Paul Kidd ASHM 2018 Lecture: HIV, Consent and the Criminal Law (Australia, 2018)

Synopsis
What is the role of the criminal law in relation to HIV medicine? Medical practitioners and other health care workers provide testing, diagnosis, counsel and care – but the use of the criminal law to prosecute people with HIV means health professionals may also find themselves entangled in a criminal investigation. What should we tell patients about their rights and responsibilities when it comes to HIV transmission or exposure? Taking medical and legal notions of consent as its starting point, this presentation will explore the complex and problematic impacts of HIV criminalisation on medical practice and the lives of people living with HIV, discuss the unrealised potential for the criminal law to be a healing process, and provide some guidance for practitioners who need to balance their roles as health providers with the legalities of HIV transmission and exposure.

Biography
Paul Kidd is an activist, writer and commentator with a particular interest in LGBTI law reform and legal issues affecting people living with blood-borne viruses. He was the founding chair of the Victorian HIV Legal Working Group, is a past President of Living Positive Victoria, has served on the boards of the Victorian AIDS Council, Hepatitis Victoria and the Equality Project, and is a member of the Victorian Government LGBTI Justice Working Group. He holds an honours degree in law from La Trobe Law School and is currently a trainee lawyer with Fitzroy Legal Service.  Paul is currently a Supervisory Board member of the HIV Justice Network.

International meeting of legal experts starts work on principles to address the misuse and abuse of criminal laws

Addressing the detrimental health and human rights impacts of criminal laws

People have a fundamental human right to make decisions about their lives and bodies. These rights relate to personal choices on, among other things, health care and treatment. For sexual and reproductive rights, key issues include the right of people to decide when, whether and with whom to have sex, to have children and to get married and their ability to express their gender and sexuality.

Leading legal experts from around the world recently met to lay the foundations for a set of principles to address the misuse and abuse of criminal laws that affect basic human rights and impact on health and equality. The principles will be developed in the coming months and will guide civil society and policy-makers in the development and use of laws that guarantee human rights and protect public health.

Tim Martineau, UNAIDS Deputy Executive Director, Programme, a.i., noted at the outset of the meeting that, “While there is significant progress in HIV prevention, treatment and care, there is a big discrepancy in HIV prevention in relation to key populations, who are more vulnerable to HIV infection in many respects because of a lack of legal protection and the unjust criminalization of their behaviour.”

The legal experts focused on criminalization related to sexuality, reproduction, personal drug use and the overly broad criminalization of HIV non-disclosure, exposure and transmission. Around the world, same-sex sexual practices are criminalized in 73 countries, with 13 states imposing the death penalty. Sex work is criminalized in approximatively 116 countries globally and some 72 countries criminalize HIV non-disclosure, exposure or transmission. Criminal laws often increase stigma against already marginalized and excluded groups and have been linked to discrimination and the denial of critical health services. Criminalization also creates an environment in which people are less likely to seek police assistance when their rights have been violated.

Kate Gilmore, the United Nations Deputy High Commissioner for Human Rights, emphasized that the criminal law plays an essential role in the recognition, protection and enforcement of rights, including by tackling impunity for violations of those rights. “Our purpose here is to raise the shield of criminal law by lowering its sword, ensuring better protection through criminal law by reducing the abuse of it.”

Sam Zarifi, the Secretary General of the International Commission of Jurists, said, “The misuse of the criminal law affects the most marginalized people and, in particular, the dispossessed and disenfranchised.”

The meeting was held on 3 and 4 May and was led by the International Commission of Jurists, in partnership with UNAIDS and the Office of the United Nations High Commissioner for Human Rights.

Published on UNAIDS site on May 8, 2018

Webinar: Making Media Work for HIV Justice (PWN-USA for HIV JUSTICE WORLDWIDE, 2018)

This 90 minute webinar introduced attendees to some of the concepts and practices highlighted in the Making Media Work for HIV Justice media toolkit, and featured formidable activists, journalists, communications professionals, and human rights defenders working at the intersection of media and HIV criminalisation.

New Toolkit Supports Advocates in Using Media to Fight for HIV Justice

When it comes to the widely misunderstood, complex issue of HIV criminalisation, media can be a powerful tool–or a blunt-force weapon.

And so today, as people around the world living with HIV continue to be criminalised and convicted at alarming rates, HIV JUSTICE WORLDWIDE has released “Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation.”

The new resource is the latest addition to the HIV JUSTICE Toolkit, which provides resources from all over the world to assist advocates in approaching a range of advocacy targets, including lawmakers, prosecutors and judges, police, and the media.

The purpose of this critical media toolkit is to inform and equip global grassroots advocates who are engaged in media response to HIV criminalisation–and to demystify the practice of working with, and through, media to change the conversation around criminalisation.

“As advocates work to build community coalitions and consensus about the importance of limiting and ending HIV criminalisation, we need to articulate our common positions to the public and to decision-makers; thus, working with the media is critically important,” says Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network and a member of the HIV JUSTICE WORLDWIDE Steering Committee. “Also, particularly in settings where sexual assault laws are used to criminalise people living with HIV, it is important to communicate via the media why this misuse of the criminal law is harmful to women.”

The toolkit provides an introduction to the topic of HIV criminalisation and the importance of engagement with media to change narratives around this unjust practice. The toolkit also includes reporting tips for journalists, designed to educate writers and media makers around the nuances of HIV criminalisation, and the harms of inaccurate and stigmatising coverage.

Positive Women’s Network – USA (PWN-USA), the HIV JUSTICE WORLDWIDE Steering Committee member organisation that produced the toolkit, has been working on HIV criminalisation for many years, and was an instrumental part of the coalition that brought HIV criminal law reform to the US state of California.

“With HIV rarely making front page news anymore, the highly sensationalised reporting of criminalisation cases–which most often contains little in the way of facts or science–paints a dehumanising picture of people living with HIV,” says Jennie Smith-Camejo, Communications Director for PWN-USA. “This kind of coverage can and does destroy real lives of those affected by HIV criminalisation laws, while fueling and feeding misinformation and stigma.”

The toolkit also includes a number of case studies providing examples of how media played a significant role in the outcome, or the impetus, of HIV criminalisation advocacy.

“I have been monitoring media coverage of speculations, arrests, prosecutions, and convictions of people living with HIV, and also legal and policy proposals for new laws and/or reform, for more than a decade,” notes Edwin J Bernard, Global Co-ordinator of the HIV Justice Network and a member of the HIV JUSTICE WORLDWIDE coalition. “It’s time for the injustice to end. ‘Making Media Work for HIV Justice’ is a long-overdue welcome addition to the HIV JUSTICE Toolkit, and an important step towards realising a world where people living with HIV are not singled out by the criminal justice system simply for having a virus.“

“Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation” was supported by a grant from the Robert Carr Fund for Civil Society Networks. It  will also be translated into French, Spanish, and Russian later this year.

Webinar: Making Media Work for HIV Justice

This 90 minute webinar introduced attendees to some of the concepts and practices highlighted in the toolkit, and featured formidable activists, journalists, communications professionals, and human rights defenders working at the intersection of media and HIV criminalisation.

About HIV JUSTICE WORLDWIDE

HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations–most of them led by people living with HIV–who are working together to build a worldwide movement to end HIV criminalisation. All of the founding partners have worked individually and collectively on HIV criminalisation for a number of years.

HIV JUSTICE WORLDWIDE is run by a 10-member Steering Committee: AIDS Action Europe / European HIV Legal Forum; AIDS-Free World; AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); Sero Project (SERO); and Southern Africa Litigation Centre (SALC).

To learn more and to join the movement, visit: http://www.hivjusticeworldwide.org.

Download the media release as a pdf here: http://bit.ly/HIVJusticeToolkitMediaRelease

Sean Strub Harvard Lecture: HIV Criminalization: Creating a Viral Underclass in the Law (US, 2018)

HLS Lambda hosted this lecture on HIV stigma, criminalization, and activism.

Sean Strub is a longtime HIV survivor, founder of POZ magazine, director of the Sero Project, and an advocate for people living with HIV. He is the author of Body Counts: A Memoir of Politics, AIDS, Sex, and Survival. His short film, HIV Is Not a Crime, introduced the problem of HIV criminalization to audiences worldwide. A longtime activist, Strub was the first openly HIV-positive person to run for the U.S. Congress. He has also produced the off-Broadway hit The Night Larry Kramer Kissed Me, and served as a member of the board of the Global Network of People Living with HIV.

For more information, visit our website at: petrieflom.law.harvard.edu/events/details/hiv-criminalization-lambda

US: SERO Project and Positive Women’s Network-USA Announce 2018 HIV Is Not a Crime National Training Academy Registration is Open (Press Release)

SERO Project and Positive Women’s Network-USA Announce 2018 HIV Is Not a Crime National Training Academy Registration is Open

February 5, 2018: SERO Project and Positive Women’s Network – USA are excited to announce that registration is now open for the 2018 HIV is Not a Crime III National Training Academy! Planning to participate? Register now! Get more information on the training academy website here.

Building on the amazing success of the HIV Is Not a Crime II National Training Academy in 2016, the planning process is underway for the third HIV Is Not a Crime National Training Academy to support advocates in their efforts to repeal or modernize state laws criminalizing the alleged non-disclosure, perceived or potential exposure or transmission of HIV. The training academy will be held at Indiana University-Purdue University Indianapolis (IUPUI) June 3-6, 2018.

HIV is Not a Crime III will once again unite and train advocates living with HIV and allies from across the country about laws criminalizing people living with HIV and on strategies and best practices for repealing such laws. Skills-building trainings, with an emphasis on grassroots organizing, advocacy, coalition-building and campaign planning, will leave participants with concrete tools and resources to work on state-level strategies when they return home.

“The HIV Modernization Movement (HMM) is excited to welcome HIV is Not a Crime III to the IUPUI campus! Science has made extraordinary advances since the HIV epidemic began in the 1980s, but one area that hasn’t kept up is the body of laws that criminalize HIV. Lacking in scientific merit, these harmful laws stigmatize people living with HIV and are counterproductive to HIV treatment and prevention efforts. Organized activities like this one, that bring together people living with HIV and their allies to collectively strategize on reforming these draconian laws, are critical to ending the HIV epidemic,” says Dr. Carrie Foote, HMM Chair and Associate Professor at IUPUI.

Interested in presenting a session at HIV Is Not a Crime III? The abstract submission process is open through Monday, February 12. Find complete instructions for submitting your session proposal here.

Interested in providing financial support for this important event? Sponsorships are still available at various levels. Please contact Sean Strub, SERO Project (sean….@seroproject.com) or Naina Khanna at Positive Women’s Network – USA (naina.kh…@gmail.com) for more information.

Questions? Please contact Tami Haught, SERO Organizer and Training Coordinator, at:  tami.haught@seroproject.com.

 

US: HIV Criminalisation Webinar on Dec 7 for criminal defense attorneys about the current state of medicine

2017 FREE Webinar: HIV Criminalization Webinar

On December 7, 2017, the National Association of Criminal Defense Lawyers (NACDL) and The Center for HIV Law & Policy (CHLP), will co-host a webinar on HIV Criminalization that will provide participants with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer, geared toward criminal defense attorneys, but open to all, will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases. See attached event flyer.

Date:   Thursday, December 7, 2017

When:  1:30 p.m. – 3:00 p.m. ET

Cost:   FREE

CLE credit:  Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

Register:  Click here to register.

* Registrants will be sent a link to the written CLE materials in advance of the webinar.

 

Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results

In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.

The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.

As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).

In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.

In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “.  Thanks to quick action by local activists, the proposed reforms did not pass.

In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison.  A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.

In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections.  Only the states of Aguascalientes and San Luis Potosí do not have this law.

According to data from Letra S, at least 39 people have been prosecuted under this law between 2000 and 2016 on suspicion of having transmitted a sexual infection and / or HIV. The state with the highest number of registered cases is Veracruz, with 15; Sonora follows, with nine; Tamaulipas and State of Mexico, with five; Chihuahua, with three, and Mexico City and Nuevo León with a case.

Last year, the Veracruz Multisectoral Group on HIV / AIDS and STIs and the National Commission on Human Rights challenged the Veracruz law on unconstitutionality grounds at the Supreme Court of Justice of the Nation. The challenge was supported by HIV JUSTICE WORLDWIDE in a widely reported press conference last year.  However, the Supreme Court has yet to rule.

As a result of the meeting, the Mexican Network of organisations against the criminalisation of HIV was formed, bringing together 29 organizations from all over the country. During, and immediately following the meeting, the Network drafted an 11-point Declaration addressed to various governmental agencies in charge of responding to the epidemic, as well as to society in general.

Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.

The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.

With two weeks of the meeting, Network representatives met with Congresswoman Laura Beristain, who had proposed the new unjust, overly broad HIV criminal law in Quintana Roo. She listened to their arguments, read the Declaration, and immediately gave a firm commitment to repeal Quintana Roo’s problematic provisions in Article 113.

Watch and share short video below about the meeting and the Network’s immediate advocacy win.

Webinar on Wednesday, Nov. 15: HIV Criminalisation Beyond Non-Disclosure: Advocacy Toolkits on Intersections with Sex Work and Syringe Use

Introducing HIV Criminalization Beyond Non-Disclosure: Advocacy Toolkits on Intersections with Sex Work and Syringe Use 

Webinar: Wednesday, November 15, 3:30-4:30 pm ET

The toolkits highlight the intersections between advocacy for HIV criminal law reform, decriminalization of sex work, and safe syringe access. These different advocacy communities share many common goals and constituencies, yet do not generally work in close collaboration or collectively strategize.
The webinar will introduce you to these intersections and include a discussion of how the toolkits can enhance your own advocacy, as well as Q and A. 
Click here to register!

Mexico: Mexican advocates attend the "HIV is not a crime" forum to fight HIV criminalisation laws

Representatives of civil organizations rejected, during the forum “HIV is not a crime”, the approval of a law initiative in Veracruz and Quintana Roo that aims to punish and criminalize, by up to 25 years in prison, those who are carriers of HIV-AIDS and infect another person.

While in Quintana Roo a bill is being proposed that aims to punishHIV transmission by 25 years of imprisonment, a similar initiative was also approved in Veracruz, which sanctioned 5 years of imprisonment.

In the case of Veracruz, the organizations indicated that a constitutional challenge is already in motion for that initiative to be repealed.

“We filed an appeal for unconstitutionality because now anyone can go and report that you infected the virus, but HIV is not contagious but transmitted and there is no way to verify that one person passed it on to another,” said Patricia Ponce, member of the Multisectoral Group on HIV and AIDS in the State of Veracruz.

A similar initiative was presented in San Luis Potosí, which proposed to sanction with one and up to three years of imprisonment the person who, having a risk of HIV transmission, had sex and up to 10 years if it was transmitted. However, local civil organizations managed to stop its approval, said Alberto Macías Narváez member of “Friends Potosinos in Fight against AIDS.”

“The argument we used to stop this initiative was that it is virtually impossible to prove that someone transmitted you AIDS, and the health system does not even have the equipment to do this type of studies, therefore, we can not prove who it is the person responsible for a transmission, “Macias said.

A member of the civil organization “Círculo Social Igualitario de Quintana Roo” named Edgar Mora, said that in that state the initiative that plan for up to 25 years imprisonment to those who transmit this disease is being discussed and, therefore, organizations are having a dialogue with the deputy Laura Esther Beristain, who promoted this proposal of law.

The idea is to make the lawmaker see that there are no methods to prove that a person was responsible for the infection and, if this initiative is approved, more stigmas will be generated around the disease and people will avoid undergoing diagnostic tests, he said.

“People are now avoiding HIV testing because people prefer not to know whether or not they live with the virus for fear their partner knows they have the disease and, as a result, the person is incarcerated.

“Unfortunately there is already a lot of psychosis because in social networks there have been widely spread messages like: ‘Sidosos, they go to jail’,” Mora shared.

Leonardo Bastida, member of the Civil Association “Letter S, AIDS, Culture and Everyday Life”, explained that in a study conducted in 2016 by the organization to which he belongs, it was identified that from 1990 to 2015, at least 20 people in the country were prosecuted for transmission of sexual diseases, mostly HIV-AIDS.

So far, organizations have pointed out that the best way for MPs to legislate in favour of people with HIV is to ensure the coverage of antiretroviral treatments and to strengthen plans for the control and management of HIV.

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Original article in Spanish

Rechazan leyes que criminalizan VIH

Evlyn Cervantes

Cd. de México (11 octubre 2017).- Representantes de organizaciones civiles rechazaron, durante el foro “VIH no es un crimen”, la aprobación de una iniciativa ley en Veracruz y Quintana Roo que pretende castigar y criminalizar, hasta con 25 años de cárcel, a quienes sean portadores de VIH-sida y contagien a otra persona.

Mientras en Quintana Roo se discute una iniciativa de ley que pretende castigar con 25 años de prisión la transmisión de VIH, en Veracruz también se aprobó una iniciativa similar que sanciona con 5 años de prisión el contagio.

En el caso de Veracruz, las organizaciones señalaron que ya se promueve una acción de inconstitucionalidad para que esa iniciativa sea derogada.

“Metimos un recurso de inconstitucionalidad porque ahora cualquier persona puede ir y denunciar que tú le contagiaste el virus, pero el VIH no se contagia sino se transmite; no hay manera de comprobar que una persona se lo transmitió a otra”, planteó Patricia Ponce, miembro del Grupo Multisectorial en VIH SIDA E ITS del Estado de Veracruz.

Una iniciativa similar se presentó en San Luis Potosí, la cual proponía sancionar con uno y hasta tres años de prisión a la persona que, teniendo un riesgo de contagio de VIH, tuviera relaciones sexuales y hasta con 10 años a quien lo transmitiera. No obstante, organizaciones civiles locales lograron frenar su aprobación, explicó Alberto Macías Narváez integrante de “Amigos Potosinos en Lucha contra el Sida”.

“El argumento que utilizamos para frenar esta iniciativa fue que es prácticamente imposible demostrar que alguien te transmitió el sida, y el sistema de salud no cuenta ni siquiera con los equipos para hacer este tipo de estudios; por lo tanto, no podemos demostrar quién es el responsable de una transmisión”, indicó Macías.

Un integrante de la organización civil “Círculo Social Igualitario de Quintana Roo” llamado Edgar Mora, expuso que en esa entidad se discute la iniciativa que prevé hasta 25 años de cárcel a quien transmita esta enfermedad y, por ello, las organizaciones están gestionando un diálogo con la diputada Laura Esther Beristain, quien promovió esta propuesta de ley.

La idea es hacerle ver a la legisladora que no existen métodos para acreditar que una persona fue responsable del contagio y, que de aprobarse dicha iniciativa, se generarán más estigmas en torno al padecimiento y las personas evitarán someterse a pruebas de diagnóstico, abundó.

“Ahora las personas están evitando hacerse pruebas de diagnóstico de VIH porque las personas prefieren no saber si viven o no con el virus por temor a que su pareja sepa que tiene la enfermedad y, que en consecuencia, la persona sea encarcelada.

“Desafortunadamente ya hay mucha psicosis porque en redes sociales se han difundido ampliamente mensajes como: ‘Sidosos, se van a la cárcel'”, compartió Mora.

Leonardo Bastida, miembro de la Asociación Civil “Letra S, SIDA, Cultura y Vida Cotidiana”, detalló que en un estudio realizado en 2016 por la organización a la que pertenece, se identificó que de 1990 a 2015, al menos 20 personas en todo el País fueron procesadas por transmisión de enfermedades sexuales, en su mayoría VIH-sida.

Hasta el momento, las organizaciones señalaron que la mejor forma de que los diputados legislen a favor de las personas portadoras de VIH es que se garantice la cobertura de tratamientos antirretrovirales y se fortalezcan los planes de control y manejo sanitario de esta enfermedad.