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


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.

The Positive Justice Project

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

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

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.

Canada: New report calls for prosecutorial guidelines to establish ‘significant risk’

A new report, launched at AIDS 2010 in Vienna last month, recommends that the Ontario Ministry of the Attorney General establish a consultation process to inform the development of prosecution guidelines for cases involving allegations of non-disclosure of sexually transmitted infections, including HIV.

HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario contributes to the development of an evidence-informed approach to using the criminal law to address the risk of the sexual transmission of HIV infection in Ontario, and offers the most comprehensive, current discussion of the criminalisation of HIV non-disclosure in Canada.

The report was triggered by the absence of policy-based discussion of this issue amongst key decision makers in government and by community concerns about the intensified use and wide reach of the criminal law in circumstances of HIV non-disclosure.

In Canada, people living with HIV have a criminal law obligation to disclose their status before engaging in activities that pose a “significant risk” of HIV transmission. The report emphasises that uncertainties associated with that obligation and interpretations of the obligation that are not informed by current scientific research on HIV transmission risks are foundational to current problems in the use of the criminal law to regulate the risk of the sexual transmission of HIV and explores various forms of evidence relevant to a thorough policy consideration of the use of the criminal law in situations of HIV non-disclosure in sexual relationships.

York University has produced a 1200 word pdf summary of the report which I’m including in its entirety below. A pdf of the entire report can be downloaded here.

Title: The criminal law about sex and HIV disclosure is not clear

What is this research about?

According to the Supreme Court of Canada, HIV-positive people are required to disclose their status before engaging in sexual activities that pose a “significant risk” of transmitting HIV to a sex partner. Canadian courts, however, have yet to clearly define what sex acts, in what circumstances, carry a “significant risk.” This has led to an expansive use of the criminal law and created a problem for people with HIV—they can face criminal charges even though the law is not clear about when they must tell sex partners about their HIV. For example, people with HIV who are taking anti-HIV medications are much less likely to transmit HIV during sex, even where no condoms are used. But Ontario police and Crown Attorneys continue to interpret “significant risk” broadly. In fact, charges have been pursued in cases where, on a scientific level, there is little risk of HIV transmission.

This uncertainty has created problems not only for people with HIV but also for public health staff, and health care and social service providers. It has challenged these front-line workers in their attempts to counsel and support people with HIV. It has also caused many people with HIV to be further stigmatized. The media, in its coverage of these cases, has tended to exaggerate the risk of HIV transmission at a time when more and more experts have come to think of HIV as a chronic and manageable infection.

Despite these problems, and over 100 criminal cases in Canada, there has been a lack of evidence to inform public discussion about this important criminal justice policy issue. In Ontario, policy-makers have not weighed in publicly on the criminalization of people who do not reveal to their sex partners that they have HIV.

What did the researchers do?

A project team, led by Eric Mykhalovskiy, Associate Professor in the Department of Sociology at York University, set out to explore how the criminal law has been used in prosecutions involving allegations of HIV non-disclosure. The team included members of community organizations in Toronto and front-line workers, some of whom are living with HIV. Their goal was to create evidence and propose options to guide policy and law reform. They created the first national database on criminal cases of HIV non-disclosure in Canada. Professor Mykhalovskiy interviewed over 50 people with HIV, public health staff, and health care and social service providers to find out how the criminal law is affecting their lives or their work—another Canadian first.

What did the researchers find?

From 1989 to 2009, Canada saw 104 criminal cases in which 98 people were charged for not disclosing to sex partners that they have HIV. Ontario accounts for nearly half of these cases. Most of the cases have occurred since 2004. Half of the heterosexual men who have been charged in Ontario since 2004 are Black. Nearly 70% of all cases have resulted in prison terms. In 34% of these cases, HIV transmission did not occur.

Looking at the cases in Ontario and Canada, the researchers found inconsistencies in the evidence courts relied on to decide whether a sex act carried a significant risk of HIV transmission. They also found inconsistencies in how courts have interpreted the legal test established by the Supreme Court, and inconsistencies between court decisions in cases with similar facts. It appears, in some cases, that police and Crown prosecutors have not been guided by the scientific research when deciding whether to lay charges or proceed with a prosecution.

Because it is important to understand the scientific research when assessing whether there is a “significant risk” of HIV transmission during sex, the researchers included in their report a succinct summary of the leading science. The risk, in general, is low. Activities like unprotected sexual intercourse carry a risk that is much lower than commonly believed. Most unprotected intercourse involving an HIV-positive person does not result in the transmission of HIV. But the risk of transmission is not the same for all sex acts and circumstances. Antiretroviral therapy, however, can reduce the amount of HIV in a person’s bloodstream and make the person less infectious to their partner. Also, because of antiretroviral therapy, HIV infection has gone from being a terminal disease to a chronic, manageable condition in the eyes of many experts and people living with the virus.

Many people with HIV who were interviewed remain concerned that even if they disclose their HIV, their sex partners might complain to police. Health care and service providers stated that they are confused by the vagueness of the law. They also stated that criminalizing HIV non-disclosure prevents people from seeking the support they need to come to grips with living with HIV and disclosing to partners. But people with HIV and their providers have many suggestions for improving public policy and the law. The “significant risk” test needs to be clarified. The public health and criminal justice systems need to work together. And policies and procedures to guide Crown Attorneys need to be put in place.

How can you use this research?

Policymakers have several options to respond to the lack of clarity in the law and the resulting expansive use of the law. They can continue to let police, Crown Attorneys, and courts deal with cases as they arise. They can work to amend the Criminal Code. But the best solution, in the short term, would be the development of policy and procedures to guide Crown Attorneys working on these types of cases. The Ontario Ministry of the Attorney General should establish a consultation process to help develop policy and procedures for criminal cases in which people have allegedly not disclosed that they are HIV-positive to their sex partners.

What you need to know:

The criminal law can lead to very serious consequences for people who are charged or convicted. So policymakers need to make sure that the criminal law about HIV disclosure is clear and clearly informed by scientific research about HIV transmission. They also need to look to research to assess whether the law is having unintended consequences that get in the way of HIV prevention efforts.

About the Researchers:

Eric Mykhalovskiy is an Associate Professor and CIHR New Investigator in the Department of Sociology. Glenn Betteridge is a former lawyer who now works as a legal and health consultant. David McLay holds a PhD in biology and is a professional science writer.

This Research Snapshot is from their report, “HIV Non-disclosure and the criminal law: Establishing policy options for Ontario,” which was funded by the Ontario HIV Treatment Network and involved a research collaboration between York University, Canadian HIV/AIDS Legal Network, HIV and AIDS Legal Clinic (Ontario), Black Coalition for AIDS Prevention, AIDS Committee of Toronto, and Toronto PWA Foundation.

Global: UNAIDS/UNDP supports Swiss statement, announces new Global Commission on HIV and the Law

Following on from yesterday’s post about the report by the UN Special Rapporteur on the Human Right to Health, on the impact of criminalisation, UNAIDS and UNDP have issued a statement welcoming the report. (Click here for the pdf: full text below)

One of the most intriguing things about this statement is its recognition that antiretroviral therapy significantly reduces the risk of infection on an individual level, something UNAIDS has not previously supported.

It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

The footnote following the phrase “greater impacts for individuals” states:

The Swiss National AIDS Commission (EKAF) has stated that “an HIV-infected person on antiretroviral therapy with completely suppressed viraemia (‘effective ART’) is not sexually infectious, i.e. cannot transmit HIV through sexual contact.” However, the Commission qualifies its statement, noting that it is considered valid only so long as: (a) the person adheres to antiretroviral therapy, the effects of which must be evaluated regularly by the treating physician, and (b) the viral load has been suppressed (below 40 copies/ml) for at least six months, and (c) there are no other sexually transmitted infections. See P Vernazza et al (2008), “Les personnes séropositives ne souffrant d’aucune autre MST et suivant un traitment antirétroviral efficace ne transmettent pas le VIH par voie sexuelle”, Bulletin des médecins suisses 89:165-169. Available on-line at http://www.saez.ch/pdf_f/2008/2008-05/2008-05-089.PDF

This contrasts with the extremely non-committal statement UNAIDS made jointly with WHO immediately after the Swiss Statement.

But that’s all water under the bridge, I guess. Yes, any laws that prevent people from knowing their status and accessing treatment are bad. But we must fight to ensure that treatment’s impact on infectiousness is always a secondary factor to the individual’s choice regarding whether and when to start treatment. Treatment must be treatment first, prevention second. That’s a big part of the work I’m currently doing for GNP+ and UNAIDS producing a new framework for positive prevention known as Positive Health, Dignity and Prevention.

Another significant part of the UNAIDS/UNDP statement is the first public announcement of a new Global Commission on HIV and the Law (which had been called the International Commission on HIV and Law or ICAL in documents I’d previously seen) “which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations.”

The Commission will be officially launched later this month.

Statement by the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the United Nations Development Programme (UNDP)

14th Session the Human Rights Council

Agenda Item 3: Promotion and protection of all human rights, civil,
political, economic, social and cultural rights, including the right to
development

7 June 2010
Geneva

Mr President, distinguished delegates, ladies and gentlemen,

The UNAIDS Secretariat and UNDP thank the Human Rights Council for the opportunity to speak under this agenda item. As this Council knows, for almost 30 years, the world has sought the most effective response to the HIV epidemic. This challenge has repeatedly shown that a human rights-based approach to HIV is the most effective approach to HIV.

This fact has been long recognized by the Commission on Human Rights, this Council and by Member States. This is because human rights and legal protections are essential to enable people to get the HIV information and services they need, to avoid infection, and if HIV positive to disclose their status and get treatment. It is even more critical to get those living with HIV on treatment as the latest science shows that treatment reduces HIV transmission by 92% at the population level, and can have even greater impacts for individuals.

Many States continue to criminalize sexual minorities, people who use drugs, people
who engage in sex work, as well as people living with HIV. The result is that thousands of people fear or are unable to get tested for HIV, to disclose their HIV status, to access HIV prevention, treatment and care. This puts both these groups and the larger public at risk. Under these circumstances, universal access to HIV prevention, treatment, care and support will not be realised; and we will not achieve many of the Millennium Development Goals.

Because of this, the Executive Director of UNAIDS, Michel Sidibé, has made one of the corporate priorities of UNAIDS to support countries to “remove punitive laws, policies, practices, stigma and discrimination that block effective AIDS responses.”

For these reasons, the UNAIDS Secretariat and UNDP welcome the report of the Special Rapportueur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. We hope it will help to generate constructive debate, and catalyse change toward a more rights-based and effective AIDS response.

The report of the Special Rapporteur underlines how the criminal law, when misused, can and does have a very negative impact on the right to health. When the criminal law is applied to adults engaging in private consensual sexual behavior – whether in the context of same-sex sexual orientation or in the context of the exchange of money for sex – it also violates the rights to privacy and liberty and acts as a major impediment to HIV prevention and treatment. Where overly broad criminal laws are applied to people living with HIV, the impact is in direct contradiction to public health efforts to encourage people to come forward to get on treatment and practice safe sex, and reduce HIV transmission in the context of drug use.

The UNAIDS Secretariat and UNDP are fully aware that, in many societies, these issues are the subject of much social, cultural and religious debate. However, the UNAIDS Secretariat and UNDP are concerned that criminalization of aspects of private, consensual adult sexual conduct singles out particular groups for invidious treatment, undermines individual and public health, and transgresses various international human rights norms. Thus, for public health and human rights reasons, the UNAIDS Executive Director and the United Nations Secretary General have called for the removal of punitive laws, policies and practices that hamper the AIDS response. Successful AIDS responses do not punish people, they protect them.

UNDP, on behalf of UNAIDS, is launching the Global Commission on HIV and the Law, which comprises public leaders from across the globe and will be supported by experts on HIV, law, human rights and public health. This Commission will marshal the evidence of enabling versus punitive laws on HIV responses, hold regional hearings, and issue evidence-informed recommendations. The UNAIDS Secretariat and UNDP greatly hope that this Commission will help States and civil society to better use law, law enforcement and access to justice to protect all people from HIV and its impact, as well as from human rights violations in the context of HIV. We look forward to bring to the Council the findings of the Commission at the end of 2011.

Thank you.

US: CDC finally admits criminalisation is problematic

A campaign by the HIV Prevention Justice Alliance for the US Centres for Disease Control and Prevention (CDC) to confront criminalisation in the United States is finally bearing fruit.

The HIV Prevention Justice Alliance is network of organisations advocating for effective and just HIV prevention policies for the United States, coordinated by Community HIV/AIDS Mobilization Project (CHAMP) in collaboration with AIDS Foundation of Chicago, and SisterLove.

Their campaign began in 2008. The Alliance was extremely concerned that prosecutions for HIV-associated spitting and biting were doing a lot of harm.

CDC has long maintained that contact with saliva, tears, or sweat does not expose others to an appreciable risk of HIV transmission. The continued perpetuation of false information by the justice system and the media on how the virus is transmitted underscores the need for more effective HIV communication and education strategies at the highest levels that are accessible to the general public. In light of an unabated and growing HIV epidemic among certain segments of the U.S. population, we believe that it is incumbent upon the CDC to aggressively respond and provide the public with the most accurate information to reduce HIV vulnerability.

A December 2008 letter from the CDC had previously pledged to do all of what they now promise to do (see below), but when no action was taken, the Alliance sent another letter in January 2010 to the CDC’s Kevin Fenton – Director of the National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention – “to urge CDC to take action on the steps it had identified to address the criminalization of HIV.”

In a letter signed by Fenton, the CDC has now agreed to:

Update and expand the “Rumors, Myths, and Hoaxes” section of the CDC website by April 30th 2010.
Update and expand CDC’s factsheet and question and answer sets (Q&As) regarding HIV transmission to better address myths and misconceptions about HIV transmission by April 30th 2010.
Develop internal talking points to ensure CDC staff is equipped to deliver consistent, scientifically accurate information when they receive inquiries around issues of criminalization and/or myths and misconceptions about HIV transmission by April 30th 2010.
Survey health departments, beginining May 2010 to determine whether they have collaborative relationships with criminal justice personnel and, if so, how these relationships affect HIV prevention efforts in communities.
Use information obtained from the surveys to develop a communications package to provide to state and local health departments with the tools and messages they need to facilitate interactions with their criminal justice counterparts by August 30, 2010.

The letter concludes: “While these activities represent a concrete beginning, we realize there is much to be done to address the need for a public health, rather than punitive perspective to drive how people living with HIV/AIDS are approached in the United States. We all must continue to be forward thinking in this endeavor, and collectively we will make a broader impact. We at CDC appreciate the work organizations such as yours do in the communities affected by this disease.”

I’d like to congratulate all those involved in persuading the CDC to take its first tiny steps towards making a stand against the draconian treatment of people living with HIV in the United States. Their response is focused on the most egregious criminal prosecutions, and there is, indeed, “much to be done to address the need for a public health, rather than punitive perspective to drive how people living with HIV/AIDS are approached in the United States.”

For example, the CDC could also publically state that non-disclosure laws do more harm than good for public health, and also support the idea (which they already are exploring on a population level) that on an individual level people on successful antiretroviral treatment are as as unlikely to expose their sexual partners to HIV as those who wear condoms.

Click on the image of Mr Fenton’s pledge to read the entire letter.

Uganda: ‘Human rights will suffer’ under new HIV/AIDS law (update)

Update: December 3rd

The United Nations Special Envoy on AIDS in Africa, Elizabeth Mataka – and NGOs that include the Uganda Network on Law, Ethics and HIV/Aids (Uganet) and ActionAID – have added to the many voices urging Uganda to reconsider its proposed HIV and AIDS Prevention and Control Bill.

The Daily Monitor reports that Ms Mataka told journalists in Kampala yesterday:

“I emphasise the importance of creating a bigger and social environment conducive for HIV prevention and to refrain from laws that criminalise the transmission of HIV and stigmatise certain groups in the population. These laws can only fuel the epidemic further and undermine an effective response to HIV.”

Dorah Musinguzi, acting Executive Director of Uganet stated:

“We are cognisant of the fact that the draft Bill contains provisions that seek to address the HIV/AIDS pandemic but we need a law on the basis of which rights can be claimed and duties articulated in the context of HIV/AIDS. AIDS is no longer just a disease but a human rights issue. The law should be carefully crafted to find the right balance between promoting the public health while safeguarding and promoting human rights.

Original post: November 6th

A group of more than 50 Ugandan and international organizations and individuals have released a report criticising many of the provisions in the HIV and AIDS Prevention and Control Bill which is on its way to becoming law in Uganda.

A press release from Human Rights Watch (HRW) begins

The report criticizes repressive provisions in the legislation as contrary to the goal of universal access to HIV prevention, care, and treatment. The proposed law includes mandatory testing for HIV and forced disclosure of HIV status. It also criminalizes the willful transmission of HIV, the failure to “observe instructions on prevention and treatment,” and misleading statements on preventing or controlling HIV.

Worryingly, the latest version of the bill, released a few days ago, has now a added provision criminalising attempted transmission, which “further opens the door for abusive prosecutions”, HRW notes.

However “failure to inform one’s sexual partners of HIV status is no longer criminalised” along with the rather interesting provision that would have criminalised “failure to take reasonable steps and precautions to protect oneself from HIV transmission.”

Some might argue if criminalisation of HIV exposure or transmission remains in the Bill, why not allow for the prosecution of someone who does not protect oneself from HIV? That way, the law focuses on equal responsibility for HIV transmission/acquisition.

However, in a high prevalence country like Uganda (where an estimated 5.4% of the adult population is living with HIV) this would be unworkable, and would criminalise pretty much everyone who has unprotected sex, or at least is diagnosed HIV-positive – obviously a major backwards move, as this would remove any incentive for testing.

The HRW press release also focuses on the potential for criminalisation of HIV exposure and transmssion to disproportionately affect women, even though many lawmakers believe these laws protect them.

The report also highlighted how laws that criminalize HIV transmission can result in disproportionate prosecution of women because more women are tested as part of pre- or ante-natal medical care and therefore know their HIV status. Women’s inability to safely negotiate condom use or disclosure to partners who might have been the source of their infection is not recognized in the bill as defenses against criminal penalties. Women who transmit HIV to their infants after birth via breast milk would also be subject to criminal prosecution, the report says.

“Women and girls have been disproportionately affected by HIV/AIDS,” said Joseph Amon, health and human rights director at Human Rights Watch. “My fear is that mandatory testing and disclosure will lead to prosecution and violence instead of treatment and care.”

Last month a Ugandan MP introduced a separate Anti-Homosexuality Bill that would impose the death penalty on HIV-positive gay men in Uganda if they have sex with another man.

The proposals have been roundly criticised by pretty much every human rights and HIV organisation in the world.

Canada: Video project highlights anger, frustration with criminalisation

A new video project by Canada-based filmmaker Orazio Caltagirone, AIDSphobia, is now available to watch on YouTube.

Mixing speeches by Edwin Cameron with TV footage and other existing media, the video explores various issues surrounding the criminalisation of people living with HIV. Although it can be confusing and difficult to watch at times, it is obvious that the filmmaker is passionate about the subject, and angry. “One of the main reasons why I decided to make this video is because this situation is getting out of control in my country,” Orazio tells me in an email.

The video totals 60 minutes, but is split into ten parts.

1 3:57 AIDSphobia INTRO

2 4:59 IN THE BEGINNING…

3 5:21 SPITTING

4 4:15 THE STIGMA

5 4:25 AIDS IS A MASS MURDERER

6 8:50 JOHNSON AZIGA

7 8:59 RELIGION

8 7:51 GTD: STATS

9 7:28 10 REASONS

10 4:41 CLOSING CREDITS

Canada: ‘Enough, this is it, no more’ says advocate

Today, Xtra.ca has an extraordinary interview with Bob Watkin, the outgoing Chair of the HIV and AIDS Legal Clinic of Ontario (HALCO), that illustrates just how oppressed and under seige some HIV-positive Canadians (particularly gay men knowledgable about the law) are feeling about the approach of the criminal justice system to HIV non-disclosure before sex.

He is angry. So angry that he makes some pretty radical statements, including attacking his own!

One of those things [I disagreed with] is the way HALCO’s Ontario Working Group on Criminal Law and HIV approached the issue of HIV criminalization. Its position that criminalization — criminal charges against HIV-positive people for failure to disclose their serostatus to sex partners — may be called for in some instances is anathema to me. I will not accept it or agree with it.

I’ve read the Working Group’s position statemen t several times (and know and respect many of the people involved in the Group), and I can’t see anything in it that supports criminal charges for non-disclosure. It’s main message is: “The criminal law is an ineffective and inappropriate tool with which to address HIV exposure.”

He also suggests that anyone accused of non-disclosure engage in a one-person act of civil disobedience.

I’m suggesting to HIV-positive people that, if they find themselves charged in connection with failure to disclose allegations, they exercise their legal right to refuse to give statements that could end up being used against them in criminal court, that they should no longer cooperate with anyone, anywhere, anytime, or answer any questions about their sexual conduct…I’m not suggesting that anyone act irresponsibly. What I’m saying is it doesn’t matter what your actions are.

That this interview appears in a national gay forum, rather than one solely aimed at HIV-positive individuals, is remarkable (and brave not just of Bob Watkin, but also Xtra‘s editorial director, Matt Mills), but also somewhat problematic. If the pattern follows that of the UK, the majority of HIV-negative gay men support prosecutions, and even amongst HIV-positive individuals the sides are not clear-cut. Hence the rather strong comments (two so far, but it’s only just been published) from readers.

There’s no doubt in my mind that Canada (and Ontario in particular, where non-disclosure is now being charged as attempted murder ) is the front line in the fight against the criminalisation of HIV non-disclosure, exposure and transmission. What happens there may well determine the future for many other wealthy, low-prevalence countries with similar legal systems. The lines in the sand have been drawn, and Bob Watkin (and Xtra – which covers this issue almost every week: see also ‘Finding a way out of the HIV criminalization loop’ from September 10) is issuing a call to arms.

Below are highlights of Bob Watkin’s interview with Matt Mills.

I cannot condone in any way the conduct of anyone that results in someone else being infected. But there is no justification at all — anyway, anywhere, anyhow — for the criminalization of HIV and AIDS.

[…]

What led us to this point is an abject failure of the public health system and its proven inability to deal with a chronic long-term disease, HIV…It may be very difficult for people to accept being locked up by public health but it’s much better to be locked away, treated and educated in a medical setting, than to be locked in a prison.

[…]

The charges boil down to allegations. There is no other evidence that is really relevant. In all of these situations, no one disputes that the sex occurred. Two people make an irresponsible decision, one of them happens to be HIV-positive. Only one of them is absolved and that just isn’t right.

All this has created an environment in which people are not getting tested. They are afraid to know. People who have means are leaving the country, getting tested elsewhere and in fact getting treatment elsewhere, so they don’t leave evidence of their HIV status.

We as HIV-positive people have to say, “Enough, this is it, no more.” Unless we start saying that as a group we’re just going to find our lives become more and more and more dreadful.

US: Iowa’s criminal HIV transmission law placed under the microscope

A series of articles published this week in the Iowa Independent, have scrutinised Iowa’s poorly-written, erroneously named ‘criminal transmission of the human immunodeficiency virus’ law (transmission is not required to be found guilty) following the May sentencing of 34 year-old Nick Rhoades to 25 years in prison after he pleaded guilty to a one-off act of non-disclosure with another man he met online. The articles suggest that there is a growing, grass-roots movement to reform the law, confirmed by a regular reader of my blog from Iowa, who tells me “some disparate elements are forming to get this law off of Iowa’s books. My state senator seems to be on board and hopefully we can all get ourselves together to form a lobby by this fall to ready ourselves for the legislative session in January.”

Journalist Lynda Waddington’s first article for the Iowa Independent, published last Monday, focuses on the Rhoades case and the history of Iowa’s HIV-specific law passed in 1998, the same year that Mr Rhoades was diagnosed HIV-positive. Since then, 36 people have been charged of whom 24 have been convicted. Ten men and two women are currently in an Iowa prison serving sentences up to 25 years for this ‘crime’.

She critiques the law for being poorly-written, allowing it encompass sexual acts with a “minuscule risk of transmission — such as kissing”. She then writes:

Further, Iowa law not only mandates informed consent of the specific act, but for the person consenting to have knowledge “that the action of exposure could result in transmission.” While this particular phrase could have been added as a protection for individuals with mental deficiencies, could it also be used to prosecute someone who engaged in a low-risk intimate activity without realizing that the activity could potentially result in transmission?

Indeed, sources close to the Rhoades case have informed me that oral sex was the only HIV transmission risk that occurred between the two men, although the Court is vague on this, and the police report too squeamish to mention anything other than “intimate contact”.

In her second article, published on Wednesday, Waddington examines further the impact of this law in Iowa, which she notes has been upheld by the Iowa Supreme Court three times.

She quotes Rhea Van Brocklin, community relations director for the AIDS Project of Central Iowa who states that the law does not appear to dissuade people at high-risk of HIV from testing:

“It could be hearsay within the community that people are afraid to get tested because of the law, but our agency specifically hasn’t seen that,” she said. “In fact, we doubled our testing numbers in 2008. We had a goal to test between 400 and 500 high-risk individuals and we tested about 800 last year. What we see is that people are taking HIV seriously and they want to know their status.”

[This is extremely interesting since I’m currently researching the claim made by many anti-criminalisation advocates that criminal HIV transmission laws deter people from testing, and, from what I am reading, there is no evidence to support these claims.]

The rest of the second article explores whether Iowa’s law should be revised or repealed. She interviews former Iowa representative, Ed Fallon, who voted for the law in 1998, but who now “believes that it might be time for the state to revisit criminal transmission laws.”

“It seems to me that since it is now 11, almost 12, years later, it wouldn’t be bad time to take a look at it again,” said Fallon, who admits he had some reservations before casting his affirmative vote for the bill. “I can think of so many bills we worked on that in the following year, or a few years later, we were rewriting or revisiting. … So, yes, surely the are some tweaks or changes that the legislature could consider relevant to this law, especially with all the new knowledge we have of the disease.”

He recalls that the impetus to pass the law was based on the State accessing Ryan White HIV funding from the Federal Government. However, the homophobia that informed the banning of gay marriage in the same legislative session may also have played a role.

“Certainly, in terms of that conversation, AIDS was a ‘gay disease,’ and we had to crack down on the lifestyle that helped spread the disease. So, there may have been a connection [between criminal transmission and same-sex marriage], but I honestly can’t recall if those types of sentiments continued into this debate.”

The discussion around reform or repeal is the subject of Waddington’s third article published on Friday. She interviews Bob Rigg, an experienced academic who is part of a committee examining the reorganising of Iowa’s criminal code, who warns advocates fighting for reform to be careful what they wish for.

“When people start playing around with the criminal code or they start saying that we should amend our Constitution, I’m like, ‘No, we shouldn’t.’ I err on the side of caution,” he said. “If you think what you’ve got is bad, be careful. You just might end up with something even worse.”

He suggests that a more pragmatic (if extremely conservertive), softly-softly approach might produce better outcomes for individuals convicted under Iowa’s ‘criminal transmission of HIV’: let the judges do what they do, but since the prison authorities have leeway to release individuals on parole, it is they who end up deciding how long a 25 year sentence really is.

“Just because a defendant is sentenced to 25 [years], doesn’t mean he or she is going to serve 25. Some of these individuals could be paroled in as little as two.”While state intervention to reduce prison sentences may not be an intended consequence of the initial legislation, Rigg argues that it can have “a moderating effect” on an otherwise extreme sentence.

“It is the judge’s job to sentence them. It is the DOC’s job to evaluate them for release,” he said.

Of course, this doesn’t the address the fact this is still a discriminatory, outdated law. The article ends somewhat downbeat, however, noting that law reform can be a long, long road.

A comment after the last article, from an HIV-positive Iowan, highlights that such long-term goals are absolutely necessary:

If it’s not possible to eliminate the HIV law in Iowa, amend it to add intent; probably most persons in Iowa that know their HIV status (and you have to know it to be prosecuted under the law) are under treatment and extremely low infection risk. When I was considered for prosecution under the law I was defending myself from an assault–I bit someone on the finger (he stuck his finger in my mouth, actually). Now, it’s not likely I could infect someone in the normal way, let alone a finger bite and yet THREE of Johnson County assistant DA’s recommended I be prosecuted under Iowa’s HIV law.

Canada: MPs, activists rally against criminalisation outside Parliament; Edwin Cameron gives lecture tonight

Canadian MPs Libby Davies, Bill Siksay and Hedy Fry joined with activists, people living with HIV, and supporters on Ottawa’s Parliament Hill on Wednesday, to protest Canada’s criminalisation of people with HIV due to its discriminatory HIV disclosure laws. The rally was organised by the group Legalize AIDS.

Libby Davies (NDP), MP for Vancouver East, told the rally: “We’re here today to take a very strong position that a criminalised approach to HIV/AIDS is not going to deal with the public health issues that we need to deal with. It’s not going to deal with the issues of complex human behaviour that we need to deal with. It’s not going to deal with issues of sexuality and how we approach our individual and collective and societal responsibilities.”

Watch a 3 minute 16 second video of the rally, produced for Xtra.ca.

Tonight, Justice Edwin Cameron of South Africa’s Constitutional Court, will speak in Toronto in a public lecture against the criminalisation of HIV exposure and transmission. For details, click here. He will also speak this weekend at The Canadian HIV/AIDS Legal Network’s 1st Annual Symposium on HIV, Law and Human Rights. For details, click here.

Justice Cameron recently addressed a criminalisation meeting in Stockholm, Sweden, which I attended. A report of the meeting will appear on my blog next week.