[Feature] Beyond Blame: Challenging HIV Criminalisation

Beyond Blame: Challenging HIV Criminalisation

A pre-conference meeting for AIDS 2014

In July 2014, at a meeting held to just prior to the International AIDS Conference in Melbourne, Australia around 150 participants from all regions of the world came together to discuss the overly broad use of the criminal law to control and punish people living with HIV – otherwise known as ‘HIV criminalisation’.

The meeting was hosted by Living Positive Victoria, Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and the Australian Federation of AIDS Organisations, with the support of AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.

The meeting was financially supported by the Victorian Department of Health and UNAIDS.

This highlights video (12 mins, 50 secs) was directed, filmed and edited by Nicholas Feustel, with interviews and narration by Edwin J Bernard.  The video was produced by georgetown media for the HIV Justice Network.

Download the highlights video from:http://vimeo.com/hivjustice/beyondblame

Below is a feature story based on the transcript of the highlights video, with additional links and information. You can also read Felicita Hikuam’s excellent (and remarkably quickly-written) summary of the day in ‘Mujeres Adelante’ and Daniel Reeders’s impressive collection of tweets from the meeting.

FEATURE STORY

A day to come together, find solutions, and move forward

Paul Kidd: On behalf of Living Positive Victoria, the Victorian AIDS Council, Australian Federation of AIDS Organisations, and the National Association of People with HIV Australia, welcome to Beyond Blame: Challenging HIV Criminalisation. We hope today’s event is inspiring and productive and that it kicks off the discussion about HIV criminalisation that will continue through the week and beyond.

Edwin Bernard: I think this is the largest HIV Criminalisation Pre-Conference to date at an International AIDS Conference. So the idea of the meeting is to bring people together. People who are working on this issue, who are interested in learning more about it, and we’re going to really work hard to come together, find solutions, and move forward.

Julian Hows: GNP+ has been involved in this issue of criminalisation since 2002, 2003, when we noticed an increase in the rates of prosecution in Europe effectively and started the first scan of the 53 signatory countries of the European Convention on Human Rights.

This has since become the Global Criminalisation Scan, an international ‘clearing-house’ of resources, research, and initiatives on punitive laws and policies impacting people living with HIV.

Jessica Whitbread: And ICW are really, really excited to be here and part of this. Criminalisation is a huge issue for us. Over 50% of people living with HIV are women and many of these laws initially and still continue to be created as a way to protect women when actually they put us more at risk.

Getting the criminal law changed and out of the HIV response

The meeting began with a surprise announcement by the Minister of Health for Victoria, David Davis, about Australia’s only HIV-specific criminal law, Section 19A of the Victorian Crimes Act. Read more about the campaign to reform the law here.

David Davis: And as a further step in our efforts to reduce the impact of HIV and reduce stigma and discrimination, the coalition government will amend section 19A of the Crimes Act 1958 to ensure that it is non-discriminatory.

Following the announcement Victoria’s Shadow Health Minister, Gavin Jennings, committed to removing (and not just amending) Section 19A within the next 12 months, should Labor win the state election in November.

A keynote address by the Honourable Michael Kirby, a former Justice of the High Court of Australia, and a member of the Global Commission on HIV and the Law, reminded us why an overly broad criminal justice apporach to prevention does more harm than good.

Michael Kirby: In the big picture of this great world epidemic, the criminal law has a trivial role to play. What is most important is getting the law changed and out, not getting the law into the struggle against HIV and AIDS.

The Iowa example: laws are subject to change and should be subject to change

The meeting then focused on Iowa in the United States where both law reform and judicial rulings have limited the overly broad use of the criminal law.

Matt McCoy: You know, in Iowa, we had a very bad law on the books, but it’s not unlike a lot of other places in the country in the United States and in the world. So there was no need for transmission, and with it, the penalty was so extreme, a mandatory lifetime sex offender registry and 25 years in prison.

Watch the video that Senator McCoy showed at the meeting explaning how law reform in Iowa happened.

Sean Strub: Iowa is a conservative farm-belt state. And the effort there began with a small group of people with HIV who started organising others with HIV and educating their own communities and then educating public health officials and reframing the issue in terms of a public health issue rather than simply an issue of justice for people with HIV. Last month, we held a conference at Grinnell College in Grinnell, Iowa. It was the first national conference on HIV criminalisation in the US. The Friday before our conference began, Governor Branstad in Iowa signed a criminalisation reform measure and made Iowa the first state in the United States to subtantively reform and modernise their statute.

Two videos of the HIV Is Not A Crime conference (also known as the Grinnell Gathering) are available.  One shows the opening ceremony and can be viewed on the Sero website.  A second video highlights the voices of US HIV criminalisation survivors featured at the meeting, and can be viewed on the Sero website.

Nick Rhoades: About a week after the conference was over, the timing was just a little bit off, nonetheless, it’s fantastic. My conviction was overturned by the Iowa Supreme Court. Yeah. Thank you… It’s kinda groundbreaking, their decision, and I, first of all, think that it’s going to have an effect beyond Iowa’s borders, but it basically said that there has to be more than a theoretical chance of transmission to be prosecuted under the law. And previously, that’s not been the case. Basically, it was just if you didn’t disclose, and you had sex, that that would be enough to convict someone. So, for the first time, they basically said that factors such as using protection, being on antiretroviral medication, having an undetectable viral load specifically, should affect whether or not prosecution is able to happen.

Senator McCoy took the opportunity to urge parliamentarians to rethink how they treat HIV in a criminal context.

Matt McCoy: Many of these laws went into effect in the United States during the AIDS crisis and the scares that society had around the issue, and in many cases they were put into effect using a one-size-fits-all measure. And so this is a great opportunity to go back and to revisit that and to realise that our laws are subject to change and should be subject to change.

Science can change laws and limit prosecutions

A number of countries in Europe have also recently revisited their criminal laws, policies or practices. A poster, Developments in criminal law following increased knowledge and awareness of the additional prevention benefit of antiretroviral therapy, presented at AIDS 2014 by the HIV Justice Network, showed where and how this has taken place.

Edwin Bernard: We have to salute the Netherlands, the very first place in the world that actually, way before the Swiss statement, between 2004 and 2007, managed to change the application of the law through a variety of Supreme Court rulings, but also because of advocacy that happened with advocates and healthcare workers and people in the community who limited the role of the criminal law to only intentional exposure or transmission. Denmark was the only country in Western Europe that had an HIV-specific criminal law, and a huge amount of advocacy went on behind the scenes and that law was suspended in 2011 based on the fact that the law was about a serious, life-threatening illness, and the reality was that in Denmark, people living with HIV have exactly the same life expectancy as people without HIV. And so the law just couldn’t apply anymore. And so, we hope that the places like Denmark and the Netherlands will provide inspiration for the rest of us.

Urgent need to focus on global South

But with two-thirds of all HIV-specific criminal laws enacted in the global South, there is now an urgent need to re-focus our efforts.

Patrick Eba: For a long time, we have been saying that there is no prosecution happening in the Global South, particularly in Africa, because we were lacking the information to be able to point to those instances of criminalisation. In fact, there is a lot of prosecution that is happening, and in the past year, if you look at the data that is being maintained by the HIV Justice Network, it is clear. We’ve seen the case in Uganda. We know of a decision that came out some time late last year in South Africa. We know of a number of cases in Kenya, in Gabon, in Cameroon [and especially in Zimbabwe]; and these really show that where we celebrate and are able today to know what is happening in the Global North, our lack of understanding of the situation in the Global South is one that requires more attention.

Dora Musinguzi: Uganda is right now grappling with lots of human rights and legal issues, and it’s going to be such a high climb to really convince our governments, our people, government agencies to make sure that we really have this reform of looking at HIV from a human rights angle, public [health] angle, gender justice angle, if we are going to achieve the gains that we have known to achieve as a country. …But we stand strong in this, we are not giving up. We are looking to a future where we shall challenge this criminalisation, and we hope to come back with a positive story.

Workshops on advocacy messages, science and alternatives to a punitive criminal justice approach

After the morning plenary sessions, participants then attended one of three workshops. The first workshop explored how to get advocacy messages right, in terms of what arguments need to be delivered by whom and to whom.

Laurel Sprague: We talked about the importance of stories. In particular, the stories of people who have been prosecuted, both because of the dignity it gives them to be able to share their own experience, and also because what we’re seeing is so broadly understood to be disproportionate once the details come out.

Laurel’s rapporteur notes can be downloaded in full here.  For an example of advocacy messagaging aimed at communities impacted by HIV see this video from Queensland Positive People.

A second workshop highlighted the way that up-to-date science on HIV-related risks has limited the application of the criminal law in Sweden and Canada.

David Mejia-Canales: Really mobilising their scientists, their researchers and really connecting with the lawyers, the judiciary, the prosecutors and putting to them the best evidence that they have.

Download the Powerpoint presentation given by Cecile Kazatchine of the Canadian HIV/AIDS Legal Network here.

The third workshop examined alternatives to a punitive criminal justice system approach, and the risks and benefits of using, for example, public health law or restorative justice.

Daniel Reeders: So if someone shows up at a police station or talks to their doctor about being exposed or infected with HIV, a restorative justice approach would talk about giving them an opportunity to work that issue through with the person who they are otherwise trying to report, either for criminal prosecution or public health management. It acknowledges that people experience HIV infection as an injury and that there is a lack of a process offering them an opportunity to heal.

Daniel’s entire rapporteur report can be read on his blog.

Going home with more ideas and tools and inspiration to continue our work

As the meeting came to a close participants appreciated the day as a rare and much needed opportunity to discuss advocacy strategies.

Paul Kidd: What a day! It is just so amazing to be in this room with all of these incredible people and the sense you have of how much passion and energy and commitment there is around this issue.

Richard Elliott: Even as we face numerous setbacks in our own context sometimes, we see that in fact people are making breakthroughs elsewhere and then that helps us put pressure domestically on decision makers, on legislators, on judges.

Michaela Clayton: It’s important to learn from how people have achieved successes and what have been peoples’ problems in achieving successes in different countries in addressing criminalisation. So for us it’s a wonderful opportunity to learn from others.

Dora Musinguzi: I was encouraged to know that the struggle is not only for us in Africa, in Uganda, and I was also encouraged to know that our colleagues have made progress, and so we can.

Sean Strub: I think everywhere that there is an effort for this advocacy for reform, it is a constantly evolving effort. And the fact that the HIV Justice Network and others brought together this global community which is incredibly mutually supportive. I think of any aspect of the epidemic, I can’t think of an area where there is more collegiality and mutual respect than those of us who’ve centered our work around criminalisation reform. That’s what we’re seeing here in Melbourne, just an expansion of that, and all of us going home with more ideas and tools and inspiration to continue our work.

To remain connected with the global advocacy movement against overly broad HIV criminalisation, like us on Facebook, follow us on Twitter and sign the Oslo Declaration on HIV Criminalisation to join our mailing list.

Sweden: Supreme Court refuses to rule on treatment’s impact on HIV risk even as a second Court of Appeal judgement recognises latest science

Last week, Sweden’s Supreme Court announced that it would not grant leave to appeal in a case where the prosecution had appealed an acquittal from Court of Appeal regarding a man living with HIV, on successful antiretroviral therapy, who had unprotected sex with several women none of whom were infected.  Instead, it cited its 2004 ruling stating that only sex with a condom can prevent a prosecution for ‘HIV exposure’ (as reckless endangerment).

The Swedish Prosecutor’s office notes that

“The Supreme Court’s decision means that the Court of Appeal’s acquittal

cannot be considered indicative. Instead, the Supreme Court judgment of

2004 is still indicative. The legal situation has not changed.”

Advocates are extremely unhappy. Although lower courts can still take notice of ‘Risk of HIV transmission from patients on antiretroviral therapy: A position statement from the Public Health Agency of Sweden and the Swedish Reference Group for Antiviral Therapy‘ (aka the ‘Swedish statement’) in future trials for people with HIV on successful treatment, this was a lost opportunity to modernise the application of the law from the highest court in the land.

An editorial by Oisín Cantwell in Monday’s popular newspaer, Aftonbladet, spelled out exactly what this means.

The fear of AIDS will survive 

The Supreme Court had a chance to make up with the judiciary outdated

views on HIV. But a new decision means, unfortunately, that people

will continue to be convicted of crimes they did not commit.

The Court of Appeal for Skåne and Blekinge last year acquitted a man

living with HIV and who had had unprotected sex with four different

women [all of whom] did not become infected.

The district court had sentenced him to one year in prison, but the

Court of Appeal brought in the opinion of the [Swedish] Centre for

Disease Control and allowed a professor to testify.

According to both the CDC's expert statement and the professor,

the [HIV transmission] risk during vaginal sex is very low.

The Court of Appeal found that since the man was well-managed on

medication  "the probability that the intercourse to which the charge

relates would result in the transmission of HIV was so small that

no real danger can not be considered to have existed."

Thus, there was not any crime.

Courageous verdict

The verdict was courageous and progressive: the lawyers listened to

some of the world's most skilled and knowledgeable researchers

in the field and took a decision that could lead to scientific

criteria forming the basis of when prosecutions should be instituted

in cases related to HIV.

The Prosecutor appealed to the Supreme Court to see if it would

stand up and be the guide. Now the Supreme Court's curt decision

has been reached, the case is not addressed. This means on one

hand that the Court of Appeal's ruling is upheld.

The man is innocent.

But the Supreme Court writes, in addition, that a ruling from

2004 still applies in practice.

Very unfortunate

That case concerned a man who had had a significant number of sex

with ten men [all of ] whom were not infected. He was sentenced

to one year in prison for reckless endangerment.

That this judgment will in the future be the guiding principle

is very unfortunate. It was reasonable when it was delivered,

but in the ten years that have passed since then, research has

made great progress.

Today's medicine allows those living with HIV on successful

treatment are simply not infectious. In addition there is now

much better knowledge of the risks than then.

In other words, its no sensation that Jan Albert, Professor of

Infectious Disease at the Karolinska Institute, is surprised

that the Supreme Court still drags out the old judgment.

The consequence: stigma remains 

What, then, will be the consequence of the decision?

The 1980s horror of AIDS will live on in the courtrooms

and help maintain the future stigmatisation of those with HIV.

It is perfectly understandable that people become terrified

when they find out that they have had unprotected sex with

someone with HIV.

But this fear that is based on ignorance.

No need to disclose

In its recommendations, the National Board writes that a doctor

can now make their own judgment about whether their patient need

to inform their [sexual] partner that they are living with the virus.

Of course it will still be a crime to not adhere to treatment and,

therefore, expose others to risk. But those who take their HIV

seriously, which a substantial majority do, for obvious reasons,

do not commit a crime when they have sex.

That people may be sent to jail for something they have not

done wrong is deeply offensive.

Something tells me that the judgement also means that

the huge amount of legitimate international criticism that

has been leveled against Sweden, as one of the countries with

the greatest zeal for HIV-related crimes, will not end.

Stockholm Court of Appeal finds successful treatment grounds for acquittal

However in June, the Stockholm Court of Appeal found that a woman living with HIV could not be held criminally liable for reckless endangerment when she was on successful antiretroviral treament.  Instead they sentenced her probation and a 5000 kronor (€550) fine for reckless endangerment for having condomless sex with a man (who was aware of her status).

The ruling was reported in Allt om juridik on June 11th.

An HIV-positive woman indicted for repeated unprotected sex

with a man was acquitted entirely in the District Court.

A divided Court of Appeals has now made a somewhat different

assessment, sentencing the woman to probation and a fine.

A man reported a woman to the police and claimed that she had

unprotected sex with him without telling him that she was infected

with HIV. The woman was charged with attempted aggravated assault

as well as reckless endangerment.

At the trial the man changed his mind and said that he knew about

the woman's HIV infection before the first sexual intercourse,

but made a police report because of jealousy.

The District Court noted that during the unprotected intercourse

there had been some, but not significant, risk of HIV transmission.

The Court also found that the defendant "harbored warm feelings"

for the man, supported by the fact that she completed intercourse,

trusting that any transmission of infection would not happen.

Therefore, it was not established that the woman had the

intent to transmit HIV infection, and the indictment for

attempted aggravated assault was dismissed.

Regarding the prosecution for reckless endangerment the District

Court held that the consent had an exonerating effect because the

risk of infection had not been as high. The Court stated that

the question of exonerating consent existed to be judged

by the severity of the risk and the risk that the danger would

be realised. The Court found that HIV infection is a very

serious disease. Unlike the District Court, the Court considers

that the risk of infection in this case was so high during

the period when the woman was untreated for HIV infection,

1 in 1000 through unprotected sexual intercourse, that the consent

did not have an exonerating effect. After the time woman began to

take antiretrovirals, there was a decreased risk of infection,

however, so that the consent could be deemed to be exonerating.

The woman sentenced thus for reckless endangerment only for the

period when she was not on antiretroviral drugs. The penalty

was determined to be probation and a fine.

Uganda: Civil society coalition condemns President Museveni for signing HIV Prevention and Control Bill into law

[Press Statement from the Coalition for HIV/AIDS Prevention and Control Act]

Civil society organisations reacted harshly today to the assent by President Museveni on July 31 2014 to Uganda’s controversial HIV Bill, the HIV Prevention and Control Act of 2014, which was passed on May 13 2014 by Ugandan Parliament. This law has been publicly criticised by officials leading the HIV response in Uganda, such as the AIDS Control Programme of the Ministry of Health and the Uganda AIDS Commission, entities that repeatedly told media that this Act would take Uganda‟s AIDS response in “the wrong direction.”

“We are outraged that Uganda would willingly embrace backwards laws and policies,” said Lilian Mworeko of ICW East Africa. “How can we achieve the AIDS Free Generation that government has committed to when Uganda adopts such a law?”

The law has been assessed by experts in Uganda such as UNAIDS and the Ugandan Human Rights Commission, as discriminatory, with key provisions that will impede the fight against AIDS.The controversial provisions in the Act include: mandatory HIV testing for pregnant women and their partners, and allows medical providers to disclose a patient’s HIV status to others without consent. The bill also criminalises HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status.

“Why is Uganda avoiding evidence of what works in the AIDS response?” asked Kikonyogo Kivumbi of UHSPA. “It is founded on stigma and discrimination and based on outmoded and unnecessary approaches that have been condemned by health agencies as ineffective and violating the rights of people living with HIV.”

Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights. The criminalization of HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status is overly broad, and difficult to enforce.

The organisations are exploring a legal challenge to the Act, considering these violations.

“We are gravely concerned that this Law will drive people at risk of HIV infection, in particular criminalised populations such as sex workers and gay men, further from life saving services they need,” said Asia Russell of Health GAP.

President Museveni‟s assent came despite criticism by the Ministry of Health’s AIDS Control Programme, and the Board Chair of the Uganda AIDS Commission, Professor Vinand Nantulya, along with many independent health rights groups in Uganda. They oppose the contentious clauses and called on Uganda to fight HIV with more effective legislation.

“For Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalise them, and exclude them from policy making,” said Dorah Kiconco, executive director of Uganda Network on Law, Ethics & HIV/AIDS.

Signed Ugandan HIV and AIDS Prevention and Control Act 2014

BEYOND BLAME
Challenging HIV Criminalisation @ AIDS 2014, Melbourne

(13 min, HJN, Australia, 2014)

In July 2014, at a meeting held to just prior to the International AIDS Conference in Melbourne, Australia around 150 participants from all regions of the world came together to discuss the overly broad use of the criminal law to control and punish people living with HIV – otherwise known as ‘HIV criminalisation’.

The meeting was hosted by Living Positive Victoria, Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and the Australian Federation of AIDS Organisations, with the support of AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.

The meeting was financially supported by the Victorian Department of Health and UNAIDS.

This highlights video (12 mins, 50 secs) was directed, filmed and edited by Nicholas Feustel, with interviews and narration by Edwin J Bernard.

The video was produced by georgetown media for the HIV Justice Network.

US: Lambda Legal calls for halt to HIV-based criminal prosecutions in wake of Department of Justice guidance

[Press release from Lambda Legal]

“We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

(Washington, D.C. Thursday, July 17, 2014) – Lambda Legal today called for a moratorium on all HIV-based criminal prosecutions until state legislatures take action to implement the reforms recommended in the recent Department of Justice (DOJ) guidance advising states to eliminate such prosecutions absent clear evidence of an intent to harm and a significant risk of actual transmission.

“This is a watershed moment in the fight to decriminalize HIV. When the country’s leading law enforcement agency — working hand-in-hand with the country’s leading public health authority — reaches the conclusion that particular laws and criminal prosecutions are working at cross-purposes to our national strategy for ending the HIV/AIDS epidemic, it is time for those with the power to end these prosecutions to take immediate action,” said Scott Schoettes, HIV Project Director for Lambda Legal. “We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

Earlier this year, the DOJ co-authored an article with the Centers for Disease Control and Prevention (CDC) analyzing the current landscape with respect to HIV criminalization laws in the United States. As a follow-up, the DOJ this week published guidance (“Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors” [link]) noting that these laws are not based on a current understanding of HIV or the availability of biomedical techniques for preventing its transmission, were enacted when the prognosis of those with access to care was much different than it is today, and place unique and unnecessary additional burdens on people living with HIV.

Schoettes added, “For years, Lambda Legal has been advocating for the repeal or reform of HIV criminalization laws, assisting defense attorneys from behind the scenes, and—when the opportunity arose and a solid legal argument could be made—fighting in court ourselves against the most egregious application of such laws. Along with a wide range of allies we have refined the arguments against these laws, made our case to audiences both gay and straight, and pressed others to join our cause. The growing drumbeat against these laws and unjust prosecutions finally has reached the ears of those in positions of authority. And this summer, the tide has finally turned in our favor.”

Within the criminal justice system, prosecutors have a significant degree of discretion and represent the most important safeguard against unjust applications of the criminal law. In this circumstance, any government attorney who is currently prosecuting a criminal case that turns upon the HIV status of the defendant is invested with the power to consider whether that prosecution conforms to the best practices set forth by the Department of Justice guidance and to discontinue prosecutions that are not in line it. In situations involving consensual sexual conduct between adults, a prosecution would not move forward under the parameters of this guidance unless there is clear evidence of both the intent to transmit the virus and a significant risk of transmission as a result of that person’s conduct.

“Right now, dozens of individuals in states all across the country face prosecutions that are not justifiable under the parameters set forth in the DOJ guidance,” said Schoettes. “No person who is in a position to halt such a prosecution should stand idly by while these individuals are subjected to such unwarranted persecution. We call upon those who have pledged themselves to pursue justice on behalf of the communities they serve to fulfill that pledge now, to end all prosecutions based on HIV status, and to return these individuals to their families and their lives.”

Last month, in a pivotal appeal litigated by Lambda Legal, the Iowa Supreme Court set aside the conviction of Nick Rhoades, an HIV-positive Iowan who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man during which they used a condom. In reversing the conviction, the Court questioned whether HIV-positive individuals who have a reduced viral load as a result of effective treatment can transmit HIV through sexual activity.

The DOJ guidance is available here

The Iowa Supreme Court ruling in Lambda Legal’s case Rhoades v. Iowa is available here

US: Department of Justice releases guidance to eliminate or reform HIV criminalisation laws

[Press release from the US Department of Justice]

JUSTICE DEPARTMENT RELEASES BEST PRACTICES GUIDE TO REFORM HIV-SPECIFIC CRIMINAL LAWS TO ALIGN WITH SCIENTIFICALLY-SUPPORTED FACTORS

WASHINGTON – The Justice Department announced today that it has released a Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors. This guide provides technical assistance regarding state laws that criminalize engaging in certain behaviors without disclosing known HIV-positive status. The guide will assist states to ensure that their policies reflect contemporary understanding of HIV transmission routes and associated benefits of treatment and do not place unnecessary burdens on individuals living with HIV/AIDS.

This guide is in follow-up to the department’s March 15, 2014, article published with the Centers for Disease Control and Prevention (CDC), Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, which examined HIV-specific criminal laws. Generally, these laws do not account for scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken. As a result, many of these state laws criminalize behaviors that the CDC regards as posing either no risk or negligible risk for HIV transmission even in the absence of risk reduction measures.

“While initially well intentioned, these laws often run counter to current scientific evidence about routes of HIV transmission, and may run counter to our best public health practices for prevention and treatment of HIV,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. “The department is committed to using all of the tools available to address the stigma that acts as a barrier to effectively addressing this epidemic.”

The department’s efforts to provide guidance on HIV-specific criminal laws are part of its ongoing commitment to implementation of the National HIV/AID Strategy, released in 2010. Today’s guide furthers the expectation from the Office of National AIDS Policy that we tackle misconceptions, stigma and discrimination to break down barriers to care for those people living with HIV in response to the President’s Executive Order last year on the HIV Care Continuum Initiative. For more information on the National HIV/AIDS Strategy, visit the White House website.

[Press release from the Center for HIV Law and Policy]

The U.S. Department of Justice (DOJ) today issued important new guidance to help end the use of state criminal laws to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status.  DOJ’s guidance, titled “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors,” rebuts the unsupported assumptions that triggered the adoption of most state criminal laws targeting HIV; outlines the impact on individuals and public health of the stigma these HIV-specific laws reinforce; and explains the current scientific knowledge and medical developments that compel reform.

“HIV criminalization laws are rooted in profound ignorance about the roots, risks and consequences of HIV transmission. This ignorance reflects and perpetuates stigma associated with an HIV diagnosis, and has no place in law and public policy,” said Catherine Hanssens, Executive Director of The Center for HIV Law and Policy (CHLP). “Today’s guidance is the first of its kind from a government law enforcement agency, and an important step in addressing that ignorance. The Department of Justice rightly focuses on three essential truths: that HIV is not an easy virus to transmit, that treatment and other risk-reduction methods can reduce that risk to negligible or zero, and that currently available therapies have transformed HIV into a manageable chronic disease.”

Nearly two-thirds of U.S. states have HIV-specific laws that impose criminal sanctions on people who do not disclose their HIV positive status to a sexual partner or who engage in behavior – such as spitting or biting – that poses virtually no risk of transmitting HIV. Regardless of whether HIV transmission occurs, those who are charged are prosecuted as serious felons, often receive lengthy sentences, and in nine states are burdened with mandatory sex offender registration. The classification of HIV exposure and transmission as a serious felony is grossly out of proportion to the actual threat of harm.

“The DOJ guidance carefully outlines the facts that call for modification of sentences associated with HIV transmission or exposure – the impact of current treatment options and the impact on life quality and expectancy. I wish the guidance more explicitly connected the dots by directly calling for an end to felony prosecutions. At the same time, this is the clear context for that information in the guidance,” Hanssens noted.

A number of states also use general criminal charges such as assault or reckless endangerment to prosecute people living with HIV who are sexually active or who are charged following altercations with law enforcement personnel. The DOJ guidance does not directly address these laws, although its underlying rationale is applicable to all forms of state HIV criminal law policy.

“At 43 years old I never imagined how different my life would be because of my arrest and incarceration,” says David Plunkett who was sentenced to 10 years in New York State, which has no HIV specific criminal law, for “assault with a deadly weapon” – his saliva.  “I also never realized the stigma attached to those with HIV and especially those who also have a criminal record. I should have been able to focus on my health and career, not battling a system that incarcerates those who live with a chronic illness, and remains uninformed about the nature and transmission of HIV.”

Stigma associated with HIV is a barrier to testing, treatment, and prevention. Recent studies show that antiretroviral therapy can reduce the already-small per-act risk of transmission by an additional 96%, but approximately 16-20% of the one million Americans living with HIV do not know they have the virus and likely are the primary source of new infections. Those who are newly infected, when the level of HIV virus in their bodies is high, but who are unaware that they are infected, are the most likely to transmit HIV to another partner.

“Today, the risk of transmission of HIV from a patient taking effective medical therapy is close to zero, and the life expectancy of a newly diagnosed patient with HIV is nearly indistinguishable from his uninfected neighbor. But HIV remains with us and will do so as long as those who are infected are not diagnosed and treated,” says Dr. Wendy Armstrong, Program Director for the Infectious Disease Fellowship Training Program at Emory University in Atlanta, Georgia. “Criminalization laws do nothing to advance individual or public health, but rather enhance stigma, embrace blame, and discourage testing. There are more effective means to combat this epidemic.”

The guidance notes that many HIV-specific criminal laws run counter to scientific evidence about routes of HIV transmission, and undermine public health goals such as promoting HIV testing and treatment. DOJ recommends that states reform their laws to eliminate HIV-specific criminal penalties, with the exception of sentence enhancement in cases of sexual assault where HIV transmission could occur or in cases in which a person with HIV acts with the intention to transmit HIV and engages in conduct posing a significant risk of transmission.

The DOJ guidance is the product of two directives: one is President Obama’s National HIV/AIDS Strategy, which tasked DOJ with assessing HIV criminal laws and offering technical assistance to states looking to reform their laws; the other is a Congressional Committee Report that accompanied the Commerce, Justice, Science, and Related Agencies Appropriations Bill 2014, which called for similar action and an analysis of civil commitment laws used to extend the confinement of registered sex offenders. The DOJ guidance is available at http://hivlawandpolicy.org/resources/us-department-justice-calls-states-eliminate-or-reform-archaic-hiv-criminalization-laws.

Through the Positive Justice Project (PJP), a national coalition of organizations and individuals working to end HIV criminalization in the United States, CHLP is actively working with community advocates and people living with HIV across the country to modernize HIV-related criminal laws.

The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.

U.S. Department of Justice Civil Rights Division Best Practices Guide

Criminal prosecution of HIV transmission – HIV Media Guide

Regardless of the merits of individual cases, criminal prosecution of people for exposure or transmission of HIV is considered by some commentators to be problematic because prosecutions:

VAC and Living Positive Victoria call for reform of state's HIV-specific criminal laws

VICTORIA’S two main HIV and AIDS organisations have released a joint statement urging their state government to reform its HIV-specific criminal law. In a joint policy discussion paper focusing on the repeal of section 19A of the Victorian Crimes Act, the Victorian AIDS Council (VAC) and Living Positive Victoria (LPV) stated that reform needed to happen in order to achieve the goal of eliminating HIV transmissions by 2020.

Outrage HIV Justice Film Festival debuts at AIDS 2014 in Melbourne, first ever film festival to focus on HIV criminalisation

In the lead-up to AIDS 2014, ten powerful thought-provoking films from seven countries over three days (18, 19 and 21 July 2014) will outrage Melbourne film-goers by exploring how laws and policies aimed at controlling, punishing or disempowering specific groups of people living with, or at risk of HIV, harms not only human rights, but also the broader response to the HIV epidemic.

Curated by international HIV activist Edwin Bernard, co-ordinator of the HIV Justice Network, the Outrage HIV Justice Film Festival is presented in partnership with ACMI (Australian Centre for the Moving Image), Victorian AIDS Council and Living Positive Victoria.

The Outrage HIV Justice Film Festival includes four themed sessions: Women’s Injustices; Challenging HIV Criminalisation; Australian Responses to HIV Injustices; and Activism Against HIV Injustices.

“As the AIDS 2014 ‘Melbourne Declaration’ shines a spotlight on HIV injustices at the conference, the Outrage HIV Justice Film Festival‘s films, director Q&As, and panel discussions, will reveal the real stories behind the stigmatising mainstream media headlines, hopefully changing hearts and minds so that people understand why it’s important to advocate for change,” says the festival’s curator, Edwin Bernard, whose HIV Justice Network campaigns for an end to inappropriate uses of criminal laws to regulate and punish people living with HIV.

The Outrage HIV Justice Film Festival includes films never seen before in Australia and visits countries as diverse as Canada and Cambodia. “I hope that the sophisticated Melbourne cinema audience will be interested in challenging themselves to learn more about the forced HIV testing and imprisonment of a group of disenfranchised women in Greece, who were scapegoated by a cynical government trying to win votes in the 2012 election (in Zoe Mavroudi’s ‘Ruins: Chronicle of an HIV Witch-Hunt‘) or the harrowing impact of state-sponsored homophobia on the lives gay men and women in Jamaica (in Micah Fink’s ‘The Abominable Crime’),” says Edwin Bernard.

Other HIV criminalisation-related films include Positive Women: Exposing Injustice (Canada, 2012); Mark S King: HIV Criminalization Face-Off (US, 2012); HIV is Not a Crime (US, 2011); and How could she go on living as if weren’t there (Sweden, 2010).

“After each screening we’ll also be hearing from the film-makers themselves, many of whom are coming to Melbourne to talk about why they were outraged enough by these HIV injustices to make these films,” notes Bernard, whose own film ‘More Harm Than Good‘ is showing alongside three other short films that explore why a criminal justice approach to HIV prevention is hurting the HIV response.

“The moving image is a powerful expression of human experience. Through a diversity of perspectives, opinion, ideas, stories and images, the moving image helps us make sense of ourselves and our world through dynamic social, cultural and creative exchange. We’re delighted to have worked with our partners to present a compelling programme of cinema and talks focused on such a critical and important issue”. Helen Simondson, ACMI Public Programs Manager.

“This festival will, for the first time in Melbourne, bring together activist voices from around the world showing powerful work that highlights the injustice of HIV related discrimination,” says Simon Ruth, Chief Executive Officer of the Victorian AIDS Council. “Through documentary and drama, the diversity of the films is compelling, moving and ultimately inspiring.”

Punitive laws and policies aimed at controlling, punishing or disempowering specific groups of people living with, or at risk of HIV, is a hot topic and central theme of AIDS 2014, the much anticipated meeting of the International AIDS Society and largest international conference ever to be held in Melbourne.

“HIV justice is a key issue for people living with HIV in Melbourne as it is in many places around the world where even worse laws exist. Victoria still has punitive laws in place that we are fighting to have repealed. Outrage HIV Justice Film Festival takes advantage of AIDS 2014 to bring broader awareness of the damaging impact of unfair laws about HIV,” says Brent Alan, Executive Officer of Living Positive Victoria. “I hope as many Victorians as possible take advantage of the marvellous programme Edwin has curated to be presented in Melbourne’s home of cinema, ACMI.”

For more information and bookings visit www.outragefilmfestival.com or http://www.acmi.net.au/justice-film-festival-2014.aspx.

MEDIA ANNOUNCEMENT – Outrage HIV Justice Film Festival 18-21 July 2014

Flat funding, harsh laws could hurt Uganda's battle against HIV

KAMPALA, 25 June 2014 (IRIN) – Inadequate funding coupled with harsh laws targeting same sex unions could erode the gains so far made in the fight against HIV in Uganda, activists warn.