Nigeria: The Network of People Living With HIV and AIDS campaigns to raise awareness of supportive Anti-discrimination Law

By Gabriel Ewepu

ABUJA- THE Network of People Living With HIV and AIDS in Nigeria, NEPWHAN, yesterday, commenced sensitisation of Nigerians on the Anti-discrimination Act 2014, on stigmatisation of people living with HIV.

The National Coordinator, NEPWHAN, Victor Olaore, said the sensitisation about the law will create awareness about the penalty of discrimination and stigmatisation against people living with HIV.

He said: “Stigma and discrimination is still high in the country, especially in the community, people living with HIV still suffer high level of stigmatisation. In fact, even in the facility they are expected to receive treatment, most people still get stigmatised in the work place, and we felt that the stigma index survey that was conducted in the country shows evidence of documented cases of what people living with HIV suffer.

“These are the tools that have helped us to advocate for the passage of Anti-discrimination Bill. Now that we have the law, since 2014, many Nigerians are not aware that such a law exists – not even people living with HIV in our communities in the country are aware that we have a law that protects the rights and dignity of people living with HIV.

“This law has very comprehensive content and is detailed enough, and there is no excuse about it, and we want to make it clear that people will not say they are not aware of the law.

“We have plan to also step down the dissemination at the state level, we are disseminating this document to 1, 030 support groups we have across the country, and we are going to distribute it all over the states, and more partners and media in each state are going to be aware that we have this law at the national level.

“We want to educate people living HIV that there is a legal framework that can protect their right and their dignity in the country. We want the employers of labour and every other person in the society to know that there is this law that has been in existence in the country since 2014, and people should stop stigmatisation, denying employment of highly productive Nigerians irrespective of their HIV status.”

According to him NEPWHAN will set up hotlines where people living with HIV who have crisis or being stigmatised could call in and have referral and legal services, as the organisation has partnered with Human Rights Commission on issues of discrimination and stigmatisation.

Meanwhile, a 26 year old woman, Gloria Asuquo, and a member of Association of Positive Youths Living with HIV/AIDS in Nigeria, narrated her ordeal of stigmatisation and discrimination.

“At the earlier stage in 1999 I had to run away from the village I lived because of the stigma. I was stigmatised from my church, at home, in the community. I tested positive when I was 11 years old, and it was through blood transfusion I got infected in a general hospital.

“After my rescue and treatment at Gwagwalada Specialist Hospital, I stood with people living with HIV, and for them to stand for their right. I was denied admission as a result of my status, which they withdrew my admission letter.

“My advice for people living with HIV is for them to be happy because the federal government have recognised them and they should go to the health facility and most of them don’t like going to the hospital because of stigma, and they should go for the treatment, and if any further discrimination they should call and report, and we will take it up”, she stated.

Originally published in Uncova

US: Indiana Law Review critically examines how the state's HIV non-disclosure law is overly broad and problematic

Criminalization of HIV: Spread of the Viral Underclass

by Tyler J. Smith

J.D., 2015, Indiana University Robert H. McKinney School of Law

H-I-V. Arguably, no three letters in American society have generated more fear of a “viral underclass” [1] than those associated with the Human Immunodeficiency Virus (“HIV”). In many states, including Indiana, simply having HIV is a crime with potentially severe consequences. The criminalization of HIV is founded on a fear of something many people do not fully understand and the stigma of “HIV’s association with an ‘outlaw’ sexuality, anal intercourse, gay men, people of color, and people who use drugs.” [2] Indeed, convictions under these statutes rarely have anything to do with actual HIV transmission or risk of transmission. [3] Over thirty states currently have HIV specific criminal statutes “based on perceived exposure to HIV, rather than actual transmission of HIV to another.” [4]

The Infectious Diseases Society of America (IDSA) and HIV Medical Association (HIVMA) assert that “[c]riminalization is not an effective strategy for reducing transmission of infectious disease and in fact may paradoxically increase infectious disease transmission.” [5] Studies further indicate that “these laws discourage individuals from being screened and treated for conditions when early diagnosis and treatment of infected individuals is one of the most effective methods to control the disease.” [6] More people have been convicted under these laws in the United States and Canada than all other countries in the world combined. [7]

Numerous examples illustrate the unfounded fear and stigma that fuel egregious convictions and unjust sentences of HIV positive people. An HIV positive man in Michigan was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after he allegedly bit his neighbor. [8] Another HIV positive man in Texas is currently serving thirty-five years for spitting at a police officer. [9] A man in Iowa with an undetectable viral load received a twenty-five year sentence after a one-time sexual encounter in which he wore a condom. [10] His sentence was suspended, but he was placed on probation for five years and had to register as a sex-offender for ten years. [11]

Many states rightfully criminalize reckless, knowing, or intentional behaviors that actually put others at significant risk. However, some states have other criminal statutes that are overbroad, or criminalize simply having HIV and engaging in conduct that scientifically poses no risk of transmission. Such statutes clearly exhibit a complete lack of scientific understanding of how HIV is transmitted and because of their overbroad nature, give prosecutors “significant discretion in determining whether and how to prosecute individuals arrested or reported for HIV exposure.” [12] The actual risk of transmission depends on the amount of the virus in a person’s blood. [13] The risk-per-exposure for various sex acts, without factoring in how condoms or medical treatment reduce the risk even further, ranges from zero to eighty-two in 100,000. [14] Intravenous drug use risk-per-exposure ranges from sixty-three to 240 in 100,000. [15] Despite the relatively low risk, “courts rarely look at what a person did to further reduce the risk of transmission.” [16] Simply having HIV is a considered a crime.

With overwhelming bi-partisan support, criminalization of HIV became federal in 1990 with the Ryan White Comprehensive AIDS Resources Emergency Act. [17] The Act’s namesake, Ryan White, a thirteen-year old boy from Russiaville, Indiana, contracted the disease in 1984 following a blood transfusion. [18] This act created The Ryan White HIV/AIDS Program; the “most comprehensive Federal program that provides services exclusively to people living with HIV.” [19] It serves more than 500,000 people that do not have adequate health care coverage to manage their treatment. [20]

Congress exercised its power to control funding by requiring states to “protect against intentional transmission” to receive federal funding for the new program. [21] Section 2647 of the Act provided in part that “[t]he Secretary may not grant . . . to a State unless the chief executive officer determines that the criminal laws of the State are adequate to prosecute any HIV infected individual” who intended to transmit HIV through donation of bodily fluid, engaging in sexual activity intending to transmit HIV, or shared needles intending to transmit HIV. [22] This provision was repealed in 2000; however, the seeds for states to go above and beyond were already sown. Some states went further than what the federal law required by defining intentional transmission as non-disclosure of their positive status to a sexual partner. [23]

Although thirty-plus states criminalize HIV under HIV-specific criminal statutes or STD criminal statutes that specifically encompass HIV, [24] zero states have criminalized the transmission or the failure to disclose the positive status of other sexually transmitted diseases, such as the Human Papillomavirus (“HPV”). [25] According to the Centers for Disease Control and Prevention (“CDC”), 33,000 new cases of cancer are reported each year with about 26,900 of these cancers caused by HPV. [26] Nearly all cases of cervical cancer are caused by HPV [27] and 4074 women died of cervical cancer in 2012. [28] In 2013, an estimated 9278 women received a new diagnosis of HIV. [29] In 2012, among women who previously received a diagnosis of AIDS, an estimated 3561 women died. [30] Thus, more women were diagnosed with cancer caused by HPV than women who were diagnosed with HIV and more women died of cancer caused by HPV than women who died of AIDS. [31] Yet HPV has not been criminalized in any state. [32]

Portions of Indiana’s criminal code do make sense. Someone who recklessly, knowingly, or intentionally donates or sells semen or blood that contains HIV could rightfully face felony charges. [33] However, other statutory provisions in the criminal code are overbroad and punish scientifically unfounded conduct. For example, a person without HIV can be charged with a Class C Misdemeanor for “battery” by placing bodily fluid or waste on another person in a rude, insolent, or angry manner. [34] A person without HIV can be charged with “malicious mischief,” a Class B Misdemeanor, for placing bodily fluid or fecal waste with the intent that another person will involuntarily touch it. [35] If a person is HIV positive, both of these offenses become Level 6 Felonies for exposing to others any bodily fluid, including those scientifically proven to not transmit HIV. [36] Battery is a Level 5 Felony if the bodily fluid or waste is placed on a public safety officer, but only if the accused is HIV positive. [37] If the accused is not HIV positive, then committing battery on a public safety officer remains a Level 6 Felony. [38] Therefore, simply having HIV statutorily increases the penalty for these offenses.

Despite laws to the contrary, the CDC clearly states that “[c]ontact with saliva, tears, or sweat has never been shown to result in transmission of HIV.” [39] Very low quantities of HIV have been found in the saliva and tears of some AIDS patients. [40] However, “finding a small amount of HIV in a body fluid does not necessarily mean that HIV can be transmitted by that body fluid.” [41] HIV has not been found in the sweat of HIV-infected patients. [42] Indiana prosecutors have discretion to prosecute HIV positive persons criminally for a variety of offenses related to their HIV positive status regardless of intent to transmit or actual transmission and regardless of whether transmission is even scientifically possible.

Indiana law also criminalizes simply having what it defines a “dangerous communicable disease.” [43] Carriers of HIV, AIDS, and Hepatitis B have a duty to “warn or cause to be warned by a third party a person at risk” of the carrier’s disease status and the need to seek healthcare. [44] HIV positive persons must disclose their status to past, present, and future sexual or needle-sharing partners or face criminal penalty. [45] The burden of proof shifts to the accused to show he or she in fact disclosed his or her positive status to those past, present, or potential partners. [46] A person who “recklessly” violates the statutory provision commits a Class B Misdemeanor. [47] A person who “knowingly or intentionally” fails to comply with the statutory provision commits a Level 6 Felony. [48] Each day a violation of the duty statute continues is considered a separate offense. [49] In Indiana, a Class B Misdemeanor carries a penalty of imprisonment for a fixed term of not more than 180 days and a fine of not more than $1000, [50] and a Level 6 Felony carries a penalty of imprisonment for a fixed term between six months and three years, and a fine of not more than $10,000. [51] Neither the intent to transmit nor the actual transmission of HIV is required to be prosecuted under this statute. [52]

The “duty to warn” statutes make sense on their face, but no evidence exists to suggest these statutes fulfill their intent. Criminal consequences for a failure to disclose are intended by lawmakers to increase testing, encourage those who are positive to disclose, and thus decrease the number HIV infected persons. However, evidence and logic suggest the opposite is true. [53] People at risk are afraid to know their status in fear of being prosecuted.

Because public health is a significant state interest, one would think that state legislators would pass laws based on science and logic, not on fear of what or whom they do not understand. HIV is not easily transmitted, yet nearly seventy percent of states criminally target conduct unlikely to result in harm and increase criminal penalties for simply having HIV. [54] The first step in solving a problem is acknowledging there is one. States, including Indiana, must look beyond their own fear to see the “viral underclass” they have statutorily created. Having HIV or any disease should not be a crime.

[1] Sean Strub, Prosecuting HIV: Take the Test – And Risk Arrest?, Positively Aware (May/June 2012), http://www.positivelyaware.com/archives/2012/12_03/prosecutingHIV.shtml [https://perma.cc/3ZK7-RTYF].

[2] Sean Strub, Body Counts: A Memoir of Activism, Sex, and Survival 393 (2014).

[3] Id.

[4] H.R. Res. 1586, 114th Cong. (2015) (Introduced in Congress on March 24, 2015, this bill seeks to modernize laws and eliminate discrimination with respect to people living with HIV/AIDS).

[5] Infectious Diseases Society of America (IDSA) and HIV Medicine Association Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases, HIV Med. Ass’n (Mar. 2015), http://www.hivma.org/uploadedFiles/HIVMA/Policy_and_Advocacy/HIVMA-IDSA-Communicable%20Disease%20Criminalization%20Statement%20Final.pdf [https://perma.cc/G7AQ-WAN4].

[6] Id.

[7] Glob. Network of People Living With HIV, The Global Criminalisation Scan Report 2010 12 (2010), available at http://www.gnpplus.net/assets/wbb_file_updown/2045/Global%20Criminalisation%20Scan%20Report.pdf [https://perma.cc/X4CM-A44R] (reporting more than 300 people have been convicted under these laws in the United States and more than sixty in Canada).

[8] The Ctr. for HIV Law & Policy, Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions (May 2015), available at http://hivlawandpolicy.org/resources/ending-and-defending-against-hiv-criminalization-state-and-federal-laws-and-prosecutions [https://perma.cc/3E24-YVGZ].

[9] Id.; see also German Lopez, An HIV-Positive Man in Texas is Serving 35 Years in Prison for Spitting on a Cop, Vox (Feb. 19, 2015, 4:10 PM), http://www.vox.com/2015/2/19/8071687/hiv-criminalization [https://perma.cc/PP5Q-HLY5].

[10] The Ctr. for HIV Law & Policy, supra note 8; see also Diana Anderson-Minshall, Amazing HIV+ Gay Men: Nick Rhoades, Plus (Sep. 11, 2014 4:00 AM), http://www.hivplusmag.com/people/2014/09/11/amazing-hiv-gay-men-nick-rhoades [https://perma.cc/8NJX-L7EX].

[11] Id.

[12] The Ctr. for HIV Law & Policy, Ending & Defending Against HIV Criminalization: A Manual for Advocates 9 (2015), available at http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/HIV%20Crim%20Manual%20%28updated%205.4.15%29.pdf [https://perma.cc/S5D2-RHNU].

[13] See generally The Ctr. for HIV Law & Policy, Why Are We Putting People in Jail for Having HIV? (Nov. 2015), http://www.hivlawandpolicy.org/resources/why-are-we-putting-people-jail-having-hiv-a-grassroots-guide-hiv-criminalization-facts [https://perma.cc/DTF8-V7J9].

[14] Id.

[15] Id.

[16] Id.

[17] Pub. L. No. 101-381, 104 Stat. 576 (1990) (Congress reauthorized this act in 1996, 2000, 2006, 2009, and 2013).

[18] Who Was Ryan White?, Dep’t. Health & Hum. Servs., http://hab.hrsa.gov/abouthab/ryanwhite.html [https://perma.cc/7P2W-VKE5] (last visited Mar. 4, 2016).

[19] Ryan White CARE Act Celebrates 25th Anniversary, Dep’t. Health & Hum. Servs. (Aug. 18, 2015), http://www.hhs.gov/about/news/2015/08/18/ryan-white-care-act-celebrates-25th-anniversary.html [https://perma.cc/HQD4-4EQD].

[20] Id.

[21] Ryan White Comprehensive AIDS Resources Emergency Act of 1990 § 2647.

[22] Id.

[23] See Mich. Comp. Laws 333.5210 (2015).

[24] The Ctr. for HIV Law & Policy, supra note 12, at 292.

[25] Strub, supra note 2, at 393.

[26] HPV and Cancer, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/cancer/hpv/statistics/cases.htm [https://perma.cc/TQY8-YQRM] (last updated June 23, 2014).

[27] Which Cancers Are Caused by HPV, Nat’l Cancer Inst., http://www.cancer.gov/about-cancer/causes-prevention/risk/infectious-agents/hpv-fact-sheet#q2 [https://perma.cc/M7K8-N7PT] (last reviewed Feb. 19, 2015).

[28] Cervical Cancer Statistics, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/cancer/cervical/statistics/#2 [https://perma.cc/HV3Y-DNMZ] (last visited Dec. 9, 2015).

[29] HIV Among Women, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/hiv/group/gender/women/ [https://perma.cc/9ED7-5ZJ6] (last reviewed Nov. 9, 2015).

[30] Id.

[31] Strub, supra note 2, at 393.

[32] Id.

[33] Ind. Code § 16-41-14-17 (2015).

[34] Id. § 35-42-2-1(b), (e), (g).

[35] Id. § 35-45-16-2(a)-(f).

[36] Id. § 35-42-2-1(b), (e), (g); id. 35-45-16-2(a)-(f).

[37] Ind. Code § 35-42-2-1(g).

[38] Id. § 35-42-2-1(d)(2).

[39] HIV and Its Transmission, Ctrs. for Disease Control & Prevention (July 1999), http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/CDC%2C%20HIV%20and%20its%20transmission.pdf [https://perma.cc/T2PQ-LPXC].

[40] Id.

[41] Id.

[42] Id.

[43] Ind. Code § 16-41-7-1.

[44] Id.

[45] Id.

[46] Id.

[47] Id. § 16-41-7-5.

[48] Id. § 35-45-21-3.

[49] Id.

[50] Id. § 35-50-3-3.

[51] Id. § 35-50-2-7(b).

[52] Id. § 16-41-7-1.

[53] HIV Medical Ass’n, supra note 5.

[54] The CTR. for HIV Law & Policy, supra note 12, at 292.

US: New York Public radio produces empathatic audio feature story on HIV criminalisation

Last summer, in a Missouri courtroom, a college wrestler named Michael Johnson was sentenced to 30 years in prison for “recklessly infecting a partner with HIV.”

Johnson, who also goes by “Tiger Mandingo”, was accused of knowingly infecting his partners with HIV, although at least one of them said Johnson called to tell him the diagnosis when Johnson tested positive for the virus.

The case shed light on the stigmas surrounding sexually transmitted infections, or STIs, and especially HIV/AIDS. In more than 30 states there is a legal requirement for HIV positive individuals to disclose their status to whomever they’re having sex with. And while most people agree that honest conversation is a good practice, the laws allow people with HIV to be imprisoned for even spitting, biting or oral sex.

“Every person with HIV in the country who knows they have HIV is one accusation away from finding themselves in a courtroom,” said Sean Strub, director of The Sero Project.

Strub was diagnosed with HIV in the 1980s. Since then, treatments for STIs like HIV/AIDS has made significant progress across the globe. But Strub argues that an HIV diagnosis has continued to carry a stigma, perhaps even worse than before. And Strub said forcing people to disclose their status can backfire, and alienate a population that needs support.

While Strub is working to change the policy, New York University sex researcher and educator, Zhana Vrangalova, is focused on challenging society’s perception of risky sex.

“People really fear that STIs are more prevalent than they are…and that once you catch it you may always keep it,” she said.

Vrangalova is on a mission to de-stigmatize safe sexual behavior. Her website, for example, is about casual sex and provides a forum for people to talk about the flings and one-night stands that are usually dismissed in traditional sex education. Students in her class learn how to balance health and protection with redefining normal sexual behavior.

Jake Hernandez, a 23-year-old nursing student taking her class, has had personal experience with the same situation that got Michael Johnson behind bars. His ex-boyfriend called him to tell him he was HIV positive after they had oral sex, and luckily, Hernandez tested negative.

While he felt betrayed by his boyfriend, Hernandez still believes society needs to challenge the stereotypes surrounded STIs and the people who have them, especially gay men. While visiting a sex shop for his class with Vrangalova, he said the assumption is, “that we just walk around having sex all the time.”

“I mean I would probably say I’ve had casual sex once in my life. If I was dating a girl would you be saying all these things?”

Listen here

Originally published at WNYC.com

US: Bernie Sanders “absolutely opposed” to HIV criminalisation

In the plan that Clinton articulated to achieve an “AIDS-free generation” the day after her gaffe, she came out against state HIV criminalization laws penalizing perceived transfer of the disease.

Although his plan doesn’t address them, a Sanders spokesperson said he’s “absolutely opposed” to those laws.

From Washington Blade.

US: Republican Senator highlights Florida’s “archaic” HIV-specific criminal law, advocates for law reform in 2017

Last Thursday, March 10th Senator Rene Garcia introduced an amendment in the Florida Senate to an amendment of a bill he was co-sponsoring (SB 314) to highlight the damage done to the HIV response by the state’s overly broad HIV criminalisation law.

Senator Garcia, a Republican, withdrew the amendment following his three minute intervention, but noted that he intends to work with the Senate in the next legislative session, 2017, in order to reform Florida’s overly broad HIV non-disclosure law.

In order words, the amendment was presented strategically in order to give the issue of HIV criminalisation some exposure to his colleagues.

Tami Haught of the Sero Project, who is working closely with colleagues in Florida to modernise the law, noted:

“We are delighted that Senator Garcia is taking leadership on this issue and look forward to an ongoing dialogue. Sero and our Florida partners will be soliciting comments and a legal review of what Senator Garcia has proposed as well as continuing to organize statewide to build support for change. We have a lot of work to do between now and next year’s legislative session.”

Watch Senator Garcia speak about why it is crucial to reform Florida’s HIV criminalisation law below.

US: Hillary Clinton: "We should call on states to reform outdated and stigmatizing HIV criminalization laws."

Yesterday, at Nancy Reagan’s funeral, I said something inaccurate when speaking about the Reagans’ record on HIV and AIDS. Since then, I’ve heard from countless people who were devastated by the loss of friends and loved ones, and hurt and disappointed by what I said. As someone who has also lost friends and loved ones to AIDS, I understand why. I made a mistake, plain and simple.

I want to use this opportunity to talk not only about where we’ve come from, but where we must go in the fight against HIV and AIDS.

To be clear, the Reagans did not start a national conversation about HIV and AIDS. That distinction belongs to generations of brave lesbian, gay, bisexual, and transgender people, along with straight allies, who started not just a conversation but a movement that continues to this day.

The AIDS crisis in America began as a quiet, deadly epidemic. Because of discrimination and disregard, it remained that way for far too long. When many in positions of power turned a blind eye, it was groups like ACT UP, Gay Men’s Health Crisis and others that came forward to shatter the silence — because as they reminded us again and again, Silence = Death. They organized and marched, held die-ins on the steps of city halls and vigils in the streets. They fought alongside a few courageous voices in Washington, like U.S. Representative Henry Waxman, who spoke out from the floor of Congress.

Then there were all the people whose names we don’t often hear today — the unsung heroes who fought on the front lines of the crisis, from hospital wards and bedsides, some with their last breath. Slowly, too slowly, ignorance was crowded out by information. People who had once closed their eyes opened their hearts.

If not for those advocates, activists, and ordinary, heroic people, we would not be where we are in preventing and treating HIV and AIDS. Their courage — and their refusal to accept silence as the status quo — saved lives.

We’ve come a long way. But we still have work to do to eradicate this disease for good and to erase the stigma that is an echo of a shameful and painful period in our country’s history.

This issue matters to me deeply. And I’ve always tried to do my part in the fight against this disease, and the stigma and pain that accompanies it. At the 1992 Democratic National Convention, when my husband accepted the nomination for president, we marked a break with the past by having two HIV-positive speakers — the first time that ever happened at a national convention. As First Lady, I brought together world leaders to strategize and coordinate efforts to take on HIV and AIDS around the world. In the Senate, I put forward legislation to expand global AIDS research and assistance and to increase prevention and education, and I proudly voted for the creation of PEPFAR and to defend and protect the Ryan White Act. And as secretary of state, I launched a campaign to usher in an AIDS-free generation through prevention and treatment, targeting the populations at greatest risk of contracting HIV.

The AIDS crisis looks very different today. There are more options for treatment and prevention than ever before. More people with HIV are leading full and happy lives. But HIV and AIDS are still with us. They continue to disproportionately impact communities of color, transgender people, young people and gay and bisexual men. There are still 1.2 million people living with HIV in the United States today, with about 50,000 people newly diagnosed each year. In Sub-Saharan Africa, almost 60 percent of people with HIV are women and girls. Even though the tools exist to end this epidemic once and for all, there are still far too many people dying today.

That is absolutely inexcusable.

I believe there’s even more we can — and must — do together. For starters, let’s continue to increase HIV and AIDS research and invest in the promising innovations that research is producing. Medications like PrEP are proving effective in preventing HIV infection; we should expand access to that drug for everyone, including at-risk populations. We should call on Republican governors to put people’s health and well-being ahead of politics and extend Medicaid, which would provide health care to those with HIV and AIDS.

We should call on states to reform outdated and stigmatizing HIV criminalization laws. We should increase global funding for HIV and AIDS prevention and treatment. And we should cap out-of-pocket expenses and drug costs—and hold companies like Turing and Valeant accountable when they attempt to gouge patients by jacking up the price of lifesaving medications.

We’re still surrounded by memories of loved ones lost and lives cut short. But we’re also surrounded by survivors who are fighting harder than ever. We owe it to them and to future generations to continue that fight together. For the first time, an AIDS-free generation is in sight. As president, I promise you that I will not let up until we reach that goal. We will not leave anyone behind.

Canada: Latest unjust HIV non-disclosure conviction highlights everything that’s wrong with Canada’s approach

Analysis: Canada’s newest sex offenders

On March 1, a 29-year-old indigenous woman in Manitoba was sentenced to prison for the crime of aggravated sexual assault. More than four years ago, Marjorie Schenkels had sex without a condom with a friend on three occasions. Schenkels did not disclose the fact that she is HIV-positive. Schenkels, a survivor of sexual violence in both her family and relationships, is now registered as a sex offender and will spend the next two years in jail.

This is where the Supreme Court of Canada, and prosecutors, have brought us with their overly broad use of criminal law when it comes to HIV. Because of a series of much-criticized decisions that equate HIV non-disclosure before sex with sexual assault, indigenous women living with HIV are now a new face of sexual offender in this country.

Schenkels’ case is a window into this miscarriage of justice. As in many other cases of HIV non-disclosure, the sentencing judge found that there was no lie, manipulation or exploitation by Schenkels. Rather, her silence was the result of fear and denial. Nor was there any evidence that she actually transmitted the virus to the complainant who has since tested positive for HIV. But because the Supreme Court ruled that HIV non-disclosure before sex can amount to fraud invalidating consent to sex, people living with HIV can be convicted of aggravated sexual assault — an offence usually reserved for the most violent cases of sexual assault — even if the sex was neither forced nor coerced, there was no intention to harm and HIV was not transmitted.

Criminalizing HIV non-disclosure is often perceived as a means of protecting women. This perception is reinforced by the fact that the charge used to prosecute people for not disclosing the fact they have HIV is sexual assault. But criminalizing HIV non-disclosure does not protect women from HIV, nor from gender-based violence nor the inequality in which it is rooted. What it does do is put women living with HIV — especially those in abusive relationships — at increased risk of violence, abuse and prosecution. For many indigenous women, particularly those surviving a legacy of colonization and the intergenerational effects of residential schools, the overly broad criminalization of HIV non-disclosure has only institutionalized another form of violence against them.

As of today, at least 17 women living with HIV have been prosecuted for HIV non-disclosure in Canada. Most of them were already living on the margins, already facing a greater risk of acquiring HIV and making it even more challenging to disclose their status. Some of those women, like Schenkels, are indigenous; also like her, some are survivors of sexual or other violence. Many were and are living in poverty or with little income security. Some had precarious immigration status. Add to this marginalization the dilemma of revealing a heavily stigmatized status such as being HIV-positive or facing criminal charges for one of the most serious offences in the Criminal Code. This bind does not help or protect women.

When a person does not disclose they have HIV, it is usually not about asserting force over another person in order to gain sexual gratification, but rather the result of fear of violence or other harm, rejection or denial. By associating HIV non-disclosure with sexual assault, we are both harming people living with HIV and seriously undermining the law of sexual assault. These concerns are not limited to the HIV community. Feminist scholars and advocates are also questioning the value of such use of the law, as captured in a new documentary film, Consent: HIV non-disclosure and the law of sexual assault. (see below; the image above is a still from the film).

As one of the film’s experts asks, “What does it do to our understanding of sexual assault law as a vehicle to promote women’s equality if the new faces of sex offenders are young, racialized, aboriginal or street-involved women?” It is a bitter irony that Consent was publicly screened in Winnipeg the day of Schenkels’ sentencing hearing.

Schenkels’ case brings Canadians, once again, face to face with the cruelty of a justice system that not only fails to protect women from sexual violence, but also ensnares the most vulnerable, despite their efforts to overcome their struggles. Schenkels is taking responsibility for her life and her former actions. She is married and a caregiver to her partner’s child, and she is accessing HIV care. Even the sentencing judge acknowledged she was considered “a viable candidate for community supervision” rather than imprisonment. Nevertheless, she will spend the next two years in an institution notorious for its limited resources for addressing the health needs of its population, especially those living with HIV. It’s a tragic illustration of how equating HIV non-disclosure with sexual assault makes women less safe and simply multiplies the forms of systemic violence that women living with HIV suffer.

Cécile Kazatchkine is a senior policy analyst and Vajdon Sohaili is director of communications for the Canadian HIV/AIDS Legal Network. Laverne Gervais is the project co-ordinator of Sisters of Fire at Ka Ni Kanichihk.

This piece was originally published in the Winnipeg Free Press.

Consent: HIV non-disclosure and sexual assault law from AIDSLAW on Vimeo.

Australia: New campaign launched by state PLHIV organisation to amend HIV disclosure requirement in New South Wales’ Public Health Act

Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review.

The Public Health Act is a key piece of NSW legislation which impacts the lived experience of people living with HIV. For many years, Positive Life has advocated for a number of key changes to the Act to reflect the current reality of HIV as a chronic manageable health condition, to better support efforts to end HIV transmission and to acknowledge prevention of HIV transmission is a shared responsibility regardless of sero-status. With charges under the Crimes Act laid against a man relating to the alleged infection of another man in January, now unrelated accusations against a sex worker extradited to Western Australia, Positive Life will again advocate for change to the Public Health Act as part of a required review of the legislation.

Despite an update in 2010, Positive Life argues some sections of the Public Health Act need change, and even removal from the Act to protect the interests of people living with HIV, reduce stigma and discrimination and enhance HIV prevention and testing in the broader community. A key example is the removal of Section 79, known as the ‘disclosure provision’.

Section 79 requires anyone who knows they have a sexually transmissible infection (STI) including HIV to inform a person before they have sex, and for that person to voluntarily accept the risk of acquiring that infection. In NSW, if you are HIV-positive and don’t disclose your status before sex you are guilty of an offence under the Act. The requirement to disclose your HIV status before sex hasn’t changed from the 1991 version of the Act, except for the inclusion of a ‘reasonable precautions’ provision.

This provision provides a defence to prosecution if ‘reasonable precautions’ have been taken during sex to prevent transmission. However, the definition of ‘reasonable precautions’ remains unclear and this amendment falls short of the current reality of HIV. Removing Section 79 will provide a more comprehensive approach to the rights and responsibilities of the community regardless of sero-status.

With today’s HIV treatments, if a HIV-positive person is on treatments and has an ‘undetectable viral load’, the chances of condomless sex resulting in HIV infection are extremely low. However under the current Section 79, without change to the law or a court deciding that an undetectable viral load is a ‘reasonable precaution’, a person with HIV could still be committing an offence under the Act for not disclosing their status before sex.

Under Section 79, criminalising HIV discourages testing and encourages anonymous sex. Put simply, if you don’t know you have HIV you cannot be found guilty of an offence under the Act for not disclosing your status. Equally, anonymous sex reduces your chances of being identified for prosecution. In an era where more than 90% of people with HIV are on treatment and have an undetectable viral load, people who are infected with HIV but unaware of their status are more of a risk for transmission than people on treatment with a suppressed viral load.

Fear of prosecution inhibits honesty with sexual partners and medical providers, so Section 79 may actually increase the transmission of HIV and other STIs, rather than decrease it. An honest and open relationship with our doctor is crucial to maintain good health regardless of our sero-status. For example, contracting an STI such as gonorrhoea is a risk for anyone who is sexually active, and if the symptoms are hidden, we don’t know we’ve picked up an STI. If we can’t speak openly about the sex we have, it’s likely we won’t be tested for STIs and instead transmit any unknown infection to others.

Under Section 79, forced disclosure of our status as a person with HIV can encourage HIV-related stigma and discrimination, both real and perceived. Disclosure of our status as a person with HIV can, in rare circumstances, lead to violence. More often forced disclosure leads to rejection, loss of control over who knows of our status, discrimination on the basis of our status, or the premature ending of relationships.

Section 79 as it stands does not account for PrEP. Today, many HIV-negative people are already importing pre-exposure prophylaxis or ‘PrEP’, and following the announcement on World AIDS Day last year of an expanded trial of the HIV-prevention medication, many more will be taking PrEP as the trial is rolled out in coming months. A benefit of PrEP is it encourages HIV-negative people to take control of their own health and reduce their own risk of acquiring HIV. Reducing HIV transmission is a shared responsibility and Positive Life believes this principle should be reflected in the Public Health Act.

With the coming review of the Public Health Act, Positive Life will share more about other changes we believe should be made to the Act to reflect the modern reality of HIV as an ongoing manageable health condition. In the meantime, if you have questions or comments about our proposed changes to HIV disclosure requirements in the Act, please make contact on 1800 245 677 (freecall) or by email.

Originally published on Gay News Network