On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
US: Montana legislator’s HIV “ignorance in the first degree” exposed and denounced
Judicial ignorance is something I often highlight on my blog.
Sadly, it is most often (but not exclusively) seen in the United States – a place where a Michigan prosecutor believes that biting someone in self-defence is terrorism if the biter is HIV-positive; where a Texas defence lawyer believes people with HIV are potential “serial killers” if they don’t disclose before having unprotected sex because their HIV is a “deadly weapon”; and where a North Carolina judge believes that a man who attempts to bite a police officer on the ear is also a walking ‘deadly weapon’.
Today I’m adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.
On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.
Yesterday, the video of Rep. Taylor’s comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere – from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.
[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:
I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.
It’s all well and good to respond to individual emails, but there’s nothing yet on Rep. Taylor’s own website making her HIV u-turn clear to her constituents and rest of the America.]
The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn’t worth blogging about. After all, it’s so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?
But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker’s ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.
More of that in a moment.
Now this wasn’t the only recent case of a US politician furthering HIV-related stigma in the name of ‘justice’. Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids – notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)
In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I’m a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.
And last night, PJP put out a press release that highlights Rep. Taylor’s “ignorance in the first degree”.
When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.
Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is ‘dangerous and criminal’, takes away our human and civil rights and furthers the public’s and media’s perception that people with HIV are something to be feared or hated.
PJP’s powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.
The full text of the press release is below. It can also be downloaded as a pdf here.
Positive Justice ProjectDenounces Montana Legislator’s Uninformed Comments“…ignorance in the first degree…”
Contact:Catherine Hanssens, 347.622.1400chanssens (at) hivlawandpolicy.orgSean Strub, 646-642-4915sstrub (at) hivlawandpolicy.orgNew York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.
A video of the legislator’s comments was posted earlier today by blogger Don Pogreba at the Montana-based website intelligentdiscontent.com.
According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.
The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.
The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”
Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said “My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S.”
Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:
“Ms Taylor’s statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven’t stopped.”
— Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV
“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”
— Christa Weathers, Executive Director, Missoula AIDS Council, missoulaaidscouncil.org
“HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact.”
— Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT
“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don’t understand the basic facts, how can we expect young people and those at greatest risk to understand them?”
— Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org
“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”
— Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.
****
The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.For more information on the Center for HIV Law and Policy’s Positive Justice Project, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.
To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2
The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org
Switzerland: Government ignores expert recommendation to decriminalise non-intentional HIV exposure and transmission
The Swiss Government has ignored expert recommendations to decriminalise everything but intentional HIV exposure or transmission following a consultation on changing Article 231 of the Swiss Penal Code, according to a strongly worded press release from Groupe sida Genève issued yesterday.
At the International AIDS Conference in Vienna earlier this year, the Swiss Federal Commission for AIDS-related issues – the Swiss statement people – described how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. (Download the pdf here)
The law has only ever been used to prosecute people with HIV. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law.
The Swiss Federal Commission for AIDS-related issues issued a statement in September 2010 (available in English here) that stated:
[Current Swiss] legal practice is in blatant contradiction to the tried and tested Swiss Aids policy held by broad social consensus. Accordingly, the FCAI calls for the following requirements from the lawmakers and the practitioners of criminal law (public prosecution and judicial authorities):
1. Public prosecution and judicial authorities have to take into account the scientific findings on the infectiousness of HIV-positive persons under successful therapy (FCAI statement 2008). Persons, who are not considered to be infectious according to the FCAI criteria, shall not be punished. Any processes are to be stopped and previous sentences, when needed, are to be revised.
2. Also for HIV-positive persons, whose virus count is not yet under the detection limit, the risk of transmission is very low. The courts are therefore advised not to undertake hastily a possible deliberate action. The highest court of law of the Netherlands, in a leading decision in 2005, made an exemplary judgement in this regard.
3. The legislative body has to amend Art. 231 SPC such that amicable unprotected sexual contact may no longer be subsumed under this code. An opportunity for this is offered by the current (2010) revision of the epidemic law.
The draft of the proposed new Law on Epidemics removed much of the draconian provisions of Article 231, leaving only intentional exposure or transmission a criminal offence.
However, according to Groupe sida Genève
The present version put before the assembly maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.
Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.
The consequence is that Switzerland will move from having one of the most draconian and discriminatory laws on HIV exposure in the world to one that is similar to Canada’s – making disclosure of HIV-positive status a defence to alleged exposure or transmission, in effect mandating disclosure before any kind of unprotected sex by someone aware they are living with HIV. This is a lost opportunity for Switzerland to lead the world in decriminalisation of non-disclosure, alleged exposure and non-intentional transmission (following the lead of The Netherlands in 2005).
Although a previous Geneva Court of Justice aquittal (and the upholding of the subsequent Federal Court appeal) now suggests that someone with an undetectable viral load would not be found guilty of HIV exposure (with or without disclosure), this is not the case in Switzerland’s 25 other cantons.
As Groupe sida Genève point out this latest development “not only maintains the criminalisation of HIV-positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.”
I’ll be posting more on this once I’ve digested all of the documents linked to in the press release below, and spoken with some insiders in Switzerland. But I join Groupe sida Genève in condemning “the backwards attitude” of the Swiss authorities.
Full press release below:
Groupe sida Genève denounces the proposed changes to art. 231 of the Swiss Penal Code. Exposure and transmission of HIV will remain a criminal offense despite best evidence that criminalisation is incompatible with the aims of successful general prevention programmes.
The executive branch of the Swiss government, the Federal Council, has introduced a bill in the federal assembly to revise the Federal Law on fighting infectious human diseases. (See the Federal Department of the Interior’s press release of Friday December the 3rd)
Included in the new provisions was one, article 86 (80 in the consultation version), to amend article 231 of the Swiss Penal Code incriminating the propagation of an infectious human disease.
The bill as it came out of the consultation process proposed to abrogate the paragraphs dealing with intentional and negligent exposure and transmission of HIV. Only the qualified form of malicious intent would have been indictable, the others would not have been considered offenses.
However, the bill, in the present version put before the assembly, maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.
Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.
Groupe sida Genève is convinced this amendment represents the complete opposite of the position taken by the Swiss Federal Commission for AIDS-related issues (FCAI) in its most recent Declaration on the criminality of HIV transmission. It not only maintains the criminalisation of HIV positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.
Groupe sida Genève is dismayed by this proposal and would like to encourage all to join in our condemnation of the backwards attitude of the Swiss Authorities. Please give this information the widest possible distribution in your networks.
Background
All Swiss federal legislation goes through a consultation procedure where all concerned stakeholders can give their views on proposed legislation. Bills traditionally include the results of the consultation procedure as this ensures the bill achieves the greatest possible consensus.
Article 231, incriminating propagation of a human disease, is one of two provisions in the Penal Code under which persons accused of transmission and exposure to HIV are customarily indicted, the other being article 122 concerning grievous bodily harm.
Under article 231 the intentional transmission of a human disease is punished by a custodial sentence of not more than 5 years whilst the negligent transmission or exposure by a sentence of not more than 3 years. In both cases the minimum sentence is 30 day-fines (jour-amende).
Approximately 39 HIV positive persons have been sentenced under one or the other or a combination of both provisions. In 2009, the criminal chamber of the Geneva Cantonal Court dismissed a case of exposure based on the 2008 declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on infectiousness of HIV under effective ART and the expert testimony of Professor Bernard Hirschel. To date it remains unclear whether the decision will be make jurisprudence.
References and further reading
Federal department of the Interior press release on the Revision of the Federal law on the fight against Epidemics. 03.12.2010 (link)
Declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the criminality of HIV transmission. 18.11.2010 (PDF)
Summary of the declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the infectiousness of HIV on effective ART treatment (Swiss statement). 30.01.2008 (PDF in French) (Canadian HIV/AIDS Legal Network’s English translation PDF) The full text of the declaration was published in: Schweizerische Ärztezeitung / Bulletin des médecins suisses / Bollettino dei medici svizzeri / 2008; 89:5)
Bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.201
Message on the bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.2010
Consultation draft of the bill as PDF: (in French)(in German)(in Italian), 08.01.2008
Report on the results of the consultation as PDF: (in French)(in German)(in Italian), 20.10.2008
“S” v. Procureur Général, Judgement, February 23rd 2009, Chambre pénale, Geneva. (PDF in French with an English translation by the Canadian HIV/AIDS Legal Network from the resources for lawyers and advocates webpage.)
Evidence: Claims that phylogenetic analysis can prove direction of transmission are unfounded, say experts
I’m reproducing this news article I wrote for aidsmap.com in case anyone hasn’t seen it, because it is a really important issue. Claiming that phylogenetic analysis is so reliable as to be able to ‘prove’ who infected who in a criminal court case is reckless and somewhat self-serving.
A report from the United States published last week in the Proceedings of the National Academy of Sciences claims to show for the first time that direction of HIV transmission from one individual to another for use as evidence in criminal trials can reliably be established by phylogenetic analysis. However, international experts in phylogenetics who have acted as forensic advisors in criminal courts tell aidsmap.com that the report “draws unwarranted conclusions”.
The report, co-authored by Michael Metzker, associate professor at the Baylor College of Medicine Human Genome Sequencing Center and David Hillis, a professor of evolutionary biology at the University of Texas, details the phylogenetic analysis methodology used in two criminal HIV transmission cases in the United States, in Washington State in 2004 and Texas in 2009, respectively.
These cases were only the second and third times that phylogenetic analysis was used as evidence in a criminal prosecution in the United States, despite at least 350 convictions under HIV-specific and/or general criminal laws for HIV non-disclosure, alleged exposure and/or transmission since prosecutions began in the mid-1980s (CHLP, 2010). Of note, both of these cases involved allegations of multiple heterosexual transmissions from a single source. Such allegations are extremely rare in criminal cases.
Phylogenetic analysis requires the use of complex computational tools to create a hypothetical diagram (known as a phylogenetic tree) that estimates how closely related the samples of HIV taken from the complainant(s) and defendant are likely to be in comparison to other samples.
The report refers to several recent studies (including a 2008 study from Keele and colleagues) which suggest to the authors that a “significant genetic bottleneck” may occur during HIV transmission, and that at least three-quarters of infections may result from a single virus. It also notes that since HIV evolves rapidly following initial infection, this results in “increased diversity of HIV sequences within a newly infected individual.”
However, the report argues that if blood samples are taken from the accused and complainant(s) “shortly after a transmission event” the population of viral sequences in one individual would be expected to be more closely related to the population in the other(s) than other populations of viral sequences used for comparison. This is known as a “paraphyletic relationship.” The paper then suggests that “paraphyly provides support for the direction of transmission and, in a criminal case, could be used to identify the index case (i.e., source).”
In both cases, the investigators were blinded as to the identity of the accused and the complainants, which was only revealed in court once they had provided their report to the prosecution. Again, in both cases, the sample they identified as being the source of infection was that of the accused. It is unknown how much weight the judge and jury gave to the phylogenetic reports, but it is known that the prosecution provided a great deal of supporting evidence – including, in the Texas case, contact tracing and HIV testing of most of the complainants’ prior sexual partners – and that it was the totality of such evidence that led to guilty verdicts and lengthy prison sentences in both cases.
The paper and its assertions have been widely disseminated via a press release and several articles primarily aimed at the scientific community. Such articles include quotes from the investigators that suggest their methods are unquestionably sound and it was this evidence alone that led to the guilty verdicts. “This is the first case study to establish the direction of transmission,” Professor Metzker was quoted in an AFP story with the headline ‘ Lab detectives use science to nab HIV criminals’.
He asserted to the American Statesman that “[our analysis] provided sound scientific evidence of the direction of transmission, and from that we could identify the source.” The article also quotes the main prosecutor in the Texas case, who characterises phylogenetic analysis as “good evidence”. Of note, the defence attorney in the case is quoted as saying they were unable to find an expert to testify in court against the reliability of Hillis and Metzker’s findings.
“It made a lot of difference in trying the case because we couldn’t find an expert for our side,” he said.
However, Professor Metzker’s claims and the paper’s assertion that he and his colleagues have established that their methodology is both a new and reliable method of proving the direction of transmission has been questioned by several international experts contacted by aidsmap.com. All of the experts have served as witnesses in criminal trials outside of the United States.
These experts all agree that phylogenetic analysis remains an informed but sometimes imperfect estimate of the relationship between viruses. Although there are a variety of methods by which it is possible to increase the confidence that the samples are very closely related in comparison to other samples, there could never be complete confidence that the defendant infected the complainant(s) based on phylogenetic analysis alone.
Anne-Mieke Vandamme, a professor at Leuven Catholic University and Rega Institute in Belgium, has serious reservations regarding the paper’s assertions. “This paper draws unwarranted conclusions,” she tells aidsmap.com. “There is still the possibility that there is a missing link, a consecutive transmission with an intermediate missing link. I would only use such paraphyletic clustering to exclude a direction of transmission. The elimination of all other possible contacts is something to be done outside the phylogenetic analysis.”
Jan Albert, a professor at the Karolinska Institute and Karolinska University Hospital in Sweden, tells aidsmap.com that “the study suggests, but does not prove, transmission between the examined persons. The main reason for the caveat is that the analyses do not exclude the existence of unsampled persons belonging to the same clusters. The paraphyly does not exclude this possibility. In light of this it is surprising that only 20 local controls were investigated in the Washington case and none in the Texas case.”
Thomas Leitner, staff scientist at Los Alamos National Laboratory in the United States, tells aidsmap.com that the methodology described in the paper to test the hypothesis of direction of transmission is not, in fact, new, and that along with co-author Walter Fitch he published a paper outlining a similar methodology eleven years ago. (Leitner T, Fitch WM 1999) He adds that his research suggests that even when all persons involved in an alleged transmission chain are sampled, it may still be the case that the two closest samples in a phylogenetic tree are two individuals who may not have ever met.
Professor Vandamme is also lead author of a paper currently in press with The Lancet Infectious Diseases along with several authors including Professor Albert and Dr Anna Maria Geretti, of University College London Medical School, Royal Free Hospital, in London, which highlights the substantial risk of miscarriages of justice based on a flawed view of the science behind phylogenetic analysis. It concludes, in concurrence with a briefing paper co-authored by Professor Vandamme and Dr Geretti and published by NAM and NAT in 2007, that the only ‘safe’ use of phylogenetic analysis in criminal HIV transmission cases is to exonerate the accused.
A fuller discussion of how phylogenetic analysis and other evidence can – and cannot – be used to establish the fact of transmission from the accused to complainant(s) in a criminal case can be found in the ‘Proof’ chapter of NAM’s new international resource, HIV and the criminal law.
References
Scaduto DI et al. Source identification in two criminal cases using phylogenetic analysis of HIV-1 DNA sequences. Proceedings of the National Academy of Sciences, published online before print November 15, 2010, doi: 10.1073/pnas.1015673107, 2010.
Abecasis AB et al. Science in court: the myth of HIV ‘fingerprinting’. Lancet Infectious Diseases, 2010 (In Press).
Center for HIV Law and Policy (CHLP) Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, Vol.1, CHLP’s Positive Justice Project, First Edition, Fall 2010.
Leitner T, Fitch WM The phylogenetics of known transmission histories. Pp. 315-345 in K. A. Crandall. Molecular Evolution of HIV. Johns Hopkins, Baltimore, MD 1999.
Canada: Civil HIV exposure case over consensual lesbian sex in jail – analysis
Last week, a woman in Kamloops, BC, arrested for drunkenness and who subsequently engaged in consensual lesbian sex with a fellow prisoner (revealed 10 days later as being HIV-positive) – and who were watched by seven members of the Royal Canadian Mountain Police – filed a lawsuit in the British Columbia Supreme Court seeking damages from the provincial and federal governments, the City of Kamloops, the seven policemen and the woman with HIV.
Now, journalist Shawn Syms has written a great analysis of the case for Xtra West. Highlights below and full text at Xtra.ca.
Describing herself as “horrified and scared and mad,” the woman told the Kamloops Daily News that she feared for her health: “It was the worst thing in the world that could have possibly happened to me. Every day is a struggle.”Her legal advisor, Victoria personal-injury lawyer Erik Magraken, told the paper, “This is all about the duty to protect. If the RCMP has someone in their custody, they have a duty to protect that individual from harm. If harm comes from ignoring that duty, damages can follow.”According to Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, this is the first time to her knowledge that HIV non-disclosure has been implicated in a legal case involving lesbian sex.Contacted by Xtra, Magraken refused to specify if the harm he was referring to is, in fact, HIV. He says he’s speaking “very generally” to the notion of “any kind of harm.” But according to the Daily News, Magraken did argue that “if they fail to disclose they have HIV, that is an aggravated assault and there can be no consent in those circumstances.”Well yes, criminal charges have been been laid on that basis more than once, but what’s been affirmed by the courts is slightly different. To date, we know that HIV disclosure is required in instances where there is actually a serious risk of grevious bodily harm. (BC Crown spokesperson Neil MacKenzie told Xtra the police have submitted an investigative file on the case, but there has been no decision yet as to whether any charges will be laid, or against whom.)The thing is, there’s a difference between serious risk and virtually no risk. Health Canada describes the risk of woman-to-woman HIV transmission as “unlikely,” and after more than two decades of tracking, the Centres for Disease Control in the US have no confirmed cases of lesbian HIV transmission in their databases.Lesbian AIDS advocate Cindy Patton famously encapsulated safer-sex strategies back in the 1980s in this way: “Don’t get semen in your anus or vagina.” Since neither woman in this case has been identified as trans, we can probably assume that this risk did not come into play.The case “shows how much fear, prejudice and ignorance around HIV and the risks of transmission can easily divert people’s attention from what really matters – the issue of people’s security and privacy while in custody,” says Kazatchkine.She points to a BC Supreme Court case from 2003 where a woman was awarded $15,000 in damages after being stuck with a syringe in a cab in Vancouver’s Downtown Eastside. In that case, the plaintiff claimed she was plagued with fear of becoming HIV-positive for seven years after the incident, which is not medically plausible unless she subsequently got HIV from some other activity.[…]
We can be fairly certain no HIV was transmitted in the jail cell that night. If the RCMP’s original account is any indication, it appears two people who were equally willing – and equally intoxicated – engaged in erotic play, that neither took undue advantage of the other, and no one was genuinely placed at significant risk of any harm as a result of their tryst.
Opinion: I Am HIV Positive and I Don’t Blame Anybody—Including Myself
A few months ago, I received an email from a young researcher and activist living with HIV. Kirk Grisham said some very nice things about my work, and told me that I had inspired him to both write about the issues behind criminalisation, as well as to ‘come out’ publically about his HIV status.
The result is this fantastic analysis for ColorLines around personal responsibility for HIV prevention that really expresses many of my own thoughts on the issue, but in a much more accessible way than I could have ever achieved.
Kirk concludes that for him, criminalisation means that
I bore no responsibility for the epidemic, until I had HIV, when it became entirely my problem.
I’m including the opening paragraph here. Click on the link to read the entire article at ColorLines.
I am HIV positive, and I don’t blame anybody for it—not myself or anybody else.
He didn’t rape me and he did not trick me. It was through our unprotected sex that I became HIV positive. Since seroconverting, I have been very conscious of the language I use to discuss transmission, particularly my own. To say “he gave me HIV” obscures the truth, it was through a mutual act, consensual sex, that I became HIV positive. When speaking to him a couple months after my diagnosis I gathered that he knew he was positive when we had sex. But that is beside the point; my sexual health is mine to control, not his.
Read the entire article at ColorLines.
US: Sean Strub blogs on why tackling criminalisation is crucial
POZ magazine founder, fellow anti-criminalisation advocate – and friend – Sean Strub, recently joined forces with the incredible Catherine Hanssens and her amazing team at the Centre for HIV Law & Policy to launch the Positive Justice Project.
In his latest blog post at POZ.com, Criminalization 101, he explains why the criminalisation of non-disclosure, exposure and non-intentional transmission has become one of the most pressing issues of our time.
I’m including his introduction here. Read the entire post at POZ.com.
Over the last several years, as I’ve talked to a wider circle of advocates, people with HIV and policy leaders about HIV criminalization, it has become apparent to me that many people are not well-informed on the topic. Some instinctively favor prosecuting people with HIV for not disclosing their HIV status prior to intimate contact, but these opinions usually evolve quickly as a person learns more about the issue.
Here’s a background piece I have been using–and continuing to modify–to introduce the issue to others. It is a bit lengthy for a blog post. If you would like a footnoted and properly formatted version emailed to you, just shoot me a note at sstrub (at) hivlawanndpolicy.org. I look forward to any comments or suggestions.
(Read more at POZ.com)
US: Positive Justice Project launches, aims to remove HIV-specific laws
Press Release: HIV Advocacy Group Launches Positive Justice Project To Fight Stigma and Discrimination by Repealing HIV-specific Criminal Statutes
The Positive Justice Project, a campaign of the Center for HIV Law and Policy, was launched this week to combat HIV-related stigma and discrimination against people with HIV by the criminal justice system. A day-long organising meeting, held September 21st in New York, included more than 40 participants from legal, government, grant-making and community service organisations.
The focus of the Positive Justice Project is the repeal of “HIV criminalisation” statutes — laws that create HIV-specific crimes or which increase penalties for persons who are HIV-positive and convicted of criminal offences.
The Positive Justice Project is the first coordinated national effort in the United States to address these laws, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalisation has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission, including:
- A man with HIV in Texas who is now serving 35 years for spitting at a police officer;
- A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;
- A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV-positive status;
- And a man with HIV in Michigan who was charged under the state’s anti-terrorism statute with possession of a “biological weapon,” after an altercation with a neighbour.
In none of the cases cited was HIV transmitted. Actual HIV transmission—or even the intent to infect—is rarely a factor in HIV criminalisation cases.
Instead, most prosecutions are not for HIV transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing claims about verbal consent that are nearly impossible to prove. Anti-criminalisation advocates support prosecution only in cases where the intent to harm can be proven.
HIV criminalisation undercuts the most basic HIV prevention and sexual health message, which is that each person must be responsible for his or her own sexual choices and health. Criminalisation implies a disproportionate responsibility, providing an illusion of safety to the person who is HIV-negative or who does not know his or her HIV status.
As a result, ignorance of one’s HIV status is the best defence against prosecution in these cases, ultimately providing a disincentive to testing and self-awareness. Only by getting an HIV test and knowing one’s HIV status is one subject to arrest and prosecution. This flies in the face of established evidence that it is those who are untested – i.e., those who are safe from prosecution – who most frequently transmit HIV.
Research has demonstrated that HIV criminalisation statutes do nothing to reduce HIV transmission and, in fact, because they further stigmatise already-marginalised populations and discourage HIV testing, they may contribute to further HIV transmission.
The Center for HIV Law and Policy also this week released a draft of the first detailed analysis of HIV-specific laws and prosecutions in all 50 states, U.S. territories and the military. With more than 400 prosecutions to date, the U.S. has had more HIV-specific criminal cases than any other nation on earth.
According to the Positive Justice Project organisers, the challenge of repealing laws that punish people on the basis of their HIV status cannot be met without:
- Broader public understanding of the stigmatising impact and negative public health consequences of criminalisation statutes and prosecutions that are perpetrated under their guise;
- Greater community consensus on the appropriate use of criminal and civil law in the context of the HIV epidemic;
- Clear, unequivocal leadership and statements from federal, state and local public health officials on the causes and relative risks of HIV transmission and the dangers of a punitive response to HIV exposure and the epidemic;
- And a broader and more effective community-level response to the ongoing problem of HIV-related arrests and prosecutions.
“Misperceptions about the routes and risks of HIV transmission continue to fuel fear and myths about people with HIV that leads to lower acceptance of HIV testing and greater stigma and discrimination. Nearly 30 years into the epidemic, people still fear contact with people with HIV, working with them or allowing them near their children,” said Catherine Hanssens, the founder and executive director of the Center for HIV Law and Policy.
“HIV-specific laws have created a viral underclass. There is no more extreme manifestation of stigma than when it is enshrined in the law,” said Sean Strub, who has lived with HIV for more than 30 years. Strub is a senior advisor with the Center for HIV Law and Policy and joined in launching the Positive Justice Project.
Vanessa Johnson, a Positive Justice Project planning committee member and Executive Vice President of the National Association of People with AIDS, said, “When the government uses the fact of a person’s HIV test and subsequent result to turn around and encourage prosecution of that person for behavior that otherwise is legal for people who are untested, it engages in dangerously confusing double-speak that undermines the very HIV testing and prevention goals it claims to prioritize.”
Global: HIV and the criminal law book now available; hear me speak in Ottawa and Toronto
The next few weeks sees my involvement in a flurry of anti-criminalisation advocacy in the United States and Canada, coinciding with the publication of the book version of the new international resource I produced for NAM and an article in HIV Treatment Update summarising the current global situation.
HIV and the Criminal Law
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| Email: info@nam.org.uk to order a copy |
Preface by The Hon. Michael Kirby AC CMG and Edwin Cameron, Justice of the Constitutional Court of South Africa.
Introduction How this resource addresses the criminalisation of HIV exposure and transmission.
Fundamentals An overview of the global HIV pandemic, and the role of human rights and the law in the international response to HIV.
Laws A history of the criminalisation of HIV exposure and transmission, and a brief explanation of the kinds of laws used to do this.
Harm Considers the actual and perceived impact of HIV on wellbeing, how these inform legislation and the legal construction of HIV-related harm.
Responsibility Looks at two areas of responsiblity for HIV prevention: responsibility for HIV-related sexual risk-taking and responsibility to disclose a known HIV-positive status to a sexual partner.
Risk An examination of prosecuted behaviours, using scientific evidence to determine actual risk, and how this evidence has been applied in jurisdictions worldwide.
Proof Foreseeability, intent, causality and consent are key elements in establishing criminal culpability. The challenges and practice in proving these in HIV exposure and transmission cases.
Impact An assessment of the impact of criminalisation and HIV – on individuals, communities, countries and the course of the global HIV epidemic.
Details: international resource and individual country data A summary of laws, prosecutions and responses to criminalisation of HIV exposure or transmission internationally, and key sources of more information.
HIV Treatment Update
The August/September issue of NAM’s newsletter, HIV Treatment Update, features a 2500 word article, ‘Where HIV is a Crime, Not Just a Virus’, that examines the current state of criminalisation internationally.
Here’s the first part: click on the image to download the complete article.
Since 1987, when prosecutions in Germany, Sweden and the United States were first recorded, an increasing number of countries around the world have applied existing criminal statutes or created HIV-specific criminal laws to prosecute people living with HIV who have, or are believed to have, put others at risk of acquiring HIV.
Most of the prosecutions have been for consensual sexual acts, with a minority for behaviour such as biting and spitting.
In the majority of these cases, HIV transmission did not occur; rather, someone was exposed to the risk of acquiring HIV without expressly being informed by the person living with HIV that there was a risk of HIV exposure.
In the cases where someone did test positive for HIV, proof that the defendant intended to harm them and/or was the source of the infection has often been less than satisfactory.
South Africa’s openly HIV-positive Constitutional Court Justice, Edwin Cameron, called for a global campaign against criminalisation at the 17th International AIDS Conference in Mexico City in 2008, declaring: “HIV is a virus, not a crime.”
Two years later, the discussion for people working in the HIV sector has moved on from a debate about whether such laws and prosecutions are good or bad public policy to one on how to turn the tide and mitigate the harm of criminalisation. Most of them advocate, in the long term, for decriminalisation of all acts other than clearly intentional HIV transmission. This, however, is a debate that many people outside the HIV sector have yet to even start.
Next Tuesday, September 21st, I’ll be joining a group of US anti-criminalisation advocates for a meeting in New York to discuss how to move towards mitigating the harm of US disclosure laws and prosecutions for HIV exposure and non-intentional transmission.
The goals of the Positive Justice Project campaign include:
- Broader public understanding of the stigmatizing impact and other negative public health consequences of criminalization and other forms of discrimination against people with HIV that occur under the guise of addressing HIV transmission.
- Community consensus on the appropriate use of criminal and civil law in the context of the HIV epidemic.
- Clear statements from lead government officials on the causes and relative risks of HIV transmission and the dangers of a criminal enforcement response to HIV exposure and the epidemic.
- A broader, more effective community-level response to the ongoing problem of HIV-related arrests and prosecutions.
- Reduction and eventual elimination of the inappropriate use of criminal and civil punishments against people with HIV.
Ottawa: September 29th 6pm-8pm
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| Click on the flyer to download |
I’ll be in Canada’s capital, Ottawa, on Wednesday September 29th to speak about my experiences of blogging on criminalisation worldwide, and to provide examples of international anti-criminalisation advocacy that Canadian advocates might find useful in their fight against the ramping up of charges for non-disclosure and the irrational and scare-mongering response to accusations of non-disclosure from law enforcement.
Ottawa has become ground zero for anti-criminalisation advocacy in recent months following the arrest and public naming and shaming of a gay man for non-disclosure. Following community outrage at the man’s treatment, the Ottawa Police Service Board rejected calls to develop guidelines for prosecution for HIV non-disclosure cases.
The meeting will also feature several leading lights in Canadian, if not global, anti-criminalisation advocacy: Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network; HIV-positive advocate David Hoe; and Eric Mykhalovskiy, Associate Professor at York University, Department of Sociology.
Toronto: September 30th 6.30pm-8.30pm
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| Click on image for link to Facebook event page |
The following day, Richard, Eric, myself and a fourth panellist (TBC) will be presenting at Silence, Sex and Science, Thursday, September 30, 2010, 6:30 to 8:30 pm at Oakham House, 55 Gould Street, Toronto.
I hope to meet any blog readers who can make it to either of the Canadian meetings, and will, of course, be posting more about these meetings in the future.
Germany: Nadja Benaissa trial is a distracting sideshow
Too much focus on the individual issues of personal morality of the Nadja Benaissa case in press reports around the world (822 and counting) and during my three live interviews with BBC World Service radio yesterday (the first of which was also used on the BBC news online website) led me to write this editorial for The Guardian.
The trial of No Angels singer, Nadja Benaissa, began yesterday and has already received worldwide media attention. It highlights what experts working in HIV prevention, treatment and care have long argued: that laws and prosecutions as a result of non-disclosure of HIV-positive status are ineffectual, counterproductive and unjust.
People with HIV around the world – including Benaissa – are being scapegoated for our collective failure in preventing new HIV infections. Moreover, it is the stigma surrounding HIV – exacerbated by the media circus that accompanies such trials – that results in far more new infections than the exceedingly rare case of an individual facing the attention of the criminal justice system.
Read the rest on The Guardian’s website, and please comment there.
I’d like to highlight a couple of other positive pieces (hidden amongst the salacious gossip masquerading as court reporting).
Silvia Petretti’s blog post asks some very good questions
For those of us who are quick to say: how could she? I would like to ask a few questions: could you imagine finding out you are pregnant, and that you also have HIV, at 17? Can you imagine the fear that you could possibly infect the baby, and the anxiety that the medications you need to take in order to prevent the transmission may harm you and the baby? Can you imagine the fear for your own self of dying a horrible and shameful death? How would you tell your partner, or your ex, or the person you are hoping to have a relationship with? And what could the consequences be?
The Times of South Africa highlights that the country’s top experts decided against criminal prosecutions for non-disclosure on very good policy grounds.
The South African Law Reform Commission investigated the possibility of criminalising HIV exposure or transmission, but came to the conclusion that it would not be the best way to deal with the spread of the virus. According to a report by the Law, Race & Gender Unit and the Gender, Health and Justice Research Unit of the University of Cape Town, a note with the words “HIV positive Aids” was found on the body of a young teacher and wife, Mpho Motloung, 25, who was shot through her head in Meadowlands, Soweto, in August 2000. Also in 2000, Susan Teffo discovered she was HIV positive, and when she disclosed her status to her husband he burned her face over a Primus stove. “These are the cases that have received publicity, and the frightening likelihood is that they represent merely the tip of the iceberg,” the unit reported.
Finally, Deutsche AIDS Hilfe, which is reporting from the trial (in German only), has produced a new policy statement about HIV and the use of criminal law which can be downloaded in English here.
Verdict is due August 26th, according to The Guardian. Am unlikely to write about this case again before that date for reasons that should be clear in the headline of my editorial.