Live stream: Addressing legal barriers to fast track HIV/TB response in Africa
This is the live stream of the 2nd Africa Regional Dialogue on HIV, TB and the law, on 4 August 2017. It is being streamed from The Balalaika Hotel in Sandton, Johannesburg, South Africa. For more information please visit http://africadialogue.net
Evidence- and rights- based laws and policies are key to ending AIDS
On the five-year anniversary of the Global Commission on HIV and the Law’s groundbreaking report, former members of the Commission and partners commend 88 countries for advancing the report’s recommendations and urge other countries to enact progressive legislation and protect human rights
NEW YORK – Five years ago, a landmark report published by the Global Commission on HIV and the Law urged governments to promote laws and policies grounded in evidence and human rights in order to turn the tide against AIDS. This week, members of the Commission and representatives of UN Member States, civil society, academia and international organizations came together to assess the progress made in advancing the report’s recommendations, look at the barriers that remain and discuss opportunities for further progress.
The Commission – comprised of former heads of state, human rights, public health and legal experts – released a report that has led a multi-year effort to ensure that national laws, policies and practices that impede the AIDS response are overturned. Laws that stigmatize people living with and vulnerable to HIV perpetuate discrimination and block people from seeking health services and undermining public health goals.
“HIV is still one of the deadliest diseases in the world and it’s unforgivable that national governments have failed to address legislation that fuels the AIDS pandemic,” said former Commissioner Michael Kirby, a former Justice of the High Court of Australia. “Laws that criminalize HIV are anti-science, unjust and unconstructive.”
It’s not all bad news – the Commission also pointed out several success stories, noting that legislation based on science and human rights has helped advance the global commitment in the Sustainable Development Goals to end HIV for good and leave no one behind. Today, there’s still reason to be optimistic.
“It is time for countries to think proactively about designing laws and policies that will help end the HIV epidemic,” said former Commissioner Bience Gawanas, a lawyer and human rights expert. “We’ve seen that some countries, including Ghana and Mozambique, have been able to improve HIV responses by adopting more progressive policies. If we’re going to defeat HIV, other countries need to do the same.”
Since the release of the Commission’s report, the United Nations Development Programme (UNDP) and its partners have helped advance the report’s recommendations in 88 countries. Several countries have conducted comprehensive assessments of laws, policies and practices affecting people with HIV and have changed legislation as a result. National conversations on the rights of people living with and vulnerable to HIV have led countries to reform discriminatory practices against people living with HIV. Judges, civil society organizations and partners have been instrumental in helping to overturn discriminatory legislation and counter HIV stigma.
The Commission’s recommendations contributed to several success stories over the last five years. These include:
“Equality, inclusion and non-discrimination are at the heart of the 2030 Agenda for Sustainable Development,” said Achim Steiner, UNDP Administrator. “Laws and policies that protect rather than punish, combined with programmes that reduce stigma and discrimination, exist and need to be scaled up if we are to achieve our goal of ending the AIDS epidemic by 2030.”
By replacing legal practices rooted in stigma with legislation based on science, these countries are among the frontrunners taking steps to protect the human rights of people living with and affected by HIV.
“It’s incredible to see the progress that some countries have made over the past five years,” said Michel Sidibé, Executive Director of UNAIDS. “They’ve taken important strides to protect the rights of women and people living with and vulnerable to HIV.”
These countries have shown us that laws and policies grounded in evidence and human rights, combined with programs that reduce stigma and discrimination, can help accelerate progress to end the AIDS epidemic by 2030.
About the Global Commission on HIV and the Law:
The Global Commission on HIV and the Law was launched in June 2010 by UNDP on behalf of the Joint UN Programme on HIV/AIDS (UNAIDS) to provide global leadership on HIV-related legal and human rights issues by analyzing what is known about the interactions between the legal environments, human rights and HIV; fostering evidence-informed public dialogue on the need for rights-based law and policy in the context of HIV; and identifying clear and actionable recommendations with a concrete plan for follow-up. (www.hivlawcommission.org)
Contact informationSangita Khadka, Communications Specialist, UNDP Bureau for Policy and Programme Support, email: sangita.khadka@undp.org tel: +1 212 906 5043A call for applications for the European HIV Academy for Enabling Legal Environments is now open.
This two-day training academy for people living with and affected by HIV, is dedicated to skills building for addressing punitive or disabling legal environments.
Around 25 participants from across Europe will be selected to take part in this training academy, which will focus on three intersectional legal barriers affecting people living with, and affected by, HIV:
The training academy is organised in collaboration with Deutsche AIDS Hilfe (DAH) – the host organisation of AIDS Action Europe (AAE) – the European AIDS Treatment Group (EATG), Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN).
When: 13-14 September 2017 Where: Deutsche AIDS Hilfe, Berlin, Germany Apply here: https://www.surveymonkey.com/r/WZRFV35 Applications close Wednesday July 26th (23:59 CET)
The objectives of the training academy are:
Format
The training academy is organised in a workshop format with presentations and group work. The trainers are leading experts in the field from the organising bodies and their networks. The entire training will be in English; no translation will be provided.
Participant criteria
People working on improving HIV-related legal and policy environments in any of the 53 countries in the WHO Europe region are welcome to apply. Participants will be scored based on country needs-assessment, fluency in English and links to local and national networks.
Only complete applications submitted via the online form will be accepted.
Scholarships
Some scholarships are available to cover all costs including flights and accommodation, or flights or accommodation only. If you wish to apply to a scholarship, please indicate this on the application form. Please note that all meals are provided to all participants.
“I would not have consented to sex had I known of their HIV” status. This statement is problematic and here’s why.
On June 15, 2017 the Canadian HIV/AIDS Legal Network held a symposium in Toronto, Ontario, Rethinking Justice: the 7th Symposium on HIV Law and Human Rights. The symposium focused on unjust HIV criminal legislation in Canada.
Canada unfortunately has one of the worst records in the world for the overly broad use of criminal laws to address HIV nondisclosure. Panels of experts and those with lived experience of HIV criminalization presented their research and experiences. The legal experts discussed the history of the nondisclosure law and how the notion of “fraud” relates to criminal laws for nondisclosure.
In Canada when a person does not disclose their HIV status to sex partners it is considered an act of fraud where consensual sex did not take place. Because the sex is not consensual, as the complainant maintains they, “would not have consented to sex had they known of their partner’s HIV status” charges of aggravated sexual assault are applied. Aggravated sexual assault comes with a prison sentence which can range from ten years to a life time imprisonment where it is deemed the person posed a significant risk of serious bodily harm, which posed a realistic possibility of transmission of HIV.
Presented here are a couple of highlights of Supreme Court of Canada rulings, which the reader can explore further. The Supreme Court of Canada rulings laid out the terms and conditions for which “fraud” could be used to prosecute people living with HIV for non-disclosure of their status. The focus of this article is on the notion of fraud from the perspective of people living with HIV including the detrimental effects legislative and popular belief pose.
In 1998 the R v. Cuerrier, (1998) 2 SCR 371 ruled in a nondisclosure of HIV case that
“HIV/STI non-disclosure amounts to fraud vitiating consent, thus transforming consensual sex into a sexual assault when,
AND
the complainant would not have consented to sex had they known accused person’s status
exposing a person to the risk of HIV “endangers life” and therefore is considered aggravated (sexual) assault
In 2012 the R v Mabior, (2012) SCC 47 and R v D.C. (2012) SCC 48 ruled specifically in the case of HIV: there needs to be a “significant risk of serious bodily harm”, which poses a “realistic possibility” of transmission of HIV.
Section 265 (3) (c) of the Criminal Code of Canada states: fraud vitiates consent to contact. For the purposes of this section, no consent to physical contact is obtained where the complainant submits or does not resist by reason of fraud.
You can read more about these Supreme Court of Canada rulings, a complex phenomenon where the highest court in the country has intervened with no clear resolution to date as Canada remains a world leader in prosecutions for non-disclosure of HIV status. There are approximately 187 non-disclosure prosecutions in Canada to date.
In the meanwhile here’s the latest on nondisclosure and the notion of fraud and “reasonable risk” of transmitting the HIV virus, as experienced on interpersonal levels by people living with HIV.
That a person can choose to not have sexual contact with someone living with HIV and then have the option to pursue criminal charges of aggravated sexual assault on the basis of fraud and “risk of transmission” if they realize after the fact they did not practice universal caution in the first place, is problematic on many levels.
Here’s why: it fuels stigma and discrimination against people living with HIV. It deters people from getting tested for HIV and knowing their status and seeking treatment. It fuels criminalization of HIV non-disclosure. (Criminalization has not proven to be effective in lowering rates of HIV transmission.) It reinforces an imbalance of power for individuals in taking responsibility for their own sexual well-being.
” It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status.”
Charging people with fraud in HIV non-disclosure cases exacerbates lack of education in regards to modern scientific information in the world of HIV. It does not take into consideration the fact that having an undetectable viral load makes it impossible to transmit the virus (Undetectable=Untransmittable or U=U). As well there is no acknowledgement of pre-exposure prophylaxis (PrEP) as a prevention measure).
Criminal charges remain value laden and racist as they tend to target marginalized groups of minorities, rather than being driven by scientific evidence and facts.
The general public behaves negatively towards disclosure, discouraging people from being open about their status and in some instances making it impossible. The general public has the strong arm of the law on their side and they can always prosecute someone for nondisclosure, using fraud as a basis, without giving any thought to how they might manage disclosure differently.
People living with HIV want to disclose, as every person who struggles with disclosure will attest. It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status. This includes severe stigma, using disclosed information in damning ways to harm persons living with HIV as well as potentially many forms of violence (especially toward women who are in positions of power imbalances in relationships), blackmail, constant rejection and the more subtle kinds of rejection which are often the most hurtful.
People living with HIV want to pursue some sort of normalcy in fulfilling their basic human need and basic human right to intimacy and relationships with others. After a while, as a means of self-preservation, disclosing becomes not so easy for all the reasons described.
How can the general public insist upon disclosure when they set the tone and grounds for unsuccessful disclosure?
It’s fucked. People living with HIV are fucked.
The power imbalance is blatantly tipped in favour of the HIV-negative.
But if people are going to continue with irrational expectations, whereby the HIV-positive are obliged to disclose their status or risk prosecution, yet are bashed, stigmatized and often threatened with different types of violence when they do meet their obligation to disclose, then what are people living with HIV supposed to do?
This situation sets the stage for non-disclosure and everything that entails.
The irony is not lost as the HIV-positive continue to disclose and make every effort to convey modern facts about HIV in the hope that it will make disclosure easier. To date, it has not been effective. As a matter of fact, the stigma around HIV disclosure is worse than ever.
This irrational pattern of thinking leaves people living with HIV in a position where it is often near impossible to get the facts out about modern science which dispel myths and stigma that are rooted in fear and ignorance. People living with HIV face deprivation of intimacy and relationships that are key components to a healthy lifestyle, and part of basic human needs like hunger and thirst.
If people go for prolonged periods without their basic human needs met I would hazard a guess they are not in the greatest state of mind or body while struggling with the stress and constant reminder that life is not as it should be. They might be thinking about what it would be like to experience intimacy, free of the complications, just this once. “Oh to escape from this imposed burden and to feel normal again, just for a while.” This is a key factor in disclosure complexity.
Here are a few options available to people living with HIV under these circumstances. None of them are ideal:
Never be intimate again. Live in isolation and fear of prosecution as well as discrimination from the general public.
Continue to disclose and suffer the backlash with the end result being more stigma and bashing, no intimacy, with continued responsibility and onus being on people living with HIV to disclose. Live with fear of prosecution even if disclosure occurred.
Remain hopeful and continue to educate and advocate for change in public perception and legislation, which recognizes scientific modernization proving that the HIV-positive are not a risk. Recognizing how intimacy is a basic human need and right.
Continue to advocate for changes in HIV criminal laws that are to date not effective, while trying to maintain hope for a more favourable and balanced situation than the disclosure dilemma we now see.
It’s time to rethink the statement, “I would not have consented to sex had I known of their HIV status.” A person living with HIV, who is on medication and has an undetectable viral load cannot transmit the HIV virus sexually. Why would you not have sex with a person who is living with HIV?
It’s time to learn and absorb this vital information which changes the notion of what “reasonable risk” means and which offers a new, fear-free perspective to people living with HIV.
Modern scientific developments have been a secret well guarded by gatekeepers, as this information is largely left out of the criminalization discussion. This scientific information is not new or cutting edge, yet is not discussed with the general public or taken account of in legislation.
Prosecutions, discrimination and ostracism remain the favoured options in managing HIV disclosure here in Canada.
The general public, supported by legislation and policy, has created this situation; how can they begin to fix it? What about some suggestions for the general public and law makers? People living with HIV already know what their responsibilities are.
Education leads to change in thinking, change in decision making, and a change in the statement, “I would not have consented to sex had I known of their HIV status.” Change in legislation and change in public perception would ultimately lead to a decline in transmission rates, improved quality of life for people living with HIV and the removal of the stress and threat of criminalization.
If people living with HIV are received with positive and supportive responses, disclosure of HIV will be far less complex and hopefully one day it will be a nonissue.
But back to the fraud charges, and some questions to ponder in this complex state of affairs: How can people living with HIV be criminally charged with fraud, under the circumstances described here? Can those who make disclosure difficult be prosecuted for fraud? Does choosing not to know the facts while promoting ignorance and in turn harm to people living with HIV constitute fraud? If disclosure were more of a shared responsibility, would there be such harsh legislation in place?
And how can responsible decisions be made and opinions formed which ignore scientific facts?
Regional judges meet to promote law as a tool to strengthen the HIV response in Africa
High and Supreme Court judges from across Africa gathered in Johannesburg, South Africa this week for an annual forum to share experiences, compare cases across different jurisdictions, learn about the latest medical and science developments, and discuss ways to advance the use of law as a tool to respond to the HIV epidemic.
The three-day Africa Regional Judges Forum on HIV, Human Rights and the Law was attended by nearly 50 participants, including 30 judges from 16 countries, and was organized by the United Nations Development Programme (UNDP) through the Africa Regional Grant on HIV: Removing Legal Barriers.
The forum was established by a group of judges in 2014 following the release of the report of the Global Commission on HIV and the Law, an independent body convened by UNDP which examined links between legal environments and HIV responses. The annual meetings are owned and planned by the judges themselves.
“Through their interpretation of national Constitutions, legislation, international and regional human rights treaties, the judiciary play a crucial role in establishing and implementing laws, policies and practices that can aid the HIV response,” said Justice Key Dingake who opened the forum with a keynote speech. “This annual forum has proven to be a useful mechanism for facilitating experience and knowledge sharing amongst the legal community, and it is hoped that these efforts will translate into a positive impact on the lives of people affected by HIV, who are often among the most vulnerable in society.”
Discussions during this year’s meeting focused on transgender persons and their lived realities, HIV and tuberculosis in prisons, criminalization of HIV transmission, people who use drugs, and adolescent sexual and reproductive health and rights, including an in-depth discussion on child marriage in Sub-Saharan Africa.
Relevant cases were shared with participants. A landmark judgement in Malawi concerning overly broad criminalization of HIV non-disclosure, exposure and transmission was discussed in detail. The case concerns a woman living with HIV and on antiretroviral treatment who was convicted of a crime under section 192 of the Penal Code for breastfeeding another person’s child. The child did not contract HIV and the evidence indicated that the breastfeeding was accidental and unintended. With the support of the Southern Africa Litigation Centre, UNDP and a team of local lawyers and activists, the conviction was overturned in January 2017 as part of strategic litigation efforts. Key actors involved in the case, including the judge and defense lawyer, attended the session and shared insights of the case with participants.
“One of the key issues in the case was how HIV can be transmitted and the risk of HIV transmission when breastfeeding,” said Justice Zione Ntaba. “I was able to use the information from previous meetings of the Judges Forum as well as material on the database to assist me in determining whether breastfeeding a baby put the baby at significant risk of contracting HIV.”
Another session during the forum focused on tuberculosis in prisons. Katherine Brittin from TB/HIV Care Association discussed how tuberculosis is transmitted in prison and the risk factors for transmission, including overcrowding in prisons. She called on the judges to take these factors into account when sentencing individuals, especially given the overcrowding of prisons in many countries in Africa.
A key aim of the forum is to give opportunities for the judiciary to hear directly from representatives of civil society and affected population groups on the impact of laws, policies and practices. Real world lived experiences were presented by a transgender doctor, a transgender man from Asia-Pacific, a man who acquired TB while in prison, two women who were forced into marriage as children, and a person who uses drugs and is currently on methadone treatment.
In some parts of the region, cultural norms such as child marriage are having harmful effects on the HIV response. Participants from Zimbabwe shared the difficulties that they encountered in mounting a legal challenge for child marriage in the country. In 2016, civil society and the Southern African Development Community-Parliamentary Forum collaborated to develop a Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage which was intended to prompt policy reforms in Member States. While the initiative is still in its infancy, participants expressed hope that it will be a catalyst for change.
“Laws that are based on evidence and human rights have the power to make a positive impact on the HIV response,” said Amitrajit Saha, Senior Advisor HIV and Human Rights, UNDP. “UNDP works to empower and marginalized key populations, including women and girls, in national and local HIV responses can strengthen the response. This also contributes to fulfilling the Sustainable Development Goals pledge to ‘leave no one behind’.”
UNDP has developed an online searchable database of HIV and the law related judgements, which was shared with participants. The database is continually growing in size and has proven to be a useful tool for judges over the last two years that it has been in operation. The database can be accessed online here.
One highlight of this year’s gathering was the creation of a Steering Committee comprised of five judges from the forum. Justice Dingake will serve as the President of the Steering Committee; Judge Zukisa Tshiqi of the Supreme Court of Appeal of South Africa will serve as the Vice President. The other three members of the Steering Committee are Judge Mumcy Dlamini of the High Court of Swaziland, Judge Ndomba Kabeya Elie Leon from the Democratic Republic of the Congo and Judge Anthony Fernando of the Seychelles Court of Appeal. The Steering Committee will set the strategic direction of the forum, initially adopt a draft plan of action for the next six months and work with UNDP and other partners to implement the plan. Preliminary discussions were also held on expanding the forum to cover countries from the Middle East and Eastern Europe regions.
Additionally, the forum dedicated a session to planning for the upcoming Second Africa Regional Dialogue on HIV and the Law scheduled to take place 3-4 August in Johannesburg, and discussed the importance of including judges in this significant event.
“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr Ruth Labode, a member of Parliament from Zimbabwe opening remarks at a two-day global meeting co-hosted by the AIDS and Rights Alliance for Southern Africa (ARASA) and HIV Justice Worldwide (HJWW) on 24 and 25 April 2017 in Johannesburg, South Africa, which focused on “Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission”.
The meeting was attended by advocates, civil society organisations, lawyers, judges, national human rights institutions and Members of Parliament from all over Africa and with some delegates from North America. Central to these deliberations was the draconian provisions within numerous HIV-specific laws being developed as government responses to the prevention and control of the HIV epidemic. The good intentions inherent in these pieces of legislation are often marred with provisions, which criminalise people based on their HIV status. Punitive provisions relating to ‘compulsory testing’, ‘involuntary partner notification’, ‘non-disclosure’ and ‘transmission’ of HIV are often cited, fueling stigma against people living with HIV.
The common theme binding these deliberations, was the negative impact of HIV criminalisation and the stories that were shared by colleagues. The increasing trend of imposing criminal sanctions against people living with HIV, had resulted in adverse impact on public health outcomes for certain populations, especially women. While reinforcing stigma, HIV criminalisation impedes access to sexual and reproductive health services such as condoms, HIV testing and treatment. Further, HIV criminalisation discourages HIV-positive women from accessing ante-natal care, which leads to increased maternal and child mortality. The overly broad and vague nature of most HIV specific laws, accompanied by the imposition of criminal sanctions without empirical or scientific support, further underpins the rift between public health goals and the protection of human rights.
Representing the AIDS Legal Network, one of the partners who led the development of the 10 Reasons Why Criminalisation Harms Women, Johanna Kehler mentioned the fact that, “HIV criminalisation and HIV specific laws are often set against a social milieu that is patriarchal, heteronormative and perpetuates gender inequalities and utilises punitive approaches to “correct” imbalances.” She went on to add that these laws ultimately maintain and widen the divide between public health needs and human rights obligations.
“Most prosecutions globally involve no or negligible risk of transmission. Among the thousands of known prosecutions, cases where it was clear, much less proven beyond reasonable doubt, that an individual planned on or wanted to infect another person with HIV, are exceedingly rare. People are being convicted of crimes contrary to the best public health advice, but also contrary to scientific and medical evidence”, said Dr Laurel Sprague of the HIV Justice Network, who has since become the Executive Director of the Global Network of People Living with HIV (GNP+).
During the meeting, various organisations shared their experiences around litigating these matters and community advocacy mounted to reform problematic laws or specific draconian provisions. Cases from Zimbabwe, Nigeria and Niger showcased that challenges were experiences in most contexts.
The Uganda Network on Law, Ethics & HIV/AIDS (UGANET), together with other advocates and activists, continue to challenge the Ugandan law and constitutionality of the criminalisation provisions contained in the HIV Prevention and Control Act of 2014. The Southern Africa Litigation Centre (SALC) spoke to the extensive work that they furthered in Malawi, which included a focus on arbitrary arrests and dentition. Malawi has taken the centre stage where HIV criminalisation is concerned, as they are currently in the process of tabling a decade-old Draft HIV and AIDS (Prevention and Management) Bill, which contains draconian provisions around HIV criminalisation.
Amplifying the voice of survivors of HIV criminalisation, the meeting was privileged to engage with Kerry Thomas via telephone from a state correctional facility in Boise, Idaho in the United States of America. Mr Thomas, who was prosecuted for HIV non-disclosure and the sentence that he is serving, reinforced the unjust nature of these laws. Mr Thomas is currently serving his eighth year out of a 30-year sentence for non- disclosure to his ex-partner, despite there being no proof of transmission and the fact that he had consensual and protected sex. His appeal on the unconstitutionality of Idaho’s non-disclosure law, was overturned in the District courts in 2016.
The meeting concluded with very strong calls for everyone to joining the global HIV JUSTICE WORLDWIDE movement and organisations committed to utilise their existing resources to galvanise advocacy focusing on ending HIV criminalisation.
Participants agreed that there was a need to focus on the inter-sectionalities within the HIV criminalisation discourse, as well as a need for coordination and collaboration amongst legislators, members of the judiciary, parliamentarians, health care workers and civil society organisations to further advocacy related to this issue.
The participants also agreed that transformative approaches to HIV criminalisation, require both legal and social reforms, such as sensitisation of community members and the media. ARASA has committed to working with colleagues in developing a timeline of key events and advocacy opportunities, at which colleagues could participate.
Revolutionising approaches to Criminalisation of HIV Non-disclosure, Exposure and Transmission was supported by a grant from the Robert Carr civil society networks Fund.
Since its inception, ARASA has played an active role in addressing HIV criminalisation in the region and globally. ARASA has strengthened the capacity of civil society on the issue and supported partners to work with the media, parliamentarians, members of the judiciary and lawyers to address HIV criminalisation.
To read more about the meeting, follow #Decrim4Health on Facebook and Twitter. You can also view a gallery of photos taken during the meeting here.
Rethinking Justice with Renewed Hope
So there I was, getting up at three in the morning once again in order to get to Toronto in time for an event. The event in this case was “Rethinking Justice 2017 Symposium on HIV Law and Human Rights” and I’d been looking forward to it especially since I knew a representative of the federal government would be there and I was very keen to hear what that representative might have to say to us. Two buses and a train later, I was in Toronto, waiting for the symposium to begin.
First off, Trevor Stratton of the Canadian Aboriginal AIDS Network (CAAN) welcomed us to the land and the conference. He went on to say that indigenous people understand about criminalization and to emphasize that indigenous women in particular are also disproportionately criminalized.
Next we heard Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, who also welcomed us, gave an overview of the day to come and posed the symposium’s overarching question: “Should we look at changing provisions in the criminal code that are used to criminalize people?”
After that the symposium proper got underway. The first segment was entitled “The State of HIV Criminalization” and it began with an audio presentation from Alex McClelland of Concordia University in partnership with the Canadian HIV/AIDS Legal Network. Alex does qualitative research, focusing on peoples’ lives in order to arrive at an empirical basis to assess the damage of injustice and violence at the hands of government employees. The audio portion of his segment consisted of various people talking about their experience of being criminalized and a lot of it was pretty hard to hear:
“I thought I was innocent until proven guilty.” “I was naked, along in a room with male guards watching me.” That sort of thing.
Unfortunately Alex was not able to attend in person but did address us by video after the audio presentation and then there was a live panel of persons living with HIV, during which Chad Clarke spoke in some detail about his own horrific experience, including beatings and deprivation of his HIV medication at the hands of the Canadian justice system employees.
And that set us up to hear our policy-makers’ response to HIV criminalization. The speaker was Marco Mendocino, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and as I sat here listening, I began to feel unexpectedly, if cautiously, optimistic.
He began by reaffirming the government’s commitment to HIV criminalization reform, saying there is “No doubt that we have a long way to go.” He went on to say that “HIV is not a crime. It should not be criminalized,” and delivered the news that Prime Minister Justin Trudeau has “introduced legislation to quash and erase previous unjust convictions.”
“HIV non-disclosure is a public health issue,” he said, and also, “Mabior made clear that future scientific development must be taken into account.” He went on to say that the use of the aggravated sexual assault provision “deserves further consideration… we want to get this right and are committed to taking the time and resources to do so.” It was remarkable to hear such positivity about HIV decriminalization from a government representative and it drew a big hand of applause.
Next came a panel discussion on “Criminalization in Canada and Internationally”, which I didn’t get to attend as peers on the panel didn’t want any media presence during the discussion.
The subject of the second panel was “The Science and its Interaction with the Law,” and that panel featured Megan Longley, a criminal defense lawyer who was the counsel in R v JTC (NSSC, 2013) as well as Art Poon, an Assistant Professor at Western University.
Megan’s talk was on the role of scientific evidence in avoiding wrongful convictions. As she told us, she’s a lawyer who also likes science and who had come to feel that the current state of HIV criminalization made little rational sense. She impressed on us the importance of science in proving these cases and delivered a short “Prosecution 101” as it applies to aggravated sexual assault. One of the more startling points made was that sexual assault cases are in fact very difficult to convict. Only about 3% of them do. Until, that is, you factor in HIV. In HIV-related sexual assault cases the rate is over seventy percent. And once we start to factor in such things as race or background of the defendant, a very disturbing picture emerges.
Art Poon spoke on “Phylogenetic Forensic Science and Implications for HIV Criminalization”, which turned out to be about the limitations of said evidence in such cases. “Phyloclusters offer great potential for misuse… there is little talk about the implications of these methods.” Although two individuals may carry HIV strains that are closely related, these will not necessarily be unique to the two parties and could extend to other persons within the same transmission network. More on this in my interview with Edwin J. Bernard, here.
After lunch we reconvened for an update on the campaign for prosecutorial guidelines by Glenn Betteridge, who is a staff lawyer with HIV & AIDS Legal Clinic Ontario (HALCO). Glenn spoke on how in Canada the provinces are responsible for the administration of justice. The Attorney General can suggest or set guidelines for prosecution lawyers but cannot dictate. Cops lay charges. Crown attorneys filter and stream them and they go forward if they’re deemed to have a chance of success and/or there’s sufficient community interest.
B. C. has a guideline for prosecuting these cases, as do England, Wales and, since 2014, Scotland. But we heard that here in Canada the Attorney General had previously ignored the science as well as community advocacy and had secretly devised a playbook. Since then, Ontario has been making favorable statements regarding HIV criminalization, but seem to have adopted a “wait and see” stance.
As to where the resistance to reform is coming from, Glenn told us that Ministers have been passive, disinterested because they see the issue as a loser politically. Also, Attorneys General are not used to being challenged or to being responsive to outside concerns. He went on to call the situation “a study in bureaucratic intransigence.”
We then heard presentations by Notisha Massaquoi, who is the Executive Director of Women’s Health in Women’s Hands and who spoke on “Critical Feminist Approaches to HIV Criminalization and the Law of Sexual Assault” and then Richard Elliott laid out the pros and cons of “Criminal Code Amendments as a Strategy to Limit Unjust HIV Criminalization.”
Ryan Peck, co-chair of the Ontario Working Group on Criminal Law and HIV Exposure spoke to us then on “Forging a community consensus: identifying elements of a consensus statement,” and the Canadian Community Consensus Statement on Ending Unjust Prosecutions for HIV Non-disclosure, following which we split up into groups for an exercise in forging consensus on these questions:
1 – Do you think it is ever appropriate to prosecute non-disclosure of HIV-positive status as a crime? Why or why not? What kind of situations might be legitimately prosecuted? What kind of situations should clearly be excluded from prosecution?
2 – Do you think it’s ever appropriate to prosecute non-disclosure of HIV-positive status as “sexual assault?” Why of why not?
3 – What do you think about changing the criminal code to exclude prosecutions for sexual assault and instead having a specific offence about non-disclosure?
What this exercise showed me is that even within our community it’s not easy to get consensus on these issues. And while the majority clearly favoured prosecutorial guidelines, it wasn’t unanimous. One lady stated that such guidelines would be of no use to her because as a Black woman she will always be a target for criminalization in our society.
Directly following the exercise there was discussion, facilitated by Tim McCaskell, a founding member of AIDS Action Now! and Valerie Pierre-Pierre, Director of the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO)
Attending the Rethinking Justice Symposium presented a truly fascinating overview of the current state of play on the issue of HIV criminalization and I heard several people observe that here in Canada we seem to be on the cusp of some really favorable developments after moving so long in the other direction. Cautious optimism, as I said.
Here’s hoping that wave of optimism turns out to be justified and that we can ride it into a better future.
Rethinking Justice: 7th Symposium on HIV, Law and Human Rights
Symposium on HIV, Law and Human Rights
Chelsea Hotel, 33 Gerrard St. W., Toronto
Thursday, June 15, 2017, 9 a.m. – 5 p.m.
This year’s Symposium is devoted to a critical look at the unjust criminalization of HIV non-disclosure. Themes to be discussed include:
Details for the 7th Symposium are now being finalized. We will update this page with more details as they become available, including a full list of speakers.
Register here for the Symposium. The following registration fees apply:
*Please note that, if necessary, you can request a full waiver of this reduced fee by contacting the Legal Network office.
If you have questions about the Symposium, please contact info@aidslaw.ca.
Share your experience with the Second Africa Regional Dialogue planning team.
Make a submission TODAY!
Your submissions will shape the Second Africa Regional Dialogue on HIV, TB and the Law ’s conclusions and recommendations
Selected submissions will be invited to the Regional Dialogue!
Second Africa Regional Dialogue on HIV, TB and the Law
The AIDS and Rights Alliance for Southern Africa (ARASA) and UNDP Regional Service Centre for Africa, under the Africa Regional Grant on HIV: Removing Legal Barriers, will host the second Africa Regional Dialogue on HIV, TB and the Law on 3-4 August 2017 in Johannesburg,South Africa.
The first Africa Regional Dialogue on HIV and the Law called for evidence on the impact of laws,policies and practices on the lives of key populations and on universal access to HIV-related health care services. The second Africa Regional Dialogue will continue to identify key HIV, as well as TB, issues of critical concern. However, it will include a strong focus on understanding what has been done to follow up the recommendations from the first Africa Regional Dialogue, and what has worked to bring about change. The Dialogue would like to hear how laws and policies have changed, if at all and whether this changes lives; how education and training have helped to empower populations and to change attitudes, if at all and whether populations are better able to access support and mechanisms to enforce their rights.
The second Africa Regional Dialogue will bring together 140 government and civil society participants from across Africa to discuss progress on the implementation of the findings and recommendations of the Commission on HIV and the Law in the region, highlight issues and ongoing challenges and make strategic suggestions and recommendations on the way forward.
Objectives:
1. To provide a platform for a range of stakeholders from different sectors, including people living with HIV/TB, key populations, civil society and government, to engage in evidence informed discussions on priority HIV, TB, law and human rights issues of regional and national concern;
2. To reflect on the extent to which the findings and recommendations of the Global Commission on HIV and the Law have been implemented and to evaluate the impact of these initiatives on HIV, law and human rights issues;
3. To identify current challenges and obstacles that continue to impede access to justice and to HIV/TB treatment, care and support services; and
4. To share Model Laws, good practices and lessons learned from work undertaken in the region to date on implementing the findings and recommendations of the Global Commission on HIV and the Law and strengthening the legal and policy environments regarding access to HIV/TB, health and social services.
Outcomes
1. Increased understanding of ongoing, key HIV/TB, law and human rights issues of regional and national concern, the impact of rights-based responses, as well as current and ongoing gaps, challenges and barriers to universal access to HIV-related health care.
2. The prioritisation of regional and national recommendations for action in the short, medium and long term to strengthen HIV/TB, law and human rights in Africa; and
3. A strengthened network of CSOs, academia, activists, government, legislators, members of the judiciary and other stakeholders to provide continued engagement on HIV/TB and the law in Africa
Thematic areas of the Dialogue
• Stigma and discrimination, legal aid responses, legal frameworks and access to justice
• Laws and practices that mitigate or sustain violence and discrimination lived by women
• Laws and practices that facilitate or impede treatment access
• Law and HIV pertaining to children and young people
• Laws and practices that effectively criminalise people living with HIV and key populations at higher risk of HIV and those at risk of TB
How can the law play a central role in the HIV and TB response?
Imagine living in a world where the law fully protects the human rights and dignity of all. In that world women, young people and key populations– sex workers, people who use drugs, gay men and men who have sex with men, transgender people, prisoners and migrants – could safely and freely take steps to protect themselves against HIV infection and to stay healthy if they are living with HIV. They would be able to access services that benefit not only them but also for the benefit of their partners.
The law can protect those vulnerable to and living with HIV and those with TB, against abuse and harassment by the police and against discrimination by healthcare workers and employers. The law can make it possible for people at risk of HIV to access the tools they need to prevent infection. Likewise, the law can make it possible for people living with HIV and those with TB to access life-sustaining treatment.
Knowledge of and respect for the law and how to enforce it can help to create an safe, protective environment for all affected populations. A world in which laws support human rights for all can be a world without HIV and TB!
Why is your submission important?
To have the greatest impact, the Second Africa Regional Dialogue’s planning team is seeking inputs from diverse civil society groups and individuals, including those advocating for human rights, women’s issues, key populations, etc. We are looking to learn from the experiences and knowledge of those most affected, to find out about empowering laws and practices and how they’ve led to change, and disempowering laws and practices that remain. The Dialogue wants to hear what’s been done to create change, what works and why, or why not. By speaking out now, your experience and knowledge will help to shape the Regional Dialogue’s thinking and recommendations, and influence advocacy efforts in the region.
WHAT TO SUBMIT
We want to learn from your experience or knowledge.
The first Africa Regional Dialogue found that in many parts of Africa, as in other parts of the world, the law treats people vulnerable to HIV as criminals. Many African countries criminalise a wide range of behaviors that may expose a person to HIV, making potential criminals of people living with HIV. In some countries, people with TB are detainedunnecessarily and forced to take treatment. In other countries, it is illegal to be a sex worker, a homosexual, a transgender person, a drug user or a migrant. Even in places where these behaviours are not crimes, law enforcement agencies, including police officers, harass or abuse members of these groups. The Global Commission recommended repealing punitive criminal laws and working to reduce stigma, discrimination and violence by law enforcers and others. Are you a member of one these groups who has been cast as a criminal or mistreated by police because of who you are? Do you work with marginalised people whose lives are criminalised? Share your experience of any changes in laws and practices that have impacted on your life or the lives of those you work with, and what still needs to be done.
Similarly, the Africa Regional Dialogue found that women and young people often experience violence, discrimination and inequality, and are unable to access basic rights for survival, increasing their vulnerability to HIV. They recommended law review to promote equal access to their rights, prevent discrimination and violence and access to justice and enforcement to help those who have suffered. Have you lived this experience or worked with people who have? What, if anything, has changed? Share your experiences.
In many places, intellectual property laws create barriers to treatment access, resulting in inflated prices and reduced supplies of life-saving medicines. Are you an academic, researcher or human rights advocate who works to increase access to HIV and TB treatment through intellectual property rights in your country? Share your work and your perspective with us.
HOW TO SUBMIT
1) Countries covered by this call
You are invited to make a submission if your experience has been in a country within the African Union.
Submissions will be reviewed by a selection committee composed of the Africa Regional Grant on HIV: Removing Legal Barriers’ Sub recipients (ARASA, KELIN, SALC and Enda Santé), the Principal recipient (UNDP) and a number of regional key populations groups. A number of authors of submissions will be invited to Johannesburg to participate in the Second Regional dialogue, which will be conducted with simultaneous translation between English, French and Portuguese.
2) Languages
Submissions are welcome in English, French and Portuguese.
3) Confidentiality of Submissions
Submissions can be made at two levels: Public or Confidential. You should clearly state if you would like it to remain confidential. All submissions will be collected by ARASA for an objective review by the Regional Review Panel, based on a range of criteria. ARASA will then submit the relevant submissions to a Regional Selection Committee which will select the submissions to be shared at the Regional Dialogue.
If you would like your submission to be treated as confidential, then please provide two versions of the submission: (1) a confidential version, which will be viewed only by ARASA, (2) a public version with all confidential information removed, which will be submitted to the Regional Selection Committee for review.
Please note that while only some submissions will be selected for the Regional Dialogue, all submissions sent to the Regional Selection Committee are important and will in form and shape the Dialogue’s agenda, conclusions and recommendations.
4) Format of Submissions
All submissions must follow the template for submissions prescribed below.
• Letter format: Submissions should be no more than 3 pages long (maximum 1500 words in the main body of the submission), on A4 size paper. If sent by email, submissions should be in PDF (.pdf), RTF (.rtf) or Word Doc (.doc; docx) format. (Please note if your submission is confidential, only the public version will be shared with the Regional Selection Committee for review).
• Audio/Video format: Submissions in audio or video format should be no more than 10 minutes long. (If your audio or video submission is confidential, please do not mention your name and contact details in the submission. Instead, please include this information in the submission template accompanying your submission.)
• Online Audio/Video submissions: Submissions that cannot be sent via mail or email can be submitted online. They may be uploaded on “youtube.com” or “vimeo.com” using a personal account. Please make sure to secure your video as “private” and send us the link and password to your video
5) Deadline
12 June 2017
Please note that only 1 submission per individual or organisation will be accepted.
Send your entries to:
• Via Email to: submissions@arasa.info
Subject line should be: “Submission Second Africa Regional Dialogue-level of Confidentiality-Key issue(s)”. (e.g. Submission Africa Regional Dialogue-Public- Criminalisation of drug use).
• Via Mail to: ARASA, Unit 203 Saltcircle, 374 Albert Road, Woodstock. Cape Town, South Africa, 7915
Next month, ARASA will host an short online course on HIV criminalisation for civil society, policymakers, religious leaders, healthcare providers and law enforcement officials.
The course is free, takes place in English, willl last six weeks (5 June 2017 – 14 July 2017) and will require four hours a week commitment.
This online course will introduce participants to information about the criminalisation of HIV transmission, exposure and non-disclosure – often referred to as ‘HIV criminalisation’ – and the negative impact it has on the human rights of people living with HIV and key populations and on universal access to HIV prevention, treatment, care and support.
Human rights experts argue that most countries already have criminal laws, such as the laws against assault with intent to cause grievous bodily harm, that can be used to deal with intentional transmission of HIV and therefore there is no need to create new laws to deal specifically with HIV.
During the course, participants will:
The focus is on providing knowledge and skills so that participants can identify harmful HIV-specific laws and advocate for the removal of these laws. The online short course will share the current status-quo of laws which criminalise people living with HIV, including other resources that aim to strengthen your advocacy.
This course will strengthen participants’ understanding of:
Kindly send ARASA the following:
1. A one page letter of motivation, setting out why you feel that you would benefit from participating in the short course (Please outline how you will use the skills acquired during the course in your own country advocacy);
2. Your resume / CV;
3. A letter of support from the organisation you are currently working with / affiliated to.
Applications should be submitted by email to Bruce Tushabe at bruce(at)arasa.info (and copy Lynette Mabote at lynette(at)arasa.info ).
All applications must be received by no later than close of business 22 May 2017. Kindly note that applications received after the closing date will not be considered. Successful applicants will be notified by no later than 1 June 2017. Should you not receive any feedback from us by 3 June 2017 kindly consider your application unsuccessful.
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