In the plan that Clinton articulated to achieve an “AIDS-free generation” the day after her gaffe, she came out against state HIV criminalization laws penalizing perceived transfer of the disease.
Although his plan doesn’t address them, a Sanders spokesperson said he’s “absolutely opposed” to those laws.
From Washington Blade.
Last Thursday, March 10th Senator Rene Garcia introduced an amendment in the Florida Senate to an amendment of a bill he was co-sponsoring (SB 314) to highlight the damage done to the HIV response by the state’s overly broad HIV criminalisation law.
Senator Garcia, a Republican, withdrew the amendment following his three minute intervention, but noted that he intends to work with the Senate in the next legislative session, 2017, in order to reform Florida’s overly broad HIV non-disclosure law.
In order words, the amendment was presented strategically in order to give the issue of HIV criminalisation some exposure to his colleagues.
Tami Haught of the Sero Project, who is working closely with colleagues in Florida to modernise the law, noted:
“We are delighted that Senator Garcia is taking leadership on this issue and look forward to an ongoing dialogue. Sero and our Florida partners will be soliciting comments and a legal review of what Senator Garcia has proposed as well as continuing to organize statewide to build support for change. We have a lot of work to do between now and next year’s legislative session.”
Watch Senator Garcia speak about why it is crucial to reform Florida’s HIV criminalisation law below.
Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review.
The Public Health Act is a key piece of NSW legislation which impacts the lived experience of people living with HIV. For many years, Positive Life has advocated for a number of key changes to the Act to reflect the current reality of HIV as a chronic manageable health condition, to better support efforts to end HIV transmission and to acknowledge prevention of HIV transmission is a shared responsibility regardless of sero-status. With charges under the Crimes Act laid against a man relating to the alleged infection of another man in January, now unrelated accusations against a sex worker extradited to Western Australia, Positive Life will again advocate for change to the Public Health Act as part of a required review of the legislation.
Despite an update in 2010, Positive Life argues some sections of the Public Health Act need change, and even removal from the Act to protect the interests of people living with HIV, reduce stigma and discrimination and enhance HIV prevention and testing in the broader community. A key example is the removal of Section 79, known as the ‘disclosure provision’.
Section 79 requires anyone who knows they have a sexually transmissible infection (STI) including HIV to inform a person before they have sex, and for that person to voluntarily accept the risk of acquiring that infection. In NSW, if you are HIV-positive and don’t disclose your status before sex you are guilty of an offence under the Act. The requirement to disclose your HIV status before sex hasn’t changed from the 1991 version of the Act, except for the inclusion of a ‘reasonable precautions’ provision.
This provision provides a defence to prosecution if ‘reasonable precautions’ have been taken during sex to prevent transmission. However, the definition of ‘reasonable precautions’ remains unclear and this amendment falls short of the current reality of HIV. Removing Section 79 will provide a more comprehensive approach to the rights and responsibilities of the community regardless of sero-status.
With today’s HIV treatments, if a HIV-positive person is on treatments and has an ‘undetectable viral load’, the chances of condomless sex resulting in HIV infection are extremely low. However under the current Section 79, without change to the law or a court deciding that an undetectable viral load is a ‘reasonable precaution’, a person with HIV could still be committing an offence under the Act for not disclosing their status before sex.
Under Section 79, criminalising HIV discourages testing and encourages anonymous sex. Put simply, if you don’t know you have HIV you cannot be found guilty of an offence under the Act for not disclosing your status. Equally, anonymous sex reduces your chances of being identified for prosecution. In an era where more than 90% of people with HIV are on treatment and have an undetectable viral load, people who are infected with HIV but unaware of their status are more of a risk for transmission than people on treatment with a suppressed viral load.
Fear of prosecution inhibits honesty with sexual partners and medical providers, so Section 79 may actually increase the transmission of HIV and other STIs, rather than decrease it. An honest and open relationship with our doctor is crucial to maintain good health regardless of our sero-status. For example, contracting an STI such as gonorrhoea is a risk for anyone who is sexually active, and if the symptoms are hidden, we don’t know we’ve picked up an STI. If we can’t speak openly about the sex we have, it’s likely we won’t be tested for STIs and instead transmit any unknown infection to others.
Under Section 79, forced disclosure of our status as a person with HIV can encourage HIV-related stigma and discrimination, both real and perceived. Disclosure of our status as a person with HIV can, in rare circumstances, lead to violence. More often forced disclosure leads to rejection, loss of control over who knows of our status, discrimination on the basis of our status, or the premature ending of relationships.
Section 79 as it stands does not account for PrEP. Today, many HIV-negative people are already importing pre-exposure prophylaxis or ‘PrEP’, and following the announcement on World AIDS Day last year of an expanded trial of the HIV-prevention medication, many more will be taking PrEP as the trial is rolled out in coming months. A benefit of PrEP is it encourages HIV-negative people to take control of their own health and reduce their own risk of acquiring HIV. Reducing HIV transmission is a shared responsibility and Positive Life believes this principle should be reflected in the Public Health Act.
With the coming review of the Public Health Act, Positive Life will share more about other changes we believe should be made to the Act to reflect the modern reality of HIV as an ongoing manageable health condition. In the meantime, if you have questions or comments about our proposed changes to HIV disclosure requirements in the Act, please make contact on 1800 245 677 (freecall) or by email.
Originally published on Gay News Network
Pan-European Networks of communities of people living with and affected by HIV, doctors and scientists call upon the Government of the Czech Republic to immediately stop the Prague Public Health Authority’s persecution and intimidation of people living with HIV, and to return to evidence-based and proven practices in HIV prevention, testing and care in the Czech Republic.
Brussels, 19 February 2016 – The signatories of this open letter, representing communities of people living with, and affected by HIV, doctors and scientists addressing HIV and co-infections in Europe, are extremely concerned that the Prague Public Health Authority has initiated a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).
We understand that the Czech police are currently conducting investigations and are considering pressing charges against these men claiming that they have violated the provisions of Sections 152 and 153 of the Czech Criminal Code.
There is no evidence that punitive approaches to regulating the consensual sexual behaviour of people with living HIV are an effective HIV prevention or public health tool, but there is evidence that such approaches can be counterproductive by further stigmatising people with HIV, sending those in need of testing and treatment underground, harming individual and public health.
In addition, the release of medical information to the police appears to be a grave violation of personal freedoms of individuals living in the Czech Republic. The initiation of criminal prosecution against people living with HIV for alleged intentional gross bodily harm – despite the lack of a single complainant – raises grave concerns regarding the inappropriate application of criminal law to people living with HIV.
We also understand that a number of non-governmental organizations have recently spoken out against the acts of the Prague Public Health Authority and subsequent police investigation and they will approach the Czech liaison at the UN High Commissioner for Human Rights. Please also note that the responsible UNAIDS representative has already been informed and will receive further briefing from us.
With this letter we express our outrage at these human rights violations, and support the groups within the Czech Republic who initially raised objections and are working to support both people with HIV and the public health of all those living in the country.
Our main objections to the recent development are based on several arguments:
We demand that the Government of the Czech Republic adheres to the international principles and treaties, and scientific evidence universally accepted in the practice of HIV prevention, and we also demand that the current level of HIV care in the country is maintained and improved to assure at-risk groups feel that getting tested for HIV is and should be a reasonable decision for them. Nothing is as effective in linking to and retention in care than disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.
The signatories will continue to support local non-governmental organisations and other actors in their efforts to prevent HIV criminalization becoming a public health policy. We call on the Government of Czech Republic to ensure that the Prague Public Health Authority reverses this policy and ends police investigations of people with HIV simply for being diagnosed with an STI and instead relies on good public health practice as the most effective strategy to deal with HIV/AIDS.
Speaking on behalf of millions of people living with and affected by HIV across Europe, as well as experts in HIV science, public health and human rights, the signatories are ready to provide advice, guidance and the collection of good practices relating to HIV prevention to the government.
Contact:
HIV Justice Network: Edwin J Bernard, edwin@hivjustice.net
European AIDS Treatment Group: Tamás Bereczky on tamas.bereczky@eatg.org
Download and share the letter (with references). Also available on the EATG website
Open Letter to Prague Public Health Authority
Footnote: At the request of Czech AIDS Society a number of organisations representing European networks of communities of people living with and affected by HIV, doctors and scientists wrote today to head of Prague’s Public Health Authority to raise our concern about the initiation of a police investigation into the sex lives of 30 men living with HIV on the sole grounds that these men have been diagnosed with a sexually transmitted infection (STI).
We hereby would like to stress that disseminating the right information, and fighting stigma and discrimination against people living with HIV, or any other groups such as men having sex with men has proved have proved to be effective in responding to the epidemic, to link to and retain persons in care. The active discrimination and legal persecution of people with HIV is in diametrical opposition to this evidence.
Letter to Dr. Zdeňka Jágrová, Hygienicka, Head of the Prague Public Health Authority
Late last month, Prague’s Public Health Authority initiated criminal investigations against 30 gay men living with HIV that had been diagnosed with a sexually transmitted infection (STI) during the previous year.
The Public Health Authority appear to believe that since these men acquired an STI this is proof that they must have practiced condomless sex and have therefore violated Sections 152 and 153 of the Czech Criminal Code, which a 2005 Supreme Court ruling confirmed could be used to prosecute any act of condomless sex (including oral sex) by a person living with HIV as “spread of infectious diseases”.
There are no individual complainants in these cases.
The Czech AIDS Society responded to the publication of initial media reports on January 26th, with a press release that highlighted:
“Czech AIDS Society has long struggled against the criminalisation of the private life of people living with HIV in cases where there is no HIV transmission. We believe that the HIV epidemic must be fought not through repression, but through the treatment which, in most cases, reduces the viral load of HIV-positive patients to undetectable levels thus eliminating the risk of transmission.”
They went on to make a number of media appearances pointing out that applying criminal law to potential HIV exposure does not reduce the spread of HIV, undermines HIV prevention efforts, promotes fear and stigma, punishes behaviour that is not blameworthy and ignores the real challenges of HIV prevention in the Czech Republic.
They also published a second press release, entitled “Professional failure of public health officials” on February 10th that was strongly critical of the actions of Prague’s Public Health Authority, noting that they have greatly undermined trust in the confidentiality of the public health system which will likely lead to an increase in new HIV infections.
On February 12th, the head of Prague’s Public Health Authority, Ms. Zdenka Jagrova (pictured above), issued a statement in response, suggesting that the Authority is legally obliged to initiate such criminal complaints and that “it would be a professional failure if [we] did not do so…
[We] did not check sexual orientation of HIV-positive people who got infected with another contagious, sexually transmitted disease. It is not an attack on the gay community, but in 2014 no HIV-positive woman in Prague was diagnosed with a sexually transmitted disease. A public health authority is obliged to protect the public health of the population and must act in the same manner as in case of other infectious diseases, for instance TB….This campaign aiming at questioning our practices is clearly intended to assert alleged rights of a minority at the expense of the rights of the majority, i.e. in particular the right to health, irrespective of who and how threatens the health. We consider attempts to create a privileged group that would be excluded from generally defined responsibilities very dangerous.”
A number of organisations representing communities of people living with and affected by HIV are now working together with UNAIDS to support the Czech AIDS Society, including the circulation of a Change.org petition.
It appears that none of the cases have yet been passed to the Public Prosecution office for formal prosecution. However, the investigation has set a dangerous precedent and we understand that public health departments in other regions of the Czech Republic are now considering following the Prague example.
After the release of the updated National HIV/AIDS Strategy in July 2015, CHLP, the National LGBT Task Force, the National Center for Transgender Rights and other partners in the LGBTHIV Criminal Justice Working Group’s HIV Criminalization subgroup, drafted recommendations for needed action steps to tackle 1) broad public ignorance about
El Daily Post, August 6th 2015
The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.
The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.
But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.
The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.
“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.
The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.
The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.
But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.
“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”
A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.
Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.
One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)
A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”
González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.
The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.
“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”
Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.
“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”
Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.
“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”
Sero is a national network of people with HIV and allies fighting HIV-related stigma, discrimination and criminalization by engaging and empowering ourselves and others with HIV to speak and advocate, conduct original research, document the experiences of those criminalized, educate communities and work in partnership with others to mobilize for change.
They particularly work to support and strengthen networks of people with HIV, especially those representing key populations, to bring their voice and insight to the discussion and development of policy, delivery of services and the media.
They have received many letters from people with HIV and/or hepatitis who are currently in prison, many on charges arising from their HIV or hepatitis status. Cindy Stine, Sero’s Prisoner’s Network co-ordinator, responds to these inquiries, provides research assistance and sometimes is able to help find legal counsel or other needed resources.
From this informal and growing network, it soon became clear that many people who are incarcerated have unique knowledge about effective strategies to maintain good health and access healthcare while behind bars.
Last September, Sero gathered a group of people who have been incarcerated or work with those who are, as well as HIV and hepatitis experts.
They spent time brainstorming how they could facilitate the sharing of advice, insights and tips from people who are in prisons or jails concerning how they stay as healthy as possible.
That led to the creation of Turn It Up! a new print resource guide for people with HIV and/or hepatitis who are incarcerated, as well as those newly-released from prison or jail and their friends and families.
Written and edited in large part by people who have themselves been incarcerated and/or have HIV and/or hepatitis, Turn It Up! will help those serving time navigate healthcare and stay as healthy as possible.
Laura Whitehorn and Suzy Martin, two longtime and prison reform activists, editors and HIV experts, are co-editing Turn It Up! They are both former editors at POZ magazine and Suzy works closely with Prison Health News.
To produce Turn It Up!, they worked with more than two dozen others, including contributors from prisons and jails in a dozen states, bringing an authentic, passionate and informed voice to the pages of Turn It Up!
The challenge now is to get it distributed to those who need it the most. Sero have launched a modest Kickstarter campaign, that includes this video explaining the project, which they hope will raise at least $5,000 to help with distribution costs.
Support the Kickstarter campaign here.
The 8th IAS Conference on HIV Pathogenesis, Treatment and Prevention (IAS 2015) is on in Vancouver, Canada, this week. AFAO Policy Analyst Michael Frommer reports back on the pre-conference community forum.
Key human rights challenges, such as criminalisation of HIV transmission, were centre stage at the IAS community forum on Saturday 18 July.
Alison Symington, co-director of Research and Policy at the Canadian HIV/AIDS Legal Network (Legal Network), described the challenge of advocacy and policy work in Canada in the face of ongoing criminalisation.
Aside from the significant justice issues when charges are laid for HIV non-disclosure, exposure or transmission, she also identified the serious of issue of people threatening their partners with an allegation, when there is relationship conflict, and how this in particular affects women who may be in abusive relationships.
In Canada, as in Australia, most of the people charged to date have been male heterosexuals, with a strong racialised element – mainly Black men. Since the mid-1990s, there has been an increase in the proportion of gay men charged.
Despite the fact that men make up the majority of those charged, Alison has investigated the pernicious effects of criminalisation on women. She explained how the ‘informal’ criminalisation of HIV positive mothers works, with their sense that their parenting is being under surveillance.
She outlined a huge range of advocacy and policy activities being undertaken by the Legal Network in response.
1) Legal defence strategy and intervention
Tactics include contacting the defence lawyers of individuals who have been charged with criminalisation related offences. The Legal Network also intervenes in the formal court proceedings and provides relevant scientific evidence.
2) Campaigns and advocacy
This has involved the Legal Network’s participation in the ‘Stop the Witch Hunt’ campaign targeting prosecutors, undertaken in collaboration with the AIDS Action Now. Legal Network staff also sit in court during trials, to make clear to judges/prosecutors that the community is monitoring developments.
3) Raising awareness/education
This education work is targeted at raising understanding among judges and among the community.
4) Working with doctors/scientists
A key piece of work was the Canadian Scientist Statement on HIV transmission risk. The Legal Network organised for 70 leading scientists from across Canada to sign this document which explained clearly the actual levels of risk of HIV transmission.
5) Distinguishing between HIV non-disclosure and sexual assault
HIV non-disclosure/exposure/transmission charges in Canada are made under the Canadian criminal law as an aggravated charge using the sexual assault provisions. The Legal Network aims to work with domestic violence/feminist organisations to ensure that HIV-related jurisprudence does not circumvent the appropriate application of sexual assault laws.
6) Prosecutorial guidelines
This has been an ongoing area of work across Ontario, Quebec and British Columbia. Ontario most recently advocated for the adoption of guidelines, but without adequate community input the Government drafted guidelines were dropped. There is still a desire to pursue appropriately formulated guidelines in future.
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| Marama Pala (in the audience) highlighting Australia’s public
health response to MC Dazon Dixon Diallo. |
The comprehensive advocacy and policy response taken by the Canadian Legal Network is extremely impressive.
With one of, if not the highest rates per capita of criminalisation in the world, it is obviously very necessary in the Canadian context.
While some circumstances differ, there are a great many ideas that may be drawn upon for responding to HIV criminalisation in the Australian context.
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