Global: UN ‘Criminalisation undermines the Human Right to Health’

One of the most significant documents produced so far on the criminalisation of HIV non-disclosure, exposure and transmission was published today by the United Nations.

It is a report by Anand Grover, the UN Special Rapporteur on the Human Right to Health, specifically the right of everyone to enjoy the highest attainable standard of physical and mental health.

His report highlights the many human rights arguments against the use of the criminal law to prosecute anything except the intentional (i.e. proved beyond a reasonable doubt in a court of law that transmission was intended and malicious).

It begins with a very forceful statement.

… the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

It then examines the various ways that HIV transmission has been criminalised around the globe before examining the effect on the right to health. It ends with a bang, too.

Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

The entire document also includes an examination on the criminalisation of same-sex behaviour, sexual orientation and gender identify as well as sex work, and can be downloaded in full from the Office of the High Commissioner for Human Rights.

For your convenience, I have included pretty much the entire section on the criminalisation of non-disclosure, exposure and transmission below, complete with paragraph numbers, for easy quoting.

A webcast of Mr Grover’s 13 minute speech to the UN General Assembly can be found here. Disappointingly, just one minute is dedicated to the criminalisation of non-disclosure, exposure and transmission (at 2:24).

Nevertheless, this report, and Mr Grover’s speech, is significant in the history of criminalisation, and should be considered a major victory for anti-criminalisation advocates around the world.

Now, we just have to remind our goverments and policymakers to heed his words…

United Nations General Assembly

Human Rights Council

Fourteenth Session

A/HRC/14/20

27 April 2010

Agenda item 3

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

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover.

HIV transmission

51. The Special Rapporteur notes that the criminalization of HIV transmission has formed a part of the global response to the HIV/AIDS crisis since its inception. Unfortunately, the public health goals of legal sanctions are not realized by criminalization. In fact, they are often undermined by it, as is the realization of the right to health. The criminalization of HIV/AIDS transmission also infringes on many other human rights, such as the rights to privacy, to be free from discrimination and to equality, which in turn impacts upon the realization of the right to health. The criminalization of HIV transmission, or behaviours around transmission, is generally recognized as counterproductive, and should be reconsidered in the context of any comprehensive HIV/AIDS response framework.

Effects of criminalization on the right to health

No impact on behaviour change or HIV spread

62. The Special Rapporteur notes that criminal laws that explicitly regulate the sexual conduct of people living with HIV have not been shown to significantly impact on sexual conduct, nor do they have a normative effect in moderating risk behaviours. Criminal law does not influence the circumstances in which most HIV transmission occurs. In many regions, the majority of people living with HIV are unaware of their positive status and most cases of HIV transmission occur through consensual sex. Private sexual conduct invariably persists in the face of possible prosecution, but when prosecution actually occurs, these behaviours are driven underground, providing less opportunity for regulation and inhibiting access to preventive activities, diagnostic services, treatment and support.

Undermining existing public health efforts

63. Criminalization of HIV transmission or exposure places legal responsibility for HIV prevention exclusively on those already living with HIV, undermining the notion of shared responsibility between sexual partners, and potentially creating a false sense of security amongst those who are HIV-negative.86 Criminalization also has the potential to discourage HIV testing, which is a core component of successful HIV/AIDS health initiatives. An additional barrier to access to services could be manifested through increased distrust in relationships with health professionals and researchers, impeding the provision of quality care and research, as people may fear that information regarding their HIV status will be used against them in a criminal case or otherwise. As the prevalence of high-risk sexual behaviour is significantly lower in individuals aware of their seropositive status, any laws that discourage testing and diagnosis have the potential to increase the prevalence of risky sexual practices and HIV transmission.

Disproportionate impact on vulnerable communities

64. In jurisdictions where HIV transmissions have been prosecuted, of the very few cases that are prosecuted out of the many infections that occur each year, the majority have been noted to involve defendants in vulnerable social and economic positions. Although laws criminalizing HIV transmission and exposure were, on occasion, enacted to provide women with greater protection, applying these laws broadly has also resulted in women being disproportionately affected. For instance, a woman was prosecuted under section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 for having unprotected sex while HIV-positive, despite HIV not even being transmitted to the “victim” in question.

65. Women often learn they are HIV-positive before their male partners because they are more likely to seek access to health services and are consequently blamed for introducing the infection into communities. For many women, it is also difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences. Women may therefore face prosecution as a result of their failure to disclose, despite having valid reasons for non-disclosure. These laws do not provide women with any additional protection against violence or assurance of their rights to sexual decision-making and safety, and do not address the underlying socioeconomic factors that increase women’s vulnerability.

Criminalization of mother-to-child transmission

66. Some countries have enacted laws that criminalize mother-to-child transmission explicitly (see paragraph 54 above) or implicitly due to overly broad drafting of the law. Where the right to access to appropriate health services (such as comprehensive prevention of mother-to-child transmission services and safe breastfeeding alternatives) is not ensured, women are simply unable to take necessary precautions to prevent transmission, which could place them at risk of criminal liability. […]

Stigma, discrimination and violence

68. Stigma represents a major impediment to the implementation of successful interventions in respect of HIV/AIDS. Applying criminal law to HIV exposure or transmission can reinforce the stereotype that people living with HIV are immoral and irresponsible, further entrenching HIV-related stigma. People living with HIV/AIDS may, in turn, internalize the negative responses of others. This self-stigmatization affects the sense of pride and worth of individuals, which can lead to depression and self-imposed withdrawal, hampering access to HIV/AIDS treatment and interventions. In this way, criminalization impedes the right to health by constructing barriers to access by creating an environment in which individuals feel as if they are not deserving of treatment.

69. Discrimination against those affected by HIV/AIDS is one of the manifestations of stigma. For those living with HIV, actual and feared discrimination acts as a barrier to HIV-specific health services, including testing, anti-retroviral therapy and services in the prevention of mother-to-child transmission, in addition to broader health services.

70. The Special Rapporteur notes that individuals living with HIV have been convicted of crimes that did not actually inflict physical harm, damage any property or otherwise cause injury. Disproportionate severity in sentencing of those convicted of “HIV crimes” has become evident in a number of cases, the inference being that the defendants’ HIV status played a significant role in conviction and imprisonment. Criminal prosecutions, and the publicity stemming from them, have been found to increase stigmatization and have been perceived by people living with HIV as undermining public health efforts encouraging safer sex.

71. The criminalization of HIV transmission also increases the risk of violence directed towards affected individuals, particularly women. HIV-positive women are 10 times more likely to experience violence and abuse than women who are HIV-negative.

Right-to-health approach

72. The Special Rapporteur emphasizes that any domestic legislation concerning HIV transmission should be based on a right-to-health approach; that is, States must comply with their obligations to respect, protect and fulfil the right to health through the enactment of such legislation. Most relevantly, the obligation to protect requires States to take measures to protect all vulnerable or marginalized groups of society, and the obligation to fulfil similarly requires steps to assist individuals and communities to enjoy the right to health – particularly those who are unable to realize the right themselves.

73. Any law concerning HIV transmission should therefore be directed at issues around public infrastructure, access to medicines, information campaigns concerning HIV/AIDS and so forth. The criminalization of HIV transmission should not form the mainstay of a national HIV/AIDS response, and its necessity is questionable in any event. Informed individuals take steps to prevent HIV transmission irrespective of criminal laws around transmission, and there is little evidence that specific laws criminalizing HIV transmission deter or modify the behaviour of individuals. With little benefit demonstrated in terms of achieving the aims of the criminal law or public health, and a corresponding risk of alienation, stigmatization and fear, it is difficult to see why the criminalization of HIV transmission is justified at all. Laws that are unnecessarily punitive will undermine any public health response to HIV, rather than assist it.

74. As such, criminalization should be considered permissible only in cases involving intentional, malicious transmission. The criminalization of any lesser mens rea is not only inappropriate, but also it is counterproductive in the struggle against the spread of HIV. In the view of UNAIDS:

Criminal law should not be applied where there is no significant risk of transmission or where the person:

• Did not know that he/she was HIV-positive

• Did not understand how HIV is transmitted

• Disclosed his/her HIV-positive status to the person at risk (or honestly believed the other person was aware of his/her status through some other means)

• Did not disclose his/her HIV-positive status because of fear of violence or other serious negative consequences

• Took reasonable measures to reduce risk of transmission, such as practising safer sex through using a condom or other precautions to avoid higher risk acts

• Previously agreed on a level of mutually acceptable risk with the other person

75. Finally, domestic laws prohibiting the deliberate spread of any disease or assault, or laws concerning the age of consent, adequately cover intentional transmission of HIV should the need arise to prosecute cases where this has occurred. The use of these preexisting laws provides a legal safeguard to potential victims, without unnecessarily stigmatizing and further marginalizing those affected by HIV within the jurisdiction. States should, in addition to using pre-existing laws, issue guidelines to ensure that these laws are only utilized in cases of intentional transmission and that the relevant mens rea is to be established beyond a reasonable doubt.

Recommendations

76. The Special Rapporteur calls upon States:

[..]

(c) To immediately repeal laws criminalizing the unintentional transmission of or exposure to HIV, and to reconsider the use of specific laws criminalizing intentional transmission of HIV, as domestic laws of the majority of States already contain provisions which allow for prosecution of these exceptional cases.

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.

Canadian HIV law at a crossroads (Xtra.ca)

Reposting this article from Xtra.ca published online today. Tomorrow’s verdict (due to be issued 9am Vancouver time) will be as important to people living with HIV – and public health – in Canada as the outcome of UK’s general election. Will provide full details of trial and commentary on Monday.

Canadian HIV law at a crossroads
CRIMINALIZATION OF HIV / Vancouver, Edmonton and Hamilton cases could affect future police & crown decisions
Nathaniel Christopher & Neil McKinnon / Toronto / Thursday, May 06, 2010

Cases in three provinces could shape the way HIV non-disclosure is treated by the courts in this country.

In Vancouver, an HIV-positive man awaits a verdict after a lengthy trial. He and his boyfriend had unprotected sex very rarely — possibly just once — and the poz partner was always the bottom. The trial judge has ordered a publication ban on both men’s names.

In Hamilton, a poz guy had charges against him stayed because the complainant and accused only engaged in oral sex.

And in Edmonton, a straight man in his 50s is facing an assault charge for HIV non-disclosure, but police — who have a history of splashing names and photos around in the media — are refusing to release his name.

Although there is no HIV law on the books, Canadian police have, since the mid-’90s, been charging people with offences — ranging from assault to murder — for failing to disclose their health status before having unprotected sex. HIV activists have long said that transmission should be a public health matter, not a criminal one.

In Vancouver, Justice Lauri Ann Fenlon was, as Xtra goes to press, expected to render a verdict on May 7. But she has already hinted that the case could be appealed on constitutional grounds.

The defendant is represented by BC Civil Liberties Association lawyer Jason Gratl. Gratl called Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, to the stand to testify about the adverse effects of HIV criminalization.

At the trial, Fenlon said Elliott raised important policy issues that an intervener might put before the appeal courts or the Supreme Court of Canada, but that his testimony was not relevant to the issue before her.

The court, consequently, did not consider Elliott’s testimony, but if the accused is convicted, they may end up making their case in appeals.

Elliott testified to the challenges of requiring disclosure in all circumstances, saying that approximately one quarter of all people in Canada infected with HIV don’t know they have it.

“I think people recognize challenges of HIV disclosure, including stigma and negative consequences that can very easily flow from their HIV status,” Elliott told the court. “Rather than expect people to overcome those barriers in every circumstance and impose a criminal penalty when they don’t, the emphasis should be on personal responsibility and risk reduction, a sensible prudent strategy in the ability of all people.”

He told the court that the stigma associated with HIV could be a disincentive to disclosure.

“People, quite legitimately, have concerns over employment, housing, loss of personal and other social rela-tionships, ostracism in community and denial of service by service providers,” Elliott testified. “Although we only have limited systemic research on HIV stigma, we certainly do have enough to document that there is still a pervasive stigma associated with HIV.”

He stressed the need for clarity in the law to better define what sexual activities between HIV-discordant couples constitute “significant risk” of serious bodily harm as set out in the 1998 Supreme Court of Canada case R v Cuerrier.

***

In the Vancouver case, the issue of what constitutes significant risk is paramount, because the defence is arguing that the risk of HIV transmission was as low as 1 in 2,500. In none of the three cases did transmission occur.

Dr Richard Mathias told the court he believes HIV transmission rates from anal intercourse are comparable to those from vaginal intercourse. He explained that a penetrative partner in anal sex is at risk of contracting HIV through anal fluid, which could travel up the urethra. He mentioned that in the case of uncircumcised men, the risk is higher as the fluids can infect the insertive partner through the tissue beneath the foreskin.

Crown counsel Brendan McCabe asked Mathias if he is aware of any incidents in the gay community of the virus going from an HIV-positive bottom partner to a negative top.

“No,” said Mathias, who has worked in public health for 35 years and conducted research on HIV and AIDS in the early days of the disease. He explained that the risk in the case of the accused would be 4 in 10,000 per act, but that number would multiply with each encounter.

McCabe suggested that if the accused and complainant had had five unprotected encounters, then the risk would be 20 in 10,000.

Mathias said the risk is comparable to sex between an HIV-negative bottom and an HIV-positive top when a condom is used.

The definition of “significant risk” was also at the heart of the Hamilton case, where the prosecution stayed an aggravated sexual assault charge in April. A gay man was charged in February 2009 after an ex-partner alleged they had oral sex without his disclosing that he had HIV. The charges were based on the accused’s performing oral sex, rather than receiving it.

The ex-partner has since been tested and is HIV-negative.

Elliott said in a statement:

“There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

***

In the Hamilton case, the name of the man who was accused is public, but, at his request, Xtra chooses not report it. In the Edmonton case, police declined to release the accused’s name. And in Vancouver, the judge ordered a publication ban on the accused’s identity.

In all three cases, the complainant’s identity cannot be disclosed by law, akin to the way the identities of rape victims are protected.

Police across the country often disclose the names of people accused of sexual assault for HIV-nondisclosure, which, among other things, outs them as HIV-positive.

The Edmonton case is unusual because, from the outset, the name of the accused has been kept under wraps.

The charge follows a March 31 police complaint by a woman claiming she slept with an Edmonton man who failed to disclose that he has HIV.

An RCMP spokesperson, Jodi Hei-denger, says the move has nothing to do with public disclosure of the health status of the accused, and everything to do with protecting the identity of the alleged victim.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim,” says Heidenger.

Which could mean that the Vancouver case, where at trial the accused’s name is protected, could be more precedent-setting. The move, however, may have come too late, since the publication ban came only after the name had been bandied about in media reports and police press releases.

The Hamilton case, because it never went to trial, will likely have the least impact on jurisprudence.

The Vancouver case, with the spectre of a Supreme Court challenge hanging in the air, could be one of the most important in a decade.

Canadian HIV/AIDS Legal Network welcomes Crown decision to drop criminal charges in Hamilton HIV case: guidelines needed

Press Release
AIDS ORGANIZATION WELCOMES CROWN DECISION TO STAY CRIMINAL CHARGES IN HAMILTON HIV CASE
But guidelines needed to avoid unsound, unjust prosecutions

TORONTO, April 22, 2010

The Canadian HIV/AIDS Legal Network welcomed the announcement at Hamilton’s courthouse this morning that the prosecution is staying the criminal charge of aggravated sexual assault against Justus Zela. He was charged in February 2009 after an ex-partner alleged they had oral sex without Zela disclosing that he had HIV. The ex-partner has not tested HIV-positive.

“We’re pleased with the Crown’s announcement this morning, but it must go further. This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

According to information available to the Legal Network, the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with Mr. Zela performing oral sex, rather than receiving it.

“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott. “Guidelines should be informed by the evidence about actual risks of transmission. They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.

Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by the responsible practise of safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.

Leading organizations and members of the HIV community — including health care providers, service providers, people living with HIV, academics and lawyers — have questioned the expansive use of the criminal law with respect to HIV non-disclosure in Canada. While recognizing that there is a limited role for criminal law on this issue, many legitimate concerns exist as to the impacts of this trend. Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.

About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised by HIV/AIDS.

“Criminal Law and HIV”
A series of 5 info sheets on-line at: www.aidslaw.ca/criminallaw

Asian AIDS Law Database Launches Online – press release

Asia Catalyst is proud to announce the “public beta” launch of its Asian AIDS Law Database. The database is a free, user-friendly resource, searchable in Chinese and English, to help researchers to find HIV/AIDS-related statutes throughout Asia. It is the first database exclusively dedicated to this purpose.

With the “public beta” launch, Asia Catalyst invites lawyers, experts and organizations to share AIDS-related laws and policies from around Asia that may not yet be online. The database has over 100 records, ranging from Cambodia’s draft law on drug control to the national policy on HIV/AIDS of Bangladesh.

“The database will enable lawyers to analyze AIDS-related laws, and use them in their own advocacy,” said Ken Oh, editor of Asia Report (http://www.yazhoudiaocha.com), the news site that hosts the database. “Asian AIDS activists tell us that some governments are more responsive to model language from another Asian law.”

The project was born in response to growing demand from Asian AIDS advocates engaged in legal analysis and advocacy. The database was created by a volunteer team of law students and pro bono lawyers working with Asia Catalyst.

Asia Report, the Asia Catalyst-sponsored site that hosts the database, provides Chinese and English-language news about economic and social rights in North, South and Southeast Asia, with links to Asian rights groups, and announcements of upcoming conferences and events.

Asian AIDS Law Database users may choose countries, topics and levels of government from drop-down menus in both English and Chinese. The database will provide the text of the law or policy and a link to its location online. All records are in English, with Chinese translations provided where available.

“The international AIDS law field is growing quickly,” said Ken Oh.“We hope our colleagues in Asia will use the database to analyze existing laws – and draft new ones.”

The database may be visited at http://www.yazhoudiaocha.com/laws/

Asia Catalyst is a US-based resource for grassroots organizations working on HIV/AIDS in Asia. For more information, please see our website at www.asiacatalyst.org.

East Africa: Move Towards Common HIV/AIDS Law (IPS)

Another excellent piece from the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

EAST AFRICA: Move Towards Common HIV/AIDS Law
by Wambi Michael

ARUSHA, Dec 4 (IPS) – All HIV-positive east Africans could soon access free anti-retroviral treatment even as they move freely from country to country, if a new proposed law comes into effect.The East African Community (EAC) is currently developing a law to guide the region’s response to HIV/AIDS.

This comes as the regional block moves towards an integration process that would see more citizens cross the boarders in the five states of Kenya, Uganda, Tanzania, Burundi, and Rwanda.

“With the signing of the protocol on customs union that will enable free movement of persons, you are actually going to see free movement of the virus because people will be interacting more easily as they transact business. The effect of that is that HIV must be seen regionally,” said Catherine Mumma, a Kenyan Human Rights Lawyer, who works with consultancy group Africa Vision Integrated Strategies. She led a consultation in the EAC states before the drafting of the new proposed law.

Based upon the consultations, the proposed law aims to provide joint treatment policies for people in the region while they move freely across the borders.

“One other thing is that east Africans would want a law that would enable them to access services anywhere they go in east Africa. So that if you were in Nairobi and you were on ARVs and you only brought two days ARVs and Kenya Airways went on strike, you should be able on the third day to walk into a treatment centre and get treated.”

The law will allow for a common stance on HIV/AIDS, which aims to be non-discriminatory. Currently some countries in the region criminalise the treatment of HIV-positive sex workers and gay men.

The presidents of the five member states agreed in November to commence the East Africa common market protocol, which beings in early in 2010. It will allow for the free movement of labour and trade across borders, similar to the Southern African Development Community trade agreement.

Lucy Ng’ang’a, the executive director for the Eastern African National Networks of AIDS Service Organisations (EANNASO) said the proposed law will take on the good parts of the existing laws in the region but also tackle some of the silent issues and make better the areas that are controversial.

For example, Kenya has as a law providing for the free treatment and counselling for HIV-positive people.

One of the controversial areas is the criminalisation of the transmission of HIV/AIDS being suggested by countries like Uganda.

Another controversial area is that in the Penal Codes of Kenya, Rwanda, Burundi and Tanzania prostitutes and gay men, who are considered high risk in HIV/AIDS transmission, are not allowed access to treatment.

Member states like Kenya, Tanzania and Burundi already have laws on HIV/AIDS.

Uganda’s law, the HIV/AIDS Control Bill 2009, was tabled before Parliament in 2008 as a Private Member’s Bill. It has already caused a public outcry because of a clause relating to the criminalisation of HIV transmission between adults.

EANNASO contracted consultancy group Africa Vision Integrated Strategies to study the existing HIV laws within the region and advise on a draft bill for an East African Law on HIV.

The report by the Kenyan-registered consultancy was presented at a regional consultative meeting held between December 3rd and 4th, 2009.

Participants at the meeting in Arusha voiced concern at provisions in the member states laws relating to the rights of People Living With HIV/AIDS and criminalisation of HIV transmission.

Mumma told IPS that most people consulted felt that the issue of wilful transmission of HIV/AIDS should be punishable, but not in the context of the HIV law. It should be dealt with separately because if it was included in the HIV law, it will stigmatise people who may use this law to seek protection and treatment, the East Africa Law Society said.

“HIV should be seen as any other diseases including hepatitis B. And it would better for it to be dealt with in the context of the penal code even if it meant drafting another clause in the penal code,” Mumma said.

Sarah Bonaya, a Kenyan Representative at East African Legislative Assembly and also a member of the General Purposes Committee in the parliament, said she was sure that her colleagues in the assembly would support the Bill which may be tabled as a Private Member’s Bill to the East African Assembly.

She was happy that consultations had gone on through the five states to ensure a harmonised law that would address some of the negative provisions within each member state law that would affect management of HIV/AIDS as a region.

The new proposed law on HIV/AIDS would be the second in Africa after the SADC HIV law adapted in November 2008. The SADC law provides a comprehensive framework for harmonisation of HIV and human rights in southern Africa.

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.

UK: Prevention not prosecutions, concludes expert panel

A World AIDS Day debate, HIV and the Criminal Law, at City University London, has concluded that prosecutions for ‘reckless’ HIV transmission do not serve public health and that “HIV prevention must be the primary objective above an appetite for justice, by raising awareness of the partner’s health and investing in more education.”

Some of the smartest minds in HIV and legal policy appeared at the event which was chaired by broadcaster (and barrister) Clive Anderson.

Panellists included:

Full report on the City University London website.

Global: Ten reasons why criminalisation of HIV exposure or transmission harms women

A new pamphlet released to coincide with World AIDS Day highlights why criminalisation is bad for women and girls, despite policymakers believing they are enacting new HIV-specific laws in order to protect them.

In addition to criminalizing the transmission of HIV, these laws sometimes call for mandatory HIV testing of pregnant women, as well as for non-consensual partner disclosure by healthcare providers; further exacerbating the impact of such legislation on women. The call to apply criminal law to HIV exposure and transmission is often driven by a well-intentioned wish to protect women, and to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled with the perceived failure of existing HIV prevention efforts. While these concerns are legitimate and must be urgently addressed, closer analysis reveals that criminalization does not prevent new HIV transmissions or reduce women’s vulnerabilities to HIV. In fact, criminalization harms women, rather than assists them, while negatively impacting on both public health needs and human rights protections. Applying criminal law to HIV exposure is likely to heighten the risk of or transmission does nothing to violence and abuse women face; address the epidemic of gender-strengthen prevailing gendered based violence or the deep economic, inequalities in healthcare and family social, and political inequalities that settings; further promote fear and are at the root of women’s and girls’ stigma; increase women’s risks and disproportionate vulnerability to HIV.

It then details the ten reasons:

  1. Women will be deterred from accessing HIV prevention, treatment, and care services, including HIV testing
  2. Women are more likely to be blamed for HIV transmission
  3. Women will be at greater risk of HIV-related violence and abuse
  4. Criminalisation of HIV exposure or transmission does not protect women from coercion or violence
  5. Women’s rights to make informed sexual and reproductive choices will be further compromised
  6. Women are more likely to be prosecuted
  7. Some women might be prosecuted for mother-to-child transmission
  8. Women will be more vulnerable to HIV transmission
  9. The most ‘vulnerable and marginalized’ women will be most affected
  10. Human rights responses to HIV are most effective.

10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women was drafted by Dr. Johanna Kehler of the AIDS Legal Network, Michaela Clayton of the AIDS & Rights Alliance for Southern Africa, and Tyler Crone of the ATHENA Network.

You can download the pdf of the pamphlet here.

To endorse the document or for more information, please contact:

ATHENA Network: www.athenanetwork.org

AIDS Legal Network: www.aln.org.za

ARASA: www.arasa.info

Brazil: Health ministry says no to criminalisation following two high-profile prosecutions

Brazil’s Ministry of Health is preparing a public statement in which it recommends that prosecutions for negligent or reckless HIV exposure or transmission cease. Rather, only intentional transmission where both intent and transmission are proven, in accordance with UNAIDS guidance, should ever be prosecuted. The statement follows two high-profile prosecutions in São Paulo.

I first heard of this yesterday when the legal correspondent of Veja Magazine, the largest circulation magazine in Brazil (and fourth largest in the world), contacted me for information about other countries’ approaches to criminalisation for an article she is writing about the issue.

She told me that the first prosecution actually took place in 2004, but that the case has become a national issue since the man’s retrial, which ended two weeks ago. The case involves a married man who was charged with attempted murder for not disclosing his HIV status to his mistress during their three year affair, and who subsequently tested HIV-positive. His wife of 25 years knew he was HIV-positive and they always used condoms, and she is not a complainant. In the first trial, the Grand Jury found him guilty of attempted murder and he was sentenced to eight years in prison. This was upheld on appeal, but a second appeal based on a legal technicality led to a second trial in which he was charged, and found guilty of, the lesser charge of assault and sentenced to two and half years – time he had already served.

A second case involves another heterosexual man who has also been charged with attempted murder for having unprotected sex without disclosure with three women, two of whom subsequently tested HIV-positive. This case is ongoing and awaiting a decision from the Supreme Court.

What is significant is that Brazil’s government appears to be on a collision course with the judiciary. Although my Veja correspondent was vague about the Ministry of Health’s statement (she had not yet been able to interview them), I found this report from Odia/Terra online published on Tuesday which includes a quote from the Ministry of Health’s Eduardo Barbosa

According to Eduardo Barbosa, Deputy Director of the Department of STD, AIDS and Hepatitis from the Ministry of Health, in order for HIV transmission to be considered a crime the court must, in addition to proving intent, consider the existence of “psychosocial factors”, the stage of treatment of disease and the responsibility of the partner to protect themselves.

A ministry statement goes against a global trend to criminalize those who transmit the disease, according to Barbosa. “Some countries end up adopting such measures as if it were possible to isolate and blame in order to control the epidemic.”

This fits well with Brazil’s history of focusing on a human rights approach to HIV. In fact, the government is about to pass a new (protective) law which will punish anyone who discriminates against someone with living with HIV with up to four years in prison.

Bill 6124/05 criminalises anyone who promotes any act of discrimination, exclusion or restriction of people living with HIV in schools and kindergartens; in the workplace; and in healthcare settings. It also criminalises third party disclosure of someone’s HIV-positive status in these settings.

O reporter.com reports that

Bill 6124/05 was approved unanimously today [17 November] by the Committee on Constitution and Justice (CCJ) of the House of Representatives. The approval of the project, which was approved by the rapporteur, Congressman Regis de Oliveira (PSC-SP), will benefit about 630 thousand infected in Brazil…

“Nearly a decade after we first attempted to pass this law, the House of Representatives is finally close to creating a law that punishes any act of distinction, exclusion or restriction to people who are HIV-positive,” said Regis de Oliveira. During the debate, the proposition, which is being handled in the Committee on Constitution and Justice (CCJ), had the support of most lawmakers…

“It is important that society should identify the various forms of discrimination in order to eliminate them, helping to respect, protect and fulfill human rights. Discrimination threatens the rights of these citizens live in dignity, so that often they become victims of irreversible psychological damage, ” he concludes.

The bill now goes to the vote on the House floor.

I should have more details on the cases and the government’s official response next week.