Having a common regional approach to the HIV and Aids pandemic is an important step for the East African Community, as the five member states get ready for closer integration. The increased trade and labour migration that comes with closer economic ties will invariably create situations where large numbers of foreign nationals travel or relocate freely in their territories.
Mich. HIV data collection violates intent of statute, says lawmaker who helped create law
LANSING, MICH. – Michigan’s health department is violating the legislative intent of an HIV-related statute – and maybe the law itself – by indefinitely collecting information on people who test for HIV at federally funded clinics, says a former state lawmaker, who helped pass sweeping health reforms in the wake of the AIDS epidemic.
Canada: Police training and guidelines in criminal HIV non-disclosure cases urgently required
The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (HALCO) have submitted a paper to the Ontario Association of Chiefs of Police Diversity Committee, informed by their extensive experience in working on the issue.
The paper includes concrete recommendations for police that could be addressed in a general Best Practice Manual, and recommend the development of specific guidelines in relation to non-disclosure of HIV (and possibly other sexually transmitted infections), in consultation with people living with HIV and the Ontario Working Group on Criminal Law and HIV Exposure (CLHE), as well as other relevant stakeholders.
The submission states
The Ontario Association of Chiefs of Police should engage in a dialogue with representatives of the community, including the Ontario Working Group on Criminal Law and HIV Exposure(CLHE) in order to develop:
- training for police about HIV transmission and the realities of living with HIV today; and
- guidelines for police handling matters of alleged HIV (and possibly other sexually transmitted infection) non-disclosure.
Indeed, both training and guidance on HIV-related issues are urgently required in the aftermath of last November’s Supreme Court ruling which has created a great deal of confusion regarding the exact circumstances when alleged HIV non-disclosure may be a crime.
As the submission notes
Guidelines can help ensure that complaints are handled in a fair, non-discriminatory and consistent manner across the province; criminal investigations are informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV; criminal investigations do not reinforce societal prejudices, preconceptions, and irrational fears regarding HIV, or undermine public health efforts to prevent the spread of HIV; unnecessary investigations are not pursued; and the rights of people living with HIV and complainants are fully respected and preserved.
Guidance around confidentiality issues are needed now more than ever. Last month, Toronto police issued a press release stating they were looking for a gay man “who failed to notify his partner that he is HIV positive.” The following day, they withdrew the alert “after police probed the case, [because] investigators found that no criminal offence was committed.” Unusually in this case, however, no name or photo was released.
Specific recommendations from HALCO and the Legal Network on this issue state:
Police should consider the negative impacts of publicly disclosing a person’s HIV-positive status given the high level of stigma experienced by people living with HIV. Police must ensure that the privacy of HIV status and other medical information is respected to the greatest extent possible (applies to accused and complainants). Media releases including the name, picture and/or health information of an accused are extremely prejudicial for people living with HIV and should only be published in exceptional circumstances and under strict conditions. Police should be mindful that even where HIV is not specified on a police and/or media release, members of the general public and/or people associated with the accused may easily understand that the accused is HIV-positive because of general awareness of HIV non-disclosure prosecutions in Canada. Detailed guidance should be developed to assist police in making decisions to publish a police and/or a media release, and to assist police with the content of such releases. Guidance should be developed to assist police in communicating to the media and the public about cases involving HIV non-disclosure.
The campaign for police training and guidelines in Ontario runs in parallel with a similar campaign for prosecutorial guidelines. A recent article in Lawyers Weekly highlights how advocates have been pushing for such guidelines for several years, and are hopeful that some movement may now take place
That hope springs from two sources. First, Canadian provinces would not be the first to put such guidelines in place. England, Wales and Scotland already have related prosecutorial requirements. Second, Ontario’s justice ministry had previously indicated a willingness to do this before the recent SCC decisions were handed down.
The full submission can be read below or downloaded here.
The criminalization of HIV non-disclosure: Recommendations for police
Germany: National AIDS Council releases powerful policy statement on HIV criminalisation
The German National AIDS Council – an independent advisory body of the Ministry of Health consisting of experts from the fields of research, medical care, public health services, ethics, law, social sciences, as well as people from the civil society – has produced a consensus statement on HIV criminalisation during consensual sex.
A press release issued yesterday by the Federal Ministry of Health states (unnofficial translation from German)
HIV infection has become a treatable chronic disease. In Germany, life expectancy with appropriate medical care is nearly normal. However, people with HIV still experience limitations, especially in everyday social life. They are often stigmatised and discriminated against in both the workplace and in the home environment. Criminal court judgments and their public perception play in a crucial role in this context.
- The National AIDS Council points out that the following medical factors should be assessed in criminal proceedings: HIV is difficult infection to transmit compared to other sexually transmitted diseases. The transmissibility of HIV is primarily related to viral load. In the first weeks after infection this is particularly high, and can amount to several million viral copies per milliliter of blood. After a few weeks or months, however, the immune system, usually controls the infection. Once viral load drops the body can keep viral load low for months or years before medication needs to be taken. During this time, the risk of infection is much lower than in the early phase of infection. Once the immune system weakens, generally antiretroviral therapy commences. With effective treatment, the viral load falls below the detection limit (viral load less than 50 viral copies / ml blood). If viral replication is permanently suppressed completely, according to current medical knowledge, HIV is not sexually transmitted. The risk reduction of successful antiretroviral therapy is at least comparable to the correct use of condoms. It is assumed that a large proportion of HIV transmission takes place during the early stages of HIV infection, i.e. at a time, when those who are infected are not aware of their infection, because an HIV antibody test can only show infection after a few weeks.
- Against this background, the National AIDS Council emphasises: A criminal examination of HIV exposure or transmission related to consensual sexual intercourse must be consistent with the medical facts. The decision whether or not the criminal liability of onward transmission can be assigned to the person with HIV cannot be made as a matter of routine. In fact, the determining factor are the circumstances of each individual case, especially the legitimate expectations of both sexual partners. In any case, in a short-term, consensual sexual encounter both partners are responsible for the application of protective measures, regardless of the knowledge or the acceptance of one’s own status and the status of the other person. Attributing either partner as perpetrator or victim is not appropriate.
Criminal proceedings regarding the transmission of HIV from consensual sexual intercourse do not contribute to HIV prevention. They can even be counterproductive in terms of the willingness of an individual to take an HIV test and in terms of open communication of sexual partners. In contrast, it is in the interest of the individual and society to increase willingness to take an HIV test.”
The full text of the statement (in German) can be found here.
US: New toolkit for lawyers defending HIV-related prosecutions now available
A new toolkit from the Center for HIV Law and Policy / Positive Justice Project, released earlier this month, provides a wealth of information for lawyers representing people living with HIV who are facing criminal prosecution based on HIV status.
The toolkit includes charts, articles, guidances, case law, legal analysis, scientific data and empirical citations, as well as quick-reference resources and links to longer reference materials.
The toolkit includes the following resources :
- HIV Criminalization Fact Sheet
- Guidance for a Legal Advocate Representing an HIV-Positive Client in a Criminal Exposure Case
- Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure
- Case Law Index
- Legal Drafting Resources (featuring sample amicus briefs)
- Secondary Resources
- Sample Medical Expert Affidavit on HIV Transmission
- Chart: Comparative Sentencing on HIV Criminalization in the United States
- Chart: HIV, STIs and Relative Risks in the United States
- Chart: HIV and Chronic Disease in the United States
Although created primarily as a resource for lawyers, other advocates, as well as people living with HIV in the United States, are likely to find the toolkit useful.
Download ‘Ending and Defending Against HIV Criminalization: A Manual For Advocates Volume 2: A Legal Toolkit: Resources for Attorneys Handling HIV-Related Prosecutions’ from the Center for HIV Law and Policy here.
Visual AIDS Blog reports on New York screening of two powerful anti-criminalisation documentaries
A vivacious roar of 200 voices from around the world could be heard spilling out of the SVA theater last night on West 23 rd Street. Representatives from the ICW: International Community of Women living with HIV (in town for UN meetings), people from the neighborhood, and others from across the 5 boroughs, gathered to watch HIV IS NOT A CRIME and POSITIVE WOMEN: EXPOSING INJUSTICE.
Canadian lawyer, Louise Binder, on the impact of Supreme Court decision on women
Recent court decisions in Canada on HIV non-disclosure are bad science, bad public health policy, and bad medicine for women, says Louise Binder The theme of the 57th session of the UN Commission on the Status of Women now underway in New York is gender-based violence.
UK: New research calls for better guidance for HIV service providers on criminal law, confidentiality and ethics
Yesterday saw the release of an important new UK study, Keeping Confidence: HIV and the criminal law from service provider perspectives, which explores how HIV criminalisation impacts those who deliver health and social care services for people with HIV.
The report’s lead author, Dr Catherine Dodds, from Sigma Research at the London School of Hygiene & Tropical Medicine, said: “Although HIV health and social care professionals expressed diverse views about their potential role in such cases, they gave a clear sense that criminal prosecutions for the transmission of HIV would not improve public health. Instead, it was most common to hear descriptions of such cases leading to increased stigma, reduced trust between service users and providers, and traumatic consequences for those involved in such cases.”
Study co-investigator, Matthew Weait, Professor of Law and Policy at Birkbeck, Univerisity of London, said: “This important and innovative research demonstrates both the problems that HIV criminalisation creates for clinical and social care providers and the need for solutions at both national and regional level. Care providers working in HIV and sexual health are concerned primarily with the health and wellbeing of their service users – which is of course as it should be; but there is also evidence that criminalisation is compromising their work. Increased awareness and understanding of, and inter-organisational communication about, legal issues is critical, and Keeping Confidence makes practical recommendations as to how that work might be taken forward for the benefit of prevention and support.”
Roger Pebody from aidsmap.com does an excellent job of summarising the study and its findings in this news report:
The study explored how criminal prosecutions for HIV transmission in England and Wales are handled by those who deliver clinical, psychosocial and community support for people with HIV. The report paints a picture of professionals grappling with the difficulties of communicating complex legal information in an appropriate way for each individual. They must weigh up competing concerns and responsibilities, including their own patient’s health and wellbeing, the health of unidentified sexual partners and the legal liability of their own organisation.
The report was launched in central London yesterday at a one-day meeting attended by around 70 HIV service providers, representatives of most of the UK’s community-based HIV organisations, and people living with HIV.
Following presentations of the report’s main findings, a panel consisting of a health adviser, and representatives of community-based organisaton and a people living with HIV discussed the implications for them.
Ceri Evans, Senior Health Adviser at the West London Centre for Sexual Health, Chelsea and Westminster Hospital, highlighted that there may not be a ‘best time’ to inform a newly diagnosed individual of their new legal obligations. Athough she agreed that the post-testing counselling session may not be ideal, she noted that since the criminal law potentially covers all sexually transmissable infections, including genital herpes, and there is usually only a single oppportunity to provide counselling following a new herpes diagnosis, that information about the law might need to be provided to some patients sooner rather than later.
Of note, the report’s fieldwork, involving 75 providers of HIV health and social care services in England and Wales, was undertaken in the latter half of 2012. Since then, the British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have released an updated position statement on HIV Transmission, the Law and the Work of the Clinical Team which provides clinicians with information and guidance on managing many of the issues highglighted as problematic in the research. Lead author, Dr Mary Poulton, Consultant and Clinical Lad, Sexual Health and HIV, Kings College Hospital, London, outlined the main recommendations and provided case studies that illustrated how the decision-guiding algorithm regarding third-party disclosure might be particularly useful.
The rest of the meeting focused around discussing the report’s recommendations, which were as follows.
National recommendations
1. HIV service professionals will benefit from a single website or webpage that collates practical and accessible information about criminal prosecutions for the sexual transmission of HIV. It will need to be updated as new resources become available, and older ones are revised. New resources should be published as required in order to keep pace with clinical and scientific developments in the treatment of HIV that may impact on legal decision-making. The online resource can also identify the best sources of expert criminal legal advice where those are available.
2. A nation-wide programme of continuous professional development in the criminal law should be available to those who provide clinical and non-clinical HIV services. Topics covered should include: straightforward legal definitions and defence arguments, how and when to raise discussions about legal responsibilities, professional liability, communication skills development through the use of scenarios, and existing policy and practice models.
3. Key contacts with an interest in criminal prosecutions should be identified in each clinical and non-clinical HIV service organisation.This process should feed into the development of an updated list for the explicit use of disseminating information about information and training discussed in recommendations 1 and 2 above.The key contacts will also be utilised as the main organisational contact for the development and dissemination of resources to inform people with HIV about the law in this area.
Local recommendations
4. Existing professional guidance and associated documents should be discussed and adapted for local use. This will translate differently in specific settings, and it may lead to the development of local criminalisation policies or protocols, or values statements in some workplaces. At a minimum, such activities should strive for internal consistency on advice, facilitation and support.
5. Opportunities should be created for clinics and community-based organisations to exchange best practice as it relates to criminal prosecution for HIV transmission and to discuss where they agree and disagree on a conceptual level about the ethics of responsibility and public health in HIV prevention.
6. Alongside the development of local criminalisation protocols, all organisations will need to review their confidentiality policies, ensuring that they are accessible to service users, and compatible with internal agreements about criminalisation.
Whilst there was broad consenus regarding many of the recommendations, implementation will depend on various stakeholders collaborating, as well as sufficient funding.
Of note, currently only Australia has a website on HIV and the law aimed specifically at HIV healthcare professionals. The Australian Association of HIV Medicine (ASHM) online Guide to Australian HIV Laws and Policies for Healthcare Professionals covers civil, criminal and public health law, and also includes reference to national guidance on the Management of People with HIV who Place Others at Risk.
The entire day was filmed by the HIV Justice Network and video of the main presentations and final disussion outcomes will be available soon.
US: Journalist Todd Heywood discovers that Michigan health department have been secretly collecting HIV testing information for the past decade
Since 2003, the Michigan Department of Community Health has been secretly collecting the names, dates of birth, risk categories, and other demographic information of people submitting for confidential HIV testing at grant-funded locations throughout the state and storing them in a massive database, a months-long investigation by The American Independent has discovered.
HIV PJA Campaign Boosts Awareness and Endorsements of the PJP Consensus Statement on HIV Criminalization
The HIV Prevention Justice Alliance (HIV PJA), a Positive Justice Project organization, ran a successful outreach campaign to increase endorserment of the Positive Justice Project Consensus Statement on HIV Criminalization in the United States. The Consensus Statement now has nearly 500 individual and organizational endorsements.