Canada: Demand Ontario's Attorney General develop prosecutorial guidelines with input from the Ontario Working Group on Criminal Law and HIV Exposure

Over the past two and a half years, you signed on to our campaign calling on the Attorney General to create prosecutorial guidelines to stop unjust prosecutions for HIV non-disclosure in Ontario. It worked. Earlier this month, the Ministry of the Attorney General (MAG) finally told us that they are “currently developing guidance for Crown counsel” and that the guidelines “should be finalized by the fall [of 2013].”

However, we can’t celebrate this news because MAG has made it clear that they are unwilling to meet with us to discuss the content of the guidelines. We are very concerned. Given the 2012 Supreme Court decisions that made the law less evidence-based and harsher, it is more important than ever that MAG meaningfully engages with CLHE on the content of the guidelines. The guidelines must be informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV.

Sign our petition to Premier Wynne and the Attorney General. We are demanding an in-person meeting to discuss the content of the prosecutorial guidelines. The campaign for justice needs your support now more than ever.

REPEAL Legislation Seeks to End HIV Criminalization

REPEAL Legislation Seeks to End HIV Criminalization Spurred by the harsh criminal sentences implemented under an outdated law, on May 7, Representatives Barbara Lee (D-California) and Ileana Ros-Lehtinen (R-Florida) introduced the bipartisan legislation the REPEAL (Repeal Existing Policies That Encourage and Allow Legal) HIV Discrimination Act.

UNAIDS publishes updated, detailed guidance on HIV criminalisation

Today, the Joint United Nations Programme on HIV/AIDS (UNAIDS) publishes its long-awaited updated guidance to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission. The guidance aims to ensure that any application of criminal law in the context of HIV achieves justice and does not jeopardise public health objectives.

In a note accompanying the release, UNAIDS’ Executive Director, Michel Sidibé, states:

As I highlighted in my opening remarks [at the High Level Policy Consultation on criminalization of HIV Non-disclosure, Exposure and Transmission co-hosted by UNAIDS and the Government of Norway on 14-15 February 2012] in Oslo, the overly broad criminalisation of HIV non-disclosure, exposure and transmission at best indicates a lack of understanding of the science of HIV, at worst comprises an expression of discrimination against people living with HIV.  Such overly-broad laws not only lead to miscarriages of justice, but also threaten our efforts to address HIV in an effective and rights-based manner.

Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations is the result of a two year project involving research, evidence-building and policy dialogue, comprising:

  • The development of background and technical papers on current laws and practices, as well as recent medical and scientific developments relevant to HIV criminalisation;
  • An Expert Meeting in Geneva, Switzerland (31 August to 2 September 2011) bringing together leading scientists, medical practitioners and legal experts to consider the latest scientific and medical facts about HIV to be taken into account in the context of criminalisation; to explore how to best address harm, risk, intent, proof, and sentencing; and to consider alternative responses to criminalisation, in light of scientific and medical advances; and
  • A High Level Policy Consultation in Oslo, Norway (14 -15 February 2012) that gathered policy-makers, experts in HIV science, medicine and human rights and members of civil society, including people living with HIV, from around the world to discuss options and recommendations for addressing overly broad HIV criminalisation.

The new guidance reiterates the positions previously stated in the 2008 Policy Brief issued by UNAIDS and the United Nations Development Programme  (UNDP) and the recommendations of the Global Commission on HIV and the Law, to limit the application of criminal law to cases of intentional transmission (i.e. where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it) and that general – and not HIV-specific – laws should be used for these extremely rare occasions.

It also stresses that because overly broad HIV criminalisation raises serious human rights and public health concerns, rather than relying on laws, investigations, prosecutions and imprisonment, resources should focus on “expanding the use of proven and successful evidence-informed and rights-based public health approaches to HIV prevention, treatment and care, and limit any application of criminal law to truly blameworthy cases where it is needed to achieve justice. States should strengthen HIV programmes that enable people to know how to protect themselves from HIV and to avoid transmitting it, and they should help people access the services and commodities they need for HIV prevention, treatment, care and support.”

Mindful that this ideal cannot be achieved in the short-term, UNAIDS then provides detailed and specific “considerations and recommendations” to address how the criminal law is currently applied to HIV non-disclosure, exposure or transmission. “It offers these to help governments, policy-makers, law enforcement officials, and civil society—including people living with HIV—to achieve the goal of limiting and hopefully ending the overly broad application of criminal law to HIV. These considerations and recommendations are also provided to help ensure, to the best degree possible, that any application of criminal law in the context of HIV achieves justice and does not undermine public health.”

There are three main princples behind the guidance. The use of criminal law in relation to HIV should

  1. be guided by the best available scientific and medical evidence relating to HIV,
  2. uphold the principles of legal and judicial fairness (including key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof), and
  3. protect the human rights of those involved in criminal law cases.

The guidance then provides detailed considerations and recommendations, with regard to

  • the assessment of the harm caused by HIV

In the absence of the actual transmission of HIV, the harm of HIV non-disclosure or exposure is not significant enough to warrant criminal prosecution. Non-disclosure of HIV- positive status and HIV exposure should therefore not be criminalised.

  • the assessment of the risk of HIV transmission

Where criminal liability is extended to cases that do not involve actual trans- mission of HIV, such liability should be limited to acts involving a “significant risk” of HIV transmission. The determination of whether the risk of HIV transmission from a particular act is significant should be informed by the best available scientific and medical evidence.

  • the assessment of the mental culpability of the person accused

Any application of criminal law to HIV non-disclosure, exposure or transmission should require proof, to the applicable criminal law standard, of intent to transmit HIV. Intent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/ or non-disclosure of that status and/or from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.

  • the determination of defences to prosecution or conviction

Disclosure of HIV-positive status and/ or informed consent by the sexual partner of the HIV-positive person should be recognized as defences to charges of HIV exposure or transmission. Because scientific and medical evidence demonstrates that the risk of HIV transmission can be significantly reduced by the use of condoms and other forms of safer sex—and because these behaviours are encouraged by public health messages and HIV prevention strategies that should not be undermined—condom use or the practice of other forms of safer sex (including non-penetrative sex and oral sex) should be recognized as defences to charges of HIV non- disclosure, exposure or transmission. Effective HIV treatment or low viral load should be recognized as defences to charges for HV non-disclosure, exposure or transmission.

  • the assessment of elements of proof

As with any crime, all elements of the offence of HIV non-disclosure, exposure or transmission should be proved to the required criminal law standard. HIV phylogenetic evidence alone is not sufficient to establish, to the required criminal law standard, that one person did infect another person with HIV.

  • the determination of penalties following conviction for HIV non-disclosure, exposure or transmission

Any penalties for HIV non-disclosure, exposure or transmission should be proportionate to the state of mind, the nature of the conduct, and the actual harm caused in the particular case, with mitigating and aggravating factors duly taken into account.

  • prosecutorial guidelines

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

The entire guidance is available below, and can be downloaded here.

Canada: New guide offers practical advice to HIV nurses and clarifies professional obligations regarding HIV and the criminal law

A new guide which aims to address some of the realities and complexities faced by nurses and others who provide care to people living with HIV in Canada, is now available.

Covering everything from record keeping, confidentiality, viral load and safer sex to search warrants, subpoenas and testifying in court, it offers practical advice to HIV nurses and helps clarify their professional obligations regarding isues around HIV (non)disclosure and the criminal law.

Listen to lead author Marilou Gagnon, who gave an interview to CBC radio about the reasons for the guidance.

Developed by the Canadian Association of Nurses in AIDS Care (CANAC) in partnership with CATIE (Canadian AIDS Treatment Information Exchange), it was written in February 2013, four months after the release of the Supreme Court of Canada decisions in the cases of R. v. Mabior and R. v. D.C.

The guide is an extremely important resource at a very difficult and confusing time in Canada – not only for people living with HIV, but also those who work with, or advocate for them.  Although the guide covers legal and scientific complexities around (non)disclosure that are specific to the Canadian context, it may also be helpful for HIV service providers in other jurisdictions. At the very least, this is a ‘best practice’ model for others to emulate.

This excerpt from the introduction provides a good overview of the content and tone of the guide, which can be ordered and/or downloaded from the CATIE website.

In the current Canadian legal context, it is important for nurses to maintain trust and therapeutic relationships with clients, to preserve a safe space for clients to talk about HIV disclosure issues, and to recognize that real-life experiences of HIV disclosure are far more complex than the idealized representation of disclosure expressed in the criminal law.† Furthermore, it is important for nurses to continue providing excellent nursing care across the HIV healthcare continuum from prevention through diagnosis and treatment to care and support.

Research papers, reports and grey literature all point to the challenges of providing nursing care given the current legal context. In these circumstances, it seems particularly prudent for nurses to clarify their role and responsibilities as members of the healthcare team and to have a clear understanding of their own obligations with respect to HIV non/disclosure.

It would certainly be helpful for nurses to use this guide as a tool to engage other members of the healthcare team and identify their respective roles and responsibilities.

This guide was primarily developed to support nurses who provide care to people living with HIV in Canada and offer some guidance on how to meet professional standards when dealing with non/disclosure in nursing practice. Guidance may not provide a definitive answer or indicate a correct course of action in a given circumstance. However, nurses should be aware that existing legal, ethical and professional frameworks can be relied upon to respond in a professionally sound manner to key questions and concerns.

There are areas of nursing practice that will remain uncertain, so it is important for nurses to work on a case-by-case basis in collaboration with the other members of the healthcare team, seek guidance when necessary, initiate referrals to legal services when required, engage in reflective practice, and be mindful of their professional obligations. Laws, professional standards and policies can change at any time. It is important for nurses to remain aware of any new developments because these will inform their own professional obligations.

Download the guide here.

Interview with Iowa’s Tami Haught on building a broad law reform coalition

Meet Tami Haught: Iowa’s Anti-Criminalization Advocate 

Tami Haught explains how, with the support of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) and hundreds of Iowans living with HIV, she helped build a broad coalition to reform Iowa’s HIV criminalization statute, Iowa Code 709C. Haught discusses the small victories that the coalition has won over the past year. 

What is the current HIV-specific law in Iowa and how does it affect Iowans living with HIV?

The old joke in Iowa is that if you’re HIV-positive and you go to a bar, make sure to bring a notary public with you, that way you can have your disclosure letter notarized to prove that you did disclose your status before you had sex. But this law is no joke, because it has negative public health consequences.

Under Iowa’s Code 709C you may be subjected to prosecution if you cannot prove that you disclosed your positive status to a partner, regardless of intent, regardless of condom use, regardless of an undetectable viral load, regardless of transmission, and the sentences can be very severe.

What are the negative public health consequences of Iowa’s HIV criminalization law?

The latest research shows that HIV criminalization legislation, like Code 709C, discourages HIV testing, treatment and care, which works against the public health recommendations being proposed by experts.

Can you tell me about your work to repeal and reform this legislation?

The bill that was proposed eliminated the HIV-specific part of the current law by including hepatitis, tuberculosis and meningitis. The proposed law would also create a tiered system of sentencing, which maintains severe sentencing in cases of intentional transmission of HIV but allows lesser sentencing in cases of nondisclosure when a condom was used, when there was no intent, or when HIV was not transmitted.

We also included direct language in the bill about what “exposure” meant, based on the latest scientific research. For example, in over 30 years of research there has been no documented case in which saliva transmitted HIV–yet, inexplicably, people are still being prosecuted in many states for spitting.

But the bill didn’t quite get passed. What happened?

The reformed bill passed through Iowa’s bipartisan Senate Judiciary Subcommittee (3 to 0) and the Senate Judiciary Committee (8 to 3), and we were very close to getting the bill passed in the legislature, but at the last minute one of our allies changed sides and introduced an amendment that scuttled the bill. Still, we’ve had great support from Senator Matt McCoy, Senator Steve Sodders, Senator Charles Schneider, and many more members of Iowa’s legislature, and we’re very grateful for the assistance we received from Deputy Attorney General Eric Tabor, and Randy Mayer from Iowa’s Department of Public Health.

One lesson we’ve learned is to never assume who is on your side, because we have some great advocates, both Democrats and Republicans, who are fighting for us. So don’t look at the “D” or the “R” behind a name, because you never know the personal story or how someone may have been personally touched by HIV/AIDS.

Why do you feel personally mobilized by this bill?

Toward the end of my husband’s life, in the mid-1990s after both of us had been diagnosed, he became very scared of laws that prosecuted people for HIV exposure. He was afraid that I would charge him with criminal transmission–which I would have never done. But my husband eventually had a nervous breakdown and the thought of these HIV criminalization laws really started his downward spiral even faster, because they increased the stigma and shame and guilt that he felt after first being diagnosed.

What are some of the lessons that you’ve learned in Iowa that can be applied elsewhere?

For HIV-negative people not familiar with these laws, it takes them a while to understand the issues. When I conduct HIV criminalization forums, I usually show Sean Strub’s documentary HIV is Not a Crime. Just seeing Nick Rhoades, Robert Suttle, and Monique Moree tell their stories does a lot to reverse people’s prejudices and preconceptions. They begin to understand that people living with HIV are just like their neighbors and families.

In Iowa we’ve found that personal stories matter in changing people’s minds about HIV criminalization laws. One focus this year is to collect people’s stories to show that disclosure is not always easy, and that sometimes disclosure comes with consequences. Many HIV-positive people still fear that they’ll lose employment or housing if they tell the wrong person about their status. Even for me, it took six years after my husband’s death to talk openly about my status.

For advocates trying to reform HIV criminalization laws in other states, I’m sure people can learn from our successes and mistakes here in Iowa. Hopefully, sharing our experiences will help advocates in other states save time and money so that we can get these laws changed faster.

From The SERO Project’s Spring 2013 Newsletter

Spring News from The SERO Project

Sero Screenings and Community Events In recent months, Sero has hosted or participated in community events in Alabama, Idaho, Iowa, Louisiana, Maryland, New York, Pennsylvania, Tennessee, Virginia, Washington, and Washington, DC. The image above was from a joint screening of Sero’s short film HIV is Not a Crime with the Canadian HIV/AIDS Legal Networks feature documentary Positive Women: Exposing Injustice.

UK: Young woman with HIV blogs about her personal experiences of HIV criminalisation

It was soon after my diagnosis with HIV that the nurse asked whether I would be reporting my then partner to the Police for transmitting HIV to me. I was stunned, simply stunned by the question. I suppose the nurse had to ask…or did the nurse need to pose the question?

What the REPEAL HIV Discrimination Act Means to Public Health | NASTAD Blog

By Oscar Mairena, Manager, Policy & Legislative Affairs and Viral Hepatitis This month, Congresswomen Barbara Lee (D-CA) and Ileana Ros-Lehtinen (R-FL) introduced bipartisan legislation, , the Repeal Existing Policies that Encourage or Allow Legal (REPEAL) HIV Discrimination Act.

US: HIV criminalisation survivor, Robert Suttle – why I support the REPEAL HIV Discrimination Act

When I was released from prison, in January 2011, I knew that I needed a new life plan. I was now not only a gay black man with HIV, but also a convicted felon and registered sex offender. My career had been in the state appellate court system, but they could not hire a convicted felon.

Should It Be a Crime to Have Sex While Living With HIV?

Today’s article is a response by guest columnist Mark Hubbard to “Should It Be a Crime to Expose One to HIV?” an article appearing on TheRoot.com by The Root contributer Keli Goff. “Should It Be a Crime to Have Sex While Living With HIV?”