Canada: Ruling from Ontario court of appeal opens the door for other people with HIV to seek to have their convictions overturned

‘I was made out to be a monster’: With her conviction for not disclosing her HIV status now overturned, one woman wants Canada’s laws to change

Jennifer Murphy was convicted for not disclosing her HIV status to a sexual partner, despite being unable to transmit the virus.

When Jennifer Murphy was found guilty of aggravated sexual assault, her face was splashed all over the news — her life changed due to a conviction that has now been overturned.

The 2013 conviction in a Barrie, Ont. courtroom was for not disclosing her HIV-positive status to a sexual partner in a consensual encounter. At the time, she had an undetectable viral load thanks to medication, and was therefore unable to transmit the virus.

“I was made out to be a monster,” she said in a statement to the Star last week.

Murphy was sentenced to more than three years in prison, minus 15 months for time served in pre-sentence custody.

“It was all over the news and my family and friends had to read that and feel the pain and agony,” she said. “They had to worry about their daughter or their mother and what would happen to her.”

Canadian law requires an individual living with HIV to disclose their status to a sexual partner if there is a realistic possibility of transmission. At the time of Murphy’s conviction, it was generally understood within the legal system that disclosure was not necessary if the individual had both a low viral load and used a condom. No condom was used in the Murphy case.

Earlier this month, the Ontario Court of Appeal overturned Murphy’s conviction and entered an acquittal, accepting fresh expert evidence that Murphy’s undetectable viral load meant there was no realistic possibility of transmission of the virus.

The decision opens the door for other people with HIV in Ontario, found guilty in situations similar to Murphy’s, to seek to have their convictions overturned.

“I want them to get justice, too,” she said.

The ruling also comes as the federal government plans to reform the law on HIV nondisclosure, impacting the whole country — a move advocates hope will see the justice system finally recognize that the science has evolved around HIV, and that a person with an undetectable viral load simply cannot transmit the virus.

They say the ongoing criminalization of HIV nondisclosure continues to perpetuate stigma against people living with HIV.

“The community has been calling on the government to act for years,” said Alexander McClelland, assistant professor at the Institute of criminology and criminal justice at Carleton University, and a member of the Canadian Coalition to Reform HIV Criminalization.

“People living with HIV, legal experts, have been calling out the heinous record of Canada being a leading country in the world for criminalizing HIV nondisclosure.”

There are a number of reasons why a person doesn’t disclose their HIV status to a sexual partner, he said, including fear of violence.

“Our faces are on the covers of newspapers framed as violent perpetrators,” he said. “As someone who has done research on this, I can tell you nothing is further from the truth. People living with HIV want to protect their partners, they want to protect themselves, they want to live lawfully and freely and be able to have positive, healthy sex lives.”

As Murphy put it, “Right now, you can be convicted despite doing everything right — taking medication and suppressing your viral load.”

After several months of community consultation, the coalition released its second consensus statement in July, calling for changes to the Criminal Code that would limit prosecutions to the “very rare” instance where there was intentional, actual transmission of the virus.

The statement, signed by dozens of organizations, describes Canada as a “global hot spot” for nondisclosure prosecutions, saying there had been more than 220 by the end of last year, with the Black, Indigenous and gay communities being disproportionately affected.

There are no HIV-specific offences in the Criminal Code. The consensus statement points out that police and prosecutors will typically use the charge of aggravated sexual assault in nondisclosure cases, which carries a maximum prison term of life, mandatory designation as a sex offender, and “almost certain deportation” for non-citizens.

Murphy was required to take sex offender counselling in prison, “which was degrading and humiliating,” and she also had to deal with other inmates also knowing about her case.

“The outside world was judging me while the inside world was doing the same,” she said. “I would put myself in segregation just to get away from everyone.”

The federal government announced at the end of July that it will hold consultations in October “on how best to modernize the criminal justice system’s response to nondisclosure of HIV status” given the scientific evidence on sexual transmission of HIV.

Faced with criticism as to whether further consultation is necessary, Justice Minister David Lametti said in an interview last week it will not be lengthy, but rather “focused and targeted” with expert advocacy groups.

“I’m going to try to put an end, a positive end, to all of this as soon as possible,” he said. “No one should underestimate my good faith on this.”

After studying the issue, the House of Commons standing committee on justice recommended in 2019 that the government create a specific Criminal Code offence for actual transmission of infectious diseases, including HIV. The coalition is against adding an HIV-specific offence to the code for fear of perpetuating further stigma.

“I understand very well the point that such an offence would, in all likelihood, lead to continued stigmatization of people living with HIV and that is something we do not want to do,” Lametti said.

The coalition is calling for Criminal Code reform that would prohibit the ability to prosecute nondisclosure cases under sexual assault offences, and to limit the use of any other offence to intentional, actual transmission of the virus, while stating that the use of the criminal law should be a measure of last resort.

“The science around HIV has evolved, we know more now,” Lametti said. “We know that there’s stigma that’s been attached, that sexual assault laws are not appropriate and cumbersome and lead to results that are frankly unjust.”

An undetectable viral load can be achieved by taking medication, and essentially means “you cannot see the virus based on the conventional systems that we have to detect it,” said infectious diseases physician Dr. Isaac Bogoch. He highlighted a slogan that has gained much traction in recent years: U = U, undetectable equals untransmittable.

“It’s not only scientifically accurate, but it’s a way that we can help destigmatize HIV infection because it’s simple, it’s easy to understand, and it’s universal,” said Bogoch, a physician with the HIV Clinic at Toronto General Hospital.

“These are individuals who will not be able to transmit HIV to others. They just won’t.”

It was a 2012 Supreme Court of Canada decision known as R. v. Mabior that found a low viral load and condom were required to avoid prosecution for HIV nondisclosure, and it was that standard that was applied to Murphy’s case in 2013. But the top court also said the double requirement “does not preclude the common law from adapting to future advances in treatment.”

Murphy’s appeal lawyer, Colleen McKeown, asked the Court of Appeal to “identify a new set of circumstances” in which there’s no realistic possibility of transmission — and therefore disclosure is not necessary — namely that the person has a suppressed viral load and is taking antiretroviral medication. The court’s ruling on that issue is pending.

“I hope that it offers a path forward for people who might be in a similar situation to see their convictions overturned as well,” McKeown said of the Murphy appeal. She said even individuals who pleaded guilty when the “legal landscape” was different could take steps to see if they could get their convictions overturned.

In the years since the Mabior decision, at least four provinces — Ontario, Quebec, British Columbia and Alberta — have adopted a mix of official guidelines and unofficial policies to curb HIV nondisclosure prosecutions.

In the territories, where federal prosecutors handle criminal cases, Crown attorneys have been told not to prosecute if there is an undetectable viral load, and to “generally” not prosecute where a condom was used or if the person engaged only in oral sex, even if the viral load was not suppressed.

In Ontario, Crowns were instructed through provincial guidelines in 2017 not to prosecute if the individual is on medication and had an undetectable viral load for at least six months, but is silent on condom use alone.

“The result of prosecutorial guidance is you get an inconsistent approach across Canada,” said India Annamanthadoo, policy analyst at the HIV Legal Network and member of the coalition. “Why we’re advocating for Criminal Code reform is that it will be a consistent approach across Canada.”

McClelland added that “being someone living with HIV, having an inconsistent understanding or uncertainty about what I could be prosecuted with and where, is a completely unreasonable way to live a life in Canada as a Canadian resident.”

The coalition is also calling on the government to end the deportation of non-citizens following a conviction, and to review past convictions.

“There are a lot of people who were convicted in discriminatory and unscientific circumstances and those convictions need to be reviewed,” said Annamanthadoo, “so people do not have to live under the label of a criminal and a sex offender.”

Murphy said she’s still absorbing the impact of the Court of Appeal’s decision.

“I am worried that, even with my conviction overturned, there will still be people who will judge me. I shouldn’t have to live with it, but I do,” she said. “It doesn’t erase the stories on the internet. All the negative publicity will still be there.”

But she said it means she gets to focus on changing the law, urging the federal government to take action and finally provide some certainty to people living with HIV.

“It’s a human rights issue. It discriminates against people who have an illness,” she said.

“I want the public to know that people with a suppressed viral load pose no threat to anyone.”

 

United Nations Development Program continues to advocate for the global decriminalization of HIV

Decriminalization of HIV is ‘Scientifically Proven and Morally Correct’

Across the globe, one hundred and thirty-four countries are criminalized or prosecuted due to criminal laws against HIV transmission, non-disclosure and exposure. Lower rates of HIV treatment and viral suppression are present and more likely in those countries that criminalize the virus. In a recent article by Mandeep Dhaliwal, director of the HIV and Health Group for the United Nations Development Program, states that the decriminalization of HIV is “scientifically proven and morally correct.”

Laws that target people living with HIV hinder the progress of the United Nations’ political declaration to ends AIDS by 2030, which is supported by 165 countries.

Dhaliwal explains that criminalization is constructively harmful, cost lives, and wastes money. HIV criminalization targets fixed populations that include sex workers, men that have sex with men, transgender people, needle users and their partners, and other marginalized groups. In 2021, these groups, combined, accounted for 70 percent of new HIV cases.

In order to reach the goal to end HIV as a public health threat, the idea to achieve “10-10-10.” The 10-10-10 initiative is a set of targets that encourages countries to repeal punitive laws and policies in conflict with ending stigma, discrimination, and gender-based violence.

Specifically the targets would need to achieve: “less than 10 percent of people living with HIV and key populations experiencing stigma and discrimination; less than 10 percent of people living with HIV, women and girls, and key populations experiencing gender-based inequalities and gender-based violence; and less than 10 percent of countries with legal and policy environments that deny or limit access to HIV services.”

Dhaliwal also helped assemble the Global Commission on HIV and the Law, which works to help countries and their communities end discriminatory laws that wrongfully punish people, perpetuate illness and poverty, and prevent the progress of ending HIV.

Pressure to produce more content with fewer staff hinders journalists ability to improve their media coverage of HIV criminalisation

Journalists’ working conditions foster stigmatising coverage of HIV criminalisation

For many years, HIV activists and researchers have criticised the stigmatising way that HIV criminalisation cases are covered in the mainstream press. However, an ethnographic study recently published in the Canadian Review of Sociology argues that the working conditions in which journalists now operate makes it extremely challenging for them to improve their reporting on HIV criminalisation.

With the shift to online news creating revenue challenges, newsrooms are under pressure to produce more content with fewer staff. This has resulted in journalists relying on police press releases as sources of news for crime stories, including HIV criminalisation. The author of the study argues that, without targeted efforts to disrupt the mainstream narrative on HIV criminalisation, “this type of newswork makes it likely that longstanding patterns of sensational, stigmatising news will persist.”

Previous studies highlight how reporting on HIV criminalisation often makes people living with HIV seem dangerous to society and exaggerates the risks of HIV transmission. Such messaging frequently relies on harmful gender and racial stereotypes and serves to increase stigma towards people living with HIV and other marginalised communities. It also has serious negative repercussions for those individuals involved in cases, making them ‘eternally googleable’ which can prevent them from gaining employment or housing.

HIV criminalisation laws in Canada are especially severe, with people living with HIV at risk of conviction for non-disclosure of their HIV status to sexual partners – even when transmission has not occurred.

Dr Colin Hastings of Concordia University in Canada wanted to understand how journalists go about writing stories on HIV criminalisation, with the hope that this might reveal opportunities for HIV activists and advocates to improve reporting on this topic. He therefore undertook ethnographic interviews with 20 journalists and one police communications representative. The interviews generally started with a question asking the participants to describe a typical workday and explored the conditions which influence their everyday activities.

Findings

The interviews revealed that the pressure on journalists to produce a constant flow of content across multiple platforms hinders their ability to conduct fact-checking or more in-depth investigation. A reporter described how he considers:

“Every hour as a deadline… so sometimes I’m like, ugh, this story could have been so much better had I had time to go through everything.”

In this context, repurposing ready-made text from other sources represents a quick and efficient strategy for producing content. When writing crime stories, this usually means relying on press releases issued by the police – whose communications departments are adept at ensuring that their texts flow easily into newsrooms.

An online web editor described how her work consisted of “copy and pasting it pretty much” while a reporter said:

“With the police, I just usually do the stuff they send out, they send a daily update of what’s happening on their side, the police side, and usually I take a look at that and re-write those.”

Many of the interviewees felt this was an unfortunate but inevitable fact of contemporary journalism, as they struggle to keep pace with the unrelenting online news cycle. Yet the interviews demonstrated how the reliance on police press releases means that it is not only information provided by the police but also the police’s perspective on an event that is repackaged as ‘news’.

A police communications representative mentioned in their interview that a key factor in the police’s decision to publish a press release about a case is whether they believe there is a threat to public safety. This threat is made clear by combining an individual’s name, photo, and personal information with descriptions of criminal charges they face and language emphasising the danger they pose – for example, “police are concerned there may be more victims”.

In the context of HIV criminalisation, this means equating non-disclosure of HIV with dangerous criminality. Journalists covering crime stories often do not have the experience, time, or resources to question this, as outlined by a veteran reporter:

“HIV non-disclosure was always covered as a crime if the police think it’s a crime… the cops say this is a crime, and you say oh god this is a crime, crime is bad, this person is a bad person.”

The language of public safety also serves as a signal to journalists that a case may be particularly newsworthy. A breaking news reporter said:

“They [the police] might say very clearly that there is a huge public safety element… Language like that is a really good indicator [of newsworthiness] for us.”

What determines newsworthiness is also directed by what is likely to be read and shared widely. ‘Good’ headlines are those that draw the highest volume of readers to the story. An experienced reporter named Lisa explained how this creates pressure to choose more salacious wording for headlines about HIV criminalisation:

“You can write two headlines for your story, and the [software] system will push them out there and then you can see which headline is attracting more clicks so that at a certain point you can just bail on the more boring headline and go to the salacious headline that’s working better.”

As well as the police press releases serving to provide journalists with ready-made sources of content, the police communications representative recognised the work of journalists as a cost-effective and time-efficient part of policing work:

“We now see regularly criminals surrendering shortly after we put their pictures up. And if you think about, our main account we reach thousands of people, but if a news organization with 1.75 million retweets, it means everyone in the city is going to get it… Out of all the stuff that we do, that’s the most satisfying because no one expects us to be able to get a homicide investigation to surrender, and these things are very expensive and very time consuming.”

Given that the police often reinforce social, racial, and economic inequities in society, this extension of their influence is likely to be perceived by many as a worrying development.

Conclusion

This study exposes how the pressure on journalists to produce a constant flow of online news content has reduced many to copying and pasting police press releases, since they have little time to investigate and provide further context. This results in journalists reproducing the perspective of the police in news coverage, which constructs people living with HIV as a threat to public safety.

Hastings notes that not all of the journalists interviewed felt comfortable with the reliance on police press releases as sources of news. Yet their working conditions have made it increasingly difficult for them to disrupt problematic news coverage.

While acknowledging the significant contributions already made by HIV activists to improving media coverage of HIV criminalisation stories, Hastings makes the following suggestions for activists’ efforts:

  • Producing texts (such as press releases) that can compete with those published by the police
  • Campaigning to update and reform journalistic style guides which reporters follow when crafting a story
  • Producing specialised guides for reporting on social justice issues
  • Supporting and investing in news organizations and alternative presses that practice slower, long-form journalism
  • Expanding the efforts of community-based organizations to produce their own messaging through independent publishing, social media campaigns, or in-person community forums
  • References

    Hastings C.  Writing for digital news about HIV criminalization in Canada. Canadian Review of Sociology, online ahead of print, 7 February 2022. doi: 10.1111/cars.12374

US: Women living with HIV at the forefront of the fight against HIV criminalisation

Ending HIV Criminalization Starts With Me

Tiffany Moore had a panic attack at a Tennessee playground. That’s how her 2021 ended.

All she’d wanted was to give her 8-year-old daughter the gentle childhood she’d never had. By age 10, Moore had for years been strapped down repeatedly in mental health wards and “pumped full of drugs” in different hospitals. That was in addition to the abuse she’d experienced at home. Half a decade later, she would be on the streets, surviving through work with sex traffickers and pimps. At age 10, she says, she didn’t expect to see adulthood. Now, as a mother, she was determined her daughter would grow up enjoying her childhood experiences, including afternoons on swings and slides with her mommy.

But until December 2021, when a change in Tennessee law that she fought for went into effect, Moore was legally forbidden from visiting a playground. That’s because at 21, she was convicted of aggravated prostitution—the aggravation being that she’d acquired HIV during a rape. And even though she did not transmit HIV to anyone, Moore spent 20 years on Tennessee’s sex offender registry as a result of her status.

Within weeks of her removal from the registry, Moore was at a playground surrounded by children, and every fiber in her body told her to flee, that she was one call to the police away from being separated from her daughter.

“They’ve instilled for 20 years that you’re a danger to children and your child. You can’t go here; you can’t go there. You can’t be here; you can’t be there,” she says. “I just know—I know I have a lot of pieces to pick up.”

She’s not alone. Though the public face of HIV criminalization laws has been primarily gay men—particularly gay Black men—recent data show that such legislation also targets Black women.

In particular, research conducted by the Williams Institute at the University of California at Los Angeles has found that in California, for instance, Black women make up 3% of the population and 4% of people living with HIV but 22% of people prosecuted under that state’s old HIV criminalization law.

In Georgia, Black women make up 17% of the population and 18% of those living with HIV but fully half of people prosecuted under that state’s HIV criminalization laws. In Kentucky, which has a law similar to Tennessee’s, 32 people have been arrested on HIV criminalization charges. All but one of those charges was associated with sex work. In that state, those arrested have mostly been white women. According to an article in a Tennessee newspaper, by 2009, 38 people besides Moore had been arrested under the aggravated prostitution charge.

“The image we have around HIV criminalization laws maybe is of a gay cisgender man who doesn’t disclose his status to a sex partner,” says Nathan Cisneros, MS, the Williams Institute’s HIV criminalization analyst and the coauthor of the Kentucky study as well as a forthcoming report on Tennessee’s laws.

“What we find in states that have prostitution-specific HIV laws, though, is that sex work ends up taking on a substantial minority, sometimes a majority and sometimes the overwhelming majority of enforcement actions. And those primarily affect women,” he says.

Because arrest records reflect someone’s assigned gender at birth and not their preferred gender, it’s unclear how many of those arrested are women of transgender experience living with HIV, but other data suggest that this group is overrepresented among sex workers nationwide.

Yet women with HIV aren’t just the target of these laws—they are also fighting them, forming coalitions, writing legislation and, like Moore, testifying about the science and impact of the laws to effect change.

Today, 30 states have statutes specifically prosecuting people living with HIV for real or imagined crimes related to HIV transmission or exposure, according to The Center for HIV Law and Policy.

The list of potential crimes reads like an HIV stigma fever dream. In some instances, people with HIV can be arrested for allegedly not telling a partner they are living with the virus—even if they are taking HIV medications and are undetectable, which eliminates the risk of transmitting it to a partner.

They can be prosecuted even if they did tell the partner they were living with HIV but their partner tells the police that they didn’t. In other instances, people living with HIV can be arrested for exposing others to bodily fluids, including via spitting and biting, acts that don’t transmit HIV. Yet other laws prosecute syringe sharing among people living with HIV who inject drugs, and still more criminalize even semen donation by those who are HIV positive and want to become parents.

In addition, nine states have so-called sentence enhancements that can take a preexisting charge unrelated to HIV and increase prison time and penalties for people living with the virus. Six states may require people living with HIV who are found guilty to register as sex offenders.

The states that specifically increase the severity of penalties for people involved in sex work primarily impact women living with HIV. In Tennessee, where Moore lives and served time, a sex work charge alone is a misdemeanor, punishable by a fine. But add in the HIV charge and suddenly a woman is facing a felony, punishable by years in prison. That conviction also requires registration as a sex offender, with the heightened punishment of being classified as a violent offender.

“It makes it difficult to get housing and stable employment, to receive certain benefits, to vote in elections,” Cisneros says. “And of course, if you have children, it creates all these other terrible complications. You can’t pick your child up from school. You can’t visit them at the playground. You can’t have your children’s friends over for a sleepover.”

From the beginning, Moore’s experience of living with hiv was intertwined with incarceration. When she was arrested for sex work in March 2002, the state of Tennessee also required her to get an HIV test. That’s when she found out she was living with the virus.

But she wasn’t allowed a private moment to process it. Instead, when court staff read out the charges at her arraignment, “my status was read out loud in court,” she remembers. For her, she says, that was the “initial attack” in a yearslong journey through the court system.

She wasn’t offered care or services. She simply left jail and went back to her former life. She evaded the public health workers who were circulating her name and photo among the traffickers who could use it to hurt her. She was 20, not even legally able to drink. To cope, she’d been cutting herself for years. When that failed to stop the terror and flashbacks, she turned to crack.

“That was my Prozac,” she says. “My entire left wrist is cut up from my coping skills. [Using drugs] was the way to not cut myself. That was the only way I knew to keep myself safe.”

Now that she knew her HIV status, future arrests carried with them the extra weight of the criminalization statute. By August 2002, she’d been arrested again and could either stand trial, which could result in a 15-year prison term, or she could plead guilty to the charges and accept a four-year sentence with no possibility of parole and be added to the sex offender registry as a violent offender. No one had acquired HIV from her. She hadn’t even been engaged in sex work when the arrest happened. She’d just been loitering in a prostitution zone while living with HIV.

That began what would eventually total eight and a half years behind bars, off and on—always being released between 11 p.m. and 2 a.m., always finding johns waiting for her and always finding that drug treatment centers couldn’t take her because of her HIV diagnosis or her status as a registered sex offender. Halfway houses were out of the question—the sex offender registry again. It was maddening, Moore says now. She wanted to get off the streets, but the criminal code kept her stuck.

One thing did change during this time. She started on HIV meds in prison, at first on drugs that made her sick every day. About three years into her first term, she had an undetectable viral load, which means she couldn’t transmit the virus. But that didn’t stop the arrests from coming.

“I was always arrested before the medication ran out,” she says, so her treatment wasn’t interrupted.

In the Kentucky report from the Williams Institute, Cisneros and colleagues found that most of the arrests were made on the streets or in parking garages. At least 15% of arrests were “almost certainly for conduct that did not involve sex work. Indeed, arrests for allegations of sex work do not need to include actual sex acts.”

In 2011, Moore left prison for the last time. She finally found a treatment center that would accept her despite her status on the sex offender registry. She quit drugs. She started working with an HIV service organization and for the first time began addressing her posttraumatic stress disorder. Importantly, she finally connected with others living with HIV through the Sero Project, a group of people with the virus who are working to change criminalization laws.

And, almost as quickly, she started working to modernize Tennessee’s HIV laws. By 2015, she was also a new mom. What’s more, for the first time, she had her own apartment, a car and a job.

“I started to realize,” Moore says, “that what was done to me wasn’t right.”

Again, moore wasn’t alone. women and nonbinary people living with HIV have been working along with gay men to guide the decades-long effort to reform HIV criminalization laws.

Whether it’s Tami Haught, who was key to getting Iowa to remove people living with HIV from the sex offender registry in 2014, or Barb Cardell, who advocated successfully in Colorado for the elimination of mandatory HIV testing for people arrested for sex work and the removal of felony charges from someone living with HIV convicted of sex work, or Naina Khanna and other members of Positive Women’s Network–USA, who worked to reduce sex work charges for women with HIV from felonies to misdemeanors, women living with HIV have been guiding the movement against HIV criminalization for years.

And that doesn’t even include advocates living in states that have yet to reform their laws, like Indiana, Georgia and Ohio.

So in 2015, when Moore testified before the Tennessee Statehouse to advocate for people placed on the sex offender registry to be able to have themselves removed if they had been sex trafficked, raped or abused, she was part of a bigger sisterhood. But it came at a price. She went back to her old coping mechanism. She relapsed. It was the first time, she says, that she knew what it was like to lose everything because “before, I had nothing.”

In the last seven years, though, Moore has held on to her recovery with both hands.

“I grew up,” she says. “It was like, literally, wisdom overnight.”

Now, she’s stepping into advocacy again. She is part of a complaint filed by The Center for HIV Law and Policy asking the Department of Justice to investigate HIV criminal statutes in Tennessee and Ohio. And it looks like the tide is turning.

In 2016, the Association of Nurses in AIDS Care released the first clinical guidelines on addressing HIV criminalization, and the American Psychological Association officially came out against HIV criminalization laws. This was followed by a consensus statement issued in 2018 by the world’s premier HIV scientists and clinicians arguing that laws should be revised to reflect the actual science of HIV transmission.

The following year, the American Medical Association came out against the laws. Now, the Centers for Disease Control and Prevention’s website has a page dedicated to how HIV criminalization laws are inconsistent with the national effort to reduce new HIV transmissions by 90% by 2030.

For Moore, being removed from the sex offender registry at the end of 2021 was bittersweet. The aftereffects linger, she says, and she still thinks about how Tennessee’s law might be different had she been able to tolerate “the uncomfortable second” that comes with the overwhelming urge to hide in just one more inhalation on a crack pipe.

As written, the law requires people seeking removal from the list to prove that they were abused, raped or otherwise sex trafficked in order to gain their freedom. Courts can require trials that force women to come up with proof of the abuse.

Now, Moore says she’s on a new healing journey, with the registry behind her. She will continue to pick through the traumatic effects of surviving her childhood and living with the stigma of the registry. Still, when she sees her daughter playing in her own room, surrounded by all the things she didn’t have growing up, in an apartment Moore pays for with a job she selected, with a car she owns parked outside, she says a sense of peace and happiness comes over her.

“I just want her to be a kid,” she says. “There’s so much time for her heart to be broken by the world we live in right now. I just want her to play with slime and dolls.”

Russia: Court overturns decision of the Ministry of Justice to include NGO in “foreign agents” register for commenting on HIV criminalisation law

Court orders Ministry of Justice to remove “Humanitarian Action” charitable foundation from registry of “foreign agents”

St Petersburg City Court has ordered the Russian Ministry of Justice to remove the charitable foundation “Humanitarian Action” from the register of “foreign agents” NGOs. This was reported on the foundation’s Telegram channel.

“This is the first time in Russia that an NPO has been removed from the register under a court ruling without rejecting foreign funding,” the report said.

For now, the foundation remains on the register of “foreign agents” NGOs.

The St. Petersburg-based charity foundation Humanitarian Action works with drug users and people living with HIV. The organisation was declared a foreign agent in December 2020.

The Russian authorities decided that Humanitarian Action was engaged in “political activities”. Comments on amendments to the law “On the prevention of the spread of HIV infection in Russia” sent to the Ministry of Justice as part of an open public debate were cited as such.

According to OVDInfo, 220 non-profit organisations and unregistered public associations have been included in the register of “foreign agents” since 2012. Of these, 99 were removed from the list due to cessation of activities (liquidation or reorganisation), 40 due to cessation of foreign funding or political activities, five after a complaint about the unreasonableness or illegality of their inclusion in the register was satisfied, and one after property was returned to a foreign source.

Суд обязал Минюст исключить благотворительный фонд «Гуманитарное действие» из реестра «иноагентов»

Санкт-Петербургский городской суд обязал Минюст России исключить благотворительный фонд «Гуманитарное действие» из реестра НКО — «иностранных агентов». Об этом сообщили в телеграм-канале фонда.

«Это первое в России исключение НКО из реестра по судебному решению без отказа от иностранного финансирования», — говорится в сообщении.

Пока фонд остается в реестре НКО-«иноагентов».

Петербургский благотворительный фонд «Гуманитарное действие» работает с наркопотребителями и людьми с ВИЧ. Организацию объявили иностранным агентом в декабре 2020 года.

Российские власти решили, что «Гуманитарное действие» занимается «политической деятельностью». В качестве примера таковой, в частности, приводились комментарии о поправках в закон «О предупреждении распространения ВИЧ-инфекции в России», направленные в адрес Минюста в рамках открытых общественных обсуждений.

По данным «ОВД-Инфо», с 2012 года в реестр НКО-«иностранных агентов» включили 220 некоммерческих организаций и незарегистрированных общественных объединений. Из них 99 были исключены из списка в связи с прекращением деятельности (ликвидация или реорганизация), 40 — из-за прекращения иностранного финансирования или политической деятельности, пять — после удовлетворения жалобы на необоснованность или незаконность включения в реестр, одна — после возврата имущества иностранному источнику.

Canada: New study examines the production of Canadian media stories about HIV criminalisation

Writing for digital news about HIV criminalization in Canada

For years, HIV activists in Canada have expressed serious concerns about the stigmatizing and sensational way that HIV criminalization is portrayed in the mainstream press. Discourse analyses of the content of news stories about HIV criminalization confirm that news reports of HIV criminal cases rely on sensational language and reproduce negative stereotypes of people living with HIV. This paper contributes to social justice scholarship in the area by building upon studies of news content to uncover how news reports of HIV criminalization are produced in the first place. Through institutional ethnographic interviews with journalists who produce news stories about HIV criminalization, this study brings into view that conditions of convergence journalism make it exceedingly difficult for reporters to disrupt the genre of crime stories about HIV criminalization in which stigmatizing discourses proliferate.

The full study can be accessed here.

2021 in review: more successes, more challenges, much more to do

This past year we’ve been challenged yet again due to the COVID-19 pandemic. As well as the impact on each of us, personally, the legal and policy decisions relating to its control – and their enforcement –  have significantly impacted people living with HIV who are already criminalised or otherwise marginalised, which we have been continuing to highlight in our HIV Justice Weekly newsletter.

And as COVID-19 continues to dominate not only policymaking and law enforcement activities, but also media headlines, it seems very likely that relying primarily on media reports to document unjust cases of HIV criminalisation underestimates how many people are affected.

This past year we documented 54 media reports of unjust HIV criminalisation cases in 20 countries. This compares to 91 cases in 25 countries last year, which was still fewer than reported in previous years.

Although this could be seen as a cause for celebration, I fear that the reason we are seeing fewer media reports is not because of fewer cases, but because the media is distracted by COVID-19 and just isn’t reporting on them. For example, we only recorded one media report of a horribly unjust case in Belarus in January 2021 but on World AIDS Day 2021 the official Telegram account of Investigative Committee of Belarus reported that there had actually been 34 HIV-related criminal cases in 2021.

After Belarus, the highest number of case reports came from Russia, where it was also reported that over the past five years, Russian courts have acquitted only one defendant under its problematic HIV-specific criminal law. The United States, Canada and France make up the rest of the top five. Alarmingly, women living with HIV were accused in 33% of all reported cases in 2021, up from 25% last year.

We will be providing a much more detailed analysis of laws and cases – and the remarkable advocacy successes and achievements – in the next edition of our Advancing HIV Justice progress report, covering January 2019 – December 2021, which we plan to publish by the end of the first quarter of next year.

Despite the impact of COVID-19 on our ability to organise – and a growing acceptance of punitive approaches to a public health issue – this year we’ve also seen some remarkable advocacy in the global movement to end HIV criminalisation, none more so than across the United States.

In March, both Georgia and Virginia modernised their HIV criminalisation laws and in June and July Nevada and Missouri did the same. And in July Illinois completely repealed its outdated and unjust HIV-specific criminal law, becoming only the second US state ever to do so.  In October, New Jersey’s Acting Attorney General issued science-informed prosecutorial guidance to limit the overly broad application of its HIV criminalisation law, and in December, on World AIDS Day, President Biden became the first-ever government leader to speak out against HIV criminalisation laws whilst in office. The year ended on a high with proposals to modernise HIV criminalisation laws in Florida and on a federal level.

The remarkable successes in the United States didn’t happen overnight – the movement to end HIV criminalisation has been nurtured – and increasingly better funded – for more than a decade. This is why our focus has turned to other parts of the world – notably Eastern Europe and Central Asia, sub-Saharan Africa, Latin America and the Caribbean – where many challenges remain.

In May, a new parliamentary bill in Ukraine proposed expanding its already problematic HIV-specific criminal law with harsher sentences for transmitting all serious communicable diseases, and Uganda passed a new Sexual Offences Bill with horrendous implications for people living with HIV, gay men and sex workers. Fortunately, neither have been enacted into law, yet.

We also saw advocacy successes in these regions, too.  In Uganda, after five years of waiting, the Constitutional Court of Uganda has finally begun to hear a landmark case challenging the overly broad and draconian provisions of its HIV and AIDS Prevention and Control Act. In Mexico, the ‘danger of contagion’ law used by many Mexican states to prosecute people living with HIV was found to be unconstitutional by a court in the federal district of Mexico City, with proposals for its full repeal presented in November. Also in November, the Committee on the Elimination of Discrimination against Women (CEDAW) recommended the removal of Kyrgyzstan’s HIV-specific criminal law, thanks to a powerful shadow report by our HIV JUSTICE WORLDWIDE partners, the Eurasian Women’s Network on AIDS.

There is still so much more to do, however.  That’s why, for example, we produced a brand-new section of our HIV Justice Toolkit specifically to help defend people living with HIV who are prosecuted for breastfeeding, chest feeding or comfort nursing, and why HIV JUSTICE WORLDWIDE launched a briefing paper and video in October to help advocates understand the complexities – and consequences – of molecular HIV surveillance.

Despite these successes, as well as the many milestones the HIV JUSTICE WORLDWIDE movement has achieved since its launch in 2016, we will not rest until everyone living with HIV in all their diversity is treated equally, fairly, and justly by all actors of the criminal legal and public health systems.

Belarus: 34 prosecutions for HIV infection in 2021

Translated with Deepl.com – For original article in Russian, please scroll down.

34 criminal cases related to the human immunodeficiency virus were opened in 2021. This was reported by the Investigative Committee.

December 1 is the International AIDS Day. The day was established to raise awareness about the acquired immunodeficiency syndrome. This date annually urges the entire world community not only to remember this as yet incurable disease, but also to be tolerant to those who are already carriers of the disease.

“Deliberately transmitting the disease is punishable under criminal law,” the agency said.

СК: в 2021 году возбуждено 34 уголовных дела по факту заражения ВИЧ

1 декабря, Минск /Корр. БЕЛТА/. В 2021 году возбуждено 34 уголовных дела по факту заражения вирусом иммунодефицита человека. Об этом БЕЛТА сообщили в Следственном комитете.

1 декабря отмечается Международный день борьбы со СПИДом. День учрежден с целью повышения осведомленности о синдроме приобретенного иммунодефицита. Эта дата ежегодно призывает всю мировую общественность не просто помнить об этой пока неизлечимой болезни, но и быть терпимыми к тем, кто уже является переносчиком этого заболевания.

“Умышленное заражение этим заболеванием преследуется в уголовно-правовом порядке”, – отметили в ведомстве.-0-

 

Brazil: Litigation clinic and HIV organisation request leave to submit an amicus brief in discrimination case against the airforce

Armed Forces accused of discriminating against people with HIV

Automated translation via Deepl. For original article in Portuguese, please scroll down. 

FGV Law Group and NGO want to act in a lawsuit against the Air Force

A group from FGV Direito and another that campaigns on behalf of people living with HIV requested on Tuesday (30) from the TRF (Federal Regional Court) of the 2nd region, in Rio de Janeiro, their permission to file an amicus curiae (friend of the court) in a lawsuit against the Armed Forces for discrimination against people living with HIV.

Although Brazilian law condemns any form of prejudice and discrimination against HIV-positive people, the Armed Forces require an HIV test and, if the result is positive, prevents the person from entering the military.

However, there is ample scientific evidence showing that people with HIV may not develop the disease if they are under treatment. Many even have undetectable viral loads for years, which means that they do not transmit the virus.

The lawsuit that motivated the action of the two entities is in progress since 2018 and is brought by a business administrator from Rio de Janeiro who was barred from entry-level competition in the Air Force for being a person living with HIV. “Unfit for purpose”, says the medical report of the Air Force.

Seropositive for 11 years, he has always worked in administrative activities, has proof of full physical and mental health and is being treated with antiretroviral drugs, in addition to clinical follow-up.

Through an injunction, Silva joined the Air Force, but six months later, in the first internal competition, he had his promotion to second lieutenant annulled and was excluded from the Armed Forces. He appealed the decision in the TRF, and the appeal has not yet been judged.

It was almost an ambush. It is evident that the same thing would happen [a positive result for HIV],” says lawyer Eloisa Machado, professor of the Strategic Litigation of Human Rights Clinic at FGV Law in São Paulo, who filed the amicus curiae request together with GIV (Life Incentive Group).

The friend of the court is a process in Brazilian law that guarantees the participation of public agencies and civil society entities in judicial proceedings. The action is based on manifestations on controversial issues or those requiring technical knowledge for analysis. The FGV students studied the suit for six months, according to Machado.

For the lawyer, competition edicts and internal military norms attribute to people living with HIV a definitive incapacity, preventing not only entry into the Armed Forces but also eventual promotions of people who contracted the virus after being admitted.

“Our attempt [as amicus curiae] is perhaps to reverse this latest area of formal discrimination against people living with HIV,” Machado says.

According to her, a revision of the statute in the Armed Forces is necessary, since a positive diagnosis of the HIV virus solely does not mean inability to exercise any functions.

The mathematics professor from USP Jorge Beloqui, from GIV, reinforces that, without this updating of the rules, more cases of discrimination, without any scientific basis, will continue to occur.

For him, the consequences of discrimination at work on a person living with HIV go beyond an isolated case and end up affecting all HIV-positive people.

Although criticised, this attitude from the Air Force is not illegal. In previous positions on the subject, the technical advisory of the Ministry of Defense reported that, by law, the Armed Forces have “autonomy to decide not to accept candidates who present some kind of debilitation that prevents them from exercising their positions”.

Private companies and other public institutions, on the other hand, are prohibited from asking for an HIV test for job applicants. Law No. 11,199/2002 considers that it is discrimination towards people with HIV and people with AIDS to require an HIV test in competition applications or selection to enter public and private service.

The Ministry of Defence’s press office had not replied regarding the publication of this text.

Forças Armadas são acusadas de discriminar pessoas com HIV

Grupo da FGV Direito e ONG querem atuar em processo contra a Aeronáutica

Um grupo da FGV Direito e outro que milita a favor das pessoas vivendo com HIV-Aids solicitaram nesta terça (30) ao TRF (Tribunal Regional Federal) da 2ª região, do Rio de Janeiro, sua permissão como amicus curiae (amigo da corte) em ação movida contra as Forças Armadas por discriminação de pessoas vivendo com HIV.

Embora a legislação brasileira condene qualquer forma de preconceito e discriminação aos portadores de HIV, as Forças Armadas exigem o exame que detecta o vírus e, diante de um resultado positivo, impede que a pessoa ingresse na carreira militar.

Ocorre que há fartas evidências científicas demonstrando que as pessoas com HIV podem não desenvolver a doença se estiverem sob tratamento. Muitas, inclusive, estão com cargas virais indetectáveis há anos, o que significa que também não transmitem o vírus.

O processo que motivou a atuação das duas entidades tramita desde 2018 e é movido por um administrador de empresas do Rio de Janeiro que foi barrado em concurso de ingresso na Aeronáutica por ser pessoa vivendo com HIV. “Incapaz para o fim que se destina”, diz o laudo médico da Aeronáutica.

Soropositivo há 11 anos, ele sempre trabalhou em atividades administrativas, tem comprovação de plena saúde física e mental e está em tratamento com antirretrovirais, além de acompanhamento clínico.

Por meio de uma liminar, Silva chegou a ingressar na Aeronáutica, mas, seis meses depois, no primeiro concurso interno, ele teve sua promoção para segundo tenente anulada e foi excluído das Forças Armadas. Ele recorreu da decisão no TRF, e o recurso ainda não foi julgado.

Foi quase uma emboscada. É evidente que ia dar a mesma coisa [resultado positivo para o HIV]”, diz a advogada Eloísa Machado, professora da Clínica de Litigância Estratégica de Direitos Humanos da FGV Direito de São Paulo, que ingressou com o pedido de amicus curiae junto com o GIV (Grupo de Incentivo à Vida).

O amigo da corte é uma figura do direito brasileiro que garante a participação de órgãos públicos e entidades da sociedade civil em processos judiciais. A atuação se dá com base em manifestações sobre assuntos polêmicos ou que necessitem de conhecimento técnico para análise. Os alunos da FGV estudaram a ação durante seis meses, segundo Machado.

Para a advogada, os editais de concurso e as normas internas militares imputam às pessoas vivendo com HIV uma incapacidade definitiva, impedindo não só o ingresso nas Forças Armadas como eventuais promoções de pessoas que contraíram o vírus depois de serem admitidas.

“Nossa tentativa [como amicus curiae] é talvez reverter esse último espaço de discriminação formal contra pessoas convivendo com HIV”, afirma Machado.

Segundo ela, é necessária uma revisão no estatuto nas Forças Armadas, já que apenas o diagnóstico positivo do vírus HIV não significa incapacidade para exercício de quaisquer funções.

O professor de matemática da USP Jorge Beloqui, do GIV, reforça que, sem essa atualização das normas, mais casos de discriminação, sem nenhum embasamento científico, vão continuar ocorrendo.

Para ele, as consequências da discriminação no trabalho sobre uma pessoa vivendo com HIV vão além de um caso isolado e acabam atingindo todos os soropositivos.

Embora criticada, essa atitude da Aeronáutica não é proibida. Em posicionamentos anteriores sobre o assunto, a assessoria técnica do Ministério da Defesa informou que, por lei, as Forças Armadas têm “autonomia para decidir não aceitar candidatos que apresentarem algum tipo de debilitação que os impeça de exercer seus cargos”.

Já as empresas privadas e outras instituições públicas estão proibidas de pedir o exame de HIV aos aspirantes a vagas de trabalho. A lei nº 11.199/2002 considera discriminação aos portadores do HIV e das pessoas com Aids a exigência de exames de detecção do vírus em inscrições de concurso ou seleção para ingressar no serviço público e privado.

Procurada, a assessoria de imprensa do Ministério da Defesa não se manifestou até a publicação deste texto.