US: Rep. Tracy McCreery plans to file new bill again next year to change Missouri’s HIV criminalisation statute

Next Steps: ‘Decriminalizing’ HIV in Missouri

As elected officials vacate Jefferson City and return to their families and jobs, The Missouri Times is bringing you updates on big initiatives that didn’t quite make it through before May 17. The “Next Steps” series will showcase progress made on certain legislative issues and a look ahead to what could come.

Missouri’s statute regarding people living with HIV do not reflect “current reality,” according to lawmakers and advocates working to “decriminalize” the disease. 

Missouri statute mandates an individual who is knowingly infected with HIV not act in a “reckless” way that could expose another person to the disease without his or her knowledge or consent. Violating the statute could result in a Class A or B felony, depending on if another individual contracted HIV. 

The way the statute is written deters people from finding out his or her status and seeking appropriate treatment, advocates say. The statute also suggests an HIV diagnosis is equivalent to a death sentence — but with modern science and medicine, that’s not necessarily the case.  

“We need to make sure our laws reflect our current reality,” Rep. Tracy McCreery, a Democrat from the St. Louis area, told The MIssouri Times. “Now, people who are living with HIV live very full, healthy lives. We feel like the statutes need to be updated to be medically accurate so prosecutors have tools to use at their disposal that reflect the current reality of that disease.” 

Both McCreery and GOP Rep. Holly Rehder filed bills in the 2019 legislative session that would have changed the state’s statute regarding people with HIV to base prosecution more on an “intent” basis. Although their bills had minor differences, McCreery said the fact both women filed and supported the legislation is indicative that the need for change is bipartisan. 

What happened to legislative efforts this year? 

Rehder’s HB 167 made it to the House floor where it was debated before it eventually stalled. The bill sought to tweak the criminal statute for someone who exposed another individual to HIV. It would have also ensured protections for someone who took “practical means” to prevent the transmission of the disease such as through compliance with medical treatment or the use of a condom, for some examples. 

“Right now, Missouri laws are medically inaccurate and stand as a disincentive to know your status if you have HIV, even though with proper treatment, a person’s life expectancy is almost equal to someone without the virus,” Rehder previously told The Missouri Times.

McCreery’s HB 166 made it through the House Health and Mental Health Policy Committee but did not progress further. 

Both bills would apply the law to all serious infectious or communicable diseases instead of just HIV. 

Stil, McCreery said the legislative efforts saw success — particularly from an educational standpoint as lawmakers were especially engaged in debate on the House floor before the session ended — and has set them up in a better position for the upcoming session. 

“Although we ran out of time with this session with the bill … I think we’re in a much better place starting out in January because now that we’ve had a debate on this bill on the floor, I feel like a lot more colleagues are more supportive of the legislation now and had an ‘aha’ moment on the floor when they realized current statutes were written so long ago and are not based on accurate science,” McCreery said. “I feel like that was a victory.” 

“Ultimately we’re both trying to get at the same things: We both think HIV should be decriminalized because if we do that, Missourians would be encouraged to know their status, and then they wouldn’t be facing the possibility of criminal charges by knowing their status,” she added. 

So what’s next? 

The momentum is there; they just need to capitalize on it, McCreery said of herself and Rehder for the upcoming session. She said she plans to file a similar bill again next year and doesn’t doubt Rehder will too. (Rehder did not respond to a request for comment for this story.)

“We feel we have done a great job of not only getting the conversation started, but we now believe we truly have started to break down the stigma surrounding HIV,” McCreery said. 

 

Ahead of next session, members of the nonprofit Empower Missouri plan to grow the Missouri HIV Justice Coalition as well as meet with prosecuting attorneys and lawmakers — particularly those who sit on committees that might hear the legislation. The organization is also seeking a Senate sponsor for the legislation in the coming session. 

“What we have does not work, and it’s important that we change it,” Jeanette Mott Oxford, executive director of Empower Missouri, told The Missouri Times. 

Oxford maintained there is still a stigma surrounding HIV that has fueled laws like the one currently on the books in Missouri. 

“There are certain things where the public perception works against good public policy, and this is one of those areas where our current law actually rewards ignorance,” Oxford said. “We want to create a world in which everybody is anxious to know their status, will go be tested, and trust that the public health officials won’t go help prosecute them.” 

‘Show-Me’ statistics

More than 12,000 people in Missouri are living with HIV, according to data from AIDSVu, a product of Emory University’s Rollins School of Public Health. Caldwell, Jackson, and Mississippi Counties reported the most number of cases per 100,000 people in 2016. 

It affects mostly men and minorities in Missouri: More than 46 percent of people living with HIV in Missouri in 2016 are Hispanic or Latinx, nearly 44 percent are black, and more than 5 percent are white. Additionally, more than 82 percent of people living with HIV in Missouri are men. 

The Centers for Disease Control and Prevention (CDC) designated Missouri as one of seven states with a “substantial rural burden” for people living with HIV. Within the state, the nation’s health protection agency flagged more than a dozen counties considered vulnerable or at-risk for outbreaks: Bates, Cedar, Crawford, Hickory, Iron, Madison, Ozark, Reynolds, Ripley, St. Francois, Washington, Wayne, and Wright. 

Kaitlyn Schallhorn is a reporter with The Missouri Times. She joined the newspaper in March 2019 after working as a reporter for Fox News in New York City. Throughout her career, Kaitlyn has covered political campaigns across the U.S. and humanitarian aid efforts in Africa. She is a native of Missouri who studied journalism at Winthrop University in South Carolina. Contact Kaitlyn at kaitlyn@themissouritimes.com.

Jamaica: “Criminalisation related to HIV is a seductive distraction from what we really should be focusing on”

Is Criminalising HIV Helpful?

According to the 2017 Knowledge, Attitudes and Behaviour Survey by Jamaica’s Ministry of Health, one out of every five persons with multiple sexual partners never used a condom the last 10 times they had sex.

Fortunately, due to certain features of HIV and of our immune system, HIV does not always get transmitted every time someone is exposed. According to a top scientific journal, there is a one in 300 chance of the virus being passed from a man with HIV to a woman during sex. The overall risk goes up with each additional sexual act. The possibility exists that infection can occur the first time you have sex. The risk increases in certain situations, including the presence of sexually transmitted infections like syphilis and the time period just after becoming infected.

Avoiding HIV testing, some persons wrongly presume themselves to be infected based on the possibility that they had been exposed, or they wrongly presume themselves to be negative if a partner tests negative. No public-health initiative, indeed no law, obviates the importance of individuals taking responsibility for their health, embracing their right to pleasurable sex, yes, and empowered to seek out accurate information, getting tested regularly, and using protection.

Because we have become so accustomed to all the things that are wrong with our health system and legal system, we assume a state of powerlessness and thereby continue to embrace the status quo. Unfortunately, the set-up of some clinics is such that your diagnosis is made obvious by virtue of walking into a particular room.

The absence of anti-discrimination laws contributes to unfair treatment of persons living with HIV who are pressured out of their jobs, with a downhill spiral of their economic and health status. There is increasing access to redress for those who experience discrimination, and stigma from healthcare workers may be decreasing, but not nearly enough. The implementation of evidence-based prevention measures is slow, and I am hard-pressed to think of anything that could justify the withholding of such measures, especially in light of the fact that HIV infections have not stopped, many persons with HIV are deterred from accessing treatment, and majority of those in care have not attained optimal health status.

Criminalisation related to HIV is a seductive distraction from what we really should be focusing on.

INTERNATIONAL PRECEDENTS

In Scotland, a 20-year old man was convicted based on similarities in the genetics of HIV in his blood sample and his wife’s sample. His wife had reportedly contracted HIV from him during sexual intercourse in the two to three months right after he had become infected during a prior incarceration. The risk of transmitting HIV is 30 times greater in the first few weeks of becoming newly infected due to the large amount of HIV circulating in the body before the immune system manages to get a temporary hold on this new germ.

In Canada, a man was convicted under existing laws, charged with assault with a deadly weapon, after having sex without a condom with at least two women, despite a nurse’s insistence that he should disclose his HIV status. The Crown found that under Section 268 of Canada’s Criminal Code, the man’s sexual partners’ lives had been endangered, and no transmission needed to have actually occurred.

More than 60 countries have had prosecutions related to exposure, non-disclosure or transmission of HIV. One-half of these countries have done so under pre-existing laws, the others under specific legislation related to HIV. Adequate protection and remedies can be found in existing criminal laws, and the stigma of HIV-specific criminalisation can be avoided.

PUBLIC HEALTH AND THE LAW

Jamaica’s Joint Select Committee to review the Sexual Offences Act recommended that the law “should be amended to make it a criminal offence for someone to wilfully or recklessly infect a partner.” Concerns have been voiced as to whether criminalising HIV transmission will discourage persons from knowing their status.

According to researchers at the University of Edinburgh, a 25 per cent drop in HIV testing could result in a 50 per cent increase in HIV infections. Persons may be deterred from testing as they may believe that not knowing their status means that they are not at risk of being charged under the proposed law.

Although testing may be available virtually everywhere, stigma and privacy concerns are serious impediments to HIV testing being truly universally accessible.

During discussions, it is not always clear what exactly it is being proposed should be criminalised. What is the evidence to be relied on to prove that transmission occurred from person A to person B? Techniques for proving transmission from one person to another still require standardisation, are costly, and not widely available.

SCIENCE AND THE LAW

Another concern is whether a laboratory could be served a warrant, demanding that it hand over blood samples from patients. It may be possible to deduce ‘clusters’ of individuals linked by similarities in the genetic make-up of the HIV virus. Based on such clusters, individuals could become stigmatised based on assumptions that they belong to a particular social sexual network, for example, sex work or intravenous drug use, be it true or not. Information about the genetic make-up of a human being can be deduced based on unique ‘footprints’ left on the virus by an individual’s immune system.

Currently, this may seem like innocuous information, but if a particular genetic feature is subsequently found to be linked to one’s risk for cancer or lifespan, for example, one can imagine this information being (mis)used to influence insurance premiums or reproductive decisions.

Further, there is scientific proof that HIV is not transmitted from someone living with HIV who sticks to their antiretroviral medications resulting in totally suppressed HIV virus to the point where it is undetectable in the blood and semen and other body fluids.

The World Health Organization has adopted this as an important strategy in stopping the HIV epidemic. There remains room for improvement in raising awareness of these positive developments among patients, clinicians, and advocates, not to mention lawmakers.

Discussions about criminalisation of HIV can easily fall trap to fearmongering. A fundamental question is whether such legislation is helpful or would pose a hindrance to getting the thousands of Jamaicans who do not know their status to test and to retaining those who are receiving care.

[The views expressed are my own, and not necessarily those of any affiliate past or present.]

Dr White is medical director at Para Caribe Consulting Medical Doctors. Email feedback to yourhealth@gleanerjm.com and yohann.white@caribewellness.com; Social Media: @CaribeWellness.

South Africa: Constitutional Court Justice, Edwin Cameron, calls on countries to tackle discriminatory laws if they want to reach Sustainable Development Goals 16

Justice Cameron calls for banishing of discriminatory laws worldwide

Retiring Constitutional Court Justice, Edwin Cameron, has called on countries around the world to tackle discriminatory laws within their criminal justice systems as a means to fully embrace the prescripts of Sustainable Development Goal 16 (SDG16 ).

SDG16 calls for advances in ending violence, promoting the rule of law, strengthening institutions and increasing access to justice for all.

Cameron was among the keynote speakers at the 2019 United Nations High Level Political Forum on Sustainable Development in New York and pointed to the degradation of institutions in his own country as a case in point.

The forum is being held under the theme  “empowering people and ensuring inclusiveness and equality”.

But it’s an assessment of the role criminal law plays in excluding people from society that is of most concern to Cameron who sits on South Africa’s apex court.

“Discriminatory criminal laws that target people based on their sexual orientation, I speak with personal knowledge of that as a proudly and openly gay man, gender identity, drug use or those that criminalise sex work or adolescents exploring their sexuality with each other – an issue on which the Court on which I sit, a few years ago struck down a criminal prohibition on youngsters under 16 having sexually exploratory contact with each other. Or women making reproductive health decisions – all these laws do leave people behind but they do more than that. They actively push them down and back, they are an unjust, irrational targeting and persecution of people through the criminal law.”

He explained that criminal law was being misused and distorted to target certain groups disproportionately – among them people who use drugs, people who offer sexual services for reward, men who have sex with men, women seeking reproductive services and people living with HIV among others.

SABC News team asked him how he viewed South Africa’s implementation of the targets contained in SDG16.

“What I can say is the degradation of independent intuitions in our country over the last 9 years undoubtedly affected law enforcement, we have degradation of crime intelligence, degradation of the independent prosecuting authority, degradation of the police at the top ranks – it enfeebled and affected law enforcement throughout. What we do know as judges and law enforcement officials is that abstract policies, grand visions, laws – we’ve got lots of those in South Africa. If there’s an issue, we in SA have known over the last 25 years of democracy how to throw laws and policies at it. What we need in SA is application.”

On the question of ending violent crime, particularly in the South African context, he warned that harsher sentences were not the answer.

“We know that harsh sentences do not deter crime, what does deter crime is the certainty of detection, arraignment and prosecution. It’s not high sentences. So if we in South Africa can get our law enforcement agencies, crime intelligence agencies, CID agencies back operating again – I do believe we can because we have a president who’s committed to social justice, a president who is committed to a functioning disinterested bureaucracy and government services. I believe we can reduce crime and I think it’s a practicable result but of course it takes a lot of institutional work, there’s no magical answer but it can be done with a lot of hard work from all of us.”

Cameron will step down from the Constitutional Court on August 20th – exactly 25 years after his appointment to the bench by former President Nelson Mandela in 1994.

US: Michael Johnson’s release has reignated calls to overhaul HIV exposure laws.

He Emerged From Prison a Potent Symbol of H.I.V. Criminalization

Last week, Michael L. Johnson, a former college wrestler convicted of failing to disclose to sexual partners that he was H.I.V. positive in a racially charged case that reignited calls to re-examine laws that criminalize H.I.V. exposure, walked out of the Boonville Correctional Center in Missouri 25 years earlier than expected.

Mr. Johnson, 27, was released on parole on Tuesday after an appeals court found that his 2015 trial was “fundamentally unfair.” His original sentence was longer than the state average for second-degree murder.

Reached by phone two days after his release, Mr. Johnson said he was rediscovering freedom through convenience store snacks, cartoons and his cellphone.

“I’m feeling really, really good,” he said.

But there were periods when he felt intimidated by people who did not believe he had a right to stand up for himself, he added.

His case, which encompasses a half-dozen years of court appearances, unflattering headlines and stints in solitary confinement, has galvanized advocates working to update laws that they say further stigmatize and unfairly penalize people with H.I.V.

Mr. Johnson, who was a black, gay athlete at Lindenwood University in St. Charles, Mo., has become a public face of people who are disproportionately affected by the virus and entangled in the criminal justice system. (If current trends continue, about half of all black men who have sex with men in the United States will eventually learn they have H.I.V., according to the Centers for Disease Control and Prevention.)

Mr. Johnson’s legal troubles began in 2013, when he was arrested after a white man he had had consensual sex with told the police he believed that Mr. Johnson had given him the virus.

Five other men, three of them white, would later testify that Mr. Johnson had not only failed to disclose his H.I.V. status before engaging in consensual sex, but had willfully lied about it.

Mr. Johnson has publicly maintained that he informed all six men he was H.I.V. positive before having sex without a condom.

After a weeklong trial in 2015 in St. Charles County, a conservative, predominantly white area northwest of St. Louis, Mr. Johnson was convicted on multiple felony counts, including recklessly infecting another with H.I.V., which carries a 10-year minimum sentence.

The jury sought the maximum penalty of 60½ years even though prosecutors offered no genetic evidence that Mr. Johnson had infected any of his partners, according to BuzzFeed News.

The judge ultimately sentenced him to 30 years in prison.

Today, some of the people who put him in prison say the sentencing and parts of the prosecution were mishandled.

“We’re still operating under laws that were based on views that are outdated and are proven inaccurate by science,” said Tim Lohmar, the St. Charles County prosecuting attorney, whose office’s handling of the trial has been criticized.

Missouri is one of about 34 states with laws that make it a crime to expose another person to the virus without disclosure or add additional penalties for people with H.I.V. who are convicted of separate offenses, such as sex work, according to the nonprofit Center for H.I.V. Law and Policy. In six states, a person may be required to register as a sex offender if convicted of an H.I.V.-related crime.

Many of these laws were written in the 1980s and 1990s under a fog of fear about the virus and how it was transmitted, and before the advent of effective treatments. In those years, Magic Johnson’s sweat on the basketball court and Greg Louganis’s blood on a diving board panicked fans and teammates. Parents pulled children from school in 1985 because an H.I.V.-positive boy with hemophilia was in their seventh-grade class.

Back then, an H.I.V. diagnosis meant debilitating symptoms and almost certain death.

For the last five years, Steven Thrasher, a journalism professor at Northwestern University, has chronicled Michael L. Johnson’s case for BuzzFeed News and recently completed his doctoral dissertation on race and H.I.V. criminalization.

Dr. Thrasher, who greeted Mr. Johnson outside the correctional facility on Tuesday, said he was first drawn to the case because of its parallels with the history of black sexuality and lynching.

“Black men would just get lynched anytime they had sex with white women in the Reconstruction period,” he said. “There was no consensual sex that could be had between white women and black men.”

Mr. Johnson’s wrestler’s body — he called himself “Tiger Mandingo” online — was a source of fascination for some of his partners. But when Mr. Johnson tested positive for H.I.V., Dr. Thrasher wrote, he became “the perfect scapegoat.”

“It was not that he had no agency or responsibility in the story,” Dr. Thrasher said on Thursday, but “he was really holding all of this anxiety and all of this worry about AIDS and stigma and H.I.V. and queerness in America all on his shoulders.”

Mr. Lohmar, the St. Charles County prosecutor, said on Thursday that “nothing about the trial was unfair,” except for his team’s failure to present certain evidence to the defense in time.

Because prosecutors did not disclose some evidence to the defense until the morning of the trial — recorded phone conversations Mr. Johnson made while in the county jail — an appeals court decided to overturn the conviction 17 months after the original sentencing.

Instead of a new trial, Mr. Johnson, who previously had a clean criminal record, accepted a plea deal in which he did not admit guilt but agreed to a 10-year sentence.

Eric M. Selig, the lawyer who negotiated on Mr. Johnson’s behalf, said the original sentence was disproportionate to the crime.

“We don’t charge people with other incurable diseases, like hepatitis, with a criminal offense for exposing others,” he said.

During his incarceration, Mr. Johnson wrote thank-you notes to friends and strangers who had written to him in support, which he said helped him deal with homophobia in prison and self-doubt.

“You lose your confidence,” he said. “I kept every single letter.”

In theory, H.I.V. exposure laws are meant to encourage H.I.V.-positive individuals to disclose their status before having sex, and to practice safer sex, with the ultimate goal of preventing the spread of the virus.

But there is no evidence that these laws have reduced risky behavior or encouraged disclosure, said Catherine Hanssens, the executive director of the Center for H.I.V. Law and Policy, which provided legal support for Mr. Johnson’s case.

In the eyes of the law, an H.I.V. diagnosis is conflated with malice, she added.

“These laws effectively treat an H.I.V. diagnosis itself as evidence that the person acted with bad intentions when sex or other types of physical contact are involved in a crime,” she said.

Additionally, many laws do not reflect recent treatment options that can give patients a life expectancy almost as long as the general population. A pill taken daily can almost eliminate transmission, experts say. But there remain large barriers to eradicating the virus, including the high cost of antiretroviral drugs, access issues, medical mistrust and other social barriers in poor and black communities.

While some states, like California, have reduced penalties for H.I.V. exposure, Missouri has one of the most punitive laws in the country. This year lawmakers introduced two bills into the Legislature that would have slightly reduced the penalty, but they never made it to a vote.

Mr. Lohmar said he learned of Mr. Johnson’s release after receiving a call from one of the witnesses in the trial, who was upset that he was not notified.

Mr. Johnson said he planned to return to college, learn a second language and share his story through advocacy organizations like the Ryan White Planning Council in Indiana. Younger people especially need to learn about the virus to prevent it from spreading, he said.

“You can’t do it without education.”

Alain Delaquérière contributed research.

Meredith McFadden explores the ethical issues of criminalising health statuses

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads. 

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV. 

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it. 

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors. 

There are reasons to take on risks to one’s health and well-being, and we 

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion”

Charting progress against discrimination

Laws discriminate in many ways, but the criminalization of people is one of the most devastating forms of discrimination. Despite calls for reform and the commitments under the 2030 Agenda for Sustainable Development to remove discriminatory laws and reduce inequalities:

  • Sixty-nine countries still criminalize same-sex sexual relationships.
  • More than 100 countries criminalize drug use or the personal possession of drugs and 98 countries criminalize some form of sex work.
  • One in five people in prison are there because of drug-related crimes and 80% of those are there for personal possession or use.
  • Nineteen countries deport non-nationals on the grounds of their HIV status.

A high-level political forum is meeting in New York, United States of America, from 9 to 18 July to review the progress made against the commitments of Member States towards achieving the Sustainable Development Goals, including those on inequality and on peace, justice and strong institutions.

“As a judge, I have seen the effect that criminal law can have on communities. It takes people outside systems of protection, declares their actions or identity illegitimate, increases stigma and excludes them from any protections our judicial, social and economic systems may provide,” said Edwin Cameron, Justice of the Constitutional Court of South Africa.

Criminalization affects access to health services, housing, education, social protection and employment. The criminalization of same-sex sexual relationships, sex work or drug use prevents people from accessing health-care services, including HIV prevention, testing and treatment. Data show that gay men and other men who have sex with men are 28 times more at risk of HIV than the general population, people who inject drugs are 22 times more at risk and sex workers and transgender women are 13 times at risk. 

“To fully implement the Sustainable Development Goal agenda and make sure that no one is left behind, we need to ensure the laws are protecting people from discrimination and not pushing people into hiding from society,” said Lloyd Russell Moyle, United Kingdom Member of Parliament.

Groups that represent criminalized people are often barred from registering as nongovernmental organizations, and, for example, sex workers often can’t unionize. Propaganda laws may mean that information on, for example, HIV prevention can’t be disseminated.

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion. We have an opportunity to harness the lessons from the AIDS movement and place rights and the meaningful participation of the most marginalized at the centre of the response,” said Luisa Cabal, Director for Human Rights and Gender, UNAIDS.

Criminalized groups often experience higher rates of violence than the general population. Victims of violence who are also criminalized often can’t report crimes against them to the police, and lawyers risk violence and other repercussions if they take up their cases.

“Discrimination against and criminalization of people living with HIV still continues to this day. And we are facing in Indonesia persistent stigma against and criminalizing of key populations. We will never end AIDS if we are not making their needs and rights a top priority for access to health care, protection against violence and realization of the right to health,” said Baby Rivona, from the Indonesian Positive Women Network.

Countries that decriminalize drug use and make harm reduction services available have seen reductions in new HIV infections. Evidence shows that decriminalizing sex work could avert between 33% and 46% of new HIV infections among sex workers and clients over 10 years. However, reductions in new HIV infections are not the only outcome—other outcomes include improvements in well-being and trust in law enforcement, reductions in violence and increased access to health-care and support services. Above all, however, decriminalization of people results in them no longer being seen as criminals and stigmatized by society.

The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn dismissal of appeal in Singapore HIV criminalisation case

The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn dismissal of appeal in Singapore HIV criminalisation case

The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn the dismissal of the appeal by a Singaporean man living with HIV who was convicted to two years’ imprisonment for not disclosing his status to his sexual partner and for not communicating the risk of HIV transmission to his sexual partner. We are particularly concerned that the judgement has emphasised the lack of explaining the risk of HIV transmission as the main reason for dismissing the appeal.

“HIV prevention is a shared responsibility and therefore not the sole responsibility of people living with HIV. If more people are sensitised to the rights of people living with HIV, including their sexual rights, and were aware of the mechanisms of HIV transmission there would be far less stigma and discrimination towards people living with HIV. Furthermore, HIV criminalisation creates a bad public health environment where people living with HIV have fears in disclosing their status, which lead to delay in engaging in care and treatment,” said Rico Gustav, Executive Director of GNP+.

According to the Infectious Diseases Act in 2016 of Singapore, Section 23 (1) a person who knows that he has HIV Infection shall not engage in any sexual activity with another person unless, before the sexual activity takes place — (a) he has informed that other person of the risk of contracting HIV Infection from him; and (b) that other person has voluntarily agreed to accept that risk.

“HIV is the only disease singled out as a transmittable disease in the Infectious Diseases Act,” said Edwin Bernard, Global Co-ordinator of the HIV Justice Network. “Not only does this perpetuate stigma, it also creates a false sense of security, suggesting that only people with diagnosed HIV can transmit HIV, when many new infections come from those who are undiagnosed. Ironically, a law such as this one that places such an onerous burden on people with diagnosed HIV, is only likely to make HIV testing, and open and honest discussions around HIV, less likely.”

Furthermore, the facts of the case reported in the judgement suggest that there was no effective HIV risk during any sexual activity, regardless of whether or not disclosure – and acceptance of risk – was established beyond reasonable doubt. Condoms were used early in the relationship, and subsequently when condoms were not used, the unjustly convicted man had a very low viral load.

As expressed in the Expert Consensus Statement on the Science of HIV in the context of criminal law, HIV criminalisation laws and prosecutions have not always been guided by the best available scientific and medical evidence, have not evolved to reflect advancements in knowledge of HIV and its treatment, and can be influenced by persistent societal stigma and fear associated with HIV. HIV continues to be singled out, with prosecutions occurring in cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven.

GNP+ and HJN not only strongly condemn this legislation and the dismissal of appeal of this case, but all kinds of HIV criminalisation, which often entails legislation that is applied in a manner inconsistent with contemporary medical and scientific evidence and includes overstating both the risk of HIV transmission and also the potential for harm to a person’s health and wellbeing. Such limited understanding of current HIV science reinforces stigma and may lead to human rights violation and undermines efforts to address the HIV epidemic.

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Canada: Alexander McClelland reports on the 8th Symposium on HIV, Law and Human Rights

Working to end the criminalization of HIV in Canada

On June 14, I travelled to Toronto to meet with leading activists, researchers and experts working to end the criminalization of HIV in Canada for the 8th Symposium on HIV, Law and Human Rights. Organized by the Canadian HIV/AIDS Legal Network, the annual forum for the past few years has focused solely on advocacy to end Canada’s position as a global leader in the criminalization of people living with HIV for alleged non-disclosure, exposure and transmission.

At a time when HIV has lost traction on both the political and public radar, years of dedicated advocacy to reform HIV criminalization have commanded political will to address change on this issue. This year, I felt the impact of our advocacy and the increased political will in the presence of Canada’s Minister of Justice and Attorney General the Hon. David Lametti and in the remarks that he made. Mr. Lametti opened the day with a promise to continue the process, initiated by his predecessor Jody Wilson-Raybould in 2016, to reform the “over-criminalization” of HIV. He acknowledged that the recent federal directive (which is only applicable to the territories) was not enough, further committing to engage with provinces to motivate similar directives in the provinces to address ongoing criminalization.

During the Q and A, he was pressed on the Ontario government’s recent cuts to legal aid, which will have a devastating impact on people’s right to access justice, including people living with HIV who are criminalized. Lametti promised to work to support legal aid services and also told the media afterwards that, if re-elected, he would continue reform efforts, even making HIV criminalization an election issue.

The real-life impact of criminalizing HIV non-disclosure

Following Mr. Lametti came the panel on the lived experiences of people who have been criminalized. Here, I presented outcomes from my doctoral research, where I interviewed people across Canada who had been charged or prosecuted with aggravated sexual assault due to alleged HIV non-disclosure. Many of these individuals are now registered as sex offenders. Research was also presented from the Women, ART and the Criminalization of HIV (WATCH HIV) study, revealing how women with HIV live in fear, under constant surveillance due to HIV criminalization.

During this panel session of lived experiences came the most powerful moment of the day: Michelle W., a member of the Canadian Coalition to Reform HIV Criminalization and survivor of HIV criminalization, spoke of her experiences as an Indigenous woman, surviving years of sexual abuse at the hands of men, and of her life as a former sex worker and drug user in Vancouver’s Downtown East Side. She is now a registered sex offender, having served an over two-year sentence on charges of aggravated sexual assault for alleged HIV non-disclosure. The charge came about after she fled her abusive ex-boyfriend, who then went to the police out of revenge. Michelle brought the room to tears, garnering a standing ovation. Her experiences outline the vital importance of centring our advocacy efforts on lived experiences, and the need for an intersectional analysis of the issue of HIV criminalization to hold the legal system accountable for the devastating impact it has had on women, particularly Indigenous women.

Canada “one of the worst in the world”

A particularly eye-opening moment during the day was when Edwin Bernard, global coordinator for the HIV Justice Network, presented an overview of the global environment of HIV criminalization. He mentioned his own fears of the distinctively harsh context in this country, noting that as someone living with HIV, he feels scared when visiting from the United Kingdom that he could become subject of our harsh laws. He further stated, “Canada’s criminalization context for people living with HIV remains one of the worst in the world.” But he also said that activism here is mobilizing for change in inspiring and pioneering ways.

To address next steps for changing our global distinction and the ongoing harms of the criminal law, further sessions focused on how to achieve legislative reform, as well as the consequences of changing the current legal approach. This included discussions of removing the laws of sexual assault from being applied to cases of HIV non-disclosure, meaning that the sex offender registry would no longer be a mandatory outcome of prosecutions.

Next steps and potential pitfalls

Discussions also focused on the double-edged sword of mobilizing science for legal reform. Science has so far helped to inform reform efforts, such as the recommendation that criminal laws no longer be applied to people who have an undetectable viral load. However, this has the potential to turn viral suppression into a dividing line for criminalization, opening the door to further marginalize and criminalize people without (or with limited) access to medication coverage, such as migrants and homeless people.

A further complication with reform efforts is that a shift away from criminal laws may mean a greater reliance on public health authorities, who are also known to apply coercive and stigmatizing practices. This might mean intensified forms of surveillance of people living with HIV, such as mandatory viral load reporting, and the increased use of public health legislation to mandate treatment.

The week after we met, the House of Commons Standing Committee on Justice and Human Rights released their report on the criminalization of HIV non-disclosure. The report included a major positive recommendation, to remove HIV non-disclosure from the laws of sexual assault ̶  This development was many years in the making. However, the report also asks for a new law to be developed, one that would apply to all communicable diseases. There’s still more work to do.

Strategizing collectively has been a success of the movement to reform HIV criminalization in Canada, one of the inspiring things about Canada’s response that Bernard noted in this presentation. In the end, this symposium helped to continue to strengthen and galvanize our work to change Canada’s heinous distinction as a global leader in criminalizing our community.

Author: Alexander McClelland

UNAIDS and UNDP urge countries to lift all forms of HIV-related travel restrictions

UNAIDS and UNDP call on 48* countries and territories to remove all HIV-related travel restrictions

New data show that in 2019 around 48* countries and territories still have restrictions that include mandatory HIV testing and disclosure as part of requirements for entry, residence, work and/or study permits

GENEVA, 27 June 2019—UNAIDS and the United Nations Development Programme (UNDP) are urging countries to keep the promises made in the 2016 United Nations Political Declaration on Ending AIDS to remove all forms of HIV-related travel restrictions. Travel restrictions based on real or perceived HIV status are discriminatory, prevent people from accessing HIV services and propagate stigma and discrimination. Since 2015, four countries have taken steps to lift their HIV-related travel restrictions—Belarus, Lithuania, the Republic of Korea and Uzbekistan.

“Travel restrictions on the basis of HIV status violate human rights and are not effective in achieving the public health goal of preventing HIV transmission,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS calls on all countries that still have HIV-related travel restrictions to remove them.”

“HIV-related travel restrictions fuel exclusion and intolerance by fostering the dangerous and false idea that people on the move spread disease,” said Mandeep Dhaliwal, Director of UNDP’s HIV, Health and Development Group. “The 2018 Supplement of the Global Commission on HIV and the Law was unequivocal in its findings that these policies are counterproductive to effective AIDS responses.”

Out of the 48 countries and territories that maintain restrictions, at least 30 still impose bans on entry or stay and residence based on HIV status and 19 deport non-nationals on the grounds of their HIV status. Other countries and territories may require an HIV test or diagnosis as a requirement for a study, work or entry visa. The majority of countries that retain travel restrictions are in the Middle East and North Africa, but many countries in Asia and the Pacific and eastern Europe and central Asia also impose restrictions.

“HIV-related travel restrictions violate human rights and stimulate stigma and discrimination. They do not decrease the transmission of HIV and are based on moralistic notions of people living with HIV and key populations. It is truly incomprehensible that HIV-related entry and residency restrictions still exist,” said Rico Gustav, Executive Director of the Global Network of People Living with HIV.

The Human Rights Council, meeting in Geneva, Switzerland, this week for its 41st session, has consistently drawn the attention of the international community to, and raised awareness on, the importance of promoting human rights in the response to HIV, most recently in its 5 July 2018 resolution on human rights in the context of HIV.

“Policies requiring compulsory tests for HIV to impose travel restrictions are not based on scientific evidence, are harmful to the enjoyment of human rights and perpetuate discrimination and stigma,” said Dainius Pūras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health. “They are a direct barrier to accessing health care and therefore ineffective in terms of public health. I call on states to abolish discriminatory policies that require mandatory testing and impose travel restrictions based on HIV status.”

The new data compiled by UNAIDS include for the first time an analysis of the kinds of travel restrictions imposed by countries and territories and include cases in which people are forced to take a test to renew a residency permit. The data were validated with Member States through their permanent missions to the United Nations.

UNAIDS and UNDP, as the convenor of the Joint Programme’s work on human rights, stigma and discrimination, are continuing to work with partners, governments and civil society organizations to change all laws that restrict travel based on HIV status as part of the Global Partnership for Action to Eliminate all Forms of HIV-Related Stigma and Discrimination. This is a partnership of United Nations Member States, United Nations entities, civil society and the private and academic sectors for catalysing efforts in countries to implement and scale up programmes and improve shared responsibility and accountability for ending HIV-related stigma and discrimination.

*The 48 countries and territories that still have some form of HIV related travel restriction are: Angola, Aruba, Australia, Azerbaijan, Bahrain, Belize, Bosnia and Herzegovina, Brunei Darussalam, Cayman Islands, Cook Islands, Cuba, Dominican Republic, Egypt, Indonesia, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Malaysia, Maldives, Marshall Islands, Mauritius, New Zealand, Oman, Palau, Papua New Guinea, Paraguay, Qatar, Russian Federation, Saint Kitts and Nevis, Samoa, Saudi Arabia, Saint Vincent and the Grenadines, Singapore, Solomon Islands, Sudan, Syrian Arab Republic, Tonga, Tunisia, Turkmenistan, Turks and Caicos, Tuvalu, Ukraine, United Arab Emirates and Yemen.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

South Africa: Constitutional Court Justice Edwin Cameron, a leading figure on HIV and the law, to retire in August

Justice Edwin Cameron to step down in August after 25 years as a judge

Justice Edwin Cameron is expected to retire as a judge on August 20, the Constitutional Court announced on Twitter on Thursday.

Cameron is expected to step down from the apex court on the 25th anniversary of his appointment as a judge.

Cameron, who worked as a human rights lawyer during apartheid, defended ANC members and fought for gay and lesbian equality, according to his profile on the Constitutional Court’s website.

He revealed that he was HIV positive in 1999, at a time when many people living with the virus faced significant stigma from a deeply ignorant public. He contracted the virus in the late 1980s.

In 2017, he told the Constitutional Hill website: “The stigma is still enormous. It would be helpful if we had more [prominent people open about being HIV positive], but each has to take that decision personally.”

Cameron, a keen cyclist, was appointed to the Constitutional Court in 2008 by then acting president Kgalema Motlanthe.

The announcement about him stepping down has been met with sadness. There were also expressions of admiration for what he accomplished over the years.