Canada: Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, explores the history of HIV criminalisation in Canada and asks fellow Canadians to support their call for HIV Justice

How everyone living with HIV in Canada became a potential criminal

Add your voice to the growing call for prosecutorial guidelines today

By Richard ElliottAug 08, 2017, 8:44 PM EDT

I couldn’t believe it, and yet I shouldn’t have been surprised, given what I knew.

A friend of mine had just been informed that his HIV test was confirmed positive. And in that moment, as my friend’s life changed forever, the well-meaning doctor tried awkwardly to fill the silence — with some remarks about how my friend could be criminally charged if he didn’t disclose his status to every sexual partner.

As a lawyer well-versed in this area of law, I knew why the doctor was saying that. In a decision the year before (in September 1998), the Supreme Court of Canada had confirmed that someone with HIV could be prosecuted for aggravated assault for not disclosing to a sexual partner, at least in some circumstances.

I also knew that what the doctor was saying wasn’t entirely correct because precisely which circumstances trigger a legal duty to disclose HIV were still unclear then — and the issue remains contentious to this day, nearly 20 years later.

Legal issues aside, it’s wrong to greet newly diagnosed people with a threat that they could go to jail if they don’t disclose. But my friend’s experience is not unique. Many physicians and public health nurses are quick to inform people that they must disclose and use condoms (each and every time

regardless of what the actual risks of transmission might be in a given instance) — and that if they don’t, there’s the risk of possible criminal charges.

And, of course, each time police issue a press release with the name and photo of someone accused of not disclosing, every person living with HIV is reminded that they live under the shadow of possible prosecution — and accompanying trial in the court of public opinion — that could be just one allegation away.

How did we reach the point where every person living with HIV is considered a potential criminal?

The early years of the epidemic

To answer that question, we need to go back to the early years of the HIV epidemic, and consider the combination of factors that contributed to the criminalization of HIV in the first place and how these factors have shaped its evolution since.

We start in North America in the early– to mid–1980s with the basic ingredients: A frightening new, and apparently communicable, disease that progresses rapidly, most often to death, with no known effective treatment and a lack of information — even active misinformation in some quarters — about how it spreads. The resulting fear of contagion sparks an understandable human impulse to contain, to distance, and to avoid harm, whether real or simply perceived.

Add several layers of inequality and misguided morality, because the epidemic is particularly identified in marginalized populations already subject to social disapproval and state surveillance. Gay sex, blamed early on for the spread of AIDS, had only been decriminalized a few years earlier in Canada (and remained a crime in many US states), and of course gay people were still widely stigmatized across the continent. Sex workers remain heavily stigmatized, and criminalized, to this day.

Infections were also appearing among people who inject drugs, who already carried the deep stigma of addiction and were also facing a deliberately intensified “war on drugs,”  a program of criminal prohibition and incarceration rooted in and reinforcing what was already a centuries-long history of racismagainst Black and Indigenous people in North America.

HIV therefore entered the public consciousness as a disease of perceived deviance, whether in relation to sex, drugs or both.

Now, add a handful of ostensible cases of “wilful HIV transmission” sensationalized in media reports that often reinforced the same prejudices and assumptions about sexuality, gender, race, sex work and drug use. (Consider, for example, the front page of the Halifax Chronicle Herald in late September 1988— “AIDS Fiend Strikes Again” — which kicked off its coverage of a “bisexual AIDS carrier” charged in the first Canadian criminal prosecution for HIV nondisclosure to a sexual partner.)

Finally, throw in some prosecutors and legislators acting from a variety of motives. Some are no doubt well-intentioned, acting out of a legitimate concern about trying to prevent the harm of further infection. But there are also plenty of moral entrepreneurs perfectly willing or eager to seize upon a new disease as “proof” of degeneracy, or cite a sensational media case as evidence of the need for a “tough” response to protect society.

It’s therefore no surprise that, within a few years of what was later called the human immunodeficiency virus (HIV) being identified in 1983, a new front opened up in the emerging epidemic: the resort to criminal law as a tool to respond to the perceived threat to public health.

It’s also no surprise that the same pre-existing prejudices that pushed a criminal response onto a health epidemic saw the criminal justice system quickly go overboard in applying those laws.

And that’s exactly what has played out in many countries, including Canada.

The rulings begin

Canada witnessed its first prosecution for HIV nondisclosure to a sexual partner in 1988 in the R v Wentzell case. Responding to a small but growing number of cases and with no clear legal precedent to apply, prosecutors pursued convictions using various crimes in the Criminal Code, seeing what would stick. Charges laid included “criminal negligence causing bodily harm,” being a “common nuisance” by endangering the health and safety of the public, and “administering a noxious thing” (ie. semen containing HIV). And in a handful of cases, prosecutors pursued charges for assault or sexual assault.

Many of these early prosecutions in Canada resulted in guilty pleas. The handful of cases that actually went to trial saw mixed results from different courts. But in the early 1990s, one case set the stage for the past two decades of growing HIV criminalization.

The case, R v Cuerrier, began in a BC court in 1992 and eventually reached the Supreme Court of Canada in 1998. This was the first chance for the country’s highest court to decide if not disclosing your HIV-positive status to a sexual partner might be a crime —and specifically, an assault.

The Supreme Court decided that there is no blanket duty to disclose your HIV-positive status to a sexual partner, unless you’re having sex that carries a “significant risk of serious bodily harm.” The court ruled that not revealing your HIV status in that case counts as “fraud,” which means your partner’s consent to sex isn’t legally valid, and therefore you have assaulted them. But the court failed to clearly define what counts as a “significant risk” of transmission. (It did suggest that using condoms might lower the risk enough that it wasn’t “significant,” which led to many lawyers arguing about “protected” versus “unprotected” sex in courts over the next few years.)

Guilty pleas and convictions began to accumulate more rapidly in the years following the Supreme Court decision. The charge most frequently laid has been “aggravated sexual assault,” one of the most serious offences included in the Criminal Code. (The maximum penalty upon conviction for this offence is life imprisonment, plus mandatory registration as a sex offender.)

And because the Supreme Court’s ruling required only that there be a “significant risk” of transmission — not actual transmission — a substantial majority of prosecutions and convictions in Canada to date involve allegations of exposure to HIV. In the majority of known prosecutions, HIV has not actually been transmitted.

In fact, over nearly 20 years of documented prosecutions in Canada, many prosecutions have involved zero to minimal risk of actual HIV transmission.

In 2012, a pair of appeals — one from Manitoba, the other from Quebec — brought the issue back before the Supreme Court of Canada, but the rulings were a profound disappointment. The court said there is a “significant risk of serious bodily harm” when there is a “realistic possibility” of transmitting HIV. But despite stating that it didn’t want to criminalize people in cases where there was only a small possibility of transmission, it nonetheless did so — and a number of other courts have followed suit.

The rulings have also raised more questions about what counts as a “realistic possibility” of transmission, and when a person with HIV has done enough to reduce that possibility so that they are no longer criminals if they don’t disclose their status. The Court seemed to backtrack dangerously on its earlier suggestion that using a condom might be adequate to lower the risk so that no disclosure would be required; this remains an ongoing fight in some court cases.

And to this day it remains a live issue whether someone who has a low or undetectable viral load is a criminal if they don’t disclose their status This aspect of the law continues to evolve, given the additional scientific evidence emerging about the effectiveness of anti-HIV drugs and the reality that the risk of transmission from someone living with HIV with an undetectable viral load is nearly zero. The result is that the law is still unclear, courts are still reaching contradictory conclusions — and people living with HIV are still being prosecuted for a very serious criminal offence, for not disclosing their HIV status even where there is zero risk or an exceedingly small risk of transmission.

Demanding change

But people are resisting the ongoing miscarriages of justice. Human rights groups, people living with HIV, and community organizations are going to court and speaking out in the court of public opinion. We are picketing outside courthouses, and protesting in front of the attorney general’s office in Ontario. We are taking action online to send a message to politicians, and meeting with them to lobby face-to-face.

Health care providers are outlining the many ways in which the climate of fear, misinformation and stigma created by these prosecutions makes their work of preventing HIV, and encouraging HIV testing, more difficult.

Scientists are also getting involved. Dozens of leading Canadian scientific experts on HIV have issued a consensus statement on what the science tells us about the possibility of transmission through various sexual acts. They are concerned that the criminal justice system’s approach to this issue is increasingly out of step with the available science.

Women’s rights advocates and feminist legal scholars are increasingly expressing concern about how using sexual assault to prosecute allegations of HIV nondisclosure is both being driven by HIV stigma (including against women living with HIV), and also risks damaging some important, hard-won protections in sexual assault law.

And thanks to the work of advocates such as the Canadian HIV/AIDS Legal Network, on World AIDS Day 2016, Canada’s federal justice minister made a historic statement publicly recognizing the problem of over-criminalization of HIV, and committing to look at options to address it, including in discussions with provincial governments, scientific experts and communities affected.

For years, advocates have urged provincial attorneys general to use their clear legal authority to adopt sound guidelines for prosecutors, reflecting solid science and a concern for protecting human rights, that would limit, in practice, the cases in which charges are pursued.

Guidelines could help forestall prosecutions in cases where a condom is used, for example, or where a person living with HIV has a low or undetectable viral load, or only had oral sex — because the possibility of transmission in such cases isn’t substantial enough to warrant using the harsh, blunt tool of the criminal law. (These aren’t the only circumstances where there should be no prosecutions, just some obvious examples of what guidelines could address.)

Guidelines could also require prosecutors to ensure that scientific experts are consulted about the actual possibility of transmission, and to have to justify why a prosecution should proceed if the science doesn’t establish a substantial risk.

Guidelines could address important practical issues such as releasing people on bail pending a trial, how prosecutors should avoid contributing to media sensationalism about cases, and sentencing requests by prosecutors in the event of a conviction. This sort of measure has been taken in the United Kingdom, leading to a measurable reduction in prosecutions where they were inappropriate. It should be part of the solution to the problem of overcriminalization in Canada too.

The campaign for prosecutorial guidelines has been particularly focused on Ontario, the worst offender in Canada when it comes to overly broad prosecutions. A loose coalition of HIV organizations and people living with HIV, the Ontario Working Group on Criminal Law and HIV Exposure (of which our organization is a member), has been leading that effort, including putting forward numerous recommendations for prosecutorial guidelines in 2011.

Yet those proposals have been flatly disregarded. Successive attorneys general in Ontario have so far refused to adopt any sound guidelines for prosecutors.

But community activists continue to build pressure. And while discussions continue between the federal, provincial and territorial governments about ways to limit unjust use of the criminal law, we are calling for an immediate moratorium on prosecutions for HIV nondisclosure, except in cases where it is alleged that someone intentionally infected someone with HIV.

Prosecutorial guidelines won’t be a panacea, but they could have a substantial impact in limiting unjust prosecutions. No doubt other measures will be needed as well. We may even need to get the federal government to change the Criminal Code to stop prosecutions for HIV nondisclosure as “sexual assault” and more narrowly define the circumstances in which there may be some criminal offence — a step that needs to be considered and done very carefully, with commitment from the federal justice minister and in consultation with community advocates and legal experts, in order to achieve this desired outcome.

But unless and until we get attorneys general and their prosecutors, as well as the police, to stop laying and prosecuting charges for alleged HIV nondisclosure as widely as they have been doing for the last two decades, the shadow of unjust criminalization will continue to hang over all people living with HIV in Canada.

It will also continue to undermine truly effective HIV prevention efforts, as federal Justice Minister Jody Wilson-Raybould publicly recognized last December. “The over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” she said.

So join the call from the Ontario coalition for a moratorium on prosecutions and for sound prosecutorial guidelines. Add your voice to the growing demands for HIV justice by sending a message to Ontario’s Attorney General Yasir Naqvi.

Help us stop the witch-hunt.

Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network (aidslaw.ca), which works to protect and promote the human rights of people living with HIV and of communities particularly affected by the epidemic.

US: Relying on modern medicine as the basis for reforming HIV criminalization laws overlooks these laws' underlying problems

Focusing on ‘Treatment As Prevention’ for HIV Criminal Law Reform Fails Marginalized Populations

By Victoria Law

From TheBody.com

AUGUST 3, 2017

“There is increasing agreement that risk of HIV transmission from a person living with HIV (PLHIV) who is on antiretroviral therapy (ART) and has a continuously undetectable viral load is effectively zero.”

This statement has been widely acknowledged by people living with HIV and advocates fighting HIV criminalization laws. However, in many states, the legal system has yet to catch up and continues to criminalize and imprison people for years, if not decades, under outdated laws. According to the Centers for Disease Control and Prevention (CDC), 24 states have laws requiring people living with HIV to disclose their status to sexual partners, 14 states have laws requiring them to disclose to needle-sharing partners, and 25 states have laws criminalizing “one or more behaviors that pose a low or negligible risk for HIV transmission.”

In pushing for the repeal — or at least the drastic reform — of these HIV criminalization laws, advocates have pointed to the strides made in modern medicine. The CDC has agreed with this approach, noting, “The majority of laws identified … were passed before studies showed that ART reduces HIV transmission risk[,] and most do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis (PrEP).” Therefore, the CDC has “encouraged states with HIV-specific criminal laws to use its findings to re-examine state laws, assess the laws’ alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes.”

But does reliance on modern medicine merely continue the exclusion and condemnation of those with the least access to health care? And, given the Congress’s efforts to repeal the Affordable Care Act (ACA), what might such reliance mean for those most at risk for losing access to health care?

In July, 10 organizations came out with the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The statement recognizes the strides made by modern medicine but notes that relying solely on prevention through medical treatment overlooks the two underlying problems with HIV criminalization laws: First, current laws focus on a person’s failure to disclose their HIV status rather than their intention to do harm. Second, current laws treat any risk of HIV infection as the equivalent of murder or manslaughter and impose severe sentences.

Sometimes the sentence for HIV exposure or transmission is even more severe than one for murder or manslaughter. This was the case for Michael Johnson, a black college student in Missouri who was convicted of four counts of failing to disclose his HIV status and one count of HIV transmission. Though no one was killed, he was sentenced to 30 years in prison. (In April, the state supreme court upheld Johnson’s right to a new trial, though no new trial date has yet been announced.)

In contrast, Missouri’s sentencing guidelines for voluntary manslaughter call for five to 15 years in prison, and its guidelines for second degree murder call for 10 to 30 years.

Relying medical tools as the basis for reforming HIV criminalization laws overlooks these laws’ underlying problems. If prevention through receiving medical treatment and having an undetectable viral load becomes the basis for reform, prosecutors and the legal system will then have another tool in their arsenal: a person’s inability or failure to access health care. It could also lead policymakers and prosecutors to argue that people living with HIV who are not virally suppressed pose a significant risk to their sexual partners. This ignores the CDC’s findings that, even without treatment and condom use during receptive anal sex (the sex act most likely to result in HIV transmission), the transmission rate is less than 2%, or two in 100.

Furthermore, the focus on viral load and medical treatment detracts from the fact that HIV is now a chronic, manageable disease, similar to type 2 diabetes. “To treat it otherwise by making its transmission a felony with a long sentence reinforces what likely is the most serious source of HIV stigma, discrimination, and violence against PLHIV,” declares the Consensus Statement.

Finally, focusing solely on medical advances continues to ignore the ways in which criminalization targets people who are most marginalized, specifically people of color who lack the resources to access continued treatment. “You cannot talk about one form of criminalization without talking about the others,” Deon Haywood, director of Women With a Vision, told TheBody.com in January 2016. “You can’t talk about HIV criminalization without talking about race, without talking about access and without talking about privilege.”

In Louisiana, where Women With a Vision organizes with low-income African-American women, many of whom are living with HIV, a focus on medical advances doesn’t address the ways in which HIV criminalization has been used a prosecutorial tool. Nia Weeks, Women With a Vision’s policy director, pointed out to TheBody.com that the New Orleans district attorney threatens to upcharge (or increase the criminal charges) or to use the state’s habitual offender laws to coerce people to plead guilty. Weeks, who previously worked as a public defender, described one client who was charged with domestic abuse and battery, including the accusation of a bite. The prosecutor’s office threatened to add the charge of intentional exposure to HIV if Weeks’ client did not plead guilty to the domestic abuse and battery charge. It did not matter that the man that she allegedly bit, her soon-to-be ex-husband, was also HIV positive. What mattered was that, under Louisiana law, if she were convicted of intentional exposure, she would face not only a 10-year prison sentence but also placement for life on the state’s sex offender registry. HIV criminalization is “part of a whole system of forcing pleas to not harm yourself more,” stated Weeks.

Furthermore, a focus on treatment and undetectable viral loads fails to address people’s precarious access to health care, access that may be further undercut as the GOP pushes to repeal or undermine the ACA.

Even with the ACA, Weeks noted, “people can very easily find themselves off the health care system in the blink of an eye.” All it takes is a missed bus or a family emergency that results in a missed Medicaid appointment, she explained. That missed appointment leads to the loss of Medicaid, leading to the loss of access to medications. In other words, health care access is already precarious. Cutting the ACA means that even fewer people will have access to the health care and medications that could make their viral loads undetectable.

“The ultimate goal is decriminalization, period,” declared Weeks. “There’s all the pieces that are helpful and steps forward, but it won’t be done until HIV is decriminalized.”

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at Victorialaw.net.

Published in the Body on August 3, 2017

South Africa: Video from live streaming of 2nd Africa Regional Dialogue on HIV, TB and the law

Live stream: Addressing legal barriers to fast track HIV/TB response in Africa

This is the live stream of the 2nd Africa Regional Dialogue on HIV, TB and the law, on 4 August 2017. It is being streamed from The Balalaika Hotel in Sandton, Johannesburg, South Africa. For more information please visit http://africadialogue.net

US: PJP Update – July 2017

State Advocacy

Release of Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law was developed by ten organizations in response to concerns about the best way to use HIV treatment advances, “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U), in HIV criminal law reform advocacy.

Intended to serve as a resource supporting state advocates working on modernizing local HIV laws, The Consensus Statement on TasP flags ways to avoid inadvertently putting people of color and those without regular treatment access at increased risk of prosecution. The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, the National Association of Criminal Defense Lawyers, the National Center for Transgender Equality, the National LGBTQ Task Force, PFLAG, the Prevention Access Campaign/U=U Campaign, the Treatment Action Group and Women with a Vision are the original endorsers of the statement.

“The groundbreaking science that proves a person living with HIV on effective treatment cannot transmit HIV is changing lives, dismantling stigma, and getting us closer to ending the epidemic. Its usefulness in the context of criminal law reform has raised questions, and this statement provides much needed guidance for using the science in advocacy,” says Bruce Richman, founder of Prevention Access Campaign “Undetectable = Untransmittable”, an originating statement endorser.

The power and reach of this advocacy tool is reflected by the quickly growing list of nearly 50 organizations and individuals that have endorsed the statement since its release two weeks ago, including Equality Alabama, Georgia Equality, HIV Modernization Movement – Indiana, the San Francisco AIDS Foundation and more.

Join us by endorsing the statement and spreading the word about this movement for clear guidance on how the science of HIV treatment and prevention relates to the reform of HIV criminal laws. Visit www.hivtaspcrimlaw.org for an FAQ, resources and a list of endorsing individuals and organizations.

State Advocacy Working Group Updates

CALIFORNIA

On May 31, SB 239—proposed legislation to modernize California HIV criminal laws—passed out of the California Senate and was referred to the California Assembly. The bill successfully made it through the Public Safety and Health Committees in the California Assembly, and will likely be heard in Assembly Appropriations in August. The most current version of the bill can be found here. Members of Californians for HIV Criminalization Reform are currently organizing in-district meets with members of the Assembly to advocate for the bill’s passage. The bill is a vast improvement over current law, in particular eliminating the felony punishment of sex workers arrested for solicitation while living with HIV and retroactively vacating felony convictions of sex workers previously convicted under this section of California law.

The bill has undergone changes as it has progressed through different committees, including the addition of a “reckless exposure” provision, which makes engagement in “particularized conduct that poses a substantial risk of transmission of an infectious or communicable disease” in violation of health officer instructions a misdemeanor. The conduct must occur within 96 hours of the instruction in order to be a violation and the provision is only applicable in “circumstances that make securing a quarantine or health officer order infeasible.” Given the lack of an intent requirement and terminology that remains vague or undefined, it is hoped this “reckless exposure” provision can be further narrowed to ensure it is not applied to already-marginalized populations, such as undocumented immigrants and sex workers.

If your organization is interested in supporting modernization of California’s HIV criminal laws, we invite you to join Californians for HIV Criminalization Reform (eqca.org/chcr). Please contact brad@eqca.org or 323-848-9801 for additional information.

GEORGIA

In conjunction with National HIV Testing Day on June 27, the Georgia Coalition to End HIV Criminalization sent an open letter introducing itself to AIDS Service Organizations (ASOs) throughout the state and encouraged them to contact coalition members for HIV criminalization trainings.

Members of the coalition convened in June and July, and have been in discussion with the Williams Institute on HIV criminalization research in Georgia.

Coalition members continue to monitor developments around House Resolution 240, which formed a committee tasked with examining barriers to health care for Georgians with chronic health conditions, including HIV. The resolution requires the committee to “[a]ssess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose.”

Meetings are held the first Thursday of the month from 4:00-6:00pm (ET) 

If you are interested in joining the Georgia Coalition to End HIV Criminalization, please contact Emily Brown (emily@georgiaequality.org) and visit the coalition’s coalition’s website for additional information.

LOUISIANA

In June, the coalition finalized its official name: Louisiana Coalition on Criminalization and Health (LCCH). The group is forming working groups focused on Education, Partnerships, Administrative, Legal/Policy, etc., to engage in more structured efforts to advance the LCCH’s goals of modernization in the state. The group is also working on mounting a rapid response to a recent prosecution in New Orleans. The case involves a man who allegedly spit at police officers, which is currently punishable by up to 11 years of incarceration under Louisiana state law.

Meetings are held on the second Wednesday of the month at 11:00am (CT).

If you are interested in information about HIV criminalization or actively participating in LCCH, please contact Chip Eakins at ceakins@philadelphiacenter.org.

MISSOURI

Missouri HIV Justice Coalition held community roundtables on July 18 and 20 in St. Louis and Kansas City to identify the perspectives and priorities of those who are most severely affected by Missouri’s HIV criminal law.

On August 5 and 6, the coalition is hosting a train-the-trainer event in cooperation with the Sero Project in Springfield.

Meetings are held on the fourth Friday of the month at 1:00pm (CT) via conference call.

If you are interested in becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at ashley@empowermissouri.org, and visit the coalition’s website for additional information.

OHIO

On July 8, Ohio advocates held a community forum in Columbus, with support from the Positive Justice Project. The event included more than 50 attendees from across the state, many of whom were new to the issue of the HIV criminalization. The first half of the day provided an overview of Ohio’s HIV criminal law, as well as recent efforts relating to Batista and Ohio’s Criminal Justice Recodification Committee. The second half of the day was a participatory workshop where attendees worked together in breakout groups to map a strategy moving forward.

In June, the Ohio Criminal Justice Recodification Committee released its final recommendations to the state legislature. The recommendations can be found here. In brief, the proposal would remove HIV non-disclosure from Ohio’s felonious assault law, and create a new offense entitled “Dangerous Sexual Activity,” which would contain the following provisions: 1) intentional transmission of HIV by any means would be punished as a 2nd degree felony 2) non-disclosure of HIV status and sexual activity resulting in transmission would be punished as a 2nd degree felony and; 3) non-disclosure of HIV status and not taking “reasonable precautions” (ART or condom use) prior to sexual activity would be punished as a 1st degree misdemeanor. Refer to page 57 in the link for details. Coalition members wrote a letter to the Recodification Committee opposing a similar proposal in December 2016. That letter can be found here.

Meetings are the second Wednesday of the month at 5:00pm (ET). 

If you would like information on HIV Criminalization or are interested in becoming an advocate with the Ohio HIV Criminalization Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.

TENNESSEE

The PJP Tennessee Working Group convened in June and July and reviewed updates from recent legislative advocacy efforts. This summer advocates are fine-tuning their legislative strategy, working on a rapid response plan and opportunities for prosecutorial and public defender education.

Meetings are held on the fourth Thursday of the month at 1:00pm (CT).

If you would like information on HIV criminalization or are interested in becoming an advocate with the PJP TN Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.

TEXAS

Advocates are planning an HIV Criminalization 101 webinar in August to introduce new members to the basics of this advocacy work. The group convened in June and added many new members to their coalition.

Meetings are held on the third Thursday of the month at 6:00pm (CT).

If you are interested in information about HIV criminalization or actively participating in the Texas HIV Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.

Criminal Case Update

CHLP’s assistance in criminal cases includes counseling defendants and their families, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.

MISSOURI

In April, the Missouri Supreme Court upheld the Court of Appeals’ decision overturning Michael Johnson’s conviction and remanding his case for a new trial. The case is back in the 11th Judicial Circuit Criminal Court, St. Charles County, Missouri. The trial has not started, as the case is in a preliminary stage. The next court date is August 28, 2017.

NEW YORK

On June 19, the U.S. Supreme Court denied Nushawn Williams’ request that it review the decision to indefinitely civilly commit him to a New York State Psychiatric Center as a dangerous sex offender based on his sexual activity while living with HIV. CHLP, along with other organizations and individuals, had filed a brief in support of Williams, arguing that his case was the only one in New York in which an individual was essentially isolated or quarantined based on his HIV status, in violation of his Constitutional rights and federal disability protections. His attorneys are analyzing next steps in his case.

OHIO

On May 17, the Supreme Court of Ohio heard oral arguments in Orlando Batista’s case. Batista was indicted for felonious assault in July 2014 for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status. After the trial court rejected his motion to dismiss, Batista pleaded no contest and the court sentenced him to the maximum term of eight years. CHLP, with support from the Gibbons P.C. law firm and the Ohio Public Defender, along with seven Ohio-based and national organizations, submitted a friend-of-the-court brief in support of Batista to the Supreme Court of Ohio. The ACLU of Ohio Foundation and Center for Constitutional Rights submitted a separate friend-of-the-court brief based on First Amendment grounds. No ruling has been issued to date.

If you are aware of anyone charged in an HIV exposure or transmission case, please refer them to our website, www.hivlawandpolicy.org and/or have them or their lawyer, contact CHLP for assistance at 212-430-6733 or pjp@hivlawandpolicy.org.

Join PJP and Take Action!

Jamaica: Ricky Pascoe, president of the Jamaican Network of Seropositives, shares his views on the Criminalisation of HIV Transmission in light of recent conversations in Jamaica

Every now and then, the conversation around the criminalisation of HIV and STI transmission is brought up. It was recently raised in a sitting of the joint select committee reviewing the Sexual Offences Act and other related acts. It was raised by representatives of the Office of the Director of Public Prosecutions (ODPP) who, while not recommending the specific criminalisation of transmission of HIV and STIs, highlighted the case of George Flowers and the complexities that arose from it.

George Flowers, a man living with HIV, knowing himself to be living with HIV, had unprotected sexual intercourse with several women who subsequently contracted the virus from him. This occurred in Canada and he subsequently came to Jamaica. An extradition request by Canadian authorities was challenged on the basis that Jamaica did not have similar laws criminalising endangering the lives of a person through transmission of sexually transmitted infections.

The Supreme Court ruled that Jamaica did have similar laws based on persuasive case law (R v Dica; R v Konzani) from Britain, which identified the reckless or intentional transmission of HIV and other STIs as amounting to assault occasioning bodily harm, which is captured in the Offences Against the Person Act. The ODPP representatives questioned whether the state of the law needed to be codified into legislation which specifically criminalised HIV transmission.

While we understand the need to prevent the transmission of HIV and the importance of holding those who, by their wilful or reckless actions, put others at risk for harm accountable, the question is whether the specific criminalisation of HIV transmission is the route to do this. Specific transmission raises several issues that I will discuss below.

Positive Status

First, as with all criminal offences, the crime of wilful or reckless transmission has a mental element. In this case, a person ought to know they have HIV and knowingly have sexual intercourse with another person whom they have not told about their positive status.

The only way to know that one has HIV is by doing an HIV test. A valid defence is that a person did not know his/her HIV status. Laws that specifically criminalise HIV transmission, therefore, can have the unintended effect of dissuading persons from getting tested and, by extension, knowing and managing their HIV status.

Second, these laws shift the burden of protecting oneself from contracting HIV to the person who is living with HIV. Consistent with the Ministry of Health, we would like to emphasise that it is the responsibility of each consenting adult to protect himself/herself from contracting HIV by engaging in safe sex consistently. Rather than emphasising that point, these laws require persons living with HIV (PLHIV) to disclose their status in the face of societal stigma and discrimination.

Jamaica’s current state of the law is consistent with international human-rights standards that balance the right to life, liberty and security of the person on one hand and the right to privacy and freedom from discrimination on the other.

Wilful and reckless transmission of HIV is covered under general criminal laws related to assault and wounding, i.e., where a person actually infects another with HIV or any other STI, knowing one was so affected and intentionally or recklessly putting the other person at risk, one is criminally liable. This focuses on the fact of transmission, and not the fact of a PLHIV having sex with another person.

Current Realities

My organisation, the Jamaican Network of Seropositives (JN+), strongly feels that any attempt to codify the principles arising out of Dica and Konzani should be cognisant of current realities around HIV transmission and prevention.

Such legal provisions should not criminalise a PLHIV who is virally suppressed for having sex with someone who is HIV negative without sharing his/her status. The legal provisions should specifically relate to wilfully or recklessly having unprotected sex with another person, which leads to transmission. Persons should not be criminalised for condoms ripping and similar occurrences. The legal provisions should not criminalise the transmission of HIV and other sexually transmitted infections.

We reiterate that conversations regarding HIV transmission should be cognisant of the experiences of people living with HIV. They should be mindful of furthering the stigma and discrimination that PLHIV face by inadvertently painting them as vectors of the disease. Rather, they should be mindful of the relevant nuances as they seek to protect and promote the rights of all.

– Ricky Pascoe is president of the Jamaican Network of Seropositives. Email feedback to columns@gleanerjm.com and jnpluscommunications

 

US: PWN-USA gives an overview of HIV criminalisation and its impacts

HIV Criminalization: A Concept That Has to Be Talked About

by Emili Ema Sedlar

The topic of HIV is an issue many people are uneducated in, especially when bringing up different complex fragments that are connected with HIV and how they influence the lives of people living with HIV.  Unfortunately, most people today lack knowledge, understanding and curiosity in the basic information on HIV, thus many don’t know how understand how laws and policies impact people living with HIV. This is where the issue of HIV criminalization comes in–a topic that many, unfortunately, don’t think about these days, since many don’t know it exists or do not understand its impacts. But it has become one of the most crucial issues for HIV/AIDS activists today.

According to the Center for HIV Law and Policy, in 36 US states, people living with HIV have been arrested, accused and prosecuted against for having consensual sex, biting and spitting. In addition to this, since 2008, there have been more than 260 cases reported of HIV criminalization under states in which there are HIV specific laws and in states where there were broad terms for bodily fluids or sex work. Because of these gruesome and unjust laws, people living with HIV are a specific target, living in fear and stigmatized for their status. Also, many people are illiterate about these prejudiced laws, which break the basic principles of human rights and instead of asking questions; many ignore the issue of HIV criminalization that is present in their country. This kind of mentality has to be stop, and an open educational and informational dialogue has to begin.

Unfairness in the justice system

Monique Howell is a veteran who served in the US army. She is now a stay-at-home mom of three boys and a motivational speaker. “I have been criminalized for living with HIV for nondisclosure by having unprotected sex with another soldier. I was put on trial. The other soldier did not get the virus,” Howell explained.

Furthermore, Howell described that if convicted, she was looking at 8 to 12 years. “They moved me out of my house and into a single soldier barracks where I was monitored day in and out while on trial. They ended up dropping all my charges and released me out the military,” Howell further illustrated.

Howell knows many others fighting today against HIV criminalization and pointed out how this is a long, challenging road to bringing justice to many today who are accused of criminal acts for living normal lives with HIV. “The SERO Project has been working countless hours trying to make these laws accurate and up to date. Not only the SERO Project, but others have started campaigns and partner up, including PWN-USA with the SERO Project, to come together with ideas on how we can continue to head in the right direction with HIV criminalization,” she finally added.

Hope to Educate About HIV Criminalization

Toward the end of the conversation, Howell depicted how she still has hope of creating a society in which people will be educated about HIV and changing the laws that stigmatize and create fears for those living with HIV. “My hopes is that we are treated fairly and not treated based off society’s ignorance. We must educate one another.”

Ken Pinkela was in the US army for 29 years. He is currently working with the SERO Project as the Military Policy Director and runs communications/social media for the project. Pinkela was falsely accused and prosecuted for HIV exposure by an Army Lieutenant. “With no investigation or evidence of any kind (physical or medical), I was courtmartialed and convicted of then an aggrevated assault (which was later dropped to assault and battery via an important US Air Force HIV case).”

The US military does not have authorization nor do they have a congressinally authorized charge related to anything HIV, Pinkela revealed. Pinkela emphasized how he has received unfair and unjust treatment from the Army, in which he was stopped from being deployed and having overseas assignments. Even though there has been slow progress in the military, the changes have still been valuable; one of them is the US Air Force case, “US vs. Gutierrez,” in which the court has recognized the benefits of advanced medicine and science. However, even though this kind of recognition exists, there are issues that still negatively impact service members who are HIV positive.

“HIV positive service members are singled out and given an order that is known as the Safe Sex Order, which threatens that any sexual contact with or without a condom is subject to prosecution, even if the service member discloses their HIV status,” clarified Pinkela.

Moreover, Pinkela illustrated how service memebers living with HIV are seen as sexual deviants; thus there is a big gap between those who are HIV negative and those who are positive. In the end, Pinkela described how he hopes that the HIV Discrimination Act will be passed. Just this year in March, the bill (HR 1739) was re-introduced in the US House of Representatives.

Perspectives from advocates and activists

In the last couple of years, there has been significant progress and work into modernizing HIV specific laws. For example, in 2016, Colorado modernized their STI codes, which included the repeal of HIV specific status. Their coalition effort was spearheaded by Positive Women’s Network – USA Colorado.

In 2014, Iowa modernized their HIV specific laws. Tami Haught is one of the activists who helped change those laws, where she led community forums to educate communities, lobby legislators and organized CHAINS’s state lobby day. This kind of initiative started way back in 2004 and was active in 2009, when many activists and advocates gathered and realized they needed to bring a change.

Currently, Haught is the SERO Project’s Organizing and Training Coordination and is helping and supporting different states to modernizes their HIV specific status. Haught explained that one of the greatest issues of HIV criminalization is the lack of knowledge about this problematic issue. “People living with HIV are generally aware of these laws. The general public is very unaware about basic HIV facts. People are still unaware of how HIV is transmitted so a lot of misinformation is still available to people.”

Haught described that with HIV criminalization can come another horrific factor that deeply impacts a person’s life: sex offender registration. One of the worst case scenarios of an HIV criminalization case came from Iowa. “One-time sexual encounter, protection was used, person living with HIV was medically adherent ad virally suppressed, so there was no exposure to HIV–zero risk of harm. However, Iowa’s law was a disclosure law, the person living with HIV was unable to prove disclosure, so he was charged, convicted, and sentenced to 25 years of jail and lifetime sex offender status. This was consensual sex between two adults,” explained Haught.

However, the judge reconsidered his case and he was released from prison. Once the law was modernized in 2014, people accused of HIV criminalization were removed from the sex offender registry list.

Everyone matters to us

Haught explained how today, the SERO Project is doing everything they can to help not only modernize the laws, but to help people  impacted by HIV criminalization laws. They have their own Survivor’s Network which offers different programs to support those who need the most. “Cindy Stine communicates with people and runs the Christmas Card project to send greeting to people currently incarcerated to let them know they matter and are not forgotten, offering hope and hopefully comfort to a group of people other would ignore or throw away. Everyone matters to us,” said Haught.

Kamaria Laffrey is currently fighting against HIV criminalization as the Florida Community Organizer for The SERO Project. Laffrey mentioned how more and more people today are aware of the problematic issue of HIV criminalization, since there are many networks collaborating together in the fight against HIV criminalization. “The SERO Project, PWN, The Center for HIV Law & Policy, HIV Justice Worldwide and many others are instrumental in building skills for advocates to go into their communities and educate other people living with HIV, public health experts, legislators, law enforcement entities, and even trauma center response facilities,” explained Laffrey.

However, Laffrey also revealed the situation in Florida when it comes to HIV criminalization. “The laws in Florida were passed in 1986. Between the years of 1988-2016, Florida has convicted 99 people under HIV criminalization laws. These laws differ by region, demonstrating differences in behavior, prosecutor attitudes or local political culture. Of those 99 cases, 53 of them were women. As of 2014, women accounted for 28% of all people living with HIV; however made up 54% of those convicted under the laws,” explained Laffrey.

A future to collaborate with different activists

Laffrey’s future plan is to help out people that are victims of HIV criminalization; she will organize and collaborate with different networks working to eradicate HIV criminalization laws. “I personally plan to continue to conduct the workshop Be the Change You Seek: Engaging in a Resistant Community to challenge people to understand that the vagueness of our laws is intentional, and that we don’t have to accept them just because they are on the books when they are used to wrongfully prosecute a group of people,” explained Laffrey.

In the same way, one of her greatest hopes for other activists and advocates is to fight for education, so that people will become more aware and conscious about the unfairness of HIV criminalization laws and the way they impact people’s lives. That way, people will be able to fight together to change these outdated, discriminatory laws.

Global Commission on HIV and the Law and partners urge governments to promote progressive legislation based on science and human rights

Evidence- and rights- based laws and policies are key to ending AIDS

On the five-year anniversary of the Global Commission on HIV and the Law’s groundbreaking report, former members of the Commission and partners commend 88 countries for advancing the report’s recommendations and urge other countries to enact progressive legislation and protect human rights

NEW YORK – Five years ago, a landmark report published by the Global Commission on HIV and the Law urged governments to promote laws and policies grounded in evidence and human rights in order to turn the tide against AIDS. This week, members of the Commission and representatives of UN Member States, civil society, academia and international organizations came together to assess the progress made in advancing the report’s recommendations, look at the barriers that remain and discuss opportunities for further progress.

The Commission – comprised of former heads of state, human rights, public health and legal experts – released a report that has led a multi-year effort to ensure that national laws, policies and practices that impede the AIDS response are overturned.  Laws that stigmatize people living with and vulnerable to HIV perpetuate discrimination and block people from seeking health services and undermining public health goals.

“HIV is still one of the deadliest diseases in the world and it’s unforgivable that national governments have failed to address legislation that fuels the AIDS pandemic,” said former Commissioner Michael Kirby, a former Justice of the High Court of Australia. “Laws that criminalize HIV are anti-science, unjust and unconstructive.”

It’s not all bad news – the Commission also pointed out several success stories, noting that legislation based on science and human rights has helped advance the global commitment in the Sustainable Development Goals to end HIV for good and leave no one behind. Today, there’s still reason to be optimistic.

“It is time for countries to think proactively about designing laws and policies that will help end the HIV epidemic,” said former Commissioner Bience Gawanas, a lawyer and human rights expert. “We’ve seen that some countries, including Ghana and Mozambique, have been able to improve HIV responses by adopting more progressive policies. If we’re going to defeat HIV, other countries need to do the same.”

Since the release of the Commission’s report, the United Nations Development Programme (UNDP) and its partners have helped advance the report’s recommendations in 88 countries. Several countries have conducted comprehensive assessments of laws, policies and practices affecting people with HIV and have changed legislation as a result. National conversations on the rights of people living with and vulnerable to HIV have led countries to reform discriminatory practices against people living with HIV. Judges, civil society organizations and partners have been instrumental in helping to overturn discriminatory legislation and counter HIV stigma.

The Commission’s recommendations contributed to several success stories over the last five years. These include:

  • After analyzing its laws and legal practices around HIV, health and human rights, Mozambique revised its laws on criminalizing unintentional HIV transmission.
  • In Pakistan, protections for people living with HIV were included in the Sindh Province HIV/AIDS Control Treatment and Protection Act.
  • Seychelles decriminalized consensual same-sex relationships.
  • A national dialogue in Peru highlighted the need for a gender identity law, which spurred the development of a draft Gender Identity Bill that was presented to the National Assembly in December 2016.
  • The High Court of Botswana ruled that foreign prisoners living with HIV are entitled to receive life-saving antiretroviral treatment.
  • In Ghana, partners developed a stigma   and discrimination reporting system that allows key populations, including people living with HIV, to file formal complaints about human rights abuses and seek redress.

“Equality, inclusion and non-discrimination are at the heart of the 2030 Agenda for Sustainable Development,” said Achim Steiner, UNDP Administrator. “Laws and policies that protect rather than punish, combined with programmes that reduce stigma and discrimination, exist and need to be scaled up if we are to achieve our goal of ending the AIDS epidemic by 2030.”

By replacing legal practices rooted in stigma with legislation based on science, these countries are among the frontrunners taking steps to protect the human rights of people living with and affected by HIV.

“It’s incredible to see the progress that some countries have made over the past five years,” said Michel Sidibé, Executive Director of UNAIDS. “They’ve taken important strides to protect the rights of women and people living with and vulnerable to HIV.”

These countries have shown us that laws and policies grounded in evidence and human rights, combined with programs that reduce stigma and discrimination, can help accelerate progress to end the AIDS epidemic by 2030.

About the Global Commission on HIV and the Law:

The Global Commission on HIV and the Law was launched in June 2010 by UNDP on behalf of the Joint UN Programme on HIV/AIDS (UNAIDS) to provide global leadership on HIV-related legal and human rights issues by analyzing what is known about the interactions between the legal environments, human rights and HIV; fostering evidence-informed public dialogue on the need for rights-based law and policy in the context of HIV; and identifying clear and actionable recommendations with a concrete plan for follow-up.  (www.hivlawcommission.org)

Contact informationSangita Khadka, Communications Specialist, UNDP Bureau for Policy and Programme Support, email: sangita.khadka@undp.org tel: +1 212 906 5043

Apply now for the first European HIV Academy for Enabling Legal Environments, September 13-14, Berlin

A call for applications for the European HIV Academy for Enabling Legal Environments is now open.

This two-day training academy for people living with and affected by HIV, is dedicated to skills building for addressing punitive or disabling legal environments.

Around 25 participants from across Europe will be selected to take part in this training academy, which will focus on three intersectional legal barriers affecting people living with, and affected by, HIV:

  • legal and regulatory barriers that impact access to HIV testing;
  • legal barriers affecting access to healthcare of migrants in an irregular situation; and
  • criminalisation of HIV non-disclosure, potential or perceived exposure, and/or transmission.

The training academy is organised in collaboration with Deutsche AIDS Hilfe (DAH) – the host organisation of AIDS Action Europe (AAE) – the European AIDS Treatment Group (EATG), Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN).

When: 13-14 September 2017

Where: Deutsche AIDS Hilfe, Berlin, Germany

Apply here: https://www.surveymonkey.com/r/WZRFV35

Applications close Wednesday July 26th (23:59 CET)

The objectives of the training academy are:

  1. To increase awareness and understanding of the many legal barriers to health, dignity, and HIV prevention for people living with, and affected by, HIV.
  2. To increase skills and capacity of people living with and affected by HIV by using new tools created by each of the Academy partners in order to challenge punitive or disabling legal environments at the country-level across Europe.
  3. To develop stronger relationships and networks within Europe in order to facilitate skills-sharing and support amongst people working on HIV-related legal and policy reform across the region.
  4. To catalyse co-ordination and strengthen community voices from across Europe on the road to AIDS 2018 and beyond.

Format

The training academy is organised in a workshop format with presentations and group work. The trainers are leading experts in the field from the organising bodies and their networks. The entire training will be in English; no translation will be provided.

Participant criteria

People working on improving HIV-related legal and policy environments in any of the 53 countries in the WHO Europe region are welcome to apply.  Participants will be scored based on country needs-assessment, fluency in English and links to local and national networks.

Only complete applications submitted via the online form will be accepted.

Scholarships

Some scholarships are available to cover all costs including flights and accommodation, or flights or accommodation only. If you wish to apply to a scholarship, please indicate this on the application form. Please note that all meals are provided to all participants.

To apply please fill in this application form (2 pages/steps) by Wednesday July 26th (23:59 CET)

 

Canada: The recent conviction of a woman living with HIV exemplifies the injustices of the current use of sexual assault laws against people living with HIV

When will justice department announce new approach to prosecuting cases of HIV non-disclosure?

Critics say that recent conviction of Indigenous woman is further proof that the use of sexual assault laws in cases of HIV non-disclosure continue to criminalize marginalized people and women of colour.

BY 

An Indigenous woman with HIV has had her appeal on an aggravated sexual assault conviction dismissed by the Manitoba Court of Appeal. The decision handed down on June 29 comes as a blow to the growing movement of lawyers and human rights advocates pushing to change laws that they say criminalize people with HIV, in particular vulnerable women.

Activists have been calling for a moratorium on all new prosecutions of HIV-non-disclosure cases.

The woman convicted in the most recent case is pregnant. She will serve nine months in a Manitoba prison. (NOW Magazine has decided not to publish her name out of respect for her privacy.)

She was convicted in 2014 for failing to disclose her HIV status to a friend she had unprotected sex with three times. They had both been drinking on each occasion. The friend later tested positive for HIV, but it’s not clear if he contracted the condition from the woman. It was never proven in court.

Testimony at her trial also revealed the woman’s own history of intergenerational sexual violence and her belief she had contracted HIV through coerced sex. But the appeal court decision did not take any of that into consideration as mitigating factors.

“Everyone is very shocked and saddened,” says Laverne Gervais, Project Coordinator of Sisters of Fire at Ka Ni Kanichihk, a support group for Indigenous women living with HIV attended regularly by the woman. “She did everything that the law wants people to do, she attended programming, bettering herself, and was working on starting a new family with her committed boyfriend.”

The conviction is considered by critics to exemplify the injustices of the current use of sexual assault laws against people living with HIV, including the stigma still attached to the condition even though it is now considered a chronic and manageable condition that can be rendered undetectable after treatment.

The trial and appeal had been widely publicized in sensational articles. The woman’s high school graduation photo was leaked to the media shortly after her arrest.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, says the fact she is HIV-positive completely changed how she was viewed by the court. “The judge presumptively saw her as a sexual assailant.”

The judge who presided over her original trial, Justice Colleen Suche, noted in her decision that the woman’s behaviour was not predatory “or part of a pattern of dangerous behaviour. Rather, her silence [in not disclosing her HIV status] was the result of fear” – namely, as a result of her own history of sexual abuse.

However, Suche instructed the jury to disregard testimony related to her intoxication.

Says Elliott: “Had she been HIV-negative, her intoxication would have been relevant in her ability to consent or not to the sex. But it was not understood as relevant in her ability to disclose her HIV status. The distinction is biased. This is clearly not a sexual assault, and the application of that law in this case does a disservice to those laws.”

It was alleged by the Crown that the accused may have transmitted HIV to her friend, but Suche indicated in her decision that “the question was not relevant” and, therefore, not before the jury. There was also no HIV phylogenetic analysis done, a test to determine if the same strain of HIV was transmitted from one person to another. The woman reportedly gave him a condom during one of the sexual encounters but he didn’t use it.

Due to the conviction on aggravated sexual assault, she is now a registered sex offender. She was allowed to volunteer at her daughter’s daycare program, but will now be barred from doing similar volunteer work because of her conviction.

She faces a challenging time in jail. People incarcerated for sexual assault because of HIV non-disclosure face stigma, discrimination and violence behind bars. They are often housed in protective custody as a result, which can mean being held in administrative segregation 24/7.

On World AIDS Day December 1, 2016, the Federal Minister of Justice Jody Wilson-Raybould promised “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Wilson-Raybould also acknowledged in her statement that the Canadian criminal justice system “must adapt to better reflect the current scientific evidence on the realities of this disease.”

But the hoped-for immediate moratorium on new HIV non-disclosure cases that activists have been lobbying for is not happening. And a new approach to prosecuting such cases is now not expected until the fall.

Until then, the law will continue to be applied in ways, critics say, that create more vulnerability and insecurity for already marginalized people in society, especially women of colour.

“We can’t be living in fear of the criminal law any longer,” says Jeff Potts, of the Canadian Positive People Network, a national organization representing people living with HIV.  “HIV is not a crime.”