HIV prosecutions: global ranking (AIDS 2012)

Presented by Edwin J Bernard at 19th International AIDS Conference, Washington DC, July 22-27, 2012.

Video produced by Nicholas Feustel, georgetownmedia.de, for the HIV Justice Network

Introduction by Susan Timberlake [00:00]
Introduction by Laurel Sprague [01:54]
Start of Edwin J Bernard’s presentation [03:33]
Slide 01: Overview [04:40]
Slide 02: Global Commission on HIV and the Law [05:19]
Slide 03: Case Study: Take a Test, Risk Arrest [05:21]
Slide 04: Global Overview of Laws and Prosecutions [08:29]
Slide 05: Law Enforcement: Top 30 Jurisdictions [09:47]
Slide 06: Law Enforcement Hot Spots [10:58]
Slide 07: Top 15 Global HIV Criminalization Hot Spots [11:19]
Slide 08: Focus On Africa [12:09]
Slide 09: Focus On Africa: Positive Developments [13:08]
Slide 10: Focus On Europe and Central Asia [14:10]
Slide 11: Focus On Europe and Central Africa: Positive Developments [15:18]
Slide 12: Oslo Declaration on HIV Criminalisation [17:45]

Updated abstract based on final data

Criminal prosecutions for HIV non-disclosure, exposure and transmission: overview and updated global ranking

E.J. Bernard (HIV Justice Network, Berlin, Germany/ Criminal HIV Transmission (blog), Brighton, UK)
M. Nyambe (Global Network of People Living with HIV, GNP+, Amsterdam, Netherlands)

Background: Many jurisdictions continue to inappropriately prosecute people living with HIV (PLHIV) for non-disclosure of HIV-positive status, alleged exposure and non-intentional transmission. Although most HIV-related criminal cases are framed by prosecutors and the media as being cases of ´deliberate´ HIV transmission, the vast majority have involved neither malicious intent nor has transmission actually occurred or the route of transmission been adequately proven.

Methods: This global overview of HIV-related criminal laws and prosecutions is based on latest data from GNP+ Global Criminalisation Scan and media reports collated on criminalhivtransmission.blogspot.com. Final ranking will be based on the total number of prosecutions by July 1 2012 per 1000 PLHIV.

Results: At least 66 countries have HIV-specific criminal laws and at least 47 countries have used HIV-specific (n=20) or general laws to prosecute HIV non-disclosure, exposure or transmission. Despite growing national and international advocacy, prosecutions have not diminished, particularly in high-income countries, with the greatest numbers in North America. Since 2010, prosecutions have taken place in Belgium and Republic of Congo for the first time. In 2011, although HIV-specific laws were suspended in Denmark and rejected in Guyana, Romania passed a new HIV-specific criminal statute. In Africa, the continent with the most HIV-specific criminal laws but with few known prosecutions, Guinea, Togo and Senegal have revised their existing HIV-related legislation or adopted new legislation in line with UNAIDS guidance.

Conclusions: Given the lack or inadequacy of systems to track HIV-related prosecutions in most places, it is not possible to determine the actual number of prosecutions for every country in the world. These data should be considered illustrative of a more widespread, but generally undocumented, use of criminal law against people with HIV. Improved monitoring of laws, law enforcement, and access to justice is still required to fully understand impact on HIV response and PLHIV.

HIV Criminalization – An Epidemic Of Ignorance? Press Conference at AIDS 2012 (Press Release)

For Immediate Release
****MEDIA ADVISORY****
Press Conference: 10am, Wednesday 25th July, Press Conference Room 2
HIV Criminalization – An Epidemic Of Ignorance?
Laws and prosecutions that single out people with living with HIV are ineffective, counterproductive and unjust.
As delegates from around the world meet this week in Washington DC at AIDS 2012 to discuss how to “end AIDS” through the application of the latest scientific advances, laws and policies based on stigma and ignorance are not only creating major barriers to prevention, testing, care and treatment, but also seriously violating the human rights of people living with HIV.
This is especially true in the United States, where 36 states and 2 territories have HIV-specific criminal statutes that single out people living with HIV as potential criminals. However, this growing epidemic of bad laws and prosecutions is a global problem that requires an internationally co-ordinated and concerted effort to overcome.
Come meet people living with HIV who have been involved in both sides of a prosecution as well as some of the experts and advocates who are part of a growing global movement, supported by UNAIDS and the UNDP-led Global Commission on HIV and the Law, working to ensure that the application of criminal laws, if any, to people living with HIV is fair, consistent, restrained, proportionate and appropriate, and serves justice without jeopardising public health objectives and fundamental human rights.
As well as two very personal stories that embody just how HIV criminalization is fundamentally wrong-headed and unjust, presentations will include:
·          New data on the Top 15 global HIV criminalization hot-spots
·          Preliminary results of SERO criminalization survey highlighting the devastating impact of HIV criminalization in the United States
·          The Positive Justice Project’s consensus statement and the latest information on Congresswoman Barbara Lee’s REPEAL HIV Discrimination Act
Hosted by (in alphabetical order): 
·          The Center for HIV Law & Policy / Positive Justice Project, United States
·          Global Network of People Living with HIV (GNP+), Netherlands
·          HIV Justice Network, United Kingdom/Germany
·          INA (Maori, Indigenous & South Pacific) HIV/AIDS Foundation, New Zealand
·          The SERO Project, United States
·          Terrence Higgins Trust, United Kingdom
·          UNAIDS, Switzerland
Chaired by Paul de Lay, Deputy Executive Director, UNAIDS, Switzerland, speakers will include:
·          Nick Rhoades, HIV criminalization survivor, United States
·          Marama Pala, former complainant, New Zealand
·          Edwin J Bernard, Co-ordinator, HIV Justice Network, and Consultant, GNP+ Global Criminalisation Scan
·          Laurel Sprague, Research Director – SERO, United States
·          Lisa Fager Bediako, Congressional Black Caucus Foundation/ Positive Justice Project, United States.
A question and answer session will follow.  The press conference will end at 10.45am.
To arrange interviews with any of the speakers please contact Edwin J Bernard via email or mobile.
Media Contact
Edwin J Bernard, Co-ordinator, HIV Justice Network
Mobile: +1.347.681.8411
Email: edwin(at)hivjustice.net

Media Stigma, HIV And Criminalization for AIDS 2012 (Leo Herrera, Sero Project, US, 2012)

SERO Project, Media Stigma, HIV And Criminalization for International AIDS Conference, Washington DC, July 2012.

Presentation by Sean Strub, Film by Leo Herrera.

Dominican Republic: Urge President Fernández to repeal HIV criminalisation laws

A campaign to request the urgent modification of two HIV-specific criminal statutes in the Dominican Republic has gone viral.

I first became aware of the campaign via Twitter (in Spanish) and now ITPC (the International Treatment Preparedness Coalition) has circulated an English translation (see below) and are urging their members to sign on.

Please consider joining them by asking President Fernández to repeal HIV criminalisation laws §78 and §79. You might also want to refer him to the Spanish version of the Oslo Declaration on HIV Criminalisation which can be downloaded directly here.

To the President of the Dominican Republic

The signatories below, which include members of regional networks, non-governmental organizations, community-based organizations, request the urgent modification of Law 135-11 (known as the HIV/AIDS law) for violating the National Constitution as well international agreements that the Dominican Republic has signed up to.

Moreover, the law violates the human rights of Dominican citizens, in particular those living with HIV. We emphatically reject articles 78 and 79 of the law for promoting the criminalization of the transmission of HIV.

Such measures violate the rights of people living with HIV, ignore international good practice, undermine prevention efforts and increase stigma and discrimination. We request a swift amendment to the law and attach UNAIDS policy guidelines on the criminalization of HIV transmission.

In the absence of an amendment to the law, we will support Dominican citizens and organizations in condemning the law at the Inter-American Commission on Human Rights and at the Organization of American States.

In the hope of a favorable response, respectfully,

In order to sign the petition, visit this link (in Spanish) and please fill the form above with your Apellido (surname), Nombre (first name), País (country), Correo electrónico (email) and, optionally, the name of your organisation.  You can link to, or paste, the Spanish version of the Oslo Declaration, in the Comentarios box.

More background on the law can be found on the International HIV/AIDS Alliance blog.

Futher Background: from http://leysidarepdom.wordpress.com/2012/04/18/rechazo-al-articulo-78-y-79/

Reject Article 78

On the 7th June 2011, the president of the Dominican Republic enacted Law 135-11, known as the “HIV/AIDS Law”- the regulations thereof are still being finalised. This national law is the result of five years of multisectorial work, and although most of its articles are very progressive, at the same time it includes the criminalization of HIV transmission. The most questionable parts of the law are to be found in the following articles:

Article 78: Obligation to disclose one’s sexual partner. Any person who knows that they are HIV positive and does not tell their sexual partner can be sentenced to two to five years’ imprisonment. 

Article 79: Intentional transmission of HIV. Any person who intentionally transmits HIV, via any means, can be sentenced to twenty years’ imprisonment.

This law, and in particular the two aforementioned articles, promote the criminalisation, persecution and seclusion of people living with HIV in the Dominican Republic. It violates their human rights and contradicts a number of international agreements.

Join the campaign to amend law 135-11 (known as the HIV/AIDS law)

On Facebook, post your support on your wall, on the wall of the President of the Dominican Republic and the wall of the National HIV/AIDS Commission
 
On Twitter, use the folllowing hashtags and twitter handles when expressing your support #leysida @conavihsida @presidenciaRD
 
Send an e-mail or a letter to the Dominican Republic Embassy in your country, find the contact details here  

Norway: First gay man to be prosecuted goes public, makes a real difference (corrected)

Correction: Louis Gay tells me that he is not the first gay man to be prosecuted in Norway.

I am the first one to be prosecuted for practicing “safer sex” (oral sex, only. with no condom and no contact with sperm or precum), without transmitting any virus!

Original post: Yesterday, Bent Høie (Conservative), the leader of the Standing Committee on Health and Care Services, raised the issue of HIV in the Norwegian Parliament (Stortinget). He was concerned about the rise in new diagnoses in the country, and discussed increases in unprotected sex amongst gay men and other men who have sex with men, as well as lack of knowledge of HIV and HIV-related stigma within broader Norwegian society.

Notably, he linked these concerns with Section 155 of the Norwegian Penal Code. This infectious disease law enacted in 1902 is known as the ‘HIV paragraph’ since it has only ever been used to prosecute sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both disclose HIV status and insist on condom use, the law essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status, and consents. There is no distinction between penalties for HIV exposure or transmission. Both “willful” and “negligent” exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for “willful” exposure or transmission and three years for “negligent” exposure or transmission.

The law is currently in the process of being revised by the so-called Syse-committee (named after its chair, Professor Syse but officially titled The Norwegian Law Commission on penal code and communicable diseases hazardous to public health), but at the moment, the current law stands.  At least seventeen individuals have been prosecuted since 1999 – and until this year all prosecutions were as a result of heterosexual sex despite the fact that most HIV transmission in Norway is the result of sex between men.

Earlier this year, Norwegian prosecutors decided to prosecute the first gay man under this draconian law. Although transmission had been alleged, phylogenetic analysis ruled out Louis Gay’s virus as the source of the complainant’s infection. Still, he is being prosecuted for placing another person at risk despite the only possible risk being unprotected oral sex, and despite Louis disclosing his HIV-positive status prior to any sex (which the complainant denies).

Louis decided to go public in November 2011 during the initial police investigation. Since then he has given interviews to some of the largest circulation newspapers and magazine in Norway, as well as to national TV and radio. I had the pleasure of meeting Louis in Oslo in February when he addressed the civil society caucus that produced the Oslo Declaration.

As well as his own blog, Louis now also blogs about his experience for POZ.com.  In his second post he notes that

I chose to go public before any final decision was made from the State attorney office, with the chance of provoking them to prosecute me because they don’t want to risk being criticized by media of giving in to pressure. This is fine with me.  Like I’ve stated before I want to have my case tried before a court. Anyway! Now we all have to wait until the trial before we get any further answers about my case. In the meantime the discussion whether we should have a law like this (and using it like in my case) is protecting the society from more infections or just making it worse, continues.

So, yesterday, Louis’s brave stand paid off.  Conservitive MP Bent Høie, the leader of the Standing Committee on Health and Care Services, mentioned Louis’ case in Stortinget.

Then it is a paradox that the social-liberal Norway still has an HIV-paragraph that is criminalizing HIV-positive people’s sexuality. This has now been brought to a head by the public prosecutor who has brought charges against HIV-positive Louis Gay, who has not infected any other person and who conducted what we call “safer sex”, which in reality is the health authorities’ recommendations. I am aware that Syse-committee is now working on this issue, but it is still necessary to highlight this in this debate, because current criminal law works against prevention strategy and stigmatize HIV-positive people. I hope that today’s debate could be the start of that we again have a strong political commitment to reducing new infections of HIV and to improve the lives of those who are HIV-positive – which in reality are two sides of the same coin.”

(Unofficial translation by Louis Gay)

I’m so impressed with Louis’s courage and determination, and I think that he actually might just be making a difference by going public.  If you support Louis, let him know by leaving a comment here, or on his own blog, or at POZ.com.

International civil society experts launch the Oslo Declaration on HIV Criminalisation

A group of 20 expert individuals and organisations from civil society around the world working to end inappropriate criminal prosecutions for HIV non-disclosure, potential exposure and non-intentional transmission from around the world came together in Oslo, Norway on 13 February 2012 to create the Oslo Declaration on HIV Criminalisation.

The Declaration provides a clear roadmap for policymakers and criminal justice system actors to ensure a linked, cohesive, evidence-informed approach to produce a restrained, proportionate and appropriate use of the criminal law, if any, to cases of HIV non-disclosure, potential exposure and non-intentional transmission.

It is a direct response to the increasing numbers of people living with HIV who are being arrested, prosecuted and convicted and the rapid rise in the number of countries enforcing, enacting or proposing HIV-specific legislation to enable these prosecutions. This, despite a growing body of evidence suggesting that the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission is doing more harm than good in terms of its impact on public health and human rights.

The civil society meeting took place on the eve of the global High Level Policy Consultation on the Science and Law of the Criminalisation of HIV Non-disclosure, Exposure and Transmission, convened by the Government of Norway and the Joint United Nations Programme on HIV/AIDS (UNAIDS). The objective of the High Level Policy Consultation was to provide a global forum in which policymakers and other concerned stakeholders could consider their current laws and policies regarding the criminalisation of HIV non-disclosure, exposure or transmission in light of the most recent and relevant scientific, medical, public health and legal data.

Although the Oslo Declaration is not an official High Level Policy Consultation document, it supports the objective of the meeting, and encourages policymakers to review their own laws and policies, and to take any and all steps necessary to achieve the best possible outcomes in terms of justice and protection of public health in order to support effective national responses to HIV and uphold international human rights obligations.

The Declaration’s creation is led by, and includes, people living with HIV, including survivors of HIV criminalisation, and supported by committed HIV advocates from all over the world. Their expertise covers medical, social, ethical, political, human rights and judicial issues relating to HIV and the criminal law.

The Oslo Declaration, the full version of which can be downloaded here (and which includes full references to support the statements), consists of the following 10 points:

1.    A growing body of evidence suggests that the criminalisation of HIV non-disclosure, potential exposure and non-intentional transmission is doing more harm than good in terms of its impact on public health and human rights.

2.    A better alternative to the use of the criminal law are measures that create an environment that enables people to seek testing, support and timely treatment, and to safely disclose their HIV status.

3.    Although there may be a limited role for criminal law in rare cases in which people transmit HIV with malicious intent, we prefer to see people living with HIV supported and empowered from the moment of diagnosis, so that even these rare cases may be prevented. This requires a non-punitive, non-criminal HIV prevention approach centred within communities, where expertise about, and understanding of, HIV issues is best found.

4.    Existing HIV-specific criminal laws should be repealed, in accordance with UNAIDS recommendations.  If, following a thorough evidence-informed national review, HIV-related prosecutions are still deemed to be necessary they should be based on principles of proportionality, foreseeability, intent, causality and non-discrimination; informed by the most-up-to-date HIV-related science and medical information; harm-based, rather than risk-of-harm based; and be consistent with both public health goals and international human rights obligations.

5.    Where the general law can be, or is being, used for HIV-related prosecutions, the exact nature of the rights and responsibilities of people living with HIV under the law should be clarified, ideally through prosecutorial and police guidelines, produced in consultation with all key stakeholders, to ensure that police investigations are appropriate and to ensure that people with HIV have adequate access to justice.

We respectfully ask Ministries of Health and Justice and other relevant policymakers and criminal justice system actors to also take into account the following in any consideration about whether or not to use criminal law in HIV-related cases:

6.    HIV epidemics are driven by undiagnosed HIV infections, not by people who know their HIV-positive status.  Unprotected sex includes risking many possible eventualities – positive and negative – including the risk of acquiring sexually transmitted infections such as HIV. Due to the high number of undiagnosed infections, relying on disclosure to protect oneself – and prosecuting people for non-disclosure – can and does lead to a false sense of security.

7.    HIV is just one of many sexually transmitted or communicable diseases that can cause long-term harm.  Singling out HIV with specific laws or prosecutions further stigmatises people living with and affected by HIV. HIV-related stigma is the greatest barrier to testing, treatment uptake, disclosure and a country’s success in “getting to zero new infections, AIDS-related deaths and zero discrimination”.

8.    Criminal laws do not change behaviour rooted in complex social issues, especially behaviour that is based on desire and impacted by HIV-related stigma.  Such behaviour is changed by counselling and support for people living with HIV that aims to achieve health, dignity and empowerment.

9.    Neither the criminal justice system nor the media are currently well-equipped to deal with HIV-related criminal cases.  Relevant authorities should ensure adequate HIV-related training for police, prosecutors, defence lawyers, judges, juries and the media.

10.    Once a person’s HIV status has been involuntarily disclosed in the media, it will always be available through an internet search. People accused of HIV-related ‘crimes’ for which they are not (or should not be found) guilty have a right to privacy. There is no public health benefit in identifying such individuals in the media; if previous partners need to be informed for public health purposes, ethical and confidential partner notification protocols should be followed.

The 20 original endorsing individuals/organisations are (in alphabetial order)

AIDS Fondet, Denmark

AIDS Fonds, Netherlands

AIDS & Rights Alliance for Southern Africa (ARASA), Namibia

Edwin J Bernard, HIV Justice Network, UK/Germany

Center for HIV Law and Policy, United States

Kim Fangen, HIV Manifesto, Norway

Global Network of People Living with HIV (GNP+),Netherlands

Groupe sida Genève, Switzerland

HIV Finland, Finland

HIV Nordic, Nordic countries

HIV Norway, Norway

HIV Sweden,Sweden

International Planned Parenthood Federation (IPPF), United Kingdom

Ralf Jürgens, Consultant, HIV/AIDS, health, policy and human rights, Canada

Sean Strub, SERO Project, United States

Robert Suttle, SERO Project, United States

Swedish Association for Sexuality Education, (RFSU), Sweden

Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights (RFSL), Sweden

Terrence Higgins Trust, (THT), United Kingdom

Matthew Weait, Professor of Law and Policy, United Kingdom

To find out more or to sign on to the Oslo Declaration please visit: hivjustice.net/oslo.

Oslo Declaration on HIV Criminalisation (HJN, 2012)

Advocates working to end inappropriate criminal prosecutions for HIV non-disclosure, potential exposure and non-intentional transmission from around the world explain why they support the Oslo Declaration on HIV Criminalisation.

Video produced for the HIV Justice Network by Nick Feustel, georgetown media.

The Impact of Legalizing Stigma (In The Life Media, US, 2011)

In The Life’s 2011 report, Legalizing Stigma, was the first on a national US TV channel (PBS) to look at the issue of HIV criminalization from the perspective of people targeted by criminal laws. The segment led to public education efforts, beginning with the first ever Congressional Briefing on this issue.

Canada: Urgent sign on statement – ask Supreme Court to stop inappropriate criminalisation of people with HIV

On February 8, 2012, the Supreme Court of Canada will hear two landmark cases on the issue of criminalisation of HIV non-disclosure in R v. Mabior and R v. DC. The Court’s decisions in these two appeal cases will have profound implications not only for people living with HIV, but also for Canadian public health, police practice and the criminal justice system.

There has been a marked increase in the frequency and severity of criminal charges for HIV non-disclosure in Canada where more than 130 people living with HIV have been charged in less than 15 years.  This includes numerous cases in which their activity posed no significant risk of HIV transmission. Simply put, this is a miscarriage of justice.

The Canadian HIV/AIDS Legal Network is calling for signatories from international organisations and professionals working on issues related to HIV and public health and/or law to endorse the following statement by Wednesday, Feb 1st at 5:00 p.m. EST. 

IN ADVANCE OF LANDMARK SUPREME COURT CASE, SUPPORTERS WORLDWIDE CALL ON CANADA TO STOP CRIMINALIZING PEOPLE LIVING WITH HIV

Monday, February 6, 2012 – Canadian criminal law requires people living with HIV to disclose their status before engaging in behaviour that involves a “significant risk” of transmitting the virus. Yet people have been charged, and convicted for not disclosing their status, even though their activity did not pose a significant risk of HIV transmission. This is a miscarriage of justice. Further, it has contributed to a climate marked by anxiety, fear, stigma and misinformation that undermines HIV counselling, education and prevention efforts. This puts all Canadians at greater risk.

On February 8, the Supreme Court of Canada will hear two landmark cases on this important issue. We, the undersigned, respectfully ask that the Court  use this opportunity to explicitly reconfirm that people living with HIV are not criminals in cases where the threshold of significant risk is not met – including cases where condoms are used or the HIV positive person was being successfully treated with antiretroviral drugs. We ask that the Court instruct lower courts that significant risk must be determined on the basis of the best available scientific evidence, not on assumptions, prejudice or fear.

Finally, we call on the provincial and territorial Attorneys General to follow suit and adopt guidelines to limit prosecutions in cases of HIV non-disclosure. These prosecutions are not helpful in putting an end to this epidemic, and the radical over-extension of the criminal law is counter-productive and damaging.

Please send your signature as you would like it to appear on the signatory list – including your name, organisation, title and geographic location – to info@aidslaw.ca.  If your organisation will sign on in full, please indicate that as well and include the French translation of your organisation’s name if available.

If you are an individual without an organisational affiliation or professional designation and you would like to also endorse this statement please do so to the email address above.

For more information on criminalisation of HIV non-disclosure in Canada, please visit http://www.aidslaw.ca/stopcriminalization.

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HIV is Not a Crime

(8 min, Zero, USA, 2012)

This short film is part of Sero’s ongoing documentation of the experiences of people with HIV who have been prosecuted for “HIV crimes”.  To see a growing collection of individual interviews please visit Sero’s video page.

Film by Sean Strub/Sero • Edited by Leo Herrera/HomoChic