Canada: Global Fund Replenishment Conference puts the spotlight on Canada HIV criminalisation laws

Friday and Saturday, Montreal will play host to the Fifth Replenishment Conference of the Global Fund to Fight AIDS, Tuberculosis and Malaria. While much of the discussion will be focused on developing countries (the Global South), where the fund has played a crucial role since is creation in 2002, this is also an appropriate time to take stock of Canadian realities.

At a time when the global effort is suffering from precarious funding, Canada has stepped up to the plate by increasing its contribution by 20 per cent, to a total of $785 million over the next three years. This commitment is to be applauded. It proves that there is a willingness on the part of government to make Canada a leader once again on the international scene. It is also a promising reminder that increased donations will get us closer to beating these diseases once and for all.

But good leadership also puts the spotlight on Canada’s own responsibility to address human-rights issues that are impediments to the improvement of public health and fair access to health services.

In the HIV sector, we know that gender inequality, racism and homophobia are the breeding grounds for the epidemic. Poverty and discrimination are further barriers to access and care. As was recently pointed out by Canada’s Minister of International Development and La Francophonie, Marie-Claude Bibeau, HIV has a particularly heavy impact on young women.

In order to continue to play its part as an international leader, Canada has to make good on commitments to end these epidemics here at home. We have work to do in our own backyard in order to align the fight against HIV/AIDS with human-rights advocacy.

Canada in 2016 is a country that still imposes criminal penalties on people living with HIV: they still risk prison sentences for having sexual relations without disclosing their HIV status to their partners when they have taken the necessary precautions to avoid transmission (use of a condom or undetectable viral load), and when there has been no transmission. This increases stigma, goes against science and UNAIDS recommendations, and should not be the case in a country that otherwise is helping lead the way.

Leadership comes from inspiring the best public policy, especially when it is supported by scientific data. In this regard, Canada must go farther and support the opening of supervised-injection sites. Such harm-reduction approaches are proven to reduce rates of infection.

Furthermore, we must work to create social and legal frameworks that help sex workers, as recommended by such NGOs  as Amnesty International. It is crucial that we repeal Bill C-36, the so-called “Protection of Communities and Exploited Persons Act” that criminalizes sex work in Canada.

This major international event will also be an opportunity to highlight how these epidemics affect migrants. Mandatory testing by immigration authorities contradicts recommendations by Canadian health experts. Rejecting migrants on the basis of their HIV or health status continues to foster prejudice in this regard. Economic arguments for refusing them entry only serve to exacerbate such inequalities. It is high time to look at universal access to treatment and the real cost of its being denied to certain people.

The Global Fund Replenishment Conference is a fitting time to demonstrate Canada’s financial support for countries most affected by HIV, TB, and malaria. Canada’s commitment to international aid is a solid foundation for global action on these issues.

But now is also the time for us to lead by example in our own country. There is much work to be done before we can truly “End it. For Good.” We need concrete measures that show Canadians stand with and support HIV-positive people.

Gabriel Girard is a post-doctoral researcher in sociology at Université de Montréal. Pierre-Henri Minot is executive director of Portail VIH/sida du Québec in Montreal. This article is based on an open letter that has been co-signed by more than 150 others. The full list is available at pvsq.org/globalfunds2016.

Mexico: HIV Justice Worldwide supports Mexican organisations' constitutional challenge against law criminalising HIV transmission in the State of Veracruz

English translation (para la versión en español,  ver más abajo)

International organisations support the constitutional challenge against the law criminalizing HIV transmission in Veracruz

Before the amendment to Article 158 of the Criminal Code of Veracruz, entitled “Contagion”, which added the term Sexually Transmitted Diseases to the article, and was adopted on August 4, 2015 by the Congress of the State, the National Commission on Human Rights, in response to the request of the Multisectoral Group on HIV / AIDS and STIs of the State of Veracruz and other organisations of civil society, brought the constitutional challenge 139/2015 against the amendment to the Supreme Court of Justice of the Nation this past December.

This is because the legal reform indicates that among these infections, HIV and human papilloma virus are outlined and a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days salary is established for those “deceitfully” infecting another person of any sexually transmitted disease.

The reform presented by Deputy Monica Robles Barajas from the Ecologist Green Party of Mexico, was intended to “try to prevent the transmission of these infections, mainly to women and girls who are in a vulnerable position…”.

Unconstitutionality

For the CNDH, the new content of Article 158 of the Criminal Code of the State of Veracruz “generates a discriminatory treatment to the detriment of the people, and that criminalising the willful endangerment of disease transmission, generates two assumptions: that it concerns sexually transmitted infections and that it concerns serious diseases. “

In addition, he said the agency does not meet its objective of preventing the spread of sexually transmitted infections against women and girls, finding themselves in vulnerable situations, but that it create a differentiation based on the condition of certain types of infections, in this case of sexual transmission, and that it casts them as serious, a fact that is not real, because not all infections of this type are serious.

International support

A little after half a year after the appeal, organisations of international civil society such a HIV Justice Worlwide have delivered a letter to the Supreme Court of Justice of the Nation for the legal challenge to be considered as “there is no evidence that criminalising perceived or potential exposure to HIV or STI benefits prevention; however, there are serious concerns that criminalisation can cause considerable damage. “

The document submitted to the Court, reminds us that various international bodies such as UNAIDS, the Special Rapporteur on the right to health to the United Nations, the Global Commission on HIV and the Law and the World Health Organization, have recommended to governments to limit the use of criminal law to the extremely exceptional cases of intentional transmission of HIV (for example, when the person knows their own HIV positive status, acts with the intention to transmit HIV, and in fact transmit it).

The letter also notes that laws criminalizing HIV affect the rights of people with HIV because they cause confusion and fear about their duties under the law; they generate failures in the justice system, often as a result of inadequately informed and competent legal representation;  they risk triggering prosecutions as a means of abuse or retaliation against a current or former partner; Police investigations are disproportionate and insensitive and can cause stigma and discrimination, and they promote sentences and disproportionate penalties.

In addition, fear of prosecution may discourage people, especially those belonging to those populations highly vulnerable to HIV, to get tested and know their status, because many laws apply only to those who are aware of their HIV status and thus prevent access to care and treatment because medical records can be used in evidence against them in the courts.

Worrying situation

Patricia Ponce, researcher at the Center for Research and Studies on Social Anthropology and member of the Multisectoral Group on STI and HIV / AIDS of the State of Veracruz, stated that the situation in the state is worrying because it is the region with the third highest number of cumulative cases of AIDS throughout Mexico, the second in HIV cases, the second in the number of women living with the virus and the second in the number of children affected by HIV.

Meanwhile, Edwin J. Bernard, global coordinator of the HIV Justice Network Worldwide, said that the fight against the epidemic requires the eradication of stigma and discrimination, not to add further through the legal system.

For the specific case of Veracruz, he explained that “if you want to protect women and girls from HIV, what should be done is to strengthen and empower women”.

Sean Strub, CEO of the Sero Project of the United States, explained that the existence of laws that criminalize HIV transmission is a public health issue because sanction reduces the possibility of new diagnoses.

“The best way to combat the criminalization of HIV is that people with the virus raise their hands to eradicate the situation,” he added.

Alejandro Brito, director of the civil organization Letra S, warned that if this situation is allowed to pass, “this can become a domino effect and similar changes could be approved in other states.”

In this regard, Ricardo Hernandez Forcada, director of the Programme for HIV AIDS and Human Rights at CNDH said that practically in every state, and even in federal criminal codes, there is a penalty for the transmission of sexually transmitted infections, and it is known that in Baja California Sur people have been jailed under that criterion.

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Organizaciones internacionales respaldan acción de inconstitucionalidad contra la ley que criminaliza transmisión del VIH en Veracruz

Ante la modificación al artículo 158 del Código Penal de Veracruz, denominado “Del Contagio”, a fin de adicionar el término Infecciones de Transmisión Sexual, aprobada el 4 de agosto de 2015 por el congreso de la entidad, la Comisión Nacional de Derechos Humanos, en respuesta a la petición del Grupo Multisectorial en VIH/sida e ITS del estado de Veracruz y otras organizaciones de la sociedad civil, interpuso la acción de inconstitucionalidad 139/ 2015 en contra de la reforma en la Suprema Corte de Justicia de la Nación en diciembre pasado.

Eso, debido a que la reforma legal señala que entre dichas infecciones se contempla al VIH y al virus del papiloma humano y se establece una pena que va de los 6 meses a los 5 años de prisión y multa de hasta 50 días de salario para quien “dolosamente” infecte a otra persona de alguna enfermedad de transmisión sexual.

La reforma, presentada por la diputada Mónica Robles Barajas del Partido Verde Ecologista de México, tenía la finalidad de “tratar de prevenir la transmisión de dichas infecciones, principalmente a las mujeres y las niñas que se encuentren en condición de vulnerabilidad…”.

Acción de inconstitucionalidad

Para la CNDH, el nuevo contenido del artículo 158 del Código Penal del Estado de Veracruz “genera  un  trato discriminatorio  en  perjuicio de las personas, ya que al tipificar como delito la  puesta  dolosa en peligro de contagio de enfermedades, genera dos supuestos: que se trate de  infecciones de transmisión sexual y que se trate de enfermedades graves”.

Además, señaló el organismo, no cumple su objetivo de prevenir la transmisión de infecciones sexuales hacia mujeres y niñas, por encontrarse en condiciones de vulnerabilidad,  sino que provocó una diferenciación basada en el padecimiento de  cierto  tipo  de  infecciones,  en  este  caso  de  transmisión sexual, y calificarlas como graves, hecho que no es real, pues no todas las infecciones de este corte son graves.

Respaldo internacional

A poco más de medio año de haberse presentado el recurso, organizaciones de la sociedad civil internacionales como Red Justicia por VIH en todo el Mundo entregaron una carta a la Suprema Corte de Justicia de la Nación para solicitar la admisión del recurso legal tomando en cuenta que “no hay evidencia de que criminalizar la exposición potencial o percibida al VIH o ITS beneficie la prevención; sin embargo, hay serias preocupaciones de que la criminalización puede causar un daño considerable”.

En el documento entregado a la Corte, se recuerda que diversos organismos internacionales como el Programa Conjunto de las Naciones Unidas sobre el VIH/Sida, el Relator Especial del derecho a la salud de las Naciones Unidas, la Comisión Global de VIH y la Ley y la Organización Mundial de la Salud han recomendado a los gobiernos limitar el uso del derecho penal a situaciones extremadamente excepcionales casos de transmisión intencional de VIH (por ejemplo, cuando la persona conoce su propio estatus seropositivo, actúa con la intención de transmitir el VIH, y de hecho lo transmite).

La misiva también señala que las leyes que criminalizan al VIH afectan los derechos de las personas con VIH porque provocan confusión y miedo sobre obligaciones en virtud de la ley; generan fallas en los sistemas de justicia, a menudo como resultado de una representación legal inadecuadamente informada y competente; surgen amenazas que desencadenan el enjuiciamiento como medio de abuso o represalia contra una pareja actual o anterior; las investigaciones policiales son desproporcionadas e insensibles, pudiendo provocar estigma y discriminación, y propicia condenas y sanciones desproporcionadas.

Además, el miedo al procesamiento judicial puede desalentar a las personas, especialmente a aquellas pertenecientes a poblaciones altamente vulnerables al VIH, de examinarse y conocer su estatus, porque muchas leyes se aplican sólo a quienes son conscientes de su estatus seropositivo e impide el acceso a la atención y tratamiento porque las historias clínicas pueden ser usadas como evidencia en su contra en las Cortes.

Situación preocupante

Para Patricia Ponce, investigadora del Centro de Investigaciones y Estudios sobre Antropología Social Unidad Golfo e integrante del Grupo Multisectorial en ITS y VIH/sida del Estado de Veracruz, la situación en el estado es preocupante debido a que es la entidad con el tercer número más alto de casos acumulados de sida de toda la República Mexicana, el segundo de casos de VIH, el segundo en número de mujeres viviendo con el virus y el segundo con niños afectados por VIH.

Por su parte, Edwin J. Bernard, coordinador global de la Red Justicia por VIH en todo el Mundo, consideró que el combate contra la epidemia requiere erradicar el estigma y la discriminación, no añadirle aún más a través del orden jurídico.

Para el caso concreto de Veracruz, explicó que “si se quiere proteger a las mujeres y niñas del VIH, lo que se debe hacer es fortalecerlas y empoderarlas”.

Sean Strub, director ejecutivo de Sero Project de los Estados Unidos, explicó que la existencia de leyes que penalizan la transmisión del VIH son un asunto de salud pública porque sancionar reduce la posibilidad de realizar nuevos diagnósticos.

“La mejor manera de combatir la criminalización del VIH es que las personas con el virus alcen la mano para erradicar la situación”, añadió.

Alejandro Brito, director de la organización civil Letra S, advirtió que si se deja pasar la situación, “esta se puede convertir en un efecto domino y podrían aprobarse modificaciones similares en otros estados”.

Al respecto, Ricardo Hernández Forcada, director del Programa de VIH SIDA y Derechos Humanos de la CNDH, señaló que, prácticamente, en todos los códigos penales estatales, e incluso el federal, hay alguna penalización por la transmisión de  infecciones de transmisión sexual, y se tiene conocimiento de que en Baja California Sur se ha encarcelado gente bajo dicho criterio.

Fuente: Notiese

 

Video and written reports for
Beyond Blame: Challenging HIV Criminalisation at AIDS 2016
now available

On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on the global effort to combat the unjust use of the criminal law against people living with HIV. Attendees at the convening hailed from at least 36 countries on six continents (Africa, Asia, Europe, North America, Oceania, and South America).

Beyond Blame was convened by HIV Justice Worldwide, an initiative made up of global, regional, and national civil society organisations – most of them led by people living with HIV – who are working together to build a worldwide movement to end HIV criminalisation.

The meeting was opened by the Honourable Dr Patrick Herminie, Speaker of Parliament of the Seychelles, and closed by Justice Edwin Cameron, both of whom gave powerful, inspiring speeches. In between the two addresses, moderated panels and more intimate, focused breakout sessions catalysed passionate and illuminating conversations amongst dedicated, knowledgeable advocates.

WATCH THE VIDEO OF THE MEETING BELOW

A tremendous energising force at the meeting was the presence, voices, and stories of individuals who have experienced HIV criminalisation first-hand. “[They are the] folks who are at the frontlines and are really the heart of this movement,” said Naina Khanna, Executive Director of PWN-USA, from her position as moderator of the panel of HIV criminalisation survivors; “and who I think our work should be most accountable to, and who we should be led by.”

Three survivors – Kerry Thomas and Lieutenant Colonel Ken Pinkela, from the United States; and Rosemary Namubiru, of Uganda – recounted their harrowing experiences during the morning session.

Thomas joined the gathering via phone, giving his remarks from behind the walls of the Idaho prison where he is serving two consecutive 15-year sentences for having consensual sex, with condoms and an undetectable viral load, with a female partner.

Namubiru, a nurse for more than 30 years, was arrested, jailed, called a monster and a killer in an egregious media circus in her country, following unfounded allegations that she exposed a young patient to HIV as the result of a needlestick injury.

Lt. Col. Pinkela’s decades of service in the United States Army have effectively been erased after his prosecution in a case in which there was “no means likely whatsoever to expose a person to any disease, [and definitely not] HIV.”

Click here to download the 43 page report (PDF)

At the end of the brief question-and-answer period following the often-times emotional panel, Lilian Mworeko of ICW East Africa, in Uganda, took to the microphone with distress in her voice that echoed what most people in the room were likely feeling.

“We are being so polite. I wish we could carry what we are saying here [into] the plenary session of the main conference.”

With that, a call was put to the floor that would reverberate throughout the day, and carry through the week of advocacy and action in Durban.

 

This excerpt is from the opening of our newly published report, Challenging HIV Criminalisation at the 21st International AIDS Conference, Durban, South Africa, July 2016, written by the meeting’s lead rapporteur, Olivia G Ford, and published by the HIV Justice Worldwide partners.

The report presents an overview of key highlights and takeaways from the convening grouped by the following recurring themes:

  • Key Strategies
  • Advocacy Tools
  • Partnerships and Collaborations
  • Adopting an Intersectional Approach
  • Avoiding Pitfalls and Unintended Consequences

Supplemental Materials include transcripts of the opening and closing addresses; summaries of relevant sessions at the main conference, AIDS 2016;  complete data from the post-meeting evaluation survey; and the full day’s agenda.

Beyond Blame: Challenging HIV Criminalisation at AIDS 2016 by HIV Justice Network on Scribd

Ethics of consent explored in provocative article highlighting concerns with criminalising HIV non-disclosure

Joyce Short was young and single, enjoying a thriving career on Wall Street, when she went out with some friends to a bar after work. She met a “very handsome, debonair young man” who seemed perfect for her: Jewish, single, with a degree in accounting from NYU. She would learn much later, after they had begun dating, that none of this was true. Now, she has a mission: she wants to show people the seriousness of what she calls “rape by fraud.”

“I am going to shout it from every rooftop,” Short told VICE. “All lies that undermine a person’s self-determination regarding their reproductive organs are a form of assault.”

Most of us have played with the truth or held back information about ourselves to impress someone—white lies, like “Yeah, I thought Interstellar was brilliant too!” or “What a coincidence, I also love winter hiking!” Short is not alone, however, in thinking that such lies can sometimes cross a line. And as the law stands in America, cases like Joyce’s—in which someone deceives their partner to get them into bed—are not illegal.

In 2013, Tom Dougherty, a philosophy professor at Cambridge University, published apaper arguing that if you lie or withhold information about anything that would be considered a deal-breaker by your partner—anything that, had they known it, would have changed their mind about sleeping with you—you have sexually assaulted them. The logic is simple: If your partner had known the truth beforehand, they wouldn’t have consented, and the sex wouldn’t have happened. Therefore, there was no consent. And sex without consent is assault. Fiona Elvines, of the UK national charity Rape Crisis, put this view bluntly to the Telegraph in 2014: “If you need to trick someone into having sex with you, you’re a perpetrator.”

The deal-breaker view is based on the powerful idea that free and open consent is an absolute requirement for all sexual activity. President Obama has, for instance, launched the “It’s On Us” campaign, aimed at teaching people that all non-consensual sex is assault. But for consent to be free and open, it seems that it should also be fully informed. That’s the standard we hold people to in medicine and business—why not sex? As the Anti Violence Project at the University of Victoria explained, “Informed consent means that someone who is being asked for their consent has full information about what they are being asked to consent to.” In other words, we should have all the information that we consider relevant before getting into bed with someone.

Joyce Short wants us to go further than moral condemnation. “Lying to induce sex is not seduction, it’s a crime,” she told VICE. After her experience, Short has become vocal about the need to reclassify lying to one’s sexual partner as a form of criminal sexual assault. Jed Rubenfeld, a professor at Yale, recently argued in the Yale Law Journalthat this view is the logical outcome of the importance we now place on fully-autonomous consent as a precondition to sexual activity.

Some lawmakers agree. Today, American laws generally make two kinds of sexual deception illegal: cases where someone impersonates a person’s partner (by sneaking into their bedroom at night, for instance), and cases where someone such as a doctor tricks a patient into thinking a sex act is actually some sort of medical procedure. Legislators in two states have proposed broadening the law to make it illegal, as Short thinks it should be, to deceive someone to get them into bed: An assemblyman in Massachusetts proposed such a law in 2008, as did a New Jersey legislator in 2014. Both proposals were defeated. However, as the national dialogue around sexual assault continues, there may well be similar attempts in the future.

But others have concerns over the push to criminalize sexual deception. First, if we do make sexual deception criminal, it would give enormous power to police and prosecutors to regulate our sexual lives—for example, to draw the line when it comes to determining exactly what separates a white lie from true deception. “If we are going to invite the criminal justice system to adjudicate relationships, I don’t think the result is going to be a good one,” Kim Buchanan, a criminal justice researcher in Connecticut who has spoken publicly on the issue, told VICE.

Second, if we move to prosecute sexual deception, those targeted will likely be people who are already vulnerable or stigmatized. It is revealing that in the United States, one very specific, additional form of sexual deception is aggressively criminalized and prosecuted: the failure to disclose one’s HIV status to your partner. As the Center for HIV Law and Policy has documented, nearly every state has prosecuted people for HIV non-disclosure. No equivalent laws criminalize the failure to disclose diseases that are much easier to transmit, such as herpes. “There are no public health reasons to single out this particular deception,” said Buchanan, who published a paper last May documenting the history of HIV prosecutions in the US.

There have also been cases of people prosecuted for so-called “gender fraud”—lying about, or failing to disclose, their birth gender to sexual partners. Sean O’Neill wasconvicted of this in Colorado in 1996, and, while his case proved an isolated one in the US, there has been an upsurge of such prosecutions in the UK, with five people convicted since 2012.

Consent must continue to be at the forefront of all discussions about right and wrong when it comes to sex. But as the problem of sexual deception—and the ire of victims like Short—shows, for American courts, many thorny problems remain to be solved when it comes to self-disclosure and sexual ethics.

Neil McArthur is the director of the Centre for Professional and Applied Ethics at University of Manitoba, where his work focuses on sexual ethics and the philosophy of sexuality. Follow him on Twitter.

US: Jacob Anderson-Minshall from HIV Plus mag reacts to the latest biting case in Marlyand

When will law enforcement get the message? HIV is neither a death sentence nor transmittable through saliva. So why do they keep arresting HIV-positive people for spitting and or biting and, as in the latest case, charging them with attempted murder?

According to the Baltimore, Maryland-based Capital Gazette, 46-year-old Jeffery David Crook, has been charged with attempted murder for allegedly biting an Anne Arundall County police officer during a tussle.

Crook is being held on half a million dollar bond and has reportedly been charged with multiple counts related to an alleged burglary and the assault on the officer. Crook was reported to the cops after “banging” on the outside of the home of Crook’s ex-boyfriend. Refused entry into the home, Crook allegedy “forced his way” into the house through a sliding glass door and was punched in the face by another man who was in the house.

Officers reported that they located Crook “rambling and incoherent” in an upstairs bedroom and he refused to obey their commands. When they attempted to forcedly arrest him, he resisted so a scuffle ensued. Police say that Crook was then Tasered, which, they allege, had no effect on him, and Crook bit an officer’s arm.

Police stated that the bite broke the officer’s skin, but it was Crook who was immediately transported to a local hospital center for “minor injuries,” the Gazette reported, citing local court records. “While there, he indicated that he was HIV-positive and bit the officer knowing the risk of transmitting the infection.”

Police spokesman Lt. Ryan Frashure said he couldn’t recall another incident where an officer was exposed to a “highly infectious disease,” especially “where it was done intentionally.”

Crook was charged with attempted second-degree murder, home invasion, second-degree assault, third-degree burglary, and reckless endangerment, according to court records.

From a public and mental health perspective, there are so many things wrong with this story, it’s hard to know where to begin. Crook’s mumbling, incoherent demeaner should have been a sign he may have been suffering from mental health issues. After entering his former partner’s house (through an unlocked sliding glass door, mind you), he was assaulted and his lip was cut. But instead of calling mental health professionals, officers tried to cuff him. When he struggled, they tased him. Although they reported that Tasing “had no effect,” he was taken to a hospital. Since few suspects are taken to a medical center for “minor injuries” before being interogated, it seems likely they realized he could not give clear answers because of his condition.

More to the point, once at the hospital, Crook disclosed his HIV status. His indication that he bit the police officer “knowing the risk of transmitting the infection,” could have been him simply acknowledging he was aware of his HIV status before he bit the man, or even that he knew there was little or no risk of transmitting HIV through saliva.

The Centers for Disease Control and Prevention is clear “HIV isn’t spread through saliva.” 

According to the CDC, biting, spitting, and throwing body fluids all carry “negligible” risk of infection. It is particularly disheartening for activists fighting the criminalization of HIV when poz individuals are convicted of felony crimes for having spat at, bit, or thrown fluids at an officer when it is nearly impossible to transmit HIV that way.

In this specific case, no doubt the argument is that Crook was bleeding from the mouth when he bit the officer hard enough to break skin. But breaking skin and having a small amount of each person’s blood comingling is still highly unlikely to transmit HIV.

Even if a person with HIV gets hurt playing tackle football or boxing at the gym, it’s “highly unlikely that HIV transmission could occur in this manner,” according to the University of Rochester Medical Center. “The external contact with blood that might occur in a sports injury is very different from direct entry of blood into the bloodstream, which occurs from sharing needles or works.”

Even if the officer in question did defy all odds and turn up HIV-positive, there’s no way to be sure it was transmitted in this occassion. Moreover, there’s still a significant problem with the charge of attempted murder. Like many laws that criminalize behavior like sex work or add sentencing penalties only for those who are HIV-positive, charging someone with attempted murder instead of assault is based entirely on the outdated equation that HIV equals death. It’s based on an outdated view of the HIV-positive body not as a human being but as a “deadly weapon.”

These offensive tropes are decades out of date, have been out-and-out discredited by modern science, and rendered obsolete by the development of highly active antiretroviral medications that have transformed HIV from a terminal disease to a manageable chronic condition.

And yet, when confronted with even the tiniest of bodily fluid of HIV-positive individuals, police officers continue to overreact with fear (the officer in the Crook case “remained out of work” days after the incident) and arrest people for actions that cannot transmit HIV, simply because they discover their alleged perp also has HIV.

Around the country, district attorneys in these cases continue to charge HIV-positive individuals with crimes for things that are not criminal, continue bumping up simple charges from misdemeanors to felonies just because the individuals involved are poz, and continue to claim that exposure to HIV is a death sentence when it isn’t. Judges continue to accept these arguments, and continue handing down these overblown sentences, often without the abiility for parole.

Most of the law and order representatives who embrace HIV criminalization do so out of ignorance, but some are aware of the facts and proceed anyway because the law was written in such a way that facts, medical findings, and scientific proof simply have no bearing on the case.

Many of those who are serving extended prison terms have not even transmitted HIV to another person (think Michael Johnson in Missouri and Kerry Thomas in Idaho, both serving 30 year sentences). Yet they often face sentences higher for spitting or having sex without disclosure than if they had actually murdered the person they are accused of “infecting.”

How flawed is this system? And what kind of lesson does this teach people about those living with HIV? For one thing, it teaches that knowing one’s status is a legal liability. In Crook’s case — as in most other cases — the determining factor of guilt is often based on whether the individual knew they were HIV-positive at the time. Spit on a police office without knowing you’re poz, it’s a misdemeanor assault. Spit on an officer once you know have HIV? It’s attempted murder. Neither one can actually transmit HIV.

To us, it’s just insane.

HIV JUSTICE WORLDWIDE releases ‘HIV IS NOT A CRIME’ training academy video documentary

Today, HIV JUSTICE WORLDWIDE releases a 30-minute video to support advocates on how to effectively strategise on ending HIV criminalisation, filmed at the second-ever ‘HIV IS NOT A CRIME’ meeting, co-organised by Positive Women’s Network – USA and the Sero Project and held earlier this year at the University of Alabama, Huntsville.

This advocacy video distils the content of the three-day training academy into four overarching themes: survivors, victories, intersectionality and community.

Filmed, edited and directed by HIV Justice Network’s video advocacy consultant, Nicholas Feustel, of georgetown media, it features interviews conducted by Mark S King of MyFabulousDisease.com.

“The idea,” says HIV Justice Network’s Global Co-ordinator Edwin J Bernard, who wrote, narrated and produced the video, “is that it can be used as a starting point for discussions at HIV criminalisation strategy meetings around the world, to help advocates move forward with their own state or country plans to achieve HIV justice.”

The video was produced by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE, and supported by a grant from the Robert Carr civil society Networks Fund provided to the HIV Justice Global Consortium.

You can share, embed or download the full-length video at: https://youtu.be/B433fMElc_c The video is also being hosted at http://www.hivisnotacrime.com.

HIV IS NOT A CRIME Training Academy (HINAC2)
Huntsville, Alabama

(33 min, HJN, USA, 2016)

HIV JUSTICE WORLDWIDE presents a video documentary on the second-ever ‘HIV IS NOT A CRIME’ training academy held in Huntsville, Alabama.

To support advocates on how to effectively strategise on ending HIV criminalisation, this 30-minute video distils the content of this unique, three-day training academy into four overarching themes: survivors, victories, intersectionality and community.

We hope this video can be used as a starting point to help advocates move forward in their own state or country plans to achieve HIV justice.

For more information about the training academy visit: http://www.hivisnotacrime.com/

Canada: Stigma and HIV criminalisation deter people from getting tested

Stigma remains a major problem that discourages people from getting tested

Two studies released last month show the tools exist to potentially end the more than three-decades-old scourge of HIV/AIDS, but activists and front-line public health workers in Canada say we simply aren’t using them effectively.

The first study found it’s nearly impossible for an HIV-positive person to transmit the virus if they’re undergoing effective antiretroviral therapy (ART).

The other showed the impressive ability of a drug called Truvada — if taken properly — to protect HIV-negative people who would otherwise be at high risk of contracting the virus.

“I think there’s a real frustration of those of us on the ground, those of us working in public health and epidemiology who know absolutely that the tools are out there and we’re not seeing the support,” says Joshua Edward, a program manager at Vancouver’s Health Initiative for Men(HIM).

High-profile figures in the global fight against HIV/AIDS, including Bill Gates at last month’s World AIDS Conference in Durban, South Africa, have suggested talk of “the end of AIDS” is perhaps premature given its continued spread in much of the developing world, particularly Africa.

Such talk also seems premature in Canada.

Two big problems

Edward says there are two major problems in Canada that deny the promise described in the two studies.

First, there remains a powerful stigma around HIV that discourages people from getting tested.

The second problem is Truvada, approved as a pre-exposure prophylaxis or PrEP, is very expensive, up to $1,000 a month, and isn’t widely available to those who don’t have generous private insurance plans.

The PARTNER study looked at couples where only one partner had HIV but with a viral load suppressed by medication. Out of nearly 60,000 condomless sex acts, not a single HIV transmission occurred.

But HIV infection rates in Canada remain relatively steady, with an estimated 2,500-3,500 new transmissions every year, in part because one in five HIV-positive Canadians don’t even know they have the virus, and so they aren’t receiving the treatment that will keep them healthy and prevent further spread.

Activists argue stigma is a big reason why so many Canadians don’t get tested, and it’s fuelled by the fact that our laws criminalize the non-disclosure of one’s HIV-positive status, even if no transmission occurs and despite the latest evidence that shows viral suppression makes it virtually impossible to transmit the virus.

Stigma encourages spread

Sandra Ka Hon Chu, director of research and advocacy with the Canadian HIV/AIDS Legal Network (CHALN), says criminal sanctions of HIV-positive people encourage the spread of the virus.

“People who might not know their status won’t get tested because you would have the knowledge of your HIV status, which is a requirement of a conviction,” she says. “That then deters open discussions with health-care providers and creates a lot of stigma that prevents people from getting on ART.”

More than 180 people to date in Canada have been charged for not disclosing their HIV status, according to CHALN. In most cases, they were charged with aggravated sexual assault, which carries a maximum life sentence and a possible sex offender designation.

In 2011, for example, an HIV-positive woman north of Toronto had oral sex with a man and unprotected vaginal sex with two others. She didn’t disclose her HIV status and was charged with three counts of aggravated sexual assault.

Though she was acquitted for the oral sex based on the unlikelihood of transmission, the trial judge convicted her for one of the counts related to vaginal sex — even though she was taking her medication, had an undetectable viral load and no transmission occurred — because the victim was “exposed to a significant risk of the transmission of HIV and that risk endangered his life.”

Law is a ‘blunt instrument’

Chu says the law needs to be updated given the recent scientific evidence that shows even condomless vaginal sex with an HIV-positive-but-undetectable partner carries very low risk of transmission.

Criminal law, she says, is too much of a “blunt instrument” to regulate a moral problem with so many grey areas. She says most people fail to disclose their status because they fear rejection, physical violence, or, for example, because they fear the disclosure may be used against them later.

“A woman who might be living in an abusive relationship who is positive might decide to go to the police to charge their partner with violence and that partner might threaten to say they didn’t disclose their HIV status to them,” Chu says.

She sees many possible solutions.

The provinces enforce the Criminal Code, so they have the power to rewrite prosecutorial guidelines on what should and should not be pursued by the Crown.

The federal government could also change the Criminal Code to match international guidelines put forward by UNAIDS, the Global Commission on HIV and the Law and others. This would include limiting criminalization to cases where a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact infect the negative partner with the virus.

More education and testing

Edward says Canada also needs to invest more in HIV education and testing outside of the major cities, where the stigma is greatest and HIV rates are often higher, including in some First Nations communities.

“If you live outside of a metro area, those barriers can be significant.”

He also says Canada needs a national HIV strategy that includes investing in PrEP for HIV-negative people who are at higher risk of contracting the virus.

“We need broader access,” he says. “We need insurance companies to be more generous in their support. You have to have a really high degree of privilege to be able to access it,” he says.

“You have to know how the medical system works. Mine is covered by insurance. It took probably a good two, three weeks of back and forth with my insurance company to access it, including being able to advocate for myself, able to speak from my perspective with righteous indignation.”

Delays

Health Canada expedited the process for approving Truvada as PrEP. It signed off in February, months before many expected, and emphasized Truvada should be used along with condoms.

But Quebec is the only province to publicly fund the drug, while the rest wait for the results of the Common Drug Review (CDR), which is expected to be complete in the fall. From there, the provinces will make their own decisions on whether to cover it, which could take months.

Michael Fanous, a Toronto-based pharmacist who specializes in HIV medications, thinks there should be an expedited process to get the drug listed for provincial drug plans.

“We’ve run into this problem for 30 years in treatment as new HIV drugs take much longer to get approved in Canada and then even longer to get covered.”

Edward’s organization in Vancouver, HIM, isn’t waiting around for government action. Instead, it launched getpreped.ca to get more people educated about PrEP.

“It gets back to almost every day in this province, someone is going to receive an HIV diagnosis … and at least for some of them, PrEP could have prevented that diagnosis,” he says.

“If you want to talk criminality, that’s criminal to me.”

Canada: Advocates call for change to HIV disclosure law

Canada’s HIV disclosure law ‘unfair,’ say advocates calling for change

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair,” said an advocate from the Canadian HIV/AIDS Legal Network.

The recent arrests of two men accused of failing to disclose their HIV status to their sexual partners have led to renewed calls for changes to legislation that advocates say contributes to the fear and stigma surrounding the disease.

Canadians with HIV are legally required to disclose their status to their partner before engaging in sexual activity. Those who fail to do so can be charged with aggravated sexual assault, whether the virus is transmitted or not.

If convicted, they are automatically added to the sex-offenders registry and face a maximum sentence of life in prison.

But advocates say Canada’s HIV disclosure law has never been shown to deter unsafe sexual practices. Rather, they argue, it has made patients feel more isolated and fearful.

“People living with HIV tend to come from many marginalized groups already,” said Sandra Chu, of the Canadian HIV/AIDS Legal Network. “(The law is) adding a further layer of marginalization and fear.”

Chu said she would like Canada to adopt HIV legislation proposed by the United Nations Programme on HIV/AIDS (UNAIDS), which would prosecute only people who knowingly and intentionally transmit the HIV virus to their partner.

There is a lack of definite evidence on whether criminalization deters HIV patients from exposing others, UNAIDS said in a report released in 2012. It also said that studies from Canada and the U.S. show few people with HIV are aware of the legal requirements pertaining to their illness, and those who are probably already disclose their status to partners.

The Public Health Agency of Canada (PHAC) has said people with HIV/AIDS report increased feelings of fear and stigma as a result of high-profile non-disclosure criminal cases.

 “Stigma has a negative impact on prevention efforts by contributing to secrecy and HIV non-disclosure, reinforcing HIV risk and discouraging condom use in some communities,” the agency said in a 2015 report.

A spokesman for the Department of Justice said the Canadian government is “aware of some of the criticisms of non-disclosure laws and appreciates the difficult circumstances individuals face” with regards to HIV disclosure.

In 2012, UNAIDS reported that Canada had convicted more people in connection with HIV non-disclosure, exposure and transmission than any country in the world except the United States.

The Canadian HIV/AIDS Legal Network says there have been at least 180 people charged with HIV non-disclosure-related offences in Canada — with five new cases in 2015.

Earlier this month, Toronto police charged a man with sexual assault and aggravated sexual assault for allegedly having unprotected sex with a woman multiple times over the course of 18 months without telling her he had HIV.

A few days later, Canadian Forces investigators charged a civilian cadet instructor with four counts of aggravated sexual assault for allegedly failing to disclose his HIV status before engaging in a relationship with a member of the military.

In a 1998 ruling, the Supreme Court of Canada said a legal requirement to disclose HIV will, “through deterrence … protect and serve to encourage honesty, frankness and safer sexual practices.”

The court clarified its stance in 2012, ruling that a person with HIV does not have to disclose it to a partner as long as a condom is used and the person has a “low viral load.” A viral load measures the number of copies of the HIV virus per millilitre of blood — the lower a viral load, the lower the chance of transmitting HIV.

However, a group of more than 50 Canadian doctors and researchers released a statement in 2014 saying that “a poor appreciation of the science related to HIV contributes to an overly broad use of the criminal law against” individuals living with the virus.

Using a condom during sexual intercourse is enough to render the risk of transmission negligible, the group said, regardless of viral load.

The fact that people can be charged with mere exposure when there’s “a negligible risk” of transmission is unjust, said Chu.

“To equate not disclosing one’s HIV status with the traditional understanding of aggravated sexual assault, we don’t think is fair.”

Originally published in The Star

Uganda: ABC Radio interviews HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi

Listen to Natasha Mitchell compelling interview with HIV criminalisation survivor, Rosemary Namubiru, and UGANET’s Dora Kiconco Musinguzi on the challenge to the problematic HIV criminalisation statutes within Uganda’s HIV/AIDS Prevention and Control Act.

This seven minute audio report from AIDS 2016 in Durban is excerpted from ABC Radio’s longer podcast, The brutal politics of a virus that won’t go away, by reporter Natasha Mitchell for Background Briefing. 

Listen to and/or download the full podcast and read the transcript on ABC Radio’s website.

The transcript of Natasha’s HIV criminalisation-related report is below.

Natasha Mitchell: In Uganda, around 7% of people are infected, and while the country is recognised for taking decisive action against HIV, the government’s harsh attitude and laws is dramatically undermining that progress.

Rosemary Namubiru is a 66-year-old nurse, mother and grandmother. She found out she had the virus just three years ago, and she thinks she got it from a patient.

Rosemary hadn’t yet disclosed her status at work, but when she was wrongly accused of intentionally infecting a patient, before she knew it the full force of the law was thrown at her.

Rosemary Namubiru: I saw the police coming, and they were holding me, ‘You are under arrest for murder.’ Then they called the media, so when I was in that room they called and told me, ‘Come out.’ I came out and I found a crowd of cameramen, media people.

Natasha Mitchell: Outside the police station?

Rosemary Namubiru: Yes.

Natasha Mitchell: Rosemary was charged with attempted murder after she accidentally pricked herself with a needle while treating a child. The mother watching on was worried and reported Rosemary. While the child wasn’t infected, thankfully, all hell broke loose when Rosemary’s HIV positive status was confirmed and made public. Rosemary was arrested and paraded in front of the media, who labelled her a ‘killer’ and a ‘murderer’.

Rosemary Namubiru: They were trying to manhandle me. They were taking photographs of me. They were calling me all sorts of names, ‘Murderer, killer. Look at this woman, a killer, a murderer.’ And it went all over the country in the national newspapers, in the English newspapers. ‘That murderer, the murderer. If we see her we shall beat her, we shall kill her.’ It was the talk of town. Even my village. Initially, they labelled it as ‘murder’. Then it was reduced, ‘attempted murder’, and then it was eventually changed into ‘negligence’.

Natasha Mitchell: Rosemary was publicly shamed, and sentenced to three years in prison for negligence.

Lawyer Dora Kiconco Musinguzi is the executive director of Uganda Network on Law, Ethics and HIV/AIDS or UGANET.

Dora Kiconco Musinguzi: Rosemary’s story sent so many chills across the country amongst people living with HIV. She was the headline of the news. ‘Killer nurse’. ‘Monster nurse’. She was treated so cruelly at the police, she was beaten, her hair was pulled, right, left, and centre, and that caused a lot of fear among people living with HIV. So we see discrimination written on walls, written in political statements, discrimination is still real, so that is where we are. That’s Uganda’s story currently.

Natasha Mitchell: Rosemary Namubiru was released at the end of 2014 after her case received international attention.

In the same year, Uganda introduced the HIV Prevention and Control Act. At face value it’s about controlling HIV, promoting testing and treatment, and preventing discrimination. Uganda’s not alone here, HIV specific criminal laws are on the increase worldwide, and also exist in America and Europe.

But Dora Kiconco Musinguzi and colleagues are leading a legal challenge in the Ugandan Constitutional Court against key parts of the law, including certain provisions that demand disclosure of your HIV status, and criminalise those who transmit the virus intentionally.

Dora Kiconco Musinguzi: The question is at what point do you establish intention. In a circumstance where we have so many people that have not yet tested, how do you know that a person infected another? So anybody could blame the other for infecting them, and what should be a human condition, a disease, then becomes a criminal object and lives break, and families break, and you know how the media picks on this, and totally takes it out of context. We believe it’s going to be really dangerous.

Natasha Mitchell: At least half of the Ugandan population still don’t know their HIV status. And Dora Kinconco Musinguzi believes the HIV Prevention and Control Act will exacerbate their reluctance to get tested and treated and so cause the virus to spread.

Dora Kiconco Musinguzi: So if people fear, relate HIV testing with obligation, with imprisonment, with undue power of the law, we believe this is going to create a bigger barrier to testing, and that fails the objective of prevention and control because then we shall have more people left out of the treatment area.

Natasha Mitchell: And because pregnant women have to be tested for HIV, they’re at greater risk under this law.

Dora Kiconco Musinguzi: They are going to be found to be HIV positive fast, and if they don’t disclose then they are in the ambit of attempting to transmit, so that makes the women criminals. So there’s lots of unanswered questions. And yet on the other side science has given us hope that people who test and take their medicines very well, they become less infectious, so they don’t transmit HIV. The law neglects this science. The law does not consider what public health specialists are saying, but the Ugandan government has not put this into consideration.

Natasha Mitchell: The experience of Rosemary Namubiru is a cautionary lesson about why laws that criminalise HIV positive people can be so bad for public health.

Dora Kiconco Musinguzi: You shouldn’t be criminalised. These cases could be handled in another way. We are really asking the Constitutional Court to find out whether this is the law that will present and control HIV, and still afford dignity and non-discrimination for living with HIV.

Natasha Mitchell: Based on your experience, Rosemary, what do you feel about the criminalisation law in Uganda against people with HIV?

Rosemary Namubiru: It hurts. Ignorance kills, but it hurts when people just carry on, and people keep on saying, ‘Oh, that one, that one.’ Me, I didn’t get it sexually. It was during the course of saving lives of human beings, so it is not something to laugh about. I wouldn’t wish anybody to go through what I went through.

Natasha Mitchell: Rosemary Namubiru. She’s now retired from nursing.