Canada: Community organisations in Ontario call for an immediate moratorium on all prosecutions and sound prosecutorial guidelines

Stop the witch-hunt of HIV criminalization

People living with HIV are being charged with some of the most serious offences in our criminal law, even in situations where there has been no transmission of HIV, no realistic possibility of transmission, and no intent to transmit.

Witch-hunts aren’t always sudden social paroxysms. They can be pursued slowly and with a veneer of legality — a steady erosion of rights and decency tapping into, and reinforcing deep-rooted fear, stigma and prejudice. Their harm isn’t limited solely to the injustices meted out to those directly targeted; they cast a broader shadow over entire communities.

It’s what’s happening here, courtesy of the provincial Ministry of the Attorney General that has so far refused to recognize both science and human rights when it comes to prosecutions for alleged nondisclosure of HIV.

People living with HIV are being charged with some of the most serious offences in our criminal law (such as “aggravated sexual assault”), even in situations where there has been no transmission of HIV, no realistic possibility of transmission, and no intent to transmit.

Simply put, they are being criminalized for having HIV, caught up in a justice system, from policing to prosecution to prison, that too often disregards evidence and the public interest.

(After the recent incident involving a Toronto police officer talking nonsense about how “AIDS” can be transmitted, it’s clear there is much work to be done on the policing front, too. Scientific consensus is that there is zero risk of HIV transmission through spit and a vanishingly minuscule possibility of transmission through a bite. At least scientifically speaking, we’re not in 1984.)

For many years, a group of committed people living with HIV, lawyers, academics and other advocates has called on the attorney general to put an end to this overly broad use of the criminal law.

In particular, this coalition has urged the adoption of sound guidelines for prosecutors to appropriately limit the use of criminal charges. Repeatedly, it has denounced problematic prosecutions that continue in Ontario — prosecutions accompanied by media coverage that, according to a recent study, disproportionately features black and/or immigrant men and often reflects racist stereotypes. Repeatedly, the coalition has suggested remedies for this ongoing injustice, drawing on a province-wide consultation.

But successive attorneys general have been unable or unwilling to rein in overzealous prosecutors, and have failed to develop prosecutorial guidance in line with science and numerous international recommendations.

As it stands, a so-called “HIV experts group” of crown prosecutors within the ministry now runs this horrible show in Ontario, leading the charge against people living with HIV. From the outside, we don’t know the group’s composition or how they make their decisions to pursue a particular prosecution.

Community organizations have requested a meeting. So, too, have scientific experts — who have pointed out that a correctly used latex condom is 100 per cent effective in blocking passage of HIV, as well as the science now establishing that someone with an undetectable viral load (including as a result of effective treatment with anti-HIV drugs) is effectively non-infectious. Yet this group of “HIV expert” prosecutors has not responded.

However, recent reports in the Star revealed an infamous guide for prosecuting cases of HIV nondisclosure, developed by Hamilton crown attorney Karen Shea — who has played an active role in advancing such cases around the province — for use by other prosecutors. (The government was ordered to release this document after years of wrangling in court.)

A Ministry spokesperson admitted the guide takes a “prosecution at all costs” approach and “doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”

It is therefore no surprise that we continue to see the misuse of charges of aggravated sexual assault, a criminal offence usually reserved for the most violent rapes, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

Such prosecutions damage individual lives and public health. As stated last month by Canada’s federal justice minister, “… the over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Enough is enough. Attorney General Yasir Naqvi — and Premier Wynne herself, who expressed her concern to us in-person three years ago — must stop this witch-hunt. More than 500 letters of concern have, as of this week, been sent to both by outraged community members.

We need an immediate moratorium on all prosecutions (except in those very rare cases of intentional transmission), and we need sound prosecutorial guidelines that respect science and human rights.

Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network, a member of the Ontario Working Group on Criminal Law and HIV Exposure. Stephen Lewis is board chair of the Stephen Lewis Foundation and co-director of AIDS-Free World, an international advocacy organization.

Published in The Star on February 8, 2017

US: Please help raise $20,000 to support Michael Johnson's appeal.

Justice for Michael L. Johnson

Michael L. Johnson now sits in prison under a law that hurts many and helps no one. With your help, he could be free in a matter of months.

Everyone ought to have the right to a fair trial. A toxic mix of racial bias, homophobia and income inequality made that impossible for Michael L. Johnson. With your help, he may have another chance at justice.

In the fall of 2013, Michael Johnson was living his dream. He was a student-athlete at Lindenwood University where he was a respected collegiate wrestler. He aspired to one day compete in the Olympics. But Michael’s dreams were shattered in October 2013, when he was arrested for being a sexually active black gay man living with HIV. In May 2015, under the unfair and unjust HIV criminalization laws in the state of Missouri, Michael was found guilty and sentenced to 30 ½ years.

Remarkably, in December 2016, the Missouri Court of Appeals, Eastern District, reversed his conviction based on the prosecution’s failure to turn over important evidence in a timely fashion. But Michael is not out of the woods yet. In order for Michael to have a chance to get his life back, he needs the best legal counsel available at the new trial that will take place sometime soon. This is where your help Is needed.

Michael urgently needs an attorney that can defend him and give him a shot at true justice. In order to give Michael that chance, we need to raise $20,000 in 20 days. This money will be used to hire a private attorney that has the experience, background, and passion to help Michael fight the HIV criminalization laws in Missouri.

A new trial date has not yet been set – but time is of the essence! Michael needs experienced counsel immediately.

Any amount of money will help – if we all pull together, we can reach this goal and give Michael Johnson a new lease on life. Please share his story and help support his quest for freedom.

———————————————————————————————————

We are advocates, organizers, and community members committed to working toward the freedom of Michael L. Johnson, a young black gay student, respected college athlete, and aspiring olympic wrestler before he was arrested under Missouri’s unjust HIV criminalization law.

Philippines: Under Philippine law, non-disclosure of HIV could be ground for annulment of marriage but not criminal liability, says Legal Advocacy Center's Director

Concealing HIV-Aids ground for annulment

The concealment of Human Immunodeficiency Virus-Acquired Immune Deficiency Syndrome (HIV-Aids) status could be a ground for annulment of marriage although no criminal liability will be imposed, a lawyer said. Ateneo Public Interest and Legal Advocacy Center (Apila) director Romeo Cabarde Jr. said on Friday, February 3, during the Consultation and Harmonization Meeting with Partners at Brokenshire Hospital, Davao City, that under the Republic Act 8504 (Philippine Aids Prevention and Control Act of 1998) that no legal cases will be charged if an infected person opted to hide his or her status.

But, under Section 34 that “any person with HIV is obliged to disclose his or her HIV status and health condition to his or her spouse or sexual partner at the earliest opportune time.” He made the statement after one participant raised a question during the open forum whether not revealing intentionally to his or her spouse that he or she has HIV-Aids could have legal consequences considering the serious implication, known to have no cure yet, when transmitted through sexual intercourse. The lawyer said that according to the Family Code of the Philippines, a marriage may be annulled if the consent of either party was obtained by fraud. Under Article 46, that any of the following circumstances shall constitute fraud referred concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage. Thus, Cabarde urged health advocates during the event to be cautious and keep the confidentiality of individuals who are positive with the disease and provide the full protection of his or her human rights and civil liberties in accordance with the law. If someone disclosed their patient’s status without permission, they could face charges and penalties for breaching the medical confidentiality of the person infected with HIV-Aids. Instead of leading the person’s admission, he said that the health advocates should instead encourage those infected to divulge their status themselves. “As an advocate, that’s the best thing we can do hindi natin pangunahan na i-reveal (spearhead the revelation) without their consent because we will have a criminal liability,” Cabarde said. Cabarde added the agency will strengthen their awareness campaign and counselling once the infected person announce that he or she is ready to disclose and further assist their partners on how they would deal with the revelation.

Published in SunStar on February 4th, 2017

European AIDS Treatment Group interviews Edwin J Bernard of the HIV Justice Network about their work so far, and what lays ahead.

Canada: Prosecuting HIV: Is it a crime to have sex without disclosing? Public Roundtable in Toronto – Ontario on Feb 3, 2017

Public Roundtable on February 3, 2017 – Prosecuting HIV: Is it a crime to have sex without disclosing?

Posted on January 30, 2017

Prosecuting HIV: Is it a crime to have sex without disclosing? public roundtable discussion will take place:

Friday February 3rd, 2017, from 3:30 pm to 5:30 pm

Canadiana Gallery – Room 160, 14 Queen’s Park Crescent West, Toronto, Ontario

The Supreme Court of Canada has ruled that when HIV+ people do not disclose their status to sex partners they are committing a serious crime (often, aggravated sexual assault) if there is a realistic possibility of HIV transmission. Many HIV+ people have been prosecuted and jailed even if their sex partners did not contract HIV. Efforts are now underway to use prosecutorial guidelines and other tools to make Canada’s criminal law less punitive towards HIV+ people, and updated information on these efforts will be presented at the panel.

Roundtable Panelists will include:

  • Maureen Owino, Director, Committee for Accessible AIDS Treatment
  • Ryan Peck, Executive Director, HIV&AIDS Legal Clinic Ontario (HALCO)
  • Amy Swiffen, Sociology Department, Concordia University, and Visiting Professor at the Centre for Criminology & Sociolegal Studies
  • Chris Tatham, Sociology Department, University of Toronto

The Panel Moderator is Audrey Macklin, Director, Centre for Criminology & Sociolegal Studies.

All are welcome to attend.

The event poster is available as a pdf on our website: http://www.halco.org/wp-content/uploads/2017/01/HIV-disclosure-public-roundtable-2017Feb3.pdf.

 

US: Positive Women's Network USA – January 2017 Newsletter

2017: Ready for the Fight of Our Lives
The first steps toward repeal of the Affordable Care Act have already been taken by the new Republican-led Congress. A bill that would effectively ban all abortions has already been introduced into the U.S. House of Representatives by Rep. Steve King (R-IA). Confirmation hearings are underway for Sen. Jefferson Sessions (R-AL)–a far-right legislator with a very poor record on women’s rights and civil rights, including voting rights, as well as a documented history of making racist remarks–for Attorney General, and for Rep. Tom Price (R-GA)–another far-right legislator who has a record of opposing health care reforms that benefit low-income people and of opposing women’s health care rights and access, as well as conflicts of interest in the same area–for Secretary of Health and Human Services.

 
And all of this is happening even before the inauguration of a president who ran a campaign of open misogyny, racism, xenophobia and intolerance. 
 
At PWN-USA, we know that the road ahead is long and fraught with challenges. The threats to the health, life and liberty of many of us–as well as to the fabric of our democracy–are real and are unfolding around us in real time. But we also know that our community is strong, resilient and accustomed to resistance in the face of oppression. We started 2017 with a game plan–one that is incomplete and evolving day by day, but which has some specific commitments and initiatives to strengthen our community and the effectiveness of our fight against these attacks.
  • This Tuesday, we launched our new weekly PWN Action Alerts to help our members and allies stay up to date on the latest critical developments and take action quickly and easily in different ways, whether by phone, email, social media or in person.
  • We are excited to announce our brand new PWN Policy Fellows Program, an innovative fellowship that will help women living with HIV become even fiercer leaders and advocates on the issues that matter most to us.
  • An anti-racism affinity group that came together at the 2016 Speak Up! Summit is developing an anti-racism curriculum, with a webinar series and discussion groups meeting monthly, to help white members and non-Black people of color more effectively get involved in the fight for racial justice in the Trump era. The first webinar was held Tuesday evening; more will be announced soon.
  • We will be holding three new series of webinars–in strategic communications, policy and regional organizing–to help PWN members hone their skills in fighting for justice, liberty and bodily autonomy.

Still more is coming soon. Stay tuned–and stay vigilant! We will be doing our best to keep you up-to-date and help you take action. We hope we can count on your support and your voice throughout the days, weeks and months to come. Our victory depends on all of us.

Become a PWN-USA Policy Fellow!

Positive Women’s Network – USA is proud to launch applications for our inaugural Policy Fellowship for Women Living with HIV (WLHIV). The yearlong Policy Fellowship will prepare and involve WLHIV in all levels of policy and decision-making by increasing participants’ ability to engage effectively in the federal policy and advocacy arena. In the current political environment marred by threats to sexual and reproductive rights, basic health care access, the social safety net, and civil and human rights, it is critical that WLHIV are equipped with a wide array of tools to support vibrant, visionary and strategic advocacy on behalf of their communities.

This one-year fellowship is open to all women living with HIV, including women of trans experience. We especially encourage young women, women of color, immigrant women, folks who are trans, LGB and gender non-conforming, who live in the South and who possess a strong desire to effect meaningful change in the lives of other WLHIV to apply.

The fellowship curriculum will be rooted within a social justice framework and will apply an explicit gender justice and racial justice lens to the policy and advocacy process as a vehicle for transformative social and political change. Fellows will receive coaching and mentoring to support their policy advocacy goals, opportunities to attend policy meetings (in person and via conference call), opportunities to engage with national advocacy coalitions, and access to policy experts. Additionally, fellows will have the opportunity to obtain and apply marketable writing, research and organizing skills to support their professional development. Fellows who graduate successfully will receive a certificate at the end of the program and their registration fees for the 2018 SPEAK UP! Summit will be waived.

 
We will be holding an informational webinar about the application process on Friday, Jan. 27, at 3 PM EST/12 PM PST–register here!
Staying Positive:

Women Living with HIV Speak Out Against Stigma
On World AIDS Day 2016, women living with HIV in Colorado publicly shared short videos they created in partnership with the StoryCenter. PWN-USA is proud and pleased to roll out these incredibly powerful and moving videos in 2017 as we fight stigma and highlight the resilience and fierceness of women living with HIV in the U.S.

We will be sharing one to three of these videos in each of our biweekly e-newsletters! Today, enjoy Barb’s story,You Don’t Know Me.

 
“I gave my power away. I let others determine what was pretty, what was worth complimenting…I gave my power away with both hands to people who didn’t even really want it, to people who didn’t have my best interests at heart. In my search to fit in, I allowed. I allowed it all. Why do we give our power away, when we can be so powerful?”
From PWN-USA Colorado co-chairs Kari Hartel and Barb Cardell: 
Last spring, the StoryCenter began to search the community in the Denver Metro-Area for partners to create some short videos of people living with HIV. PWN-USA Colorado co-chair Kari Hartel was able to attend an informational meeting and asked that a workshop be dedicated to women living with HIV. A month later, the Empowerment Program, a local agency that has been serving women, mostly those who are low-income and highly marginalized, joined in the collaboration; the Staying Positive project was born. Staff from Empowerment’s Women’s AIDS Project and PWN-USA Colorado leaders began working with women living with HIV to identify those who wanted to participate in the StoryCenter workshop. There was so much excitement about the project that two workshops were created, one in May and one in July.
 
18 women living with HIV were able to participate and the Staying Positive project took flight.

These workshops were transformational for many members. The process for each woman to create her own video from start to finish was very intensive and the bonds that were formed during the workshops will likely continue for a lifetime. We are so thankful to the StoryCenter for their amazing work in giving people a driver’s seat and a platform to tell their own stories.”

PWN-USA at Creating Change!

PWN staff members Waheedah Shabazz-El and Cammie Dodson will be presenting at the Creating Change Conference at the Philadelphia Marriott Downtown in Philadelphia, PA, on Friday, January 19th. The workshop will provide an overview of HIV criminalization throughout the country and its impact on people living with HIV, especially women and LGBTQ people of color. The session will focus on the intersection between criminalization and violence against women living with HIV, and will highlight local and national efforts to repeal, reform, and abolish HIV criminal laws. Participants will have the opportunity to develop strategies to strengthen advocacy efforts in their home states and lift the work of grassroots organizations in their communities. We hope to see you there!

Session Details

“Decriminalizing HIV, Decriminalizing Bodies: From the grassroots to the capitol”

Workshop Session 3 (Friday, 3:00 – 4:30 pm)

Room 305 (3rd Floor)

Read, Listen, Organize!
Want to be more active in the resistance, but not sure how or where to get started?
  • Keep an eye out for your weekly PWN Action Alert! We will offer you plenty of ways to get involved, from marching in the streets to making phone calls.
  • Are you attending the Women’s March or one of the Sister Marches, or an inauguration protest? Send your photos, videos and/or blogs to jsmithcamejo@pwn-usa.org to share through our social media, website and these newsletters!

US: Positive Project Update – January 2017

Federal Advocacy

Federal Criminal Justice Working Group Meets

The quarterly meeting of the LGBT/HIV Federal Criminal Justice Working Group (“working group”) took place in Washington, D.C. in December. Members strategized on how to respond to the incoming Trump administration, discussed the new Congress and possible implications for criminal justice, and participated in a variety of ancillary meetings with agency officials. Highlights included meeting with the Bureau of Prisons to identify ways in which sexual health and sexual health literacy can be improved for all prisoners, regardless of sexual orientation or gender identity. The discussion followed from CHLP’s detailed memo to BOP officials on ways the Bureau can update current program statements to meet the basic sexual health needs of all federal prisoners without the need for any change in current law or regulations. The next in-person meeting of the working group is in March 2017.

State Advocacy

State Forums Now Online

The PJP Online State Forums went live on November 15. Hosted on the Center for HIV Law and Policy’s website, the forums provide a space for state advocates to communicate, exchange information, share resources, and work collectively on projects, drafts, and other materials. The forums can be accessed here. The page also provides a link for anyone interested in joining a PJP State Working Group to apply for membership.

State Advocacy Working Group Updates

CALIFORNIA

On November 16, Californians for HIV Criminalization Reform (CHCR) hosted an event at the West Hollywood City Council Chambers featuring stories from people directly affected by HIV criminalization to educate the community about HIV criminal laws and build support for eliminating these laws. Panelists included West Hollywood City Councilmember John Duran, who is living with HIV, who spoke about his work as an attorney defending people facing prosecution under California’s HIV criminal laws. Robin Barkins and Nestor Rogel spoke about the impact of criminalization on people living with HIV. Gerald Garth and Jorge Diaz, from Black AIDS Institute and Bienestar, talked about the HIV epidemic among Black and Latino gay and bisexual men. And the Los Angeles HIV Law and Policy Project presented data from a 2016 Williams Institute study showing that sex workers in particular, along with people of color, are disproportionately affected by HIV criminal prosecutions in California.In related news, Equality California is finishing up a messaging survey of California residents on HIV criminalization in that state.  We likely will be able to report on the key findings from their survey in our next PJP Update, so stay tuned.

CHCR is planning a legislative briefing in Sacramento in February with the California Legislative LGBT Caucus. The briefing will feature testimony from expert witnesses as well as individuals directly and indirectly affected by HIV criminalization in the state. It will be free and open to the public.

For more information or if you are interested in joining Californians for HIV Criminalization Reform, please contact Craig Pulsipher at cpulsipher@apla.org.

GEORGIA

On November 30, the Coalition to End HIV Criminalization in Georgia participated in a World AIDS Day panel hosted by Georgia Equality, SisterLove and The Counter Narrative Project in Atlanta.The panel looked at Georgia’s HIV criminal law, the impact it has on the lives of PLHIV, and the coalition’s efforts to reform the law. Coalition member and panelist Nina Martinez examined mandatory HIV disclosure laws and their impact on the risk of intimate partner violence for PLHIV. Held at Gallery 874, the panel discussion coincided with the “Living With” art exhibit, which featured art about the experiences of PLHIV.

The Coalition is reaching out to legislators to identify potential sponsors for a bill to reform the state’s HIV criminal law.

If you are interested in becoming an advocate to help change Georgia’s HIV Criminal Law, please contact CHLP’s Sr. Community Outreach Specialist for PJP, Lauren Fanning, at lfanning@hivlawandpolicy.org.

INDIANA

HIV Modernization Movement-Indiana (HMM) recently completed a short survey of Indiana-area HIV service providers that assessed provider knowledge around Indiana’s HIV criminal laws. It also assessed provider attitudes about how policies that require them to counsel their patients/clients about the disclosure law affect care delivery. HMM reports that an impressive 171 providers participated. The HMM Steering Committee continues to meet monthly and expand its network. It also has begun to educate key stakeholders about HIV criminalization and efforts underway to modernize Indiana laws.

Next Meeting: Mid-January (TBD) 

If you are interested in information about HIV criminalization in Indiana or in participating, supporting or endorsing HMM-Indiana, visit our get involved page or contact steering committee members at hmm.indiana@gmail.com

MISSOURI

The Missouri HIV Justice Coalition (HIVJC) announced its commitment to combat HIV criminalization in Missouri at a World AIDS Day Conference in Kansas City on December 1, 2016. Coalition members conducted outreach resulting in a number of new active participants, allies and partner groups. HIVJC also held a co-sponsored community discussion, Stand Up and Speak Out. Panelists included Robert Suttle, SERO Project; Tusday Dudly, Kansas City CARE Clinic; Randall Jenson, Artist, SocialScope Productions; and Kris Wade, The Justice Project. They addressed the consequences of HIV criminalization and actions attendees could take to change the law. Co-sponsors of the event included Empower Missouri, UMKC Pride Alliance, Social Scope Productions, and UMKC/LGBTQIA.

HIVJC intends to expand their coalition to include those who focus on racial justice and members of faith communities more directly in the work to modernize Georgia’s law.

Next Meeting: Friday, January 27 at 1:00pm (CT)

Meetings are held on the second and fourth Friday of the month.

If you would like information on HIV Criminalization or are interested in becoming an advocate with the Missouri HIV Justice Coalition Working Group, please contact Ashley Quinn at ashley@empowermissouri.org or Stephen Williams atswilliams@hivlawandpolicy.org.OHIO

On December 3, the Akron AIDS Collaborative held a World AIDS Day Community Forum, hosted by the Northeast Ohio Regional Advisory Group at the Akron Urban League. The event was sponsored by AIDS Healthcare Foundation. Presenters included: Lillie Jackson Tisdale (President, National Association of Black Social Workers), Naimah O’Neal (The Ohio Working Group for HIV Decriminalization), Ted Thompson, and Kate Boulton (Staff Attorney, Center for HIV Law and Policy). The forum focused on advancements in HIV/AIDS prevention and treatment, including the science of HIV transmission, as well as the role of stigma in undermining an effective public health response to HIV. Presenters also described the state of the law in the Ohio, recent prosecutions, and current efforts at modernization. The role of Ohio’s Criminal Justice Recodification Committee was also highlighted. Attendees included representatives of the Ohio Black Women’s Leadership Caucus and the AIDS Taskforce of Greater Cleveland. Thanks to Steve Arrington for his dedicated work to make this event possible.

Next Meeting: Wednesday, February 8 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 Lauren Fanning at lfanning@hivlawandpolicy.org.

SOUTH CAROLINA

The PJP South Carolina Law Modernization Group convened in November and December. The group has gradually increased its membership and reached consensus on the use of PJP Guiding Principles in their advocacy plan. The group is working on messaging and talking points and continued expansion of their coalition.

Next Meeting:  Thursday, February 9 at 2:00pm (ET)

Meetings are held on the second Thursday of the month.

If you would like information on HIV Criminalization or are interested in becoming an advocate with the PJP SC Law Modernization Group, please contact Stephen Williams at swilliams@hivlawandpolicy.org.

TENNESSEE

On December 16, several local advocates and CHLP’s Lauren Fanning met for an in-person strategy meeting in preparation for the 2017 legislative session that opens January 10. Using Larry Frampton’s (NashvilleCares) extensive policy and legislative experience in Tennessee, as well as key PJP planning and guidance resources, the group reviewed its progress, identified key stakeholders and individuals who are not yet engaged, and created a detailed work plan for introduction of a bill and to guide its advocacy moving forward. The draft bill was developed with the assistance of Mayo Schreiber, CHLP Deputy Director, and the group has identified several potential sponsors, including both state senators and representatives. More Tennessee advocates and organizers are needed and welcome!

On February 21, Tennessee AIDS Advocacy Network (TAAN) will hold its annual Day on the Hill, which offers advocates an opportunity to speak with and educate state legislators about the need to modernize Tennessee’s HIV criminal laws, as well as other HIV-related issues. Already 50+ participants have signed up.

Next Meeting: Thursday, January 26 at 11:00am (CT)

Meetings are held on the fourth Thursday of the month.

If you are interested in information about HIV criminalization or actively participating in the Tennessee working group, please contact Lauren Fanning at lfanning@hivlawandpolicy.org

TEXAS

The PJP Texas HIV Working Group convened in November and December. Members reached agreement on outreach strategies for new allies and membership and set a timeline for key steps in their advocacy plan. Texas advocates are now using the online forum space created by CHLP, which facilitates communication, exchange of information, and resource editing/creation among the PJP state working groups. Texas advocates drafted an open sign-on letter to the Dallas County prosecutor in support of an HIV positive woman facing multiple felony counts for spitting on emergency responders called to assist her.  The letter was hosted on CHLP’s website and garnered over 150 signatures from individuals representing a diverse range of organizations in more than 25 states. The Working Group is also drafting a template letter intended for news outlets and other media to encourage responsible, accurate, and fair reporting practices around HIV and to provide education on the science of HIV transmission. Planning continues for the upcoming legislative session that begins January 10, including preparation for HIV Advocacy Day on February 28.

Next Meeting: Friday, January 20 at 1:00pm (CT)

Meetings are held on the third Friday of the month.

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

Criminal Case Update

CHLP’s assistance in criminal cases includes counseling defendants and their families, referring defendants to attorneys, 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

On December 20, the Missouri Court of Appeals, Eastern District, reversed the conviction of Michael Johnson and remanded his case for a new trial. The court reversed the judgment of the trial court based on the state’s failure to timely comply with Johnson’s discovery request, in violation of Rule 25.03, which prevented Johnson from preparing a meaningful defense in the case. In the words of the Court, “the State’s violation of Rule 25.03 was knowing and intentional and was part of a trial-by-ambush strategy that this Court does not condone and that Rule 25.03 was specifically designed to avoid.” CHLP’s press release and the decision are here.

In the appeal of his conviction, Johnson raised two points. First, that the trial court allowed evidence to be introduced late – the first day of the trial – denying him the fair opportunity to prepare his defense. And second, that his sentence of 30 years for violating Missouri’s HIV transmission and exposure statute violated the constitutional prohibition on cruel and unusual punishments. The court did not reach Johnson’s second point on appeal relating to the constitutionality of his punishment or the issues CHLP raised in its “friend of the court” brief. CHLP’s full brief, including the complete list of endorsing organizations, can be found here.

On January 4, attorneys for the State of Missouri filed a motion for rehearing or transfer in Michael Johnson’s case. The State is contesting the Court of Appeals’ decision reversing his conviction. Stay informed on developments in this case with our newly updated fact sheet and case timeline, which can be found here. In addition, a recent community update webinar by CHLP Deputy Director Mayo Schreiber can be found here.

NEW YORK

On December 15, the New York Court of Appeals 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 with women while living with HIV. CHLP, with the support of twelve national and state racial justice, disability, HIV and medical organizations, and four individuals, had filed a brief arguing that Williams represents the only case in New York where an individual has been essentially isolated or quarantined in whole or part based on his HIV status. We also argued that singling out a person living with HIV for this kind of extraordinary treatment under the law violates the Americans with Disabilities Act. We will continue to provide legal support to Williams and are strategizing with his attorney, Mark Davison, on further steps in the case.

OHIO

On December 27, CHLP, with seven national LGBTQ, HIV/medical, and criminal justice organizations, and with pro bono assistance from the law firm Gibbons, P.C. and the Ohio Public Defender acting as local counsel, filed a friend-of-the-court brief in the Ohio Supreme Court arguing that the felonious assault statute violated the federal and Ohio Constitutions and federal disability law. The brief can be found here. Orlando Batista was indicted for felonious assault in July 2014, for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status to her. 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.

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.

Canada: Eye-opening document on how Crown attorneys approach prosecuting HIV non-disclosure cases disclosed

Document on HIV non-disclosure prosecutions disclosed

Written by Alex RobinsonFriday, 13 January 2017

A newly disclosed document sheds some light on how Crown attorneys may have approached prosecuting HIV non-disclosure cases.

The Ministry of the Attorney General has released a document written by an assistant Crown attorney detailing her approach to prosecuting HIV non-disclosure cases.

The document discusses the admissibility of an accused person’s statements to public health as incriminating evidence — something human rights lawyers and HIV activists find troubling.

“The risk has always been that the use of an accused’s statements to public health would put a damper on HIV positive peoples’ willingness to be frank with public health, which puts their own health at risk and the population also at risk as well,” says Toronto lawyer Marcus McCann.

McCann says this approach could have a chilling effect on whether people with HIV will seek help from health professionals.

McCann obtained the document through a Freedom of Information request and subsequent years-long legal battle with the provincial government over whether the document should be disclosed.

Karen Shea, an assistant Crown attorney, wrote the document during the 2009 case of Johnson Aziga, an HIV-positive man who was convicted of murder for failing to disclose his status when he had unprotected sex with two women.

In the absence of an official set of prosecutorial guidelines for HIV non-disclosure cases, McCann first requested the document in the hope it could help discussions between the government and organizations that have been pushing the issue.

In November, the Divisional Court ordered MAG to release the document, and the provincial government decided not to appeal the decision.

The document includes a list of arguments against HIV non-disclosure criminalization and responses to them, which McCann says shows the government was aware of those critiques and had discarded them.

McCann says in the past there has been a view among HIV activists that they could push MAG to make meaningful change in the area if they could educate the ministry on current science.

“One of the things this document shows is that MAG knew full well what the concerns were with their approach and they were proceeding full steam ahead,” McCann says.

“It really is a document to my mind that is focused on prosecution at all costs and doesn’t take into consideration the kinds of situations in which a more lenient approach might be justified.”

Clare Graham, a spokeswoman for Attorney General Yasir Naqvi, says the document is not an official set of prosecutorial guidelines.

“The document is the work product of an individual Assistant Crown Attorney based on her knowledge and experience prosecuting HIV exposure and transmission cases,” she said in an email.

“The Assistant Crown Attorney prepared this document not only for her own use but also to assist her colleagues in a difficult and complex area of the law; however, this document is not a Ministry issued policy or guideline.”

In the legal proceedings concerning the document’s disclosure, MAG conceded that multiple versions of the document existed and that it had been shared on an intranet accessible to all Crown attorneys.

The document was disclosed as the Ontario Working Group on Criminal Law and HIV Exposure called for a moratorium on prosecutions in HIV non-disclosure cases, unless they involve allegations of intentional transmission, while discussions take place to develop an official set of guidelines.

The working group and its member organizations have been working for years towards the development of a set of prosecutorial guidelines.

The working group has obtained a commitment in the past from the provincial government, only to never see any guidelines materialize, Peck says.

“Unfortunately the dialogue over the past seven or more years, from our perspective, has not been meaningful,” says Ryan Peck, the executive director of the HIV & AIDS Legal Clinic Ontario, who sits on the working group.

But Peck says the working group is hopeful that it will be able to engage in meaningful dialogue with Naqvi, who has been attorney general since June.

Peck says the guidelines will need to be developed to bring the prosecutions of these cases in line with up to date science and human rights principles.

The group most recently met with Naqvi at a roundtable discussion on the topic on Dec. 5.

The federal government issued its own statement on World AIDS Day in early December acknowledging the effects of the over-criminalization of HIV non-disclosure. The statement, attributed to Justice Minister Jody Wilson-Raybould, committed to examining “the criminal justice system’s response to non-disclosure of HIV status,” saying this could include a “review of existing charging and prosecution practices, as well as the possible development of prosecutorial guidelines.”

Graham says MAG is committed to working with the federal government to “examine the law in this important area.”

McCann says he hopes the disclosure of the document will mean that both CLHE and MAG are starting future discussions on and equal footing.

“My hope is that Yasir Naqvi, the attorney general, and the ministry of the attorney general approach the next phase of this process with honesty and integrity and that they come open to making some changes,” he says.

“I feel like this document is part of a story and the last chapter is yet to be written.”

Canada: Toronto’s ‘Now’ weekly newspaper prominently features HIV criminalisation impact, advocacy and advocates

This week, Toronto’s weekly newspaper, ‘Now’, features four articles on HIV criminalisation and its impact in Canada.

The lead article, ‘HIV is not a crime’ is written from the point of view of an HIV-negative person who discovers a sexual partner had not disclosed to him.  It concludes:

After my experience with non-disclosure, I felt some resentment. But while researching this article, I reached out to the person who didn’t disclose to me. We talked about the assumptions we’d both made about each other. It felt good to talk and air our grievances.

 

I realized I’d learned something I’d never heard from doctors during any of my dozens of trips to the STI clinic, something I’d never heard from my family, my school, in the media or from the government – that you don’t need to be afraid of people living with HIV.

Screenshot 2017-01-13 09.48.27A second article, Laws criminalizing HIV are putting vulnerable women at greater risk, highlights the impact HIV criminalisation is having on women in Canada, notably that it is preventing sexual assault survivors living with HIV from coming forward due to a fear they will be prosecuted for HIV non-disclosure (which, ironically, is treated as a more serious sexual assault than rape).

Moreover, treating HIV-positive women as sex offenders is subverting sexual assault laws designed to protect sexual autonomy and gender equality. Front-line workers and lawyers say they’re hearing from HIV-positive women who are afraid to report rape and domestic abuse for fear of being charged with aggravated sexual assault themselves.

 

“People come to me all the time who don’t know what to do,” says Cynthia Fromstein, a Toronto-based criminal lawyer who’s worked on 25 to 30 non-disclosure cases. “Canada, unfortunately, is virulent in its zeal to prosecute aggravated sexual assault related to HIV non-disclosure.”

Screenshot 2017-01-13 09.48.41It also features a strong editorial, ‘HIV disclosure double jeopardy’ by the Canadian HIV/AIDS Legal Network’s Cecile Kazatchkine and HALCO’s Executive Director, Ryan Peck, which notes:

In a statement that mostly flew under the radar, Minister of Justice Jody Wilson-Raybould declared, on World AIDS Day (December 1), her government’s intention “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 stated that  “the [Canadian] criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”

 

This long-overdue statement was the first from the government of Canada on this issue since 1998, the year the Supreme Court of Canada released its decision on R v. Cuerrier, the first case to reach the high court on the subject.

15937182_1055417094604635_6279465723502378214_oFinally, the magazine features a number of promiment HIV activists from Canada, including Alex McClelland, who is studying the impact of HIV criminalisation on people accused and/or convicted in Canada.

He contributed his first piece to HJN last month.

Canada: Preliminary discussions said to be underway to review current practices in HIV non-disclosure cases

Advocates eager for feds to review ‘over-criminalizing’ of HIV non-disclosure

Joanna Smith, The Canadian Press

Published Wednesday, December 28, 2016 11:50AM EST

OTTAWA — Marjorie Schenkels had unprotected sex three times with a friend, while they both had been drinking, as she was going through a difficult and volatile time in her life.

The Manitoba woman was also living with HIV — a diagnosis she had told only her mother about — and feared she would lose her friends if they, including the man she was having sex with, found out.

She also did not tell the man she had sex with those three times, and he also later tested positive for HIV, although the question of where he contracted it is a matter of contention.

A jury convicted Schenkels of aggravated sexual assault in December 2014.

She did not lie, or manipulate or exploit, the sentencing judge from the Court of Queen’s Bench of Manitoba wrote in the Mar. 1 decision that includes the details of her story.

“Rather, her silence was the result of fear and inability to accept the gravity of her situation,” the judge wrote as she sentenced Schenkels, who is now also a registered sex offender, to two years in prison less a day.

Schenkels is appealing her conviction, with arguments being heard Jan. 10.

There is no particular provision in the Criminal Code regarding the disclosure of HIV status, but there are certain circumstances in which failing to do so is a crime.

That can include having consensual sex — something the Liberal government is now open to changing.

“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,” Justice Minister Jody Wilson-Raybould said in a statement published online Dec. 1, which was World AIDS Day.

“Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease,” she wrote.

The statement said Wilson-Raybould would be taking a closer look at how the criminal justice system deals with non-disclosure of HIV status, which could include reviewing current practices on laying charges and going ahead with prosecutions, as well as developing prosecutorial guidelines.

The justice department did not make anyone available for an interview, but spokesman Ian McLeod said in an email that preliminary discussions are underway.

The Supreme Court of Canada has ruled that the consent someone gives to engaging in sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status.

The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

The high court clarified in 2012 that this would not apply if someone is using a condom and also has a “low viral load,” but advocates argue the law has fallen far behind the science and creates more problems than it attempts to solve.

The fact that HIV non-disclosure falls under aggravated sexual assault or other offences makes statistics harder to come by than they are for other crimes, but the Canadian HIV/AIDS Legal Network has counted at least 180 people charged for offences related to HIV non-disclosure in Canada since 1989.

This relatively high number of prosecutions — and the fact that the issue is criminalized at all — has brought Canada under scrutiny on the world stage.

In July, Justice Edwin Cameron of the Constitutional Court of South Africa shamed Canada — alongside Zimbabwe — for its approach to the issue in his keynote address at the International AIDS Conference in Durban.

“I ask all Canadians to share the blame — not just us in Africa,” he said to resounding applause.

Canadian Health Minister Jane Philpott was in the room.

The changes the Liberal government ends up proposing will likely face some opposition over the ethical challenges surrounding the issues of disclosure in intimate relationships.

“I recognize that it’s difficult, but I think it’s important to draw some lines into when the criminal law is actually warranted and not warranted,” said Cecile Kazatchkine, a senior policy analyst with the Canadian HIV/AIDS Legal Network.

The United Nations Programme on HIV/AIDS (UNAIDS) has recommended prosecuting only those people who knowingly and intentionally transmit the virus to their partners, rather than simply not disclosing it, which some advocates say is not always possible, such as in abusive relationships.

Cynthia Fromstein, a Toronto-based defence lawyer who has represented clients facing HIV disclosure-related charges, said there is still “enormous” ignorance and fear surrounding HIV, which is only made worse by the current laws.

“The only time you see HIV, practically, is when someone’s picture is on the paper, being charged . . . with aggravated sexual assault,” said Fromstein.

Published in CTV News on Dec 28, 2016

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