US: Q & A with Sen. Scott Wiener, one of the authors of Senate Bill 239 that modernised HIV criminalisation law in California

Successful HIV Criminalization Reform in California: Q and A with Sen. Scott Wiener

The majority of states have laws that criminalize activities engaged in by HIV-positive people that are not criminalized when engaged in by the rest of the population.

Many of these laws improperly single out HIV over other infectious diseases and reflect a lack of understanding of both how HIV spreads and how it can be treated.

In 2017, California passed legislation which modernized and improved California’s HIV criminalization law. One of the authors of the law was State Senator Scott Wiener. I recently had a chance to ask Sen. Wiener some questions about that process.

His responses are given here in hopes of supplying useful information for legislators, lobbyists, and activists in other states who are interested in starting the reform process in their own states or other jurisdictions around the world. This interview has been edited for clarity.

Mark Satta: You sponsored and helped author California Senate Bill 239, which in 2017 was signed into law by Governor Jerry Brown. Senate Bill 239 modernized HIV criminalization in California. Can you give us a brief overview of what California HIV criminalization law looked like before the passage of this new law and what the major changes are that passage of the new law brought about?

Sen. Scott Wiener: In the late 1980s and early 1990s, California, like many states, adopted very harsh felonies to punish HIV-positive people who engaged in sexual activity with other people without disclosing their HIV status.

California has a catchall misdemeanor for willfully exposing someone to an infectious disease, which has been on the books for many years. But HIV, of all the many serious, deadly infectious diseases, was singled out for especially harsh felony treatment. The laws didn’t require you to transmit HIV, and in fact didn’t even require any meaningful risk of infection. So if you were virally suppressed, for example, or if the other person was on PrEP, or if you were engaging in sexual activity that really didn’t create much of a risk, under the old laws, it didn’t matter. They were very broad, draconian laws.

There was one law specific to sex workers where there didn’t even have to be physical contact. If [a sex worker] solicited someone without telling them they were HIV-positive, even if they never actually had sex, they were guilty of a felony. The new law converts sex worker felonies into misdemeanors.

It was really women, and in particular African American women and sex workers, who were targeted. And really, the laws did nothing to actually reduce HIV infections — all it did was stigmatize people with HIV and encourage people to hide their status.

So they’re just terrible, horrible laws and that’s why we tried to reform them.

Satta: In writing the bill, what were the major sources of information that you and Assembly member Gloria consulted to determine the ways in which California’s criminalization of HIV failed to accord with our scientific and medical understanding of HIV/AIDS?

Sen. Wiener: Part of [our information was] based on data on how you reduce and eliminate HIV infections, and the whole concept of getting to zero, which I’m very familiar with. You do it by encouraging people to get tested regularly so they know their status, and then if they do test positive, they quickly go on medication to become virally suppressed. And the people who are negative have access to all preventative tools, including PrEP.

So when you criminalize and single out people with HIV, it encourages people not to get tested. Because if you don’t know your status then you can’t be guilty of a crime. It encourages people to be very secretive about their status. And being secretive about your status undermines public health. That’s not how you get people tested or into treatment. You want people to feel comfortable being very open about their status. So that was the bedrock of the science we relied on.

If our goal is to prevent HIV infections, to keep people negative, and to keep positive people healthy, we must do that through a public health approach, not through a criminalization approach. Criminalization does not reduce HIV infections — in fact, it does the opposite.

We also had plenty of data on who was being targeted by these laws. It was targeting specific demographics. So even if one were to believe that criminalization somehow reduces infection—which it doesn’t— why would almost half of arrests and prosecutions be of women when they’re only 12 percent of the HIV-positive population? We also worked extensively with a broad coalition that included many public health organizations, physicians, and people who really understand the science.

Satta: In advocating for the bill in the California state senate, what messages and information resonated most strongly with your colleagues?

Sen Wiener: It depended. When you explained about how criminalization doesn’t reduce infections, for a certain segment of colleagues, that was enough. But what really resonated with others was that HIV was being treated differently than other infectious diseases, and more harshly. I had one colleague—a moderate Democrat from a pretty conservative district—and I was not sure if we would get her vote. When I talked to her about it and told her that HIV was being treated differently, as a felony, while other infectious diseases were a misdemeanor. She said to me, “Wait, you’re telling me that Ebola and TB are a misdemeanor, but HIV is a felony, and you want to move HIV into the same category as TB and Ebola?” And I said, “Yes.” And she said, “That’s all I need to know. Whenever I’m asked about it, that’s how I’ll answer.” And she voted for the bill.

Satta: What advice would you give activists and legislators in other states or jurisdictions who are interested in advocating for legislative reform around HIV criminalization?

Sen. Wiener: First, build a very, very strong and broad coalition. The endorsement list for SB 239 was pages long. It included every reputable civil rights organization, public health organization, LGBT organization, immigrant organization — I mean, everything. You look at these incredibly well-respected organizations ranging from the ACLU, to Planned Parenthood, to respected healthcare advocacy organizations, and even before you delve into the facts, you say, “Look: if all these groups are supporting this, this is a bill I’m supporting.” This is especially true for Democrats.

Because of that broad coalition, lobbying for the bill was incredibly impactful. As an author, that made my life a lot easier. I talked to almost every member of the legislature about the bill one-on-one over the course of the year, but having the coalition aggressively lobbying made a big difference.

Then, really talk to legislators, colleague to colleague. Lots of people have this reaction where they think that if someone is trying to infect someone, they should be guilty of a felony. But you have to talk to them about the notion of the sociopath trying to infect people. Does that happen? Yes, but it’s extremely rare, and those are not the people being prosecuted under these laws.

You also have to indicate that this is a priority for LGBT civil rights organizations. That was very powerful, too. Equality California made the bill its number one priority of the year. For a number of Democrats, this is very compelling. Democrats, in California at least, want be on the right side of LGBT issues. And even though HIV goes beyond the LGBT community, obviously, there’s an enormous overlap.

Also, educate the reporters who are going to cover potential legislative reform. What we found was that there were a couple of publications in California—the San Francisco Chronicle and the Sacramento Bee in particular—that had reporters who really got it. For a number of other publications it was more hit and miss. And even when you had a good reporter, the editors would put clickbait headlines on. So other than some really good articles in the Bee and the Chronicle, we were never able to get accurate coverage. It would always be sensationalist. The headline would be something like, “Bill Proposes Making it Not a Felony to Intentionally Infect Someone with AIDS.” The Los Angeles Times was unfortunately notorious for clickbait headlines like that, which really flamed people up. We even got to the point where we did a call in and we invited the press just to talk about the basic facts of the bill and it didn’t work. So, before you even start you need to identify the reporters likely to report on this, sit down with them, and try to educate them about the facts.

Mark Satta is a 2018-2019 Petrie-Flom Center Student Fellow.

Published on December 11, 2018 in Bill of Health

Kenya: Positive Justice campaign launched today to challenge unjust HIV-specific law

Today, on International Human Rights Day, the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK) and the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) have launched the Positive Justice campaign to finally end HIV criminalisation in Kenya.

Today's Positive Justice launch (photo: @KELIN via Twitter) — Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

In 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional and suspended the law. The High Court ruling focused on the absence of a definition for “sexual contact”, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

However, Section 26 of the Sexual Offences Act (2006) still contains vague and overly broad provisions that have resulted in a number of recent arrests and unjust prosecutions for biting (March 2018), breastfeeding (September 2018), and alleged non-disclosure (December 2018).

Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

Consequently, today KELIN have filed a petition asking the High Court in Nairobi to strike down as unconstitutional Section 26 of the Sexual Offences Act on the grounds that it discriminates against people living with HIV, women, and the poor, and violates a number of fundamental human rights.

Download and read Petition 447 – which will be heard on 4^th March 2019 for directions – at this link: http://www.kelinkenya.org/wp-content/uploads/2018/12/Petition-447-of-2018-Final.pdf

According to a KELIN press release published today

The prosecuting authority’s interpretation of Section 26 of the Sexual Offences Act, as demonstrated by the prosecutions of several of the PLHIV challenging the law, effectively makes it a crime for a woman with HIV to birth and raise children. The prevailing interpretation also effectively criminalizes marriage between a person who has HIV and a person who does not.

“Laws that make criminals of people simply for having HIV ignore science. People who are on HIV treatment and are virally suppressed are not infectious. The key to a successful HIV response and ending AIDS is making sure everyone with HIV knows their status and gets on treatment. These laws make that impossible. Thousands of discordant couples and breastfeeding mothers living all over Kenya run the risk of being arrested and charged under this provision if they come forward for HIV testing,” noted M.A, the fourth petitioner and a representative of the Discordant Couples in Kenya.

HIV criminalization laws are also notorious for abuse and arbitrary enforcement. “Such abuse will always be targeted at persons living with, vulnerable to or believed to be living with HIV whether or not their actions were culpable and whether or not their actions exposed another to the risk of contracting HIV,” cautioned Mr. Nelson Otwoma, the Director at the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK).

It is for this reason that five people living with HIV and stakeholders working in HIV response came together to file the petition and launch the campaign dubbed Positive Justice. The campaign seeks to raise awareness on the negative effects of enforcement of the law on PLHIV, and engage relevant stakeholders including the media, legislature, judiciary, law enforcers, and Ministry of Health in advocating for the rights of people living with HIV.

“This petition will not only safeguard the rights of those living with and affected by HIV and other sexually transmitted infections but also help alleviate the discrimination and stigma they face and help Kenya remain on track in achieving the 2020 UN AIDS Fast Track targets in ending AIDS,’ said Mr. Allan Maleche, the Executive Director at KELIN.

Zimbabwe: Calls to repeal law on HIV transmission and non-disclosure as it is not supported by scientific evidence

Repeal law on transmission of HIV

HARARE – There are calls to repeal a law that imposes criminal penalties on people who know they have HIV and engage in behaviours that might transmit the virus to others, without disclosing their status.

Deputy director HIV/Aids and STIs in the Health and Child Care ministry, Tsitsi Apollo, told delegates this week at a Symposium on HIV and Law organised by Zimbabwe Lawyers for Human Rights and National Aids Council that Section 79 (1) of the Criminal Codification and Reform Act on deliberate transmission of HIV presents a barrier towards the country’s goal of reaching the 1st 90 by end of 2020.

She was referring to an ambitious goal set by UNAiDS, the UN agency dealing with the disease, to tackle the epidemic by 2020 by having 90 percent of people with HIV to know their status, 90 percent of diagnosed people to be on treatment, and 90 percent of those on treatment to have suppressed levels of the virus in their bodies.

“The law should be repealed as it violates the rights of recipients of care. The law should be grounded with scientific evidence to facilitate justice delivery” Apollo said.

She said the law draws conclusions on deliberate HIV transmission from the fact that one is on ARVs – a direct contradiction of science. “It is difficult to ascertain direction of HIV transmission. Phylogenic analysis of virus samples from defendant and complainant is pre-requisite. It is difficult to exclude other possible sources of infection, even with evidence of a negative status at start of relationship…”

Published in Daily News on December 1, 2018

Uganda: New efforts underway in Uganda to challenge HIV legislation, especially its provisions on the disclosure of HIV status

Kampala, Uganda | IAN KATUSIIME | Rosemary Namubiru, a nurse, was in 2014 sentenced to three years in jail for criminal negligence over what seemed a potential infection of a baby with HIV the virus that causes AIDS. Her crime was that as an HIV positive nurse, she placed the life of a baby in danger when she pricked herself with an injection she was administering.

In her defence, Namubiru said she pricked herself accidentally as sometimes happens among medical workers. But her pleas were cast aside as police and swarms of media cameras swooped on her. Test results for HIV infection on the baby were negative but Namubiru still served her sentence.

When she was released after one year of her sentence, she reportedly got threats to harm her from her neighbours and had to travel to the countryside and stay away from her home in Kampala for several months for her safety.

Although Namubiru was not charged under the HIV and AIDS Prevention and Control Act 2014, her case was widely discussed recently at a symposium organised for journalists by Uganda Network on Law, Ethics and HIV/AIDS (UGANET) meant to discuss better ways for which the media can report about the law. The symposium was held at Imperial Golf View Hotel in Entebbe.

UGANET has already challenged the law in the Constitutional Court but they say the symposium with journalists on Nov.6 and 7 was necessary to carry out more media sensitisation on the law. They said they have faced an uphill battle challenging the law; especially its provisions on disclosure of HIV status.

“The vagueness of some provisions of the law has caused many arrests,” says Dora Musinguzi, the Executive Director of UGANET.

Some of the contentious provisions of the law include Article 18 (2) (d) where the results of an HIV test may be disclosed or released to “a medical practitioner or other qualified officer who is directly involved in the treatment or counselling of that person, where the HIV status is clinically relevant.”

Musinguzi says this is “too wide a window” for the medical officer to operate in. The other provisions of the law are those that criminalise “attempted transmission of HIV” and “intentional transmission of HIV”. The argument against this provision is that it interferes with medical ethics and the doctor patient relationship. She added that criminalisation of HIV positive persons fuels discrimination as happened in the case of Namubiru.

Members of UGANET were unhappy with the way journalists covered Namubiru’s arrest. The general feeling was that the media led the public trial and conviction of Namubiru.

Government is fighting people with HIV

Beatrice Were is the embodiment of living positively with HIV; the virus that causes AIDS. She was a young woman when she discovered she was HIV positive in 1991. Two years later, she lost her husband and thought her world had ended. She even wrote a will. But thanks to a support environment, she took on a new turn as an HIV activist. Over the years, she has spoken at various forums both in Uganda and abroad.

However a few years ago, Were said at the symposium, she started worrying not because of the deadly virus but due to the HIV and AIDS Prevention and Control law. She said it has hindered some of her dreams.

“I love children and have always wanted to start a kindergarten but that law may kill the business,” she said and is worried of Article 18 (2) (e) in the HIV law which states that results of an HIV status may be disclosed to “any other person with whom an HIV infected person is in close or continuous contact including a sexual partner, if the nature of contact, in the opinion of the medical practitioner or other qualified officer, poses a clear and present danger of HIV transmission to that person.”

This means that a doctor can disclose the status of someone living with HIV to friends, workmates depending on the doctor’s assessment of the closeness. This possibility is something that alarms activists like Were.

She says the law ignores the high level of stigma attached to HIV/AIDS sufferers in Uganda and the caution required when disclosing a positive status.

She says, for example, she cannot start a kindergarten for fear of the law because a medical practitioner might disclose her status to children under her care and frighten some of them even if she poses no danger to them.

“I feel like the government is fighting people with HIV,” she says.

She says the proposed law is the latest sign that the government is making lots of steps backwards since the 1990s when it was regularly praised for its progressive policies on HIV/AIDS.

Were and other members of UGANET say the government largely ignored their views as the law was being made despite efforts to make their contribution.

HIV activists say that with the law in its current form, fewer people will be willing to come out on their status given the current environment.

“When the law is not there, you see a lot of Beatrices (Were) and less of Namubirus,” Musinguzi remarked.

Members of UGANET also oppose mandatory testing for HIV, citing mainly cases of partners of pregnant women.

“While some of these laws are well intentioned, mandatory testing laws are regressive,” says a lawyer who did not want to be named. “They drive people away from health facilities for HIV prevention and counselling,” she added.

Were says she is concerned about those who unlike her may fear disclosing their status and withdraw further due to the current legal regime.

“The law is a toxin in the environment of HIV where we have invested so much in the fight,” she said.

Activists selfish?

But Dr Medard Bitekyerezo, the chairman of the National Drug Authority and who was key in the composition of the law when he was a Member of Parliament for Mbarara Municipality says those who are against this law are being ‘’selfish’’.

“What happens when someone who smokes marijuana rapes your 12-year old daughter and infects her? Of course you test her and also this person to protect other people from him,” he explains.

Bitekyerezo says in the process of making this law, he and other MPs made serious consultations where a number of case scenarios were drawn up. “We are not traumatising or criminalising anybody. What is wrong with somebody knowing their status and then putting a safeguard? Let them not be selfish.”

He tells The Independent that part of the information that was used during the making of the law was gathered when he was chairman of Board of Trustees AIDS Information Centre (AIC).

On the charge of criminalisation, he says not everybody with HIV is bad-hearted. “There are some people who have HIV and behave more responsibly than those who are negative,” he adds that some of those who are positive are living safer lives.

Bitekyerezo who says he spent a lot of time in Mbarara treating HIV positive people says some of the clauses in the law have been misinterpreted. “There is no doctor who is going to disclose anyone’s status. He says the law is meant to help people who may be positive but have negative partners and are looking to conceal their status from the negative one.

“Activists don’t want to help people. The message to doctors and nurses is simple- safeguard the people in your hands, protect them from HIV.”

Outside the air-conditioned conference rooms of the luxurious Imperial Golf View Hotel, as those for and against argue and face off in courts of law, the media must now find new ways to cover contentious cases of HIV positive persons like Namubiru who get caught under a disputed HIV law.

Published in the World News on November 20, 2018

Canada: Review undertaken as part of government’s examination of HIV nondisclosure laws confirms risk of sexual transmission when viral load is suppressed is virtually zero

Risk of sexual transmission of human immunodeficiency virus with antiretroviral therapy, suppressed viral load and condom use: a systematic review

Abstract

Background: The Public Health Agency of Canada reviewed sexual transmission of HIV between serodiscordant partners to support examination of the criminal justice system response to HIV nondisclosure by the Department of Justice of Canada. We sought to determine HIV transmission risk when an HIV-positive partner takes antiretroviral therapy, has a suppressed viral load or uses condoms.

Methods: We conducted an overview and systematic review update by searching MEDLINE and other databases (Jan. 1, 2007, to Mar. 13, 2017; and Nov. 1, 2012, to Apr. 27, 2017, respectively). We considered reviews and studies about absolute risk of sexual transmission of HIV between serodiscordant partners to be eligible for inclusion. We used A Measurement Tool to Assess Systematic Reviews (AMSTAR) for review quality, Quality in Prognosis Studies (QUIPS) instrument for study risk of bias and then the Grading of Recommendations, Assessment, Development and Evaluation (GRADE) approach to assess the quality of evidence across studies. We calculated HIV incidence per 100 person-years with 95% confidence intervals (CIs). We assigned risk categories according to potential for and evidence of HIV transmission.

Results: We identified 12 reviews. We selected 1 review to estimate risk of HIV transmission for condom use without antiretroviral therapy (1.14 transmissions/100 person-years, 95% CI 0.56–2.04; low risk). We identified 11 studies with 23 transmissions over 10 511 person-years with antiretroviral therapy (0.22 transmissions/ 100 person-years, 95% CI 0.14–0.33; low risk). We found no transmissions with antiretroviral therapy and a viral load of less than 200 copies/mL across consecutive measurements 4 to 6 months apart (0.00 transmissions/100 person-years, 95% CI 0.00–0.28; negligible risk regardless of condom use).

For full study see: http://www.cmaj.ca/content/190/46/E1350

Australia: Community advocates call for decriminalisation of HIV and an implementation of U=U education campaign to remove stigma

Calls for review of Western Australia’s HIV Laws

Community advocates are calling for a review of Western Australian legislation relating to HIV, and criminalisation.

Grassroots organisation HIV Institute of WA have issued an open letter to Attorney General John Quigley, highlighting the relationship between HIV criminalisation and stigma faced by people living with HIV and the importance of the U=U (Undetectable = Untransmissible) campaign.

The letter, signed by spokesperson Neil Buckley, also notes the recent fake email sent to voters of Wentworth, suggesting candidate Dr Kerryn Phelps had withdrawn from the race after having been diagnosed with HIV.

“The stigma in our own backyard needs addressing, implementing the U=U education campaign in the wider community would be a start to decriminalizing HIV and removing stigma which is a barrier to testing treatments.”

The group also raise concerns about the ambiguity in the phrasing of the current Western Australian Health Act. Currently the Act states that “a person who has a notifiable infection disease must take all reasonable precautions to ensure that others are not unknowingly placed at risk of contracting the disease.”

“What exactly constitutes reasonable practices is unclear and currently left up to the courts to decide,” the letter reads.

“Today, those with an undetectable viral load are believed to be un-infectious yet no court in Australia has ruled that this satisfies the reasonable precautions test. This ambiguity is concerning and can leave many unclear on whether they could face criminal charges.”

“While no criminal laws in Western Australia target HIV specifically, it can be prosecuted under assault-based offenses, which carry multi-year prison sentences.”

“While usually only applied to individuals that intentionally transmit HIV, it can be used against those that are only deemed negligent in their exposure.” the group highlight.

OIP Staff

Published in Out in Perth on November 12, 2018

US: PJP update – November 2018

The November 2018 edition of the Positive Justice Project newsletter is available here.

Update of global database on HIV specific travel and residence restrictions shows 49 countries restrict long-term stays and 13 have punitive laws

The Global Database on HIV-specific Travel & Residence Restrictions, a useful online tool regarding the cross-border mobility of people living with HIV/AIDS, was recently updated.

This is a joint collaboration between the International AIDS Society (IAS), the European AIDS Treatment Group (EATG), the German AIDS Federation (DAH) and Positive Council Switzerland.

Below you can find an update by the International AIDS Society, as it was shared with its members:

The global database was updated in July 2018 and shared at the 22^nd International AIDS Conference, Amsterdam, The Netherlands.

The good news:

Taiwan and South Korea have abolished all existing restrictions
Singapore has eased its laws and is now allowing short-term stays
Canada is making it easier for people living with HIV to obtain a residence permit
No country has introduced new legislation or punitive laws affecting people living with HIV
New information from several countries indicates they are “free of restrictions” (Belarus, Bosnia Herzegovina, Germany, Hungary, Indonesia, Rwanda and Turkmenistan)

The bad news:

Entry bars, restrictions for short-term and long-term stays persist, and many countries continue to deport people living with HIV.

Countries with entry bars:

Brunei, Equatorial Guinea, Iran, Iraq, Jordan, Solomon Islands, United Arab Emirates, Yemen. Russia is listed because a factual entry bar applies to multiple entry visa

Countries deporting people living with HIV:

Bahrain, Brunei, China, Egypt, Equatorial Guinea, Iran, Iraq, Jordan, Kuwait, Lebanon, Malaysia, Oman, Russia, Saudi Arabia, Solomon Islands, United Arab Emirates, Yemen

Thirteen countries have punitive laws affecting stays below 90 days. Forty-nine countries restrict long-term stays of more than 90 days. Laws and practices are unclear in 24 countries, while 143 countries have no restrictions. An overview on all restriction categories is available here.

Published on EATG website on October 9,2018

US: New report by the Williams Institute shows clear disparities in enforcement of HIV criminalization laws in Florida

Study shows impact of HIV criminalization laws

Los Angeles – Florida laws that criminalize people living with HIV directly affected 614 people from 1986 to 2017, according to a new report by the Williams Institute at the UCLA School of Law. Researchers found that women were disproportionately affected by HIV criminalization. White women were disproportionately arrested for HIV offenses in Florida, and black women were most likely to be convicted for HIV offenses related to sex work. HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based upon a person’s HIV-positive status. More than two-thirds of US states and territories have enacted HIV criminal laws.

“Our study shows that certain communities, whether defined by gender, race/ethnicity, or sex-worker status, are bearing more of the weight of these laws,” said lead author Amira Hasenbush. “What’s more, these HIV criminal laws, which were originally intended to control the spread of HIV by prosecuting individuals who expose others, don’t require proof of transmission or even exposure in most cases. So the laws are not doing what they set out to do.”

Key findings: Individuals were arrested under HIV-related statutes in 47 out of the 67 counties in Florida. The highest prevalence of HIV in the state is found in Miami-Dade (24%) and Broward Counties (18%), but those counties represent only 4% and 3%, respectively, of the HIV-related arrests. On the other hand, Duval County is home to only 6% of the people living with HIV in Florida but 23% of all HIV-related arrests in the state. Over half (56%) of all individuals arrested under an HIV-related offense were women. More than four in ten people arrested under an HIV-related offense were black (43%) and white women were more likely to be arrested for an HIV-criminal offense than other groups. Black men were more likely to be convicted of an HIV-related offense than white men and white women. Convictions for HIV arrests were twice as likely when there was a concurrent sex work arrest than when the HIV offense occurred outside of the context of sex work. Read the report Williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-Florida-Oct-2018.pdf

Published in Baltimore Outloud on October 13, 2018

The fight for justice in HIV must join the fight to decriminalise abortion to ease the burdens on the sexual and reproductive lives of women and girls

Criminalizing the right to health: The shared struggle of the HIV and safe abortion movements

Edwin Cameron, Anand Grover

This month, India’s Supreme Court struck down Section 377 – a colonial-era law that banned same-sex activity and led to the systemic discrimination and persecution of LGBTQ Indians. This was a huge victory for India and – as two lawyers who have spent decades fighting for the rights of LGBTQ individuals – a very personal one.

Yet, while we celebrate this incredible achievement, we must remember that criminalization remains a potent threat for the health and lives of many people around the world. And those that often bear the largest burden are people living with HIV and AIDS and women and girls seeking abortion services.

While accessing legal and safe abortion services may seem very different from preventing or treating HIV, profound linkages bind the two struggles. Both HIV and AIDS and unsafe abortion endanger life and health, with a disproportionate impact on people living in developing countries. Both impose vast burdens on the sexual and reproductive lives of women and girls and imperil their equal citizenship. And both have the harsh, often cruel and blunt methods of criminal law imposed upon them.

Around the world, governments have used such criminal laws to police sexuality and reproduction, including for same-sex activity, HIV non-disclosure and exposure, and abortion services. These laws are often cloaked in the guise of keeping people safe or evoke morality as a justification.

But, as lawyers and advocates, we know that punitive provisions are not only ineffective, but have damaging and deadly consequences. They cause acute pain, suffering and even death. The fight to lift legal barriers to care is core to the fight for just healthcare for all.

We have both been part of the struggle for justice and rationality in the HIV epidemic and, more recently, in advocating safe abortion care. We know from personal experience how criminal laws, prosecutions and punishments grossly hamper human rights, particularly the right to health. Unjust laws also propagate stigma and discrimination, which, in turn, further impedes access to healthcare services, blocks dissemination of accurate and pertinent health information, and makes it difficult, if not impossible, to seek medical services, facilities and medicines. This severely impairs the dignity of women and girls.

We also recognize what science and the right to health has long told us: criminalization of health services almost invariably hits marginalized, vulnerable communities hardest and has a disastrous impact on health outcomes worldwide.

All of us, men and women, should have the freedom to decide if and when to reproduce and the right to access safe, effective, affordable and appropriate health care services, facilities and commodities. But, speaking as two males, we recognize the lamentable and grievous fact that this right is of particular urgency and concern to women and girls. And that its denial is harshest – indeed, too often fatal – for women and girls.

Every single year, more than 22,800 women and girls die due to complications from unsafe abortion – a stark reminder of the life and death consequences of criminalizing health care. In 68 countries, people living with HIV face laws that criminalize non-disclosure, exposure or transmission, which not only have a negative impact on prevention, but can discourage HIV testing and disclosure. The dream of “an AIDS-free world” will remain a dream if people are afraid to get tested or speak about their status for fear of arrest.

HIV is the leading cause of death among women of reproductive age in developing regions. The second biggest killer is maternal death, of which unsafe abortion accounts for a disquieting share. It is vital that women and girls remain at the center of these battles and their voices and experiences lead these movements. But we all lose if men shy away from the vital importance, to all, of life-saving care for women and girls.

We know that progress is possible. Beyond the recent victory to overturn Section 377, we’ve also seen the repeal of HIV criminalization laws in countries as diverse as Ghana, Tajikistan and Switzerland. Earlier this year, the Irish people overwhelmingly voted to overturn a constitutional ban on abortion.

As we learned in our decades of HIV/AIDS activism, the more people who fight for a just cause, the more change we can achieve. The fight for justice and plain sense in HIV must join the fight to decriminalize abortion. HIV and safe abortion activists around the world have already begun to make the connections – in thought and action – to come together and raise their voices against unjust laws, coercion and stigma, and demand accountability from governments.

Unison in understanding the issues and in tackling them brings fresh power to the fight for reproductive justice. Too many lives depend on it for any of us to be indifferent.

Justice Edwin Cameron is a judge on the Constitutional Court in South Africa and author of the prize-winning memoir “Witness to AIDS”, about his own experience of living with HIV.

Anand Grover is a designated Senior Advocate practicing in the Supreme Court of India, and the Director of the HIV/AIDS Unit of Lawyer’s Collective. He represented Naz Foundation, one of the petitioners in the Section 377 case.

Published on Reuters on October 10, 2018