights challenges, such as criminalisation of HIV transmission, were centre stage at the IAS community forum on Saturday 18 July.

Alison Symington, co-director of Research and Policy at the Canadian HIV/AIDS Legal Network (Legal Network), described the challenge of advocacy and policy work in Canada in the face of ongoing criminalisation.

Aside from the significant justice issues when charges are laid for HIV non-disclosure, exposure or transmission, she also identified the serious of issue of people threatening their partners with an allegation, when there is relationship conflict, and how this in particular affects women who may be in abusive relationships.

In Canada, as in Australia, most of the people charged to date have been male heterosexuals, with a strong racialised element – mainly Black men. Since the mid-1990s, there has been an increase in the proportion of gay men charged.

Despite the fact that men make up the majority of those charged, Alison has investigated the pernicious effects of criminalisation on women. She explained how the ‘informal’ criminalisation of HIV positive mothers works, with their sense that their parenting is being under surveillance.

She outlined a huge range of advocacy and policy activities being undertaken by the Legal Network in response.

1) Legal defence strategy and intervention

Tactics include contacting the defence lawyers of individuals who have been charged with criminalisation related offences. The Legal Network also intervenes in the formal court proceedings and provides relevant scientific evidence.

2) Campaigns and advocacy

This has involved the Legal Network’s participation in the ‘Stop the Witch Hunt’ campaign targeting prosecutors, undertaken in collaboration with the AIDS Action Now. Legal Network staff also sit in court during trials, to make clear to judges/prosecutors that the community is monitoring developments.

3) Raising awareness/education

This education work is targeted at raising understanding among judges and among the community.

4) Working with doctors/scientists

A key piece of work was the Canadian Scientist Statement on HIV transmission risk. The Legal Network organised for 70 leading scientists from across Canada to sign this document which explained clearly the actual levels of risk of HIV transmission.

5) Distinguishing between HIV non-disclosure and sexual assault

HIV non-disclosure/exposure/transmission charges in Canada are made under the Canadian criminal law as an aggravated charge using the sexual assault provisions. The Legal Network aims to work with domestic violence/feminist organisations to ensure that HIV-related jurisprudence does not circumvent the appropriate application of sexual assault laws.

6) Prosecutorial guidelines

This has been an ongoing area of work across Ontario, Quebec and British Columbia. Ontario most recently advocated for the adoption of guidelines, but without adequate community input the Government drafted guidelines were dropped. There is still a desire to pursue appropriately formulated guidelines in future.

Marama Pala (in the audience) highlighting Australia’s public

health response to MC Dazon Dixon Diallo.

The comprehensive advocacy and policy response taken by the Canadian Legal Network is extremely impressive.

With one of, if not the highest rates per capita of criminalisation in the world, it is obviously very necessary in the Canadian context.

While some circumstances differ, there are a great many ideas that may be drawn upon for responding to HIV criminalisation in the Australian context.

Sweden: Jan Albert from the Karolinska Institute reports on HIV Criminalisation in Sweden

On a crossroads – Sweden’s view on the criminalization of HIV

BY ANNA-MARIA SÖRBERG  REPORTAGE  15-06-22

“We need to disagree with what is humanly reasonable and what is prosecutable. It says infectious prophet Jan Albert hoping for continued decriminalization of people living with HIV. Ottar has looked closely at the advent of one of the world’s toughest guidelines on the criminalization of potential HIV transmission.

“It was counted as the year’s most significant scientific breakthrough, all categories, including the cosmos,” says Jan Albert at the Karolinska Institute.

He talks about the international HIV-drug study, presented in 2011, which has a special significance in Sweden, where what is known as the criminalization of HIV transmission – that people are sentenced for transmission or attempted transmission of the disease – were central to the discussions later year.

Jan Albert has spent a great deal of time as an expert witness in litigation where one or more have reported a cohabitant or temporary partner to have exposed them to the risk of disease. By now, there have been about 30 trials. He points out that these are complex issues.

Jan Albert

The latest case law occurred a little over a year ago in Skåne and led to a free sentence for the man reported by four women for not telling her HIV status. The sentence is referred to as a clear change of course in Swedish HIV history, which is otherwise a country known to have one of the world’s hardest guidelines on the criminalization of potential transmission of HIV. Gone were the earlier offenses as “gross abuse” as well as headlines in the media, as “a new hivman ravaged”.

The Court’s reasoning was that , despite being unprotected sex with four different women , the man remained undergoing treatment, did not infect any of the women and had so low levels of virus that they were not considered to be a danger of transmission. A reasoning that is a direct result of the international study that states that the risk of contagiousness is extremely small, perhaps not existing at all, in the case of effective treatment.

“Today, HIV is, by medical means, a relatively manageable disease. The medications mean that the one who lives with HIV is likely to die from something else and then I think it becomes more important to look at social stigma, “says Jan Albert.

Putting people into prison because they have not informed about their HIV status reinforces that stigmatism, says the infectious professor.

The National Board of Health and Welfare recently updated the guidelines for the obligation to provide information. Nowadays, it does not apply to everyone, but the assessment is done on a case-by-case basis.

“We are now starting to approach the UN agency UNAIDS minimum requirement not to be convicted of HIV infection if no one has been infected, and especially if the risk is virtually non-existent as it is during effective treatment.

This can be seen as a first step towards not having criminalization at all, as is the case in, for example, Holland. And as regards the duty of information, today there is a majority in the Swedish Parliament to completely remove it.

In most cases , HIV is transmitted from people who do not themselves know that they are suffering from the disease. For those who work with HIV issues, the convicting judges make the effort to make people more informed about themselves and others about the disease.

“It is important that we disagree with what is socially reasonable, what the laws say and what should be prosecutable,” says Jan Albert, and continues: If I’m infected and my wife is not, I personally think that the recommendation should be that I should tell her, but it is a completely different matter what the laws should contain, and above all, whether it should be punishable in court.

In the 1980s, Jan Albert worked as an infection physician at Roslagstull Hospital and saw the first difficult aids. The suffering he experienced as a young doctor has characterized him and many others for the rest of his life. After Jonas Gardell’s novel and television series Never wipe tears without gloves , few people in Sweden can claim that they never heard of the HIV / AIDS epidemic.

The hysterical campaigns in the 80’s that sometimes threatened people from having sex is unthinkable today, Jan Albert believes. At the same time there is a view from the 80’s that we have not done in other ways.

“Then you did not know how the spread of infection looked or how big the epidemic would be. Through that, a view was made of HIV and AIDS as a very special disease. It is an approach we have never really managed to change, I think.

The ignorance and prejudice remain alive.

– They are only very rarely up to the surface because the subject is not as current.

Mattew Weait is a professor of law at Birkbeck College in London. He has examined Scandinavia and the common path chosen by the countries in terms of HIV policy and the consequences it has had for the sight of the disease. He believes that one of the explanations for the relatively extensive criminalization, such as Sweden, Norway and Finland, has been found in the relentless confidence in the state, as well as interpersonal relations.

– The regular World Value surveys investigating countries’ attitudes in the world show that what separates Nordic countries from many others is the ability to consider a person’s failure to tell the truth as a crime, and something that could be a criminal offense.

Swedish HIV policy has not been subjected to any major review over the years . Compared to drug issues, there are now several different lines raised in public, while the HIV issue is rarely presented as an issue with several different inputs.

The one who attempts to challenge the current policy must, as Matthew Weait is in, often argue in the first place that: the reason for questioning the criminalization of so-called HIV cases is based on a desire to facilitate people to escape liability – or at least to be a consequence of the expiry of the case.

For Jan Albert, a course change in the HIV issue is about seeing how preventive work can be improved, how we reach out to more people with knowledge that is updated, nuanced and reality-based.

“We can not have a right of justice for HIV, which differs so much from how we handle other serious infectious diseases in this country, as is the case today. It counteracts the overall goal of limiting the damage without reinforcing them, “says Albert.

Anna-Maria Sörberg is a freelance journalist and has previously written the book “Det Sjuka”  (2009)

———————————————–

Vid ett vägskäl – Sveriges syn på kriminalisering av hiv

AV ANNA-MARIA SÖRBERG REPORTAGE 15-06-22

– Vi behöver hålla isär vad som är medmänskligt rimligt och vad som är åtalbart. Det säger smittskyddsprofessorn Jan Albert som hoppas på fortsatt avkriminalisering av människor som lever med hiv. Ottar har tittat närmare på uppluckringen av en av världens hårdaste riktlinjer kring kriminalisering av potentiell överföring av hiv.

– Den räknades som det årets mest betydelsefulla vetenskapliga genombrott, alla kategorier, kosmos inräknat, säger smittskyddsprofessorn Jan Albert vid Karolinska Institutet.

Han pratar om den internationella studie om medicinering av hiv som presenterades 2011 och som fått en särskild betydelse i Sverige, där det som kallas kriminalisering av hiv-överföring – att människor döms för överföring eller försök till överföring av sjukdomen – varit central i diskussionerna under senare år.

Jan Albert har tillbringat en hel del tid som expertvittne i rättegångar där någon eller flera har anmält en sambo eller tillfällig partner för att ha utsatt dem för risk för sjukdom. Vid det här laget har det blivit ett 30-tal rättegångar. Han påpekar att det här rör sig om komplexa saker.

Det senaste rättsfallet inträffade för ett drygt år sedan i Skåne och ledde till en friande dom för mannen som anmälts av fyra kvinnor för att inte ha berättat om sin hiv-status. Domen betecknas som en tydlig kursändring i svensk hiv-historia, som annars är ett land känt för att ha en av världens hårdaste riktlinjer kring kriminalisering av potentiell överföring av hiv. Borta var de tidigare brottsrubriceringarna som »grov misshandel« liksom rubriker i media i stil med att »en ny hivman härjat«.

Domstolens motivering var att mannen – trots att han haft oskyddat sex med fyra olika kvinnor – stått under fungerande behandling, inte smittat någon av kvinnorna och haft så låga virusnivåer att de inte ansågs utgöra någon fara för överföring. Ett resonemang som är ett direkt resultat av den internationella studien som fastslår att risken för smittsamhet är ytterst liten, kanske inte existerande alls, vid fungerande behandling.

– Numera är ju hiv medicinskt sett en relativt hanterbar sjukdom. Medicinerna gör att den som lever med hiv förmodligen kommer dö av något annat och då anser jag att det blir viktigare att titta på socialt stigma, säger Jan Albert.

Att sätta människor med hiv i fängelse för att de inte informerat om sin hiv-status förstärker det stigmat, konstaterar smittskyddsprofessorn.

Socialstyrelsen uppdaterade för några år sedan riktlinjerna för informationsplikten. Numera gäller den inte alla, utan bedömningen sker från fall till fall.

– Vi börjar nu närma oss FN-organet UNAIDS minimikrav att man inte ska dömas för att ha spridit hiv om ingen har blivit smittad, och framförallt inte om risken är så gott som obefintlig som den är vid fungerande behandling.

Det kan ses som ett första steg mot att inte ha kriminalisering överhuvudtaget, vilket är fallet i till exempel Holland. Och när det gäller just informationsplikten finns det i dag en majoritet i Sveriges riksdag för att helt ta bort den.

I de flesta fall överförs hiv från personer som inte själva vet om att de bär på sjukdomen. För de som arbetar med frågor om hiv försvårar de fällande domarna arbetet med att få människor att i högre grad informera sig själva och andra om sjukdomen.

– Det är viktigt att vi håller isär vad som är medmänskligt rimligt, vad lagarna säger och vad som ska vara åtalbart, säger Jan Albert och fortsätter: Om jag är smittad och min fru inte är det tycker jag personligen att rekommendationen ska vara att jag ska berätta för henne, men det är en helt annan sak vad lagarna ska innehålla och framförallt huruvida det ska vara straffbart i domstol.

På 1980-talet arbetade Jan Albert som infektionsläkare på Roslagstulls sjukhus och såg de första svåra aidsfallen. Det lidande han upplevde på plats som ung läkare har präglat honom och många andra för resten av livet. Efter Jonas Gardells roman och tv-serie Torka aldrig tårar utan handskar kan få människor i Sverige hävda att de aldrig hört talas om hiv/aids-epidemin.

De hysteriska kampanjerna under 80-talet som ibland nästan hotade folk från att ha sex är otänkbara idag, tror Jan Albert. Samtidigt finns ett synsätt kvar från 80-talet som vi på andra sätt inte har gjort upp med.

– Då visste man ju inte hur smittspridningen såg ut eller hur stor epidemin skulle bli. Genom det formades en syn på hiv och aids som en väldigt speciell sjukdom. Det är ett synsätt som vi aldrig riktigt har lyckats förändra, anser jag.

Okunskapen och fördomarna lever fortfarande kvar.

– De är bara väldigt sällan uppe vid ytan eftersom ämnet inte är lika aktuellt.

Mattew Weait är professor i juridik vid Birkbeck College i London. Han har granskat Skandinavien och den gemensamma väg länderna valt vad gäller hiv-politik och vilka konsekvenser det har fått för synen på sjukdomen. Han tror att en av förklaringarna till den relativt omfattande kriminalisering som framförallt Sverige, Norge och Finland haft går att finna i den obevekliga tilltron till staten, liksom till mellanmänskliga relationer.

– De regelbundna World Value-undersökningar som undersöker länders attityder i världen visar att det som skiljer nordiska länder från många andra är möjligheten att betrakta en persons misslyckande att berätta sanningen som ett brott, och något som ska kunna vara en straffbar handling.

Den svenska hiv-politiken har inte utsatts för någon större granskning genom åren. Om man jämför med narkotikafrågan så finns där numera flera olika linjer som lyfts fram i offentligheten medan hiv-frågan sällan presenteras som en fråga med flera olika ingångar.

Den som försöker sig på ett ifrågasättande av den rådande politiken måste, som Matthew Weait är inne på, ofta först argumentera sig ur fällan som uppstår: att anledningen till att man ifrågasätter kriminalisering av så kallade hiv-fall sker utifrån en önskan att underlätta för människor att undkomma ansvar – eller att det åtminstone kommer bli en konsekvens om rättsfallen upphör.

För Jan Albert handlar en kursändring i hiv-frågan snarare om att se hur det förebyggande arbetet kan förbättras, hur vi når ut till fler människor med kunskap som är uppdaterad, nyanserad och verklighetsförankrad.

– Vi inte kan ha en rättskipningspraxis för hiv som skiljer sig så mycket från hur vi hanterar andra allvarliga infektionssjukdomar i det här landet, så som är fallet idag. Det motverkar det övergripande målet att begränsa skadorna utan att förstärka dem, säger Albert.

Anna-Maria Sörberg är frilansjournalist och har tidigare skrivit boken ”Det sjuka” (2009)

Zambia: Network of people living with HIV react to last week’s prosecution of a Zambian man in Wales for reckless HIV transmission, say HIV criminalisation is unworkable and unjust

THE Network of Zambian People Living with HIV and AIDS says criminalizing HIV transmission cannot work in a country like Zambia which has a high prevalence rate of the disease. Commenting on a story in Swansea, Great Britain where a Zambian man has been jailed for seven years after infecting two women with HIV, NZP+ programme manager Kunyima Banda in an interview described the situation as unfortunate.

According to the South Wales Evening Post, Mweetwa Muleya, 28, had unprotected sex with two women knowing he had HIV and he failed to tell them about his HIV condition before having sex with them. A court heard the women were “devastated” to find out they had caught the life changing illness after going for blood tests.

Asked if Zambia could also introduce a law to criminalize HIV infection, Banda said criminalizing HIV infection would becomes a barrier for people to access HIV/AIDS services.

“It is not right to willfully infect another person but it would be difficult for Zambia because you have to establish whether willful infection did take place, whether the person at a time that they had intercourse, the other person never knew that the partner was infected, that has to be determined as well. You also have to determine that the person actually did want to infect on purpose,” Banda said.

She said Zambia’s current system could not allow the criminalization of HIV because the country was putting interventions where more people could go for be testing.

“If we have a law which criminalizes HIV infection, it means that a lot of people will not go for HIV testing. What it will mean is that if people do not want to know their status, chances of them infecting other people then becomes higher because then they do not know that they are infected with HIV,” Banda said.

“Just imagine if a pregnant woman who has no access to medical facilities then gives birth and the baby gets infected, what do you call that? So all those are issues that we need to consider to make that law in Zambia which will not work for us because we are looking at getting to the 90- 90 target where 90 per cent of the people knowing their status, 90 per cent of people getting their treatment,” she said.

Banda said her organization could not support the criminalization of HIV infection.

She however said NZP+ did not encourage people to go out and infect other people willfully.

Australia: Victoria’s HIV-specific criminal law, Section 19A, finally repealed today

In a joint media release, Living Positive Victoria and the Victorian AIDS Council have welcomed the passage of the Crimes Amendment (Repeal of Section 19A) Act 2015 by the Victorian Parliament. The Act repeals Australia’s only HIV-specific law criminalising the intentional transmission of HIV, section 19A of the Crimes Act 1958, which has been criticised for unfairly targeting and stigmatising people with HIV.

Live Tweets from Victoria’s Parliament today. To find out more about the five year campaign to repeal the law, read this blog post written for the HIV Justice Network by Paul Kidd, Chair of the HIV Legal Working Group.

The two organisations had called for the repeal of section 19A in the lead-up to the 2014 International AIDS Conference, held in Melbourne, as part of an advocacy effort designed to reduce the incidence of HIV-related criminal prosecutions in Victoria.

“Victoria has the unfortunate distinction of having had more HIV-related prosecutions than any other state, and until today had the only HIV-specific criminal law,” said Simon Ruth, Chief Executive Officer, Victorian AIDS Council. “Our organisations strongly believe that HIV should be treated as a health issue, and that criminal prosecutions should only be used in cases where transmission occurs and there is evidence the alleged perpetrator acted with intent.”

The use of the criminal law to control HIV has been roundly criticised by legal theorists, HIV experts and international agencies. The Joint United Nations Program on HIV/AIDS has called for HIV-specific criminal laws, like section 19A, to be repealed.

“Today we can be proud that Victoria has repealed its HIV-specific criminal law, and in doing so, reaffirmed its commitment to treating HIV as a public health issue and not a criminal justice issue. Government, community and industry need to work together if we are to meet our goal of eliminating HIV transmissions by 2020, and the multi-party support for repealing section 19A shows our legislators are listening and prepared to enact evidence-based policies,” said Brent Allan, Chief Executive Officer, Living Positive Victoria.

The repeal of section 19A will not legalise the intentional transmission of HIV, but will ensure that any allegation of intentional transmission is dealt with under general laws, the same as for other forms of injury. The campaign to repeal the laws highlighted the stigmatising effect of HIV criminalisation.

“Criminalising HIV transmission and exposure isn’t just ineffective as a method of prevention, it is actually counterproductive to our efforts because it perpetuates stigma,” said Paul Kidd, Chair of the HIV Legal Working Group. “We know the stigma around HIV is one of the biggest barriers to increasing testing and treatment, and enabling voluntary disclosure of HIV. Section 19A sent a false message that people with HIV are a danger to the community, and todays repeal shows the Parliament accepts that we are not.

“This is a law that was never needed, and should never have been enacted. It has not made Victorians safer, and in fact may have led to an increase in the number of people living with HIV. The whole Victorian community should be happy to see it go.”

The HIV Legal Working Group has been the recipient of GLOBE, VAC and Living Positive Victoria awards for its work on the repeal of section 19A. A community celebration of the repeal of section 19A is being planned and will be announced shortly.

In a blog post written exclusively for the HIV Justice Network, Paul Kidd highlights that although this battle has been won, the work against unjust prosecutions in Victoria is yet not over.

“Now that section 19A is gone, our work continues, he writes. “We still need to address the unacceptably high number of prosecutions for ‘HIV endangerment’ that occur in Victoria. We strongly believe we have a model that will deliver the right public health outcomes while safeguarding the public, without the use of expensive, ineffective and highly stigmatising criminal prosecutions. With the repeal of section 19A, our state government has recommitted itself to a health-based response to HIV, and we believe that gives us the best possible platform to continue our campaign for prosecutorial guidelines.”

Repealing Section 19A: How we got there, by Paul Kidd, Chair of the HIV Legal Working Group

Australia’s only HIV-specific criminal law, section 19A of the Crimes Act in the state of Victoria, has now been repealed. This is an exciting step forward for those of us working to turn around Victoria’s poor record on criminalisation of HIV. This blog entry outlines the process we used to achieve this historic reform.

This story starts just before the 2010 International AIDS Conference in Vienna, at the first-ever HIV criminalisation pre-conference meeting, co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV (GNP+) and NAM (who host the HIV Justice Network). Attending this meeting and hearing about the incredible work being done in this area was the inspiration for starting a joint advocacy project to address the issue here in Victoria. The partners in that project are the two largest HIV organisations in our state, Living Positive Victoria and the Victorian AIDS Council.

Our objectives were to achieve a set of prosecutorial guidelines, on a similar model to those adopted by the Crown Prosecution Service for England and Wales, and the repeal of s 19A. Although our initial focus was on the guidelines, with the announcement that Melbourne would host the 2014 International AIDS Conference, we decided to shift our focus to the repeal of s 19A. We felt that by focusing on a law that was manifestly out of step with best practice, we could use the conference to embarrass our legislators into action. With a state election due three months after AIDS 2014, we felt confident we could make political headway with the issue.

Section 19A makes it a criminal offence to intentionally transmit a ‘very serious disease’, which is defined to mean only HIV. It carries a maximum 25-year prison sentence, making it one of the most serious crimes on the Victorian statute book. It was enacted in 1993, following a high-profile case in which a prison officer in NSW was stabbed with a hypodermic syringe, and a number of cases in which blood-filled syringes were used in armed robberies.

Although the law was passed, supposedly, to deal with this kind of ‘syringe bandit’ assault, in practice it has been applied exclusively against people accused of sexual transmission of HIV. Although only a handful of cases have ever been prosecuted (and none successfully), s 19A has often been charged, or used as a threat against people accused of reckless transmission or endangerment. Its presence on the statute book has sent an unwelcome and false signal that people with HIV are a danger to public safety.

Additionally, we were armed with a solid evidence base – particularly the reports of UNAIDS and the Global Commission on HIV and the Law, which specifically criticise HIV-specific laws like s 19A.

We made a point of telegraphing our intentions to the government and opposition political parties well ahead of the conference. We developed a policy brief setting out the case for repeal of the section, and sought dialogue with both parties in the months before the conference. We wanted to give them every opportunity, at a time when the eyes of the world would be on us, to take action that would generate international attention and goodwill.

Our approach to the government was initially rebuffed, with a curt reply that they had no intention of changing the law. The Labor opposition, which had opposed the law in 1993, was more welcoming and we were able to explain our position at a number of meetings leading up to the conference. We were unable to get a commitment for action, but we were confident that both sides knew what we were asking for.

We gathered together a strong coalition of supporting organisations who agreed to back our call. As well as the HIV sector, we had support from the broader civil sector (organisations focused on human rights, mental health, gay and lesbian rights) and from the legal sector, particularly the criminal bar. We had the backing of the AIDS 2014 chairs. We spent a good deal of time before the conference drafting talking points that enabled us to get our media messaging clear, and thinking about ways to get our message out to conference delegates already being showered with slogans, messages and leaflets.

As the conference approached, however, we had no commitment from either party. We were taken by surprise when the health minister used a speech opening the ‘Beyond Blame’ HIV criminalisation pre-conference to make a commitment to ‘amend section 19A to make it non-discriminatory.’ Given the blunt ‘not interested’ we had received a couple of months earlier, this was a stunning turnaround, but still fell short of what we wanted – full repeal of section 19A. Worse, the way the announcement was phrased suggested the scope of the law could in fact be widened to include other diseases like hepatitis C – the last thing we wanted.

IMG_7441

As the conference week progressed, we continued to press our case and to highlight the need for repeal. We garnered positive press coverage following a media conference held on the opening day (even the tabloid press gave us a sympathetic hearing). The sight of thousands of protesters marching through the streets of Melbourne with signs reading ‘#REPEAL19A’ made the evening news. We publicly called on the government to clarify why they were saying ‘amend’ rather than ‘repeal’. Behind the scenes, we used every social event and reception to buttonhole politicians and push our case, highlighting the goodwill that an announcement would generate for them on the international stage. It was an exhausting week, but with each passing day we knew our opportunities were diminishing.

IMG_7443

Finally, on the last full day of the conference, the opposition Labor Party committed to full repeal of section 19A, within one year, if they won the election in November. The word came though via text message while I was sitting in a conference session on criminalisation advocacy, and I felt close to tears as I told the room what had happened. We now had commitments from both major parties, meaning reform of the law was almost assured.

Following the conference, we continued to push the government to explain how they intended to ‘amend’ section 19A and pressed our case for full repeal further. We never got an answer to our question, because the government didn’t bring the legislation forward before the expiry of the parliamentary term, then at the election there was a change of government.

The Labor Party, which had unambiguously promised to repeal s 19A, was now in government, and one of the most pleasing things about the last five months has been seeing them stick to their guns around 19A. Seeing government ministers on gay pride day carrying a banner saying ‘repeal section 19A’ was amazing.

I think the key message from our experience is that if you have an opportunity and you plan well, you can make tremendous use of it. I realise most activists won’t have the luxury of having the international AIDS conference come to their city, but hopefully other opportunities exist where local and global attention can be used to highlight inequities in the law. Building collaborations and learning from what has worked elsewhere is vital, but develop a strategy that suits your local needs and capacities.

Don’t be deterred if others disagree with your strategy – I’ve lost count of the number of times I’ve been told that criminalisation isn’t a first-order issue, or that by advocating for change we risk ‘making things worse’, or that by advocating too hard we risk getting nothing in return and pushing the issue off the agenda.

Now that s 19A is gone, our work continues. We still need to address the unacceptably high number of prosecutions for ‘HIV endangerment’ that occur in Victoria. We strongly believe we have a model that will deliver the right public health outcomes while safeguarding the public, without the use of expensive, ineffective and highly stigmatising criminal prosecutions. With the repeal of section 19A, our state government has recommitted itself to a health-based response to HIV, and we believe that gives us the best possible platform to continue our campaign for prosecutorial guidelines.

Paul Kidd (@paulkidd) chairs the Victorian HIV Legal Working Group.

US: [Update] Texas HIV criminalisation bill defeated (link does not reflect this updated news)

The Texas State House is considering SB 779, a bill that would allow any HIV test results to be used in any criminal proceedings against a person with HIV in Texas. This bill is unnecessary – Texas law already allows law enforcement and public safety officials to conduct HIV testing on individuals when appropriate, but there are privacy measures to keep these tests confidential. This bill goes much further – HIV tests could be subpoenaed and used in any criminal proceeding.

HRC opposes this legislation because stigma against people with HIV may bias criminal proceedings, this may unfairly result in enhanced penalties, and of course, because it undermines medical privacy.

From a public health perspective, it is inadvisable and dangerous to create obstacles that might prevent people from seeking or receiving HIV tests. If this bill passes, having a positive HIV test result may be used to enhance penalties or foster bias in criminal proceedings, which creates an incentive for the public to avoid testing. Everyone deserves medical privacy.

SB 779 has already passed the Texas Senate, so this is our last chance to stop this bill from becoming law. Please, if you live in Texas, reach out to your state representative and urge them to oppose SB 779. HRC is also coordinating with state and local advocates to oppose this measure, which compromises the privacy of people living with HIV and public confidence in HIV testing.

US: HIV Criminalization Task Force being set up to challenge Florida's HIV-specific criminal law

On April 3, 2015, SFGN interviewed Tami Haught, Sero Project Criminalization Conference Coordinator to discuss the HIV Criminalization Task Force in Florida.

Could you define “HIV criminalization” for the readers of SFGN?

“HIV criminalization” is the wrongful use of HIV status in a criminal prosecution, even when transmission was unlikely or impossible (a condom was used, the PLWHA had an undetectable viral load, or the behavior posed no risk of transmission, such as in biting, scratching, or spitting).

In discussions of HIV criminalization, “intent” has a similar importance to “consent” in discussions of sexual behavior. Could you explain how important “intent” is in this discussion?

The lack of intent is much easier to prove than intentional transmission. The lack of intent can be proven if you are doing everything right, like so many people living with HIV are. You’re taking your medication, you’re virally suppressed, or you’re using protection. Those defenses show that you are not intentionally trying to transmit HIV, because you are protecting yourself and your partner by taking your medications and using protection. Any of this would indicate an interest in not transmitting the virus, but under current HIV criminalization law, using a condom, or adhering to a medication regimen are irrelevant.

These laws appear to be based on a “protectionist” model of sexuality rather than an empowerment model. Could you discuss how the “protectionist” model has the potential to harm the very people it’s supposed to benefit?

When people think of sexual protection, generally it’s women being protected from men. Women, however, go to the doctor more often, and are more likely to take the HIV test than men are. These laws only target people who have taken the test and gotten their results.

Men have used the threat of these laws to keep HIV positive women from leaving them. After a break up, people have filed complaints based on these laws as revenge.

Could you discuss how HIV criminalization has worked in Florida?

There have been 250 charges filed in Florida and 153 convictions in Florida from 1998 to 2012. So far, the project has not been able to get breakdowns by race, gender, or sexuality. Lambda Legal and the ACLU are involved in this project.

You’re in Florida to set up an HIV Criminalization Task Force. Can you describe what you hope that Task Force will do?

The task force should include diverse people willing to advocate but also to reach out to legislators in Tallahassee for the reform of these laws. Floridians need to decide on how you want your laws to be modernized and what your political reality is. There will come a time when Floridians have to determine what is the minimal change that you will accept.

We have to reach out to faith based communities, everyone. It is not an easy conversation to have. It often takes more than one conversation. We’re going to have to be ready for the long haul, be persistent, and never give up. Because it can be done, but it’s definitely not easy.

Is there anything else you would like to say to the readers of SFGN?

We need your voices. We need your stories. Not just to legislators but also to other community members. It is by touching people’s hearts that we can make a difference to change the law.

If people wanted to find out more about the Florida HIV Criminalization Task Force, how could they?

To get involved with the Florida HIV Criminalization Task Force, people can email me at tami.haught@seroproject.com and I can get you added to the google group.

U.S. Court of Appeals for the Armed Forces Vacates HIV Aggravated Assault and Reckless Endangerment charges in Case of LTC Kenneth Pinkela (Press Release)

Press Release from The Sero Project

Ken Pinkela serves as a member of Sero’s Advisory Board.

New York, NY April 24, 2015:

The United States Court of Appeals for the Armed Forces (CAAF) has vacated HIV-related Aggravated Assault and Reckless Endangerment charges in a U.S. Army case involving LTC Kenneth Pinkela.

In the official CAAF announcement released on April 22, 2015, the high court said:

That said petition is hereby granted on the following

issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND

A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED

ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES

128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE

HIV-POSITIVE.

That the decision of the Army Court of Criminal Appeals is

vacated and the record of trial is returned to the Judge

Advocate General of the Army for remand to that court for

reconsideration in light of United States v. Gutierrez, 74

M.J. 61 (C.A.A.F. 2015)

In February of this year, the CAAF ruled that Air Force Technical Sergeant David Gutierrez, who was accused of not disclosing his HIV positive status to sexual partners, was not guilty of Aggravated Assault and reduced charges against him to Assault and Battery. At the time of the alleged sexual contacts, Gutierrez was on antiretroviral medication, had an undetectable viral load and was not accused of transmitting HIV.

The Sero Project, a national network of people living with HIV, applauds the CAAF for its rulings in both the Gutierrez case as well as the more recent ruling in the Pinkela case, but noted the military still is out of step with contemporary science and other arms of the U.S. government.

“While the Centers for Disease Control, the U.S. Congress, the National Institutes of Health and other government agencies categorize HIV as a chronic manageable illness, military lawyers and military court decisions still explicitly label HIV as a ‘death sentence.’ They can’t have it both ways. While we applaud CAAF’s recent decisions, it is time for the entire Department of Defense to address HIV for the reality it is today, based on science not stigma,” said Sean Strub, Sero’s executive director.

The Sero Project called on the U.S. Army to re-evaluate its prosecution against Pinkela, who also serves as the volunteer director of Sero’s Military Policy Project. “There’s no rational basis for continuing to prosecute Ken,” said Strub.

Pinkela’s military legal counsel has accused the Army of inadequately investigating the charges against Pinkela and of refusing to allow critical evidence to be presented at trial. Pinkela has volunteered to undergo phylogenetic testing, which could prove the complaining witness acquired HIV from another party, but the prosecutors declined to order such a test.

In the National Defense Authorization Act (NDAA) of 2014, Congress included specific direction to the Secretary of Defense to review and report back to Congress on all HIV- related personnel and disciplinary policies and procedures, to make sure they are consistent with contemporary science. That report has not yet been released.

H.R. 1586: Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2015, introduced by Rep. Barbara Lee (D–Cal.) and Rep. Ileana Ros-Lehtinen (R–Fla.), seeks to help end the criminalization of HIV by providing guidance to the states and military to modernize their statutes to make them reflect contemporary science and not unduly stigmatize people with HIV.

The Sero Project is a network of people with HIV and allies fighting for freedom from stigma and injustice. Founded in 2012, Sero raises awareness, conducts research and mobilizes grassroots communities, policy leaders and advocates to address HIV criminalization.

U.S. Court of Appeals for the Armed Forces Vacates HIV Aggravated Assault and Reckless Endangerment charges…

Kenya: Detailed analysis of recent High Court ruling on Kenya’s HIV-specific law by Annabel Raw, head of Health Rights Programme at the Southern Africa Litigation Centre

On 18 March 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act (“Act”) unconstitutional. I applaud the impetus of the decision but I want to argue that the narrow focus of the Court’s judgment reduces its potential to advance rational health policies and laws.

Section 24(1) of the Act requires a person aware of being HIV-positive to “take all reasonable measures and precautions to prevent the transmission of HIV to others” and to “inform, in advance, any sexual contact or persons with whom needles are shared” of their HIV-positive status. Subsection (2) prohibits “knowingly and recklessly, placing another person at risk of becoming infected with HIV”. Contravention of these provisions is a criminal offence punishable by imprisonment for up to seven years, and/or a fine. Under section 24(7), a medical practitioner who becomes aware of a patient’s HIV-status may inform anyone who has sexual contact with that patient of their HIV-status.

In 2010, the AIDS Law Project sought a declaration that section 24 of the Act was unconstitutional and “unacceptable discrimination” on the basis of health status. It argued that the undefined terms of “inform”, “in advance” and “sexual contact” renders section 24 vague and overbroad, contrary to the principle of legality. It submitted that the provision violates the right to a fair hearing, equality, non-discrimination, and sexual privacy. The petitioner was supported by an amicus curiae, the Centre for Reproductive Rights, which made submissions on the disproportionate impact that the provision would have on women, exacerbating stigma and undermining public health interventions.

In a unanimous judgment of a sitting of three judges of the High Court, Lenaola HJ held that the central issue was the provision’s vagueness and overbreadth. Focussing solely on the absence of a definition for “sexual contact”, the Court held that it is impossible to determine what acts are prohibited. Further, given that section 24 places no obligation on sexual contacts who have been informed of another’s HIV-status to keep that information confidential, the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

Similar criminal provisions exist in a number of countries. The Constitutional Court in Zimbabwe is, for example, currently considering the constitutionality of Zimbabwe’s HIV criminalization law. The Kenyan judgment must be applauded to the extent that it emboldens the human rights critique of these laws and compels the Kenyan government to reconsider the provision.

It is disappointing, however, that the privacy violations were constructed so narrowly, with the Court failing to appreciate the risks of criminalizing non-disclosure more broadly, particularly for vulnerable groups, as raised by the amicus. Furthermore, by framing the vagueness and overbreadth ruling so strictly, the inhibiting effects of criminalization on effective public health interventions remain legally unscathed.

Insofar as the courts may be a useful forum to advance health rights and public health, perhaps a better legal foundation would be a rationality review of legislation. In a number of common law jurisdictions, this entails testing conduct or law against the ends that it claims to achieve. The standard typically requires that conduct needs to be rationally connected to a legitimate government interest or purpose in order to be lawful.

As made clear by the Act’s long title, its purpose is to prevent, control and manage HIV and AIDS, promote public health, and deliver appropriate care for persons living with HIV. The criminalization of HIV transmission and non-disclosure has come under heavy criticism by leading international experts and bodies for failing to protect human rights in a way that promotes public health initiatives for the effective treatment and control of HIV. If the argument against criminalization of HIV transmission is found persuasive in court, the legislation should be found irrational because it employs a strategy that is harmful to its purported ends.

It is in this sense that we might consider rationality review when using the courts in similar jurisdictions as fora to insist on public health policies and laws that are founded in scientific evidence and not fear and stigma.